For any crime to exist, it needs to consist of both; mens rea i.e. guilty mind and actus rea i.e. guilty act. A crime will not be complete if either one of the two essential components are missing as alone thinking of committing a crime is not a wrongful act and only committing a wrongful act lacks intention and knowledge. Chapter IV of the Indian Penal Code, 1860 provides for the absence or lack of mens rea, hence acts committed without the guilty mind. These acts so given are exceptions to criminal wrongs provided in this code.
General exceptions can be further classified into two types of defences; excusable and
- Excusable Defences
Mistake of fact (S. 76 & 79)
Accident (S. 80)
Infancy (S. 82 &83)
Insanity (S. 84)
Intoxication (S. 85 & 86)
- Justified Defences
Judicial Acts (S. 77 & 78)
Necessity (S. 81)
Consent (S. 87-89 & 92)
Communication (S. 93)
Trifle Acts (S. 95)
Duress (S. 94)
Private Defence (S. 96- 106)
Infancy under Chapter IV
The defence of infancy is provided under sections 82 and 83 of the Indian Penal Code.S. 82 provides for all acts to not be an offence which are done by achild of under seven of age while S. 83 specifically talksabout acts which are not an offence and done by a child above seven years or age but below twelve years of agewho is of immature understanding or has not yet attained sufficient maturity.
The main reason that infancy is a defence under the IPC is due to the defect or lack of understanding a child has. Children below a certain age of maturity and understanding are known as doli capax.
Case: Marsh v. Loader1
In this case a child of below the age of 7 stole a piece of wood, he was not charged for the offence.
The level of maturity is a significant component of this exception. There can be said to be absolute immunity for a child below the age of 7 while in certain cases it can depend on a variety of circumstances.
Illustration: If a boy of 5 years picks up a sharp object such as a knife thinking of it to be a toy and injures someone in that process, he will not be held liable.
In the Krishna2 case, the child stole a neckless and sold it further. It was held that the child had sufficient mature understanding of the nature of his act and was held guilty.
Burden of Proof
The burden of proof to avail this exception under the IPC lies on the accused or the defendant. The accused needs to prove there existed no mens rea; in this case, infancy.S.105 of the Indian Evidence Act further provides a foundation and states that if any person who wants to avail the exceptions underChapter IV, they must prove that their case falls within the ambit.
Frequently Asked Questions
1. What is the test of immunity under section 83?
The test of immunity under S.83 is:
- Nature of the act
- Subsequent conduct of the offender
- Appearance and demeanour of the offender in the court
2. What does the term doliincapax imply?
The term doli incapax signifies to the incapability of understanding the nature of the act committed and its consequences.
3. What is the difference between S.82 and S.83?
The main difference between S.82 and S.83 is that S.82 provides for acts committed by a child under the age of 7 whereas S.83 states for any of a child above 7 but below 12 years of age who does not have mature understanding.
4. Does the degree of malice have any significance?
Yes, the degree of malice holds a significance in S.83 as a crime of a higher degree of malice implies to the understanding of the crime and its consequences.
5. Does knowing the consequences to an act imply maturity of understanding?
Yes, if a child above 7 but below 12 years of age understands the consequences of the act committed then it will imply towards the maturity to understand. In the case of Ulla Mahapatra,3 a boy of 11 years picked up a knife and first threatened to cut the deceased and further killed him. It was held that the boy knew what he intended to do.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
1. Marsh v. Loader, (1863) 14 CBNS 535
2. Krishna, (1883) 6 Mad. 373
3. Ulla Mahapatra, (1950) Cut. 293
4. Prof. S.N. Misra, Indian Penal Code, 167-179, (20 th ED. 2016) Central Law Publications, Allahabad