Criminology

Fundamentals of Crime, Criminal Law and Criminal Justice

Elements of Crime

1
Quadrant I- Description of the Module

Principal Investigator Prof. (Dr.) Ranbir Singh Vice Chancellor, National Law
University, Delhi
Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University Delhi
Paper Coordinator Dr. Debdatta Das Asst. Prof. Department of Law,
University of Burdwan .

Content Writer/Author Dr. Rangin Pallav Asst. Prof. National Law

Tripathy University Odisha
Content Reviewer Dr. Mrinal Satish Associate Professor. National
Law University Delhi.

Description of Module
Subject Name Criminology
Paper Name Fundamentals of Crime, Criminal Law
and Criminal Justice

Module Name/Title Elements of Crime

Module Id 10
Pre-requisites A general understanding of the primary
principles of criminal law is required for
a proper understanding of this module.
Objectives To have a basic understanding of the
concept of crime

To appreciate the difference between

elements of a crime which are specific
to the crime in question and elements
which are common in most crimes.

To understand the foundational

elements which are common to most
crimes.

To understand the meaning and

dimensions of the concept of mesn rea

To understand the meaning and

dimension of the concept of actus reus
Key Words Elements of crime, actus reus, mens
rea, human being, injury, Actus non facit
reum nisi mens sit rea

Quadrant- II- E-Text

Introduction

2
To understand the various essential elements of crime, it is important to first have a brief
idea about the foundational concept of a crime. A crime is a designated wrong which attracts
the punitive mechanism of the state against the person or persons committing the said
wrong.1 It is distinguished from a tortuous wrong or a civil wrong in a very fundamental
manner.2 A civil wrong or a tortuous wrong is a wrong against an individual or at times may
also be against a group of individuals. The wronged individuals then have the liberty to
pursue a remedy provided by the law against the wrongdoer. However, in case of a criminal
wrong, though the immediate victim of the crime may again be an individual or group of
individuals, the nature of the wrong is such that it is deemed to be an act against the society.
Thus, a crime is not only considered harmful to the individual or group of individuals who
have been the victims of the crime, it is also deemed harmful to the society it at large. 3 This
difference is the reason behind the state taking up the responsibility to punish those who
have committed a crime whereas the pursuit of a redressal for a civil or tortuous wrong is left
to the discretion of the wronged individuals or group of individuals.4

As a crime is considered a wrong not simply against the wronged individual or group of
individuals but against the society at large, the consequences attached to the commission of
a crime also differ fundamentally from those that are attached to the commission of a civil or
tortuous wrong. The primary remedy in case of a civil or tortuous wrong is monetary
compensation that the wrongdoer must pay to the individuals or group of individuals he has
wronged. Monetary compensation is deemed an adequate remedy as the specific loss the
individual or the group of individuals suffer due to the wrong is deemed capable of being
measured in terms of money. However, when the crime committed not simply affects the
immediate victims but also the society it large, the interests of the society cannot be
measured when the wrongdoers pays a monetary compensation to the wronged individual or
group of individuals. Thus, the consequences attached to the commission of a crime are
primarily punitive in nature5 which involve imprisonment, fine and at times also death.

The classification of wrongs which affect the society at large and those which do not is at the
core of any criminal justice system. The principles on the basis of which this classification
should be done form the foundation of the criminological debate. Some wrongs may be
classified as crime due to the inherent violent nature of such acts which is against the basic
societal principle of safety and security. Example of such offences are robbery, assault etc.
Some acts are classified as crimes because they strike at some fundamental social
institutions. One example of such a crime is the offence of bigamy. Some other acts are
determined as offences because the society considers them to be inherently immoral. A
striking example of such a crime is the act of engaging in homosexual acts. The choice of
such principles on the basis of which criminal conduct would be classified and the
determination of the exact boundaries of such principles is a subjective exercise consisting
of societal influences, ideological underpinnings and value judgments.6 Though many crimes
are almost universal in nature (theft, murder etc), the detailed classification of criminal
conduct can vary from society to society, especially when the classification is based on
1
Mishra, S.N., (2004) Indian Penal Code ( pp. 1-4)
2
Nigam, R.C., (1964) Law of Crimes in India (Vol. 1, pp. 26-28)
3
Vibhute, K.I., (2011) Criminal Law (pp. 3-5)
4
Mishra, S.N., (2004) Indian Penal Code ( pp. 1-4)
5
Mishra, S.N., (2004) Indian Penal Code ( pp. 1-4)
6
Nigam, R.C., (1964) Law of Crimes in India (Vol. 1, pp. 26-28)

3
principles of morality. Thus, an act which is considered a crime in one society may not be
considered in another. For example, though engaging in homosexual acts is considered a
crime in India, the same is not considered a crime in many European countries.7

Understanding ‘Elements of Crime’

While the basic constituents of each crime would necessarily be different from that of the
other, the concept of ‘elements of crime’ refers to a set of general characteristics which are
to be found in each crime. The specific conduct which is classified as a crime is a subjective
choice which may differ in identity and detail from jurisdiction to jurisdiction and from crime to
crime, these general characteristics can be described as the objective elements of the crime
which will almost remain common in all kinds of crime in all jurisdictions. An example of the
specific element in a crime which may be called the subjective element can be understood
when we consider the example of Theft and Rape. The specific element in the offence of
theft is that A takes away the property of B without B’s consent with a dishonest intention.
The specific element in the crime of Rape is that A has sexual intercourse with B without B’s
consent. While Theft is about a crime against the property of a human being, Rape is about
a crime against the body of a human being. However, there are certain characteristics which
go beyond these subjective specifics of both the Theft and Rape and can be said to be
common to both. For example, in both cases the person committing the crime is a human
being. In both the cases, A is doing something which is expressly forbidden by law. In both
the cases, the actions of A cannot be described as accidental and can be said to be
intentional in nature.

The concept of ‘Elements of Crime’ deals with such foundational general principles which
form the backbone of any description of criminal conduct. These elements provide the
objective foundation on the basis of which the subjective specification of each individual
crime is constructed.

The Elements of Crime

The following four characteristics are the basic elements in all criminal conduct;

7
76 countries where homosexuality is illegal (2016 November 29) Retrieved from Erasing 76 Crimes website:
https://76crimes.com/76-countries-where-homosexuality-is-illegal/

4
 1. Human being as the Perpetrator
2. Mens Rea
3. Actus Reus
4. Injury

Human Being

A crime can be committed only by a human being. The victims of a crime may be other
human being or even animals but the perpetrator who is held liable for having committed a
crime cannot be anybody other than a human being. It may be noted that in ancient and
medieval times, even animals were held liable for having committed a crime. There have
been several instances of trial being conducted against bull or a pig and then the bull or pig
being punished for the crime.8 However, in modern times, it is a well accepted fact that only
a human being can commit a crime. Section 11 of the Indian Penal Code defines a ‘person’
as including a legal person in the form of a company, association or body of persons and
excludes animals from the definition.9

It is instructive to note that even when a legal person commits the crime, it is the natural
person or group of person who are in control of the legal person who are held responsible for
the crime. Thus, when a company is guilty of cheating, it is the directors and mangers of the
company who are imprisonment as a consequence. However, the development of law in
modern times also imposes legal consequences on a legal person in the form of confiscatin
of property and other such measures by which companies and other such entities are held
responsible.

It is also important to note that when we say that only a human being can commit a crime, he
may commit the crime either himself directly or indirectly. Thus, it is possible that A injures B
by setting his dog upon B. In such a case also, it is A who will be held liable for causing hurt
to B as he is the one responsible for the injuries caused to B even though he might not have
caused such injuries by his own hands.

8
Nigam, R.C., (1964) Law of Crimes in India (Vol. 1, pp. 38-40)
9
Indian Penal Code 1860, Section 11

5
Mens rea

The elements of ‘Mesn rea’ and ‘Actus Reus’ have been derived from the Latin maxim of
Actus non facit reum nisi mens sit rea which means; ‘An act does not make a man guilty of a
crime, unless his mind be also guilty.’

This maxim has formed the foundation of criminal liability in common law jurisdictions and
over several centuries has acquired an irrefutable and undisputed solidity.10 In essence this
maxim mandates that in order to hold person liable for any crime, two elements must be
present;

1. The person must have committed an act (Actus Reus)

2. The person must have committed the act with a guilty mind (Mens Rea)

Thus, the element of mens rea mandates that X must not simply have done the act that he is
accused of, but also must have done the act with a guilty mind. The concept of a guilty mind
is not that of a malicious mind. It is the presence of such a state of mind in a person wherein
he can be legitimately be held responsible for the acts committed by him under the provision
of law. The element of mens rea implies a state of mind which is characterised by the
presence of knowledge, intention, motive, negligence etc depending on the definitional
requirements of the crime in question.11 Thus mens rea is present when a person knew
about the consequences of his act when under the provision of law, such awareness is
sufficient to hold the person criminally liable. It is also present when a person acts
negligently and fails to take the due care which a person of ordinary prudence ought to do.
The fact that a person can be held mentally responsible for the acts committed by him forms
the foundation of his criminal liability.12

It may be noted that the term mens rea has not been explicitly mentioned in any of the
provisions of the Indian Penal Code. However, the concept pervades all the crimes
enumerated therein by implication through use of words such as ‘voluntarily’, ‘fraudulently’,
‘wilfully’ ‘intentionally’, ‘wrongfully’, ‘dishonestly’, ‘negligently’ etc. Thus, the requisite mens
rea in a given situation depends on the definition of the offence.

For example, Section 321 provides that when X causes hurt to Y by doing something with
the intention to cause hurt to Y, he is said to ‘voluntarily cause hurt’. The same is punishable
under section 323. Thus, when X intentionally throws a rock at Y, he is aware about the
physical consequences of the rock hitting Y. He would be liable for causing hurt to Y even

10
Definition of Actus Reus Non Facit Reum Nisi Mens Sit Rea (2016 September 6) Retrieved Frome Duhaime
website: http://www.duhaime.org/LegalDictionary/A/ActusReusNonFacitReumNisiMensSitRea.aspx
11
J.C. Smith, (1960) The Guilty Mind in Criminal Law (L.Q.R 1 pp.76-77)
12
Nigam, R.C., (1964) Chapter 4, Law of Crimes in India (Vol. 1)

6
though he was not meaning to hurt Y was only joking around. In this case, the awareness in
X about the physical consequences of his act is sufficient mens rea to attract criminal
liability.

When an act is an offence when committed with a dishoent intent, mens rea is present if the
person had the dishonest intent. The person would not be liable simply because he did the
act intentionally as long as he was not acting dishonestly. For example, section 378 of the
Indian Penal Code defines theft as X taking dishonestly the movable property of Y without
the consent of Y. In this case, it is not sufficient that X was aware about the physical
consequences of taking a movable property of Y (for example a book) to his own house. It is
also necessary that he must have done the act with a dishonest motive. Thus, when X has
taken the book of Y innocently to read it and then return it, he is not guilty of theft as the
mens rea as required under section 378 is absent. On the other hand, if X has taken the
book with a view to gift it away to one of his cousins, he is guilty of theft as the requisite
dishonest motive is present.

It is important to understand that for mens rea to be present, it is not necessary that a person
intended for a specific crime. What is important to prove is he intended to commit the acts
that he committed and was aware of the possible physical nature of the consequences, even
though he might not have known that his acts constitute a crime.

For example, X, a private citizen captures a notorious thief (Y) and shoots Y in the
head without there being any immediate threat or danger from Y. Here, as long as X
was aware about the physical consequences of shooting a person in the head, he
has committed a crime even though in his mind he was dispensing justice and not
committing a murder.

Thus, in terms of intention, mens rea does not mean the intention to commit a crime but the
intention to commit an act being aware about the physical consequences of the act. This is
best exemplified by the illustration to section 39 which defines the term ‘voluntarily’.
According to section 39, X is said to do something voluntarily when X causes an effect by
means whereby he intended to cause it, or by means which, at the time of employing those
means, he knew or had reason to believe to be likely to cause it. The illustration to section
39 provides a scenario where for the purpose of facilitating a robbery, X sets fire to a
residential house at night in an inhabited town. Due to the fire, a person (Y) who was
sleeping in the house died. Here, the main purpose of X was to facilitate a robbery and he
might not have intended to commit the offence of murder by causing the death Y but he will
still be liable for the same as he knew such a consequence to be likely when setting fire to a
residential house at night.

The element of mens rea can be also understood by exploring the situations where it is
absent. Thus, when a person does something not voluntarily but under some coercion, mens
rea is absent in such a situation. This is underscored by the maxim of actus me invito factus
non est mens actus which is considered an accompanying principle to the fundamental
principle of Actus non facit reum nisi mens sit rea. Literally, it means; an act done by me

7
against my will is not my act.13 This principle is also recognised in the Indian Penal Code
under Section 94 wherein a person is excused from criminal liability when he commits the
crime (other than murder or an offence against the state punishable with death) under threat
to his life.

Also, mens rea is said to be absent when the act is committed under the influence of insanity
or involuntary intoxication of a nature which deprives the person of the capacity to know the
nature of his act. Similarly, an infant is excused from criminal liability due to the lack of
maturity in understanding the nature of the acts committed by him. A person is also excused
from criminal liability when the act committed is by mistake or due to an accident.

Exception to the Requirement of Mens rea

It is important to remember that though the element of mens rea is traditionally an inherent
part of most definitions of crime, there are certain exceptions to the rule. There are certain
situations where a person will be held guilty of a crime even though it may not be possible to
hold him responsible for the alleged act. These are known as rules of strict liability when the
commission of the act is itself a conclusive proof of the fault of the accused and the state of
his mind plays no part in the determination of his guilt.

Actus Reus

Actus reus refers to the act forbidden by the law for the commission of which a person is
held to be criminal liable. It is the other important element which is derived from the maxim of
Actus non facit reum nisi mens sit rea. While the element of mens rea refers to the state of
the mind of the accused while committing a physical act, the element of actus reus focuses
on the very physical act which forms the subject matter of the crime. For example, when X
takes a movable property from the possession of Y without the consent of Y with a dishonest
motive, he is said to commit theft. Here the requisite mens rea consists of the dishonest
motive on the part of X. The actus reus consists of the taking away of a movable property
from the possession of Y. In simple terms, actus reus refers to the conduct (act or omission)
which is forbidden by the law wherein the person engaging in the forbidden conduct is
punishable by a sanction.

It is important to remember that there is nothing inherently criminal in an act unless the same
has been forbidden by the law. For example, X, an executioner, executes Y, a prisoner by
hanging him. Here X is not guilty of murder as his conduct is not forbidden by law but
warranted by law.

It is important to remember that the actus reus constitutes not only of the actual commission
of a forbidden act but also of the attempt to commit the forbidden act. Thus, when theft is a
forbidden act, attempt to commit theft is also a forbidden act. On certain occasions, the
attempt to commit a crime has been specifically described as a crime under the Indian Penal
Code. For example, section 393 specifically provides that an attempt to commit robbery is a
crime. Otherwise, section 511 of the Indian Penal Code lays down the general rule that

13
Nigam, R.C., (1964) Law of Crimes in India (Vol. 1, pp. 72-74)

8
whenever any offence is punishable with life imprisonment or imprisonment of any other
kind, the attempt to commit such an offence is also punishable.

Injury

Lastly, in order to constitute a crime, there must be an injury ensuing to other individuals or
to the society at large. The nature of the injury may vary depending on the nature of the
conduct which is criminalised. Thus, the injury may be in the form of injury to the body, mind
reputation or property of another human being. Crimes such as causing of hurt, commission
of rape are injurious to the body of another person. Causing of mental harassment and
infliction of mental cruelty are crimes against the mind of person. Defamation is a crime
against the reputation of a person. Theft, robbery, trespass, misappropriation etc are crimes
against the property of another person.

On certain occasions, the injury may not be one to a definite person or group of person but
to the society at large. For example, a seditious speech may not in effect harm another
individual but is sedition is considered one of the most grave offences under criminal law.

Summary

1. A crime is not only considered harmful to the individual or group of individuals who
have been the victims of the crime, it is also deemed harmful to the society it at large.
2. While the basic constituents of each crime would necessarily be different from that of
the other, the concept of ‘elements of crime’ refers to a set of general characteristics
which are to be found in each crime.
3. The concept of ‘Elements of Crime’ deals with such foundational general principles
which form the backbone of any description of criminal conduct. These elements
provide the objective foundation on the basis of which the subjective specification of
each individual crime is constructed.
4. The four basic elements of crime are; a human being as the perpetrator, mens rea,
actus reus and injury.
5. A crime can be committed only by a human being. The victims of a crime may be
other human being or even animals but the perpetrator who is held liable for having
committed a crime cannot be anybody other than a human being.

9
6. The elements of ‘Mesn Rea’ and ‘Actus Reus’ have been derived from the Latin
maxim of Actus non facit reum nisi mens sit rea which means; ‘An act does not make
a man guilty of a crime, unless his mind be also guilty.’
7. Mens rea is the presence of such a state of mind in a person wherein he can be
legitimately be held responsible for the acts committed by him under the provision of
law.
8. The element of mens rea implies a state of mind which is characterised by the
presence of knowledge, intention, motive, negligence etc depending on the
definitional requirements of the crime in question.
9. It may be noted that the term mens rea has not been explicitly mentioned in any of
the provisions of the Indian Penal Code. However, the concept pervades all the
crimes enumerated therein by implication through use of words such as ‘voluntarily’,
‘fraudulently’, ‘wilfully’ ‘intentionally’, ‘wrongfully’, ‘dishonestly’, ‘negligently’ etc.
10. Though the element of mens rea is traditionally an inherent part of most definitions of
crime, there are certain exceptions to the rule. These are known as rules of strict
liability when the commission of the act is itself a conclusive proof of the fault of the
accused and the state of his mind plays no part in the determination of his guilt.
11. While the element of mens rea refers to the state of the mind of the accused while
committing a physical act, the element of actus reus focuses on the very physical act
which forms the subject matter of the crime.
12. It is important to remember that the actus reus constitutes not only of the actual
commission of a forbidden act but also of the attempt to commit the forbidden act.
13. In order to constitute a crime, there must be an injury ensuing to other individuals or
to the society at large. The injury may be in the form of injury to the body, mind
reputation or property of another human being.

10