CRIMES BY MINORS: PRINCIPLE OF DOLI INCAPAX

CRIMES BY MINORS: PRINCIPLE OF DOLI INCAPAX

Share this

Introduction

According to the Indian Majority Act, a person domiciled in India is said to have attained the age of majority after turning 18 years old[i]. Therefore, any person below this prescribed age is said to be a minor. Under the Juvenile Justice Act of 2000, juveniles or minors are considered to be those who have completed the age of 18 years. It can be concluded that in order to be liable for an offence as an adult, a person must have completed the age of 18 years.[ii]

Any wrong or mistake committed by a child is not the same as one committed by an adult due to the level of maturity that is expected out of them. Cases such as Ram Deo Chauhan v. Bani Kant Das[iii], prove the intolerance that people have towards crimes committed by children.

However, this provision has some exceptions. According to the Indian Penal Code, an offence committed by a child below 7 years is not considered as an offence, but an act done by a child, above 7 years and below 12 years, is said to be an offence under certain circumstances as prescribed under the Code.

The Constitution of India has prescribed special privileges for children. It has empowered states to make special laws and provisions for women and children[iv] and, provides that children must be given ample opportunities that facilitate their development in a healthy and prosperous manner.[v]

Principle of Doli Incapax

The law presumes that a child below the age of 7 years is ‘doli incapax’. This means that the child lacks the necessary ability to understand the nature and consequences of the act committed by them and thereby, lacks the ability to form a mens rea.

Doli incapax is a Latin term meaning “incapable of doing harm”, which has been used to presume the innocence of a child under criminal law. The theory behind doli incapax lies in the concept of criminal responsibility, meaning that a person must be criminally responsible for the act which he intended to commit.

Doli incapax is recognized in most countries. In India, this principle is covered under Sections 82 and 83 of the IPC. The Criminal Procedure Code considers that children below the age of 7 years, a child is incapable of understanding the nature and consequences of one’s own actions and provides total immunity for any offence committed by them.

In the case of Kakoo v. State of Himachal Pradesh[xii], the accused of 13 years of age, had committed the offence of rape on a child of 2 years of age and was thereby sentenced to 4 years of rigorous imprisonment by the Trial Court, which was upheld by the High Court. On pleading Sections 82 and 83 of the IPC, the Court took into account the circumstances of the case and opined that the punishment shall be reduced to 1 year of rigorous imprisonment with a fine, along with 6 months of rigorous imprisonment for default in payment of fine. The convict was also said to be kept separate from the adult prisoners.

Legal Provisions

Indian Penal Code

Section 82 and Section 83 of the IPC deals with offences committed by children.

Section 82 states that “nothing is an offence which is done by a child under seven years of age.[vi]

This provision gives total immunity to children below the age of 7 years from being charged, tried, and convicted for any offence prescribed under the IPC or other legal provisions.

In the case of Shyam Bahadur Koeri v. State of Bihar[vii], a child below the age of 7 years discovered a gold plate that weighed 28 tolas. However, after recovering it, he did not report it to the Collector. When the Collector came to know of this, he ordered the prosecution of the child under the Indian Treasure Trove Act, 1878. The Court acquitted the child holding that he had the benefit of Section 82 of the IPC as he was below 7 years of age.

Section 83 of the IPC states that “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.”[viii]

This Section deals with offences committed by a child above the age of 7 years and below the age of 12 years. To prosecute a child under this Section, the following essentials must be satisfied:

  • The act must be done by a child.
  • The child must be above 7 years and below 12 years of age.
  • The child must not have attained sufficient maturity to understand the nature and consequences of their conduct.

This section provides that when a child above the age of 7 years and below the age of 12 years is said to have committed an offence if the Court can ascertain that the child had sufficient maturity to understand the nature and consequences of their actions. In this instance, the term “consequence of his conduct” does not mean the penal consequences but the natural consequences of their conduct.

The proof of sufficient maturity can be ascertained depending upon the facts and circumstances of each case. In general cases, it can be ascertained from the following:

  • The nature of the act committed by the child.
  • The subsequent conduct of the child after committing such an act.
  • The appearance of the child before the Court of Law.

In the case of Hiralal Mallick v. State of Bihar[ix], the accused was below the age of 12 years and had a dispute with the victim in relation to an earlier attack on his father. The accused, armed with a sharp weapon, along with his elder brothers, gave several blows to the victim on his vital body parts, causing the death of the victim. The accused was charged with murder under Section 302 of the IPC. The accused pleaded the defence under Section 83. The Court analyzed the medical evidence, which showed that the child was armed with a cutting instrument and set upon the victim using the sword on his neck. The autopsy evidence disclosed that the injuries caused by the accused were not the lethal ones but multiple swords cuts on the neck of a man, leaving little room for doubt in the ordinary run of cases as to the intent of the accused. When three persons, with swords in their hands, attack a single individual and strike on his neck and skull several times with a sharp weapon, it is not caressing but killing, in all conscience and common sense. The Court rejected the defence of the child and convicted him holding that the act of the accused of stabbing the victim with a sharp weapon shows that the accused had attained sufficient maturity of understanding to judge the nature and consequences of his act.

Juvenile Justice (Care and Protection of Children) Act, 2000

To understand crimes committed by minors, it is also necessary to study the JJ Act of 2000 which prescribes the procedure relating to crimes committed by minors. As mentioned earlier, the JJ Act deals with offences committed by persons who have not completed the age of 18 years. The Act states that children or juveniles who are found to be in conflict with the law are to be produced before the Juvenile Justice Board (JJB).

Under the JJ Act, offences have been categorized into 3 levels:

  1. Petty offences – These are offences for which the maximum punishment under the IPC or any other law is imprisonment of up to 3 years.
  2. Serious offences – These are offences for which the punishment under the IPC or any other law is imprisonment of 3 to 7 years.
  3. Heinous offences – These are offences for which the punishment under the IPC or any other law is imprisonment of 7 years or more.

The Act states that when a child below the age of 16 years commits any offence, the JJ Board may pass any of the following orders:

  • Allow the child to go home after advice or admonition
  • Direct the child to participate in group counselling
  • Order the child to perform community service
  • Order the child or parents or the guardian of the child to pay fine
  • Direct the child to be sent to a special home, for such period, not exceeding three years.[x]

In certain cases, the child can be tried as an adult. When a heinous offence is committed by a child between the age of 16 to 18 years, the child shall first be produced before the JJ Board. The Board shall then conduct a preliminary assessment of the accused, assessing the capacity of the child to commit such an offence, and assessing whether the child is able to understand the consequences of the offence. After such an assessment, the Board shall decide whether the child shall be tried as an adult. Therefore, it can be understood that children between the ages of 16 and 18 years, who have committed an offence and have been assessed and concluded to be able to understand the consequences of an offence, can be tried as adults.

In the case of Pratap Singh v. State of Jharkhand[xi], there was a question before the Court that whether the date of commission of an offence or the date on which the accused was produced before the Court should be considered. The Supreme Court held that the date of the commission of the offence should be recognized as the date for determining the age of the accused.

Conclusion

A child is liable for an offence if they are above 7 years of age and below 12 years of age, and has the ability to understand the nature and consequences of their actions. In addition, an offence committed by a child of 16 to 18 years of age will also hold the child liable if the offence committed is a heinous one and if a preliminary assessment proves that such a child was able to understand the consequences of their actions.

However, in most cases, the conviction or acquittal of the accused child is based on the facts and circumstances of the case as there are specific guidelines that govern such conviction.

The principle of doli incapax provides immunity to children from being charged with, tried for, and convicted for offences under the IPC or any other law.

Therefore, minors do not have total immunity from the commission of an offence, unless such child is below the age of 7 years, in which case the child shall not be held liable for the commission of any offence.


[i] Sec. 3 of the Indian Majority Act, 1875.

[ii] Sec. 2, Juvenile Justice (Care and Protection of Children) Act, 2000.

[iii] Ram Deo Chauhan v. Bani Kanta Das, (2010) 14 SCC 209.

[iv] Art. 15(3), Constitution of India.

[v] Art. 39 (e) and (f), Constitution of India.

[vi] Sec. 82, Indian Penal Code, 1860.

[vii] Shyam Bahadur Koeri v. State of Bihar, AIR 1967 Pat 312.

[viii] Sec. 83, Indian Penal Code, 1860.

[ix] Hiralal Mallick v. the State of Bihar, AIR 1977 SC 2236.

[x] Sec. 16, Juvenile Justice (Care and Protection) Act, 2000.

[xi] Pratap Singh v. the State of Jharkhand, (2005) 3 SCC 551.

[xii] Kakoo v. State of Himachal Pradesh, AIR 1976 SC 1991. 


Madhumitha R- SLS, HYD

Madhumitha R

Author

Madhumitha hails from Symbiosis International University and she spends most of her time Reading, Swimming and Playing Table-Tennis. Her Interest area lies in Criminal Law. For any clarifications, feedback, and advice, you can reach her at madhumitha0903@gmail.com

Leave a Reply