Dolus incapax and Dolus capax

NATIONAL LAW UNIVERSITY, ODISHA

SUBJECT- CRIMINAL LAW 1

SEMESTER IV

TOPIC- Dolus Incapax and Dolus Capax

(Age as a defence in Criminal Law)

SUBMITTED TO

Ms. Rashmi Rekha Baug,

RESEARCH ASSOCIATE CUM TEACHING ASSISTANT.

SUBMITTED BY: SIBASISH PANDA

(2020\ BBA \092)

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 Dolus incapax and Dolus capax

Contents
Cases......................................................................................................................................................5
Statutes.................................................................................................................................................5
RESEARCH METHODOLOGY...................................................................................................................6
SCOPE................................................................................................................................................6
OBJECTIVES........................................................................................................................................6
RESEARCH QUESTIONS......................................................................................................................6
HYPOTHESIS.......................................................................................................................................6
INTRODUCTION.....................................................................................................................................7
Legal provisions under the Indian Penal Code, 1860.........................................................................7
“

Section 82: Absolute immunity......................................................................................................7

Section 83: Qualified or partial immunity......................................................................................8
Ingredients of Section 83...............................................................................................................8
Case laws for Section 83 or Partial Incapax....................................................................................9
Test of qualified immunity under section 83 IPC: ..............................................................................9
”

Evaluation of Juvenile Justice (Care and Protection of Children) Act, 2000.........................................11

A debate over why does infancy act as a defence?.............................................................................14
Can children never be charged with crimes?.......................................................................................14
Conclusion...........................................................................................................................................16
BIBLIOGRAPHY.....................................................................................................................................17

Cases
Commonwealth v. Ogden O (Mass. 2007).................................................................................7
Hiralal v. “State of Bihar, 1977 SCC (4) 44..............................................................................9
Kakoo vs. The State Of Himachal Pradesh,AIR 1976 SC 778..................................................8
Krishna “Bhagwan v. the State of Bihar, 1988 SCR (3) 1.........................................................8
Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551...........................................................12
Queen vs Begarayi Krishan Saranu, (1883) ILR 6 Mad 373.....................................................9
R v LMW [1999] NSWSC 1342................................................................................................9

Statutes
Children and Young Persons Act ,1933 § 50.......................................................................................16

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 Dolus incapax and Dolus capax

Crime and Disorder Act, 1998 § 34.....................................................................................................16

Indian Penal Code,1860, § 3........................................................................................................7, 8, 14
Indian Penal Code,1860, § 82................................................................................................................7
Indian Penal Code,1860, § 83................................................................................................................8
Juvenile Justice Act,2015, § 15...........................................................................................................12
Juvenile Justice Act,2015, § 3(i)..........................................................................................................12

RESEARCH METHODOLOGY
SCOPE

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 Dolus incapax and Dolus capax

The research shall be in depth study of the maxim of doli incapax which means mental
inability of a child to commit an offence because of the premature growth of mind and
various law, cases and statutes related to the same and for the protection of these
juveniles.

OBJECTIVES
a) To understand the meaning of doli incapax and its position in the Indian Penal
Code citing various case laws.

b) To evaluate further how juvenile justice Act of 2000 and its amendment of 2015.

c) To understand the concept of age determination in crimes in laws of other

countries w.r.t India.

d) The introduction of JJ Act, 2015 after the infamous outrageous case

RESEARCH QUESTIONS
a) Understanding the concept of doli incapax and doli capax.

b) Debate over why children below certain age cannot be persecuted.

c) Juvenile Rights in India and its comparison to the international laws.

HYPOTHESIS
Juvenile Justice Act 2015 has moved away from the reformative theory of justice and its
attempt to treat children as adults is not in consonance with the constitutional spirit as well as
the international conventions protecting the interests of minors.

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 Dolus incapax and Dolus capax

INTRODUCTION.

'Doli incapax' is a Latin legal maxim that translates as 'inability to commit a crime.' In most
“

nations, this word refers to the assumption of innocence for minors in criminal law.
In a legal sense, both boys and girls under the age of seven are considered babies and cannot
be criminally charged since they lack awareness of what is and is not a criminal. In other
words, they have a natural inability to discriminate between what is good and what is wrong
and are thus immune to punishment under English and Roman law. We find this term in the
Indian Penal Code, 1860 in Section 821, and in the Juvenile Justice Act, 20152 in India. ”

The term "doli capax" means capable of committing a crime or tort or a person old enough to
determine right from wrong. As enunciated by the early English common law, in criminal
cases, an infant of the age of 14 years may be capitally punished for any capital offence but
under the age of 7 he cannot.3 The era between 7 and 14 is fraught with uncertainty. For the
new born shall, in general, be found prima facie innocent; nevertheless, if s/he was doli
capax, and could discern between good and evil at the time of the sin committed, s/he may be
condemned and endure judgement and execution of death, despite not having reached puberty
or discretion.4

Legal provisions under the Indian Penal Code, 1860.

Section 82: Absolute immunity

Section 825 of the Indian Penal Code, 1860, Chapter IV, pertaining to 'General Exceptions,'
states that any act committed by a kid under the age of seven is not an offence: "Nothing
committed by a child under the age of seven constitutes an offence." As a result, no kid under
the age of seven may be held legally accountable. Because a kid under such an age is
“

incapable of deciding between good and wrong, the law grants such a youngster entire
immunity from criminal prosecution, trial, and conviction.6 While explaining why infants are
exempt from criminal liability, Blackstone stated that infancy is a defect of understanding and
thus infants under the age of discretion should not be punished. However, it is pertinent to
note that the age of discretion varies from country to country. Section 82 has a wide scope
and the protection provided to infants extends not only to offences under the I.P.C. but under
local and special laws as well. ”

1
Indian Penal Code,1860, § 82.
2
Juvenile Justice Act,2015.
3
'CRIMES BY MINORS: PRINCIPLE OF DOLI INCAPAX - Law Circa' (Law Circa, 2022)
<https://lawcirca.com/crimes-by-minors-principle-of-doli-incapax/> accessed 24 April 2022.
4
Commonwealth v. Ogden O (Mass. 2007).
5
Indian Penal Code,1860, § 82.
6
'What Is "Doli Incapax" In Which Section Of IPC It Lies? - Strictlylegal' (StrictlyLegal, 2022)
<https://strictlylegal.in/what-is-doli-incapax/#:~:text=In%20doli%20incapax%20under%20IPC,maturity%20to
%20understand%20the%20crime.> accessed 24 April 2022.

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 Dolus incapax and Dolus capax

In Krishna Bhagwan v. the State of Bihar7, Patna High Court upheld that if a child who is
“

accused of an offense during the trial, has attained the age of seven years or at the time of the
decision the child has attained the age of seven years can be convicted if he has the
understanding knowledge of the offense committed by him. ”

In Kakoo vs. The State Of Himachal Pradesh8, Kakoo who was of thirteen years had
committed rape on the child of 2 years and was sentenced to 4 years of rigorous
imprisonment by the trial court, and the high court upheld the decision.
The defence lawyer used sections 82 and 83 of the Indian Penal Code.
This occurred in 1976, when legislation for juvenile and minor delinquents were still being
drafted, and Himachal Pradesh had no enactment in force at the time.
Taking into account all the circumstances of the case, we are of the opinion that the ends of
“

justice will be served by reducing the appellant's sentence to one year's rigorous
imprisonment and a fine of Rupees 2,000/-, and in default of payment of fine, to suffer six
months' further rigorous imprisonment, the court stated. The appellant will be held apart from
adult inmates. He should preferably be detained in a Reformatory School, if any, for the said
” “

period. The fine, if realized, shall be paid as compensation to Shrimati Parmeshwari Devi, the
mother of the victim baby. ”

Section 83: Qualified or partial immunity

Section 839 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.

1. The act is committed by the child.

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

This implies that a kid aged 7 to 12 will be exonerated of criminal culpability only if it can be
“

demonstrated that, at the time of the offence, the child lacked the maturity of knowledge to
determine the nature and consequences of his actions. The nature of the crime, the kid's

7
Krishna “Bhagwan v. the State of Bihar, 1988 SCR (3) .
8
Kakoo vs. The State Of Himachal Pradesh,AIR 1976 SC 778.
9
Indian Penal Code,1860, § 83.

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behaviour before and after the act, his behaviour, and conduct in court are all crucial
variables in determining whether the youngster has acquired appropriate maturity of
understanding. ”

Example: A, a ten-year-old boy, visits his friend B's house and picks up his mother's silver
bracelet, valued at Rs. 1000, from the table, selling it for Rs. 500 and misappropriating the
money. A's acts demonstrate that he was old enough to comprehend the nature and
implications of his activities, and as a result, he was guilty of theft under Section 378 of the
I.P.C.

Case laws for Section 83 or Partial Incapax.

In Hiralal v. State of Bihar10, an 11-year-old youngster spat with the deceased and threatened
“

to hack him into pieces. The youngster took the knife and stabbed the dead to death.
Section 83 of the Indian Penal Code was invoked as a defence. The trial court convicted the
youngster, dismissing the defence, since the child's remarks, gestures, attack, possession of a
knife, and eventually stabbing the dead demonstrated that the child was aware of the
repercussions of his conduct. ”

In the case of R v. LMW11, a 10-year-old boy, LMW, was charged with manslaughter in the
“

drowning death of 6-year-old Corey Davis on March 2, 1998. Corey had been thrown into the
Georges River by the defendant, who knew Corey couldn't swim.
The jury found that the defendant not guilty of manslaughter because the jury agreed with the
defence that Corey's drowning was an act of bullying gone bad. The question of Doli incapax
was raised in this case, which holds that any youngster aged 7 to 12 is incapable of criminal
intent unless proven differently. ”

In Krishna (1883) 6 Mad. 37312, a 9-year child stole a necklace worth Rs. 280 and sold it to
“

B, the accused for 5 annas. Evidence at the trial showed that the child had attained sufficient
maturity of understanding the nature of act done and the consequences it would fetch.
Therefore, the child notwithstanding doli incapax ipc section 83 was guilty of theft and B was
charged under section 411 i.e guilty of receiving stolen property. ”

Test of qualified immunity under section 83 IPC:

The test of qualified immunity is based on three factors

“

1. The nature of act done.

2. Subsequent conduct of the offender,
3. Demeanour and appearance of the offender in the court.

10
Hiralal v. “State of Bihar, 1977 SCC (4) 44.
11
R v LMW [1999] NSWSC 1342.
12
Queen vs Begarayi Krishan Saranu, (1883) ILR 6 Mad 373.

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In Queen v. Lukhini Agradanini, a girl below 12 years of age was tried for a charge of
arson. The Jury found the child was aware of the nature of her act, but she is not aware that
she would be imprisoned in consequence. ”

Difference between Indian and England Law , Australian and

German law.

In 1954, Glanville Williams published ‘The criminal responsibility of children’ in the

“

Criminal Law Review, which drew together a range of criticisms of the doli incapax
presumption for children between 10 and 14 that featured in the thinking of English and
Australian judges as they considered an ever‐increasing number of cases going to appeal on
the doli incapax rule, with many English judges coming to regard the rule ‘with increasing
unease and perhaps rank disapproval’. ”

This idea of children’s conditional criminal responsibility is understood in English and

“

Australian common law as the requirement that the prosecution rebut a presumption that a
child between the ages of absolute criminal irresponsibility and full criminal responsibility is
doli incapax (Strafunmündigkeit), that is, incapable of wrongdoing.13 In German law, it is
expressed slightly differently, with the court required to establish that the child is sufficiently
mature, morally and psychologically, to be regarded as criminally responsible, and to take
different, welfare measures if they are not. ”

The jurisprudence which emerged in these cases determined, first, that the act (actus reus)
“

itself was insufficient to establish that the defendant was criminally responsible. ‘The
commission of a crime was in itself no evidence of the guilty state of mind’ and ‘that which is
termed a malicious intent ‐ a guilty knowledge that he was doing wrong ‐ must be proved by
the evidence, and cannot be presumed by the mere commission of the act. ”

In India, a kid under the age of seven is believed to be completely free from criminal
culpability, but in England, the age is set at ten.
The idea of doli incapax was repealed by the English government in 1998. This was the legal
“

assumption that children under the age of 14 could not comprehend the difference between
right and wrong and were hence incapable of committing an infraction. ”

This assumption might be contradicted by evidence for minors aged 10 to 14 if the

“

prosecution could show that the youngster understood what he or she was doing was gravely
wrong and not "merely bad or malevolent." In India, a kid aged 7 to 12 is believed to have
qualified immunity and is presumed to be in 'doli incapax,' hence the burden of rebutting the
presumption is on him to prove that he was of that age range. ”

13
(2022) <https://www.jstor.org/stable/pdf/44026212.pdf?refreqid=fastly-default
%3A1a3f583d63604cc9fe6a2bf5e0192da4&ab_segments=0%2Fbasic_search> accessed 24 April 2022.

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In England, a 14-year-old boy cannot be convicted of rape or any other criminal involving
sexual intercourse. However, no similar exemption has been provided to boys in India, which
is the primary objection under this portion of Indian law.

Evaluation of Juvenile Justice (Care and Protection of Children) Act, 2000.

It is also required to read the JJ Act of 2000, which regulates the procedure for crimes
“

committed by children, in order to comprehend crimes perpetrated by minors. As previously

stated, the JJ Act addresses offences committed by individuals under the age of 18.
According to the Act, children or adolescents who are found to be in violation of the
legislation must appear before the Juvenile Justice Board (JJB). ”

Under the JJ Act, offences have been categorized into 3 levels:

“

1. Petty offences – These are offences for which the maximum punishment under
the IPC or any other law is imprisonment of up to 3 years.
2. Serious offences – These are offences for which the punishment under the IPC or
any other law is imprisonment of 3 to 7 years.
3. Heinous offences – These are offences for which the punishment under the IPC
or any other law is imprisonment of 7 years or more. ”

The Act states that when a child below the age of 16 years commits any offence, the JJ Board
“

may pass any of the following orders:

 Allow the child to go home after advice or admonition

 Direct the child to participate in group counselling.
”

 Order the child to perform community service.

 Order the child or parents or the guardian of the child to pay fine
 Direct the child to be sent to a special home, for such period, not exceeding three
years.”

The child may be tried as an adult in some circumstances. When a juvenile between the ages
“

of 16 and 18 commits a terrible crime, the minor must first appear before the JJ Board. The
Board will next undertake a preliminary examination of the accused, determining if the
youngster has the ability to commit such an offence and whether the child understands the
implications of the crime. Following this evaluation, the Board will decide whether or not the
kid should be tried as an adult. As a result, it is understandable that youth between the ages of
16 and 18, who have committed an offence and have been tested and determined to be
capable of understanding the consequences of their actions. ”

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In the case of Pratap Singh v. State of Jharkhand14, the Court was asked whether the date of
the conduct of an offence or the date on which the accused was shown before the Court
should be taken into account. The Supreme Court ruled that the date of the offence should be
considered as the date for assessing the accused's age.
The Juvenile Justice (Care and Protection of Children) Act of 2015 establishes a child-
“

friendly method to dealing with child and juvenile offenders/accused, including adjudication
and disposition of cases in the best interests of children, as well as rehabilitation. A kid or a
juvenile is defined by the Act as someone who has not reached the age of eighteen. It ”

addresses the following topics:

1. Child in conflict with the law- A child who is alleged or is found to have
“

committed an offence and who has not completed 18 years of age on the date of
commission of the offence.
2. Child in need of care and protection-This includes children without any home,
children found working in contravention of labour laws, mentally ill or physically
challenged children or abandoned children etc. ”

Section 3(i)15 of the Act provides for the principle of presumption of innocence to be
followed in the administration of the Act which lays down that, “Any child shall be presumed
to be innocent of any malafide or criminal intent up to the age of 18 years”.

Also, the Act under Chapter IV comprehensively deals with the procedure in relation to
“

children in conflict with the law. Special procedure is provided for dealing with children who
are accused of a criminal act in that the child cannot be placed in a police lock-up or lodged
in jail and the person in whose charge a child in conflict with law is placed shall undertake
the responsibility of a child as a parent. ”

However, Section 1516 of the Act provides for circumstances where a juvenile may be tried as
“

an adult which are as follows:

1. Age of child: The child has completed 16 years of age or is above 16 years of age.
2. In case of heinous offence: The child is alleged to have committed a heinous
offence i.e. an offence punishable with minimum imprisonment of 7 years or more.
3. A preliminary assessment by Board: A preliminary assessment shall be
conducted by the Board with regard to the children-

1. Child’s mental and physical capacity to commit the crime,

2. His ability to understand the consequences of the offence, and
3. The circumstances in which the offence was allegedly committed by him. ”

14
Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551.
15
Juvenile Justice Act,2015, § 3(i).
16
Juvenile Justice Act,2015, § 15.

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4. The assistance of experts: The Board is empowered to take the assistance of

“

experienced psychologists, or psycho-social workers, or other experts for the

purpose of conducting such assessment as aforesaid. ”

5. Matter to be disposed of by Board: If the Board is satisfied on such preliminary

“

assessment that the matter should be disposed of by the Board, then the Board
shall follow the procedure laid down for trial in summons case under the Code of
Criminal Procedure, 1973. ”

6. Trial as an adult: Section 18(3) provides that if the Board is satisfied after the
preliminary assessment that there is a need to try such a child as an adult, it may
order the transfer of the trial of the case to the Children’s Court having jurisdiction
to try such offences.

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A debate over why does infancy act as a defence?

In these situations, the scenario is founded on the concept that a kid under the age of seven,
“

i.e. during infancy or babyhood, lacks the mental ability to grasp the nature and consequences
of their acts and so lacks the ability to create the necessary guilty mind or any purpose.
It should be highlighted that such an age was not determined based on any knowledge of
child psychology, but rather is merely an expression of public policy, a practical functioning
approach, and not always any observable truth. ”

Since Doli incapex was already a well-established notion in English and Roman law, it's safe
to assume that the Indian Penal Code (IPC) took the concept from there. As a result, there's
no explicit justification for the '7 years' age restriction.17
These youngsters are given defence in the form of total immunity. If a kid reaches the age of
“

seven and commits a crime, the court will impose appropriate measures, such as requiring
required treatment sessions, based on the child's maturity of understanding and criminal
capability. It's also known as a 'qualified immunity' case, and it's covered under Indian Penal
Code section 8318. ”

Neuroscience suggests that the pre-frontal cortex (responsible for executive functions, such
“

as problem-solving, planning, and decision making) is only fully developed after the age of
24. At 7 years old, our ability to fully comprehend the impact of our actions is simply not
present. This could possibly give reason to the 7 years of age bar fixed. ”

Can children never be charged with crimes?

The presumption of section 83 is rebuttable in doli incapax under the IPC, and the defendant
“

bears the burden of rebutting. A youngster between the ages of 7 and 12 possesses the
defence of 'doli incapax' if it can be proven that the child lacked the capacity to understand
the crime.
Essentially, the CrPC allows for a presumption of innocence in favour of minors between the
ages of 7 and 12, but if the prosecution can show and present evidence to the contrary, the kid
can be prosecuted. ”

However, if the kid is under the age of seven, he or she has entire immunity and cannot be
held accountable under any circumstances.

17
'Doli Incapax - Law Times Journal' (Law Times Journal, 2022) <https://lawtimesjournal.in/doli-incapax/>
accessed 24 April 2022
18
Indian Penal Code,1860, § 83.

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Conclusion

Section 50 of the Children and Young Persons Act of 193319 in the United Kingdom states
“

that no child under the age of ten can be convicted of any crime. However, in England and
Wales, Section 34 of the Crime and Disorder Act, 199820 repealed the rebuttable presumption
that a child above the age of ten is doli incapax.
As it stands now, the proposed policy under the 2015 Act is in violation of recognised
juvenile law norms. However, as many have said, the solution is to focus on the
implementation of the 2000 Act rather than going back to the beginning. As the present
discussion over the juvenile's release in the Nirbhaya rape case demonstrates, the 2000 Act
likewise falls short of genuinely guaranteeing juvenile offenders' rehabilitation because they
can only be imprisoned for three years.21
The law depicts the wrongdoings it rebuffs so that the guilty party's perspective or will is
cognizant that their actions will bring about an infringement of the law and discipline. A
youngster beyond 16 years old is full grown to the point of appreciating the idea of the
wrongdoing carried out to make mens rea, and ought not be dared to be excessively honest. A
rehabilitative framework that joins endless discipline with helpful standards would find some
kind of harmony between the government assistance of the youthful wrongdoer and public
wellbeing concerns.
In Australia, the minimum age of criminal responsibility at which a child is regarded
incapable of committing a crime is 7 years old, and the rebuttable presumption of doli
incapax applies to all minors from 10 to 14 years at the time an accused act is committed.
While there may be debates and criticisms about the impossibility to come up with a defined
age at which a kid should be classified doli incapax, the theory of doli incapax is vital in
safeguarding young children from the harsh punishments of the law. When drafting penal
laws, particularly those dealing with children, it is important to remember that children under
the age of eighteen are unable to understand what is right and wrong, and that children must
be treated with care and compassion, with a reformatory approach, and that the strict rigours
of the law cannot and should not be used against them. ”

19
Children and Young Persons Act ,1933 § 50.
20
Crime and Disorder Act, 1998 § 34.
21
'Doli Incapax - Law Times Journal' (Law Times Journal, 2022) <https://lawtimesjournal.in/doli-incapax/>
accessed 24 April 2022

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BIBLIOGRAPHY

'Doli Capax' (Oxford Reference, 2022)

<https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095725300>
accessed 24 April 2022.

(2022) <https://www.jstor.org/stable/pdf/44026212.pdf?refreqid=fastly-default
%3A1a3f583d63604cc9fe6a2bf5e0192da4&ab_segments=0%2Fbasic_search> accessed 24
April 2022.

'CRIMES BY MINORS: PRINCIPLE OF DOLI INCAPAX - Law Circa' (Law Circa, 2022)
<https://lawcirca.com/crimes-by-minors-principle-of-doli-incapax/> accessed 24 April 2022.

'Doli Incapax - Law Times Journal' (Law Times Journal, 2022)

<https://lawtimesjournal.in/doli-incapax/> accessed 24 April 2022.

https://strictlylegal.in/what-is-doli-incapax/#:~:text=In%20doli%20incapax%20under
%20IPC,maturity%20to%20understand%20the%20crime.

'What Is "Doli Incapax" In Which Section Of IPC It Lies? - Strictlylegal' (StrictlyLegal,

2022) <https://strictlylegal.in/what-is-doli-incapax/#:~:text=In%20doli%20incapax%20under
%20IPC,maturity%20to%20understand%20the%20crime.> accessed 24 April 2022.

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