2.1.2 Crime: definitions, elements, classification and principles of criminal liability

Explained

1. Crime, tort and sin.

A sin is a breach of religious or moral rules; it is a crime only if the law makes it punishable. Many acts are both crimes and torts (assault, defamation).

2. Actus reus. The physical side of crime: a voluntary act or illegal omission, in the circumstances the law describes, which causes the forbidden result. An omission is criminal only where there is a legal duty to act (a parent not feeding a child; a public servant not doing a duty).

3. Mens rea. The mental side. Forms, from most to least blameworthy:

• intention: aiming at the result (murder);
• knowledge: knowing the result is likely;
• recklessness / rashness: consciously running an unjustified risk;
• negligence: failing to take the care a reasonable person would (death by negligence: IPC 304A → BNS 106).

Motive (why someone acted) is not an element: a good motive does not excuse a crime, though it may matter in sentencing or as evidence.

4. Exceptions to mens rea: strict liability. Some public welfare offences (food adulteration, foreign exchange, weights and measures, some environmental and traffic laws) are punishable without proof of a guilty mind. State of Maharashtra v M.H. George (1965): the Supreme Court convicted a foreigner who brought gold into India without knowing of the RBI rule; mens rea was excluded by the nature of the law.

5. Stages of crime in detail.

• Intention: not punishable (a mere thought harms no one and cannot be proved).
• Preparation: arranging the means (buying poison). Generally not punishable, because the person may still change his mind (locus poenitentiae). Exceptions: preparation to wage war against the State, preparation to commit dacoity, making or possessing instruments for counterfeiting.
• Attempt: a direct move towards commission after preparation is over. Punishable: general rule IPC 511 → BNS 62 (up to half the longest term for the offence); specific attempts are separate offences (attempt to murder IPC 307 → BNS 109).
• Commission: the full offence.

Abhayanand Mishra v State of Bihar (1961): an attempt begins when preparation is complete and the person does an act towards the offence, even if it is not the last act.

6. Classifications of crime.

7. Victimless crimes. Called so because the "victim" consents or is the offender himself and nobody complains. Examples: prostitution, gambling, drug use, drunkenness, (earlier) attempted suicide and adult homosexual acts. Debate: Schur and others argued that punishing them wastes police effort, breeds corruption and pushes them underground; critics answer that families and society are still harmed. In India, the Supreme Court decriminalised consensual adult same-sex acts (Navtej Singh Johar, 2018), and the BNS does not carry over IPC 309 (attempt to suicide) as a general offence.

8. Legality and Article 20. Article 20 gives three protections to an accused:

• 20(1) no conviction for an act that was not an offence when done, and no heavier penalty than the law then allowed (no ex post facto criminal law);
• 20(2) no person to be prosecuted and punished twice for the same offence (also CrPC 300 → BNSS 337);
• 20(3) no accused to be compelled to be a witness against himself.

Article 20 cannot be suspended even in an Emergency (44th Amendment, 1978).

9. Presumption of innocence and burden of proof.

• The prosecution must prove guilt beyond reasonable doubt; the accused need not prove innocence.
• Blackstone's ratio: better that ten guilty persons escape than that one innocent suffer.
• The general rule on burden: Evidence Act 101 → BSA 104.
• Exceptions (reverse burden): when the accused claims a general exception such as insanity or private defence, he must show it (Evidence Act 105 → BSA 108), but only on a balance of probabilities; special laws presume guilt once basic facts are proved (POCSO Sections 29–30, NDPS Section 35, dowry death).
• Not stated in so many words in the Constitution; the courts read it into Article 21 (fair trial).

10. Insanity.

• M'Naghten's case (1843): Daniel M'Naghten shot dead Edward Drummond, secretary to Prime Minister Robert Peel, believing he was being persecuted. His acquittal led the House of Lords to frame rules: everyone is presumed sane; to escape liability the accused must show a defect of reason, from disease of the mind, so that he did not know the nature and quality of the act, or did not know it was wrong.
• Legal vs medical insanity: the law asks only whether cognitive capacity was lost at the time of the act. A person may be medically ill and still legally responsible.
• IPC 84 (now BNS 22) is based on the M'Naghten rules. Dahyabhai Chhaganbhai Thakkar v State of Gujarat (1964): the accused must prove legal insanity on a balance of probabilities; the court looks at conduct before, during and after the act.
• Intoxication: involuntary intoxication is treated like insanity (IPC 85 → BNS 23); voluntary intoxication is no defence, though knowledge is presumed as if sober (IPC 86 → BNS 24).

11. Kinds of punishment (IPC 53 → BNS 4).

• Solitary confinement: part of rigorous imprisonment, at most 3 months in all (IPC 73 → BNS 11; limits IPC 74 → BNS 12).
• Fractions of terms: life imprisonment counts as 20 years for calculating fractions (IPC 57 → BNS 6).
• Commutation of sentence by the appropriate government (IPC 54–55 → BNS 5).
• Abolished punishments: transportation (replaced by imprisonment for life, 1955), penal servitude (1949), whipping (Abolition of Whipping Act, 1955).
• Community service in the BNS: for example petty theft of property under ₹5,000 by a first offender who returns it, defamation, and misconduct in public by a drunken person.