Unit: one �Concept and Classification of Crime

Concept of Crime

• The term crime is derived from Latin term ‘Crimen’ which means offence and also a wrong doer.
• Crime means such act or omission that is prohibited by criminal law.
• Each country sets out a limited series of acts (crimes) which are prohibited and punishes the commission of these acts by fine, imprisonment or some other form of punishment.

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• A Crime is a legal wrong, the remedy for which is the punishment of the offender at instance of the state.
• Criminal law defines the duties which a person owes to society and violation of such duty is a crime which result is penal sanction.
• An act of omission or intention that violates criminal case or statutory law and is punishable by law is crime.
• Different writers define crime in different ways.

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• According to Blackstone, crime is “an act committed or omitted in violation of public law forbidding or commanding it.”
• Sir James Stephen has observed that crime is an act which is both forbidden by law and revolting to the moral sentiments of the society.
• Barners and Teeters, “The term crime technically means a form of anti-social behavior that has violated public sentiment to such an extent as to be forbidden by statute.”
• Hence, crime is what the law specifies.

• Crimes consist only of those acts which are particularly harmful to the community. Such harmful acts need to be prohibited for the protection of the society at large.
• Any act which is not prohibited by law is not a crime; however, it is harmful to the society. Therefore, all human conducts which are harmful to the society, may not be a crime unless prohibited by law. It must be recognized as a crime by law.
• Therefore, a crime is an unlawful act which is an offence against the public and renders the person guilty of the act or liable to the punishment.

Classification of Crime

• Crimes can be classified into several ways. There is no precise classification of crime. Some classification of crime are as follows.
• Crime of relative liability
• Crime of strict liability
• Victimless crime
• Hidden crime
• White collar crime

1. Crime of relative liability
1. The concept of crime of relative liability is based on theory of penal liability.
2. Basically, the theory of penal liability is concerned with the punishment for wrongful act which is done with intention.
3. The cardinal principle of criminal law is based on Roman maxim i.e. ‘actus non facit reum nisi mens sit rea’, i.e. an act doesnot make person guilt unless his mind be guilty.
4. Actus Reus and Mens Rea must exist concurrently to coincide for crime.

ii. Crime of strict liability

• The strict liability is an exception to the general rule about the conditions that constitute liability.
• The general rule is that there must be criminal act, i.e. actus reus and criminal intention, i.e. mens rea of a wrongdoer to be held criminally liable. But, to the exception of this rule, sometimes, the criminal intention is not necessary, only criminal act is sufficient for a criminal liability; such liability is called the strict or absolute liability.
• Liability for a crime that imposed without necessity of proving mens rea is called strict liability.

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iii. Victimless crime

• If same person is the agent of the crime and becomes himself victim, such crime is called victimless crime.
• Where victim is self criminal and they are victimize their own acts: such as consensual acts and violations in which only the perpetrator is hurt, such as personal use of illegal drugs, suicide, are called victimless crime.
• The commission of these crimes will not adversely affect the society however, such acts need to be controlled in order to achieve social stability.

iv. Hidden crime

• The act in violation of criminal law which are not recorded in police and no case has been brought to the court fall under hidden crime.

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v. White collar crime

• White collar crimes are the offences that persons commit while acting in their legitimate jobs and professions.
• It is also known as unethical crime.
• Money laundering, corruption, counterfeiting, etc. are its example.
• Such crimes are dangerous to society because financial loss is higher.

• Beside these, crimes can be classified as:
• Crime against person (homicide, human trafficking, abortion, etc.)
• Crime against property (theft, arson, etc.)
• Crime against state (terrorism, felony, etc.)
• On the basis of its nature, crime can be classified in any way.
• These are the basic classification of crime.

Elements of crime

There are 2 elements of crime. They are:

(a) Actus Reus, and

(b) Mens Rea.

Both of these elements must be present in any crime in general. Strict liability is one of its exceptions.

(a) Meaning of Actus Reus:

The law defines crime specifying the situation in which it is committed. The situation defined by the crime excluding Mens Rea is the Actus Reus of the crime.

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Actus Reus..

Other relevant & additional techniques of Actus Reus are:

1. Slow Poisoning.

2. Act committed through an innocent agent: The order giver is liable e.g. infant, insane or an innocent person may have been made such agent.

3. If an act is committed in a series of fragmentation forming part of the same transaction, the actor is liable for the cumulative effect of his act. Such as slow poisoning.

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Mens Rea

Latin word

➡ ️Meaning: “guilty mind” or “intention to harm” or “malafied intention”.

➡️ Mental element necessary for commission of crime.

➡ ️it is willingness and intention to commit crime.

➡ ️It is manifested in three forms:

▶️ intentions

▶️ recklessiness

▶️ Negligence

Intentions

• One foresees the consequence and does the act with intention and goal to achieve the consequence.
• Victim is pre-calculated.
• Intention is invisible and thus need to be calculated or determined by considering circumstantial evidence. E.g. D targets V with a gun and triggers the rifle that results in death of V.
• Intention can be classified into 2 types-

a) Immediate intention: It is prima facie evidence of intention. It is relevant in attempt i.e. while the action is done. It may be good or bad. Good intention is not relevant in conviction but might be relevant in fixing the degree of liability.

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b. Ulterior intention (motive): It is the inner and final intention. Might be good or bad in nature. Good motive is not a defense. Motive not relevant in conviction but relevant in fixing the punishment. �Example: Looting someone is an immediate intention and investing looted amount to built a house is a motive. �

Recklessiness(bewasta)

• ️ One foresees the possibility of consequences but does it with a hope that he would avoid the consequence. It is an act of Unreasonable risk taking.
• ️Here victim is uncertain.
• ️E.g. driving a vehicle with a high speed in a busy road. Operation by a surgeon or showing risky game in circus are reasonable activities.
• It is Subjective i.e. inside of Accused’s Mind.

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Negligence(Laparwahi)

• Also called Reasonable Man Test.
• It is identified by Objective Test (general people can say if it is negligence or not).
• Doing an act without due care i.e. acting unreasonably.
• Duty to take care, Breach of such duty, loss to victim are the main elements of consideration while determining negligence. Standard of care to be complied.
• He does not see the consequence.
• E.g. walking with a stick, walking with an iron rod, walking with a sword. Standard of care to be complied by a sword taking person must differ from the degree of care to be complied by a stick taker.
• Three types- (a) Simple (any sort of simple negligence), (b) Gross (very much negligence is made. It is not accepted by public. It results in high degree of punishment.), and (c) Contributory (Both V and D of accident are involved. Both of them contribute to happen the crime. i.e. Both parties are doing negligence. In this case, the person doing more amount of negligence is liable and also the victim gets less damages or compensation as he is also doing negligence.).

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In Intention / Recklessness: judge stands on the shoe of the accused to see what he may have thought in the given situation known as Subjective test (Judge has to find what was in the wrongdoer’s heart / mind).

But

In Negligence: The judge stands on the shoe of a reasonable man to see whether the accused act is reasonable or not – known as Objective Test.

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Stage of crime

A voluntarily committed crime involves 4 different stages:

1. Intention/Conspiracy
2. Preparation
3. Attempt
4. Completion of crime

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intention/ conspiracy

• First stage in commission of crime.
• Known as Mental stage.
• Mere intention to commit crime not followed by any act, cannot constitute an offence.

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preparation

• Second stage in commission of crime.
• To arrange necessary measures (e.g. strategies, collection of materials & weapons, arranging place and environment for crime ) for the commission.
• Generally, intention alone or intention followed by a preparation is not enough to constitute the crime because in most cases prosecution has failed to prove that the preparations in the question was made for the commission of the particular crime.
• E.g. If A buys a pistol and keeps it duly loaded in his pocket in order to kill his enemy E, but does nothing more. A has not committed any offence as he is still at the stage of preparation and it will be impossible for the prosecution to prove that A was carrying pistol only for the purpose of killing E.

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Attempt

• Trying to commit or taking direct action towards crime is an attempt.
• After completion of 2 stages of crime (i.e. intention and preparation) when the act of ATTEMPT is reached, it becomes punishable.
• Completion of crime is impossible without attempt. Attempt is just a step before happening of crime.
• The targeted crime gets completed only after completion of attempt except in certain situations where commission of crime becomes inchoate/ incomplete because of certain factors or reasons.

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• In attempt, there arises three elements as terms and conditions:�i) Attempt, must have been reached to the proximate level (too close) of intended crime.�ii) Accused must be standing at the crime zone (environment of crime commission).�iii) Even if the desired crime becomes impossible, attempt is always criminal in nature and is punishable. �

Comptietion of crime

• “Completion of Crime” is the final /fourth stage (or final act) of committing crime where the liability ripens.
• It is the stage intended to be achieved by the criminal.
• It is that stage when crime gets completed.
• The accused is guilty of crime only after he succeeds in his act by reaching this stage. Otherwise, he is guilty only for attempt. For example, A fires at V with the intention to kill V, if V dies, A will be guilty for committing the offence of murder and if V is only injured, it will be the case of “attempt to murder”.

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Attempt

• Unsuccessful commission of an offence.
• Example, putting hand inside pocket with intention to pick pocket but lack of money in the pocket makes inchoate offence of “attempt”.  [R v. Brown 24 Q.B.D. 357]
• Impossibility is no defense to the crime of attempt where the conditions creating the impossibility are unknown to the actor.

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• A person is guilty of an attempt to commit a crime when such person, with the intention to actually commit the crime, does an act which is a substantial step toward the commission of the crime, but not the actual commission of the crime. Therefore, an attempt to commit a crime consists of two elements:�1) an intent to engage in crime; and�2) a conduct constituting a substantial step towards commission of the crime.�

theories of attempt

• A intends to kill L and to fulfill his intention, A engages himself into preparation of killing by use of gun.
• 1st He buys a gun.
• 2nd He examines the behavior and daily routine of L.
• 3rd A fixes day to kill.
• 4th A fixes time to kill.
• 5th At evening A reaches the planned place carrying gun in hand.
• 6th A hides himself into the place till L arrives by that way.
• 7th A gets excited and conscious when L arrives to that place.
• 8th A points gun towards L and puts finger in trigger.
• 9th A pulls trigger and the gun fires.
• 10th Even if the gun was fired, it is not necessary that L will die because the bullet might hit unintended place.
• 11th L might not die after getting medical treatment even if bullet hit him.
• Here, A performed certain act through 11 different stages. It is necessary to demarcate in which stage did the act of A reached to ATTEMPT by crossing the stage of PREPARATION. Only then can we define attempt exactly. There are 4 theories that try to define Attempt.

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What is the dividing line between the stage of Preparation and attempt?�

• In Preparation there is time to change mind.
• In attempt, there is no time to change mind.
• It is very difficult to demarcate. There are 4 Theories relating to Attempt that explain the dividing line between preparation and attempt:

1. The Last Stage Theory.

2. The Proximate Theory

3. The Substantial Step Theory

4. The Impossibility of Accomplishment Theory

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1)The last stage theories

• If offender has performed last action that can be done from his side to make the crime happen but still fails in his goal, he is punishable for attempt.
• In above example, stages no. 8, 9, 10 and 11 are the examples of attempt that are punishable or that fall under this theory.
• Even preventable crimes may occur if we allow police to wait until the last stage to confirm liability for attempt. This is not just. So to address this in a more wider coverage next theory called Proximate theory emerged.

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2)The proximate theory(unequivocal theory)

• Any act done towards commission of crime that is proximate enough to the commission of crime (that clearly reflects intention of crime) is enough for police to arrest for attempt and no need to wait till last stage to make sure for attempt.
• If no two meanings are possible by seeing accused’s act or if it is possible to identify the purpose of accused by looking at his act, the person could be guilty of attempt to that targeted crime.
• If his activity clearly reflects the final consequence and desired intention, its is called proximate and thus confirmation of attempt.
• In above example, anyone who silently watches A getting conscious and carrying gun in hand immediately after arrival of L can confirm his intention. Hence, in this stage A can be prosecuted for attempt.
• This theory is also not justifiable to identify attempt and prosecute because in a rape case, it may be debatable to say kidnapping of a women as an attempt. To avoid this doubt another theory emerged – Substantial Step Theory.

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3)The substatial step theory

• A person is guilty of attempt if he has taken some substantial step towards the commission of the offence.
• In Attempt there is no time to change mind but in Preparation, there is time to change mind.
• What is substantial step is judged by court.
• This theory is claimed to be more effective than previous two as it has wider coverage.
• Villagers detaining a lady from same village into a cowshed have been prosecuted and convicted for attempt to trafficking by applying this theory. No other previous two theories could make it possible to convict for such attempt.

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(4) The Impossibility of Accomplishment Theory�

• If one is not successful to do crime then he will be liable under “attempt” according to this theory.
• Certain crimes are impossible yet liable because this act is illegal from the very inception.
• Example 1: Mens rea to pick pocket but no actus reus because there was no money in the pocket.
• Impossibility of accomplishment is a half crime.
• Eg 1: A goes to sleeping enemy and hits him with knife who was already dead prior 1 hours of hitting with knife.
• Eg 2: If A shots gun over a big wood believing it as his enemy.
• Principally, in obove 2 situations, even if A had malafide intention yet his activity is not criminal in nature. Thus, A can not be held liable for attempt as there exist no actus reus.
• Eg 3: A gets arrested while he was trying to open the door of Bank with the help of a nail. A is liable for attempt to theft.
• Eg 4: With intention of theft, A invades into house of L but the house of L is empty. A is liable for attempt to theft.

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Attempt: Principle and Laws�

• For prosecution and conviction in Attempt of any crime, the guilty intention of accused must be proved. In other words, one can not be held liable for attempt in those actions that occur under provocation, negligence, and recklessness. Injury resulting from provocation could be the case of grievous hurt and not attempt to homicide.

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