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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

LAW OF CRIMES-I

DEFENCE OF INFANCY IN CRIMINAL LAW: COMPARISON BETWEEN CRIMINAL

LAW IN INDIA AND MALAYSIA

Submitted by: Submitted to:

Prarthana Gupta Assistant Prof. Divya Salim

2019BALLB26

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ACKNOWLEDGEMENT

On completion of this Project, it is my present privilege to acknowledge my profound

gratitude and indebtedness towards many people for their valuable suggestions and
constructive criticism. Their precious guidance and unrelenting support kept me on the right
track throughout the project. I gratefully acknowledge my deepest sense of gratitude to: Prof.
(Dr.) V. Vijayakumara, Director, National Law Institute University, Bhopal for providing us
with the infrastructure and the means to make this project;

Our Law of Crimes teacher- Assistant Professor Divya Salim, who provided me this
wonderful opportunity and guided me throughout the project work. I would also like to thank
my batch mates and seniors for their constant help and guidance which helped me in
completing this project.

I’m also thankful to the library and computer staff of the University for helping us find and
select books from the University library. Finally, I’m thankful to my family members and
friends for the affection and encouragement with which doing this project became a pleasure.

Prarthana Gupta

(2019BALLB26)

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TABLE OF CONTENTS

ACKNOWLEDGEMENT................................................................................................................2
INTRODUCTION...........................................................................................................................4
CONCEPTUALIZATION OF CHILD CRIMINAL LIABILITY :.........................................................5
COMPARISON BETWEEN INDIAN AND MALAYSIAN LAW ON THE DEFENSE OF INFANCY......7
1. ULLA MAHAPATRA V. THE KING....................................................................................7
2. HIRALAL MALLICK V. STATE OF BIHAR..........................................................................8
1. PP V. LIM AH LENG........................................................................................................9
NEED FOR RE-EVALUATION AND REFORM.............................................................................10
VAGUENESS OF THE DOCTRINE OF DOLI INCAPAX..............................................................11
CONCLUSION AND SUGGESTIONS...........................................................................................12
BIBLIOGRAPHY.........................................................................................................................13

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INTRODUCTION

The defense of infancy, internationally recognized as the Minimum Age of Criminal

Responsibility (MACR), is perhaps one of the most controversial topics of the juvenile justice
system. Legally, the concept refers to the presumption that a child under the MACR (which
differs across cultures and nations) is incapable of committing a crime. This principle is
drawn from the Latin phrase of doli incapax meaning incapable of committing a wrong.1 This
principle is found enshrined in the Indian Penal Code (IPC) in Section 82 which states:

“Act of a child under seven years of age- Nothing is an offence which is done by a child
under seven years of age.”2

The concept of MACR in the context of criminal liability refers to the age at which a child
can be held accountable for his actions. By virtue of the principle of doli incapax, a child
under a certain age is deemed incompetent of having the requisite mental facilities and
maturity to realize the consequences of his action and thus have the required intention to
commit the crime. The tenderness of age puts forth the presumption of mental incapacity and
an absence of the requisite mens rea to constitute a crime 3.This presumption is an irrebuttable
one i.e. the child below MACR gets blanket immunity for his actions.

Most countries, including India, also have a provision for a certain age bracket falling within
which the juvenile offender may be excused under certain circumstances. For instance, the
IPC in its Section 83 provides that:

“Act of a child above seven and below 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.”4

This provision, therefore, provides for conditional immunity to a juvenile offender within the
age bracket of seven to twelve. However, this presumption is a rebuttable one. If the

1
Garner, B., Black’s Law Dictionary, Page 499 (7 ed. 1999).
2
Indian Penal Code, 1860 §82
3
Jaime, F., The Significance of the Age of Criminal Responsibility Within the Irish Youth Justice System, 4
Galway Student Law Review 22-32 (2010).
4
Indian Penal Code, 1860 §83

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prosecution can successfully prove that the child had sufficient understanding of his actions
and consequences resulting from them thereof, he may be punished appropriate.

CONCEPTUALIZATION OF CHILD CRIMINAL LIABILITY :

The past few decades have brought about a remarkable shift in legal policy and approach in
matters pertaining to the juvenile justice system. There has been a general inclination towards
to adoption of a more punitive approach towards young offenders to deter them from future
crimes. This has led to a widespread debate on the conceptualization of child criminal
liability. As a rule, criminal liability can only be imposed on people who are competent to
understand their actions and their consequences5. The approach broadly has two different
targets: the capacity of the child or the principle of immunity from prosecution.6

Capacity of children regarding criminal responsibility can be understood in two ways. First,
that the child must have the knowledge of requirements of law and the sufficient maturity to
understand the consequences of his actions (cognitive). Second, that the child must have full
control over hos actions and impulses in accordance with behavior prescribed in law
(volitional). Only when both requirements are fulfilled, is a child presumed to have the
capacity to commit the crime and must thus be held criminally liable for his wrongful acts. It
is however practically difficult to draw a line where age of incapacity ends and age of
capacity begins. Child development is a gradual and unsteady process. Though there may be
elements of the process that remain constant and are capable of generalization, development
as a whole may differ from person to person taking into account several relevant factors such
as maturity, intelligence, birth environment etc.

On the other hand, some legal scholars propound that the concept Criminal responsibility of
children may be founded on the principle of immunity from prosecution7. Rather than delving
into the complexities of determining the mental capacity of a child, this theory puts a specific
age limit to immunity from prosecution. It focuses more on the goal of the juvenile justice
system. Its advocates propound that rather than basing the criminal liability on psychological
or moral considerations, it is more advantageous to look at the criminal policy in place and

5
Arthur, R., Rethinking the Criminal Responsibility of Young People in England and Wales, 20(1) European
Journal of Crime: Criminal Law and Criminal Justice, 13-29 (2012).
6
Goldson, B, Counterblast: Difficult to Understand or Defend: A Reasoned Case for the Age of Criminal
Responsibility, 48(5) The Howard Journal of Criminal Justice 514-521 (2009).
7
Id.

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societal experience with juvenile offenders. In essence the value of the juvenile system must
countermand the need to punish a child.8

8
Goldson, B., Unsafe, Unjust and Harmful to Wider Society: Grounds for Raising the Minimum Age of
Criminal Responsibility in England and Wales, 13(2) Youth Justice 111-130 (2013).

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COMPARISON BETWEEN INDIAN AND MALAYSIAN LAW ON

THE DEFENSE OF INFANCY

Under the Indian and Malaysian Laws, the concept of doli incapax plays an extremely crucial
role in fixing liability on children below a certain age. Section 82 provides for blanket
immunity for children under the age of seven in India and ten in Malaysia. Section 83 of the
penal code however provides for conditional immunity on the basis of whether or not the
child has attained sufficient maturity and understanding. The landmark case of Marsh v.
Loader9 is authoritative regarding the application of blanket immunity. In the present case, a
child aged 6 was acquitted of a robbery because the relevant law at the time required an
offender to be of at least 8 years of age. The concept that a child under a certain age in
incapable of forming criminal intent and thus cannot be convicted of a crime was established
by this case.

The act of a child alleged to be of sufficient maturity and understanding must be

distinguished from naughty and mischievous activities that children usually do. In the case of
A v. DPP10, the defendant, an 11-year-old was acquitted for throwing bricks at a police officer
because his flight from the scene was construed as an evidence of mischievousness and
innocence.

Since both Malaysian and Indian understanding on doli incapx is drawn from the English law
on the same, the essence of the theory of this principle remains largely similar. However, in
its practical application it differs primarily due to the difference in the MACR. Further
conceptualization of the principle can be discerned through an analysis of the judicial
decisions in both jurisdictions.

Indian Cases:

1. ULLA MAHAPATRA V. THE KING11

Facts: the accused Ulla, a 12-year-old boy, was getting palm fruits plucked from a tree.
The deceased picked up a fruit fallen from the tree upon seeing that the accused asked for
the price of the fruit. At this the deceases got enraged and threatened to cut the accused

9
Marsh v. Loader,14 CBNS 535 1863.
10
C (A Minor), Re, (1995) 159 JP 269.
11
Ulla Mahapatra v. The King, AIR 1950 Ori 261.

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into pieces. The accused too threatened the deceased to do the same to him. The accused
got excited and true to his word killed the deceased.

Issue: Whether in the present case the child can be said to have sufficient maturity to
understand the consequences of his actions?

Judgement: the court in this case came to the conclusion that the accused did in fact
possess the sufficient maturity to understand the gravity and consequences of his actions.
The accused’s words “I will cut you up” denote that he understood the results of his
action and he in fact intended them as such.

A thorough cross-examination of the accused led to a similar conclusion that the child
was sufficiently mature for his age and capable of forming the criminal intent to kill.

Analysis: The case of Ulla Mahapatra lays down a comprehensive understanding of the
defence of Infancy. Under Section 83, a child between the ages 7 and 12 can be held
liable only when existence of ability to form intent can be proved. The present case
articulated on this principle and set forth its application for the future as well.

2. HIRALAL MALLICK V. STATE OF BIHAR12

Facts: The accused in this case is the appellant. He was a 12-year-old boy at the time of
commission of the crime. He along with his two brothers was accused of killing a man
with a sword. The trial court convicted all three for homicide. An appeal was preferred to
the High Court which reduced only the appellant’s sentence from life imprisonment to
rigorous imprisonment for four years. The matter was brought before the Supreme Court
claiming that the accused (appellant in this case) was under the age of twelve, did not
have the sufficient maturity to understand his actions and thus protected by Section 83 of
the IPC.

It was argued that the fact that he was a minor, in company of his brothers who had
violent tendencies, had rushed towards the deceased in pursuit of vengeance and had run
away from the scene afterwards all suggested that there were extraneous factors which
affected his better judgement. Evidently, he did not possess the sufficient maturity to
independently process his actions and their consequences.

12
Hiralal Mallick v. State of Bihar, 1977 AIR 2236.

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Judgement: The court rejected the argument that the child did not possess sufficient
understanding to know the consequences of his action. His action of wielding a sword and
fatally injuring a person is a sufficient evidence of the capability to understand his
actions. Therefore, the court sustained his conviction under Section 326 of the IPC.

Analysis: The court in the present case extensively discussed about the importance of
formation of a rehabilitative policy for juvenile delinquents in India. It spoke about the
need for a Guiding framework for punishment of children in the absence of any
Children’s Act. It also reiterated the point that sufficient maturity of a child in
ascertaining the age of criminal responsibility is a subjective issue and must be looked at
an individualistic level as well. In the absence of a developed and comprehensive
procedure in the regards, the court must endeavor to determine the maturity of the child
from a case to case basis in the best and most just way possible

Malaysian Cases:

1. PP V. LIM AH LENG13

Facts: The accused, who was 24 years old at the trial, had been convicted of theft. The
magistrate took into account the fact that the accused had two previous convictions, one
of which was for theft when he was 10 years old, and sentenced him to two years’
imprisonment.

Judgement: Upon appeal, the judge in the case reduced the sentence from 2 years to one
year, quoting Section 83 of Malayan Penal Code (which is pari materia to Section 83 of
the IPC). In his opinion the accused did not have the sufficient maturity for the theft he
committed at the age of 10.

Analysis: His Honor in the case made an erroneous assumption that the trial court in
hearing the theft charge many years ago had not been persuaded by the accused to apply
Section 83 in his favor. The judge’s approach amounted to paying lip service to section
83 but effectively invoking the English common law presumption that the accused was
incapable of committing theft unless proved otherwise by the prosecution.

13
Pp v Lim Ah Leng, [1967] 1 MLJ 284.

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NEED FOR RE-EVALUATION AND REFORM

The Malaysian as well as the India law on criminal liability of children is vague and ill-
defined. Additionally, the MACR in both countries is set much lower than the international
standards because of which it is in unable to protect the interests of the children. In evaluating
the working of the principle of concerning the criminal responsibility of children, it is
essential to take into account the findings of psychologists and scientists. The subject of
maturity and understanding being a prime factor, makes the complete application of the
principle highly dependent on psychological and neurological factors.

In respect of psychological development in children, the research of Jean Piaget is one of the
most comprehensive and influential14. According to Piaget’s theory15, cognitive development
occurs in four main phases, namely- Sensorimotor stage (Birth-2 years of age), Pre-
operational Stage (age 2- 7 years), Concrete Operations (ages 7-11) and formal operations
(beginning from age 11-15). His theory suggests that though children at the age of 7 years ar
able to think and act independently, the process of abstract reasoning does not occur before
the age of 15.16 He gains the ability to comprehend and process information and emotions like
an adult at the age of 15 and above.

In addition to this, Kohlberg’s theory of moral development is highly popular in a discussion

of child development and responsibility.17 The theory pioneered by Kohlberg suggests that
each child goes through three stages of moral development- the pre-conventional, the
conventional and the post-conventional stage. It is only when the child reaches the post-
conventional stage (at about the age of 11), when he is competent to form moral judgements
and decide between right and wrong. Before that stage the child lacks the sufficient maturity
to comprehend his actions and connect them with the future consequences.18

Another crucial form of evidence is provided by scientists and neurologists regarding child
development. Studies and research on cognitive development and functioning of adolescents
have concluded that the part of the brain concerned with rational judgements and impulse
14
Piaget, J., The Moral Judgment of the Child, London The Free Press Publications 50 (1932).
15
Piaget, J., The Theory of Stages in Cognitive Development, New York Mc Graw-Hill 1-4 (1971).
16
Id.
17
Kohlberg, L., 1976. Moral Stages and Moralisation: The Cognitive-Developmental Approach. In: Lickona,
T., ed., Moral Development and Behaviour: Theory, Research and Social Issues, New York, Holt, Rinehart and
Winston: 31-34.
18
Dolcos, F., Brain Systems Mediating Cognitive Interference by Emotional Distraction. 26 (7) Journal of
Neuroscience 2077-2078 (2006).

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control does not develop till the person reaches their twenties19. Research has also proved that
the pre-frontal cortex i.e., the part of the brain associated with maturity and decision making
is the slowest to develop.20 MRI based research techniques have allowed the scientists to
reach to the conclusion that during the teenage, dramatic changes in the brain occur because
of which teens generally have lesser impulse control and more easily succumb to peer
pressure.21 This in turn gravely hampers their ability to make independent informed decisions
and act rationally.

VAGUENESS OF THE DOCTRINE OF DOLI INCAPAX

The doctrine of doli incapax, in its application in India as well as Malaysia, has largely been
borrowed from English Common Law principles. Even though it has been abolished in
England, the evolution and application of the principle still acts as governing principles for
both Indian as well as Malaysian Courts. Prior to its abolition in England, the doctrine was
heavily scrutinized and criticized in the English Courts. It was opined to be a harsh and
draconian law unfit for a civilized society under the developing juvenile justice system.22 The
modern society demands a more restitutive and rehabilitative law towards children so that
they can be re-instate in the society after they are completely reformed.

Additionally, the inconsistency in practice coupled with ill-defined procedure results in

inefficiency in discharge of justice which in turn affects the interest of justice and the victims.
Based on these reasons, the principle is considered outdated and unnecessary.23

19
Gur, R.C., Brain maturation and the Execution of Children, University of Pennsylvania Gazette 103 (2005).
20
Bateman, T., New Insights into Brain Rules. Development May Have Implications for the Age of Criminal
Responsibility, 12 (1) Youth Justice 64-75 (2012).
21
Id.
22
C v. DPP, 3 WLR 888 (1994).
23
William., G., The Criminal Responsibility of Children. Criminal Law Review 493-500 (1954).

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CONCLUSION AND SUGGESTIONS

It can be concluded that the current MACR under the Indian and Malaysian, set at ages seven
and ten, is low and does not conform to the international standards. The United Nations
Convention on Rights of Children (CRC) clearly mentions a mandatory requirement for each
state part to establish an age below which the children will be presumed to be incapable if
infringing the law24. Even though the CRC itself does not prescribe an exact age for MACR,
various reports of the CRC mention the age of “twelve” as the appropriate age. Even though
this is merely advisory in nature and the States have the discretion to set the MACR factoring
in their own social, cultural and religious considerations. It is however, advised that the
international standards be complied with so that some clarity and uniformity regarding the
application of this provision can be provided. Additionally, overwhelming amount of
psychological, psychiatric and neurological evidence suggests that children attain the
requisite maturity to understand their consequences only by the age of 11 or 12. In light of
this, the legislatures of both the countries need to take a step back and re-evaluate the defense
of infancy so as to better its applicability and usage in the modern times. Due attention must
also be given to finding studies on the true nature, characteristics, personality, vulnerability
and maturity of the children. Related factors such as socio-cultural background, religion and
history must also be accounted for. A holistic approach which would include an appreciation
of all such factors would be beneficial in laying down a policy that is just, fair and
reasonable.

In conclusion, the juvenile justice system is largely dependent upon the determination of the
age of criminal responsibility. It is an essential exercise of drawing the line on competency of
children subjected to criminal responsibility. This process itself is a mirror on the societal
notions, perceptions and attitudes towards children and the status of childhood.

24
Convention of Child Rights, Article 40 (3).

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BIBLIOGRAPHY

BOOKS AND ARTICLES

 K.I. Vibhute, PSA Pillai’s Criminal Law, 14 th ed., Lexis Nexis, New Delhi, 2019.
 William., G., The Criminal Responsibility of Children. Criminal Law Review 493-500
(1954).
 Piaget, J., The Moral Judgment of the Child, London The Free Press Publications 50
(1932).
 Piaget, J., The Theory of Stages in Cognitive Development, New York Mc Graw-Hill
1-4 (1971).
 Gur, R.C., Brain maturation and the Execution of Children, University of
Pennsylvania Gazette 103 (2005).
 Goldson, B., Unsafe, Unjust and Harmful to Wider Society: Grounds for Raising the
Minimum Age of Criminal Responsibility in England and Wales, 13(2) Youth Justice
111-130 (2013).
 Goldson, B, Counterblast: Difficult to Understand or Defend: A Reasoned Case for
the Age of Criminal Responsibility, 48(5) The Howard Journal of Criminal Justice
514-521 (2009).

OTHER AUTHORITIES

 C v. DPP, 3 WLR 888 (1994).

 Pp v Lim Ah Leng, [1967] 1 MLJ 284.
 Hiralal Mallick v. State of Bihar, 1977 AIR 2236.
 Marsh v. Loader,14 CBNS 535 1863.
 C (A Minor), Re, (1995) 159 JP 269.
 Ulla Mahapatra v. The King, AIR 1950 Ori 261.
 Garner, B., Black’s Law Dictionary, Page 499 (7 ed. 1999).
 Indian Penal Code, 1860 §82.
 Indian Penal Code, 1860 §83.

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