Section 82 and 83 of the IPC confer immunity from criminal liability on child offenders. This immunity is based on the principle of juvenile justice.
While section 82 provides for the immunity to children under seven years of age, section 83 is in regard to children above seven years of age and under twelve.
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.
Ingredients of s82 & s83
- Act of child under seven years of age
- Act of child above seven but below 12 years of age
- Maturity of understanding
Act of child under seven years of age
Section 82 operates on the assumption that a child below seven years is dolix incapax i.e. he is incapable of committing a crime and cannot be held guilty of any offence. It is presumed that he cannot distinguish ‘right’ from ‘wrong’. This is because a child below seven years of age lacks the adequate mental ability to understand the nature and consequences of his act and thus cannot form mens rea. This presumption, unlike the one in s83, is conclusive and it cannot be rebutted by any sort of evidence that the child had the capacity to understand the consequences of his act. Thus section 82 completely absolves a child below seven years of age from criminal liability.
Act of child above seven but below twelve years of age
Section 83 presumes that a child above 7 but below 12 years of age is dolix capax i.e. capable of committing a crime depending upon his maturity of understanding. However this presumption is rebuttable. The prosecution has to prove beyond reasonable doubt that the element of both actus reus and mens rea were present and that the child knew that his conduct was not merely mischievous but wrong. In these cases, the child’s liability depends upon his maturity of understanding of the consequences of his act and not on his age.
Therefore, the defense has to prove –
- The child was below 12 years of age
- The child had not attained the sufficient maturity to understand the nature and consequences of his act.
If both of these are not prove, the Court presumes that the child actually intended to do the act.
Beyond the age of 12, there is no immunity from criminal liability on the pretext of age even if the person had not developed the maturity and understanding. The treatment of all juveniles i.e. persons up to the age of 18 is governed by the Juvenile Justice (Care and Protection of Children) Act, 2000.
Maturity of understanding
As mentioned above, when the child in question is above 7 but below 12 years of age, his maturity of understanding becomes vital under section 83. Maturity of understanding implies the maturity required to understand the nature and consequences of his conduct. The consequences mentioned here are not the penal consequences but the natural consequences which result from his act. Thus the judge has to conduct an enquiry and decide whether the child had attained sufficient understanding or not. The proof of attainment of this understanding can be checked by considering all the circumstances of the case. It can be inferred from –
- Nature of the act
- His immediate actions after commission of the act
- His conduct during the investigation process
- Other allied factors
1. Hiralal Mallick v State of Bihar
The accused was of 12 years or so when he, along with his two elder brothers, used a sharp sword in killing a person. No evidence either of his age or maturity was presented by the defense and thus it was held that he committed an offence under section 326, IPC.
2. Ulla Mahapatra v The King
The accused was of the age of 12 years. He was getting palm fruits plucked from a tree on his land. There was one boy cutting the fruits while two other boys helped the accused in gathering and carrying the fruits to his cowshed. The deceased boy arrived at this scene with his friend and picked up a fruit from the ground. Ulla, the accused, protested and demanded its price but the deceased instead threw the fruit and threatened Ulla that he would cut him in pieces if he ever came to pluck fruits near his land. Ulla retaliated by saying that he would cut the deceased instead and proceeded to strike him with a kathi. The deceased died on the spot.
It was held that Ulla’s entire actions- from fighting with the deceased and threatening him to answering the questions in the investigation clearly indicated that Ulla had intention and he was aware of the nature and consequences of his act (i.e. he has sufficient maturity of understanding).
3. Emperor v Wali Mohd.
Two boys aged five and eight years were charged for throwing stones at a moving train under the Railway Act. It was held that even though they were charged under some other Act, the protection provided by section 82 and section 83 of IPC would still be available to them.
4. Gopinath Ghosh v State of West Bengal
The accused along with two others was convicted and sentenced for life imprisonment for a murder. This is the first case in which the plea of infancy was raised and this plea was allowed and hence the sentence of life imprisonment was set aside.
5. Marsh v Loader
The accused was a child aged less thann7 years. He was caught by the defendant while stealing a piece of wood from his premises. It was held that since the accused was below 7 years of age, he was totally immune from any criminal liability.
 1977 Cr LJ 1921 : AIR 1977 SC 2236
 AIR 1950 Ori 261
 AIR 1936 (Sind) 185
 AIR 1984 SC 237