Child as Doli Incapax under

IPC 1860
Immunity from criminal liability on
child offenders.
• [s 82] Act of a child under seven years of age.—Nothing is an offence
which is done by a child under seven years of age.
• [s 83] Act of a child above seven and under twelve of immature
understanding.— 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.
• Article 15(3) provides that “Nothing in this article shall prevent the state from making any
provision for women and children”.
• Clause (e) of Article 39 provides, inter alia, that the tender age of children is not abused.
• Clause (f) of Article 39 stipulates that children are to be given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that youth be
protected against exploitation and against moral and material abandonment.

• The presumption of innocence of a child is based on the principle of immaturity

of intellect.
• “The younger the child in age, the lesser the possibility of being corrupt”, seems
to be its premise.
• This is to say, “malice makes up for age,” i.e., quia malitia supplet aetatem.
• Hence, as age advances, the maxim loses force
• Section 82 totally absolves a child below seven years of age from criminal
liability.
• Section 82 presumes that a child below seven years is doli incapax, i.e., he
is incapable of committing a crime and cannot be guilty of any offence.
• It presumes that he cannot distinguish “right” from “wrong”. T
• his presumption emanates from the recognition of the fact that he lacks the
adequate mental ability to understand the nature and consequences of his
act and thereby an ability to form the required mens rea.
• This presumption is conclusive.
• It cannot be rebutted by adducing evidence that the child had the capacity
of understanding the consequences of his act.
• Even though there may be the clearest evidence that the child caused
an actus reus with mens rea, he cannot be held guilty once it appears that
he, at the time of committing the act was below seven years.
• Section 83 presumes that a child above 7 but below 12 years of age is doli capax, i.e., capable of committing a
crime depending upon his maturity of understanding of the consequences of his conduct.
• But this presumption is rebuttable.
• It can be rebutted by proof of “mischievous discretion” of the child.
• The prosecution is required to prove beyond reasonable doubt that the child caused an actus reus with mens
rea and that he knew that his conduct was not merely mischievous but “wrong”.
• Liability of such a child depends upon his maturity of understanding of the nature and consequences of his
conduct and not on his age.
• The question relevant for determining his liability, therefore, is not one of his age but of the requisite degree
of his maturity of understanding at the time of commission of a crime.
• It, therefore, becomes necessary for the defence to prove that the child was not only below 12 when he
committed an offence in question but also had not attained sufficient maturity required to understand the
nature and consequences of his conduct.
• In the absence of such evidence, court presumes that the child accused intended to do what he really did. 
• The words “consequences of his conduct” do not mean penal consequences but the natural consequences
which result from his act. Before convicting a child, who is over 7 years but under 12 years of age, a judge is
required to first conduct an enquiry and give a finding of fact as to whether the child had attained sufficient
understanding to judge the nature of consequences of his act.