Acts Done By A Child And An Insane Person

By | January 5, 2020
Acts Done By A Child And An Insane Person

This article analyzes the act done by a child and an insane person. Some people are immune from the criminal law operation. Chapter IV of the IPC, entitled ‘General Exceptions’ which contains sections 76 to 106, exempts individuals from criminal liability.

An act or omission of an accused, even if prima facie falls within the scope of a provision that describes an offence or prescribes a penalty for it, is not an offence if it is protected by any of the exemptions mentioned in Chapter IV. In other words, a defendant with the requisite mens rea who has committed an actus reus may avoid guilt because he has a “general exception” to give as a response to the prosecution.

Every penal rule is subject to several limitations and no offence can be absolute without exemptions.  According to Blackstone, “general exceptions are defences that can be regarded as those circumstances where the prosecution has been unable to prove all the requirements of liability beyond a reasonable doubt.” [1]

General Exceptions: Excusable and Justifiable

The ‘General Exceptions’ under IPC, 1860 are categorised into two groups: (1) Excusable and (2) Justifiable.

The first classification is where the law excludes a group of people, even though their actions are an offence. Infant acts, insane or intoxicated persons and acts committed by mistake of fact or accident fall within the first exception category.

The second category is where the crimes committed, although they are criminal acts, are considered to be justifiable under certain conditions and are therefore excluded from the IPC laws. Actions perpetrated by an individual authorized by law (Judicial acts), actions perpetrated by necessity, under duress, with consent; acts causing minor damage or trivial incidents; and acts perpetrated in the private protection of the body or property fall into the second category.

Hence, acts done by infants and insane persons are excusable acts and ultimately exempt an individual from criminal liability.

Relevant Provisions under the IPC, 1860 for the  acts done by a child or an Infant

“Section 82 in The 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 83 in The 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.”

The essential elements of these provisions are:

  1. act of child below 7 years of age.
  2. act of child above 7 but below 12 years of age
  3. maturity of understanding

Act of child below 7 years of age

Section 82 is based on the presumption that a child under the age of 7 is unable to commit a crime and hence cannot be held liable for any offence.  A child below the age of seven is doli incapax and hence is given “absolute immunity”.

A child below the age of 7 is presumed to be incapable of distinguishing between what is right and what is wrong. He lacks a sufficient mental capacity to understand the nature and implications of his actions.

This presumption is conclusive and cannot be refuted by claiming that the child was capable of understanding the impacts of his act. This provision exempts a child under the age of 7 from any criminal liability, no matter how serious the offence may be.

Act of a child above 7 but below 12 years of age

Section 83 presumes that a child above the age of 7 but below the age of 12 is doli capax, i.e., capable of committing a crime according to his understanding maturity. But it’s a refutable hypothesis. It can be disproved by evidence of the child’s’ mischievous ability.’

The prosecution is required to prove without reasonable doubt that the child with mens rea caused an actus reus and that he knew his behaviour was not merely mischievous, but’ wrong.’ The responsibility of such a child depends on his or her maturity in understanding the nature and consequences of his or her behaviour and not on his or her age.

Therefore, the question relevant to determining his liability is not one of his age, but the degree of his maturity of understanding at the time of a crime being committed. Thus, it becomes important for the defendant to establish that the offender was not only below 12 when he committed a crime in question but also had not achieved the maturity required to understand the nature and repercussions of his actions.

The immunity accorded to a child above 7 and below 12 years of age is “partial immunity”.

There is no immunity given to a child above the age of 12. There is no exemption from criminal liability beyond the age of 12, even though the perpetrator is an adult with undeveloped comprehension and unable to understand the nature and implications of his act.

The question of his youth and maturity of understanding will be relevant in the context of the sentence to be passed against him in the event of his conviction. Nevertheless, the care of all minors, i.e. people up to 18 years of age, is now regulated by the Juvenile Justice (Care and Protection of Children) Act 2015. After the Nirbhaya Rape case, an age group of 16-18 was created to treat the offenders of heinous offences, belonging to this age group as adults.

Maturity of understanding

Section 83 stipulates that when a person above seven years of age and under 12 years of age is convicted with a crime, the court will decide whether the child has adequate capacity in comprehension to understand the nature and consequences of his actions. The terms ‘behavioural effects’ do not mean criminal consequences, but the normal results of behaving.

Until convicting a child over the age of seven but under the age of twelve, a court is expected to conduct an investigation and provide a finding of fact as to whether the child has had sufficient understanding to determine the essence of the implications of his act. On the grounds of all the circumstances of the case, evidence of adequate competence can be sought by a jury.

Determination of age of accused

One of the major issues confronting the judiciary with respect to minors is assessing the age of a child who is charged with a crime. There are 3 important things to be taken into consideration. The first is the appropriate day, i.e. the date on which the crime is committed or the day on which the defendant is taken before a competent authority in compliance with the Children Act or a trial, to assess the child’s age.

The second is the essence of the proof needed to prove the juvenile delinquent’s nature. And the third is the point where it is possible to make the argument that the convicted person is a minor.

In Umesh Chandra v State of Rajasthan[2], the Supreme Court, while dealing with the Rajasthan Children Act 1970, held that ‘the relevant date for applicability of the Act so far as the age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial’.

In Arnit Das v State of Bihar [3], without taking into account the Umesh Chandra dictum, the SC held that “the crucial date to determine whether an accused is juvenile or not is the date on which the accused is produced before the court”.

In Pratap Singh v State of Jharkhand [4], the SC finally held that “held that the reckoning date for the determination of the age of the juvenile is the date of an offence committed by him and not the date when he is produced before the Juvenile Justice Board or the court”. 

Relevant Provisions under the IPC, 1860 for the acts done by an insane person.

Section 84 in The Indian Penal Code

Act of a person of unsound mind – Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

Nature and Scope

Insanity or psychological abnormality is one of the common limitations of criminal liability accepted by the IPC. In reason of the principle, ‘actus non facit reum nisi implies sit rea’, an offence prohibited in penal law is not punished if it is unaffected by a guilty mind. The rationale for having mindlessness as a total shield is that an insane person is unable to shape criminal intent.

The House of Lords laid the foundation for the law of insanity in 1843, in what is popularly known as the case of M’Naghten. The defendant  Daniel M’Naghten suffered from a misconception that he was hurt by Sir Robert Peel, Britain’s then Prime Minister. He mistook Sir Robert Peel’s Secretary to the Prime Minister, Edward Drummond.

He shot him down and killed him. The defendant accepted the insanity plea. The medical evidence revealed that M’Naghten was operating under a dark paranoia which pushed him beyond his own control’s capacity. He was found by the judges to be’ not guilty owing to insanity.

Essentials of Section 84 IPC

To seek protection under s 84, IPC, the accused must prove that he was unable to know the ‘nature of the act’ or that the act was’ unlawful’. The time when he committed the offence is the crucial point of such incapacity due to ‘mental insanity’.  The “insanity” before or after the execution of the crime is not adequate in itself to free him from criminal liability.

Unsoundness of Mind

This implies a state of mind in which an accused person is unable to know the nature of his behaviour or is unable to realize that he is doing something unethical or contradictory to the law But the courts have equated it with meaning ‘insanity’.

But in different contexts, the word ‘insanity’ has different meanings and defines different degrees of mental disorder. Every adult suffering from mental illness is not excluded from criminal liability by’ ipso fact’.

In Francis v State of Kerela [5], it was held that ” A mere warped or twisted mind, which many a criminal has, cannot qualify to be termed ‘unsound mind’.”

In Dahyabhai Chhaganbhai  Thakker v State of Gujarat [6], the SC held that “It is not every type of insanity which is recognised medically that is given the protection of this section. Medical insanity is different from legal insanity.

The insanity, for the purpose of s 84, should be of such a nature that it completely impairs the cognitive faculty of the mind, to such an extent that he is incapable of knowing the nature of his acct or what he is doing is wrong or contrary to law. It is only the legal and not the medical insanity that absolves an accused from criminal responsibility.”

In Surya Prasad v State of Orissa [7], it was held that “If at the time of committing the offence the accused knew the nature of the act, he is obviously punishable.” The same was reiterated in Amrit Bhushan v Union of India [8].

Under the Law, insanity is two categories: (1) “Dementia naturalis– individuals who are born insane” and  (2) “Dementia adventitia or accidentialis– an individual who becomes insane after birth”.

Insanity as a result of heavy intoxication:

In Basdev v State of Pepsu[9], it was held that “Where insanity is caused by excessive drinking even involuntary or by smoking ganja or other drugs, such insanity will also amount to unsoundness of mind, if it makes a person incapable of understanding what he is doing or that he is doing is something wrong or illegal. The accused can take shelter under this section if he can prove that the insanity existed at the time of the commission of the act.”

In Ajmer Singh v State [10], it was held that “A mere loss of self-control due to excessive drinking or smoking of ganja or marijuana and alcohol abuse does not, however, entitle him to the protection cloak offered under s 84”.


  1. KI Vibhute, PSA Pillai’s CRIMINAL LAW, 11th ed, 2012, Lexis Nexis.
  2. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 35th ed, Lexis Nexis.
  3. KD Gaur, CRIMINAL LAW CASES AND MATERIALS, 5th ed, Lexis Nexis.

[1] Blackstone’s Criminal Practice 2003, Peter Murphy (ed), Oxford, 2003, p 34.

[2] (1982) 2 SCC 202

[3] (2000) 5 SCC 488

[4] (2005) 3 SCC 551

[5] (1975) 3 SCC 825

[6] AIR 1964 SC 1563

[7] (1982) Cr LJ 931 (Ori)

[8] AIR 1977 SC 608

[9]  AIR 1956 SC 488

[10] AIR 1955 Punj 13 (DB)

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