ACTS DONE BY CHILD UNDER THE INDIAN PENAL CODE
Any act or offence committed by a child is not the same as one which is committed by an adult due to the maturity of understanding that is expected from them.
The Indian Constitution has prescribed special provisions and privileges for children. Article 15(3) has empowered states to make special laws and provisions for women and children and, Clause (e) of Article 39 provides that the tender age of children is not abused. Clause (f) provides that children must be given ample opportunities that facilitate their development in a healthy and prosperous manner and in conditions of freedom and dignity and that youth be protected against exploitation and against moral and material abandonment.
In India, children below the age of seven years are completely exempted from any criminal liability and children between the age group of seven to twelve are given the benefit of doubt, according to their understanding in the situation. Acts done by children between the age group of twelve to eighteen are regulated by the Juvenile Justice (Care and Protection of Children) Act 2015.
Doctrine of Doli Incapax under Section 82 and Doli capax under Section 83 of the Indian Penal Code
Section 82 provides that nothing is an offence which is done by a child under seven years of age.
This section presumes that a child below the age of seven years is ‘doli incapax’ which means that the child is incapable of committing an offence and cannot be guilty of any offence. The presumption emanates from the recognition of the fact that the child lacks the necessary ability to understand the nature and consequences of the act committed by them and thereby, lacks the ability to form a mens rea. This presumption is conclusive. It is not rebuttable by providing proof that the child had the capacity of understanding the consequences of his act.
Section 83 provides 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 the nature and consequences of his conduct on that occasion.
This section presumes that a child above the age of seven years but below the age of twelve years is doli capax which means capable of committing an offence depending upon the majority of understanding of a child. This presumption is rebuttable. It is rebuttable by providing the proof of mischievous discretion of the child. The question relevant for determining child’s liability, therefore, is not on his age but of the degree of his maturity of understanding of nature and consequences of his conduct at the time of commission of an offence. Therefore, it becomes necessary for the defence to prove that the child was not only below the age of 12 years when he committed the offence in question but also had not attained sufficient maturity required to understand the nature and consequences of his conduct. The proof of attainment of sufficient maturity can be ascertained by a court on the consideration of all circumstances of the case.
CASE LAWS
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Umesh Chandra v. State of Rajasthan
In the case of Umesh Chandra v. State of Rajasthan (1982) 2 SCC 202, a three judge bench of the Supreme Court held that the date of commission of the offence is the correct date for the determination of the age of the offender (juvenile) who claims to be a child and not the date of production before the Court.
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Arnit Das v. State of Bihar
In the case of Arnit Das v. State of Bihar, (2000) 5 SCC 488, a two judge bench of the Supreme Court without taking the note of Umesh Chandra case, held that the date on which the accused is produced before the Court is the correct date for the determination of the age of the juvenile and not the date of commission of the offence. Thus, according to the decision, the decision of the Jharkhand High Court is supported.
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Pratap Singh v. the State of Jharkhand
In the case of Pratap Singh v. State of Jharkhand (2005) 3 SCC 551, the accused Pratap Singh was below the age of 16 years at the date when he committed the crime but he attended the age of 18 years on the date of production before the court. The Constitutional Bench of five judges of Supreme Court which in the backdrop of conflicting ratio of the Umesh Chandra case and the Arnit Das case was called upon to decide the correct law regarding the relevant date for determining the age of the alleged accused as juvenile offender. The Constitutional bench held that the correct date for the determination of the age of the juvenile is the date of the commission of the offence but not the date when he is produced before the Juvenile Board or the Court.
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Hiralal Mallick v. State of Bihar
In the case of Hiralal Mallick v. State of Bihar 1978 SCR (1) 301 , a child of twelve years along with his two elder brothers kills the deceased because of a fight that happened between the deceased and their family. They struck a sword on the throat of the deceased and fleas from the scene of crime. The Court held that the child was aware of his actions and consequences of his conduct. There was no proof which provides that the child did not have the maturity to understand the nature and grievousness of his actions and therefore, the Court convicted him under Section 326 of the Indian Penal Code.
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Ulla Mahapatra v King
In the case of Ulla Mahapatra v. King AIR 1950 Orissa 262, a child of eleven years of age, threatens the victim, saying that he would cut him into pieces while advancing towards him with a knife and he actually kills the victim. The Court held that it was fully evident by the conduct of the child that he was fully aware 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 the intention of the child of hurting the victim and therefore, Court found him guilty of the murder of the victim.