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KLE LAW ACADEMY BELAGAVI
(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)
STUDY MATERIAL
for
LAW OF CRIMES I
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi
Compiled by
Ankita Rituraj, Asst. Prof.
Harsh Pratap, Asst. Prof.
Reviewed by
Mr. Harsh Pratap, Asst. Prof.
K.L.E. Society's Law College, Bengaluru
This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided.
UNIT I
CRIME AND ITS MEANING:
SYNOPSIS :
Meaning Elements of crime – Actus Reus and Mens Rea Stages of Crime Parties to crime
Actus Reus:
It is the deed of commission, a result of active conduct of the offender. The word Actus denotes a deed, a material result of human conduct. When the 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. Thus, Actus Reus may be defined as such result of human conduct as the law seeks to prevent. It is important to note that the actus reus, which is the result of conduct and therefore an event, must be distinguished from the conduct which produced the result. For example, in a case of murder, the death of the victim is brought by stabbing. Here the actus reus is homicide which is brought by the conduct of the offender i.e. stabbing. There may be situations where the law commands or permits the harm to be inflicted. In such cases the act done does not amount to offence. For example: a duly appointed executioner who puts to death a condemned criminal. No criminal liability arises in such cases. Causation There may be several causes of an event. It is however reasonable to say that an event may be 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. The ancient rule of strict liability required no more than this test. However, with modern day conception of mens rea no hardship could result from the investigation of causes since the more remote the cause, the greater the difficulty of proving that the accused person intended or realized what the effect of it would be. The physical element in criminal liability can be assessed under the following heads: (i) When there is no physical participation : A man can be held fully liable even though there is no physical participation in the act. Thus, law from very early times attached to one who procures or advises another to commit a crime at least an equal responsibility with that of the actual perpetrator of the deed. The law dealing with such situations is dealt under the heads of incitement and conspiracy. (ii) Where the participation is indirect : The actus reus is fully attributed to anyone who has done things which have led or allowed some wholly innocent person to act under mistake so as to cause harm in question. An example would be: A puts poison into a drink which he knows or expects that B will offer to C.
(iii) Where another person has intervened: In certain cases, it would seem that the harm could not have occurred but for an act or omission on the part of the offender, but in which he has been excused on the ground that some other person intervened and s appeared to have more immediate and direct cause of harm. In R v. Hilton , on an indictment of manslaughter, it appeared that the prisoner who was in charge of a steam engine had stopped the engine and gone away. During his absence some unauthorized person had set the engine in motion after the prisoner had gone away. The judge held that the death was the consequence, not of the act of the prisoner but of the because of the because of the person who had set the engine in motion after the driver had gone away. (iv) Where victim’s own conduct has affected the result : Although there is no definite test laid down by any authority it would seem that so long as it is reasonably certain that the result charged against the offender in the indictment (a) would have occurred even if nothing was done subsequently by the victim (b) did occur although it might have been averted if the victim had taken some remedial action, then the prisoner offender be convicted. In cases where the victim’s conduct has affected the result, the benefit of it must go the offender. In R v. Martin the prisoner was charged with the manslaughter of his 4-year-old son by giving it gin. It appeared that he had held out a glass to a little boy who snatched the glass and drank nearly the whole of the liquor which brought about its death shortly. The prisoner was acquitted on the grounds that the death followed because of the act of the child. (v) Contributory negligence of the victim: that the victim of an offence has contributed to the harm by his own negligence affords no such defence to the accused in criminal proceedings as it may do in a civil action. In R v. Swindall and Oshborne, it appeared that the prisoners were driving a horse and cart on the public road and encouraging each other to drive at a dangerous pace. In the course of this, they ran over and killed a pedestrian. It was held that it is immaterial whether the deceased was drunk or negligent, or in part contributed to his own death.
victim. Under IPC, negligence has been incorporated very specifically to fasten liability in cases of death caused by negligence (Section 304A). Negligence is essentially a principle of tort law.
Motive :
Motive is the psychological phenomena which compels a person to do a particular act. For example: ambition, jealously, fear etc. Motive is something which leads or tempts the mind to indulge in an act or which compels the mind to do an act. According to Austin, motive is like a spring. It pushes the intention further. In contrast, intention is the aim of the act. Motive is something which triggers mens rea. Motive can be good or bad. For instance, a person may commit theft to feed poor people. His motive is good, i.e., helping the poor. However, his intention is to commit a crime to achieve that motive. Motive may be relevant to find out the guilt if the accused but is not an ingredient of crime.
Stages of Crime:
- Intention - Intention is the first stage in the commission of an offence. But the law does not take notice of an intention, mere intention to commit an offence not followed by any act, cannot constitute an offence. The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the guilty mind of a person.
- Preparation - Preparation is the second stage in the commission of a crime. It means to arrange the necessary measures for the commission of the intended criminal act. Intention alone or the intention followed by a preparation is not enough to constitute the crime. Preparation has not been made punishable because in most of the cases the prosecution has failed to prove that the preparations in the question were made for the commission of the particular crime. However, there are exceptions to this rule. For certain offences, even the preparation is made punishable.
- Attempt - Attempt is the direct movement towards the commission of a crime after the preparation is made. A person may be guilty of an attempt to commit an offence if he
does an act which is more than merely preparatory to the commission of the offence; and a person will be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible. There are three essentials of an attempt: Guilty intention to commit an offence; Some act done towards the commission of the offence; The act must fall short of the completed offence
- Accomplishment or Completion - The last stage in the commission of an offence is its accomplishment or completion. If the accused succeeds in his attempt to commit the crime, he will be guilty of the complete offence and if his attempt is unsuccessful, he will be guilty of an attempt only. For example, A fires at B with the intention to kill him, if B dies, A will be guilty for committing the offence of murder and if B is only injured, it will be a case of attempt to murder.
Parties to crime :
The four parties to crime at early common law were principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. These designations signified the following: Principals in the first degree committed the crime. Principals in the second degree were present at the crime scene and assisted in the crime’s commission. Accessories before the fact were not present at the crime scene, but assisted in preparing for the crime’s commission. Accessories after the fact helped a party to the crime avoid detection and escape prosecution or conviction. In modern times, the parties to crime are principals and their accomplices, and accessories. The criminal act element required for accomplice liability is aiding, abetting, or assisting in
UNIT II
SYNOPSIS :
DEFENCES :
Mistake of law and facts Accidents Necessity Infancy Insanity Intoxication Private Defence OFFENCES AGAINST THE STATE : Waging war against the government of India and related provisions Sedition
A person is presumed to know the nature and consequences of his act and is therefore, responsible for it in law. However, there are some exceptions to this. Such provisions are dealt with in chapter IV of the Indian Penal Code from section 76 to 106. The general exceptions can be classified into two broad classes. First is excusable and the second is justifiable. Excusable defences are those acts which are excused for want of necessity of mens rea. In such cases the act is not criminal because the guilty intention is absent. In the case of justifiable defences the acts are not excused but justified. Here we are discussing about Mistake of law and facts Accidents Necessity Infancy Insanity Intoxication Private Defence
thereby he thinks he is under legal compulsion to do a thing, whereas section 79 he acts because he thinks that he is justified in doing so and thereby believes that there is a legal justification for his action. The purpose of these sections is to provide protection from conviction to persons, who are bound by law or justified by law in doing a particular act, but due to mistake of fact, in good faith, committed an offence. A plain reading of the wordings in section76 & 79 “who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes” reveals that the protection of the sections applies only to mistake of fact and not to mistake of law. If mistake of law is admitted as an exonerating factor, it is argued, every accused will take the plea of mistake of law as a defence and it will be difficult for prosecution to refute it and to show affirmatively that the accused knew the law in question. Allowing mistake of law will also lead to the encouragement of ignorance of law. However, mistake of law, in limited circumstances, can serve as a defence to criminal charges. The circumstances in which a mistake of law can serve as a defence include: i. When the law is not published ii. When you relied upon a statute that was later overturned or held to be unconstitutional iii. When you relied upon a judicial decision iv. When you relied upon an interpretation by an appropriate official In R v Tolson , The appellant married in Sept 1880. In Dec 1881 her husband went missing. She was told that he had been on a ship that was lost at sea. Seven years later, believing her husband to be dead, she married another. Sometime after her marriage, her first husband turned up. She was charged with the offence of bigamy. She was held not guilty since she was afforded the defence of mistake as it was reasonable in the circumstances to believe that her husband was dead. However in R. v. Prince , prince took a girl below the age of 16 years without the
consent of the parents under the belief that she was above 16 years, which is an offence in England under Offences against persons Act, 1861. In this case he didn’t act in good faith because he failed to make enquiries to find out the actual age of the girl. He was convicted, even though; there is no mens rea, for the offence of kidnapping. In R v. Bailey the accused was away from the cost of Africa, when a statute was passed by the British parliament, and he could not have known by any means about the passing of the statute under which he was charged. The court held him guilty, disallowing his plea of want of knowledge of the law. R v. Wheat & Stock , the accused was an illiterate and he was miscommunicated that he had been granted divorce. Subsequently he remarried. His first wife charged him for bigamy. The court held him guilty of bigamy and convicted him. Tolsons case and wheats case are quite distinct from each other. In the first case accused was excused due to mistake of fact and the latter case, there was a mistake of law, which is not excusable, and hence the accused was convicted. One of the essential ingredients required for an accused to get protection of section 76 and 79 is that his action must be done in good faith. Section 57 says about good faith where essential ingredient is due care and attention. Even if a person is honest in his intentions, he is expected to act with due care and caution. The definition of good faith under the General Clauses Act is not applicable to an offence under the IPC. Due care denotes the degree of reasonableness in the care sought to be exercised. In State of West Bengal v. Shew Mangal Singh, a subordinate officer opened fire in pursuance of the orders of the Commissioner of Police causing the death of some persons. Here the police personnel fired on a mob by the order of superior officer, in conformity with the commands of the law as well as in good faith. The supreme Court held if the order of the superior officer was justified and lawful there was no requirement of any further enquiry regarding the applicability of section Due care and caution principle requires three factors, firstly, the nature of the act committed by the accused; secondly , its magnitude and importance, and thirdly , the facility a person has for the exercise of the care and attention.
women also the blow struck the child on the head and it died from the effects of the blow. The accused was held liable, even though the child was hit by accident. The reason is that the accused was not doing a lawful act in a lawful manner by lawful means. In Bhupendra singh v. State of Gujarat , the accused constable, along with the head constable, was on patrol duty at a dam site, which was in danger on account of heavy rain fall. The accused took the plea that he saw a fire and hence fired. The accused close at shot range without knowing the identity of his target. The Supreme Court held that the act was done without any care and caution. His conviction for murder was upheld and he was sentenced to life imprisonment. Doctrine of Necessity (section 81) To invoke section 81 two ingredients must be satisfied such as, the act must have been done under good faith; there must not be mens rea (absence of mens rea). It embodies the principle that where the accused chooses lesser evil, in order to avert the bigger, then he is immune. The genesis of this principle emanates from two maxims: quod necessitas non habet legum- necessity knows no law and necessitas vincit legum- necessity overcomes the law. This doctrine of necessity recognises that the law has to be broken to achieve a greater good. The illustration of the section explains lucidly how the doctrine of necessity works. It is pertinent to note that although section 81 does not specifically refer to greater evil or lesser evil, it in effect deals with the case of lesser evil. Section 80 and 81 are analogous provisions, the former dealing with accidents and the latter with inevitable accidents. Section 80 stipulates the absence of criminal intention as well as criminal knowledge. But section 81 stipulates the absence of criminal intention alone. In fact, section 81 clearly contemplates a situation where the accused has knowledge that he is likely to cause harm, but is specifically stipulated that such knowledge shall not be held against him. The relevant leading case on this point is R v. Dudly and Stephens three seamen and a cabin boy were the crew of an English
vessel. Due to ship wreck, the three seamen and the boy escaped and were put into open boat. On 20th^ day, when they had no food for eight days and no water for five days, the accused killed the boy and fed on the flesh and blood for four days to survive. On the fourth day, they were picked up by a passing vessel and subsequently they were prosecuted for the offence of murder of the boy. The accused pleaded the defence of necessity to get exemption from the criminal liability. The Privy Council held they are guilty for murder and convicted them on the ground of, self preservation is not an absolute necessity, no man has a right to take another’s life to preserve his own; and there is no necessity that justifies homicide. Killing a person in self defence may appear to be an example of necessity. While self defence may overlap necessity, the two are not the same. Private defence operates only against aggressors. Generally, the aggressors are wrongdoers, while the person against whom action is taken by necessity, may not be an aggressor or wrongdoer. Unlike necessity, private defence involves no balancing of values. In United States v. Holmes the accused was a member of the crew of a boat after a shipwreck. Fearing that the boat would sink, he under the order of the mate threw 16 male passengers overboard. The accused though not convicted for murder, was convicted for manslaughter and sentenced to six months imprisonment with hard labour. In Gopal Naidu v. Emperor , a drunken man was carrying a revolver in his hand was disarmed and put under restraint by the police officers, though the offence of public nuisance under section 290 was a non cognizable offence without a warrant. Though the police officer were prima facie guilty of the offence of wrongful confinement, it was held that they could plead justifications under this section. Further added, the person or property to be protected may be the person or property of the accused himself or of others. Infancy (section – 82 and 83) These sections confer immunity from criminal liability on child offenders. It is
maturity of understanding, because he did what he intended. In Walters v. Lunt the parents of the child aged 7 years were charged with receiving from their son a Childs tricycle knowing it to have been stolen by their child. It was held that the parents must be acquitted on the ground that, since the child could not steel the tricycle was not stolen property.
Insanity : (Section 84)
In India, Section 84 of IPC describes the defences available to the person of an unsound mind. Persons of unsound minds are vulnerable in nature. There is a complete chance of their exploitation in a situation where they are not being sought protection. The law that protects an unsound minded person and provides defence from criminal liability to the unsound minded person is known as the Law of Insanity. Whenever an insane person commits a crime due to the effect of his insanity, he does not have a guilty mind to understand that what he is doing is something that is prohibited by law. The insanity law has proven to be of practical importance in understanding the situation and the mental position of an insane person and in certain reasonable circumstances granted them exemption from criminal liability. According to the rule in the M’Naghten’s case, it must be clearly demonstrated, in order to establish the defence of insanity, that the accused worked under a fault at the time of the act so much as to be unaware of the nature and quality of the act he was doing. This explanation cannot be taken as a full definition of proof, as it fails to explain various aspects of insanity. It is therefore imperative to note that the term “insanity” has a particular meaning in criminal law. It is not necessarily used in its medical sense, but its legal significance must be understood. Therefore, insanity as a defence refers to legal insanity and not medical insanity. The concept of ‘legal insanity’ refers to certain requirements to be met by the accused according to the rules laid down in the law. Legal insanity is a narrower concept than medical insanity. Legal insanity is a concept narrower than medical insanity. For example, some mental illnesses such as schizophrenia, paranoia or lunacy may overlap with the legal and medical conceptions of insanity and may also be protected against insanity or insanity of mind when the other conditions are fulfilled in order to satisfy legal insanity criteria.
Indian Law on the Defence of Insanity: Insanity is provided in accordance with Section 84 of the Indian Penal Code as a defence under Indian Law. However, the term “insanity” is not used under this provision. The Indian Penal Code uses the sentence “mental soundness.” In accordance with the code, the defence of insanity, or that can also be called defence of mental insanity, comes from M’Naghten’s rule. In Section 84 of the Indian Penal Code, a person of an unsound mind shall act- Nothing is an offence committed by someone who is currently unable to know the nature of the act or does what is wrong or contrary to legislation due to a lack of a sound mind. Nevertheless, it should be noted that the framers of the IPC preferred to use the expression “insanity of mind” instead of the term “insanity.” Insanity’s scope is very limited, while the mind’s insanity covers a large area. For this defence, the following elements are to be established- The accused was in a state of unsoundness of mind at the time of the act. He was unable to know the nature of the act or do what was either wrong or contrary to the law. The term ‘wrong’ is different from the term ‘contrary to the law.’ If anything is ‘wrong’, it is not necessary that it would also be ‘contrary to the law.’ The legal conception of insanity differs significantly from medical conception. Not every form of insanity or madness is recognized as a sufficient excuse by law. Distinction between Legal and Medical Insanity : Section 84 of the Indian Penal Code sets out the legal responsibility test as distinguished from the medical test. It can be observed that the absence of will arises not only from the absence of understanding maturity but also from a morbid state of mind. This morbid mind condition, which provides an exemption from criminal responsibility, differs from the medical and legal point of view. According to the medical point of view, it is probably correct to say that every person, when committing a criminal act, is insane and therefore needs an exemption from criminal responsibility; while it is a legal point of view, a person must be held to be the same as long as he is able to distinguish between right and
