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This section is the second part of the defence of infancy. According to this provision a child above seven years of age but under twelve years is also not guilty of an offence if his maturity of understanding is not up to the level to judge of the nature and consequences of his conduct on that occasion. The level of such a child’s maturity of understanding is to be judged by the court taking into consideration the facts and circumstances of the case.

The section gives more importance to the maturity and understanding of the child than to his age. The defence is subjective in nature and depends on the level of understanding the child has reached. There may be a case where a child is nearing twelve years of age but is not mature enough to understand the nature and consequences of his act and thus he may be entitled to the protection of this section. On the other hand, there may be another case where a child may be just above seven years of age but is mature enough to understand the nature and consequences of his act and is thus liable to be punished for his act.

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In Abdul Sattar’s case, the accused persons who were under twelve years old broke open the lock of a shop and stole pulse were held guilty on the ground that they had developed sufficient maturity of understanding the nature and consequences of their act. In Ulla Mahapatra’s case, the accused was a boy over eleven years but under twelve years of age.

He ran towards the deceased with a threatening gesture and saying that he would cut him to bits which he did. The Court held him guilty and sent him to a reformatory school for five years. In Nga Tan Kaing’s case, the accused even though under twelve years of age was held guilty of attempt to commit rape.

In Heeralal Mallick v. State the appellant, a twelve year old boy, with his two elder brothers conjointly attacked the deceased by wielding a sword inflicting superficial injuries on the neck of the victim. The trial court convicted all of them under section 302 read with section 34 of the Code. The High Court, on appeal, altered their conviction under section 326 read with section 34 of the Code.

The appellant alone further appealed to the Supreme Court which observed that when a crime was committed by the concerted action of a plurality of persons, constructive liability implicated each participant, but the degree of criminality might vary depending not only on the injurious sequel but also on the part played and the circumstances, making a personalised approach with reference to each possible. Merely because of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal, could not, by hindsight reading, be meant to have had a murderous or kindred mens rea.

The court must, therefore, consider in an individual manner the circumstances of the involvement of the appellant, his non-age and expectation of consequences. It was stated by the Supreme Court that though the appellant was only a twelve year old boy, he attacked the deceased by a sword perhaps because he was angry that his father was attacked earlier. He ran away like the others. There was no evidence to show that he was not mature enough to understand the nature and consequences of his act to get the benefit of section 83 of the Code. The Supreme Court, therefore, held that his conviction under sections 326/34 of the Code was proper.

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