Literal Meaning
Doli incapax means incapable of crime forming a defence for children that a child is incapable of crime..
Explanation
The basis of the presumption in doli incapax lies in the theory of Criminal responsibility. Theory has been built upon the theory that a person should be held criminally responsible only for acts he intends to commit. According to the English Law a child below the age of ten years is considered as doli incapax. In Germany and Italy a child below thw age of 14 is considered as doli incapax and Philipines a child below 9 years.
In India, criminal law also acknowledges an age line below which children are not truly capable of crime. Below the age of 7, the Indian Criminal Procedure considers that children are incapable of having the required cognitive and moral process to commit a crime. This is absolute immunity. Between the age of 7 and 12, the CrPC provides for presumption of innocence in favour of children, but if the prosecution can prove and provide evidence for the contrary then the child can be prosecuted. From 14 to 18 years a child is liable only if he has an insight into both the legality and punishability of the act. A minor can be tried as an adult only when a general test is done to ascertain whether the child had adequate understanding of the consequences of his actions.
Doli incapax finds its importance in Section 82 and 83 of the Indian Penal Code and in the Juvenile Justice Act in India.
Origin
Doli Incapax is a Latin term that means “incapable of doing harm”. This term has been used to describe a presumption of innocence for children in Criminal law in most countries.
Illustration
‘X’ an adult of 25 years, in order to kill ‘P’, instigates ‘Z’ a child of 6 years to do an act which causes P’s death. Here, the child will not be liable for any crime as he is doli incapax. However, X will be held liable for murder of P.
‘G’ instigates ‘K’ a child of 7 years to burn a dwelling house. K without knowing the consequences of his actions burns the house. Here K cannot be held liable.
Case Reference
In the case of Heeralal v. State of Bihar[1], an eleven year old child quarrelled with the deceased and threatened to cut the deceased into pieces. The child picked up the knife and actually stabbed the deceased to death. The defence under Section 83 of Indian Penal Code was pleaded. The trial court convicted the boy rejecting the defence because the child’s words, gesture, assault, keeping a knife and ultimately stabbing the deceased proved that the child had the knowledge and understanding of the consequences of his actions. The Supreme Court upheld the decision of the High Court.
In the case of R v. LMW[2], a 10 year-old boy, LMW, was charged with the manslaughter of six year-old Corey Davis, who drowned on 2 March 1998. The defendant had dropped Corey into the Georges River, knowing that Corey was unable to swim. The defendant was found not guilty of manslaughter, as the jury supported the defence case that the drowning of Corey had been ‘an act of bullying that went wrong’. This case raised the issue of doli incapax, which presumes any child aged 10-14 is incapable of criminal intent unless proven otherwise.
In Kakoo vs The State Of Himachal Pradesh[3], Kakoo who was of thirteen years had committed rape on the child of 2 years and was sentenced to 4 years of rigorous imprisonment by the trial court and the decision was upheld by the High Court. The defence counsel pleaded defence under section 82 and 83 of the Indian Penal Code. This took place in 1976 when laws for juvenile and child delinquents were not fully developed and Himachal Pradesh did not have any enactment in force at the time. The court however stated, “Taking into account all the circumstances of the case. we are of opinion that the ends of justice will be served by reducing the sentence of the appellant to one year’s rigorous imprisonment and a fine of Rupees 2,000/-, and in default of payment of fine, to suffer six months’ further rigorous imprisonment. The appellant shall be detained separately from adult prisoners. He should preferably be detained in a Reformatory School, if any, for the said period. The fine, if realised, shall be paid as compensation to Shrimati Parmeshwari Devi, the mother of the victim baby.”
Edited by Vigneshwar Ramasubramania
Approved & Published – Sakshi Raje
[1] AIR 1977SC 2236
[2] [1999] NSWSC 1128, 23 November 1999
[3] AIR 1976 SC 1991, 1976 CriLJ 1545, (1976) 2 SCC 215
