Liability of the Child used as an Instrument by Perpetrator

[leaglesamiksha]

Sec 82 of the Indian Penal Code states that nothing is an offence done by a child less than seven years in age.
Ques: If a child below seven years is convinced to commit a crime by an adult, and the child commits the crime despite being aware of the wrongfulness of his conduct, what will be the criminal liability of such a child? What will be the liability of the perpetrator that uses the child as an instrument to commit the crime?

Topic

[intern]

-Liability against the child
Section 82 of the Indian Penal Code states, “Nothing is an offense which is done by a child under seven years of age.”
Liability for a crime involves not just an act or omission (known as actus reus) but also the mental intention to do so (known as mens rea). For the mens rea to exist, a person needs to have the mental capacity to understand the consequences of what they’ve done. The law imposes a rigid presumption that children below the age of 7 do not have this mental capacity – that they are doli incapax.
-What will be the liability of the perpetrator that uses the child as an instrument to commit the crime?
Section 108 of Indian Penal Code states, “A person abets an offense, who abets either the commission of an offense or the commission of an act which would be an offense if committed by a person capable by law of committing an offense with the same intention or knowledge as that of the abettor.”
Explanation 3. —It is not necessary that the person abetted should be capable by law of committing an offense, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.
Thus, reading both sections simultaneously it can be concluded that the child below the age of seven is not liable for any offense as they don’t have developed the mental capacity to know the circumstances and consequences. However, the perpetrator is liable to be punished and will be booked under the offense of Abetment.

[intern]

In the above case, the child is below 7 years, he/she cannot be charged with murder because under section 82 of the Indian penal code nothing is an offense, the acts which are done by the child under seven years of age. Liability of a crime not only involves the act done by the child, but it also includes mental intention to commit the crime. Under section 82 of the Indian penal code, and the juvenile justice act 2015, the children are doli incapax means the children below 7 years do not have any mental capacity to commit the crime. And in section 83 the child between the age of 7-12 has the defense of doli incapax but if the prosecution is proved then the child can be prosecuted so in the above case the child is below seven years and the child will not be liable for the death of an adult and the defense of doli incapax is used .and perpetrator that uses the child as an instrument to commit the crime is liable for abatement, The abatement of the illegal omission of an act may amount to an offense although the abettor may not himself be bound to do that act. So under section 108 perpetrators is liable to punish in the same manner as if a child had been capable by law of committing offense and murder and under section 302 of the Indian penal code the perpetrator is punished with death or imprisonment for a term extending up to 10 years

[intern]

– The above-mentioned sections confer immunity from criminal liability on child offenders. The immunity is based on the principle of juvenile justice. The constitution provides the umbrella for juvenile justice. The constitutional basis for juvenile justice can be derived from Article 15 (3) and 39 (e) and (f). The presumption of absolute incapacity of a child for a crime under seven years is that a child around that age has no discretion to distinguish right or wrong, thus mens rea cannot be formed, and thereby criminal intention does not arise.
– Similarly, in section 83 a child under 12 years will only have blanket protection if he or she has no sufficient maturity of understanding. Therefore, if sufficient maturity of understanding can be proven, liability will arise.

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