• Legis Scriptor

Infancy and Criminal Liability

Authored by - Vasundra V.

Keywords - Criminal Liability, Infancy, Child Liability, IPC, Section 82


The legal definition of a “Child” has been defined differently across various parts of the world. The children under the age of seven years are categorized under ‘infancy’ in the Indian Penal Code. This article examines the criminal liabilities of infancy in India, through secondary data and research. In accordance to the Indian law, it seems that nothing is an offence if it committed by a child under the age of seven.


Criminal liability refers to the responsibility of the person who has committed a crime or a legal wrong. Indian law on crimes has incorporated the punishments for committing criminal offences, which may vary from case to case. In some cases, though he/she commits an offence, it will not be considered as an offence. Punishing the person who has committed a crime is not the ultimate goal. It is also necessary to check the physical and mental state of the perpetrator. According to the Indian Penal Code 1860, offences committed by certain categories of people will not be considered as an offence and the person will not be liable under Chapter IV “General Exceptions” from Sections 76 to 106 of the Indian Penal Code. The categories include infancy (Section 82), insanity (Section 84) and intoxication (Section 85) under which, the accused is not liable for the offence and shall not be held responsible due to incapacity to understand the consequences of such an offence.


Basically, infancy is one of the periods in child growth, which is the stage before the development of human motor skills that involve walking and speaking. However, according to the legal perspective in India, infancy is the term used to mention children below the age of seven and sometimes, below twelve who are not mature enough to understand the crime. This infancy means the legal incapacity (Doli incapax) of the person who is below the age of seven. In some cases, In India, the infancy defence has been largely superseded by the establishment of a dual adult/juvenile justice system. The defence of infancy will always be in accordance to the age of the person at the time of the offence. It is also clear that infancy is the direct application of the maxim “Actus Non-Facit Reum Nisi Mens Sit Rea” which means an offence is not an offence if the person committed does not feel guilty and the act committed will remain to be just an act.

Infancy and Indian Penal Code

Under chapter IV of the Indian Penal Code, Section 82 and 84 deals with the infancy and their criminal liabilities. Chapter four- General Exceptions talks about the oddities of the person committing any offence. Section 82 is about the act of a child under seven years of age which states that, such acts or offences committed by the children under the age of seven, without a third person’s foul play, is not an offence. Subsequently, Section 83 is also talking about the infant but within different age groups. The important condition of this Section is nothing is an offence only if it is done by a child above seven years of age and below twelve years of age, who has not attained sufficient maturity to understand the nature and consequences of his conduct on that occasion. In India, the first case under the topic of infancy was raised before the Hon'ble Supreme Court in Gopinath Gosh vs. State of West Bengal[1] on 11th November 1983.

The crucial elements of these two Sections are that the children should be below the age of seven years and with the Doli incapax, that is, the incapacity of the child in committing a crime should be deficit. In the case of Krishna Bhagwan vs. State of Bihar[2], the Patna High Court upheld that an accused who is a child and has attained the age of seven years, at the time of the decision can be convicted if they have adequate knowledge of the offence committed by him.

This can be seen in the case of Kakoo vs. The State of Himachal Pradesh[3]. Kakoo, aged 13 years, was convicted for rape of a two year child and was sentenced to four years in rigorous imprisonment. The act of the accused was so sinful and outrageous that he had to be dragged away from the helpless victim. He put up a fierce struggle with the mother of the victim when she tried to get hold of them. However, his sentence was reduced to only a year of rigorous imprisonment and a fine of Rupees 2,000/- on the ground that a child offender is not to be treated in the same manner as a mature adult.


This defense talks about the theoretical part of the incapacity of the children. Such a Section lacks practicality in a lot of cases. However, the offence is not considered as unlawful as the accused can plea the defence of not understanding the consequences of their act. Sometimes, these offences are happening only because of the poor social environment, the accused was brought up in and lack of caretaking from their parents. Implementing the law for the victims affected is also significant than having a law simply for minor offenders.

[1] 1984 AIR 237, 1984 SCR (1) 803 [2] AIR 1989 Pat 217, 1991 (39) BLJR 321, 1991 CriLJ 1283 [3] AIR 1976 SC 1991, 1976 CriLJ 1545, (1976) 2 SCC 215


1. The Indian Penal Code 1860.

2. Ratanlal & Dhirajlal, (2018), The Indian Penal Code (28th Ed.), India, LexisNexis publishers.