ELEMENTS OF CRIME

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 1^st 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