Author: Abhishek Wadhawan
Doli Incapax is a principle of criminal jurisprudence which describes the criminal liability of children. As per this principle’s application in India, no child below the age of seven years can be prosecuted for commission of any crime and for children between the ages of eight to fourteen years, the prosecution has a great burden of proof to prove the offence of the minor. It is indeed a presumption that a child is incapable of committing any crime. No civilised society regards children as accountable for their actions to the same extent as adults are held accountable. The wisdom of protecting young children against the full rigour of law is beyond argument.
The two basic objectives behind following this doctrine may be enumerated as:
- A child who is below the age of seven years does not have sufficient mental capability to understand the consequences of his action and hence if he commits a criminal act, he may lack the required intention to be prosecuted. Without the presence of ‘mens rea’, it is indeed not possible to prosecute a child.
- To protect the children from the harshness of punishment that may be inflicted upon them at a very tender age by the strict criminal law of the land.
Relevant provisions of the Indian Penal Code:
Section 82 of the Indian Penal Code states that nothing is an offence which is done by a child whose age is less than seven years. Through the application of the said section, the children below the age of seven years are completely exempted from any kind of criminal proceedings. The main reason for the same is the lack of ability of a child below the age of seven years to have sufficient knowledge of the consequences of his act. If a child whose age is below seven years is prosecuted, the proceedings can be easily stopped by the application of Section 82 of the Indian Penal Code.
Section 83 of the Indian Penal Code states that nothing is an offence which is done by a child whose age is between seven to twelve years if such a child has not attained sufficient maturity and understanding to comprehend the consequences of his actions. It is pertinent to note that this is to be proved by the person who is willing to use this defence. Non-attainment of sufficient maturity to understand and comprehend the consequences of the act has to especially proved and pleaded by the defence. There is no presumption of innocence in favour of the child. This provision is slightly different from the English Law wherein the courts make a presumption of innocence in favour of the child unless something contrary is pleaded and proved by the prosecution.
Section 108 of the Indian Penal Code relates to the offence of abetment. It is however not necessary that the person abetted to commit an offence should be capable of committing an offence or should have the guilty intention or knowledge as that of the abettor. Hence if a person abets a child below the age of seven years or a child whose age is between seven to twelve years then even if the child is not capable of being convicted for the offence so committed by him, the abettor who abetted the child to commit the offence shall be held liable. An illustration to be elaborate on the same point has been provided in the aforementioned Section which reads thus, “A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z’s death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z’s death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is, therefore, subject to the punishment of death”
In the case of Heeralal v. State of Bihar, a minor child, carrying a sharp knife, had threatened a person that he would cut him into pieces. The accused child subsequently attacked the person with the knife and stabbed him until he died. The accused child tried to take the defence of Section 83 of the Indian Penal Code. However, the trial court convicted the accused child stating that he had gained sufficient maturity to understand the consequences of his action as he was carrying a knife, threatening a person to death and later actually performed the heinous act of killing the person. The matter even went to the Supreme Court and the court
In the case of Kakoo v. State of Himachal Pradesh, a 13-year-old boy had raped a two-year-old girl and was convicted by the Court for the same. To bring down the sentence of the punishment, the counsel on behalf of the accused urged the Court to take into consideration Sections 83 and 84 of the Indian Penal Code that children and adults are not to be treated in a similar manner while hearing a criminal matter. The Court though convicted the child for the offence of rape, it reduced the sentence of punishment by accepting the aforementioned argument of the counsel on behalf of the accused child. Hence, it can be concluded from the judgment that Section 82 and 83 do not only provide for ‘doli incapax’ but they also act as a signal to the courts while deciding a case that children are not to be treated as equal to adults in criminal cases. It has indeed become a settled principle of law that when courts are dealing with children, it must take a humanitarian view and should ensure reformation of the child rather than making him a hardcore criminal.
In Krishna Bhagwan v. State of Bihar, the High Court of Patna held that if at the time of the commission of the offence or during the trial or at the time of the judgment, the accused child has attained the age of seven years then such an accused child can be convicted by the Court if it can be proved that the accused child is able to understand the nature and the consequences of the offence so done by him.
In Santosh Roy v. State of West Bengal, the High Court of Calcutta held that a witness statement of a child between the ages of seven to twelve years cannot be directly ignored by a Court on the basis of the idea of doli incapax i.e., the inability of the child to understand the difference between right and wrong. The Court, in order to satisfy itself with regards to the level of understanding of right and wrong of the child, may ask the child witness a few basic questions. If the Court is satisfied as to the level of understanding of the child, the witness statement of such a child whose age is between seven to twelve years cannot be ignored by the Court.
In Heeralal Mallick v. State of Bihar, the Supreme Court of India referred to R. v. Kershaw to hold that actus reus cannot be relied upon to be evidence for mens rea. It must be adduced that the child knew that he was doing something morally wrong which would prove the intention i.e., the mens rea of the accused child.
International application of ‘Doli Incapax’
Minimum Age of Criminal Responsibility is the age below which a person cannot be held liable for any criminal offence committed by him due to the internationally accepted Latin legal maxim- doli incapax which in Latin means ‘incapability of committing a crime’. Article 40(3) (a) of the United Nations Convention on Rights of the Child states that every country must mention the minimum age below which all the children will be considered to be exempted from any criminal liability due to their inability to understand the nature and consequences of their Act. The Committee on the Rights of the Child considers that any country where the Minimum Age of Criminal Responsibility is below the age of twelve years is doing great injustice to the children and such an act is internationally unacceptable. The Committee on Rights of the Child criticised India for having the Minimum Age of Criminal Responsibility which is below the age of twelve years, at seven years. However, even after the criticism, the Government of India did not make any change in the Minimum Age of Criminal Responsibility when it passed the Juvenile Justice (Care and Protection of Children) Act, 2015.
‘Doli incapax’ is a Latin legal maxim which means ‘incapability of committing a crime’. The application of this legal maxim can be seen in Sections 82 and 83 of the Indian Penal Code, 1860. In India, children under the age of seven years are completely exempted from any criminal liability by the virtue of Section 82 of the Indian Penal Code. Under Section 83 of the Indian Penal Code children between the ages of seven to twelve years are exempted from criminal liability if it can be sufficiently proved that the accused child lacked mental capability and understanding to know the consequences of his act. The presumption of innocence is not in the favour of the accused child and it has to be proved by the defence that the accused child lacked the mental capability for the purpose of committing the crime. The children are exempted from such criminal liability as they lack properly developed mental faculties to understand the difference between right and wrong. Accordingly, they lack the intention to commit an offence, that is, mens rea without which a person can generally not be prosecuted by the Court under a criminal offence.
 Professor Colin Harward, Criminal Law, 4th ed. (1982), p.343.
 Section 82, Indian Penal Code, 1860.
 Section 83, Indian Penal Code, 1860.
 Section 108, Explanation-3, Indian Penal Code, 1860.
 Section 108, Explanation-3, Illustration-a, Indian Penal Code, 1860.
 Heeralal v. State of Bihar, AIR 1977 SC 2236.
 Kakoo v.State of Himmachal Pradesh, 1976 SCC (Cri) 270.
 Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217.
 Santosh Roy v. State of West Bengal, 1992 CriLJ 2493.
 Heeralal Mallick v. State of Bihar, 1978 SCR (1) 301.
 R. v. Kershaw, 1902 18 T.L.R. 357.
About the Author: Abhishek is 2018-23 Batch student at Gujarat National Law University, Gandhinagar.
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