Criminal liability occurs when a person commits a criminal act, and the
Indian Penal Code (IPC), India's official criminal code, addresses all
substantive areas of criminal law. However, there are certain general exclusions
under Chapter 4 of the Indian Penal Code covered by S.76-S.106, and infancy is
one of the general exceptions covered by S82 and S83 of 'the Indian Penal
The Indian evidence law expressly states that when broad exceptions under
Chapter 4 of the Indian criminal code are used, the accused bears the burden of
proof. The phrase "Actus Reus Non Facit Reum Nisi Mens Sit Rea"
standard legal test which refers in general, someone who behaved without mental
culpability is not criminally responsible.
Infancy as a defense
Due to the perpetrator's age, infancy is a legal defense from being held
accountable for a crime. It claims that the offender is exempt from criminal
prosecution because he is too young to commit a crime. The infancy defense is
based on the notion that young offenders are too immature to have criminal
A person under the age of 18 is considered a child in India, and the defense of
infancy under criminal responsibility can be raised under Section 82 and 83 of
'Indian Penal Code'. The defense of infancy was presented for the first time
before the Supreme Court in Gopinath Ghosh v. State of West Bengal
Criteria for distinguishing liability of a child in India:
- S.82 of the IPC grants absolute immunity to children under the age of
- Children aged seven to twelve have qualified immunity under S.83 of the
IPC, with the mental ability of the child being the determining factor.
- The Juvenile Justice (Care and Protection of Children) Act of 2015
governs children aged twelve to eighteen.3
The maximum punishment for those aged 12 to 15 is one year in jail, while the
maximum sentence for those aged 16 to 17 is two years in prison. Following the
incidence of gang rape in Delhi, if a child over the age of 16 commits a serious
crime, he would be treated as an adult during the trial.
Provisions under Indian Penal Code:
Section 82 of IPC,1860:
This section states unequivocally that any offence committed by a child under
the age of seven is not punishable by law. Based on the concept of Doli Incapax,
which means incapable of committing any crime, it is assumed that children under
the age of seven are unable to have the mens rea to grasp the nature and
consequences of his acts; to commit any crime. He cannot tell the difference
between what is right and what is wrong.
The burden of proof is on the defendant seeking a defense under section 82 of
the IPC,1860, and once proven, the defendant is allowed absolute exception,
which means that no evidence can show the kid guilty.
For example, In the case of Marsh v. Loader,18634,
The defendant caught a kid in the process of taking a stick from his area. It
was determined that because the kid was under the age of seven, he was unable to
grasp the implications of his actions. As a result, he was found not guilty.
Section 82 of IPC, 1860:
This section states that any offence committed by a child above the age of seven
and under twelve would be subject to the child's mental understanding and
consequences of his conduct. developed on the idea of Doli capax meaning capable
of a wrongdoing, holds if the accused possesses the mental capacity to
understand his actions. The child gets qualified immunity.
Under this exemption, the burden of evidence falls on the kid to establish that
he was between the ages of seven and twelve at the time of the conduct and was
uninformed and incapable of the consequences of the act, whereas the prosecution
must prove that a reasonable metal understanding was present with actus reus.
The child's mental comprehension essential requirement under S.83 of the IPC.
For example, In the case of Abdul Satar vs. The Crown 5,
two accused youngsters, both under the age of twelve, broke through the locks of
two stores and walked inside with the purpose to steal. They used the defense of
a lack of maturity. The court ruled that the accused's behavior of opening the
shop's locks demonstrates his maturity level.
The famous case of Hiralal Mallick vs State of Bihar,19776Facts of the case
A 12-year-old kid and his two elder brothers murder the deceased after a quarrel
between the deceased and their father. They slashed the deceased's throat with a
sword and flew from the murder site. The three were charged with homicide as a
group, which resulted in a unanimous conviction under S302 read with S34 of the
"Indian Penal Code". The case was eventually appealed to the Supreme Court.
- Whether if the accused can claim the exception under S.83 IPC?
- Whether if the actus rea of a child can account for mens rea?
"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
- At the time of the crime, the accused was twelve years old. According to
S.83 IPC, the defense of infancy can be argued and can take the exception
subject to his mental ability.
- According to the facts of the case, two people offered the kid a knife
and encouraged him to consider murder. He was Doli Incapax to intent to
conduct any crime, thus he was not mature enough to realize the act he was
committing due to his age.
- Furthermore, the maximum penalty was just one year, while the Hon'ble
trial court sentenced the youngster to four years while ignoring the fact
that actus rea alone cannot show malafide intent. There was unambiguous
evidence that the kid was duped into committing the crime.
The Supreme Court of India held that a kid's actus rea cannot be used to
establish that the kid was old enough to understand his conduct. As a result,
quashing the high court's judgement, Supreme Court of India held that the
general exception of S.83 may be claimed since the kid was twelve years old and
was not mature enough to understand because he was influenced by adults.
In India, infant defense is still in its preliminary stages. Even though the
courts have taken a progressive position. There have been instances of severe
crimes that have compelled the judiciary and even the legislature to take
stringent action, such as the juvenile amendment in 2015. It will be interesting
to observe how far the practical application of infancy and criminal liability
can responsibly progress.
- THE Indian penal code, A Textbook of Medical Jurisprudence and
Toxicology l-lxiii (2013).
- Gopinath Ghosh v. State of West Bengal 1984 AIR 237, 1984 SCR (1) 803
- The juvenile JUSTICE (care and protection of Children) Amendment Bill,
2021, PRS Legislative Research (2021), https://prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-amendment-bill-2021
(Last visited Aug 25, 2021).
- Marsh v. Loader, (1863) 14 CBNS 535
- Abdul Sattar v Crown AIR (1949) Lah 51
- Heera Lal v. State of Bihar,1978 SCR (1) 301
STATUE REFERRED TO:
- The Indian Penal Code,1860 § 82
- The Indian Penal Code,1860 § 83