The word “crime “ has not been defined in the
Bangladesh Penal Code. In its broad sense, it may be said as an act of
commission or omission which is baneful to the society in general . But all
acts tending to prejudice the community are not “crime” unless they are punishable
under the law .
According to Osborn, crime is an act or default which tends to prejudice the
community , and is forbidden by law
on pain of punishment inflicted at the suit of the state. In the
legal sense, crime indicates such offences being acts or defaults which have
been made punishable by the penal code.
Elements of
Crime:
If we want to describe about the elements of crime, then we
have to take into consideration that
any act comes into the criteria of
crime when it is constituted with two elements.
Those are basically:
i)Actus rea i.e physical attempts or guilty act
ii)Mens
rea i.e. mental
intention or guilty mind.
For
commission of any crime or arising any criminal liability ,the two
elements are necessary . Our legal
system can not impose any
types of any criminal liability in the absence of either of them at the
time of commission of crime
Actus rea and Mens rea are
both Latin terms that are used in
some criminal jurisdiction .actus rea
means guilty act while mens rea
means guilty mind.
i)ACTUS REA: Actus rea
means the voluntarily or intentionally
the occurrence of any wrongful act or
omission that constitute the physical component of a crime . Because a person
cannot be punished with his bad intention or ill thoughts only if he does not
commits that crime. Without a crime , it is not possible to analyze or study the intention of the crime, There
can be no criminal liability without actus rea. Without actus rea , a mens
rea cannot be existed. Actus rea comes into play when a crime that
the defendant himself committed results in significant damages or harm to any
person.
Taking an example we can
say that, if Mr. X intents to kill
Mr. Y and he keeps
this intention in his mind and don’t
express it by any of the commission of act or taking
preparation for that purpose or make any
attempts to do the act , then only the intention for doing the offence would
not arise any types of criminal
liability against Mr. X to the murder of Mr. Y. If
Mr.X, attempts to kill Mr. Y,
such attempting would be made
Mr.X liable for the attempt to murder of Mr. Y.
ii)MENS
REA: Mens rea is the
mental elements of the crime. It may be
reiterated that a man is held
criminally liable not for his act alone
but if it is also accompanied with mens rea or guilty mind with which he
does it. Thus, mens rea refers to the mental elements necessary for the
particular crime. For arising a criminal
liability mens rea
or guilty mind is essential.
Knowledge
of the consequence s is considered as apart of mens rea because
mental condition of a man can be judged
by his conduct and it is difficult to peep into his mind and
ascertain whether he did the act intentionally
or recklessly with his knowledge of the consequence. Again , it is not considered as a defense about the ignorance of law.
Mens rea
or guilty mind may assume TWO
forms, they may be as :-
i)wrongful intention
i.e. a person shall be punished
if he intentionally and willfully does any act, which is prohibited by the criminal law of the land or
the prevailing place, or
ii) culpable
negligence i.e. also be criminally liable if he does a forbidden act
negligently or carelessly without
caring about the consequences flowing
there from .
As an example we can say that , if A
accidentally and unintentionally
causes any bodily injured to B ,
then A would be exempted from his criminal
liability; if he, beyond reasonable doubt successful to prove that the
commission of the offence is occurred
unintentionally i.e. without ill
motive and not negligently.
Exception to the Rule of
Mens Rea: There are many exceptional cases where mens rea is not requires in criminal law. Thos e are
discussed below-
1.Imposition of Liability by the Statute: Where a
statute impose a liability , the presence or absence of a guilty mind is irrelevant. Many laws
impose absolute liability for the
interest of the public health , public safety ,social welfare ,food, drugs, in
licensing of shops, hotels, restaurant
etc. and these cases mens rea or
guilty mind is not considered to impose
o the liability of the offender.
2.Petty Fines:
In petty fines , it is difficult to
prove mens rea and
penalties . In petty cases , speedy
disposal of cases is necessary and
proving of mens rea is not easy.
3. Public Nuisance: Public nuisance is the cases
where for imposition of criminal liability
, mens rea of the wrong doer is not counted for the general public purpose.
4. Civil Wrongs:
Another exceptions to the doctrine of mens rea is to be found in those
cases which are criminal in form bur are I fact only summary mode of enforcing a civil rights.
5 Ignorance of Law: Another exceptions to the rules of the mens rea
is ignorance of law. The
maxim” ignorance of law is no excuse. “if any defense is arose that the
offender was not aware of the rule of law
and he did not intended to
violate it , is no defense and he
shall be liable as if he knew the law.
Actus Non Facit
Reum , Nisi Mens Sit Rea:
Actus non facit reum , nisi
mens sit rea, which means that the act alone not
amount to crime , unless it is accompanied by guilty mind. No person can
be punished merely because his act
resulted into some crimes unless it was accompanied by mens rea
or guilty mind . on the contrary, mere presence of of mens rea shall not constitute a crime unless it is
accompanied by some act. Unless and until both conditions are present at the
same time, no criminal
liability can be impose.
Again if there is the present of both the mental element of crime and the
physical element of the crime but if the crime is no t happened by the commission of the offence i.e. the effect is not directly come out from the committing the crime, then according to the
presumption of law, the
crime might have happened by the commission of it and the wrong doer would be liable for that
purpose.
Stages in the
commission of a crime:
The commission of every offence has four stages viz.
i)Intention to commit,
ii) preparation
for its commission,
iii)attempt to
commit it , and
iv) its
commission.
The stages
for committing a
crime is describe below:-
i)Intention or Motive
of the Crime: Intention of the crime is the 1st element
of the mens rea of the occurrence f crime. As regarded the
intention to commit a crime , it does
not constitute an offence ; if it is not
followed by an act. The will is not to
be taken for the deed unless there is
some external act which shows that progress has been made in that direction or
towards maturing and effecting it.
For an example, X is intending
to a great hurt to Y and so he
take a knife and reached at his cottage , but he is caught by the police
guards of the cottage, but he
will not be liable as he does yet commit to crime.
ii)Preparation : Preparation consists in devising
means for the commission of an offence.
Pena l Code does not provide punishment merely taking
preparation of committing an offence if the offence will not be done in future.
Mere preparation is punishable when the
preparation is to wage war against the
state or to commit dacoity.
iii)Attempt: As regard attempt , it is the direct movement
towards the commission after
preparations are made. For the offence
of attempt , there must be an act done with the intention of committing an offence. An attempt can only be manifested by acts
which would end in the consummation of
the offence but for the intervention of
circumstances independent of the will
of the party.
An attempt is possible even when the offence attempt
ed cannot be committed.
iv)Commission: The last stage in the commission of
a crime is that it is successfully committed and the consequence of the crime
materialize
Knowledge : Where knowledge of a fact is an essential ingredient of an offence , it must be distinctly proved. There are certain offences in the penal code , where the accused who commits those offence is punished irrespective of the fuel whether he had knowledge or not. Where a particular act is forbidden , the question of knowledge becomes immaterial.
Measure of Criminal
Liability: According
to Salmond ,THREE elements should be taken into consideration in determining
the measure of criminal liability and those are the motive of the offence , the
magnitude of the offence and the
character of the offence,. Those are:-
1.Motive: The motive
of the offence is a very important factor in determining the liability. If the motive to commit the
offence is very strong , the punishment
must be severe, because the punishment aims at counteraction the motive s,
which made the offender to commit the crime.
2.The
Magnitude of the Offence: The
other things being equal if an
offence bring greater evil consequence
or have greater evil tendencies,
the punishment should be severe. Some criticized this view and say
that liability should not be determine
on the basis of the evil caused to a person , but it should be
determined on the basis of the benefit derived by the offender by his wrongful
ac.
3. The Character of the offence: The
character of offence is also a factor in
the measure of liability; in the other
words , it is the consideration in
determining the punishment. The offender who has become habitual and has undergone
punishment loses much of its rigor and
light punishment does not deter them. There fore, they are given severe
punishment.
Those are the basically , some
things in determining the criminal liability of an offender and the basic element of crimes in our country.
Submitted by:
1.Nazmul Hasan-13109001
2.Yamin Rahman- 13039005
3.Afroza Khatun-13219046
4. Rukshana Khanom- 13209068
5.Mst. Shahena Jarine- 13249090
