By: Swati Malik


What is crime? What is
the nature of crime?
 Concept of Crime

 Changing notions about crime from time to time and
place to place
 Any act, which is crime today, may not be a crime
tomorrow, if the legislature decides.
 Some factors:
 Values of a particular group and society
 Ideals, faith, religious attitudes, customs, traditions, taboos
 Form of government, political, economic structure of society
 Examples: Polygamy, untouchability, dowry are now
crimes, Prohibition, Suicide (England until 1961)
 
 Whether the act or acts affect society as a whole or is an
issue between two or more people?
 Public: Gravity of wrong + State duty to protect
 Injury to the “community at large”
 Likely to disturb the very fabric of law and order
and jeopardize State’s existence or create widespread
panic
 EX: Criminal Law (Wrongs like Murder, dacoity, treason,
etc.)
 Private: Torts, Contracts, Family law, Property law etc.
 Affects the rights and obligations of individuals,
families, businesses and small groups, etc.
 Magnitude of injury is more concentrated on the
individual, the wrongdoer (Wrongs like Deceit, lying, etc.)
 
What is the difference
between ‘crime’ and
‘Tort”
 
Liquidated damages to the injured
party (Tort) v Punishment by State
(imprisonment to set an example)
Private wrong (Tort)- act brought by
the injured party himself v Public
wrong, State-duty to protect
 Punishment: damages v
Imprisonment /Fine (victim + State)
 
What are the theories
(reasons) of crime?
 
 Poverty, education, greed, medical condition
 Whether to define crime naturally by the laws of God, or positively by the
laws of man?
 2 theories: EX: Killing of your neighbor
 NATURAL (God–made, uncertain, not codified, reliance on subjective
moral sense and feeling)
 Nature- ideal state of affairs ordained by God, Crime as a sin
against god’s moral code
 Certain conduct is inherently criminal, whether or not any
enactment of man has so declared & vice versa
 Translation of morality into specific code of conduct is task
worthy of theologian and beyond the strength of judges
 POSITIVE (Man made, society’s morality, certain, unambiguous)
 Violation of command of sovereign
 Crime included only those acts specifically prohibited by
criminal law under threat of punishment
 Does sovereign who is corrupt create genuine law? EX:
Nuremburg laws of Hitler’s Germany
 Positive over natural; natural law serves as conscience of positive law
 Crimes: Mala in se, mala
Prohibita

 Mala in se: crimes that are morally wrong in and of
themselves, and require no outside reasons to prove
or justify their wrongness. Ex: Murder
 Mala prohibita: Wrong because they are prohibited
by the law/statute.
 
What is the impact of
crime on society?
 
Social, Economic, etc.
Freedom, peace of mind,
economic, tourism, spending
on prisoners
 
What is the relationship
between crime and
morality?
 
 Greek “Krimos”, Sanskrit- “Karma” meaning “social
order”
 Immoral acts like ingratitude , rich man refusing food
to hungry person
 Morality- evolving
 Idea of crime changes with changing morality
 Majoritarian acceptance
 Immoral and harmful act that is regarded as criminal
by public opinion because it is an injury to so much of
the moral sense of society.
 EX: Slavery, Homosexuality, marital rape, child marriages
 
What is the solution to
the problem of ‘crime’?
How can we reduce
crime rate?
 
Poverty- resources; but what about greed?
Education
Strong laws
Stringent punishment
Better implementation
Are there any crime free nations? What
are their strong points?
 
What is the relationship
between ‘crime’ & ‘law’?
 Role of Criminal law

 Parameters for ‘effective’ criminal law:
 Clear, unambiguous, no loopholes, should not
be exhaustive
 Public Confidence [Nulla poena sine lege:
"no penalty without a law" or one cannot be
punished for doing something that is not
prohibited by law. This is a rule of law
principle accepted and codified in modern
democratic states]
 Are our laws and their implementation is
abiding with these parameters or not?
 
 Indian Criminal Law
 Manu, Muslim Criminal Law
 History: Thomas Babington Macaulay (23
parts, 511 sections)
 Current position: Types
 Substantive (IPC–definition and
punishment)
 Procedural law (CrPC, Evidence )
 Codification: Core Values
 COMPREHENSIBILITY: 
 Law should be easily understood by people who may become
subject to its offences and punishments.
 ACCESSIBILITY:
 More accessible if it’s contained in a written code, then if it is
buried in the wisdom of previously decided cases which are the
preserve of legal experts.
 Ex: ‘Explanation’s and ‘Illustrations’ in IPC to show how law can
be applied in different fact situations
 PRECISION AND CERTAINITY:
 Language and expression used in drafting of a code should be
clear and precise, as possible, certain in scope and not loosely or
vaguely worded
 DEMOCRACY:
 Power to make penal laws should lie with a democratically elected
legislature
 Do you spot the
elements
 of
comprehensibility,
accessibility, precision,
democracy etc. in the
present criminal legal
system?
 
What are the theories
(purpose) of
punishment?
 
 Purpose- social justice, revenge, fear, prevention of
crime/detrent (prevent a person who committed the crime
from repeating the act/omission; prevent other members of
community from committing similar crimes)
 All attending relevant circumstances should be taken
into account for determining the “PROPER AND JUST
SENTENCE”: Doctrine of Proportionality (Jus
Equivalence)
 Neither too severe nor too lenient: motive & magnitude of
offence, nature of offence, circumstances in which it was
committed, age, character, criminal’s mental state, station
in life of offender.
 
DETERRENCE THEORY: Fear
Example: Death penalty- do you genuine
care?
Visual- punish publically, humanity,
sentiment
Deterrence for offender, public
 
 REFORMATION: fit to re-enter society
 Won’t work on hardcore criminals
 Should reformation alone be basis off
punishment or reformation should be along the
Punishment?
 Reformation- Correctional
 EX: USA- monitors on offenders
 
 PUNITIVE- to punish you
 MULTIPLE APPROACH THEORY:
 Doesn’t mean that these theories stand individual
 EX: 5 year imprisonment
 all theories can apply: deterrence, punitive, reformative
may be?
 Juvenile delinquents, etc.
 RETRIBUTION: An eye for an eye
 Is it gud?
 Most criticized
 Death penalty?
 
 DENUNCIATION: denounced, social
condemnation
 society doesn’t approve your behavior

 PREVENTIVE: Preventing from committing/

repeating an offence like death, exile, etc
 Preventive detention- precautionary measure
 Section 53, IPC: Punishments

 The punishments to which offenders are liable under
the provisions of this Code are—
 First— Death;
 Secondly.—Imprisonment for life;
 Fourthly—Imprisonment, which is of two
descriptions, namely:—
 (1) Rigorous, that is, with hard labour;
 (2) Simple;
 Fifthly—Forfeiture of property;
 Sixthly—Fine.
 Other nuances of
Punishment:

 Pardoning power (Art. 72, 161) – executive
superiority
 Plea Bargaining
 Commutation (alteration)
 Remission (Life imprisonment -20 years)
 Suggestions:

 Banishment or Externment
 Compensation to Victims of Crime
 Public Censure
 Community Service
 Disqualification from holding public office and
contest elections
 
What is your opinion
about Death penalty as a
punishment ?
 
 Favor: Yes- eye for an eye
 Against: Can harm an Innocent- but lesser
probability, Inhuman
 Rarest of rare cases: Bachan Singh’s Case

 Why as a punishment? Deterrence? Offender’s

Remorse? Retribution?
 
What is the “Definition
of crime” under IPC?
 ‘Crime’ under Indian
Penal Code, 1860

 Definition of crime?
 No definition as the concept changes from time to time
 Crime being a relative conception is an act prescribed
by the State as crime.
 Section 40 in The Indian Penal Code: Offence
 The word “offence” denotes a thing made punishable
by this Code.
 Test of criminality prescribed under the Code is its
characteristic of punishment
 Types of Crimes: Felony (>1 year), Misdemeanor
(<1 year)/Infractions (Traffic tickets)
 
What are the elements of
crime?
 
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
legally blameworthy state of mind.
 Elements of crime

 Human Being (Corporations)
 Injury: an element?
 All the three elements should be present to
constitute criminal liability:
 Actus Reus (Physical element)
 Mens Rea (Mental element)
 Causal Chain
 Degree of Presumption: Burden of Proof:
 Beyond reasonable Doubt. How to prove actus
reus/mens rea beyond reasonable doubt?
 Human Being (Corporations)

 Human

 What if animal committed a crime?
 Earlier animals were punished.
https://www.wired.com/2014/09/fantastically-wrong-europes-
insane-history-putting-animals-trial-executing/
 Now Owners are punished for their negligence.
 Corporations: Judicial/Artificial person?
 Why corporation should not be included?
 No physical body, no state of mind or Intention for crime
 Generally in India corporations liable for acts where no mens rea is
required & fines are imposed. Ex: Not liable for murder
 Now, punishment to those who are liable for action on behalf of
company. EX: Kingfisher Airlines and Chairman Vijay Mallya
 (See State of Maharashtra v Syndicate Transport company ltd.)

 Injury: an element?

 Some harm caused illegally
 Is it essential to have an injury for a crime?
 Victimless crimes?
 Ex: Homosexuality
 Ex: Mere possession (actual or constructive) of Arms,
Poison etc.
 EX: Acquiring a bomb in preparation of a bomb blast
 Thus, injury is not an essential element.
 
Is mere preparation a
crime?
Is mere thought of crime
a crime?
 Stages of Crime:

 Intention
 Preparation
 Attempt
 Commission
 First, two stages do not elicit any form of criminal liability.
 Liability in criminal law arises when one goes beyond the
stage of preparation and attempts to do the forbidden act.
 1 st element: ACTUS REUS

 Actus: Deed, Reus: Forbidden by law
 ACT (voluntarily, illegal i.e. codified in law) + OMISSION
 S. 32. IPC: Words referring to acts include illegal
omissions.—
 In every part of this Code, except where a contrary intention
appears from the context, words which refer to acts done
extend also to illegal omissions.
 Not moral omissions
 Section 33 in The Indian Penal Code “Act”, “Omission”—
 The word “act” denotes as well a series of acts as a single act:
the word “omission” denotes as well a series of omissions as a
single omission.
 
 Act includes not doing something as well
 EX: Saving a drowning man (Legal duty of a lifeguard v
Omission by Passerby can be criticized on humanitarian
grounds but no legal duty)
 EX: Saving a man from getting shot (Legal duty of body guard,
police v Passerby)
 EX: An executioner’s job is to hang (no actus reus)
 EX: An army man kills as a part of his duty (no actus reus)

 Voluntary Act:
 EX: Throwing a stone at your neighbor v Throwing a stone
during an epileptic attack (Accidental)

 [VOLUNTARY + ACT + ILLEGAL OMISSION (LEGAL

DUTY)]
 
EX: Doctor’s refusal to
treat earthquake
victims on his leave
day?
 2nd element: MENS REA

 Mental element: The intention or knowledge of wrongdoing
 Earlier not relevant, but in 13th century England got influenced
by Roman law & started emphasis on moral guilt
 Actus reus non facit reum nisi mens sit rea: An act does not
make a defendant guilty without a guilty mind.
 Ex: Murder in self defense v Murder for Revenge [ACT +
INTENTION]
 Actus me invito factus, non est meus actus : An act done by me
against my will is not my act.
 EX: Making a threatening phone call due to gun on your
head (Defense of Duress)
 If A puts gun on B and asks B to beat up X.
 
Mens rea is not one type of state
of mind. It can have different
colors.
Intention
Knowledge
Negligence
Recklessness
 
IPC doesn’t use the term ‘mens rea’ but mens rea
is implicit by words such as:
Negligently, Purposefully, Knowingly,
Recklessly, Dishonestly, Voluntarily,
Fraudulently, etc.
General exceptions reflect absence of mens rea
Exclusion of mens rea:
 By express words: Courts should presume the
requirement of mens rea UNLESS it is expressly
negated by the legislature
 Strict/absolute liability
 EX: Theft 
 24. “Dishonestly”.—Whoever does anything with the intention
of causing wrongful gain to one person or wrongful loss to
another person, is said to do that thing “dishonestly”.
 25. “Fraudulently”.—A person is said to do a thing fraudulently
if he does that thing with intent to defraud but not otherwise.
 EX: Borrowing someone’s work phone and making an
international call
 Phone bill paid by the employer, wrongful gain
 EX: Borrowing someone’s mobile/personal phone and
making an international call
 Phone bill paid by the owner, wrongful gain to you and
wrongful loss to the owner
 EX: Deception causing injury to property
 Intention

 VOLUNTARY ACT :Test of whether a particular act is
freely willed act or not.
 Knew what he was doing
 Intention to cause it
 With knowledge of the likely consequence
 Have reason to believe effect is likely to be caused.
 Doesn’t matter if no bad intention, you can be
punished with good intention as long as it is proved
that “state of mind” is in accordance with a particular
offence recognized in IPC
 EX: Nathulal bought food grains without knowledge
of the fact that he needed a license (Ignorance of law
is no excuse)
 Purposefully: Intention
v Motive

 Intention: Desire to get a result
 Ex: to kill someone
 Motive: Why you want that result?
 Why to kill someone?
 Motive drives to form intention
 Motive not important for criminal law. Good
motive will not render crime lawful.
 EX: Theft for feeding hungry children is still a theft.
 Knowledge: Knowingly
(Reason to believe)

 Knowledge: awareness of the consequences of act &
consequence may not be desired as in the case of
‘intention’
 Intention: Knowledge + Desire to achieve consequences
 In Intention, State of mind is higher than simply having
knowledge
 EX: Gun Shot to kill someone
 EX: Gun shot to protect from Lion (Intention not there
but Knowledge of risk but don’t want to achieve the
consequences)
 Ex: Killing in self defense of Acid attack
 Mens Rea (guilty mind) essential unless strict liability
 Negligently, Recklessly

Negligence:
EX: Talking on phone while driving
Recklessness
EX: Driving at high speed with faulty
car brakes
Difference in Degrees
 Summary:

 INTENTION: Willful desire to achieve contemplated
consequences
 MOTIVE: Why commit a crime?
 KNOWLEDGE: Awareness of consequences
 NEGLIGENCE: Want of Care & caution
 RECKLESSNESS: Mental indifference towards
obvious risk.
 3rd element: Causal Chain

Causal chain can be defined as causal
connection or logical relation between the
guilty act & guilty intent (actus reus, mens rea)
and the resulting consequences.
Determination of culpability:
Law wants to ensure that in order for
criminal liability to arise the consequence
should be the direct and physical result of the
act and not a remote or unforeseen one.
 Breaking of chain of
causation:

 Results in extinguishment of any criminal liability
of the accused

 Two ways:
 INTENTIONAL INTERVENTION OF THIRD
PARTY or;
 UNFORESEEN CAUSE OF EVENTS
 INTENTIONAL INTERVENTION
OF THIRD PARTY

New intervening act
EX: If A throws X from tenth floor of a
building and while X is falling down, almost
certain to hit the ground and die, B shoots
him from second floor when X was falling
down and X dies due to the gunshot.
In such case, due to intentional
intervention on B (third party) the chain of
causation is broken and thus A cannot be
held liable for murder of X.
UNFORESEEN CAUSE OF EVENTS


 If unforeseeable event (beyond reason to believe)
occurs then in such a case the chain of causation is
said to be broken.
 Section 26 of IPC
 “a person is said to have ‘reason to believe’ a thing if
he has sufficient cause to believe that thing and not
otherwise”
 Very probable, not extraordinary/unforseen event (no
one can have a reason to believe that they might happen
in ordinary course)
 
 EX: A trader who sells a box of poisoned sweets may be
said to have sufficient ‘reason to believe’ that the buyer
would give them to various persons to eat.;
 but one who gives a piece of sweet to another to eat on
the spot
 could not be said to have sufficient ‘reason to believe’ that
he would give half of that to another person to eat or
 that he would throw away a portion and that another
would eat it.

What about “Doctrine of Transfer of Malice (Section 301

IPC)”?