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DOLI INCAPAX THE INCAPACITY TO COMMIT CRIME IS AN EXCEPTION TO CRIMINAL LIABILITY


I. INTRODUCTION

The factors required for an act to become a crime are mens rea, (an intention to commit the wrongful act) and actus rea (the commission of the wrongful act). If any act consists only mens rea and no actus rea then it will not be considered as a crime. For example, if ‘A’ intends to stab ‘B’ but has not actually stabbed ‘B’, then the intention alone will not be regarded as a crime. In the same way, if a person commits a wrongful act without any intention or motive of doing it then it will be disregarded in the eyes of law.

The 4th Chapter of IPC, 1860 (Section 76-106) lists down certain offences that are exempted from the criminal liability. Hence, if any offence committed by the accused falls under these sections then he will not be held guilty. Section 6 of IPC further provides that the offences, punishments and illustrations mentioned under the code must be read with the General Exceptions.


In most of these incidents, the commission of crime is incomplete due to absence of intention or motive. An act must possess several ingredients like capacity to perform, sufficient understanding and knowledge of the legal consequences to be called as a crime.

Offence as defined under Section 40 paragraph 2 is an act punishable under IPC as well as special laws. Hence, if Section 40 of IPC is read along with Section 6, it appears that the general exceptions apart from being applicable in this code are also applicable in local statutes.

In the case of Emperor v. Wali Mahommad, two minor boys were accused of throwing stones at a train. The court held that according to Section 83 of IPC, the children were exempted from criminal liability and hence could not be punished under Section 127 of the Railways Act, 1890.

The general exceptions are categorized into two kinds. The first one is excusable acts; which states that offences without any mens rea are excused as non-criminal acts. Therefore, any offence committed by a child, an insane person or a person under the influence of alcohol shall be excused from criminal liability. The second one is justifiable acts; which states that offences committed under justifiable circumstances shall not be regarded as crime. For example, an act done in necessity, in private defence, or while discharging judicial duties are justified and will not be punished.

The offences committed by children below the age of 12 years are protected under the Sections 82 & 83 IPC. Other than IPC, several provisions of the Constitution of India safeguard children. Article 15(3) of Indian Constitution provides that the state may at its discretion frame exclusive laws for protecting the interests of women and children.

Further, in the Directive Principles of State Policy, Art. 39 (e) and 39(f) provides that children must be given healthy environment and adequate facilities for growing up. The maxim doli incapax denotes that below the age of seven years a child does not have the capability of analysing the essence and outcomes of his action hence, any offence done within that age must be given complete immunity.


II. INCAPACITY TO COMMIT A CRIME

According to the observations of Blackstone, Coke and Hawkins, children below a certain age do not develop the mental capacity of understanding the implications of his/her acts (doli incapax). They do an offence unknowingly without any guilty intention; hence they should not be prosecuted in a court of law. Although this opinion has been accepted globally but with this, several new questions arise pertaining to the age of the child.

In the case of Pratap Singh v. State of Jharkhand, the main issue was regarding the age of the child. There were various discussions as to which date is relevant for ascertaining the child’s age- whether the date on which the crime was committed or the date on which the child was produced before the court. The apex court observed that the date of occurrence of the crime shall be taken into account while estimating the child’s age.

In another case of Deoki Nandan v. State of UP, it was observed that the child’s age can be reasonably proved before the court by pointing out his date of birth on the school leaving certificate.


The protection of infancy was first introduced in the year 1984 through the case of Gopi Nath Ghosh v. State of West Bengal. According to recent developments, it has been found that punishing youngsters will not completely stop them from repeating the crime in the future; which is why various countries have framed special statutes and rules governing the criminal liabilities of children. In India, all offences done by a minor of more than 12 years’ age are judged according to provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.


In the case of Kakoo v. State of Himachal Pradesh, a child of 13 years was charged for the offence of rape. The counsel on behalf of the accused contended that he lacked the capability to understand the nature of his act and hence must be granted the benefit under Section 83 of IPC. It was also argued that the child must not be tried and punished as an adult since both of them have different way of planning and acting. The court observed that the child committed the offence with the required intention and he possessed sufficient maturity to understand the consequences of rape. However, while awarding the punishment, the court did not punish him in the same way as an adult, rather gave him a lesser penalty.

It can be deduced from various judgements that the exception of infancy enshrined under IPC does not simply protect the child from being punished but also gives him the benefit of certain privileges. For instance, the punishment for an offence committed by a child is not similar to that of a major person (above 18). Further, it is observed that the court deals these cases very sensitively with high caution. They mostly rely upon the reformative theory and ensure that the child learn the difference between good and bad and try not to repeat these incidents in future.

III. A STUDY ON SECTION 82 OF IPC

The provision of Section 82 states that when an offence is executed by someone falling under 7 years of age, it would not amount to crime. The reason behind this exception is that when a child is below the age of 7, he lacks the mental capacity of planning and intending a crime. For instance, if a 5 years old girl steals a diamond ring and keeps it to herself then she cannot be held liable for theft. As in the age of 5, the infant does not develop enough maturity to understand what a right deed is and what a wrong deed is. The basic ingredient of this provision is the prescribed age. Even if any evidence is produced before the court in contrary to this protection, it would not be accepted.

According to the facts of the case in Shyam Bahadur Koeri v. State of Bihar, one gold plate of the weight 28 tolas was found by a child whose age was less than 7 years. After getting the gold plate, the child did not tell anyone and kept it to himself. On knowing this fact, the Collector filed a case against the child under the Indian Treasure Trove Act, 1878. While deciding the case, the court observed that the child was protected under Section 82 of IPC as his age was not more than 7 years and accordingly, he was acquitted.


In another case of Marsh v. Loader, a child took some amount of wood from another person’s land without his consent. He was charged for the offence of theft. The court observed that since the child was less than 7 years old, it is not possible to believe that he committed the offence after knowing its nature and circumstances. The child was therefore given safeguard under Section 82.


The protection under this section is applicable to all children irrespective of the statute governing them. A minor below 7 years will not be charged even if he does something without the authority. However, if it is proved in the court that the crime was influenced by some other person who has completed 18 years of age then he would be held responsible in place of the child. Such acts are generally regarded as abetment and is governed as per Section 108 of IPC.

In the case of Makhul Shah, a child aged below 7 years has taken clothes without the permission of the shopkeeper. He then sold the clothes to another person (a major) at a certain price. The court while deciding this case observed that the children is protected under IPC since he did not have the intention of stealing. The person who bought the property was however charged under Section 403 of IPC for purchasing the property unlawfully.

In English Law, doli incapax was granted to all children falling within 14 years. The power to take decision was left upon the court, who on receiving sufficient evidence may form a contrary opinion regarding the commission of crime. Also, if a child under 14 years of age commits rape, he is absolved of all charges. The scenario is however completely different in Indian Courts. Here, if a minor below 12 years commits a crime, the case is not discarded on the basis of his age rather, it is decided on the person’s maturity.


There have been several debates upon this provision and accordingly, the 42nd Law Commission Report proposed that 10 years of age must be the limit for extending child protection. Their suggestion was that fixing an age limit for deciding whether a child a liable or not is baseless without any reasonable ground. A child has to suffer ample of disadvantages if he is tried and charged at such a tender age. Further, a child of 10 years can be reasonably managed by his parents and relatives, and his chances of committing crimes would be relatively less. It was also stated that if the necessary changes are made upon Section 82 then there would be no further requirement of Section 83 in IPC.


IV. STUDY ON SECTION 83 OF IPC

As per the provision of Section 83 of IPC, if any child aged more than 7 years but less than 12 years commits a crime then, it will be judged in accordance to his maturity of understanding the natural consequences of the act. This section considers a child of more than 7 years old as doli capax on the basis of his mental capacity of analysing his conducts. A plain reading of this section provides that a child will be absolved from all charges until and unless anything is proved in the contrary. This provision basically deals with those crimes which neither fall under Section 82 of IPC nor under the JJ Act. However, the legislation is unclear about the legal standing of a child who is exactly of 7 years.

The two main requirements for an act to fall under this section are-

  • The child’s age is within the range of 7-12 years as on the date of commission.

  • Possession of rational thinking and maturity.

In the case of Ulla Mahapatra v. R., a child of 11 years firstly threatened a person and thereafter killed him with a sharp weapon. The court observed that the child had the capability of understanding the outcome of his act and was charged accordingly.

In another case of Krishna Bhagwan v. State of Bihar, the facts highlighted that a child above the age of 7 years took a jewellery and gave it to another person for money. The question before the court was whether he can be held liable for theft. It was observed that the action of the child (selling to another person) reflects his ability of understanding and hence shall not be exempted from liability.

The burden of proving the absence of mens rea lies on the accused, i.e., the child who claims the benefit of an exception under this particular section. Such absence must be proved beyond any reasonable doubts. The word consequences as stated under this section hints at the natural consequences of the act and not necessarily the penal consequences.


In the case of Hiralal Mallick v. State of Bihar, the accused was a child below the age of 12. The accused along with his brothers armed with sharp weapons gave several blows on the vital body parts of the victim and killed him. On being