This report is submitted as part of course curriculum in the IIIrd Semester of

B.A. /L.L.B. (Hons.) Program.

ON

Doli Incapax - A provision impairing justice to children

Submitted By:

Shivam jain
B.A. / L.L.B. Batch 2016-2021
(16BAL111)
Institute Of Law, Nirma University

Submitted to:

Mr. Malay Srivastava Ms. Manisha Chakraborty

(Assistant Professor) (Assistant Professor)

Institute Of Law, Nirma University

Sarkhej- Gandhinagar Highway
Gota, Ahmedabad, Gujarat,
India- 382481

Table of content

1
Chapters page no.

Chapter 1. Introduction……………………………………………………………………3

Chapter 2. Concept of defences in Indian Penal Code…………………………….............6

Chapter 3. Doli Incapax as a defence…………………………………………………...…7

Chapter 4. Rebuttable presumption of Doli Incapax…………………………………........8

Chapter 5. Argument for reform of Doli Incapax…………………………………...........10

Chapter 6. Conclusion and suggestion……………………………………………………13

Chapter 7. Bibliography………………………………………………………………......13

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 Doli Incapax -A provision impairing justice to children

Chapter 1- Introduction

Statement of problem:

To maintain peace and order in society there was a need of a machinery and a mechanic
which keeps the machinery in check. Law is considered to be that machinery and judicial
system as a mechanic which keeps the laws healthy by punishing those who try to act against
the will of law.

But here in this system, there are few who are immune from this machinery. In chapter 4 of
I.P.C itself, there are certain general exceptions are laid down by the law drafters in 1860
which provides a series of defences which eliminates the entire criminal responsibility of the
wrongdoer who try to shake the will of law itself.

Doly incapax is one of these defences which laid down in section 83 of I.P.C which presumes
a child of age between seven and twelve as immature of committing any crime until it is
proven by the prosecutor that the child is mature enough to differentiate between right and
wrong.

However in today’s era this provision is considered obsolete and has become a barricade
between the paths of providing justice to everyone due to multiple reasons are follows:

1) The children born today are considered more intelligent than that of the earlier
generations due to the advancement of technology that helps to development of logic
and reason in children with a very high pace than that of their earlier counterparts. So
the laws has to be made in accordance with contemporary society and the out dated
laws should be abolished.
2) This provision goes against the aims and objective of punishing of an offenders. By
protecting children at that early age we are inclining them towards commission of
more sever offences which could have been prevented through punishing.
Reformative approach should be taken which deciding the cases.

Review of literature:

3
  Books
1. K.D. Gaur, Indian penal code, Universal, sixth edition, 2016.

This book is a brilliant, comprehensive and authoritative work on Indian penal code. This
book has helped the researcher to learn basics of penalisation in India and also to understand
the functioning of the same. The examples and case laws in this book has helped the
researcher to reach to a conclusion in the end. This book thoroughly discusses about the
implication of doli incapax on Indian justice system by narrating several case laws and
examples.

2. R.A. Nelson, Indian penal code, Lexis Nexis, Eleventh edition, 2016.

This provides an in-depth knowledge about the principle of doli incapax and the problems
associated with it. This book not only helped the researcher to clear his concept but also help
to apply the same in present criminal system in India.

 Articles
1. Hannah Wishart, Was the abolition of the doctrine of doli incapax, UK Law Student
Review, 2013.
The author in this article has compared the legal provision of doli incapax between India and
U.K. This article has helped the researcher to understand merits and demerits of this
provision and also whether the abolition of this doctrine is the need of current society.
Objective:
The research objectives of this paper are as follows:

1. To critically analyse “Doly incapax” as a principle of general exception in the Indian

criminal legal system.
2. To critically analyse the limitations and extent of this principle.
3. To examine the competency and efficiency of section 83 of Indian penal code in
India.
4. To make a comparative analysis of Indian interpretation of this principle with that of
practices carried out by foreign counterparts so as to discuss the scope of
improvement.
5. To critically examine the impairment caused to the justice system in India due to
following “Doly incapax” as a principle.

Hypothesis:
4
The researcher through his research hereby tries to prove or disprove the below statements:

1. The principle of “Doli incapax” which assumes A child below 12 years is incapable
of differentiating between right and wrong and presumes that children under age of
12 years need special protection from harshness of the criminal law is out dated and
need to be abolished.

Research question:

 Whether the presumption that the child between seven and twelve is incapable of
discriminating between right and wrong is justified or not?
 Whether the provision of doli incapax is affecting the justice delivery system?
 Should the provision of doli incapax be abolished from criminal justice system?

Methodology:

The research methodology adopted in this paper by researcher is purely based on

secondary data i.e. Books, Articles (both printed as well as electronic form) and others e-
resources for the purpose of reaching at a conclusion for hypothesis. The researcher will
observe through his research the present status of doli incapax as an exception in criminal
law system. The researcher will also analyse certain articles of Constitution with respect
to the various case laws decided by the apex court of the country to determine the
practicality of this principle in current society. The researcher has followed a qualitative
approach for determining, scope of this principle in the current justice system in India.

Tentative Chapterisation:

Chapter I: Introduction.

Chapter II: minimal age of criminal responsibility.

Chapter III: Legal theory of criminal responsibility.

Chapter-IV: Meaning of doli incapax.

Chapter-V: Comparative study on doly incapax as an exception to the criminal liability in

U.K. and Australia.

Chapter-VI: Abolition of doli incapax.

Chapter-VII: Suggestions and Conclusion.

5
Chapter 2- Concept of defences in Indian Penal Code:

In Indian Penal Code, where the drafters has defined various offences at the same time they
have also provided certain defences which goes completely against the general conception
that the “One who has committed any crime shall be punished for the same”. According to
the defences defined under chapter four of Indian penal code, there are few circumstances
where the offender need not to be punished and should go unpunished or the condition of the
offender at the time of committing that crime was such that, he/she could not enroot the
required mens rea or the accused at the time of committing that particular act could not
differentiate between right and wrong and at these particular situations the accused must go
unpunished. These defences are divided in two categories, those being justiciable and
excusable. As was rightly said by John Gardner “A person must be responsible for doing a
wrongful act without having a justification or excuse for it”1.

In case of excusable offences the necessary mens rea for the offences would be lacking by
reason of a bona fide mistakes as to the existence of a fact (sections 76, 79), or by reason of
the act being done accidentally (section 80), or by reason of infancy (sections 82, 83), or
insanity (section 84), intoxication (section 85-86) and so the actor is not responsible for what
he has done.

On the other hand, in cases of justifiable exception the circumstances under which the
offence was committed furnish legal justification for its commission either by reason of the
act being done by a judge under the direction of law (section 77), or in pursuance of the
orders of a court (section 78)2.

“The Indian Penal code, 1860 has recognized certain defences in chapter 4 of the code under
heading of ‘General Exception’. These defences are covered under section 76 to 106 of the
code. The primary aim of writing this paper is to highlight the defences available under
section 82 and 83 of the code. That is, incapability to commit a crime”3.

1
John Gardner, Offences and Defence: Selected Essays in Philosophy of Criminal Law, Oxford University
Press, 2007.
2
K.D. Gaur, Indian penal code, Universal, sixth edition, 2016.
3
Ankita Dabu, consent and benevolence as defences (October 26 2017) available at
http://racolblegal.com/consent-and-benevolence-as-defenses-in-criminal-law/.

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  Burden of proof on accused to prove an exception:

The burden of proof establishing an Exception which will entitle a person to be exempted of
the charge, is on the person who wants to bring his case within any one such clauses. Thus,
“it is accused who is required to show that his case falls within one of the exceptions
provided in chapter 4 of Penal code dealing with General Exception”4.

In case of Oyami Ayatu5, it was held that when it becomes apparent to the court through the
evidences that an exception would be applicable, then the presumptions on the accused is
removed and the onus placed upon him is discharged. The court must then consider whether
or not the case of the accused is covered by the exception irrespective of the stand taken or
the plea advanced by the accused. The judgement further says that whenever, “the
prosecution case itself indicates that an exception is applicable in favour of the accused in
the circumstances of the case, the accused cannot be denied the benefit of that exception,
whether he pleads it or not”6.

Chapter 3- Doli Incapax as a defence:

In Indian criminal jurisdictions children under seven years of age are presumed criminally
incapable of committing any crime. This presumption of criminal incapability has an
irrefutable and a rebuttable form, depending on the age of the children. The age under which
a child is irrefutably presumed criminally incapable is now seven throughout India. For
children aged above seven and below twelve the presumption is conditional and could be
rebutted by proving that the child has not attained the sufficient maturity of understanding to
judge the nature and consequences of his conduct on that occasion.

Blackstone in his own words has explained the reason for exempting infants from criminal
liability in the following words:

“Infancy is a defect of the understanding, and infants under the age of discretion
ought not to be punished by any criminal prosecution whatsoever”7.

 Scope and Absolute immunity of the Doctrine in Indian criminal system:

This rule is based on the general proposition that a child below a certain age is incapable of
distinguishing between right and wrong and so no criminal liability should be fastened in law
4
The Indian Evidence act, 1872.
5
Oyami Ayatu v. state of Madhya Pradesh, A.I.R. 1974 SC 216 (India).
6
Miller v. minister of pensions, (1947) 2 All ER 372.
7
Commentaries, vol. 4, pp. 20, 22.

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for his deeds. Section 82 of the code completely provides a defence to the child below seven
years of age from any criminal liability since the child below this age is considered Doli
Incapax in law. The scope of the immunity granted under section 82 is wide enough to
exempt a child not only from prosecution for offences under the Penal Code, but also from
offences under the special as well as local laws, as explained under section 40 of the code.

In case of Hirala Mallick8, The apex court of India explicitly said the irrefutable form the
above exception can only be availed by the child below the age of seven years. But a child
between seven to twelve years of age can only avail this defence of Doli Incapx, if it is
proved that he has not attained sufficient maturity of understanding to judge the nature and
consequence of his act. The court further said that, this presumption may be rebutted by
showing the evidences of “mischievous discretion, i.e. Knowledge that what was done was
morally wrong”9.

Chapter 4- Rebuttable presumption of Doli Incapax:

In India it is a refutable presumption that a child between age of seven and twelve are
incapable of understanding the consequence of their action. However, the burden of proof is
shifted to prosecution to prove that the child could differentiate between right and wrong.
Here, it should be clarified that the issue is not about forming that the child had the requisite
intention or not; that is kept under a separate issue. The sole contention on this matter is, “it
is the prosecution who must prove all the physical elements of the offences as well as all
necessary faulty elements, and further that the child aware that what he doing is wrong”10.

A further principle regarding refutability of the defence, identified by the House of Lords in
C v DPP, is that the guilty knowledge "must be proved by express evidence, and cannot in
any case be assume by mere commission of the act"11. “The initial point for assessing the
child's understanding should generally be the age of the accuse and the intensity of act
committed. The closer the child is to twelve, and the more intensity of the act”12, “the easier it
will become to rebut the assumption. However, the most common method used to rebut the

8
Hiralal mallick v union of India, A.I.R. 1977 SC 2236 (India).
9
Id.
10
Glanville Williams, The Criminal Responsibility of Children, Criminal Law Review, (Oct. 1954), at 89, 92.
11
C v DPP, 2 All ER 43, 62 (1998).
12
Id.

8
presumption is what the children says when he is interviewed by the police” 13, It is also
allowed, to call an expert witness to give his assessment on the child's developmental state.

In past years the rationality and fairness of the rebuttable form of the assumption has been
progressively addressed and questioned. Unfortunately, such discussions has often been
ignited by some high profile cases of young offenders committing serious offences. In such
an atmosphere, contemplated contentions must go up against profoundly emotive claims
about the need to take care of youth wrongdoing. This paper aims to discuss whether there is
still a need of the rebuttable presumption of Doli Incapax in modern Indian society. It will
start by clarifying how the rebuttable assumption works, before moving on to the past of the
presumption and causes for increased condemnation of this rebuttable presumption.

 Rebuttable Presumption in England:

It was held in R. V. Gorrie, (1909) that in common law, a children of age between ten and
fourteen is refutably presumed incapable of committing any offence. This assumption is
rebutted if the prosecution is able to prove that the child had a guilty mind.

The court further said in case of children below fourteen, the law assumes that they are not
criminally liable and they were not supposed to have that particular discretion which made
them criminally liable at that age. But In some cases, the prosecution could also prove that
although the offender was under fourteen while the act committed he was having
mischievous discretion, then they only they could rebut the assumption that the child was not
liable. But after a decade the mind of the drafter changed and in 1998 the Legislation came
that abolished the rebuttable part of the section.

According to section 34 of Crime and disorder act 1998, English legal system has completely
abolished the rebuttable presumption of Doli Incapax for the age above ten and below
fourteen. The reason being given for this action was the unfairness and out datedness of the
Law. In case of R. v. Jtb14. “It was reaffirmed by the House of Lords that both presumption
and the defence of Doli incapax has been abolished by the act of 1998”.

 Rebuttable presumption in SAARC:

13
See for instance JM v Runeckles (1984) 79 Cr App R 255, where admission of the criminal act was taken as
proof of understanding. See, however, IPH v Chief Constable of South Wales [1987] Crim LR 42, where
admission of the act was seen as showing understanding of the consequences of the act but not that the act was
wrong. Also T v DPP [1989] Crim LR 498, where denial was seen as showing that the child understood the
wrongfulness of the act. Regarding the relevance of admission of past offences, see R v M [1977] SASR 589 at
594.
14
R. v. Jtb, 477 All ER. 57, 60 (2003).

9
South Asian nation’s script rebuttable assumption is no dissimilar to that of England. For
example, Section 83 of Indian Penal Code provide immunity to a child under seven and
twelve years of age. While the PPC 1860 also provides the similar arrangement. However,
section 83 of BPC 1860 ensures qualified immunity for a child above nine and below
twelve.Likewise, Section 76 of Sri Lankan Penal Code also provides qualified immunity to a
child of above eight and below twelve.

However, a child above the age of the prescribed doli incapax age (i.e., 10 years) can be
punished, according to the Maldivian Penal Code. “Except the matter related to the religion
of Islam or Homicide”. Other than this the judge shall have the complete discretion to
mitigate the punishment of the offences committed by a person below sixteen years of age,
who is found guilty. Given in Section seven of the code.

In Nepal, where it is continuously reported that the crimes committed by the minors above
the absolute age of doli incapax is increasing with a considerable rate. The Nepalese legal
system made a new arrangement of punishing them.

Which is read as “If the age of the child while committing a crime punishable with fines
under Nepalese Penal law, is above ten years and below fourteen years, then he may be
released of every liability but if the offence committed is punishable with imprisonment, he
then shall be punished with imprisonment for a term that may extend to six months”15, reads
the section 11(2) of Nepal’s Children’s Act-1992. Therefore it can said that the Nepal Legal
System has succeeded to rule out the immunity to a child who is still a minor.

Unlike India, Bhutanese legal system has also came up the legislation that says “if the accuse
is above ten years of age, then the court may sentence a minimum of half of the sentence
prescribed for the offence to the child” 16 Section 115 of Bhutan Penal Code.

Chapter 5- Argument for reform of Doli Incapax:

There has been on multiple occasions the criticism has been made on the presumption of doli
incapax. These criticism has made widely under two main headings.

1) The presumption has become outdated and need not to be enforce.

2) Considering the child incapable of committing a crime is an unfair practice.

15
Mridu iyer, Age of penal majority, Doli incapax in South Asia, (September 26, 2017, 04:34 PM),
http://www.southasia.com.au/2016/11/05/age-of-penal-majority-doli-incapax-in-south-asia/.
16
Id.

10
  Doctrine is outdated:

In Britain, while arguing for the abolition of the presumption, the sole important point raised
and argued was that “the notion that the average 10-14 year old does not know right from
wrong seems contrary to common sense in an age of compulsory education from the age of
five, when children seem to develop faster both mentally and physically”17.

This same argument was expressly argued in both Queensland and New South Whales.
During the debate on the Criminal code Amendment Bill in Queensland where it was stated
that:

“I believe it would be a difficult task to find a children of age ten to fourteen years who does
not know the difference between right and wrong according to what the community would
find reasonable, especially in a time when it is clear that the incidences of children,
sometimes younger than 10, being involved in serious crime are definitely on the increase”18.

The above claim has been criticised on the merits as it suggests that “if crimes are increasing
this equates with a greater understanding amongst children”. This raise one question whether
the actual concern is finalising the most appropriate age and the mechanism for establishing
whether children are criminally responsible or it’s just the desire of the legal system to deal
with the young within the criminal justice system while their offences are seen to be social
problem.

The objection over the argument that providing modern education system means that a
children matures early has been already raised by Lord Lowry in C v. DPP, "better formal
education and earlier sophistication do not guarantee that the child will more readily
distinguish between right from wrong"19. Similarly, the Australian Association of Children
Welfare Agencies has argued that:

“While many children may have access to a greater amount of information (and even this
assertion is questionable for highly disadvantaged groups) than in previous centuries when
the laws were conceived, information does not necessarily imply a greater maturity or
discernment when it comes to matters of right and wrong”20. In fact, the research has shown

17
Home Office, Tackling Youth Crime: A Consultation Paper (1997), para 8.
18
Mr Paff, Queensland Hansard, (18 August 1999).
19
C v DPP [1995] 2 All ER
20
Thomas croft, Doli incapax: Why children deserves its protection, Association of Child Welfare Agencies
(October 15, 2017, 05:31 PM), <http://www.acwa.asn.au/acwa/publications/newsletter/2000/feb2000.html>

11
that despite the compulsory education a significant number of accused children do not attend
the classed regularly, because of truancy and school policy.

It can never be denied that children today have much resources and technology which they
make greater use as well than the earlier years. However, this does not mean that they have
ability to comprehend the wrongfulness of actions. The advancement in the electronic media
has not only made a positive influence on the growth and development of children. Computer
games, television, Internet etc., have also led to the reduction in social contact between
people. And on this a German author claims, such media have also led to a "gradual
disappearance of reality"21. Thus, instead of relating with others, personally acquiring
experience and learning how to act rational in them, Children learn their surroundings
through watching television and playing computers which is completely different than the
real experience.

It cannot be therefore be claimed that the presumption is outdated and need to be abolished
on the basis that the children of contemporary society can generally differentiate between
right and wrong at an earlier age than the past. In fact it could be argued that current
conditions may lead the child less mature than generally assumed.

 Doctrine is unfair:

The second form of criticism which are made on this presumption is that the provision is
unfair and because in some cases it becomes impossible for the prosecution to bring the
required evidences to rebut the presumption. This means that some children who should be
punished avoid conviction.

This argument seems to be more illogical and ignore the fundamental nature of the
presumption in practice. This presumption is based on a fundamental principle of criminal
law, that says that a person should not be punished until he freely knew and chose to do
something that is a wrong in the eyes of law. According to harts: "unless a man has the
capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties
ought not to be applied to him"22. It clarify that the children do not born with the ability but
develop it gradually with the passing time. The Doctrine takes the account that the path of the
growth is not steady but flexible. It is presumed through this doctrine that the child is
incapable but it can be rebutted by proving that the child was able to understand the

21
Hartmut von Henting, Das allmhliche Verschwinden der Wirklichkeit, 1984.
22
H.L.A. Hart, Punishment and Responsibility, Oxford: Oxford University Press, 1968.

12
mischievousness of the act. Thus the conviction without reasonable proof that the child knew
what they had done is actually impairing justice23.

Chapter 6- Conclusion and suggestion:

Through the above discussion the researcher has come to a conclusion that the criticism made
of the presumption of doli incapax is not enough for change the presumption, rather they
persuade us more to keep this defence and take it more seriously than earlier. The sole
purpose of this presumption to exist is because the nature of childhood, the presumption
allows children what they deserve: protection if they are incapable to understand what is
wrong and right and conviction if they can. In the light of the above information gathered the
Hypothesis of this research paper disproved beyond reasonable doubt.

In this present era, technology may have help to

develop the child faster than a decade ago. But this development does not mean they are
matured enough to understand what is right and wrong. In light of the above discussion I
suggest, this is not the time to abolish this exception. This is the time when we need such
kind of doctrines even more to protect children from the cruelty happening in present society.

Chapter 7- Bibliography:

 Books
1. K.D. Gaur, Indian penal code, Universal, sixth edition, 2016.
2. R.A. Nelson, Indian penal code, Lexis Nexis, Eleventh edition, 2016.

 Articles
1. Hannah Wishart, Was the abolition of the doctrine of doli incapax, Manchester
University, 2013.
2. Mukesh yadav, Age of Criminal Responsibility of Juvenile in India, Indian academic
Forensic med., 2013.
3. Hartmut von Henting, Das allmhliche Verschwinden der Wirklichkeit, 1984.
4. H.L.A. Hart, Punishment and Responsibility, Oxford: Oxford University Press, 1968.
5. Home Office, Tackling Youth Crime: A Consultation Paper, 1997.
6. Glanville Williams, the Criminal Responsibility of Children, Criminal Law Review,
(Oct. 1954), at 89, 92.
23
Supra note 20.

13
7. John Gardner, Offences and Defence: Selected Essays in Philosophy of Criminal
Law, Oxford University Press, 2007.
 Internet
1. Thomas croft, Doli incapax: Why children deserves its protection, Association of
Child Welfare Agencies (October 15, 2017, 05:31 PM),
http://www.acwa.asn.au/acwa/publications/newsletter/2000/feb2000.html
2. Mridu iyer, Age of penal majority, Doli incapax in South Asia, (September 26, 2017,
04:34 PM), http://www.southasia.com.au/2016/11/05/age-of-penal-majority-doli-
incapax-in-south-asia/.
3. Ankita Dabu, consent and benevolence as defences, (October 26 2017) available at
http://racolblegal.com/consent-and-benevolence-as-defenses-in-criminal-law/.
 Case laws
1. C v DPP [1995] 2 All ER.
2. R. v. Jtb, 477 All ER. 57, 60 (2003).
3. Hiralal mallick v union of India, A.I.R. 1977 SC 2236 (India).
4. Oyami Ayatu v. state of Madhya Pradesh, A.I.R. 1974 SC 216 (India).

14