A child above seven years of age and fewer than twelve is liable if he has attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. (S. 83).
Thus, where the accused is above 7 but below 12 years, the incapacity to commit an offence only arises if the child has not attained sufficient maturity of understanding to judge of the consequences of an act and such non-attainment has to be pleaded and proved.
Where a child- accused over seven and below twelve years discloses an acute and intelligent mind, he must be held to have intended the natural probable consequences of his act and to have known them.
In construing this section, therefore, the capacity of doing that which is wrong is not so much to be measured by years, as by the strength of the offender’s understanding and judgment. The circumstances of a case may disclose such a degree of malice as to justify the maxim malitia supplet detatum (malice supplies defect of years).
The provisions of the section in question do not fix any limit or the degree of understanding to be attained by an infant of over seven and under twelve years in judging of the nature and consequences of the act, which must be determined upon the nature of evidence and the view that the court takes of such evidence.
According to English law an infant between the age of seven and fourteen years is presumed to be doli incapax and it is left to the jury and the court to decide whether at the time of the offence the accused had a guilty knowledge that he was doing wrong.
(b) The child A is guilty of theft and B of receiving stolen property. The act of the child, viz., stealing the necklace and selling it at a lesser price showed that he had attained a sufficient maturity of understanding to judge of the nature and consequences of his conduct, and his act, therefore, amounted to theft.
Act of a person of unsound mind:
Section 84 lays down that a person is exonerated from criminal liability of doing an act by reason of unsoundness of mind, if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law.
The accused is not protected if he knew at the time of doing an act that what he was doing was wrong, even though he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong.
In order to bring the case within the exemption under Section 84 it has to be clearly established that at the time of committing the offence the accused was labouring under a defect of reason that he was rendered incapable of knowing the nature of the act, or that he was doing what was wrong or contrary to law. A plea of insanity at the time of trial will not help the accused.
Two things have, therefore, to be clearly established, viz., that at the time of committing the crime the accused was of unsound mind and that the unsoundness of mind was of a degree and nature that the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.
Mere abnormality of the mind has never been accepted as an excuse for the commission of crimes. The person must be incapable of knowing the nature of the act or that what he was doing was wrong.
Their lordship of the Supreme Court observed in Criminal Appeal No. 183 of 1969 (decided on August 9, 1972) that the law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of inanity upon arguments derived merely from the character of the crime.
The mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open, would not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence.
To establish a defence on the ground of insanity, it should clearly be proved that at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.
The mere fact that on former occasions the accused had been occasionally subject to insane delusions or had suffered from derangement of the mind, or that subsequently he had at times behaved like a mentally deficient person was per se insufficient to bring his case within the exemption provided by S. 84, 1.P.C.
A person whose cognitive faculties were not impaired as to make it impossible for him to know the nature of his act or that he was doing what was wrong or contrary to law, was not exempt from criminal responsibility, and mere suggestion to insane impulses was not sufficient.
The fact that the accused made a clean breast of the matter and admitted the various allegations of the prosecution would not go to show that he was of unsound mind. Nor would the fact that the accused caused the death of the deceased over a trifling matter warrant a conclusion that he was not a sane person. [Oyami v. The State ofM.P., 1974 (II) S.C.J. 357.]
The Supreme Court observed in the case of Dahyabhai Chhoganbhai Thakkar v. State of Gujarat (A.I.R. 1964 S.C. 1563) that there is a rebuttable presumption that the accused was not insane when he committed the crime in the sense laid down by S. 84, Indian Penal Code.
The accused may rebut it by placing before the court all the relevant evidence, oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings.
In the case of Bhikari v. State of Uttar Pradesh, A.I.R. 1966 S.C. 1, the Supreme Court held that the burden of proving the intention of the accused person, where intention is an ingredient of the offence, is on the prosecution and this burden never shifts.
But intention can sometimes be only proved from circumstances and therefore it is sufficient for the prosecution to prove the acts of the accused and the circumstances in which they were committed.
If from these an inference of the requisite intention can be reasonably drawn, the prosecution must be deemed to have discharged its burden. Dealing with Sec. 84, Indian Penal Court, the Supreme Court observed that the aforesaid section could be invoked by a person for nullifying the evidence adduced by prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law, because these are matters of presumption.
Everyone is presumed to know the natural consequences of his act. Similarly everyone is presumed to know the law. It is for this reason that S. 105, Indian Evidence Act, places upon the accused person the burden of proving the exception on which he relies.
The burden, though not as heavy as upon the prosecution in a criminal case, is upon the accused to prove that he was of unsound mind at the time of the commission of the offence and, as such, incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. [Oyami Ayatu v. The State of Madhya Pradesh, 1974(11) S.CJ. 357].
Section 84 of the Code casts the burden on the accused to adduce evidence and prove that at the time of the occurrence his mental condition was such that he did not know what he was doing. In such a case, a duty is also cast on the court itself to find out from the materials on record, viz., the conduct of the accused, as to whether any doubt arises in the mind of the court that at the lime of the occurrence the accused was not in a fit mental condition to have the requisite mens rea for the commission of the offence and that he did not have the element of mens rea required under S. 299 of the Code. (Khageswar Pujari v. State of Orissa, 1984 Cri. L.J. 1108, Orissa).
In Dahyabhai v. State of Gujarat, A.I.R. 1964 S.C. 1563, already referred, their lordships of the Supreme Court summarised the principle of law in the following succinct and felicitous language in dealing with the doctrine of burden of proof in the context of the plea of insanity:
(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea: and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84, I.P.C.; the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.
(3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. (Khageshwar Pujari v. State of Orissa, 1984 Cri. L.J. 1108).