Aim:- The article tries to enlighten the defences for the offences by minor. It tries to explain section 82 and 83 for having such provision in IPC and also the conditions which justifies such provisions of IPC.
Section 82 and section 83 of the Indian Penal Code confer immunity from criminal liability to children up to 12 years. Children below 7 years get a complete defense from criminal liability whereas, for children from 7 to 12 years, the immunity conferred depends on their maturity of understanding during the commission of the crime.
Section 82: Act of a child under seven years of age.—Nothing is an offence which is done by a child under seven years of age
Section 83: Act of a child above seven and under twelve of immature understanding.—Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
The ingredients of section 82
Act of a child under 7 years of age
According to section 82 of the IPC a child below 7 years of age gets a complete defense from any kind of criminal liability. The reason for this is the principle of ‘doli incapax’, a child below the age of 7 cannot be held guilty for any offence because of the assumption that he cannot draw a distinction between ‘right’ and ‘wrong’. It works under the assumption that a child below 7 lacks the ability to understand the nature and consequences of his act and therefore cannot form the required mens rea. This is a complete defense and cannot be taken away in any circumstances. No sort of evidence to prove that the child could understand the nature or consequences of his act will act as a rebuttal.
The ingredients of section 83 are
A child above 7 years of age but below 12
There is a partial defense from criminal liability conferred on children above the age of 7 but below the age of 12. This is based on the principle of “doli capax”; that is; a child between 7 to 12 years is capable of understanding the nature and consequences of his act. However, in order to hold a child liable, the prosecution needs to prove, beyond any reasonable doubt that the element of ‘mens rea’ was present along with the actus reus. In other words, the prosecution needs to establish the fact that the child in question knew that his act was wrong and would have the consequences. The liability depends on his understanding and not the age.
Maturity of understanding
When a child is above 7 and below 12, the liability is totally dependent on the maturity of the child. It does not depend on age, but rather the mental capacity. For example; a child 11 years of age with no understanding of the nature of his act can be absolved from the liability but a child of 8 years who has enough maturity and understanding to of the consequences, can be held liable. The maturity or understanding of the child can be inferred from the circumstances involving the crime and is different in different cases. However, a few generalized factors that can demonstrate the child’s guilt are:
- The immediate actions of the child after the commission of the act.
- The conduct of the child during the investigation process.
- The nature of the act done by the child
- Other similar factors.
Therefore, to summarize:
In case the child is below 7 years of age, he will get a complete defense
- In case the child is above 7 but below 12, it has to be proved that he has not attained enough maturity to understand the nature or consequences of his act.
- In cases the child is above 12, he will be governed by the Juvenile Justice (Care and Protection Act, 2000) and no defense on the pretext of age will be entertained.
Comparative Analysis
Position In Canada
The Criminal Code of Canada, section 13, establishes the minimum age of criminal liability to be 12. The YCJA (Youth Criminal Justice Act) governs the application of criminal and law to those children who are 12 years old or older, but younger than 18 at the time of committing the offence. In certain circumstances, Youth aged 14 to 17 may be tried and/or sentenced as adults as described in the act. In certain special circumstances the youth might receive an adult sentence.[1]
Position In England and Wales
The minimum age of criminal responsibility in England and Wales is ten years old. Those below this age are considered doli incapax i.e. incapable of forming criminal intent.
A number of Acts, dating back to 1933, (Children and Young Persons Act 1933 (as amended by sec 16(1) Children and Young Persons Act 1963) provide for the system of juvenile justice in England and Wales. The juvenile justice system then functions in the form of a Youth Court, which hears cases of ten to eighteen-year-olds.[2]
Position in Ireland (Republic of Ireland)
In Ireland, the minimum age of criminal responsibility is 7. Such crimes are governed by the Children Act 2001. There is a presumption of doli incapax for the children aged 7 to 14. This can, however, be rebutted by proving beyond reasonable doubt that the child was capable of understanding the nature of his/her act.
The minimum age of criminal responsibility in Northern Ireland is 10 years old[3]
Position in Sri Lanka
Minimum age of criminal responsibility in Sri Lanka was set at eight years. However, it has been increased to 12. The judge has discretionary powers to hold a child aged 12 to 14 years, criminally accountable. Children above 12 years of age can be held accountable irrespective of their ability to understand the seriousness of the crime. Children between 16 and 18 can be treated as adults by the criminal justice system.[4]
Illustrations
Krishna Bhagwan v. State of Bihar[5]
In case of Krishna Bhagwan v. State of Bihar, Patna High Court upheld that if the accused of an offence during the trial, has attained the age of 7 years or at the time of decision the child has attained the age of 7 years can be convicted if he is able to understand the nature of the offence.
Marsh v. Loader[6]
A child was caught stealing a piece of wood from the premises of the defendant but was discharged on the basis that he was under 7 years of age.
Partap Singh v. State of Jharkhand[7]
In this case, the question of the date which was to be reckoned in determining the age of the child was brought to the court. The court held that the date of the commission of an offence was the relevant date to determine the age of the alleged offender and not the date on which the accused is brought before the court.
Hirelal Mallick v. State of Bihar[8]
In this case, a 12-year-old boy along with two other people was convicted of murdering a person. The High court convicted the child under section 326 of IPC based on the circumstances revolving around the crime. The 12-year-old had struck the neck of the deceased with a sword and ran away after the act. There was no evidence to suggest that he did not have the maturity or understanding of the consequences of his act. And therefore, the conviction under s326 of IPC was upheld.
Frequently Answered Questions
What is the minimum age of Criminal responsibility in India?
According to IPC, the age of criminal responsibility is at 12 years. An offence committed by a child under the age of 7 years is not punishable under IPC.[9] Also, an offence committed by a child above the age of 7 years but below the age of 12 years shall not be punishable if it seems that he does not possess sufficient maturity to understand the consequence of his actions.[10]
Why are children below the age of 7 absolved from criminal responsibility?
The children below the age of 7 are absolved from criminal responsibility because of the principle of doli incpax. Doli Incapax is a Latin term that means “incapable of doing harm”. This term has been used to describe a presumption of innocence for children in Criminal law in most countries.
The basis of this presumption lies in the theory of Criminal Responsibility. The theory has been built upon the theory that a person should be held criminally responsible only for acts he intends to commit.[11]
Edited by : J. Madonna Jephi
Approved & Published – Sakshi Raje
References:
[1] The minimum age of criminal responsibility in the Americas; retrieved on on 12/1/19 from https://www.crin.org/en/home/ages/Americas
[2] YOUNG OFFENDERS; retrieved on 12/1/19 from https://www.thesun.co.uk/news/6203484/age-criminal-responsibility-england-wales-scotland-how-old-jail/
[3] Children and the criminal justice system; retrieved on 12/1/19 from http://www.citizensinformation.ie/en/justice/children_and_young_offenders/children_and_the_criminal_justice_system_in_ireland.html
[4] Cabinet raises age of criminal responsibility from 8 to 12; retrieved on 12/1/19 from http://www.dailymirror.lk/article/Cabinet-raises-age-of-criminal-responsibility-from-to–118610.html.
[5] AIR 1989 Pat 217.
[6] (1863) 14 CBNS 535.
[7] (2005) 3 SCC 551.
[8] AIR 1977 SC 2236.
[9] Section 82, IPC, 1860.
Act of a child under seven years of age. — Nothing is an offence which is done by a child under seven years of age.
[10] Section 83, IPC, 1860.
Act of a child above seven and under twelve of immature understanding. — Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
[11] Doli Incapax: A Review; retrieved on 12/1/19 from https://competitiondigest.com/doli-incapax-review/.
