Last weekend, three boys under eleven years of age were booked for gang raping a three year old girl in Bihar’s East Champaran District. The girl who was playing near her house was lured by these boys, taken to a nearby hut and raped. The girl was later admitted to the hospital in a critical condition and the boys were detained for medical examination and further investigation.
The age of the all the children involved in this despicable crime raises genuine concerns regarding the state of our social and moral fabric. Women of all age groups are equally vulnerable to this crime. Rapes against young girls, even new born, has become commonplace now and its depravity has ceased to shock us. However, what is new is the rapid rise in number of young boys getting involved in sexual offences. We, as a society have failed to protect not only our girls, but also our boys from falling prey to this rut.
Gang rape is treated with more severity under the law. The presence of more than one person, jointly committing the act or, in furtherance of common intention or while acting as a group serves to augment the criminality associated with rape. Gang rape of minor amounting to aggravated penetrative sexual assault under POCSO is punishable with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death (Section 5 (g) read with Section 6 of POCSO). Under Section 376DB of the IPC, when the victim of such gang rape is below twelve years of age then, all the accused shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death.
Thus, law prescribes death penalty for rapists of minors. The problem arises where the Rapists themselves are minors. Death penalty or life imprisonment has expressly been forbidden as a punishment for minors below eighteen years of age under Article 37(3) of Convention on the Rights of the Child and also under Rule 17.2 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, popularly known as Beijing Rules. In General Comment No. 10(2007) of Convention on the Rights of the Child, concern has been expressed regarding the establishment of Juvenile Justice Administration in compliance with CRC. Deprivation of liberty must be used only as a measure of last resort and for the shortest appropriate period of time (Art. 37(b) CRC).
Under the Juvenile Justice (Care and Protection) Act, 2015, the maximum punishment that can be awarded to a ‘juvenile in conflicts with law’ is three years. Sections 82 and 83 of the IPC grant exemption to children from criminal liability for acts done by them owing to their immature age and understanding. These Sections are reflective of the Constitutional Commitment towards the protection of children found in articles 15(3) and 39(e). Article 15(3) of the Indian Constitution allows the Sate to make special provisions for children. Article 39 (e) is a directive aimed at safeguarding the tender age of children against abuse.
According to Section 82 of the IPC, 1860, “Nothing is an offence which is done by a child under seven years of age.” Thus, Section 82 grants absolute immunity to children below seven years of age from criminal liability. Law presumes a child under seven years of age to be ‘doli incapax’.
Doli incapax is a latin term which means ‘incapable of evil’. In law, doli incapax is used to describe a person who is incapable of having criminal intent or malice; one who lacks sufficient discretion or intelligence to distinguish between right and wrong. This is a conclusive and irrebuttable presumption according to which children of tender age are deemed incapable of forming the forming the necessary intent to commit a crime. The defence needs to adduce proof of the child’s age to claim this exemption.
Section 83 of the IPC, 1860 provides that, “Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion”. Thus, Section 83 provides a qualified immunity to children between the ages of seven to twelve subject to the conditions specified therein. A child above seven but below twelve years of age is presumed to be ‘doli capax’ i.e. one who is capable of having criminal intent and malice. The presumption of ‘doli capax’ is a rebuttable presumption and the defence needs to prove the absence of sufficient maturity of understanding to judge the nature and consequences of his act. This presumption may be rebutted by strong evidence of a mischievous discretion. There must be proven capacity in the minor for commission of crime and an understanding of the consequences. The defence needs to prove that the child did not have sufficient maturity to understand or judge the nature and consequences of his conduct at the particular time when the offence was committed.
In the present case, the commission of rape and the manner of its commission- luring the little girl to a secluded spot and thereafter committing gang rape crime, leaves no doubt that the boys were aware of what they were doing. They knew the consequences. Here consequences mean the natural and physical consequences and not the penal consequences of their actions.
However, maturity of understanding, required for conviction of minors is subjective and needs to be determined in an individualized manner on the basis of the circumstances of the involvement of the accused, and expectation of consequences. The education, precocity, subsequent conduct and demeanor of the minor in the court during trial are all important considerations. The peculiar circumstances of any case are to be taken to ascertain the degree of malice that will prove the maxim ‘malitia supplet actatem’ which means that malice supplements age. This implies that lack of age is to be overlooked where the act was malicious in intent and knowledge of the consequences.
Now a days, children have greater exposure to pornographic material. This, coupled with lack of due supervision and moral guidance encourages them to experiment and taste the forbidden. They are all victims of a society that has failed them miserably. A superficial treatment of this malaise will not suffice. The root cause needs to be assessed and state interventions necessitated in all such cases including psychological counselling sessions. Articles 18 and 27 of the CRC confirm the importance of the responsibility of parents for the upbringing of their children. The state, the guardians and the society as a whole need to own up the responsibility for the current scenario. We need to wake up to the gravity of this situation which, if left unchecked is only bound to worsen in the times to come.
Views expressed above are the author’s own.
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