Incapable of doing any harm
The maxim refers to a presumption in law that a child is incapable of forming the criminal intent to commit an offense. It is a principle of jurisprudence which describes the criminal liability of children. In India, doli incapax finds its importance in Section 82 and 83 of the Indian Penal Code and in the Juvenile Justice Act. As per the maxim, in India, no child below the age of seven years can be prosecuted for commission of any crime, while for children between the age of eight to fourteen years, the prosecution has the burden of proof to prove the offense of the minor. In general, the doctrine reflects the concern that ‘using criminal penalties to punish a child who does not appreciate the wrongfulness of his or her actions lacks moral justification’. The objective behind the maxim involves:
- A child who is below the age of seven years does not have sufficient mental capacity to understand the consequences of his action and hence if he commits a criminal act, he may lack the required intention to be prosecuted.
- Also, to protect the children from the harshness of punishment that may be inflicted upon them at a very tender age by implementing strict criminal law.
Section 82 of the Indian Penal Code (IPC) is premised on this and provides absolute immunity from criminal legal responsibility to a child below seven years. The said section states that nothing is an offense which is done by a child aged below seven years. Thus, if a child of below seven years is being prosecuted, the same can be stopped by an application under Section 82 of the Indian Penal Code. It is based on the understanding that a child under the age of 7 does not have the intellectual capacity to consider the meaning and implications of his acts and thus lacks the potential to shape the mens rea or the purpose needed. Notably, such an era was not built on the theory of child development, but rather “simply an instrument of public policy,” “a functional rule of practice,” and is not focused on “the empirical reality.”
A child over the age of 10 but under the age of 14 is presumed to lack the capacity to be criminally responsible for his or her acts. The child is described as ‘doli incapax’ (incapable of crime) when their age falls short of ‘the age of discretion’. However, the presumption is rebuttable, meaning that, depending on the individual’s maturity and level of understanding of the ramifications of what they have done, a court may nonetheless determine them to be criminally responsible for their behavior.
‘Ramesh’ a 25-year-old, instigates ‘Rahul’ a 6-year-old child, in order to kill ‘Raj’ which causes Raj’s death. Here, the child will not be liable for any crime as he is a doli incapax. However, Ramesh will be held liable for the murder of Raj.
In Hiralal Mallick vs. the State of Bihar, the Supreme Court upheld the conviction and sentence of a 12-year-old boy, who along with his two elder brothers had been initially convicted for murder; which was later converted by the High Court to one for voluntarily causing grievous hurt by dangerous weapons or means. The Supreme Court noted that Section 83 had not been invoked at any stage of the criminal process implying that the onus is on the defense to establish the child’s immaturity.
In Kakoo vs. the State of Himachal Pradesh, a 13-year-old boy was convicted for raping a two-year-old girl. To bring down the sentence of the punishment, the counsel 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 offense of rape, it reduced the sentence of punishment by accepting the aforementioned argument of the counsel 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.