Elements of Crime

Unit 4
By Shachita Kuikel
9841055988
shachitakuikel88@gmail.com
 Elements of Crime
• Criminal law is an institution of blame and
punishment. Blame is attached the defendant’s or
accused conduct/ behavior. If that conduct or
behavior of accused violated the rules or norms of
the criminal law.
• For the crime conduct there is need of presence of
harmful conduct and guilty mind to harm another
person.
• Act only does not amount to guilt it must be
accomplished by mens rea.
 Two approaches of Elements of Crime

1. Traditional Approach
“Actus non facit reum nisi mens sit rea”. According to
this principle crime is constituted if the presence
of actus reus and mens rea proved.
In other words there is need of coincidence of actus
reus and mens rea for a crime conduct.
If any one of them are not existed then it is not
constituted a crime. So it is said that “no actus reus
no crime” and mens rea along without actus reus
can not constitute a crime.
• This principle is applied in all criminal cases except strict
liability crime where proof of actus reus is sufficient to
prove the guilt.
• This principle is related with the relative liability in
which there is need of both physical and mental element
of crime.
• In the case of Tara Raj Bhandari (Karki) v. GON NKP, 2065
number 6, page 687, Decision number 7924, the
principle has been established by the supreme court of
Nepal that for a crime conduct there is need of both
mens rea and actus reus.
• This case was related with corruption. If there is an
absence of any one of those elements of crime there is
 Modern Approach
• According to this approach there should be three
constituent element/ ingredients in order to constitute
crime.
a. Actus reus
b. Mens rea
c. Absence of valid defense (excusable/ justifiable)
• For example: the crime of murder is defined as- unlawful
killing of a human being with malice of aforethought.
• Killing: actus reus/ human conduct
• Malice aforethought: mens rea
 Meaning of Actus Reus and it’s
Requirements
• Actus Reus is first and foremost element of crime.
• It is also known as the physical or material element of
crime which can be seen.
• It is regarded as a conduct which is resulted by physical
action of a person against norms of criminal law.
• Historically, the technical term “actus reus” is derived
from two Latin terms “actus” and “reus”. “Actus”
means “act or deed” and “Reus”means prevented or
prohibited by law.
• So actus reus is an act or deed forbidden by the law.
• This is visible, seen and present physically. It is
compulsory ingredient of each and every nature of
crime without actus reus no crime can be
constituted.
• If actus reus of crime is not established then
automatically a crime is also not established. Thus it
is said that “no actus reus no crime”.
• . It is, therefore, an essential element of a crime
that must be proved to secure a conviction, as
opposed to the mental state of the accused which is
known as mens rea. This may also refers to omission
(failure to comply legal duties) or a specified
consequence (death resulting within certain time in
 Defintiions of Actus Reus
• “Actus Reus is that such result of human conduct as
the law seeks to prevent”: Kenny
• the word actus connotes a 'deed', a material result of
human conduct. When criminal policy regards such a
deed as sufficiently harmful it prohibits it and seeks to
prevent its occurrence by imposing a penalty for its
commission. It has long been the custom of lawyers to
describe a deed so prohibited by law in the words of
actus reus. Thus, actus reus may be defined as 'such
result of human conduct as the law seeks to prevent'
(J.W. Cecil Turner (ed.) Kenny's Outline of Criminal Law, Bombay: Cambridge University
 Essential Elements of Actus Reus
a. Willed human conduct
its origin in some mental or bodily activity or passivity of the doer i.e.
a willed movement or omission(act of commission or omission);
b. Certain circumstances as specified by the criminal law in definition
of crime
c. Certain consequences
In the above elements a and b are common ingredients of actus reus
whether they are conduct crimes, result crimes or possession
crime. The third requirement is necessary to be established only
in result crimes. Without establishment of third requirements
criminal liability might not be imposed and responsibility for
committing a crime is not employed without proof of result of
consequence.
• An actus reus includes the requirement of doing of
a positive act, which is a willed muscular act i.e.
the accused does it willingly.
• The voluntariness of an act is more fundamental
element of criminal liability (Smith and Hogan, p.
35)
• When an act is not voluntary, the person cannot be
held criminally liable for having committed an
actus reus;
Criminal liability must to voluntary
movement of body or limbs of person not
otherwise.
A fires B and kills him– Intentional
Homicide
A rapes C - Rape
A punches D – Hurt
A takes away the property of O without
his knowledge and consent – theft
 Forms of Human Conduct

OMISSION STATE OF
ACT Refraining from doing something which one is bound to AFFAIRS
do. Such duty arises by: (a) Law, (b) Contract, (c) (a)Creating a
Voluntary Muscular Voluntary Undertaking, (d) Blood relationship.
Movement situation in which
Discussion: crime is certain to
E.g. A strikes V with E.g 1 : A child is drowning in pond while playing
the hand of B. A ia happen. E.g. Placing
nearby. Liability of onlookers (Police officer, a friend, a poisoned milk
liable for the strike not parent, a relative & a layman) is generated under
B. knowing that V
Omission if they remain passive observer and do not would take it after
attempt to rescue. coming back from
E.g 2: No. 26 of Chapter on Theft (Muluki Ain) office.
imposes liability of Rs 15/- to any prudent male of 16 to (b)Being found in the
65 years age who do not provide help state prohibited by
upon listening the cry (Gwahar) for help to catch a thief. law. E.g. Being found
E.g. 3: No 19 of Chapter on Homicide imposes fine of in a state without
up to Rs 30/- to a n informed man (aged 16 – 65 years) visa.
who hears request for help (Gwahar) from victim but
does not go for help.
 Act

• Act is a conduct element or behavior element of

actus reus which is fulfilled by doing some sort of
action by accused.
• Most of all crimes are committed by accused through
doing some positive act that means doing some
human conduct which is prohibited by the law.
• An act is the main form of human conduct through
which criminal offence is committed.
• The positive act can be varied according to the
nature of the crime.
 Requirements for Positive Act
(A voluntary act is that if it is a muscular
contraction)

• Only a voluntary act is considered as a positive act.

In order to consider an act as positive there should
be voluntariness.
• It should be immediate product of the violation of
actor. It should be dedicated by the mind (rationale)
of the actor.
• There should be certain movement which is
produced through muscles, organs, limbs of human
beings as it is directed by the mind of human being.
There is no criminal liability in the following
involuntary act
• Physical Compulsion
• Reflex movement of external origin: Hills v. Baxter
case. It was stated that purely reflexive movement
of arms and legs by being attached by a swan of
bees would not be voluntary.
• Confusion: Mental Trauma
• Unconsciousness
• Intoxication
 Series of acts as parts of actus reus
• If A shots B by rifle and kills
• willed movement - raising a rifle and pulling
trigger
• Circumstances – rifle is loaded and is in working
order, person killed is within range
• Consequences – fall of trigger, explosion of
powder, discharge of the bullet, striking of the
body of victim, resulting death
• A will be criminally liable
 Omission
• Omission refers to failure to act. To fail to act is not, usually,
considered a crime, however, there is duty on person to act and
failure to act such duty may constitute a crime (Martin (ed.), p.
285).
• So, some crimes may be committed by an omission as an
alternative to an act, while other crimes can, by definition, only be
committed by means of omission (Cross and Jones, p. 34).
• The omission can be specific and general one. Specific is defined
as a crime and imposed criminal liability for failing to act and
general is that legal duty to act. Due to failure to employ that duty
causes consequence of a crime which is defined by criminal law.
• It should be voluntary.
 Nepalese Context
• Failing to provide care : The Children Act, 1948
• Failing to give FIR of killing : Section 4,
Homicide
• Failing to provide help: Section 26 Chapter on
Theft
• Failing to provide help to injured person –The
vehicle and Transportation Act, 2048
 Forms of Omission
• Where there is special relationship
• Where responsibility has been
assumed
• Where a duty has been assumed by the
contract
• Where the duty is imposed by statute.
• Where the defendant has created a
dangerous situation
 State of Affairs
• One group of cases which cannot be discussed in terms
of voluntary acts are often referred to as the "state of
affairs" cases.
• These crimes are defined not in the sense of the
defendant doing a positive act but consisting in the
defendant "being found", "being in possession" or
"being in charge" etc.
• In some such cases all the prosecution needs to prove
are the existence of the factual circumstances which
constitute the crime-the existence of the state of
affairs.
• State of affairs is a particular status of creating a
situation for resulting a consequence of a crime.
• Types of State of Affairs :
• Specific: criminal law itself defines some kind of
state of affairs as a crime. Eg. Immigration law,
terrorist law, trafficking law, offence against state
• General : it is itself not a separate crime. It
constituted the crime while accused creates a
situation for crime. Eg. electrifying a wall, digging
the hole on the road
• Putting poison on tea etc
• Cases: R. v. Larsoner, Winzar v. Chief constable of
Kent , Fianu v. Department of Labor
 Some relevant situations to Actus Reus
• Deployment of innocent agent: who deploys an innocent agent is
liable for the act.
• Act committed in a series of transaction: series of transaction to
bring about certain result in which whole transaction is regarded as
act.
• Actus reus may be of continuous nature
• Act committed by several persons in furtherance of common
intention : liability to whole group
• Two or more actus reus in same incident: murder and dacoit, rape
and murder
• Stealing from a dead body is an offense against successor : milki
Ram Gurung Case
 Doctrine of Causation
• Causation is the relation between an act and consequences it
produces. It is one of the elements that must be proved before
an accused can be convicted of a crime in which the effect of
the act is part of the definition of the crime (Martin (ed.), p. 57).

• A harm which has been suffered is an event, and it is difficult to

imagine any event which is not the product of a plurality of
factors. It is, however, reasonable to say that an event is caused
by one of these factors if it would not have happened without
that factor. From this it would follow that a man can be said to
have caused the actus reus of a crime if that actus would not
have occurred without his participation in what was done (J.W.
Cecil Turner, p. 20).
• So, In order to held an accused criminally liable, the
direct relationship between “Cause” and “Effect” must
be proved beyond reasonable doubt by the prosecutor.
This principle is called the Doctrine of Causation.
• Case 1: Krishna Limbu etal. v. HMG, NKP 2054
B.S.:- Upon suspicion, Limbu was searched on road
and was detected with possession of Phensedyl. Limbu
is accused of Drugs Transportation. Upon lab test, the
Phensedyl was found to have no codeine in required
amount that can sufficiently enlist the Phensedyl under
the category of narcotic drugs. Even if the accused had
intention (mens rea) to carry transaction of narcotics,
he was acquitted because of the absence of actus reus.
• Case 2: Thabo Meli (1954). All Er 373, (1954) 1 WLR 228.): The
four appellants were convicted of murder. They had planned to kill
a man and then make it look like an accident. They took him to a
hut and beat him over the head. Believing that he was dead, they
then took his body to a cliff and threw it off. Medical evidence
showed that the deceased died from exposure of being left at the
bottom of the cliff and not from the blow to the head.
•They appealed against their convictions on the grounds that
the actus reus and mens rea of the crime did not coincide. That is to
say when they formed the intention to kill, there was no actus
reus as the man was still alive. When they threw him off the cliff,
there was no mens rea as they cannot intend to kill someone they
believed was already dead.
•Lord Reid convicted all accused deciding the act of beating him
and throwing him off the cliff was one continuing act. This
approach involves treating a series of distinct act as continue
parts of a larger transaction.
• In the result crime there is need to establish
causation in that crime conduct.
• If any individual conduct a crime and the immediate
result of conduct is there by an act of that individual
in that case that is causation of same individual and
he is liable for the crime conduct.
• The doctrine of causation may be raised on the
following conditions :
1. Substantial cause/ direct cause
2. natural disaster/ other event:
3. Where there is no physical participation : order to
crime
4. Where the participation is indirect in crime conduct :
crime on the basis of state of affairs
5. Intervention of another person
6. Other contributing causes :
a. Improper Treatment : a person who injured another is
liable for punishment : i. Jordan Case ii. Smith Case
b. Absence of Proper care
c. Negligence to treatment by the injured party: i.
Holland case ii. Bule Case
7. Where the victim’s own conduct has affected the
results
8. Nervous shock/ mental Shock : Tower case, Hayward
case, Holiday Case
 Bhuvane Basnet Kshetri v. HMG
NKP 2031
Fact of the Case
• Pregnancy of lalmati Damini,due to falling into
sexual intercourse with Bhuvane Basnet.
• Planning to flee in India,which was heard by
Panmati & Juna Damini.
• Bhuvane Basnet stated that, he was not running
away but taking lalmati, in fact he had gone to his
sister’s house due to the illness of his
nephew(sister’s son).
• Lalmati was disappeared from 2024/06/20,and
from the same date Bhuvane was not also in
village,he came back to his home in the date
2024/06/21.this series of incident has created a
doubtful situation.
• Police report was prepared and FIR was filed by
taking the reference of evidence collected,
delimiting the punishment in accordance to
no.13.sec(3)of chapter on homicide Muluki Ain .
• District court of Dailekh had decided for life time
imprisonment and confiscation of property of the
accused which is followed by Veri Zonal Court but
the supreme court quashed the case due to the
 Principle of the Case
• It would be unjust and unreasonable to punish an
accused only under assumption of crime. Te crime
must be established (Actus-Reas). The dead body
cannot be found.
• Where the commission of crime itself is in dispute,
it would be unreasonable to impose criminal
liability on accused (dead body not found).
• The causation of act must be proved.
 Meaning of Mens Rea
• It is also called subjective test related to the mental
element of crime.
• Mens Rea is a Latin Maxim which means guilty mind,
wicked mind, and knowledge of wrongfulness.
• Mens rea is positive mental element of crime which is
prohibitted by law to be executed.
• It is a state of mind that the prosecution must prove a
defendant to have had at the time of committing a crime
in order to secure conviction.
• An act is not a crime itself, there must be a guilty mind of
doer to constitute a crime.
• It includes intention, recklessness and negligence.
Sometimes, knowledge of certain circumstances
may be sufficient to constitute a crime like receiving
stolen goods.
• It does not refer to any single state of mind. There
are different degrees of mens rea: intention,
knowledge, recklessness etc.
• it is denoted by guilty mind, wicked mind, mental
element, internal element, blameworthiness, fault
element and state of mind.
• In modern criminal jurisprudence, the term fault
requirement or fault element which covers all
varieties of mens rea.
 Elements of mens rea
• Foresightness of consequences
• Desire or will of consequences
• Voluntariness
• Consciousness
• For example: A intend to Kill B
(foresightness is murder of B)
• Desire will : death of a person
 Steps to establish mens rea
• Three steps
1. The first Step : To determine what mens rea
standard is required in respect of each separate
elements of actus reus.
2. The second step: The second is to interpret the
criteria of those mens rea element
3. The third Step : The third step is the factual
question. Did the defendant in fact act with the
mens rea required or not?
 Varities of Mens Rea
• Purpose
• Intention
• Deliberateness
• Willfulness
• Knowledge
• Believe
• Reasonable cause to believe
• Recklessness
• Negligence
• Maliciously
• Fraudently
 Aspects of Mens Rea
• Volitive Aspect (subjective mens rea)
When accused doing an act if he/she foresees, knows
or realizes the possibility of probable consequences
from his/her conduct and also he/she desires to
achieve it.
This kind of mental element possess both the element
of awareness of consequences and desire to
achieve that consequences.
 Cognitive Aspect
Objective Aspect
• The mental element is cognitive sense means that when
accused is doing an act knows, realizes or foresees the
possible consequences occurring from his/her conduct but
he/she is not desired it to happen.
• Oblique intention
• Knowledge
• Belief reasonable cause to believe
• Recklessness
• Negligence
• So these categories of mens rea are differentiate from each
other only on the basis of the degree of possibility of
 Main Categories of Mens Rea
• Intention
• Knowledge
• Recklessness
• Negligence
 Intention
• Intention means a purpose or desire to bring about
a contemplated result or foresight that certain
consequences will follow from the conduct of the
person.
• E.g.: Causing injury to an assailant in self- defense is
not a crime, however, injury caused with intention
of taking a revenge at the moment constitute a
crime.
• This is a highest degree of mens rea in the
hierarchy of culpability.
• “Intention is a decision to bring about, in so far as
it lies within the accused is power, no matter
where the accused desired that consequence of
his act or not”. (Mohan, 1976) This definition
covers broad aspect of intention as follows:
1. It is aim and objective of the actor directed to
the result
2. Foreseen certain result.
3. Foreseen as a virtually certain result.
4. foreseen as probable or likely consequence
• A person Acts intentionally with respect to a result
when a. it is his/her purpose
b. Although it is not his purpose to cause it, he/she
knows that it would occur in the ordinary course of
events if he/she were to succeed in his/her purpose
of causing some other result.
Literally speaking the term intention connotes a
determined and designed state of mind. An
intentional act means a volitional act, determined
and designed.
 Requirements of Intention
• Voluntariness
• Consciousness
• Will/desire/ purpose
• Foresightness of consequences
so, on the basis of the above mentioned required
degree of intention the following can be discussed
as a major components of intention
 Consequences foreseen for certainty and desired
 Consequences foreseen for certainty but not desired
 A volitional and well designed act
 Types of Intention
• Direct Intention
• Indirect/oblique intention
• Immediate intention
• Ulterior Intention
• Transferred malice
 Direct intention
• A consequence is said to have been directly
intended if the agent aimed at achieving it and
believed that he was likely to succeed (Cross and
Jones, p. 41).
• Purposive intent to get willful result in the form of
desired consequences.
• It is related with volitive aspect of mens rea.
• A fires a pistol to B, hoping that the bullet would
strike B.
 Oblique Intention
• It is also called cognitive aspect of mens rea.
• There is foresightness of consequences which is virtually
certain where willingness of such result is absent.
• If a person acts with intention to commit a wrong act but
another wrong act is committed along with it, sometimes
as inevitable adjunct of the first act and sometime as an
accident.
• Common law courts take narrow view of the word
‘intention’ and held a person liable only for the act he
had committed with desire to obtain certain
consequences and not others.
• Faulkner, a sailor, intended to steal rum from
the ship’s cellar. He pierced (made a hole) the
cellar. In order to stop liquor running, he
wished to put a stopper to the hole, it was
dark. He lit a match, spirit caught fire and a
ship was totally destroyed.
• Held, sailor was not liable for the arson since
he had been stealing liquor and he never
intended to destroy ship (R v. Faulkner (1877)
I.R. 11 C.I.B. 8).
 Immediate Intention and Ulterior Intention

(a) Immediate intention: It is prima facie evidence of

intention. It is relevant in attempt i.e. while the action is
done. It may be good or bad. Good intention is not
relevant in conviction but might be relevant in fixing the
degree of liability.
(b) Ulterior intention (motive): It is the inner and final
intention. Might be good or bad in nature. Good motive
is not a defense. Motive not relevant in conviction but
relevant in fixing the punishment.
Example: Looting someone is an immediate intention and
investing looted amount to built a house is a motive
 knowledge
• Knowledge is the awareness of the consequences of
an act.
• Knowledge is an essential element of crime in some
crimes under our criminal law.
• In Nepal, India and America it is considered as
second kind of mens rea.
• The person is aware about his/her conduct or
circumstances and practically certain consequences.
• It is supplementary to the aspect of intention.
 Intention and Motive
• Intention must be distinguished from motive. A persons'
motive is his reason for acting as he did. Thus, A's motive
for killing B may be financial gain, and C's motive for
stealing may be his wish to feed his starving children. The
general rule is that motive is irrelevant in criminal law.
• Motive is the reason or ground for action whereas
intention is the volition or active desire to an act.
• In other words, intention is an operation of the will
which directing an overact; while motive is the feeling
that prompts the operation of the will, the ulterior
object of the person willing.
• If A kills B, the intention is the state of mind
which directs the act which causes death, the
motive is the object which the person had in
view like: the satisfaction of some such desire
as revenge, vengeance, hatred etc.
 Namkel Chhumu Pariyar v. HMG,
NKP 2060
• If intention is proved through circumstantial
evidence, the accused is guilty of murder.
 Recklessness

• One foresees the possibility of consequences but

does it with a hope that he would avoid the
consequence. It is an act of Unreasonable risk
taking.
• Here victim is uncertain.
• Here the perpetrator foresees the risk but proceeds
on his activity being indifferent as to the
consequences or at least he does so with an
exception that he would avoid the undesirable
consequences.
• E.g. driving a vehicle with a high speed in a busy
road. Operation by a surgeon or showing risky game
in circus are reasonable activities.
• It is Subjective i.e. inside of Accuser's Mind.
• R. v. Cross Man (1986) RTR Court of Appeal:
Driver C drives a Lorry that is attached to a Taylor
knowing that Taylor is over loaded beyond its
capacity. Due to uneven road surface, one machine
falls suddenly from the Taylor into the road that
instantly kills a pedestrian women V. The driver gets
convicted and sentenced for recklessness.
 HMG v. Kallu dhobi Case, NKP 2060
• Kallu was employed by Dinak for wheat harvesting
and they are working together.
• In the due discussion about ownership of land they
are quarreled.
• Out of outrage Kallu stroke Dinak with HASIA (sickle)
on his waist and runs away living.
• Supreme court of Nepal imposed criminal liability of
murder for recklessly killing Dinak by Kallu.
 Negligence

• Negligence is noncompliance with a standard of

conduct, and it involves blameworthy inadvertence
to the consequences mentioned in the definition of
the crime charged.
• Negligence denotes want of care and precaution,
which a reasonable man would have taken under
particular circumstances of the case.
• Also called Reasonable Man Test.
• It is identified by Objective Test (general people can
say if it is negligence or not).
• Doing an act without due care i.e. acting
unreasonably.
• Duty to take care, Breach of such duty, loss to
victim are the main elements of consideration
while determining negligence. Standard of care to
be complied.
• He does not see the consequence.
• E.g. walking with a stick, walking with an iron
rod, walking with a sword. Standard of care to be
complied by a sword taking person must differ
from the degree of care to be complied by a stick
taker.
 Element of Negligence
• Act/ omission
• Causing damage to another
• Breach of standard of care.
Difference between recklessness and
negligence
On the Basis Recklessness Negligence

Foresightness of Yes No
consequence

Question of reasonable man No Yes

Unjust Risk bearing task yes Ignorance of risk

Standard of proof Must be proved by Must be proved

prosecution that the accused circumstances of negligence
have foresightness of and its undesired
consequence consequences
On the Basis Recklessness Negligence

Degree of punishment High Low

 Doctrine of Transferred malice
• Malice is said to be transferred when someone intends
to commit a crime against one person but commit a
crime against someone else/ another person.
• When a bad intention (of A) towards somebody (T) is
transferred to another person (V) then there arises
situation of transferred malice.
• Doctrine of transferred malice, therefore, simply means
that so long as there was malice afore thought is some
one other than the original victim of it even without
criminal intending this it is to be held that the malice
afore thought was transferred to the victim.
• Three situations for transferred malice
 Situation No. 1: (No Transferred Malice)
If (A) Accused shoots (E) Enemy but hits at Dog resulting into death of
dog, (A) cannot be held liable for murder. However, (A) can be
prosecuted for attempt to murder (E). Here, the doctrine of Transferred
Malice is not applied.
 Situation No. 2: (No Transferred Malice)
(A) shoots dog but the bullet hits H (human) resulting to death of (H).
This could be accident or recklessness but (A) cannot be held liable for
murder. Here also the doctrine of malice is not transferred to held (A)
liable for homicide. The dog and human are different creators and hence
they are not treated as same.
 Situation No. 3: (Transferred Malice)
(A) shoots (E) but hits at (H) resulting to death of (H). Here death of (E)
was desired but accidentally it happened to be (H) who died. Since the
intention was to kill someone human and death was met by another
human, the doctrine of Transferred Malice is applied in this situation to
 Nar Bahadur Reule v. HMG, NKP 2061
no.11, p. 1486
Fact of the Case: Nara Bahadur had charged with murder of
Chandra Lal (his own brother) when he stroke with a knife
against Megh Raj in a fit of anger that had developed as to
division of heads of animal scarified in the temple.
Principle of the Case: The supreme court has held that the
accused was guilty of murder by application of transferred
malice but mitigated the sentence to 11 years of
imprisonment by applying number 188 of chapter on
Court management.
By this court has reversed the decision of lower courts which
has adjudicated the case as negligent homicide.
 HMG v. Harsha Bd. Angdambe, NKP 2041,
p. 228
• Harsha bd and other three people were charged
with murder of Bhim Bdr. They confessed that they
had intended to kill Bhakta Bahadur but Bhim
Bahadur was victimized.
• The Supreme Court convicted all the four persons of
murder of Bhim Bdr but mitigated the sentence to
10 yrs of imprisonment by applying sec 188 of court
management.
THANK YOU