Elements Of Crime And Theories Of Punishment: IPC Notes

Elements Of Crime And Theories Of Punishment: IPC Notes- Prolawctor


Definitions of Crime:


According to Blackstone crime is defined, “As an act committed or omitted in violation of Public Law forbidding or commanding it”.

According to Austin, “Crime is a wrong which is pursued by the sovereign or his subordinate.”

According to Sellin, “Crime is any form of conduct which is forbidden by law under pain of some punishment.” 


The fundamental principle of criminal liability is that there must be a wrongful act (actus reus), combined with wrongful intention. This principle is embodied in the maxim, “Actus non facit reum nisi mens sit rea”. It means that an act itself is not a crime unless joined with guilty mind.


Elements of Crime.

There are 3 elements which go to constitute a crime, these are:-

  1. Mens Rea or Guilty intention
  2. Actus Reus or illegal act or omission.
  3. Injury to other human being
  1. Mens Rea-
    Every conscious act of a person is preceded by desire to do something. Such desire or intention to do the act is known as mens rea. Mens –rea means “an intention to do a forbidden act” it states that a crime is not committed if the mind of the person doing the act in question is innocent. Mental element is considered as the fundamental principle in criminal liability.

    There can be no crime of any nature without mens rea or an evil intention. The basic requirement of the principle mens rea is that the accused must have been aware of those elements in his act which make the crime with which he is charged. There is a well-known maxim in this regard, i.e. “actus non facit reum nisi mens sit rea” which means that, the guilty intention and guilty act together constitute a crime. It comes from the maxim that no person can be punished in a proceeding of criminal nature unless it can be showed that he had a guilty mind.

    The Penal Code recognizes four different levels of mens rea: purpose, knowledge, recklessness and negligence.

    Purpose/Intention the defendant undertakes his action either intending for, or hoping that, a certain   result will follow.

    Direct Intention: A person has direct intent when they intend a particular consequence of their act.
    Oblique Intention: Oblique intent is said to exist when the person while doing act to cause a desired result, knows that the consequences of his action will also bring about another result.  
    DPP v. Smith [1961] AC (Appeal Case) 290 HL
    A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car. The defendant drove off at speed and zigzagged in order to get the police officer off the car, and in that process policeman was knocked onto the path of an oncoming car and killed. 
    The defendant argued- did not intend to harm the policeman.Jury convicted the accused for murder.The House of Lords affirmed the decision of jury.

    Knowledge- a person acts knowingly if he is aware that it is practically certain that his conduct will cause a specific result.

    Recklessness- A person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions.

    Negligence- A person acts negligently if they should have been aware of a substantial and unjustifiable risk that a certain consequence would result from their actions. Although the level of risk is the same for both recklessness and negligence.

    R vs. Prince (1875 LR 2 CCR 154), In this case, Accused was convicted for taking an unmarried minor girl out of the possession of her father without the father’s consent.  The girl was in fact 14 years old, however she had told the accused that she was major, and the accused reasonably believed it. The appellant appealed against his conviction. The court held that where a statute is silent as to the mens rea for an offence, the court is not bound to read a mens rea requirement into the statute. The offence was one of strict liability.

    R. vs. Tolson (1889 23 QBD 168), In this case, 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. Six years later, believing her husband to be dead, she married another man. Eleven months later her husband turned up. She was charged with the offence of bigamy. She was afforded the defence of mistake as it was reasonable in the circumstances to believe that her husband was dead.

  2. Actus Reus [Guilty Act or Omission]
    The second essential element of a crime is actus reus. In other words, some overt act or illegal omission must take place in pursuance of the guilty intention resulting in injury. Actus reus is the manifestation of mens rea in the external world. The causation can also be without any physical act. E.g.: if the victim asks his way on a dark night and the accused with the intention of causing his death, directs him to a path that he knows will bring him to a cliff edge, and the victim suffers a fatal fall, this is clearly murder, though the accused had done nothing more than saying something.

    Prof. Kenny was the first writer to use the term ‘actus reus. He has defined the term- “such result of human conduct as the law seeks to prevent”.

    R v Pagett (1983) 76 Cr App R 279
    The accused was in a relationship with a girl. She ended up the relationship because of the violent behaviour of accused. The accused got angry and kept her hostage. Armed police followed him. He used the girl as a shield as he came out of the flat and walked along the balcony. The police saw a person walking towards them but could not see who it was. The appellant fired shots at the police and the police returned fire. The police shot the girl who died.
    Held: The firing at the police officers caused them to fire back. In firing back, the police officers were acting in self -defence. His using the girl as a shield caused her death.

    Palani Goundan v. Emperor, Crim. Appeal No. 33 of 1919
    Accused struck his wife a blow on her head with a ploughshare which, though not shown to be a blow likely to cause death, did in fact render her unconscious and, believing her to be dead, in order to lay the foundation of a false defence of suicide by hanging, the accused hanged her on a beam by a rope and thereby caused her death by strangulation;

    Held by the Full Bench, that the accused was not guilty of either murder or culpable homicide not amounting to murder. He can be convicted of assault and for false evidence.

  3. Injury
    The third requirement of a crime is injury to another person or to the society at large. The injury should be illegally caused to any person in body, mind, reputation or property as according to Section 44 of IPC, 1860 the injury denotes any harm whatever illegally caused to any person in body, mind, reputation or property.

    In Yalla Gangulu v. Mamidi Dali(1897) 21 Mad 74(FB) , a magistrate imposed a fine on the accused in addition to a sentence of imprisonment for killing the deceased by rash and negligent driving and gave compensation to the wife of the deceased. It was argued that the compensation could not be given to her for she did not suffer any injury as defined in section 44 of the Indian penal code. The chief justice of Punjab high court held that loss of her husband’s support affected a widow prejudicially in a legal right, and was therefore an injury as defined in the penal code. Also it was contended that nothing could be more harmful to the mind of a woman (injury to mind) than the death of her husband, and the section mentions about the harm to mind as “injury”. Held that compensation must be provided to the widow of the deceased so that it becomes easy for her to come out of her grief and panic.


  1. Retributive theory:
  2. Deterrent Theory
  3. Preventive Theory
  4. Reformative Theory
  5. Expiatory Theory
  1. Retributive theory: The victim was allowed to take revenge. The principle of ‘an eye for an eye and tooth for a tooth,’ is adopted by this theory. The offender should receive as much pain and suffering inflicted by him on the victim to satisfy the angry sentiments of victim and his family.

    Criticism: It is barbaric and inhuman. If taking revenge is permitted than there will be no survival of human being.

  2. Deterrent Theory: According to this theory, object of punishment is not only to prevent the wrongdoer from doing the crime for the second time, but also to make him an example for other persons who have criminal tendencies. Severe punishment is given to the offender which will create fear in the mind of other people.

    Criticism: Quantum of punishment not equal to gravity of offence. Harden criminal is not afraid of punishment. Excessive punishment tends to create harden criminals.

  3. Preventive Theory: In this theory punishment is awarded with a view to prevent the offender from repeating the offence in future. Imprisonment is the most effective mode of preventing the offences by the offender. The preventive theory seeks to prevent the repetition of crime by “incapacitating” the offenders. Instances of preventive theory is preventive detention , expulsion.

    Criticism: After suffering punishment, criminal becomes shameless and fearless. So, he becomes professional and habitual criminal.

  4. Reformative Theory: It condemns all kinds of punishment. Emphasis of this theory is rehabilitation of offender. According to this theory, offenders are patients and they need treatment rather than punishment. The criminal must be given some vocational training in art, craft or industry in jail so that he may be able to lead a good life and become respectable citizen of society after his release.

    Criticism: If prison will be very comfortable, it will become dwelling house for poor and unemployed. This Reformative Theory of Punishment cannot be applied to hardcore or repeated criminals. 

  5. Expiatory Theory: Expiation means the act of expiating; reparation; amends; compensation; atonement. According to this theory the offender expiates or show remorse for his wrong doing and pays compensation to the victim or his family members. Generally the victim is not taken into consideration while awarding punishment. So, this theory concentrates on compensating the victim.

    Criticism: If the compensation is allowed to be paid in rapes, the number of rapists will be increased. The rich people will be habituated to rape the poor women, and pay the compensation. They can escape imprisonment by paying money. 


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