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
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
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. 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. 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, the burden of proving that the case
is within the General Exception of the Indian Penal Code is upon the person who
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.
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 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.
- The child must be between the age group of seven to twelve.
- The child must have not attained the maturity to understand the
consequence of his act.
- 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
In the case of Hirelal Mallick v. State of Bihar, 1977
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
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
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
In the case of Marimuthu, 1990
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. 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.
- United Nations Convention on Rights of the Child (UNCRC)
- The Juvenile Justice (Care and Protection of Children) Act 2015
- Indian Evidence Act, 1872
- Queen v. Luchini Agradanani
- Indian Penal Code, 1860.
- 1977 AIR 2236, 1978 SCR (1) 301
- AIR 1950 Ori 261
- AIR 1976 SC 1991, 1976 CriLJ 1545, (1976) 2 SCC 215
- 1 Ind Cas 807
- Krishna Bhagwan v. State of Bihar, Patna High Court AIR 1989 Pat 217,
1991 (39) BLJR 321, 1991 CriLJ 1283