PRINCIPLES OF CRIMINAL LAW

Lecture No. 3
 GENERAL RULE
• Any person commiting crime in violation of law would be held
liable under criminal law.
• However, rule is not absolute and it is subject to certain
limitations.
• Latin maxim, actus non facit reum, nisi mens sit rea - There
can be no Crime without a guilty mind - This is Principle of
Criminal Law
• Principle of Criminal Liability - No person, shall be held liable
unless and until it is proved beyond reasonable doubt that he
is the person who has committed offensive act coupled with
the gilty mind. - Presumption of Innocence
• actus non facit reum, nisi mens sit rea, and was first
cited as a principle by Lord Kenyon C.J. in Fowler v.
Pedger thus: "It is a principle of natural justice and of
our law that actus non facit reum, nisi mens sit rea."
• Lord Goddard C.J. observed in a case in 1949: "actus
non facit reum, nisi mens sit rea is a cardinal doctrine of
the Criminal Law."
 ESSENTIAL ELEMENTS OF CRIME

• A. PHYSICAL ELEMENT -
• 1. Human Being
• 2. Injury to the Person
• 3. Actus Reus
• B. MENTAL ELEMENT
• 1. MENS REA
• 2. VOLUNTARY ACT
 HUMAN BEING

• The first element requires that the wrongful act must be committed by a
human being.
• In ancient times, when criminal law was largely dominated by the idea of
retribution, punishments were inflicted on animals also for the injury
caused by them,
• for example, a pig was burnt in Paris for having devoured a child, a
horse was killed for having kicked a man. But now, if an animal causes
an injury we hold not the animal liable but its owner liable for such injury.
• Read S.11 - Person.
 MENS REA
• GUILTY MIND - state of mind - intentional doing of a wrongful act
• Not defined under IPC but incorporated in several ways:
• a. included in the definition of the offence (through terms like
‘dishonestly’, ’fraudulently’, ’voluntarily’, ‘intentionally’, ‘knowingly’).
• b. included in the provisions relating to ‘general exceptions’ in Chapter
IV.
• c. When the definition does not include mensrea, it means that the
liability is strict.
• Rational Behind the Concept of Mens Rea - it is wrong for the society
to punish those who innocently cause harm.
• Mens rea is the mental element, which varies from one offence to
another.
• There are certain situations where mens rea is not needed - for example
bigamy, kidnapping. - crimes of strict liability.
• the framers of the code incorporated in the definition of the crime the
mens rea required, they have further given effect to the doctrine of mens
rea by providing for exemption from liability in cases where a guilty mind
is absent.
• the common law doctrine is engrafted upon the provisions of the penal
code in general exceptions.
 Actus Reus
• wrongful act - Actus; Reus - “forbidden by law”.
• Actus Reus - such result of human conduct as the law seeks to prevent.
• It is an event that is distinguished from the conduct which produced the
result.
• For example - in a murder case, the victim's death is the event which is
the actus reus.
• Another example - While shooting, A holds the gun, places his finger on
the trigger and pulls the trigger, as a consequence of which the bullet
leaves the gun. In order to constitute an actus reus, there must be the
further consequence of the bullet entering B's body and thereby causing
his death.
 VOLUNTARY
• Act must be voluntary.
• any movement of the body, which is not in consequence of the
determination of the will, is not a voluntary act .
• It is only a voluntary act that amounts to an offence.
• A pulling the trigger of a gun, as a result of which a bullet is lodged in B's
body causing his death, A is guilty only if the act of pulling the trigger
was a voluntary and conscious act . If the gun had been triggered by
mistake or accidentally, then it is not an offence and A is not guilty of
murder.
• Conclusion - To make a person criminally accountable, it must be
proved that an act, which is forbidden by law, has been caused by his
conduct, and that the conduct was accompanied by a guilty mind.
 Injury
• Injury caused to the person.
• Section 44 - The word "injury" denotes any harm whatever illegally
caused to any person, in body, mind, reputation or property.
• If death results from an injury voluntarily caused, the person who
causes the injury, therefore, is deemed to have caused the death.
• Result of such conduct which is forbidden by law is 'injury'.
• Thus, combined reading of mens rea+actus reus+injury = the moment
injury is caused with the intent to take revenge, the act becomes
criminal.
• Likewise, shooting in air is no crime, but shooting with the intent to kill a
man is a crime
 STAGES OF CRIME

• Intention,
• Preparation,
• Attempt and
• Accomplishment - the actual commission of
the offence
 INTENTION
• Mere intention or contemplation to commit a crime is beyond the purview of criminal
law.
• Principle - It is even impossible for a devil to know the thought of a man.
• only those intentions punishable that are accompanied by some express words or
an overt act aimed towards achieving the intention.
• the act of preparation in general is not punishable.
• If intention and preparation were made punishable, it would be impossible to prove
that the object of an accused was to commit an offence.
• Intention and Motive - intention specifically indicates the mental state of
the accused, i.e. what’s going on in his mind, at the time of the
commission of a crime, whereas motive implies the motivation, i.e. what
drives a person to do or refrain from doing something.
 PREPARATION
• exceptional circumstances-
• · Preparation to wage war against the Government - Section 122, IPC
1860;
• · Preparation to commit depredation on territories of a power at peace
with Government of India- Section 126, IPC 1860;
• · Preparation to commit dacoity- Section 399, IPC 1860;
• · Preparation for counterfeiting of coins or Government stamps- Sections
233-235, S. 255 and S. 257;
• · Possessing counterfeit coins, false weight or measurement and forged
documents. Mere possession of these is a crime and no possessor can
plead that he is still at the stage of preparation- Sections 242, 243, 259,
266 and 474
• Q? what are the tests to ascertain when an act has crossed
the boundary of preparation and travelled ahead to the point of
becoming an attempt?
• The Indian Penal Code, 1860 is silent on the point. However,
some tests have been evolved by the courts to determine at
what stage an act or a series of acts done towards the
commission of the intended offence would become an attempt.
• These tests are: proximity, locus poenitentiae, equivocality,
impossibility and social danger
 Attempt
• An attempt to commit a crime is essentially a direct movement towards
the commission of the contemplated offence after preparations are
made.
• Proximity Test - an act or a se-ries of act s must be sufficiently proximate,
and not remotely connected, to the crime intended.
• Example - A, intending to murder Z, buys a gun and loads it with the
intention to kill Z. A is not yet guilty of an attempt to murder.
• A fires at Z, but misses the mark for want of skill or due to some defect in
the gun. Since the act of A could not bring the desired effect, say, death
of Z, A could not be held liable for murder. However, A would be liable for
attempt to murder.
• Principle of Proximate test is based on a latin maxim -
cogitationis poenam nemo patitur, which means that no
man can safely be punished for his guilty purposes, save so for
as they have manifested themselves in overt act s which them-
selves proclaim his guilt.
• The proximity rule was the basis for the Supreme Court rulings
in Abhayanand Mishra and Sudhir Kumar and Shamlal
Shaw v State of WB, AIR 1973 SC 2655
 ESSENTIALS OF ATTEMPT
• Abhayanand Mishra v State of Bihar, AIR 1961 SC 1698 -
• A person commits the offence of “attempt to commit a particular
offence” when
• (i) he intends to commit that particular offence, and
• (ii) he, having made preparations and with the intention to
commit the offence, does an act towards its commission;
• (iii) such an act need not be the penultimate (last but one in a
series of acts - second last) act towards the commission of that
offence, but must be an act during the course of committing
that offence.
 Justice Chinnappa Reddy in State of Maharashtra v Mo-
hammad Yakub
• Citation - (1980) 3 SCC 57
• In order to constitute 'an attempt' first there must be an intention to
commit a particular offence, second, some act must have been done
which would necessarily have to be done towards the commission of the
offence and, third, such act must be proximate to the intended result.
The measure of proximity is not in relation to time and action but in
relation to intention.
• However, Sarkaria J considered proximity in terms of the act ual
physical proximity, rather than the inten-tion-oriented proximity.
• Most preferable - Justice Sarkaria's view.
 Locus Poenitentiae Test (Time for Repentance)
• The doctrine locus poenitentiae refers to the possibility of a person who, having made
preparations to commit an offence, actually backs out of committing it, owing to a
change of heart or out of any other type of compulsion or fear.
• so long as the steps taken by the accused leave room for a reasonable expectation
that he might, either of his own accord, or because of the fear of the consequences
that might befall him as a result, desist from the act to be attempted, he would still be
treated on the stage of preparation.
• Example - A, intending to murder Z by poisoning, purchases poison and mixes the
same with food which remains in A’s keeping;
• A is not yet guilty of an attempt to murder; because there is still time when better
reason might prevail any moment and A might change his mind and desist from giving
that food to Z - Malkiat Singh v State of Punjab, AIR 1970 SC 713
 Impossibility Test
• An act which is impossible to commit cannot be attempted and so is not culpable.
• Accordingly, to shoot at a shadow, or to administer sugar mistaking it for arsenic - is
not an attempt.
• Reason - the acts in such cases do not cause alarm or a sense of insecurity in the
society.
• it is now perceived that impossibility of performance of an act does not per se render
the attempt to do it an innocent or an act free from guilt.
• a careful reading of illusts (a) and (b) ap-pended to s 511 shows that a person can be
held guilty of attempting to steal some jewels from an empty jewel box or something
from an empty pocket.
• So, These two illustrations, by necessary implication, lay down a rule that a person
becomes liable for attempting to commit an impossible act. - Queen-Empress v
Mangesh Jivaji (1887) ILR 11 Bom 376.
 Social Danger Test

• The seriousness of the crime attempted and the apprehension

of the social danger involved is taken into account to
distinguish an act of “attempt” from that of “preparation”.
• Example - A, gives some pills to a pregnant woman to procure
abortion, but it had no effect because the drug turned out to be
innocuous (not harmful or offensive). A, would be guilty of
attempt to cause miscarriage since the act would cause an
alarm to society and will have social repercussions.
 Equivocality Test
• Equivocal - Ambiguous
• Based on the Principle - Res Ipsa Loquitor - Act speaks for
itself
• To constitute an attempt, the act must be such as to clearly and
unequivocally indicate the intention to commit the offence. If
what is done indicates beyond reasonable doubt that the end is
towards which it is directed, it is an attempt, otherwise it is a
mere preparation.
• The act must refer to the commission of the crime and it must
be evident and clear on examination.
 CRIMINAL ATTEMPT UNDER IPC
• The Indian Penal Code, 1860 has dealt with criminal attempts in four
different ways, viz,
• (i) first, the attempt to commit offences in general under section 511 of
IPC; -It provides punishment in case of attempts that are not made
punishable by other specific sections
• (ii) secondly, attempt to commit capital offences, like murder, culpable
homicide and robbery;
• (iii) thirdly, attempt to commit suicide;
• (iv) fourthly, attempt to commit offences against the State, head of the
State, sedition etc. In such cases in view of the gravity of nature of the
offence, attempt to commit it as well as the commission of the offence
carry the same punishment.