Principles of Criminal Liability

Ria Tandon, Research Associate

Criminal liability has been defined by lexicon dictionary as something wherein there is accountability and responsibility to another by the ways of legal criminal sanction ((The Lexicon, 3 rd edition)). Through this paper we are trying to understand the principles of criminal liability. Criminal guilt would attack the violator of the criminal law. However it is a very well known fact that the rule is not absolute in nature and there are some restriction the above mentioned explanation and that is the latin maxim , actus non facit reium, nisi mens sit rea ((The act itself does not make a man guilty, unless his intentions were so. The earliest trace of the maxim can be found in St Augutine’s Sermon No 118.02, where it is stated as reum linguam non facit , nisi mens rea cited in Pollock and Maitland, I I,476n; see Flower v Padget(1789) 7 TR 509; The intent and the act must concur to constitute a crime,’ per Lord Keyon CJ in Younghusband v Luffing [ 1949] 2 KB 354)). It means that no crime without the guilty mind ((Russell on crime , vol I, 12 th ed, 1964, pp 22-60. In the past , criminal liability was mental attitude .However , in cases of self- defence (defendo) and accident (per infortium), the King used to pardon the accused)).

The first principle of criminal liability or responsibility is the requisite of an act-the actus reus. The actus reus combines ((Chandrasekharan Pillai, K. N, 2007, General Principles of Criminal Law, pp. 130, Eastern Book Company))both the act and the intention of the person who commits the crime. Unless the evil thoughts which take place in the form of an action will only make law take cognizance to it.


The various examples of criminal liability are as follows:


The word actus connotes the term “deed” which basically means the action which is in physical result of the human conduct. The word “reus is defined to be something which is the result of human conduct on which law seeks imposes restrictions so as to prevent ((Kenny’s Outlines of Criminal Law, 19 th ed, JWC Turner, p 17.))it. Actus reus is made up of three constituents as follows:

(1) Conduct – Human action which is prohibited by law

(2) The result of this act , in a particular circumstances is designated as injury.

(3) Such act should be prohibited by law

Conduct – An act is defined to be an event which would be subject to the restrictions of that will ((Moard and Kadish, Criminal Law and its Process, 1962, p212.))of a person. In other words this act would be something which would be under the total control of the human being for example when a person moves his/ her hand rashly, is walking or speaking or this is considered to be the external manifestation of one’s mind. When we see the idea of conduct broadly then the human action includes both omission ((See Indian Penl Code 1860, s 32))and commission acts. When a person’s criminal liability has to be analyzed in the following ways:

(a) the origin of it in some mental or bodily activity which is a willed movement or omission.

(b) Circumstances of the act

(c) And its consequences ((See Monard and Kadish , Criminal law and its Process , p 213)).

For say take an example where there are two people A and b . Where A shoots B with a rifle where three things are seen (1) origin of the primary stage , namely the muscular contraction where the trigger is pulled (2) the circumstances like where the rifle is loaded and is in working order , the person who needs to to be killed should be in a range (3) the consequence of that act like in this case the fall of the tigger , explosion of the powder , the discharge of the and the death of the victim. Hence all these statement can be compacted in the statement as ‘ A killed B’ which consists of” an act ((See Indian Penal Code 1860, s 33. The word ‘act’ denotes as well a series of acts as a single act; the word omission denotes as well a single omission)).”

Acts which are Prohibited by Law – An act whoever apprehensible it may be unless until it is prohibited by the statute of law. Criminal acts are those only which fall under the ambit of crime under Law.

When we talk with reference to section 43 of the Indian Penal Code  talks about the legal duty which a person is committed to a duty but fails to comply with it or omits to do since he or she is “legally bound to ((See Indian Penal Code 1860, s 43)).” For say when there is a jailor under whose surveillance  a prisoners dies hence in this case he would be amounted to an illegal omission for not discharging his legal obligation of providing meals to the prisoners ((See Om Prakash v State of Punjab AIR 1961 SC 1782)).

Result of Conduct

For an act to be a crime there should always be an end result which is brought about by the Human conduct.  Actus reus is basically the end result of a human conduct and is an event. For say a death occurs by a person X so here death is result of the conduct of the accused person X .  In other words crime is something which happens because of the event and not because of an activity like shooting, stabbing, poisoning etc which might have caused the death of the person Once the desired act is done that is what all matters when we look at the  act of crime except that when we need to access the criminal liability. For say we take an example where A fires ((KD Gaur, Criminal Law: Cases and Materials, 5 th ed.))at B in order to kill him but B get minimal injury hence in this case the aspect of murder will not come into being a in this but the attempt to murder is something which will be regarded here.


The principle of mens rea explains the mental state which ((Chandrasekharan Pillai K.N , General Principles of Criminal Law , pp 137.))is required for accessing the criminal liability. It consists of intention, knowledge, or even the absence of even one of them negatives the contention of a crime ((Stephen James, History of Criminal Law of England, vol II, 1883, pp 94-95; Smith and Hogan, Criminal Law, 5 th ed, 1983, pp 47-48; Essay on the Indian Penal Code, Indian Law Institute, 1962, pp 56-62.’ Annual Survey of the Indian Law’, 1963, Indian Law Institute, p 499; KM Perkins, ‘ A Rationale of Mens Rea’, Harvard Law Review, no 52, 1938-39, p905; ‘ Mental Element’ , Harvard Law Review, no 74, 1960-61, p 779, Harvard Law Review,no 75, 1960-61, pp 17-21)). No act is considered to be criminal unless and until it is done with a guilty mind.

Later on two tests were evolved which determined the mens rea. Firstly whether the act in question was a voluntary act or not and secondly whether the accused could for see the consequences of his conduct ((Jerome Hali, General Principles of Criminal Law, 2 nd ed, 1960, pp 70-77; Deylin, Statutory Offence’, (1938) 4 JSPTL. Mens rea consists of two elements- first , the intent to do an act and secondly, the knowledge of the circumstances that makes that act a criminal offence)).

If we speak generally with reference to mens rea then the commentators accept four mental states which are ((Chandrasekharan Pillai K.N, General Principles Of Criminal Law, pp-137));

(1)   General Intent– This talks about the principle of actus reus wherein it sees the intent of the crime to be committed. For say in rape, sexual penetration is the deed which is done.

(2)   Specific intent–  Besides the normal intention on carrying with the act it is necessary to something in addition to that of actus reus . For example if person breaks into a house with the purpose of theft and in addition to that taking and carrying away is the orocess adopted.

(3)   Transferred Malice-In cases where the offender hurts another person instead of the one he intends to hurt. In such cases the offender is held to be liable for his offence even though the should be person of attack did not get hurt.  The malice of the actual intended victim sifts for the one who is the victim. The transfer does not take place if intent to commit a particular harm is not same. This was made clear through the case of Kurien V. State ((1975 KLT 748)).

(4)   Constructive Intent – In this case we consider not just the intention of committing harm but we look at the knowledge of the offender of the high risk of the injury because of that action In situation where a reckless act happens the person who forsees ((KD Gaur, Crimial Law: Cases and Materials, 5 th ed, pp-46))that consequences are possible because of his conduct but in turns he acts without any intention or desire to bring them in action.  There is only probability of his seeing and not desires it or foresees it. Recklessness is basically “an attitude of mental indifference to obvious risk ((Hudston v Viney [1921] 1 Ch 98)).”


Statutory Offences

An offence is basically considered to be a violation of the law. Offence is considered to be wrong in the Penal Code. The Code of the Criminal Procedure , 1973 defines offence as any act or omission ((See Criminal Procedure Code, 1973.))which is punishable under any law . The offences which are created by different statutes like taxation and national security. There are two kinds of offences such as malum in se which are inherently wrong and society recognize them as wrong. While malum prohibitum ((Available at acts which are wrong because they are prohibited by law. Statutory Offences is of need  because, it is not only the crimes which can harm the society but  also crimes like white collar crimes also harm the society. There have been many scams in the country like Harshad Mehta (( 2G scam.

(a)Presumption in statutory offence which require mens rea :

 In statutory interpretation , certain presumption are taken into consideration  when by the court when interpreting the statutes.  Where there is a creation of any offence by the statute , no matter how precise the language maybe, it is taken to be understood that element of mens rea is imported in the definition of crime.

Roscoe Pond’s definition of statutory offence is that “such statutes are not meant to punish the vicious will but to put pressure on the thoughtlessness and inefficient to do their whole duty in the interest of public health or safety or morals ((Available at” The Bhopal gas tragedy brought in front of the world that the presumption of mens rea is not important but again in after Hobbs Case the courts couldn’t deny the aspect of favoring mens rea.

(b) Exception- Where mens rea is not necessary

This situation basically talks with reference to the absence of men rea for deciding a case.  There have been many cases with reference to this in India like for example in State of Maharashtra v M.H. George ((Available at the respondent had left for Zurich on November 27, 1962 and landed at Santa Cruz airport. He remained in plane and when he was searched it was found with gold which violated the section 8(1) of the Foreign Exchange Regulation Act, 1947 and the majority view was that there is no scope with regards to the invocation the rule of mens rea.


The mere error ((Available at judgment which is committed by the doctor is not considered to be crime. This is the latest Supreme Court judgment of India Only when the error is rash that it turns to be fatal then in that case it would be regarded as a criminal liability. In criminal law something which has criminal intention attached to it then only it is considered to a crime but if the act is seen then it being fatal needs to be explained.

Aged society members are also held to be liable for criminal liability.  This was the latest judgment by the Bombay High Court with reference to the case where there was lapses (( maintain fire safety equipments.


Through this paper it can be concluded that both actus reus and mens rea are important when we further proceed with reference to the measuring the criminal liability of a person. In actus reus the deed is very important for act to make a person liable for crime while and is guided by three principles firstly the muscle contraction showing action, circumstances and the intensity of the hurt. When we talk with reference to mens rea then we have defined the three types but the end results same that intention is of prime value. In statutory offences we talk about the crime which harm the society and how the criminal liability is when mens rea is present in one while absent in another.