ACTUS REUS – ESSENTIAL ELEMENT OF CRIME

History
 The first civilizations generally did not distinguish between civil law and criminal law. The first
written codes of law were designed by the Sumerians around 2100-2050 BC. Another important
early code was the Code Hammurabi, which formed the core of Babylonian law. These early
legal codes did not separate penal and civil laws. Of the early criminal laws of Ancient Greece
only fragments survive, e.g. those of Solon and Draco.
After the revival of Roman law in the 12th century, sixth-century Roman classifications and
jurisprudence provided the foundations of the distinction between criminal and civil law in
European law from then until the present time. The first signs of the modern distinction between
crimes and civil matters emerged during the Norman invasion of England. The special notion of
criminal penalty, at least concerning Europe, arose in Spanish Late Scolasticism, when the
theological notion of God's penalty (poena aeterna) that was inflicted solely for a guilty mind,
became transfused into canon law first and, finally, to secular criminal law. The development of
the state dispensing justice in a court clearly emerged in the eighteenth century when European
countries began maintaining police services. From this point, criminal law had formalized the
mechanisms for enforcement, which allowed for its development as a discernible entity.

 Definition Of Crime
 Many jurists have defined crime in their own ways some of which are as under:
· Blackstone defined crime as an act committed or omitted in violation of a public law either
forbidding or commanding it.
· Stephen observed a crime is a violation of a right considered in reference to the evil tendency
of such violation as regards the community at large.
· Oxford Dictionary defines crime as an act punishable by law as forbidden by statute or
injurious to the public welfare.

Fundamental Elements Of Crime

 There are four elements which go to constitute a crime, these are:-
· Human being
· Mens rea or guilty intention
· Actus reus or illegal act or omission
· Injury to another human being

Human Being- The first element requires that the wrongful act must be committed by a human
being. In ancient times, when criminal law was largely dominated by the idea of retribution,
punishments were inflicted on animals also for the injury caused by them, for example, a pig was
 ACTUS REUS – ESSENTIAL ELEMENT OF CRIME

burnt in Paris for having devoured a child, a horse was killed for having kicked a man. But now,
if an animal causes an injury we hold not the animal liable but its owner liable for such injury.

So the first element of crime is a human being who- must be under the legal obligation to act in a
particular manner and should be a fit subject for awarding appropriate punishment.

Section 111 of the Indian Penal Code provides that word ‘person’ includes a company or
association or body of persons whether incorporated or not. The word ‘person’ includes artificial
or juridical persons.

Mens Rea- The second important essential element of a crime is mens rea or evil intent or guilty
mind. There can be no crime of any nature without mens rea or an evil mind. Every crime
requires a mental element and that is considered as the fundamental principle of criminal
liability. 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.

Actus Reus [Guilty Act Or Omission] - The third 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. Actus reus is the manifestation of mens rea in the external world. Prof. Kenny was the
first writer to use the term ‘actus reus’. He has defined the term thus- “such result of human
conduct as the law seeks to prevent”.

Injury- The fourth 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 IPC2, 1860 the injury denotes any harm whatever illegally caused to
any person in body, mind, reputation or property.
What is intent?
It is the true reason behind a person’s action. It refers to the facts on which a reasonable person
acts in any given circumstances. In case of a criminal case, the intent to commit that crime means
that the person knew what he was doing is wrong and still did it knowing that the consequences
of his actions is futile. It is should not be confused with motive. Intent is the state of mind of the
person while doing that crime whereas motive is the reason behind the act.

1
Section 11 IPC
2
Section 44 IPC
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Exceptions
In Indian criminal Law, it is considered that certain section of people is not capable of having a
guilty intention even if they have committed a prohibited act. And hence lack of guilty intention
makes the action not a crime and can be excused. This category includes- person of unsound
mind, minor and a person under whose while committing the action was under the influence of
alcohol/drugs. These also come under the Chapter –IV ‘General Exceptions’ in IPC including
section 76-106. In detail these defences can be classified as:-

1. Insanity: when a person is legally insane and they don’t know what they are doing and have no
idea of right or wrong.
2. Involuntary intoxication: Due to the involuntary intoxication when a person loses their ability
to distinguish between right or wrong and has does not know what they are doing.
3. Mistake of fact: when a person accidently act assuming that, for a fact, what they are doing is
right and does it in good faith. Unlike the mistake of fact the Ignorance of law is not excusable.
4. Crime by a minor: a child of age less than 7 years is completely excusable of any crime. A
child who is less than 12 years of age and is not able to distinguish between right or wrong then
he is also excused.

Illustrations-
1. X, a police officer, while in processes of calming down a mob fires his gun by which a person
Y is killed. Here the Actus Reus is present, that is the death of a person but there is no mens rea.
The X shot Y without any guilty motive. This situation does not embody all four elements of
crime and hence, can’t be termed as a crime.
2. M planned to kill N. He bought a knife in order to do. He made an attempt but failed to
actually kill N due to certain reasons. Here all the elements of crime excluding the element injury
occurred. Still it cannot be considered as the crime of murder because of the absence of its one
true element. It shall only be considered as an attempt.

ACTUS REUS
Actus reus, sometimes called the external element or the objective element of a crime, is the
Latin term for the “guilty act” which, when proved beyond a reasonable doubt in combination
with the mens rea, “guilty mind”, produces criminal liability.
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The requirement of actus reus varies depending on the definition of crime. Actus reus may be
with reference to place, fact, time, person, consent, the state of mind of the victim, possession or
even mere preparation.
Place – In the offence of criminal trespass, house-breaking, or in the aggravated forms thereof,
the actus reus is in respect of place.
Time – In the offences of lurking house-trespass or house breaking by night in order to commit
an offence or after preparation for hurt, assault or wrongful restraint etc, the actus reus is in
respect of both place and time.
Person – In offences of kidnapping and abduction, procuring of a minor girl etc., the actus reus
is in respect of the person.
Consent – In the offence of rape, consent is the actus reus.
State of Mind of the Victim – In offences relating to religion, or where rape is committed when
consent has been obtained by putting the victim in fear of death or hurt, the actus reus is with
reference to the state of mind of the victim.
Possession – Possession of stolen property constitutes the actus reus in certain offences.
Preparation – Section 399, IPC, makes preparation to commit dacoity an offence, therefore
preparation itself constitutes the actus reus.

The act must be causa causans ie immediate cause of the effect

The case of a person A shooting B, and thereby causing B’s death. (Direct physical act)
A asks the way on a dark night, B with an intention of causing A’s death, directs him to a cliff
edge, and A dies. This is also causa causans of B’s act, although B has not done anything
physically to hurt A.
A shoots B, but B does not die, while taking to hospital, he meets with an accident and dies.
Then B’s act is not causa causans of A’s act. So A cannot be convicted of murder.

CAUSATION IN CRIME
An event is very often the result of a number of factors. A factor is said to have caused a
particular event, if, without that factor, the event would not have happened. Thus, a man is said
to have caused the actus reus of a crime, if, that actus would not have occurred without his
participation in what was done. Some casual relationship has to be established between his
conduct and the prohibited result. A man is usually held criminally liable only for the
 ACTUS REUS – ESSENTIAL ELEMENT OF CRIME

consequences of his conduct as he foresaw, (or in crimes of negligence, he ought to have

foreseen).
As stated earlier the act must be the causa causans, i.e., the immediate cause of the effect. When
the facts are direct and simple then establishing the casual nexus between the act and the effect
may not be difficult, as for instance, in a case of a person shooting another person and thereby
killing him. The causation of crime can also be without any direct physical act. If the victim asks
his way on a dark night and the accused with the intention of causing his death, directs him to
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 utter words. This can be true in cases of
abetment, incitement and conspiracy. In the instances stated above, it is not difficult to establish
the direct result between the cause and the effect. The difficulty arises only in cases of multiple
causation3, where it is difficult to establish the imputability.
R v White The defendant put potassium cyanide into a drink for his mother with intent to
murder her. She was found dead shortly afterwards with the glass, three-quarters full, beside her.
The medical evidence showed that she had died, not of poison, but of heart failure. The
defendant was acquitted of murder and convicted of an attempt to murder. Although the
consequence which the defendant intended occurred, he did not cause it to occur and there was
no actus reus of murder.

CAUSATION AND NEGLIGENCE

Here “Negligence” is an act, the actus reus should be causa causans of the negligent act, not the
causa sine qua non. (proximate cause)
Suleman Rahiman Mulani v. State of Maharashtra4, accused who was driving a jeep struck the
deceased. He died due to multiple injuries, accused cremated the body. He was charged with IPC
304-A and 201. But prosecution failed to prove that the death was causa causans of rash and
negligent driving of the accused. Even though he did not have Driving licence, the court held
that not having licence, does not mean the person does not know driving. So he was acquitted.
Principle of ordinary Hazard
A attacks B, B runs away, struck by a lightening, dies. A is not guilty of murder.
A shoots B, while taking him to hospital, the ambulance meet with an accident and he dies. A is
not guilty of murder.

Unexpected Interventions
3
R v White [1910]
4
AIR 1968 SC 829, (1968) Cr LJ 1013 (SC)
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Joginder Singh v. state of Punjab5, deceased was being chased by two people, fell into a well and
died due to head injuries. SC held that the accused were 15-20 feet away from the deceased when
he jumped to well, and there were no evidence to prove that they drove him to the well. The
accused were acquitted of their charges.
Intervention of a innocent person- A puts poison in the drinks, which he knows B will offer to C.
A will be held responsible.
Intervention of Another person- A was stabbing B, meanwhile without being invited, another
person C comes and starts to stab B which caused his death. Here A will not be responsible for
the death, although other criminal charges may apply.

Contributory negligence
Contributary negligence is not a factor which can be taken into consideration of the guilt of the
accused,although it can be a factor for consideration in determination of sentence. Eg: Waters
case.

5
AIR 1979 SC 1876, (1979) Cr LJ 1406 (SC).