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Actus reus
BA LLB (HONS.)
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3. Actus Reus (the conduct element)
Actus reus is the conduct or the physical element of a crime. It describes what the offender must be proved to have done (or failed to do); in what circumstances and with what consequences. 1 It means not just the criminal act but all the external elements of the offence. 2 Thus, the actus reus of the offence of murder is ‘causing death’_._ The role of actus reus , in a crime, is to identify that conduct or result of conduct which the criminal law seeks to prohibit as harmful to others. Actus reus often goes on to tell us what we can and cannot do e. stealing, killing etc. as doing these would entail penal consequences. In other words, actus reus is that part of a crime which is not concerned with the accused’s state of mind. The exact nature of the actus reus would depend upon the crime concerned. Thus a ctus reus of murder is not same as that of attempt to commit murder. Generally speaking, a question of actus reus may involve three aspects:
(a) Proof that the accused did an act (b) Proof that the accused caused a result and (c) Proof that the act or the result occurred in certain circumstances or situations.
Not all actus rei involve all the three. For example: The offence of bigamy requires that a marriage takes place in ‘a particular circumstance’ i. during the life time of a spouse. Nothing else needs to be proved, not even any result of the ‘second marriage’. The liability for the offence of bigamy would not depend on showing of any result viz. mental agony to the concerned spouse. Therefore, the actus reus of bigamy is ‘marrying in the lifetime of a spouse’.
For the purposes of actus reus, crime may be divided in two broad categories:
(a) Conduct crimes- Such crimes only require that the accused ‘did an act’. There is no need to show any result of the accused’s conduct. For example, laws punishing ‘procuring of a contraband substance’ do not need any other physical element except proof of procurement. Sections 269 and 270 of IPC are other examples of conduct crimes.
1 See, J.W. Turner (ed.), Kenny’s Outlines of Criminal Law, (19th ed.), at p. 17. 2 G. Williams, Text Book of Criminal Law, (2nd ed., 1st Indian Reprint, 1999), at p. 146.
Even rape would be a conduct crime as no ‘result’ of the sexual assault need be shown. Conviction for rape does not depend upon any physical injury or pain caused to the victim. (b) Result Crimes- In such crimes, the prosecution must prove not only a ‘conduct’ attributable to the accused but also a result of such conduct. For example, the actus reus of murder is not ‘shooting’ but ‘causing death’ which is the result of shooting. Therefore, in order to prove the conduct part of the offence of murder, it is to be shown that the accused shot at the victim and thereby caused his death. Without showing the result of shooting (i. death), the element of actus reus would not be made out. Generally, it is not necessary that all the above stated aspects of actus reus are present in all crimes. As explained, some crimes only require proof of an act; some others only require proof of a ‘result’ and the rest require that there is a combination of ‘act’ or ‘result’ with the ‘circumstances’. 3. The Voluntary Act Requirement Actus reus would generally be a ‘voluntary act’ or ‘result of a voluntary act’. Lord Justice Denning, in Bratty v A. of Northern Ireland 3 observed that the “requirement that it should be a voluntary act is essential in every criminal case”. He illustrated “a spasm, a reflex action or a convulsion; or an act done whilst suffering from concussions or whilst sleep-walking” as examples of acts ‘not done voluntarily’. Where the accused is not acting voluntarily, it is said that he/she is acting as automation and no liability will arise. For example: X, who is walking along Y, is rendered unconscious due to ill health and falls on Y, thereby causing injury to Y. As X’s act of falling on Y was not ‘voluntary’, there would be no liability. “For the purposes of criminal law, an act or omission is voluntary if it might have been avoided by the exercise of reasonable care.....” 4.
Voluntary act requirement is specifically mentioned in many IPC offences and the term “voluntarily” is explained in Section 39 IPC. 5
3 (1963) AC 386 (HL). 4 Halsbury’s Laws of England (Vol. 9, 2nd Edn.), at p. 10 5 A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reasons to believe to be likely to cause it.
framed by the Central Government and this order be widely published through electronic media and print media for the benefit of public so that the public is made aware and that serves as impetus to good Samaritans to extend timely help and protection conferred upon them without incurring the risk of harassment. 7 The Motor Vehicles (Amendment) Act, 2019 8 has introduced a new definition of the phrase ‘good Samaritan’ in the parent Motor Vehicles Act of 1988. According to it a good Samaritan is a person who renders emergency medical or non-medical assistance to a victim at the scene of an accident. The assistance must have been (i) in good faith, (ii) voluntary, and (iii) without the expectation of any reward. Such a person will not be liable for any civil or criminal action for any injury to or death of an accident victim, caused due to their negligence in providing assistance to the victim. 9
However, it is pertinent to note that acting as a good Samaritan is purely discretionary and no liability shall be imposed on the ground that a person did not help a victim of a road accident, except in a few exceptional circumstances where there exists a duty to help (e. in case of police or medical services).
3. Omission of Statutory Obligation
The IPC, unlike the English common law, is less confusing as to when an omission or failure to act would lead to penal liability. Section 32, IPC says that-“In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.”
To further explain the matter, Section 36, IPC provides that “whenever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by act and partly by omission is the same offence.”
In Om Prakash v. State of Punjab 10 , the appellant used to ill-treat his wife by regularly starving and beating her. She was not even allowed to go out as he used to lock the door from outside while going to work. One day, when the appellant had forgotten to lock the door from outside, the victim managed to escape and reached a nearby hospital where the doctors found her condition to be very critical. The kin of the victim were informed, and an FIR against the
7 See, Savelife Foundation and Ors. v. Union of India , AIR 2016 SC 1617. 8 Received the assent of the President on 09/08/2019 and came into force on 01/09/2019. 9 See , Section 134A of the MV Act, 1988, added by the MV (Amendment) Act, 2019. 10 AIR 1961 SC 1782.
appellant was lodged for attempting to murder his wife. The Supreme Court held the appellant guilty of attempting to murder his wife through a combination of both acts (regularly beating) and illegal omission (not providing proper food etc. over a long period of time).
There are many offences in IPC liability for which arises only through omission. This is so because a statutory duty has been cast to act in a certain manner and not acting in that manner would render one liable. For example: Section 187, IPC criminalizes omission to assist a public servant when one is bound by law to give assistance. This liability arises from Section 37, CrPC, which declares that every person is bound to assist a magistrate or a police officer reasonably demanding his aid in arresting, preventing the escape of any person whom such magistrate or the police officer is authorized to arrest. This obligation extends also in cases of prevention or suppression of breach of peace or in the prevention of any attempted injury in respect of government property.
Under Section 39, CrPC, the public is under statutory obligation to give information of commission of certain offences; even the intention of any other person to commit such offence, to the nearest magistrate or police officer, omission of which would be punishable under Section 176, IPC. Section 123, IPC punishes a person for concealing a design, with an intention to facilitate the commission of the offence of waging war against the government of India. Similarly, in refusing oath or affirmation when duly required by public servant to make it (Section 178, IPC) refusal to answer a public servant who is authorized to question (Section 179, IPC), refusing to sign statement made by a person when that person is required by a public servant to sign that document (Section 180, IPC), the liability arises by omission. Under Section 154, IPC, owner or occupier of a land on which an unlawful assembly is held or a riot is committed are liable for failing to inform the authorities of such assembly or using all lawful means to prevent it or suppress it. In all these cases, the accused ‘does nothing’ when he is under a legal obligation to do a particular act.
Thus, under the Indian law, the application of common law as to the situations when a person is liable for his omissions is largely misplaced. The simple rule applicable in India is that liability for omission would arise only when there is a duty to act and this duty to act should flow from some statute or a legal instrument. However, it would be pertinent to see the common law approach to omission comparing it with the Indian approach.
3. Omission of a Contractual Obligation
is not in the ‘best interest of the patient’ to continue with the treatment without incurring any liability for omission. In Airedale NHS Trust v. Bland 13 , the victim Tony Bland, a young boy of 17, was in a vegetative state for three years due to an unfortunate incident during a football match. The hospital authorities applied for a declaration that it was lawful for them to discontinue treatment and artificial feeding through nasal tubes. As a result, Tony would die in a short period of time though his mind would still be able to control the lung and heart at an unconscious level. The House of Lords granted the declaration that it would not be unlawful to discontinue the treatment and nasal feeding even if that meant accelerating the death of Tony. Apart from the moral aspects of euthanasia, the Court discussed the meanings of the terms ‘act’ and ‘omission’ and was of the view that as a physician is not under any obligation to continue treatment in an absolutely hopeless case, discontinuing medical treatment, even if it results in death of the patient, would not constitute actus reus. It was held by Lord Keith that a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance of the treatment. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being of benefit to the patient.
In India, as stated above, liability for omission to act and care generally flows from statutory legal instruments.
Aruna Ramchandra Shanbaug v. Union of India and Ors., AIR 2011 SC 1290, (Markandey Katju and Gyan Sudha Mishra, JJ.)
Held: (Markandey Katju J.)- “26. The troublesome question is what happens when the patient is in no condition to be able to say whether or not he consents to discontinuance of the treatment and has also given no prior indication of his wishes with regard to it as in the case of Aruna. In such a situation the patient being incompetent to express his self-determination the approach adopted in some of the American cases is of “substituted judgment” or the judgment of a surrogate. This involves a detailed inquiry into the patient's views and preferences. The surrogate decision maker has to gather from material facts as far as possible
13 [1993] 1 All ER 821.
the decision which the incompetent patient would have made if he was competent. However, such a test is not favoured in English law in relation to incompetent adults.
Absent any indication from a patient who is incompetent the test which is adopted by Courts is what is in the best interest of the patient whose life is artificially prolonged by such life support. This is not a question whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment. This opinion must be formed by a responsible and competent body of medical persons in charge of the patient.
The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate the life. The latter would be euthanasia, a criminal offence under the present law in UK, USA and India.
In such a situation, generally the wishes of the patient's immediate family will be given due weight, though their views cannot be determinative of the carrying on of treatment as they cannot dictate to responsible and competent doctors what is in the best interest of the patient. However, experience shows that in most cases the opinions of the doctors and the immediate relatives coincide.
Whilst this Court has held that there is no right to die (suicide) under Article 21 of the Constitution and attempt to suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur’s case (supra).
Mr. Andhyarujina submitted that the decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. In England for historical reasons the parens patriae jurisdiction over adult mentally incompetent persons was abolished by statute and the Court has no power now to give its consent. In this situation, the Court only gives a declaration that the proposed omission by doctors is not unlawful...............
Mr. Andhyarujina submitted that the withdrawal of nutrition by stopping essential food by means of a nasogastric tube is not the same as unplugging a ventilator which artificially breathes air into the lungs of a patient incapable of breathing resulting in instant death. In
In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policeman’s order to put down one’s gun.”
In India, parents are under a legal obligation to care for their children under the age of twelve years. IPC, in Section 317 stipulates that “Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation- This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure.”
Recently, an almost similar duty has been cast on children to provide necessary care to their parents or even those whose property they are likely to inherit. Section 24 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, criminalizes exposure and abandonment of senior citizens-“Whoever, having the care or protection of senior citizen leaves, such senior citizen in any place with the intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousand rupees or with both.”
Section 4 of this Act declares that children or relatives of a senior citizen are under an obligation to meet the needs of the senior citizen so that they may lead a normal life.
In a significant judgment Pt. Parmanand Katara v. Union of India 14 the Supreme Court of India has observed that every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death. There is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately. The effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with that matter or who happens to notice such an incident or a situation. There are no provisions in the IPC, CrPC, Motor Vehicles Act, which prevents doctors from promptly attending to seriously injured persons and accident cases
14 AIR 1989 SC 2039.
before arrival of the police and their taking into cognizance of such cases, preparation of FIR and other formalities by Police. There can be no second opinion that preservation of human life is of paramount importance. This is so on account of the fact that once life is lost, the status quo ante cannot be restored, as resurrection is beyond the capacity of man. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in status or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. The treatment of the patient should not wait for the arrival of the police or completion of legal formalities. All hospitals and doctors are required to provide immediate medical aid to all the cases, whether medico–legal or not. However, it is doubtful whether the direction of the Supreme Court would give rise to any binding obligation.
3. State of Affairs Offences
In some cases the actus reus of the offence would neither be an act or omission but existence of a particular state of affairs to be proved. For example being in possession of a small quantity of narcotic substance for personal use is an offence under Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The law is not interested in the conduct of the accused in coming to have the drug but simply the fact of possession. Similarly possession of counterfeit currency (Section 489A, IPC), counterfeit Government stamp (Section 259, IPC) and counterfeit coins and Indian coins (Sections 242-243) are some other examples. In England, Section 4 (2) of the Road Traffic Act, 1988 punishes being in charge of a vehicle while unfit through drink or drugs. Similarly, in India Section 185 of the Motor Vehicles Act, 1988 provides that-“Whoever, while driving, or attempting to drive, a motor vehicle,--
a. has, in his blood, alcohol in any quantity, howsoever small the quantity may be, or b. is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence,
Actus reus
Course: BA LLB (HONS.)
University: Dr. Ram Manohar Lohiya National Law University
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