HIRALAL MALLICK versus STATE OF BIHAR

Citation: [1978] 1 S.C.R. 301 · Decided: 16-08-1977 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

-
-
J 
'; 
r 
' 
• 
HIRALAL MALLICK 
v. 
STATE OF BIHAR 
August 16, 1977 
[V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ. 
301 
Indian Penal Code, sections 302 and 34-Vernier scale of mens rea, reason-
~ble and probable consequences of the Act-Degree of criminality gauged by 
personalised approach to circumstances of involvement, doli capax, age and ex~ 
pectation of consequences by offender-Desideratum of sentence-Welfare and 
therapeutic orientation of jus juvenalis-Correction and rehabilitation of luvenile 
.delinquent. 
Hiralal MaJJick was 12 years old when he along with his two elder brothers, 
was convicted by the Trial Court under s. 302 read with s. 34, I.P.C., 
and 
sentenced for life. 
In appeal, the High Court directed the conversion of the 
convictions from s. 302 into one under s. 326 read with s. 34, I.P.C., and the 
appellants sentence was reduced to 4 years in consideration for his young age. 
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 ctrcums-
tanced by the fraternal company, and that he had only inJlicted superficial in-
juries showjng a lesser degree of intent. 
Dismissing the appeal, but prescribing guidelines for the appellant's treatment 
in iail. the Court. 
HELD : ( 1) The vernier scale of a man's mens rea is, the pragmatic one 
of the reasonable alld probable consequences of his act. Except in pronounced 
categories, the intent is spelt out objectively by the rough-and-ready test of the 
prudent man l!Ild not with psychic sensitivity to retarded individuals. [303F, GJ 
Observation : 
Man is a rational being, and law is a system of behavioral cybernetics where 
noetic niceties, if pressed too far, may defeat its societal efficacy. [3031''1 
(2) When a crime is committed by the concerted action of a plurality of 
persons, the degree of criminality may vary, depending not only on the injurioUs 
sequel but also on the part played and the circumstances present, a personalised 
approach '\vith reference to each participant has to be made regarding the circum-
stances of involvement, his doli capax, age and expectation of consequences. 
[304-A, CJ 
Observation : 
(i) Adult intent. automatically attributed to infant mens is an error, but at 
the same time, doli capax is not so much measured by years and days as by 
the strength of the delinquent's understanding and judgment. 
[304H, 305A] 
Criminal Pleading, Evidence & Practice by Archibold; An Introduction in 
Criminal Law by CrosJ and Jones; R. v. Owen [1830] 4 C & P 236; R. v. Ker-
shaw [1902] 18 T.L.R. 357; Criminology Problems and Perspective, page 127 by 
Ahmad Siddique; referred to. 
, 
(ii) The ultimate desideratum of most sentences is to 1nake an offender a 
non-offender. 
The Indian legal system must be sensitized by juvenile justice: 
The Bench ai'nd the Bar should be alerted about jus juvenalis. The compassion 
of the penal law for juvenescents cannot be reduced to jeunity by forensic in-
difference, since justice to juvenile justice desiderates more from a lively judicial 
process. 
The establishment of ·a \Velfare oriented jurisdiction over juveniles is 
predicated and over-judicialisation and over-formalisation of Court proceedings 
is contra-indicated. 
Correctionally speaking, the perception. of de1inquency as 
indicative of the person's underlying difficulties, inner tensions and explosive 
stresses similar to those of mal-adjusted children, and the belief that court atmos-
phere is psychically traumatic and socially stigmatic, argues in favour of mor..r 
A 
B 
c 
D 
E 
F 
G 
H 
302 
SUPREME COURT REPORTS 
[1978] 1 S.C.R. 
A 
informal treatment by a free mix of professional and social workers and experts 
operating within the framework of the law. Our nation can never be dee1riminalis-
ed until the St~tes legislate a children Act, set up the curial and other 1ntra-
structure and give up retributivism in favour of restorative arts in the jurisdiction 
of young deviants, and the crime of punishing them is purged legislatively, admi-
nistratively and judicatively. 
[305D·E, 306C, 307 A-DJ 
B 
c 
D 
'Sentencing and Probation' (published by : National College of the 
State 
Judiciary, Reno, Nevada, U.S.A.); Kent v. United States, 383 U.S. 
541, 
556 
[1966]; Social Defence, Vol. VII No. 25, July 1971 (published by : the Central 
Bureau of Correctional Services, Depa

Excerpt shown. Read the full judgment & AI analysis in Lexace.