Introduction
Introduction
Crime
Maintenance
of peace and security is essential in any society for human beings to live peacefully.
Petty wrongs can be protected by the people by themselves through self help but
when it comes to large scale harm to life, limb and property, state must be entrusted
for the same.
Criminal
law is a branch of the public law which authorises the state to use maximum power
possible to protect a crime. There are three major theories of origin of crime:
1. As a sociological wrong
2. As an economic wrong
3. As a political wrong
Definition of a crime
Durkheim defines crime as a natural phenomenon arguing that a society composed
with persons with angelic qualities could not be free from the violations of
the norms of that society.
Penal
laws however define 'crime' as an act of commission or omission prohibited by
law.
Criminal liability principle/ Elements of crime
Mens
rea
Actus
reus
Actus
non facit reum, nisi mens sit rea (the
act itself is not criminal unless accompanied by a guilty mind).
Mens rea
It is the
mental element of crime and is indicated through multiple terminologies in IPC
such as 'dishonestly', 'fraudulently', 'knowledge' etc. Mens rea is mostly
deduced by finding out intention. there can be no crime of any nature, without
an evil mind.
Motive and intention
Law
takes notice of intention only however motive is relevant on the question of
intention.
Motive
though not a sine quo none for bringing the offence home,
however, if the evidences are circumstantial and not clinching and reliable,
conviction can be based on motive which proves intention.
If
the evidences are reliable and trustworthy, conviction can be bases even if
motive is not established. In Emperor v Raghunath Rai, the accused
took away cow from a Muslim's house in order to save the cow from being
slaughtered. The court held him guilty of theft even though his motive was to
save the cow.
Intention
on the other hand, is sine quo none to bring the offence home. It means to have
in mind a fixed purpose to reach a desired objective. Intention is the purpose
or design with which an act is done.
Waiver
of mens rea: Ordinarily,
mens rea cannot be waived and is a sacrosanct principle in criminal law,
however, there are certain exceptions to it within and out side IPC.
Strict
liability offences within IPC - waging war against the sate, kidnapping,
sedition etc.
Statutory
offences - motor vehicle act, arms act, NDPS act etc.
Public
nuisance laws - Air act, Water act.
On
the question of waiver, in the case of State of Maharashtra v M. H. George, the
court discussed at length and held that the mens rea can be waived in certain
cases especially, in statutes that deal with great social evils.
Majority
opinion held that the mens rea could be deduced from the scope of the act
itself and if the alleged act is against the object and the purpose of the law,
mens rea need not to be specifically waived.
Justice
Subbarao dissented and said that mens rea should not ordinarily waived and if waived
then must be provided in the statute specifically.
Actus reus
Stages of crime
Attempt
It is defined under sec. 511 of IPC but it
does not define it substantial form, it merely states, an attempt is "any
act towards the commission of offence." This leads to an unprecise
definition of attempt and there are multiples tests to distinguish between
preparation and attempt.
Proximity test
Any act which is proximate to the intended result but need not to be the
penultimate act (Mohd. Yaqoob v State of Maharashtra). The measure of
proximity is not in relation to time and action but in its relation to
intention. The first act which is necessary to achieve the intended objective
is sufficient (Abhyanand Mishra v State of Bihar).
Time of repentance
An act will amount to attempt only when there is no chance to
back off before the criminal act is carried out. The act will be mere
preparation if the person gives it up before carrying it out. In Malkiat
Singh v State of Punjab, the court opined that the lorry driver still has
50 kms to thing before exporting banned material to another state as the border
was still 50 km away.
Impossibility
An act to do impossible act can not be an attempt. For ex. administrating
sugar to a patient thinking it to be a poison.
Social
danger test - An attempt is made punishable because every attempt though it
fails, must create or cause insecurity in society, which the criminal law seems
to prevent. As long as society feels insecure, the act would be considered
attempt. A person giving pills to a pregnant women for abortion which were
later found out to be vitamin pills was considered an attempt within the
meaning of the IPC.
Equivocality
test