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DAMODARAM SANJIVAYYA
NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
Critical and Legal analysis of the legal Maxim ‘Doli Incapax’

SUBJECT
Legal Language and Legal Writing

NAME OF THE FACULTY

Dr. Durga Prasad Inturu
&
Dr. Narasinga Rao Barnikana

NAME: Eedara Likhitha

ROLL NO:22LLB030
SEMESTER:2nd Semester
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ACKNOWLEDGEMENT

“I heartily and gratefully acknowledge my indebtedness to my project supervisor Dr. Durga

Prasad Inturu and Dr. Narasinga Rao Barnikana who guided this study from its inception
and whose learning and insights helped me immensely in the writing of the project on the topic
Critical and Legal analysis of the legal Maxim ‘Doli Incapax’

Working under her has indeed been a rewarding experience for me. I would like to extend my
gratitude to the DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY library
and the academic department for their continuous support and availability of resources and books
without which it would have been impossible to complete this project within the stipulated time
frame.

I would also like to express my gratitude to my parents and classmates for their unconditional
support, as well as their ideas and viewpoints, which helped me move forward with my project.”

Eedara Likhitha
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ABSTRACT

Doli Incapax is the legal principle which is concerned with the criminal liability of the children.
It generally means ‘incapacity of child’ which explains that a child cannot be made legally liable
for the criminal acts committed by them and also cannot be convicted for their offences. It
concerns with the understanding of the children behind committing a crime. This maxim gives a
view that a child cannot understand or is not that mature enough to understand the criminal act
and its consequences i.e, it basically gives rise to a presumption that the child is incapable of
forming the criminal intent to commit a crime or an offence.

It is seen that this legal maxim was initially introduced as a ‘functional rule of practice’ and
‘simply an instrument of public policy’ but did not focus on the ‘empirical reality’. This has
given rise to some of the limitations and exceptions to this maxim. This legal maxim explains
that the child is incapable of committing a crime as they fall short of the ‘age of discretion’,
however this presumption is rebuttable, that means based on the maturity and understanding
levels of the individuals regarding the consequences of what they have done, the court may
decide that they are criminally responsible for their behaviour.

This project focuses on the importance of the legal maxim ‘Doli Incapax’, its usage, the cause
and interpretation of legal maxim used in various cases.
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TABLE OF CONTENTS

S. No Topic Pg. No

1. Objectives of Study 5

2. Scope & Significance 5

3. Literature Review 5

4. Introduction 6

5. Situation in India 6

6. Relevant Provisions in IPC, 1860 7

7. Relevant Provisions in Juvenile Justice Act, 2015 8

8. Indian Landmark Cases 10

9. International Perspective 12

10. Conclusion 13
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Objectives
 To understand the meaning of “Doli incapax”
 To critically analyze the legal maxim doli incapax and its role in the world.
 To examine whether the courts are interpreting and using the provisions of this maxim in a
proper manner or not.
 To study some of the case laws in which this maxim is applied.

Scope & Significance

This project focuses on the interpretation, usage, applicability and of the legal maxim “Doli
incapax” by critically analyzing the case laws.

Literature Review
In "Doli incapax: The Presumption of Incapacity in Criminal Law," published in the
International Journal of Children's Rights, author David Gadd provides a historical overview of
the principle, tracing its development in English common law and its evolution in other
jurisdictions. He also discusses the challenges and criticisms of the principle, particularly in
cases involving serious crimes committed by minors.

In "The Myth of Doli Incapax: Why Children Should be Held Criminally Responsible,"
published in the Journal of Criminal Law, author Anthony Duff argues that the presumption of
incapacity is based on outdated notions of childhood and undermines the principle of individual
responsibility. He suggests that a more nuanced approach to juvenile justice is needed, one that
takes into account the varying capacities of young people and the social and environmental
factors that contribute to their behavior.

Overall, the literature on doli incapax highlights the complex and contested nature of this legal
principle, as well as the broader issues of justice and responsibility that it raises.
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INTRODUCTION
"Doli incapax" is a Latin legal maxim that means "incapable of deceit." It refers to the
presumption that a child under a certain age is incapable of forming the intent to commit a crime,
and therefore cannot be held criminally responsible for their actions.

In many legal systems, the age at which a child is considered "doli incapax" varies. In some
jurisdictions, it is presumed that children under the age of seven are incapable of forming
criminal intent. In others, the age is higher, such as ten or twelve years old.

The presumption of doli incapax is based on the idea that children are not fully developed
mentally, emotionally, and socially, and therefore lack the capacity to fully understand the
consequences of their actions. The presumption can be rebutted by evidence showing that the
child did, in fact, understand the wrongfulness of their actions.

The principle of doli incapax is an important safeguard for children who may otherwise be
unfairly prosecuted and punished for behavior that is a result of their immaturity or lack of
understanding. However, it is also a controversial issue, with some arguing that it can be used to
excuse serious criminal behavior by young offenders.

SITUATION IN INDIA
The criminal culpability of children is described under the criminal law principle known as Doli
Incapax. According to how this concept is used in India, no child under the age of seven may be
charged with a crime, and for children between the ages of eight and fourteen, the prosecution
has a heavy burden of proof to establish the minor's guilt. In fact, it is assumed that children are
incapable of committing any crime. In no civilized country are children subjected to the same
standards of responsibility for their acts as are adults. There can be no doubt about the fairness of
safeguarding young children from the full force of the law.1
Following this concept has two main goals that might be listed:

1
Professor Colin Harward, Criminal Law, 4th ed. (1982), p.343.
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1.A child under the age of seven does not have the mental capacity to comprehend the
consequences of his actions, and if he commits a crime, he may not have the necessary intent to
be prosecuted. It is true that a child cannot be tried for a crime if "mens rea" is absent.
2. To shield children from the severe penalty that the country's rigorous criminal legislation may
inflict upon them at a young age.

RELEVANT PROVISIONS IN INDIAN PENAL CODE(IPC), 1860

 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.”2
Children under the age of seven are entirely exempt from all criminal proceedings when
the aforementioned section is put into practice. The fundamental cause of this is because
children under the age of seven do not have the capacity to understand the consequences
of their actions. If a child under the age of seven is being prosecuted, Section 82 of the
Indian Penal Code can be used to quickly halt the case.

 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.”3
It's important to remember that whoever wants to utilize this defence must be able to
prove it. The defence must make a point of proving and arguing that the defendant was
not mature enough to understand and understand the implications of their actions. The
child's innocence is not presumed to be true. This clause deviates slightly from English
law, which holds that children are presumed innocent unless and until the prosecution
pleads and proves the contrary.

 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

2
Section 82, Indian Penal Code, 1860.
3
Section 83, Indian Penal Code, 1860.
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committing an offence or should have the guilty intention or knowledge as that of the
abettor.”4
So, even though the child cannot be found guilty of the crime he did, the person who
helped the child commit the crime will be held accountable if they aid a child under the
age of seven or a youngster between the ages of seven and twelve.

The above Section offers the following example to further elaborate on the same point: 5
“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”

RELEVANT PROVISIONS IN JUVENILE JUSTICE (Care and Protection of

Children) ACT, 20156
The Juvenile Justice (Care and Protection of Children) Act, 2015 offers a child-friendly
strategy for handling child and juvenile offenders/accused, including adjudication and
disposition of cases while considering the best interests of children, as well as provisions
for their rehabilitation. According to the Act, anybody under the age of 18 is considered a
child or a juvenile. It addresses:
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.”

4
Section 108, Explanation-3, Indian Penal Code, 1860.
5
Section 108, Explanation-3, Illustration-a, Indian Penal Code, 1860.
6
JUVENILE JUSTICE (Care and Protection of Children) ACT, 2015.
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The Act's Section 3(i) mandates the application of the presumption of innocent in its
administration, which states that, “Any child shall be presumed to be innocent of any
malafide or criminal intent up to the age of 18 years”.

Also, Chapter IV of the Act deals in detail with the process for handling juvenile
offenders. When a kid is suspected of committing a crime, there are certain procedures
that must be followed. For example, the child cannot be detained in a police cell or jail,
and the person in care of the child must take on parental responsibilities.

However, Section 15 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.
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.
2.A preliminary assessment by Board: A preliminary assessment shall be conducted by
the Board with regard to the children-
Child’s mental and physical capacity to commit the crime,
His ability to understand the consequences of the offence, and
The circumstances in which the offence was allegedly committed by him.
3.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.
4.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.
5.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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INDIAN LANDMARK CASES RELATED TO MAXIM doli incapax

 Hiralal Mallick v State of Bihar (1977)7

FACTS
Hiralal Mallick, a 12-year-old child, and his two older brothers were accused in
this case of killing one Arjan Mallick, and the three were found guilty under
Section 302 read in accordance with Section 34 of the I.P.C. In an act of revenge,
the appellant slit the deceased's neck with a sharp object before fleeing with the
other people. The High Court ordered that a conviction under Section 302 be
changed into one under Section 326 read in accordance with Section 34 I.P.C. in
the appeal. Seeing that the appellant was 12 years old when the offence was
committed, the court took a sympathetic stance and reduced his sentence to 4
years of hard imprisonment. The appellant requested a special permission to
appeal the High Court's ruling and decision.

SUPREME COURT JUDGEMENT

“The Hon’ble Court denied the appeal and upheld the appellant's conviction. It
was decided that there is no evidence to contradict the first inference that the
appellant intended to put the dead person's life in danger. Furthermore, there was
no evidence presented that addressed the appellant's age or lack of maturity at the
time the crime was committed. The Court ruled that when a crime is committed
by a group of people acting in concert, the level of criminality may vary based on
the role each individual played and the conditions that prevailed at the time, in
addition to the harm caused. In this situation, each person in the act must be
approached individually with regard to the circumstances surrounding their
engagement, their doli capacity, their age, and their expectations of outcomes.”

7
Heeralal v. State of Bihar, AIR 1977 SC 2236.
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 Kakoo v State of Himachal Pradesh8

In this case, the 13-year-old accused Kakoo was found guilty of raping a 2-year-
old child. He was given a 4-year prison term with hard labour by the Himachal
Pradesh High Court. According to Article 136 of the Indian Constitution, a leave
by special leave was selected. The accusedawas only 13 years old when the crime
was committed, and it was argued before the court that placing him in the custody
of his father on the condition that the father execute a bond for the son's good
behaviour would be the best method to reform him. The court reduced the
appellant's sentence to one year of rigorous imprisonment and a fine of Rs. 2000
while citing Sections 82 and 83 of the I.P.C. and the necessity to treat juvenile
criminals with a humanitarian attitude.

 Ulla Mahapatra v. The King (1950) Orissa HC9

In this instance, the appellant Ulla Mahapatra, an 11-year-old boy, approached the
dead while holding a knife and threatening to chop him into pieces. He then
attacked the deceased in the neck, causing him to pass away instantly. He was
found guilty and given a transportation term under Section 302 I.P.C. On an
appeal, the Orissa High Court found the defendant guilty of a violation of Section
302 I.P.C. and mandated that, rather than imposing a custodial sentence, the
defendant spend five years in a reformatory school.

 Shyam Bahaduri Koeri v State of Bihar (1967)10

In this instance, a child under the age of seven found a gold plate but failed to
inform the collector of his discovery. The Collector ordered the child to be
prosecuted under the Indian Treasure Trove Act of 1878 after learning of the
aforementioned truth. The Court declared the youngster to be doli incapax since
he was under the age of 7, making him eligible for the protections of Section 82
of the I.P.C. The Court thus ordered his acquittal.

8
Kakoo state of Himachal Pradesh, 1976 SCC (Cri) 270.
9
Ulla Mahapatra v. The King (1950) Orissa HC, AIR 1950 Ori 261
10
Shyam Bahaduri Koeri v State of Bihar, AIR 1967 Pat 312, 1967 CriLJ 1360
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 Santosh Roy v. State of West Bengal11

The High Court of Calcutta ruled in this case that a witness statement from a child
between the ages of seven and twelve cannot be disregarded outright by a court on
the grounds of doli incapax, or the kid's incapacity to discern between right and
wrong. The Court may ask the kid witness a few straightforward questions in
order to determine the youngster's level of comprehension of right and wrong. A
child's witness statement who is between the ages of seven and twelve cannot be
disregarded by the court if the court is satisfied with the child's level of
understanding.

INTERNATIONAL PERSPECTIVE
United Nations Convention on Rights of the Child (UNCRC)
“The United Nations Convention on the Rights of the Child (UNCRC) mandates
that states parties set a minimum age below which children are assumed to lack
the ability to violate the criminal code in accordance with Article 40(3)(a).
Moreover, it stipulates that the states shall work to encourage the creation of laws,
practises, and institutions that especially apply to children who are charged with
any crime, as well as strategies for handling such kids outside of the courtroom.”12
MINIMUM AGE OF CRIMINAL RESPONSIBILITY
“The Committee on the Rights of the Child has advised the state parties to
establish a minimum age of criminal responsibility of at least 12 years and to keep
raising it to a higher age level.
According to General Comment No. 24, more than 50 states parties have
increased the minimum age since the UNCRC was ratified, with 14 being the
most typical minimum age of criminal culpability globally.”

11
Santosh Roy v. State of West Bengal, 1992 CriLJ 2493.
12
About doli incapax, https://blog.ipleaders.in/
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CONCLUSION
The Children and Young People Act, 1933 of the UK states in Section 50 that no
child under the age of 10 can be found guilty of any crime. Nevertheless, Section
34 of the Crime and Disorder Act, 1998 in England and Wales repealed the
rebuttable presumption that a child above the age of 10 is doli incapax.

The rebuttable presumption of doli incapax isaapplicable to all children ages 10 to

14 at the time an alleged act is committedain Australia, where the minimum age
of criminal responsibility isa10 years, below which a child is judged incapable of
committing a crime.

“The doctrine of doli incapax is important because it serves as a vital safeguard

for shielding young children from the harsh legal consequences, even though
there may be debates and criticisms surrounding the inability to establish a
specific age up to which a child should be considered to be doli incapax. A child
under a certain age is unable to understand what is right and wrong, so when
drafting penal laws—particularly those pertaining to children—it must always be
kept in mind that children must be treated with care and compassion and with a
reformatory approach. The strict rigours of the law cannot and should not be
applied to children.”

BIBLIOGRAPHY
1. Professor Colin Harvard, Criminal Law, 4th ed. (1982)
2. Indian Penal Code, 1860.
3. JUVENILE JUSTICE (Care and Protection of Children) ACT, 2015.
4. About doli incapax, https://blog.ipleaders.in/
5. https://bnblegal.com/doli-incapax/
6. Crimes by Minors: Principle of Doli Incapax, https://lawcirca.com/crimes-by-
minors-principle-of-doli-incapax/
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