Doli incapax means incapable of forming an intention to commit a crime due to age, a defence for children; that a child is incapable of committing the crime.
Doli Incapax is a Latin term that means “incapable of doing harm or evil”. This term has been used in many countries to describe a presumption of innocence for children in Criminal law.
There is a theory that a person is held responsible only for the acts he intends to commit. Therefore children are not held responsible for their criminal action till a certain age as they do not have such intention to commit a crime. 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 the age of 14 is considered as doli incapax and Philipines a child below 9 years.
Also Read: Actus Non Facit Reum Nisi Mens Sit Rea
The maxim refers to the presumption in law that a child is incapable of forming the criminal intent to commit an offence. It is a principle of jurisprudence which describes the criminal liability of children. India also follows this principle, where children below the age of 7 years are incapable of committing an offence. It is an absolute immunity to children below 7. Below the age of 7, the Indian Criminal System considers that children do not have the mental capacity to commit a crime or held legally responsible for committing a crime. Between the age of 8 and 14, the prosecution has the burden to prove the guilt of a child. Usually, the courts presume the innocence of children unless the prosecution proof against it. Doli incapax finds its importance in Section 82 and 83 of the Indian Penal Code and in the Juvenile Justice Act in India.
The reason behind this maxim is that punishing a child who does not know or appreciate his guiltor wrong action lacks moral justification.
In the case of Heeralal v. State of Bihar, AIR 1977SC 2236 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 the 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 Kakoo vs The State Of Himachal Pradesh, AIR 1976 SC 1991, 1976 CriLJ 1545, (1976) 2 SCC 215 a 13-year-old boy was convicted for raping a two-year-old girl. To bring down the sentence of the punishment, the council on behalf of the accused urged the Court to take into consideration Sections 83 and 84 of the Indian Penal Code that children and adults are not to be treated in a similar manner while hearing a criminal matter. The Court though convicted the child for the offence of rape, it reduced the sentence of punishment by accepting the aforementioned argument of the council on behalf of the accused child. Hence, it can be concluded from the judgment that Section 82 and 83 do not only provide for ‘doli incapax’ but they also act as a signal to the courts while deciding a case that children are not to be treated as equal to adults in criminal cases. It has indeed become a settled principle of law that when courts are dealing with children, it must take a humanitarian view and should ensure reformation of the child rather than making him a hardcore criminal.