This article on ‘Doli Incapax’ is written by Sahajpreet Bhusari and focuses on the concept of Doli Incapax.
I. Meaning and Origin
Doli incapax is a legal maxim of Latin origin. It literally means ‘incapable of doing harm’.
This criterion refers to the legal presumption that children cannot have criminal intentions. This is the principle of jurisprudence that describes the criminal responsibility of children. In India, doli incapax is enshrined under Sections 82 and 83 of the Indian Penal Code and juvenile justice law.
According to the maxim, in India, any child under the age of seven cannot be prosecuted for a crime, and in the case of children between the ages of eight and fourteen, the prosecutor has the burden of proof to prove the offence. In general, the doctrine reflects the concern that
“the use of criminal sanctions to punish children who do not understand the wrongfulness of their behaviour lacks moral legitimacy.”
The objectives behind this maxim are,
- Children below the age of seven years do not have the mental capacity to understand the sensitiveness of the act committed.
- In order to protect the children from the harsh punishments under Law which can be inflicted upon them at a very young age.
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 behaviour 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.
Illustration 1: Aman, an adult of 25 years, in order to kill Pawan, instigates his child, Gourav, 6 years old to do any act that causes the death of Pawan. In this case, Pawan will not be liable for the crime of murder since he is doli incapax and Section 82 of the Indian Penal Code applies.
IV. Important Case Laws
In Kakoo v. Himachal Pradesh, 13-year-old Kakoo raped a 2-year-old girl and was sentenced to 4 years of rigorous imprisonment by the trial court. The Apex Court confirmed the original sentence. This happened in 1976 when the law against the juvenile and juvenile offenders had not yet been fully developed, and at that time there was no effective law in Himachal Pradesh. The attorney presented his defence in accordance with Articles 82 and 83 of the Indian Penal Code.
However, the court stated-
“Taking into account all the circumstances of the case, the court is of the opinion that the appellant’s sentence will be reduced to one year in severe prison and a fine of Rs 2,000/- rupees. If the fine is not paid, he will be further sentenced to six months of severe prison, in order to achieve the purpose of justice. Furthermore, it was stated that the appellant will be detained separately from the adult prisoners. The minor may be sent to a Reformatory school if any.”
 AIR 1976 SC 1991.