Crime

Ever-since the dawn of human civilisation crime has been a baffling problem. There is hardly any society which is not beset with the problem of crime. Commenting on this aspect of crime problem, Emile Durkheim in his treatise ‘crime as a normal phenomenon’ says, “A society composed of persons with angelic qualities would not be free from violations of the norms of that society.

In fact, crime is a dynamic concept changing with the social transformation. He argues that crime is a necessary feature of every society as it is a fundamental condition of social organisation. Different groups have variable and often incompatible interests in the society which give rise to conflicts eventually resulting in the incidence of crime.

Historically, the concept of crime seems to have always been changing with the variations in social conditions during the evolutionary stages of human society. This can be illustrated by the fact that early English society during 12th and 13th centuries included only those acts as crime which were committed against the State or the religion. Thus treason, rape and blasphemy were treated as crime whereas ‘murder’ was not a crime.

Primitive societies did not recognise any distinction between the law of crime and torts but only knew law of wrongs. Commenting on this point Fedrick Pollock and Maitland observed that the English society prior to tenth century confused crimes with torts because the bond of family was far stronger than that of the community, the injured party and his kindred could avenge the wrong by private vengeance and self-redress.

During this period, recourse to legal remedy was considered merely an optional alternative to self-redress. The wrongdoer was supposed to offer compensation to the person wronged, the quantum of which depended on the extent of the wrong caused and the status of the sufferer.

The payment of compensation known as ‘bot’ washed away the guilt of the wrongdoer and relegated him to a position as if he had done no wrong. The early Anglo-Saxon laws contained minutest details of compensation (bot) which was payable for different wrongs with a view to helping the person wronged in seeking redress.

However, if bot was refused, the law had no other means to enforce its payment. In that event it was for the victim or his kindred to prosecute a ‘blood-fend’ against the wrongdoer and law could help him only by declaring the wrongdoer as an ‘outlaw’ who could be chased and killed by anyone like a wild beast.

Besides the offences which could be atoned by bot (payment of compensation to the victim) there were certain other wrongs which entailed additional fines (wite) payable to the King. That apart, there were certain botless offences for which no amount of compensation could wipe out the guilt and the wrongdoer had to undergo punishment.

Such cases were punishable with death, mutilation or forfeiture of property to the King. House-breaking, harboring the outlaws, refusing to serve in the army and breach of peace etc., were some of the early ‘botless’ offences which entailed compulsory punishment under the law of the State. As a matter of fact it is from these ‘botless’ offences that the modern concept of crime has emerged.

The number of ‘botless’ offences increased considerably after twelfth century. Thus a distinct line of demarcation could be drawn between the wrongs which could be redressable by payment of compensation (bot) and those which were not so redressable by money compensation (botless) and for which the wrongdoer was to be punished by the King.

In course of time the former came to be known as civil wrongs or ‘torts’ while the latter as ‘crime’. It can, therefore be observed that the law did not play compelling part in regulating the social relations in early days as it does today. The modem legal systems provide that as soon as an offence is committed, the law is set into motion at once irrespective of the wishes of the injured party, whereas in early societies the law was administered only if both the parties agreed to submit themselves to the verdict.

Another characteristic feature of this period (1000 to 1200 A.D.) in the history of crime was the preponderance of the system of ordeals by fire or by water to establish the guilt or innocence of the accused. This was perhaps due to the dominance of religion in early days and superstitions of the people who believed that their social relations were governed by some supernatural power which they regarded omnipotent.

According to Dharamsastra writers ordeal was a living institution in India. Epigraphic and legal records show that ordeal was practised strictly according to the Dharamsastra rules since times immemorial in the Indian history. Ancient writers have referred to the ordeals as divine methods with various names such as Samayakriya, Sapatha, Divya, or Pariksa. Ordeals were treated as a divine means of proof about guilt or innocence of the accused.

The two important aspects of ordeals were: (i) they indicated the divine aspect of trial, and (ii) the basic idea underlying this method of trial was the need of divine intervention at a crucial moment in dispensing justice. Thus ordeal was an antique institution, a deep rooted custom, practised by the people in ancient India. Yajnavalkya mentions five kinds of ordeals—Balance, Fire, Water, Poison and Kosa.

In the Balance ordeal, the accused was weighed against a stone and if the latter was lighter, the charge was considered to be false, but if it was otherwise, the charge stood proved.

The fire ordeal consisted of four main forms, namely, (i) going through nine circles with red-hot iron-ball in hand; (ii) walking over burning fire; (iii) lifting up a piece of iron from boiling oil; and (iv) licking the red-hot iron bar with tongue.

In water ordeal, the accused was brought to a deep and rapidly flowing river or a deep well full of water. Then he was to speak to the water; ‘since thou be longest to the pure angels and knowest both what is secret and the public, kill me if I lie and angels preserve me if I speak the truth’. Then five men took the accused and threw him into the water. If he was not guilty, he would not drown or die.

The poison ordeal was also used as a method of investigation. The accused was made to eat the poison or take out a living black serpent from a pot. If he survived harmless, he was supposed to be innocent otherwise he would be deemed guilty.

The kosa form of ordeal was the mildest ordeal meant for universal application. The accused was taken to a temple. Then the priest poured water over the deity (idol) and this holy water was given to the accused for drinking. If he was guilty or false, he would at once vomit blood.

The first three ordeals were based on the principle of divine judgment. They, however, fell into disuse in course of time.

With the march of time, human reasoning improved and the King assumed greater responsibility for apprehending offenders, a duty which was hitherto the sole concern of the injured party. The changes in civilization, culture and advancement of scientific knowledge also brought about a change in the concept of crime which eventually led to the emergence of criminology as an independent branch of knowledge.