DOLI INCAPAX THE INCAPACITY TO COMMIT CRIME IS AN EXCEPTION TO CRIMINAL LIABILITY
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 charged under Section 300 of IPC, the accused claimed the exception of infancy. The court held that according to the facts and ruthlessness of the crime, it can be ascertained that the child had the guilty mind and maturity of conducting the crime and hence should be punished accordingly.
While deciding the case of Hiralal, the apex court pointed out the precedent of R. v. Kershaw wherein, it was observed that intention cannot be deduced from a person’s activity. There must be sufficient reasons to ascertain that the child possessed the mental capacity to think and accordingly frame the crime.
For determining the mental state of the accused, the court may rely on the facts and circumstances that occurred before and after the crime, i.e., whether he took any precautionary measure, ganged up with other people, purchased weapons, etc. In the case of Re Musammat Aimona, a minor girl aged around 10 years was tortured and harassed by her husband and in-laws. One day, in the early morning, the child murdered her husband and ran out from that place. The court observed that the incidents that took place after the commission of the murder indicates that the girl knew she did something wrong and that is why she escaped from the house and hide herself. Her plea of infancy was rejected since she possessed the ability to understand the heinousness of her actions.
The proof of understanding necessarily relates to the outcome of the child’s act and not the legal punishments attached to it, i.e., when a child attacks a person and kills him with a sharp object, it is to be tested whether he knew that a weapon can cause injury.
A child can be regarded as a capable eye-witness even if he falls within the age group of 7-12 years. In the case of Santosh Roy v. State of West Bengal, the court observed that the term doli incapax is not applicable to a child who is called upon as a witness. The statements deposed by such children must be given due weightage just like any other witness. However, it is open to the court to cross-examine the child witness and corroborate it with other evidences.
V. POSITION IN OTHER COUNTRIES
The laws relating to the commission of offences by children and consideration of mental capacity differs from country to country. The doctrine of doli incapax is applicable to all countries and any child falling under the prescribed age limit shall be given this benefit. The same has been provided explicitly under United Nations Convention on Rights of the Children (UNCRC).
Many conventions including the Committee on Child Rights (CRC) considers that child below 12 years shall be given complete exemption as otherwise, it would make the child traumatized and would also affect his well-being. In the international case of RP v. Queen, the court observed that when a question relates to a child accused, the presumption shall be in favour of the minor and it is the duty of the other party to prove the case satisfactorily.
Usually under Indian Law, it is the child who claims an exception and provides evidence in support of it. However, the laws of different country have different mandates in matters pertaining to the onus of proving.
Although there are many questions as to why India has provided absolute exemption only to children below 7 years, no amendments have been made so far. The following points would elaborate the status of doli incapax across the globe.
According to Section 13 of the Criminal Code of Canada, if any offence is committed by a child below the age of 12, then he shall be excused and no conviction will take place. However, children falling within the age of 12-18 years will be governed by Youth Criminal Justice Act, 2003 and any offence committed by them will be punishable under law. If the offence is more serious in its essence, then the child will be treated as an adult during prosecution.
In USA there is no uniform law governing the age of crime. Most of the states assume the maximum age of seven for extending the protection of doli incapax. However, North Carolina specifically mentioned six years as their maximum age and children above this age can be regarded for a crime.
ENGLAND & WALES
In England & Wales, children falling under 10 years of age are exempted from criminal liability. It is stated that below the age of 10, children do not have the mental ability to intend a crime and are hence doli incapax. For children above 10 years, necessary measures are taken by the Youth Court to punish them.
Previously, Ireland considered all children above the age of 7 as competent for criminal charges. However, in the year 2006, the country decided to raise the limit from 7 to 12 years. Hence, now any child below the age of 12 years can claim the defence of doli incapax before the court of law.
The Australian law grants the defence of doli incapax to all children falling below the age of 10 years. The main contention behind this fixation is the absence of sufficient mental ability to plan a crime. For children within the age group of 10-14 years, the court states that they are doli incapax until and unless the same is challenged by the other party. Thus, it remains in the hand of the other party to prove the guilt of the child.
In the case of C v. DPP, the court observed that if a crime is committed by a child within 10-14 years of age, then the court will presume that he acted without any intention and he is incapable of distinguishing between good deeds and bad deeds. However, the same may be rebutted by the opposite party citing reasonable grounds.
VI. IMPLICATIONS OF JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015
In order to get a complete viewpoint of the criminal liability of children, it is essential to study the provisions of Juvenile Justice Act, 2015. This particular act identifies all those offences committed by children below the age of 18 years. The main reason behind pointing those child accused is not only to punish them as per the laws but also to take them in the right directions. The provisions under this Act mandates proper training, guidance and support to the children. There have been various boards set up under this particular act with the sole objective of assessing these cases.
The Act provides for a classification of offences that may be committed by the children. The classification is on the basis of maximum punishment prescribed for that offence either by IPC or by any other statute. It is stated as follows-
Petty Offences: For offences falling under this category, the upper limit of imprisonment is 3 years.
Serious Offences: The acts that come within the purview of serious offences is punished with an imprisonment ranging from 3 to 7 years.
Heinous Offences: The acts that are considered as heinous is punishable with an imprisonment of minimum 7 years.
If any offence is committed by a child within the age of 16 years, the JJ Board may take certain actions in regard of him. These steps necessarily includes- letting the child visit his/her home after proper advice, enabling the child to communicate with his surroundings, providing counselling facilities, demanding certain amount of compensation from the child or his parents and directing the child to an observational home for his welfare.
The JJ Act treats the children with utmost care, especially those falling within the age group of 16 to 18 years. If any heinous offence is committed by children under this age division then the case is firstly brought before the Board. It is in the hand of the Board to ascertain whether the child has the ability and required intention to conduct the offence. The capability of understanding must also be tested on the same parameters.
If at any instance it is found that the child possesses all the necessary ingredients to be charged, then he may be tried and punished as a major in the court of law.
VII. CONCLUSION AND SUGGESTIONS
On one hand, it is important to protect children from rigorous punishments and on the other hand, it is the duty of the legal system to secure the public from offensive activities of children. There exists a huge controversy regarding this particular issue and the solutions differ in each jurisprudential system. Although the exception sometimes appears to be arbitrary in nature, but the provisions were framed after analysing the benefits of the entire nation.
The main motto behind doli incapax is to safeguard the children from getting stringent punishments at such a young age. It also emphasizes upon the fact that a child should not be charged in the absence of requisite intention. When a person is below the age of seven, his thinking capacity of what should be done and what should not be is very less. Hence, prosecuting him would lead to failure of justice.
This theory finds relevance under Section 82 of IPC. Section 83 of IPC further provides that a child below 12 years and above 7 years cannot be convicted if he did not gain the maturity to understand the outcomes of his actions. Both these sections have been framed keeping in mind the welfare of the children.
In the case of R. v. LMW, the facts highlighted that a minor aged 10 years was charged for the offence of killing another child. It was stated that the 10 years old pushed the other child into water and as a result of which, he died. The court while deciding this case observed that the defendant did not form any mens rea of killing the child, it was something else that resulted in the death. Therefore, the accused got the benefit of doli incapax.
Under IPC, it is the duty of the defendant to bring up the protection of infancy at the first instance. The court shall not form any opinion on behalf of the child, the defence have to prove that there was no intention or understanding of the child while committing the offence. If it is sufficiently proved that the child was unable to understand the nature of his act, then the court may acquit him. However, if at any point of time, the court finds out that the act was actually an influenced one i.e., the child committed the offence under the provocation of someone else then that person can be tried and punished by the court of law. For example, if ‘P’, a person aged 36 years convinces ‘J’, a minor of 6 years to put someone’s house on fire, then ‘P’ will be held liable under appropriate provisions and not ‘J’.
The laws dealing with infancy is varied in nature and the mode in which it is adopted differs from place to place. Each country fixes its own age limit below which complete protection would be granted. In India, the matters pertaining to criminal charges against children are decided according to JJ Act, 2015. The accused in such cases are mandatorily brought before the JJ Board within a time frame of 24 hours. The police officers owe the duty to take proper care of the juvenile for the time being.
The guardian or relative of the juvenile must know the offences under which the child is charged and he/she is required to be present in person when the case is being heard. While the case is pending before the court, necessary measures must be taken to ensure that the children is living a healthy life without any sort of exploitation and things are running as per the rules framed under JJ Rules, 2016.
The criminal liability attached to a child aged exactly 7 years must be properly interpreted pointing out the provision under which the act would fall.
Considering the disadvantages attached with the upbringing of the child and his welfare, the age limit for complete exception must be increased from 7 years to 10 years.
A set of guidelines must be laid down as to ascertaining whether or not the child possesses sufficient maturity.
Judiciary shall punish the alleged juvenile cautiously after determining the grievousness of the act and the manner in which it took place. Utmost care is required since the decision will have a serious impact upon the life of the minor.
K.D. Gaur, Textbook on Indian Penal Code, Sixth Edition, Universal Law Publishing, 2016
Ram Jethmalani & D.S. Chopra, The Indian Penal Code, Thomson and Reuters, 2017
C.K. Thakker, Indian Penal Code, Eastern Book Publishers, 2017
K D Gaur, Criminal Law- Cases and Materials, Lexis Nexis, 2013
B. M. Gandhi, Indian Penal Code, Eastern Book Publisher, 2006
ARTICLES AND JOURNALS
Ved Kumari, Current Issues in Juvenile Justice in India, Journal of Indian Law Institute, Vol. 41, No. 3/4, 1999
P.M. Bakshi, Limiting the Criminal Law, Journal of the Indian Law Institute, 36, 1996
Huda, The Principles of the Law of Crimes in British India (1982) 217
S.K. Bhattacharyya, Juvenile Justice System in India, Journal of the Indian Law Institute, 23, 2016
Nial Osborough, Rebutting the Presumption of Doli Incapax, Irish Jurist New Series, 10, 1975
B. B. Pande, In the name of Delhi Gang Rape: The Proposed Tough Juvenile Justice Law Reform Initiative, 2 J. NAT’L. U. Delhi 145 (2014)
Munn, Nicholas John, Reconciling the Criminal and Participatory Responsibilities of the Youth, Social Theory and Practice, vol. 38, no. 1, 2012
Gibbon & Brien, Examining the operation of Doli Incapax in Victoria (Australia), IJCJSD, 2019
STATUTES AND LEGISLATION
Indian Penal Code, 1860
Juvenile Justice (Care and Protection of Children) Act, 2015
The Constitution of India, 1950
- Sayani Banerjee, 3rd Year, BBA LLB, Symbiosis Law School, Hyderabad