The Principle of Doli Incapax: Children and their

Responsibility for Crimes committed in India.

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contributions of different Authors with their respective sources which will be taken up assiduously at the time of
paper publication with proper formatting. The current submission of the topic is with respect to reflection of ideas
and formulations on which the Paper publication shall be carried out along with constructive inputs of Associate
Dean.)
Abstract
Doli Incapax extrapolates to the core foundation that children associated with age of immaturity,
lack the platform to understand nature of criminal activities and consequences of it. This doctrine
promulgates that the incompetence of a wrong doer on the basis of juvenility is the harbinger that
forms the aspects of evaluating the crime. Since a long time, the legislators and eventually courts
have been interpreting juvenility on the basis of age only but now there is a paradigm shift,
wherein the courts are trying to establish juvenility not only on the basis of biology but also on
the basis of mentality. India being a welfare state, is under a continuous obligation to uphold the
wellbeing of juveniles, yet the range of offences, the gravity and atrocity of the crimes
committed by the juveniles propel us all to think that the aetiology of the crimes committed by
the juveniles and how much justified would it be to give them the benefit of doli incapax.The gap
as such places the Juvenile's maturity to understand depth of things. The legal system related to
juvenile justice is transforming and the courts are willing to rebut the contentions of doli incapax
of juveniles based on the age compared with their understanding.
Keywords: Doli Incapax, Juvenile, capacity
1. Introduction
Children Are Like Buds in A Garden and Should Be Carefully and Lovingly Nurtured, As They
Are the Future of the Nation and the Citizens of Tomorrow – Pt. Jawaharlal Nehru

Doli incapax is a legal maxim of Latin origin. It literally means ‘incapable of doing harm.
Doli Incapax‘ Is A Latin Legal Maxim That Infers The Meaning ‘Incapability Of Committing A
Crime’. This Term Has Been Used To Describe An Assumption Of Guiltlessness For Children In
Criminal Law In Most Countries. We Find This Term In The Indian Penal Code, 1860 In Section
82, And In The Juvenile Justice Act, 2015 In India. In A Legal Sense, Both Boys And Girls
Under The Age Of 7 Are Held To Be Infants And Cannot Be Charged For A Crime As It Is A
Defect Of Understanding In Regard To What A Crime Is Or What Not A Crime Is. In Other

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Words, They Are Under A Natural Disability From Distinguishing What Is Good And What Is
Bad And Are Protected From Punishment Under English Law. This Term Has Been Used To
Describe An Assumption Of Guiltlessness For Children In Criminal Law In Most Countries.
The Presumption Of Doli Incapax Presumes That A Child Between 10 And 14 Does Not Have
The Capacity To Differentiate Between Right And Wrong. The Presumption Creates The
Requirement That The Prosecution Proves That A Particular Child Has The Capacity.
2. Minimum Age of Criminal Responsibility in India:
Understanding The Meaning Of Criminal Responsibility Is Often Used Synonymously With
‘Liability’. ‘As Was Pointed Out A Century Back, When The Issue Of Responsibility Is Raised
In A Criminal Case, The Real Or Ultimate Question That Has To Be Determined Is Whether At
The Time Of The Act, The Accused Had The Mental Capacity To Entertain A Criminal Intent-
Whether In Point Of Fact, He Did Entertain The Criminal Intent.’
The Concept Of Criminal Responsibility Is An Important Basis For The Relationship Between
Law And Psychoanalysis. 2. Doli Incapax - The Criminal Responsibility Of Children Article 82
Of The Indian Penal Code (Ipc) Presupposes This And Grants Absolute Immunity From
Criminal Liability To Children Under The Age Of Seven. It Stipulates That Any Behavior By A
Child Under The Age Of Seven Does Not Constitute A Crime. Therefore, If A Child Under The
Age Of 7 Is Prosecuted, An Application Can Be Made Under Section 82 Of The Indian Penal
Code To Stop The Same.

It Is Based On The Understanding That Children Under The Age Of 7 Do Not Have The
Intellectual Capacity To Reflect On And Understand The Impact Of Their Behaviour And
Therefore Lack The Potential To Shape Mens Rea (Guilty Mind Or Guilty Intention). Similarly,
Section 83 Protects Children Above The Age Of Seven Years But Below The Age Of Twelve
Years Since They Lack The Maturity To Understand The Consequences Of Their Own Acts.
Effective Law In Himachal Pradesh. The Attorney Presented His Defence In Accordance With
Articles 82 And 83 Of The Indian Penal Code.

3. Upper age limit of juvenile justice

This is the age below which a person will be dealt with as per the rules of juvenile justice and
above which an accused person can be subjected to the adult system of prosecution and
punishment. The CRC unequivocally condemned States that have treated 16 and 17 years olds as
adult criminals and urged them to modify their laws to ensure that all persons below 18 years are
dealt with under juvenile justice to ensure the right to equality and non-discrimination.
The JJ Act, 2015, allows those above 16 and below 18 years alleged to have committed a
heinous offence to be tried as adults, if they are transferred by the JJB to the adult court. The JJB
should assess the child’s physical and mental capacity, the circumstances in which the offence
was committed, and whether the child had the ability to understand the consequences of the
offence.

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Such an assessment inherently violates the presumption of innocence and jeopardises the
constitutional privilege against self-incrimination available to all accused persons. Crucially, no
objective assessment is possible because there are no scientific tools or tests available to assess
whether the child had the maturity of an adult. Such a sham of an assessment does not meet
constitutional standards of procedural fairness and equality or international standards on juvenile
justice.
The Juvenile Justice Act of 2000 was amended in 2015 with a provision allowing for Children in
Conflict with Law (CCL) to be tried as adults under certain circumstances. The Act defines a
child as someone who is under age 18. For a CCL, age on the date of the offence is the basis for
determining whether he or she was a child or an adult.
The amended Act distinguishes children in the age group 16-18 as a category which can be tried
as adults if they are alleged to have committed a heinous offence — one that attracts a minimum
punishment of seven years. The Act does not, however, make it mandatory for all children in this
age group to be tried as adults.
4. Legal Provisions Indian Penal Code
Section 82 and Section 83 of the IPC deals with offences committed by children.
Section 82 states that “nothing is an offence which is done by a child under seven years of age.”
This provision gives total immunity to children below the age of 7 years from being charged,
tried, and convicted for any offence prescribed under the IPC or other legal provisions.
In the case of Shyam Bahadur Koeri v. State of Bihar[vii], a child below the age of 7 years
discovered a gold plate that weighed 28 tolas. However, after recovering it, he did not report it to
the Collector. When the Collector came to know of this, he ordered the prosecution of the child
under the Indian Treasure Trove Act, 1878. The Court acquitted the child holding that he had the
benefit of Section 82 of the IPC as he was below 7 years of age.
Section 83 of the IPC states 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.”[viii]
This Section deals with offences committed by a child above the age of 7 years and below the
age of 12 years. To prosecute a child under this Section, the following essentials must be
satisfied:
The act must be done by a child.
The child must be above 7 years and below 12 years of age.
The child must not have attained sufficient maturity to understand the nature and consequences
of their conduct.
This section provides that when a child above the age of 7 years and below the age of 12 years is
said to have committed an offence if the Court can ascertain that the child had sufficient maturity
to understand the nature and consequences of their actions. In this instance, the term
“consequence of his conduct” does not mean the penal consequences but the natural
consequences of their conduct.

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The proof of sufficient maturity can be ascertained depending upon the facts and circumstances
of each case. In general cases, it can be ascertained from the following:
The nature of the act committed by the child.
The subsequent conduct of the child after committing such an act.
The appearance of the child before the Court of Law.
In the case of Hiralal Mallick v. State of Bihar, the accused was below the age of 12 years and
had a dispute with the victim in relation to an earlier attack on his father. The accused, armed
with a sharp weapon, along with his elder brothers, gave several blows to the victim on his vital
body parts, causing the death of the victim. The accused was charged with murder under Section
302 of the IPC. The accused pleaded the defence under Section 83. The Court analysed the
medical evidence, which showed that the child was armed with a cutting instrument and set upon
the victim using the sword on his neck. The autopsy evidence disclosed that the injuries caused
by the accused were not the lethal ones but multiple swords cuts on the neck of a man, leaving
little room for doubt in the ordinary run of cases as to the intent of the accused. When three
persons, with swords in their hands, attack a single individual and strike on his neck and skull
several times with a sharp weapon, it is not caressing but killing, in all conscience and common
sense. The Court rejected the defence of the child and convicted him holding that the act of the
accused of stabbing the victim with a sharp weapon shows that the accused had attained
sufficient maturity of understanding to judge the nature and consequences of his act.
5. Maturity of understanding
Under Section 83 it clearly states that crimes and offences played by a child above the age of 7
and under the age of 12, in such cases, the court will refer to the level of understanding and
prescribe the knowledge of a child related to such activity, which means that the court will try to
examine and identify whether the child has enough capacity to understand the nature and scope
of the consequences of his particular actions. The effects related to the behavioural part would
lead to criminal consequences, we cannot stimulate it into the normal activity of behaving.
Until indicting a youngster, beyond seven years old and younger than twelve, a court relies upon
for direct examination and gives a finding of reality with respect to whether the child has an
adequate comprehension to decide the pith of the ramifications of his demonstration. On the
grounds of the considerable number of conditions of the case, the proof of satisfactory skill can
be looked for by a jury.

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

To understand crimes committed by minors, it is also necessary to study the JJ Act of 2000
which prescribes the procedure relating to crimes committed by minors. As mentioned earlier,
the JJ Act deals with offences committed by persons who have not completed the age of 18
years. The Act states that children or juveniles who are found to be in conflict with the law are to
be produced before the Juvenile Justice Board (JJB).

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

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Petty offences – These are offences for which the maximum punishment under the IPC or any
other law is imprisonment of up to 3 years.

Serious offences – These are offences for which the punishment under the IPC or any other law
is imprisonment of 3 to 7 years.

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.[x]

In certain cases, the child can be tried as an adult. When a heinous offence is committed by a
child between the ages of 16 to 18 years, the child shall first be produced before the JJ Board.
The Board shall then conduct a preliminary assessment of the accused, assessing the capacity of
the child to commit such an offence, and assessing whether the child is able to understand the
consequences of the offence. After such an assessment, the Board shall decide whether the child
shall be tried as an adult. Therefore, it can be understood that children between the ages of 16
and 18 years, who have committed an offence and have been assessed and concluded to be able
to understand the consequences of an offence, can be tried as adults.

In the case of Pratap Singh v. State of Jharkhand, there was a question before the Court that
whether the date of commission of an offence or the date on which the accused was produced
before the Court should be considered. The Supreme Court held that the date of the commission
of the offence should be recognised as the date for determining the age of the accused.
6. Case laws for Section 83 or Partial Incapax
In Krishna Bhagwan v. the State of Bihar, 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.

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In the case of Hiralal v. State of Bihar an 11-year-old child quarreled with the deceased and
threatened to cut the deceased into pieces. The child picked up the knife and actually stabbed the
deceased to death.
The defense under Section 83 of the Indian Penal Code was pleaded. The trial court convicted
the boy rejecting the defense because the child’s words, gesture, assault, keeping a knife and
ultimately stabbing the deceased proved that the child had the knowledge and understanding of
the consequences of his actions.
The Supreme Court upheld the decision of the High Court.
In Kakoo vs. The State Of Himachal Pradesh 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 counsel pleaded defence under section 82 and 83 of the Indian Penal Code.
This took place in 1976 when laws for juvenile and child delinquents were not fully developed,
and Himachal Pradesh did not have any enactment in force at the time.
The court, however, stated, “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 sentence of the appellant 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 appellant shall be detained separately
from adult prisoners. He should preferably be detained in a Reformatory School, if any, for the
said period. The fine, if realised, shall be paid as compensation to Shrimati Parmeshwari Devi,
the mother of the victim baby.”
In the case of R v. LMW, a 10-year-old boy, LMW, was charged with the manslaughter of 6-
year-old Corey Davis, who drowned on 2 March 1998. The defendant had dropped Corey into
the Georges River, knowing that Corey was unable to swim.

The defendant was found not guilty of manslaughter, as the jury supported the defence case that
the drowning of Corey had been ‘an act of bullying that went wrong’. This case raised the issue
of Doli incapax, which presumes any child aged 7-12 is incapable of criminal intent unless
proven otherwise.
7. Suggestions:
A refined approach shall be taken by the Home Minister of India in consultation with all the
States on how law and order shall be maintained against the crimes that are committed by
Juveniles.
There needs to be awareness created starting from the primary and secondary education in India
and subjects that relates to moral, ethics, values and conduct shall be imbibed into the education
system, with quarterly assemblies arranged within schools to have a discussion on the delinquent
aspects and a constructive approach to stay away from any form of wrong doings.

There needs to be a reformatory approach as the technology has far outreached globally and
India shall take into consideration the laws being followed universally with respect to Juvenile

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