HIRALAL MALLICK V.

STATE OF BIHAR [AIR 1977 SC 2236]

FACTS OF THE CASE:

The appellant Hiralal Mallick was a 12 year old boy when he toddled into the crime along with his
2 elder brothers. Three of them together were charged with offence of homicide of one arjan
mallick and this led three of them to get convicted under section 302 of IPC read with section 34
of the IPC. It was observed that the offense committed by them was due to the influence of anger
they had towards the deceased because the deceased had insulted their father on several occasions.
Three of them armed themselves with the swords and inflicted several stabs on the victim’s neck
and head which led victim’s untimed demise. Initially the trial judge impartially held them liable
for the offense and imposed each one a punishment of life imprisonment. They further appeal to
the high court, and the hon’ble high court on the pretext of some peculiarities directed the
conversion of the convictions from section 302 of ipc read with 34 of ipc and consequently pared
down the punishment awarded. The co-accused were punished with the rigorous imprisonment of
8 year whereas the appellant was sentenced down to the rigorous imprisonment of 4 years. Later,
an appeal was made before the hon’ble supreme court by the appellant alone on basis of the
applicability of section 83 of the ipc, contesting the age of minority.

ISSUE:

 Whether section 83 is applicable in this case and thus the appellant can’t be held
liable under sec 302,324 & 326 of IPC
 Whether the sentencing of the appellant was justified in accordance to welfare
oriented jurisdiction

RULE: Section 83,302,324,326 of IPC

ANALYSIS:

It was contented from the side of the appellant that while the accused 1 and 2 caused the fatal stabs,
the stabs inflicted to the deceased by the appellant caused only mere superficial cuts. It was also
contended that the act of the appellant’s was merely due to the stress induced by his brother’s urge
to take revenge from the victim who has on several occasion insulted and attacked their father. It
was contended that the appellant being a 12 year old kid acted out of immaturity and such
immaturity was induced by the circumstance he was in. it was also contended that though the
appellant like his two brother chased and chopped the victim, but considering the age and his
immaturity and also the superficial cuts due to his act can only be consider to fall under section
324 of the ipc (if to be consider) and nothing more than that. Thus, the sentenced passed shall only
be limited to the offense under section 324 and thus it shall be reduced and the appellant shall also
be absolve from the blame of murder.

Against the contention of the appellant it can be stated that even if it is to be consider that the
appellant was a 12 year old kid during the commencement of the crime but his act can’t be
safeguarded under section 83 of the IPC because his conduct was evident enough to show his
maturity to understand the grievousness of the act. According to the common law of England it is
presumed that the child under 14 years of age is presumed to have not reached the age of discretion
and deemed incapable of forming the intent to commit a crime or tort (principle of doli incapax).
However, this presumption can be rebutted if it is shown that the child has mischievous discretion
(knowledge that what was done was morally wrong) or the capacity to understand the
grievousness of his/her wrongful act. The same principle has been reiterated in the case of R v.
Owen. However, the appellant’s conduct failed to satisfy the condition required under section 83
of the IPC that is “has not attain sufficient maturity to understand the consequences”, because
when he stabbed the deceased he endangered the deceased life knowingly and further when he
ran away like the rest it was evident enough to substantiate the point that he has the proper
matured understanding of his act and its consequences. And thus, the conviction was rightly
sustained.

As far as the issue 2 is concerned, it was done in accordance to welfare oriented jurisdiction.
Welfare oriented jurisdiction stand on the believe that the juveniles shall be treated in accordance
to their nourishing needs (treatment oriented perspective) and not on the basis of the punitive
traditional way of correction because it is often that the sinners are not the boys or the girls but
the broken or indigent family and the indifferent and elitist society. Thus, a retributivism approach
must be established to correct the juveniles and also that article 39 (F) of the Indian Constitution
is maintained. But in the state of Bihar due to lack of children act, the delinquent child (the child
who has committed a crime) is always inhospitably treated. However, the court has tried to deal
with this problem by pointing out the different area of law and act which need to be enacted for
the protection of article 39 (f) and for other cases also.
CONCLUSION;

The hon’ble court held that the appeal has no merit on the ground that section 83 is not applicable
and thus it was dismissed, however the court reformed the sentence to 4 years on basis of
retributive approach that is the period shall be of such, that sufficient amount of time is given to
heal the psychic wounds. The 4 year imprisonment shall be of therapeutic oriented so that it can
restore the inner balance, stresses and resolve the tension that was disturbed due to the fraternal
provocation and paternal injury.

The hon’ble court also suggested various reforms that the legislature has to bring in regards to the
children act, particularly for the state of Bihar and ‘such’ other states.

I, completely agree with the decision of the court because it is necessary for protecting the interest
of any convict and for setting an example in the society.