HIRALAL MALLICK v.

STATE OF BIHAR August 16, 1977

Hon'ble Judges/Coram: P.K. Goswami and V.R. Krishna Iyer, JJ.
Counsels: For Appellant/Petitioner/Plaintiff: D. Guburdhan, Adv
For Respondents/Defendant: U. P. Singh and S.N. Jha, Advs.
Facts:

In this case, Hiralal Mallick, was a 12-year old lad when he toddled into crime, conjointly with his two
elder brothers. The three, together, were charged with the homicide of one Arjan Mallick {involved
slashing the victim’s throat with a sword before fleeing the scene} which ended in a conviction of all
under Section 302 read with Section 34 IPC. while accused1 and 2 caused the fatal stabs, the appellant
{Hiralal Mallick} was found to have inflicted superficial cuts on the victim with a sharp weapon in an act
of revenge and then had run away like the rest, probably angered by the episode of an earlier attack on
their father, induced by the stress of the reprisal urge and spurred by his brothers' rush after the foe, but all
the same definitely helping them in their aggression. That he was too infantine to understand the deadly
import of the sword blows he delivered is obvious; that he inflicted lesser injuries of a superficial nature
is proved; that he, like the other two, chased and chopped and took to his heels, is evident.

2. Procedural History:

The trial judge impartially imposed on each one a punishment of imprisonment for life. On appeal by all
the three, the High Court, taking note of some peculiarities, directed the conversion of the convictions
from Section 302 (read with Section 34) (sic) 34) IPC and, consequently, pared down the punishment
award-(sic) the co-accused into rigorous imprisonment for 8 years. The third (sic), the appellant before us,
was shown consideration for his tender age of 12 years (at the time of commission of the crime) and the
Court, in a mood of compassion, softened the sentence on the boy into rigorous imprisonment for 4 years
under Section 326. An appeal by special leave was preferred by the appellant from the order and
judgement of the High Court.

3. Issue:

 Whether the accused can claim the exception under section 83 of the Indian Penal Code, 1860?
 Whether the actus rea of a child can account for mens rea?
 Whether the crime committed by the accused should only be under sec 324 not more?
4. Rule(s):

Indian Penal Code (IPC), - Section 34, Indian Penal Code (IPC), - Section 83, Indian Penal Code(IPC), -
Section 302, Indian Penal Code (IPC), - Section 324, Indian Penal Code (IPC), - Section326

IPC Section 302: Murder - This section deals with the intentional killing of a person with the intention of
causing death. Important ingredients: Intention to cause death, and the actual act resulting in death.

IPC Section 324: Voluntarily causing hurt by dangerous weapons - Inflicting hurt on someone with
dangerous weapons or means voluntarily. Important ingredients: Voluntarily causing hurt, and use of
dangerous weapons or means.

IPC Section 326: Voluntarily causing grievous hurt by dangerous weapons - Inflicting grievous hurt on
someone with dangerous weapons or means voluntarily. Important ingredients: Voluntarily causing
grievous hurt, and use of dangerous weapons or means.

IPC Section 34: Common Intention - When a criminal act is committed by several people with a common
intention, each person is liable for the act as if they committed it individually. Important ingredient: A
shared intention to commit the crime.

Section 83 of the I.P.C. provides partial immunity from criminal liability to a child who is above 7 and
under 12 years of age. It provides that: Nothing is an offence which is done by a child above 7 years of
age and under 12, who has not attained sufficient maturity of understanding to judge the nature and
consequences of his conduct on that occasion.

Ingredients of Section 83

 The act is committed by the child.

 The child is above 7 years of age and below 12 years of age.
 The child has not attained sufficient maturity of understanding to judge the nature and consequences of
his conduct on that occasion.

5. Analysis

The appellant has appealed from the Patna high court involves an issue of criminal culpability presenting
mixed questions of fact and law and a theme of juvenile justice, a criminological Cinderella of the
Indian law-in-action

The appellant contended that his participation in the crime could only attract s. 324 I.P.C.; that be was too
infantine to understand the deadly import of the sword wounds delivered by him, that his involvement had
been circumstanced by the fraternal company, and that he had only in Listed superficial injuries showing
a lesser degree of intent. The court held that the vernier scale of a man's mens rea is the pragmatic one of
the reasonable and probable consequences of his act. The weapon he has used, the situs of the anatomy on
which he has inflicted the injury and the like, are inputs. If that be the mental standard of the turpitude,
the offender's faculty of understanding becomes pertinent. Man is a rational being and law is a system of
behavioural cybernetics where noetic niceties, if pressed too far, may defeat its societal efficacy. So,
except in pronounced categories, which we will advert to presently, the

intent is spelt out objectively by the rough-and-ready test of the prudent man and not with psychic
sensitivity to retarded individuals. Viewed in this perspective, the materials present in the case, especially
the medical evidence, shows that this young offender armed himself like his brothers with a cutting
instrument and set upon the victim using the sword on his neck. The autopsy evidence discloses that the
injuries caused by the appellant were not the lethal ones but multiple sword cuts on the neck of a man,
leave little room for doubt in the ordinary run of cases as to the intent of the assailant. When three
persons, swords in hand, attack a single individual, fell him on the ground and strike on his neck and skull
several times with a sharp weapon, it is not caressing but killing so the court read sec 34 and 326 and the
appellant tried to use sec 83 as general exception to get immunity from the verdict of Patna HC but due to
the autopsy evidence where the multiple blows on the head and the sharp object with the appellant and the
behaviour after homicide like left the scene without even any sympathy on all this circumstances the court
did not considered the sec 83 as a defence

The decision of the Supreme Court

The Hon’ble Court dismissed the appeal and upheld the conviction of the appellant. It was held that the
prima facie inference that the appellant had the intent to endanger the life of the deceased stands
unrebutted. Moreover, no evidence was shown addressing the age of the appellant or his lack of sufficient
maturity at the time of the commission of the offence. The Court held that where a crime is committed by
the concerted action of a group of persons, the degree of criminality may vary depending not only on the
injurious sequel but also on the part played and the circumstances existing at that time. In such a case, a
personalised approach has to be taken with regard to each participant in the act regarding the
circumstance of involvement, his doli capax, age and expectation of consequences appeal against
conviction given by the high court and the prima facie inference of intent to endanger life of deceased
with sharp weapon by which his maturity is sufficient to understand the situation by which Section 83
inapplicable and the SC dismissed the appeal and conviction and sentence were confirmed.
6. Conclusion:

The Hon’ble Court dismissed the appeal and upheld the conviction of the appellant. It was held that the
prima facie inference that the appellant had the intent to endanger the life of the deceased stands
unrebutted. Moreover, no evidence was shown addressing the age of the appellant or his lack of sufficient
maturity at the time of the commission of the offence. Section 83, on the other hand, recognizes the
possible liability of children aged seven to twelve, subject to their maturity and grasp of the nature and
consequences of their actions.as the court dismissed the appeal and upheld the verdict of the HC of Patna