A child can commit no wrong

(i) if he is below 7 years of age as he is at such age presumed to be not endowed with
a sufficient maturity of understanding to be able to distinguish right from wrong,
or
(ii) if he is above 7 and below 12 but too weak in intellect to judge what is right or
wrong. The principle of the law may be expressed in tabular form as follows:

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.

Illustrations:
(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.
Apart from the various acts concerning children, The Indian Penal Code (IPC) also has a list
of offences against children. According to the sections 82 and 83 of the IPC a child who
commits a crime and is below the age of seven is not considered to have committed a crime.
A child who is between the ages of seven and twelve and is deemed to have immature
understanding about the consequences of his/her actions is also considered incapable of
committing a crime.

Section 315 and 316 discusses the offence of foeticide and infanticide. If a person commits an
act with the intention of preventing the child from being born alive or an act that results in the
death of the child after birth, that person is committing foeticide/infanticide as long as they do
not do it in the interest of the mother's health or life. If a person does an act that amounts to
culpable death which results in the quick death of an unborn child, he will be charged with
culpable homicide. Section 305 states that it is a crime for any person to abet the suicide of a
child, i.e. a person who has not completed eighteen years of age.

Section 317 states that is it a crime against children, if their mother or father expose or leave
a child in a place with the intention of abandonment. This does not prevent the law from
pursuing further if the abandonment results in the death of the child. The parents would then
be charged with culpable homicide or murder.

There are a number of sections in the IPC that discuss kidnapping and abduction. Section 360
states that kidnapping from India is the defined as the conveyance of a person beyond the
borders of India without their consent. 361 states that if a male minor of not yet sixteen and
female minor of not yet eighteen is taken from their lawful guardians without their consent it
is termed kidnapping from lawful guardianship. Section 362 defines abduction as compelling,
forcing or deceitfully inducing a person from a place. Section 363-A states, it is a crime to
kidnap or maim a minor for the purpose or employment of begging. If a person if found
employing a minor for begging, and that person is not the legal guardian of the child, it is
assumed that the child has been kidnapped for the purpose of employment in begging.
Section 364 states that any person who kidnaps another for the purpose for murdering or
disposing of in a way that will lead to murder is punishable by law. Section 364-A defines
ransom kidnapping as any person who kidnaps another to threatens to harm or kill that person
in an attempt to get the government, or any other foreign or state organisation to do or not do
any act. Section 365 discusses kidnapping to secretly or wrongfully confine someone. Section
366 states it is a crime to force or compel or abuse a woman to leave a place in order to force
her to marry or seduce or illicit sexual intercourse from her by the kidnapper or another
person. 366A specially outlines such a crime being committed against a minor girl who has
not attained eighteen years of age. Section 367 states it is a crime to kidnap a person in order
to cause them grievous hurt, place them in slavery, or subject them to the unnatural lust of a
person. Section 369 is a specific crime of kidnapping a child under 10 years of age in order to
steal from them.

Sexual offences against children are also covered in the IPC. Section 372 discusses the
selling of a child (below the age of eighteen) for the purpose of prostitution or to illicit
intercourse with any person, or knowing that it is likely that the child is being sold for such a
purpose. Section 372 states it is a crime to buy a child for the purpose of prostitution or to
illicit sex from any person.

Section 376 discusses the offence of rape. Under this section a man who rapes his wife, who
is not below twelve years old is given a lesser punishment. The section also discusses special
circumstances of rape such as rape committed by a civil servant or police man, rape of a
pregnant woman, gang rape or rape of a child below the age of twelve.
Section 83 of Indian Penal Code – Act of a child above seven and under twelve of immature
understanding.

—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.

Section 82 of Indian Penal Code – Act of a child under seven years of age.

—Nothing is an offence which is done by a child under seven years of age.

Section 81 of Indian Penal Code – Act likely to cause harm, but done without criminal
intent, and to prevent other harm.

—Nothing is an offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to cause harm, and in good
faith for the purpose of preventing or avoiding other harm to person or property.
Explanation.—It is question of fact in such a case whether the harm to be prevented or
avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act
with the knowledge that it was likely to cause harm. Illustrations

(1) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part,
finds himself in such a position that, before he can stop his vessel, he must inevitably run
down to boat B, with twenty or thirty passengers on board, unless he changes the course of
his vessel, and that, by changing his course, he must incur risk of running down a boat C with
only two passengers on board, which he may possibly clear. Here, if A alters his course
without any intention to run down the boat C and in good faith for the purpose of avoiding
the danger to the passengers in the boat B, he is not guilty of an offence, though he may run
down the boat C by doing an act which he knew was likely to cause that effect, if it be found
as a matter of fact that the danger which he intended to avoid was such as to excuse him in
incurring the risk of running down the boat C.
(2) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading.
He does this with the intention in good faith of saving human life or property. Here, if it be
found that the harm to be prevented was of such a nature and so imminent as to excuse A’s
act. A is not guilty of the offence.
The trial of the juvenile, who on Saturday was found to be involved in the gang rape and
murder of a 23-year-old woman in New Delhi in December, has brought the juvenile justice
system in India under the spotlight. The teenager was 17 at the time of his arrest.
Trials of those aged under 18 fall into a special judicial area in India.

They are handled by Juvenile Justice Boards, or juvenile courts, which are supposed to
provide care and guidance to the juvenile offenders during their hearing and detention.

The emphasis of juvenile detention is not supposed to be on punishment but on rehabilitation.

Under the Juvenile Justice (Care and Protection of Children) Act 2000 the maximum
sentence for a juvenile who has broken the law is three years in a protective home, no matter
how serious the crime. There is also provision for bail. The custodial term usually begins
from the date of the juvenile board’s final order in a case. But time spent awaiting a decision
can be counted toward that term.
The law defines a “juvenile or child’” as a person who has not completed their 18th year of
age. In 2000, India raised the juvenile age to 18 as part of its obligation under the United
Nations Convention on the Rights of the Child, which it signed in 1992.
There were calls from some in India to reduce the upper age limit for juveniles from 18 to 16,
in light of the Delhi gang-rape case in which a 17-year-old was accused of involvement.
Campaigners for the reduction, including many protestors who thronged the streets in the
days following the Dec.16 incident, argued that the maximum three-year sentence would be
too lenient to fit the crimes in this case.

However child rights activists said that changing this section of the law in response to a
public outcry over a single case, would be a regressive step.
A government-established committee headed by Justice Verma, a retired Supreme Court
justice, was asked to look at the issue in its report recommending how to crack down on
sexual assault and harassment and ensure victims get speedy justice. It said that the juvenile
age bracket should be maintained to comply with the UN Convention.
In July, the Supreme Court dismissed eight petitions brought by the public asking them to
rule that crimes of rape and murder committed by juveniles should be tried and punished
under adult laws and that the upper age limit for juveniles be lowered to 16. The three-judge
bench said in its order that “there are, of course, exceptions where a child in the age group of
16 to 18 may have developed criminal propensities, which would make it virtually impossible
for him or her to be reintegrated into mainstream society, but such examples are not of such
proportions as to warrant any change in thinking.”
But a subsequent petition – currently being considered by the top court– submitted by
politician Subramanian Swamy, asks judges to consider the mental and intellectual maturity
of the defendant instead of his or her age in cases where a young person is accused of
involvement in a particularly serious crime.
The Verma committee also recommended in its report that all juvenile homes be placed under
the legal guardianship of the High Court and a panel of judges appointed to carry out spot
inspections of the facilities to ensure children there are safe and well.

It said that it was the duty of the state to provide free education up to undergraduate level for
all children in conflict with the law.

According to the website of the Delhi Police’s juvenile justice unit, there are 27 shelter
homes in the city, including three observation homes — where juveniles are generally kept
during proceedings of a case against them. There is one special home run by a non-
governmental organization that caters to juveniles of up to 18 years.

Crimes committed by juveniles constituted 1.2% of total crimes reported to police in 2012,
according to the latest National Crime Records Bureau data. Juvenile involvement in overall
crimes was static at 1% during 2002 to 2005, increasing marginally to 1.2% in 2008 and in
2011 it had come down to 1.1%.

In 2012, police in India charged 27,936 juveniles for alleged involvement in crimes including
banditry, murder, rape and rioting, according to NCRB.

Among those who faced Juvenile Justice Boards in 2012, two thirds (66.6%) were aged
between 16 and 18 years, according to NCRB data.

The NCRB figures showed that 30.9% were aged between 12 and 16 years old and the
remainder, (2.5%,) were aged between 7 and 12 years.