Sec. 82 and 83 of Indian Penal Code deals with criminal liability of minor.
According to Sec. 82, an act of a child under seven years is no offence. It is to be noted that this immunity is not confined to offences under the Code only , but extends to offences under any special or local law. An infant is , by presumption of law, doli incapax i.e. not endowed with any discretion so as to distinguish right from wrong, thus, the question of criminal intention does not arise. Where persons get crimes committed through children below 7 years, they will be held liable while the child will be exempted. There is an absolute incapacity for crime under seven years of age.
According to Sec. 83 , acts done by children above seven and below 12 will be protected if it is shown that the child in question has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. It is to be noted that there is complete liability to punishment after twelve years of age. Where a child of 9 years of age stole a gold necklace and sold it to B for half a rupee only. The boy would be liable if he was proved to be of sufficient maturity of understanding. The Maxim militia supplet oetatem ( malice supplies defect of years) applies to Sec. 83. The circumstances of a case may disclose such a degree of malice as to justify the maxim.
Constitution and Criminal Liability of Minor
The constitutional basis for Juvenile Justice can be derived from article 15(3), 39(e) and 39(f) of the constitution. Article 15(3) provides that ‘nothing in this article shall prevent the state from making any provision for women and children’. Article 39 forms part of the Directive Principles of State of Policy. Clause (e) of article 39 provides inter alia, that the tender age of children are not abused. Clause (f) of article 39 stipulates that children are given opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity and that youth are protected against exploitation and against moral and material abandonment.
Maturity of Child
When a child is above 7 and below 12, the liability is totally dependent on the maturity of the child. It does not depend on age, but rather the mental capacity. For example; the crime by a minor of 11 years of age with no understanding of the nature of his actions can be free from the liability. But a child of 8 years who has enough maturity and understanding of the after-effects, can be held liable. The maturity or understanding of the child can be concluded from the circumstances and it varies from crime to crime. As every crime is different and has different methodologies.
Although there are some generalized factors that can demonstrate the essentials for the child’s guilt are:
- The immediate actions of the child after the commission of the act.
- The conduct of the child during the investigation process.
- The nature of the act done by the child
- Other similar factors
Determination of age of the child
The age of the accused at the time of commission of the offence is relevant and the age at that relevant point of time has to be determined.
Two issues have constantly came up before the courts in respect of Juvenile delinquents. The first is the nature of the evidence that is required to prove the age of the Juvenile delinquent, the second is the stage at which the plea that the accused is a Juvenile can be taken.
In Bhoop Ram Vs. State of U.P. (AIR 1989 SC 1329) the court accepted the age as shown in the school certificate. Generally, proof of age is a matter of factual finding. Evidence to establish the age of the accused has to be produced before the trial court and it is the usual duty of the court to determine the age of the accused before announcing the judgement.
Supreme court of India at various occasions has ruled that Bone Ossification test in an expert opinion and relevant under section 45 of Evidence Act. The value attached with bone ossification test should be examined on the parameters of settled principles of law in respect of scientific evidences.
Test to determine the age of individual
Bone Ossification Test is an age determination test of a person on the basis of assessment of his or her bony frame work . This test enables one to form a fairly accurate opinion about the age of an individual, especially in earlier years. This is a cumulative evaluation of bone, fusion of bones, teeth, height, weight and other corelated bodily parameters.
Bone age is calculated through ossification tests, which are conducted to examine the fusion of bones under radiological guidance and supervision. In layman language, it may be said that a radiologist makes his opinion about age of subject with the help of X-rays or CT- scans of bones. But this is not as easy because it is difficult for the concerned expert to maintain uniformity. The bony structure differs from man to man due to variation in climatic, dietetic, hereditary and other geographical factors.
According to DR. H.S. Mehta in Modi’s Medical Jurisprudence, in ascertaining the age of young persons, radiograms of several main joints of the upper or the lower extremity of one or both sides of the body should be taken. The opinion made thereafter is a fairly close estimate but with a margin of two years on both side, mainly on the progress of the epiphyseal union. He also emphasised that due weightage to physical and sexual characteristics should also be given.
For any query:- [email protected]