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Infancy and Criminal Liability: A comparative Study

There is no proper definition of crime, but we can understand that it is an unlawful act that is forbidden by law and punishable by the state. A violation of public rights and duties that affects the society as a whole such as murder, rape, theft, robbery etc. It is generally done against a person, property or the state. Criminal law is a body that defines criminal offences. It is a body of law which deals with imposing punishments for the crimes committed.

Criminal law regulates society, protects the individual and the state and ensure the survival of its citizens. It is the law that punishes the offender when a threat is brought to an individual or the society as a whole. When a person commits a crime, it is deemed that a crime has been committed against society. This is because there is a possibility of such crimes taking place again. Criminal law aims to prevent such crimes from happening in society. Such offenders are punished to make them realize the gravity of the offence they committed and to neutralize the effect of the wrong act on society. They are punished to set an example on the society for them to understand the grievousness of the action and to ensure such offences don�t take place in society again. To prevent such crimes from happening in the society which endangers the human race.

There are two essential elements for an act to become a crime:
Actus Reus And Mens Rea. Actus Reus is the guilty act whereas Mens rea is the guilty mind. It includes motive, intension or knowledge of the action. When these elements are combined, we say a crime has taken place. Only if an action takes place without the intension or if there is just an intension but no action, then it is not a crime.

Criminal law has been built on the theory that one should be punished only for the guilty acts he intended to do. This is based on the legal maxim actus non facit reus nisi mens sit rea which means that an act itself does not make the defendant guilty unless he had the intension to.

Children are generally regarded as humans who are incapable to commit any crime. A child means every human being below the age of 18 years unless, under the law applicable to the child, the majority is attained earlier.[1] But different countries have the liberty to set an age limit to determine a child.

In India, a person below the age of 18 is considered as a child, this is because they don�t have the mental capacity of an adult.[2] Hence, a different legal body regulates their offences, the Juvenile Justice (care and protection) Act 2000. A child is an innocent person. He has not attained an age where he can differentiate between what is good or evil. He doesn�t have the ability to form a mens rea that is mandatory for an act to categorized as a crime. Yet, there is a different age bar set, to differentiate the maturity level of different age group and their level of understanding.

Children up to the age of seven are given absolute immunity. Children between the age group of seven to twelve are given the benefit of doubt, according to their understanding in the situation. Offences done by children between the age group of twelve to eighteen are regulated by the Juvenile Justice (Care and Protection of Children) Act 2015.

The maximum sentence for the age between 12 to 15 is a maximum of one year of imprisonment and the maximum sentence for the age between 16 and 17 is a maximum of two years of imprisonment. After the incident of Delhi gang rape, if a child above the age of 16 commits a heinous crime he will be considered as an adult during the trial.

Chapter IV of the Indian Penal Code states the general exceptions under criminal offences and gives immunity for the offences committed by a child. According to section 105 of the Indian Evidence Act[3], the burden of proving that the case is within the General Exception of the Indian Penal Code is upon the person who was accused.

Section 82 of the Indian Penal Code states that Nothing is an offence which is done by a child under seven years of age.
This section is developed on the idea of �doli incapax�, a Latin phrase that means incapable of doing any harm. This is because children who have committed a and who are under the age group of 7 years are unable to have the mens rea to understand the nature and consequence of his actions; to commit any crime. He cannot distinguish between what is right and what is wrong.

There is only one important element to this section, that is that the child must be below the age of seven. The burden of proof lies on the party who claims the exception, the defendant. This is an absolute exception, no evidence can prove the child guilty. In a case, it was held that merely he evidence of age would be conclusive proof of the innocence of the accused child and by that fact, itself be free of any charges.[4]

For example, X a boy of age 6 takes a knife and stabs the victim, the boy will not be liable, because he does not have the maturity to have the mental ability to understand the nature of his actions.

In the case of Marsh v. Loader, 1863
The defendant caught a child in the act of stealing a stick from his territory.
It was ruled that since the child who had not attained the age of seven, the child was unable to understand the consequences of his action. Hence, he was declared not guilty.

Section 83 of the Indian Penal Code[5] states that:
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.

This section is developed on the idea of doli capax a Latin phrase that means capable of a wrongdoing. This exception can only be claimed after fulfilling the essential elements.
  1. The child must be between the age group of seven to twelve.
  2. The child must have not attained the maturity to understand the consequence of his act.
  3. The incapacity to understand must be present during the act.
It has to be proven that the accused is under the age of 12 and does not have sufficient maturity to under the consequences of his actions. If there is no proof or circumstance that is brought under the notice of the court, then it is presumed that the accused child intended to commit the crime.

The Latin maxim Malitia Supplet Aetatem means malice supplies the age. It means the mental age when they start to understand the consequences of their actions. If they are at the age of having sufficient maturity to under their actions then they are liable.

This section gives a qualified immunity. The burden of proof lies on the child to prove that he was between the age of seven and twelve and that during the act, he was unaware of the consequences. The prosecution needs to prove that the child committed the act with full awareness of its consequences. That a reasonable mens rea was present with actus reus. If a child of age 8 committed theft and was aware his action would lead to consequences, then he is liable. Similarly, if a child of age 11 commits a theft but was unaware of the consequence of his actions he is not liable.

The liability of the child depends on his understand and not his age. If a child is mature to understand the consequences that he did a wrong act, then he is liable for that offence. It depends on his mental capacity to understand the grievousness of his act. The degree of malice also plays a significant importance in this section, because a higher degree of malice requires a higher understanding of the consequences of one's actions. This section aims to contemplate that the child should not know the nature and consequences of his actions.

In the case of Hirelal Mallick v. State of Bihar, 1977[6]
A boy of 12 years along with his two elder brothers, murders the deceased because of a fight that happened between the deceased and their father. They struck a sword at the throat of the deceased and fleas from the crime scene.

It was ruled that the child was aware of his actions and the consequences. There was no evidence proving that the child did not have the maturity to understand the grievousness of his actions.

Hence, he was convicted under Section 326 of the Indian Penal Code.

In the case of Ulla Mahapatra v King, 1950[7]
An 11-year-old boy threatens the victim, saying that he�ll cut him into pieces while advancing towards him with a knife. Later, the child kills the victim.
It was held that from the boy�s conduct, he was aware that he would inflict hurt to the victim by giving cuts with the knife. He was aware of the meaning of his words and that it was a threat and there was a weapon that fulfils the elements of assault. Thus, this proves that he had the intension of hurting the victim. He was aware of his actions and the consequences of his action. Hence, it was held that he was liable for murder.

In the case of Abdul Sattar v. The Crown, 1947
Some boys of 12 years broke open the locks of a shop and stole some goods.
It was held that the accused were aware of their actions. The nature of break opening the shop proved that they had the intension of stealing the goods.
Hence, they were found guilty.

In the case of Kakoo vs The State Of Himachal Pradesh[8]
The accused was a 13-year-old boy who committed rape on a 2-year-old girl child.
It was held that the accused was fully aware of his actions. Hence, he was sentenced to one-year rigorous punishment along with a fine of Rs. 2000 which was paid to the victim�s mother. The sentence was brought down considering section 83, and that he cannot be treated as an adult, thus, cannot be punished like one.

In the case of Marimuthu, 1990[9]
A girl of 10 years picked a silver button and gave it to her mother.
Here, the court held that she was not liable for theft as the factors were not enough to prove that there was an intension to steal

If a child is at the age of seven when he committed the crime, it would depend on the nature of the crime and his maturity to understand his actions. If he meets all the elements then he can be convicted or else he can claim the defence of section 82 and section 83[10]. This is based on the principle of quia militia actatem which means �malice makes up for the age�.

If an adult engages a child below 12 years to commit a crime, he�ll as liable as though he had attempted the crime himself. He�s an abettor. For example, X an adult leaves a loaded gun on the table with Y, a child. Y accidentally fired it at victim A, then Y will not be held liable but X will be liable for negligence.

When a child is born, it is said that they have the knowledge to understand their actions. Hence, it is important to preserve their innocence. No one is born with an ill intent. It takes a child at the most seven years of age to understand their emotions and their environment. That is why children below the age of seven are given an absolute immunity. After the age of seven, their growth and development take place at a faster pace. Every child has a different level of understanding and maturity at a different age. This is why section 83 of the IPC focuses on the maturity and understanding level of the child than its age. Hence, they have qualified immunity.

In India, it is easy to prove that the accused child lacks the maturity to understand the grievousness of his actions. That there was no intent in their actions and they cannot be considered as an adult under any circumstance. Because it is in the best interest of the child to have a separate legal system and to separate them from adults for the benefit of children.

  1. United Nations Convention on Rights of the Child (UNCRC)
  2. The Juvenile Justice (Care and Protection of Children) Act 2015
  3. Indian Evidence Act, 1872
  4. Queen v. Luchini Agradanani
  5. Indian Penal Code, 1860.
  6. 1977 AIR 2236, 1978 SCR (1) 301
  7. AIR 1950 Ori 261
  8. AIR 1976 SC 1991, 1976 CriLJ 1545, (1976) 2 SCC 215
  9. 1 Ind Cas 807
  10. Krishna Bhagwan v. State of Bihar, Patna High Court AIR 1989 Pat 217, 1991 (39) BLJR 321, 1991 CriLJ 1283

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