What Is Doli Incapax And Doli Capax ?

The purpose of this article is to make aware the people about the principle of Doli Incapax .


The literal mean of  'infancy'  is 'the early stage of growth or development' or 'the earliest stage of a maturity'  and 'the legal status of an infant'  in english law.  But when we talk about in law then we can find this word in section 82 and 83 of the chapter 4th which deals with general exception of the IPC 1860.

According to section 105 of the Indian Evidence Act , the burden of  proof is on the accused that a particular case is fall under the general exception of chapter 4th of IPC. Before we go through the legal mean of infancy we need to understand that to commit any crime there must be two essential requirement that is mens rea (guilty mind) and actus Reus(guilty act) and the reason why these sections are kept under the general exception because of absence of a mens rea.

There are two example which will help you to better understanding about the crime committed by a child.

First -  A boy who was less than 7 year old and killed a girl with a knife. Second- The boy under age of 8 years who killed a person and then he carried the body for hiding but as he hides the body then by his act shows that he have maturity to understand the act done by him.

We can observe the two things from these cases-

First - That a child below 7 years may  committed crime but would be given exemption. Second-  A child above 7 years he may be punished for his act its surrounding circumstances shows that he had knowledge what he is doing child  don't know good from evil he would be given exemption.

So  now here it is clear that the Judges were more interested to check the 'mental capacity' rather than the chronological age .

The age of criminal responsibility of a child differ from country to country like in Philippines Island , it is fixed 9 years minimum to 15 year maximum . According to the Italian penal code provides a child at the time of committing of crime is under 14 year he shall not be punishable,  the French law under 13 year- 18 years. Now the same in Indian penal code 1860 , a child below the age of 7 year is not criminally responsible as at this age he is absolute Doli incapax but 7 to 12 years is qualified responsibility as it will depend upon the understanding and circumstances.

so now here the minimum and maximum age of a child is set but for the child to held criminally responsible the states have to prove the 'mental capacity' that  whatever he was doing he knew the consequences and nature of the act.

After setting of an Age, In Indian penal code were added to section that is section 82 and 83 with difference in age line. 

What Is Section 82 ? 

Section 82 talks about that if an act is committed by a child under the age of 7 year is not an offence. Now we will discuss the section 82 in detail.

1. This section 82 is based on the idea of 'doli incapax' which  which is a 'Latin word' ,  it means a child is not capable of committing a crime.

2. The main reason why a child under the age of 7 year is not guilty of committing a crime because at this age he or she does not have sufficient maturity to understand the nature and consequence of the act even they cannot distinguish what is right or wrong.

3. Child under the age of 7 year is given absolute immunity is it is presumed that child can not form an intention to commit a crime.
The mens rea is not in the case of a child under the age of seven years  it means it will not complete the offence. As we all know that to constitute a crime there should be  presence of mens rea  at as well as actus rea. The legal maxim 'actus non facit reum nisi mens sit rea'  means  there should be both the act and intention to constitute a crime.

Case law- Marsh v. Loader, 1863

The fact of the case is that a defendant caught a  child at the time of stealing a piece of wood from his premises and the child was under the age of seven years so here he was not held guilty for the offence.

What Is Section 83 ? 

Section 83 talks about that if an act committed by child between the age of 7 to 12 years and show that at the time of  committing the crime he or she does not know the nature and consequences of the act or what is wrong or right , is not an offence.

Now let's  move to the section 83- 

1. Section 83 is presumed that a child between the age of 7 to 12 year is 'Doli capax' means he is capable of committing a crime.

2. In this case , a child will not held liable for the offence if he have not attend the sufficient maturity to understand the consequences and nature of the act . At the time of committing the crime he should be incapable to commit the crime.

3. Here it is presumed that the innocence of a child is based on the principle that 'younger the child in age, lesser the probability of being corrupted' it means Malice supplies with age(Malitia suppelet aetatem).

4. So now the Prosecutor have to prove that the child had committed the crime with actus rea as well as mens rea as his reaction shows that he knew the act is not in only evil but also wrong . Such maturity of understanding differ from the nature of the act and his conduct like behaviour appearance in the court.  

The court will work on the maturity of understand try to examine and identify whether child has sufficient capacity to understand the nature and consequence of his particular actions.

Case law- Ullu Mahapatra V.  King ,  1950

The fact of the case was that a boy under the age of 12 years run towards deceased and says that he will cut him into small pieces which he did the same . So here the court held that the boy's conduct shows that he have sufficient understanding as him know what he is doing.

Case Law- Abdul Sattar v. The Crown, 1947

The facts of the case was a boy under the age of 12 year broke the lock of the shop and stole the pulse so here he was held guilty on the ground that he had developed the sufficient maturity of understanding the nature and constituents of his act .

What Is Exception Of Section 82 And 83 ?

The section 168 of the Indian railway Act 1989,  says if a minor committed an offence under the age of 12 year  even he did not have intention to commit the crime is still he will be liable for his act.

But Immunity is not given to above the age of 12 years of child.  No  exemption on criminal liability is given after the 12year, even though he is immature or  not able to understand the consequence of the act.

Points to be remember-

1. Children under the age of 7 years are given absolute immunity.
2. Children between the age of 7 to 12 years are given qualified immunity.
3. children between the age of 12 to 18 years are regulated by the Juvenile justice (Care and Protection of children) act 2000 .

What is juvenile justice (Care and Protection of children) Act 2000?

To understand the crime which is committed by a minor it is important to know about the Juvenile justice act of 2000 act,  describes the procedure related to minor who have not complete the age of 18 years. The act states that the children or juveniles who were found to conflict with the laws will be produced before the Juvenile justice Board.

Punishments between the age of 12 to 18 year

1. Betweent the age of 12 to 15 year - the maximum sentence is 1 year .
2.  Between the ages 16 to 17 year -  the maximum sentence is  2 years.
3. After  the incident of Delhi gang rape if a child is about 16 years and commits a crime will be considered as an adult during the trial.

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