Section 82 says nothing is an offence which is done by a child under seven years of age and Section 83 says 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.
Law of exemption from criminal liability in the case of minors
These two sections lay down a rule which owing to its origin in the civil law, had long since become established in the criminal systems of all civilized countries. In English Common Law, a child below seven years of age cannot be guilty of any criminal offence whatever may be evidence as to its possessing a guilty state of mind in the ordinary course of nature.
A person of such age is absolutely incapable of distinguishing between right and wrong. He is absolutely doli incapax. Indian law on this point is the same. If a child is accused of an offence under the Code, proof of the fact that he was at the time below 7 years of age is ipso facto an answer to the prosecution.
The circumstances of a case may disclose such a degree of malice as to justify the maxim miltia supplet actatem (Malice supplied defect of years).
The privilege of a child aged between 10 to 14, is absolute under English law, while it is qualified in India. According to the English law an infant between the age of ten and fourteen years is presumed to be doli incapax.
But under this Code, if the accused is above seven years of age and under twelve, the incapacity to commit an offence only arises when the child has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct and such non-attainment would have apparently, to be specially pleaded and pursued, like the incapacity of a person who at the time of doing an act charged as an offence, was alleged to have been of unsound mind whether really the child in question possesses sufficient maturity of understanding is a matter to be inferred by the Court from the facts and circumstances of the case.
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.
A minor girl aged more than 12 years can be guilty of an offence so long as her case is not covered by Sections 82 and 83 of the Code. Any offence punishable under the Code including an offence punishable under Section 408 can be committed by a person more than 12 years of age. Criminal liability is quite distinct from civil liability. A person may be criminally liable even though he may not be civilly liable.
(i) A child of 9 years of age took a necklace valued at Rs. 2/8/- from another boy and immediately sold it to another for five annas, the child was discharged under this section, but the accused was convicted of receiving stolen property for the court considered convict displaying sufficient intelligence to hold him guilty.
(ii) The accused, a girl of 10 years of age, a servant of the complainant, picked up his button worth eight annas and gave it to her mother. She was convicted and sentenced to a month’s imprisonment. But the High Court quashed the conviction holding that there was no finding by the Magistrate that the accused had attained maturity of understanding sufficient to judge the nature of her act.
In Marsh v. Loader the defendant caught a child while stealing a piece of wood from his premises and gave into custody. Since the child was under the age of 7 years, he was discharged.
In case of Krishna Bhagwan v. State of Bihar, Patna High Court upheld that if a child who is accused of an offence during the trial, has attained the age of 7 years or at the time of decision the child has attained the age of 7 years can be convicted if he is able to understand the nature of the offence.
Burden of Proof:
The non-attainment of sufficient maturity of understanding would have to be specially pleaded and proved. The onus is on the person who claims and the benefit of the general exception to prove the circumstances which entitle him to exception.
In other words under Section 83 maturity of understanding is to be presumed in case of such children, unless the negative be proved by the defence; while under English law in the case of a child between ten to fourteen years, incapacity to commit the crime is to be presumed unless the contrary be proved by prosecution.