PRESENTATION ON

PRESENTED TO- Dr. Pushpinder Kaur

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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
exempts the wrongful act of a child under seven years from criminal
liability, it is presumed that a child below the age of seven years is doli
incapax. It means that such a child is incapable of doing a criminal act
and cannot form the necessary mens rea to commit a crime. Even though
there may be the clearest evidence that the child below seven years causes
an actus reus with mens rea, he cannot be held guilty once it appears that
he, at the time he committed the act, was below the seven years. It is
absolute immunity.

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According to Section 82 of the IPC a child below 7 years of age gets a
complete defense from any kind of criminal liability. The reason for this
is the principle of ‘‘doli incapax’’, a child below the age of 7 cannot be
held guilty for any offence because of the assumption that he cannot
draw a distinction between ‘‘right’’ and ‘‘wrong’’. It works under the
assumption that a child below 7 lacks the ability to understand the nature
and consequences of his act and therefore cannot form the required mens
rea. This is a complete defense and cannot be taken away in any
circumstances. No sort of evidence to prove that the child could
understand the nature or consequences of his act will act as a rebuttal.
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Section 83 in The Indian Penal Code states that Act of a child above
seven and under twelve of immature understanding.—Nothing is an
offense 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 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.

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• An Act is done by a child above 7 years but under 12 years of age.
• The Child should not have attained sufficient maturity of
understanding to judge the nature and consequences of his conduct
• The incapacity must exist at the time of the commission of an act.
In other words, when a child is above the age of 7 but is still under the
age of 12 he enjoys ‘qualified immunity‘. This means if his actions
prove that had a sufficient understanding of the offence while he
committed it, he can be prosecuted. The test of sufficient knowledge
depends on individual cases.
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The test of qualified immunity is based on three factors:
• The nature of act done,
• Subsequent conduct of the offender,
• Demeanor and appearance of the offender in the court.
In Queen v. Lukhini Agradanini, a girl below 12 years of age was tried
for a charge of arson. The Jury found the child was aware of the nature of
her act, but she is not aware that she would be imprisoned in
consequence.
 In the case of Hirelal Mallick v. State of Bihar
• A 12-year-old boy along with two other people were convicted of murdering a
person. The 12-year-old had struck the neck of the deceased with a sword and ran
away after the act. There was no evidence to suggest that he did not have the
maturity or understanding of the consequences of his act. The High court convicted
the child under section 326 of IPC.
In the case of Partap Singh v. State of Jharkhand
• The question of the date which was to be reckoned in determining the age of the
child was brought to the court. The court held that the date of the commission of an
offence was the relevant date to determine the age of the alleged offender and not
the date on which the accused is brought before the court.

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In India, a child below 7 years is considered to be absolutely immune from
criminal liability whereas in England law the age is fixed at 10 years. In 1998 the
England Government abolished the principle of doli incapax. This was the
presumption in law that children aged under 14 did not know the difference
between right and wrong and were therefore not capable of committing an
offence. This presumption could be rebutted through the evidence for children
between the ages of 10 and 14 if the prosecution could satisfy the court that the
child knew that what the child was doing was seriously wrong, not “merely
naughty or malicious”. In India, the child between the age of 7 to 12 enjoys a
qualified immunity and is presumed to be in ‘doli incapax‘, therefore the burden
to rebut the presumption lies upon him by proving that he was of that age group.
There is no such rule where the child’s parents would held liable for
their child’s offences. However, in some cases, it require very specific
conditions to be met, such as instigating or abetting of the child & an
awareness of the child’s attempt to do (allegedly) something to the
victim then only the parent’s may be liable.

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It may be pointed that Indian Law relating to infancy suffer from one lacuna, as
section 82 deals with an act done by a child below 7 years and Section 83 deals
with the child above 7 and below 12 years of age, both the sections make no
provisions if that child is exact 7 years old.
It is submitted that such an infant should be dealt with under section 82 of the
Indian Penal Code because penal statutes are interpreted strictly. And no
judges are likely to hold a child of that age group criminally responsible
without satisfying himself that the child has sufficient mental capability of
understanding the nature and consequence of the Act.
This Principle is based on ‘quia malitia supplet actatem‘ which means ‘malice
makes up for age’.

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No child is born with an ill intent. It takes a child at the most seven years of age to
understand their emotions and their environment. Hence, it is important to
preserve their innocence. That is why Section 82, IPC provides children below the
age of seven, Absolute Immunity. After the age of seven, their growth and
development takes place at a faster pace. Every child attains a different level of
understanding and maturity at a different age. Hence, Section 83, 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. Also, it is in the best interest of children to have a separate legal
system than from the adults.

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PRESENTED BY- Srishti Sharma
CLASS- B.A. LL.B. (Hons.) 5th Semester
SECTION- C
ROLL NO.- 168/19