INFANCY AS A DEFENCE IN IPC

Section 82 IPC presumes that a child below seven years is ‘doli incapax’; he is incapable of committing a crime & cannot be guilty of any offence. The section & Act presumes that he cant distinguish ‘right from wrong’. This presumption emanates from the recognition of the fact that he lacks the adequate mental ability to understand the nature & consequence of his act. On the other hand, section 83 IPC presumes that a child above seven years but below twelve years of age is ‘doli capax’; capable of committing a crime depending upon the maturity of understanding. It can be rebutted only by proof of ‘mischievous discretion’ of the child. Liability of a child depends upon the maturity of understanding of the nature & consequence of his conduct and not on his age. Section 83 also stipulates that when a child accused of an offence is above seven & under twelve years, the court has to ascertain if the child has sufficient maturity of understanding so as to understand the nature & consequence of his act.

The burden of proof to avail this exception under the IPC lies on the accused or the defendant. The accused needs to prove there existed no mens rea[1]. In the case of Marsh v. Loader[2], a child of below the age of 7 stole a piece of wood, he was not charged for the offence. Section S.105 of the Indian Evidence Act further provides a foundation and states that if any person who wants to avail the exceptions under Chapter IV, they must prove that their case falls within the ambit[3]. In the case of Ulla Mahapatra[4], a boy of 11 years picked up a knife and first threatened to cut the deceased and further killed him.

It was held that the boy knew what he intended to do. The Juvenile Justice ( care & protection of child) Act, 2000, does not provide absolute immunity from criminal liability for offences committed by juveniles as in section 82 & 83. The Act provides that no child who has committed an offence, be sentenced to death or imprisonment for life or committed to prison in default of payment of fine or in default of furnishing security.

In Bhoop Ram vs State of Uttar Pradesh, 1989, the court was dealing with a situation where there was a conflict in respect of the age between the school certificate & medical certificate. According to the school certificate, the age of the accused on the date of commission of the offence was below sixteen years , but, the medical certificate certified that the accused had completed sixteen years. The court held that a medical certificate is based on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. According to the English law an infant between the age of ten and fourteen years is presumed to be doli incapax. In England it is a presumption of law regarding the sexual offences that a boy below fourteen years cannot be guilty of rape. In India, however, the presumption of English law has no application and therefore boy of twelve years may be convicted of attempt to commit rape[5].

Infancy is a criminal defence, descended from British common law, that attempts to disprove liability for a crime by reason of the defendant’s very young age. Under the assumption that minors are incapable of forming criminal intention the same manner as adults, the common law infancy defense traditionally bars the prosecution of children under the age of seven for crimes and presumptively precludes the prosecution of children aged seven to fourteen years under the adult criminal law system[6]. For any crime to exist, it needs to consist of both; mens rea i.e. guilty mind and actus rea i.e. guilty act. A crime will not be complete if either one of the two essential components are missing as alone thinking of committing a crime is not a wrongful act and only committing a wrongful act lacks intention and knowledge[7].


[1] General Exceptions: Infancy – Law Times Journal, visited on 16-08-2021 at 11:21hrs.

[2] (1863) 14 CBNS 535.

[3] General Exceptions: Infancy – Law Times Journal, visited on 16-08-2021 at 11:21hrs.

[4] (1950) Cut. 293.

[5] Pragati Ghosh-Acts of an infant under section 82&83 of IPC, Acts of Infant under Sections 82 and 83 of IPC – Explained! (shareyouressays.com), visited on 16-08-2021 at 12:01hrs.

[6] The Infancy Defense – Criminal Defense (upcounsel.com), visited on 16-08-2021 at 12:19hrs.

[7] General Exceptions: Infancy – Law Times Journal, visited on 16-08-2021 at 12:27hrs.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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