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Concept of Actus Reus in Criminal Law

A Project Report Submitted to University Five Year Law College Jaipur Law of Crimes-I (I.P.C.)

Under Supervision of Prof. T. Bhattacharyya University Five Year Law College Jaipur University of Rajasthan Jaipur

Submitted by Adhiraj Singh, 7th Semester UFYLC,

University Five Year Law College University of Rajasthan Jaipur - 2011

Certificate

This is to certify that Mr. Adhiraj S. Rajawat is a student of 7thth Semester of University Five Year Law College, University of Rajasthan. He has written the project report entitled Concept of Actus Reus in Criminal Law under my supervision and guidance. It is further certified that the candidate has made an appreciable attempt on the subject mentioned above.

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Prof. T. Bhattacharyya

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Acknowledgment

I have written this project, Concept of Actus Reus in Criminal Law under the supervision of Prof. T. Bhattacharyya, University Five Year Law College, University of Rajasthan, Jaipur. I found no words to express my sense of gratitude for Prof. T. Bhattacharyya for providing the necessary guidance and constant encouragement at every step of his endeavor. The pain taken by him for scrutiny of the rough draft as well as his valuable suggestions to plug the loopholes therein have not only helped me immensely in making this work see the light of the day but above all has helped in developing an analytical approach to this work. I am extremely grateful to my respected teachers of University Five Year Law College for their co-operation and guidance and their valuable time. I am highly indebted to the office and library staff of the college for the support in cooperation extended by them from time to time.

Adhiraj S. Rajawat

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Table of Content

CertificateI Acknowledgement..II

1. Introduction1 1.1 Research Methodology 1.2 Hypothesis 2. Principles of Criminal Liability.2 2.1 Mens rea 3. Concept of Actus reus..5

4. Conclusion11 5.Table of Cases12 6. Bibliography..13

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1. Introduction

Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by an omission to act. For example, the act of A striking B might suffice, or a parent's failure to give food to a young child also may provide the actus reus for a crime.

1.1 Research Methodology The researcher has used doctrinal method and has relied only on secondary sources to write this research paper.

1.2 Hypothesis For commission of every offence the requisite thing is actus reas along with mens rea unless the statute expressly excludes it.

2. Principle of Criminal Liability

.Coke expressed the most famous principle of criminal liability in the form of a maxim thus: Et actus non facit reum nisi mens sit rea, ahich means that a guilty act together with a guilty mind constitute a crime. Thus actus, i.e. the deed and mens i.e. the mental process, both have been recognized as necessary for liability under the criminal law. In other words actus reus i.e. the result prohibited by law and mens rea i.e. the guilty mind both must be present at the same time to entail conviction under criminal law. Physical act and the state of mind are both important factors to be always kept in mind while judging liability under criminal law. To ensure a conviction the prosecution is obliged to prove that the accused brought about a result prohibited with a guilty mind. Mere prohibited result or mere guilty mind along does not make one guilty criminally. Chief Justice Kenyon said in Fowler v. Padget1 : The intent and the act must both concur to constitute the crime. This common law principle has come to be regarded as the most fundamental principle of criminal liability.

2.1 Mens Rea Mens rea is another Latin phrase, meaning "guilty mind." A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person's motive. If Mr. Hood robs from rich Mr. Nottingham because his motive is to give the money to poor Mrs. Marion, his "good intentions" do not change his criminal intention to commit robbery. A lower threshold of mens rea is satisfied when a defendant recognizes an act is dangerous but decides to commit it anyway. This is recklessness. For instance, if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbors house, he could be liable for poisoning. Courts often consider whether the actor did recognize the danger,
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Outlines of Criminal Law, 19th Ed., pp. 5-6

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or alternatively ought to have recognized a risk. Of course, a requirement only that one ought to have recognized a danger (though he did not) is tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law. Wrongfulness of intent also may vary the seriousness of an offense. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter. On the other hand, it matters not who is actually harmed through a defendant's actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck. In R. v. Khandu2 the accused gave some blow on the head of the deceased with the intention of killing him to be dead and with a view to remove evidence against himself, the accused set fire to the victims hut. Court held that guilty act and guilty mind not present together, since only actus reus and not mens rea was present and he could not be guilty of the crime. The court quashed the conviction of his murder. In R. v. Shorty3 the accused felled the deceased with the intention of killing him, and then placed his body in the sewer. The court held that the throwing the body into the sewer being an intervening act and not immediately connected with the assault and there being a genuine, even though inadequately founded, belief that the deceased was dead at the time of his body being thrown into the sewer, the accused was guilty only of attempt to commit murder and not of murder. In Meli and others v. R4. the accused person invited the deceased to a hut at night, plied him with beer and beat him on the head with the intention of killing him. Rejecting the arguments of the defense the court held the accused guilty of murder observing that the whole transaction was one that could not be divided into two stages as claimed by the accused and escape from penalty could not be granted to them merely because at one stage they believed that their guilty purpose was achieved before in fact it was achieved.
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(1890) ILR 15 Bom 194 1950 SR 280 4 (1954) 1 WLR 228

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3. Concept of Actus Reus

Actus reus is the result or a deed prohibited by law. It is such result of human conduct as the law seeks to prevent. It is an event and is different from the conduct of the offender which precedes the result. The actus reus is constituted by the event and not by the act or omission which caused the event. Kenny examines the assessment of the physical element in criminal liability under the following six heads : 1. Where there is no physical participation it is not necessary for criminal liability that the offender must always physically participate in the commission of the crime even though generally he does so. For example a person may convicted of an accessory, abettor or a conspirator as the actus reus will be imputed to him also. 2. Where the participation is indirect Indirect participation on the part of the offender may also result in his conviction since the actus reus may be attributed to him. 3. Where another person intervened There may be a situation where a particular event has resulted partly by the act or omissions of the prisoner and partly by that of another person who has invented in the matter. In such cases the courts may be in a dilemma with respect to the question as to whose actus reus it was. If it was that of the prisoner it would be his actus reus while if the consequences was that of the intervener, the actus reus would be attributed to him. 4. Where the victims own conduct affected the result - There may be a situation where the prisoner does something against the victim as a result of which the victim suffers injuries, and then the victims own conduct affects the final result. If in such a situation court still have concluded that the final result

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still be remain the same even if the victim had not done anything subsequently the actus reus would be attributed to the prisoner. 5. Contributory negligence of the victim Even though the plea of contributory negligence is an important plea in the domain of law of tort, it is not so in law of crimes. Therefore the prisoner pleads the contributory negligence on the part of the victim towards the harm suffered by him, his plea fails and actus reus would be attributed to the prisoner alone. Facts and circumstances of the case would require total attention of the court. 6. Where the participation is superfluous - In such situation where the participation is superfluous and the accused the crime is also superfluous, it may be still be his actus reus if he has participated intentionally in the crime. For instance if a person is beating another to death when the accused comes and join him in the process and gives the victim a blow as a result of which he dies the accused would be liable, along with the other person for causing of the death of the victim if they both could foresee that the victim would die as a result of the attack on him.

In Kalpanath Rai v. State5 one of the questions was whether a company, which was arraigned as, accused No. 12 in a case under the Terrorists and Disruptive Activities (Prevention) Act was alleged to have harboured one of the terrorists. The said company was convicted by the trial court of the offence punishable under Section 3(4) of the TADA. The Supreme Court referred to the definition of the word 'harbour' as given in Section 52A of the Indian Penal Code and pointed out that there is nothing in TADA, either expressly or even by implication, to indicate that mens rea has been excluded from the offence under Section 3(4) of TADA. The Supreme Court referred to its earlier decisions in State of Maharashtra v. Mayer Hans George6 and Nathulal v. State of M.P.7 and observed that there is a catena of decisions which has settled the legal proposition that
(1997) 8 SCC 732 A.I.R. 1965 S.C. 722 7 AIR 1966 SC 43
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unless the statute clearly excludes mens rea in the commission of an offence, the same must be treated as essential ingredient of the criminal act to become punishable. It was further held that there is no question of accused, (company) to have had the mens rea even if any terrorist was allowed to occupy the rooms in its hotel. It was pointed out that the Company is not a natural person. The Supreme Court observed:"We are aware that in many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by persons responsible for the management or affairs of such company or corporations e.g. Essential Commodities Act, Prevention of Food Adulteration Act, etc.. But there is no such provision in TADA which makes the Company liable for the acts of its officers. Hence, there is no scope whatsoever to prosecute a company for the offence under Section 3(4) of TADA." In Zee Telefilms Ltd. v. Sahara India Co. Corporation Ltd.8 wherein the complaint filed against a company under Section 500 of the Indian Penal Code was dismissed, alleging that the said company had telecast a program based on falsehood and thereby defamed the complainant. It was held that, in the offence of defamation, mens rea is one of the essential ingredients and that a Company cannot have the requisite mens rea. However the conviction of the company was upheld for offence under Section 276B read with Section 278B of the Income Tax Act, 1961.9 The Bombay High Court in Motorola Incorporated v UOI10 quashed the proceeding of cheating against the petitioner a corporation as it came to the conclusion that there is no way a corporation could form the requisite mens rea which is the essential ingredient of the offence

2001 (3) Recent Criminal Reports (Criminal) 292 M.V. Javali v. Mahajan Borewell and Co 1998 Company Cases (Vol. 91) SC 708. 10 2004CriLJ1576
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and thus cannot be proceeded against under Sec 420 read with Section 120B of the India Penal Code.

4. Conclusion

It is the general principle of Criminal Law that a crime is not committed unless the person committing it has the mens rea viz. guilty mind. The maxim "actus non facit recum, nisi mens sit rea" means that the intent and act must both concur to constitute the crime. Crime is a general term. Offence is that crime which is made punishable by law. For commission of every offence the requisite thing is actus reas along with mens rea unless the statute expressly excludes it. Here it becomes very interesting that definition of person includes incorporated companies and registered societies. Therefore, there remains no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability. The earlier view was that the corporations do not have the capability to form intentions or in more familiar word mens rea and thus cannot be guilty of any offence. But now with certain offences being provided by the legislature where the courts of law are not obliged to look into the intention of the person mere committing of certain acts with or without the requisite intention classifies it to be the offence. The corporations therefore can also be tried for these offences. The corporate bodies, such as company undertake series of activities that affect the life, liberty and property of the citizens. The large scale financial irregularities are done by various corporations. The corporate vehicle now occupies such a large portion of the industrial,

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commercial

and

sociological

sectors

that

amenability

of

the

corporation to a criminal law is essential to have a peaceful society with stable economy. Inasmuch as all criminal and quasi-criminal offences are creatures of statute, the amenability of the corporation to prosecution necessarily depends upon the terminology employed in the statute.

5. Table of Cases

1. R. v. Khandu (1890) ILR 15 Bom 194 2. R. v. Shorty 1950 SR 280 3. Meli and others v.R. (1954) 1 WLR 228 4. Kalpanath Rai v. State (1997) 8 SCC 732 5. State of Maharashtra v. Mayer Hans George A.I.R. 1965 S.C. 722 6. Nathulal v. State of M.P. AIR 1966 SC 43 7. Zee Telefilms Ltd. v. Sahara India Co. Corporation Ltd 2001 (3) Recent Criminal Reports (Criminal) 292 8. Motorola Incorporated v UOI 2004CriLJ1576

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6. BIBLIOGRAPHY

1. Prof. Bhattacharyya, T., The Indian Penal Code, 6th Edition, 2010, Central Law Agency, Allahabad. 2. Manohar, V.R., The Indian Penal Code, 31st edition, 2007, Wadhwa Nagpur, New Delhi. .

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