Meaning and explanation of Doli Incapax
The term Doli incapax comes from the Latin word and refers to the presumption theory of criminal responsibility in the law. As per this theory, a child is not capable of committing an offence with criminal intent.
This maxim presumes that a person who commits any criminal offence should intend to commit it and should be responsible for that crime. Until the enactment of English law, the Crime and Disorder Act 1998, section 34 described that a child whose age is under 14 years old was not able to commit a crime. These defensive theories were rooted on the basis of presumption at that time. This presumption will rebut when the prosecution has satisfactory mention to the court that the child who commits a crime did know everything which was done by him and he didn’t do that in child nature.
There are some differences in the age limit of criminal responsibility in various countries. In the Philippines, the age of 9 years to 15 years is mentioned. In the Italian Penal Code, it is mentioned as 14 years. In French law, that is counted as 13 to 18 years. In the Indian Penal Code, a child means someone under the age of 7 years. However, age between 7 to 12 years may be put on criminal responsibility based on the circumstances or understanding. That means that it can be rebuttable is, which depends on circumstances.
What does Section 82 of the Indian Penal Code say?
This section clearly mentions that a child who is aged seven cannot commit a crime with criminal intent. This concept is based on the doctrine of doli incapax, which means a child cannot commit a crime with the intention of criminal nature.
What does Section 83 of the Indian Penal Code say?
This section clearly said that a child who’s as age between the years of 7 to 12 and if he did a crime that cannot be considered a crime because he would not maturely understand what the result of the act he does is.
Presumption of doli incapax in the Indian Penal Code
Now we discuss this concept in India under sections 82 and 83 of the Indian Penal Code and the Juvenile Justice Act, which describe the provisions related to doli incapax. If we refer to those provisions, we can find that in India a child below the age of seven years can not be prosecuted for committing a crime. And a child who is between the ages of eight to fourteen years can be prosecuted, but the burden of proof must be laid down on the prosecution, and it must be proved that the offence was committed by the minor.
In the case of Salil Bali vs. Union of India and Anr, (AIR 2013 SC 3743), the Supreme Court held that, in England and Wales, a child accused can be tried for a crime which is committed by him under the Children and Young Persons Act, 1933, which is amended in section 16(1) of the Act. As per this law, the minimum age for criminal responsibility is required ten years, and the below of that age is to be considered as a doli incapax which is incapable to commit a crime with the intent of criminally. The same things are covered in the provisions of sections 82 and 83 of the IPC.
What is the Doli incapax age in India?
Simple questions arise in our mind that how to calculate a limit for the minor or what is the appropriate age of putting criminal responsibility for the minor?
The basic age of criminal responsibility in India is 7 years, that’s why if a child who is below that age committed a crime that cannot be considered his act as a criminal intent in the eyes of law. A child’s age limit between 7 and 12 years is entitled to the defence on the ground of presumption of doli incapax. That’s the reason the burden of proof must lie with the prosecution, which must rebut that presumption.
How can you prove doli incapax?
To prove the concept of doli incapax, which bassed on the presumption that a child under the age of 7 years is not capable to commits a crime which intent of criminology. Because he lacks the capacity to understand what is the result of his act which he does. However, If the prosecution wants to prove the child as an accused, then it is not as easy as proving an adult as a criminal. It must be proved by the prosecution, with the rebuttal of such presumptions of doli incapax, that the child’s act is intentionally done. And he also knows that’s wrong, which is done by him, and he does not do it in a childish nature.
The test for rebutting doli incapax
The essential elements of the test for rebutting doli incapax are given below;
- The prosecution must be able to rebut the presumption of doli incapax with appropriate case evidence.
- A child knew the seriousness of the act, which he did, and he did not commit the act in a naughty manner.
- The evidence of the prosecution must be clear beyond a reasonable doubt.
- The older child is easier for the prosecution to prove guilty of a crime.
How to rebut the presumption of Doli Incapax?
The prosecution must have to prove that the child who made a criminal offense that’s committed with the criminal intention, and he was concisely aware, which is done by him. Also, he knows the result that would come out of his act. If the prosecution wants to rebut the presumption of Doli incapax, it must be proven with appropriate evidence, as given below;
Considering the statement or admission which the child makes:
Sometimes, the child makes an admission regarding his act, which he did. That statement or admission would be sufficient to rebut the presumption of doli incapax.
Here one thing is most important: the child’s statement must show that the child knows and understands that he did the wrong act and did not do it in a naughty scene.
There is no compulsory requirement that the child make an admission or a statement. They have the right to keep silent.
The alleged statement that the child makes must be proven beyond a reasonable doubt or any other contradictions.
The statement made by the child clearly expresses that he knew what offence he had committed.
Behaviour of the child accused before and after the act:
Having proper evidence against a child can not be considered; the child’s behaviour before and after committing a crime is also considered. Here, the whole circumstances of the offence are also observed, which the child does according to his behaviour.
Any act, whether that is wrong, serious, or harmful, which is done by the child that may require that has to be knowledgeable to him. Without the child’s knowledge, that act cannot be proved against him. Such knowledge can be considered to him as an offender of a crime. Such behaviour may help to rebut a presumption against him.
Prior criminal history of a child accused:
The prior criminal history can be admissible to rebut doli incapax. However, that cannot be a reliable way to rebut this presumption. In some circumstances, even if the child has any previous criminal history, the prosecution can show the court that evidence that the child did the act is wrong for society and the criminal justice system.
However, having a past criminal history of a child accused may not provide conclusive evidence to prove a child’s later offence. Having a prior criminal history of the child doesn’t mean he has understood the seriousness of the crime which he committed.
The prior history is only considered when any previous record shows that the child had a conviction on that basis. A similar offence has been made by the child again in the same manner that may presume the intention of the crime. Otherwise, the preliminary evidence doesn’t have probative value to rebut the doli incapax.
Evidence of parents and home background of the child:
It is also a standard method that the prosecution can use to rebut the doli incapax. The prosecution can collect the evidence of the accused child’s parents or guardians who know that the offense is made by the child and understands the seriousness of the crime, and he did not do so in the naughty scene. The evidence of the child’s home background can also be used to rebut the presumption of doli incapax. However, in all these aspects, it is also necessary to observe the circumstances and intention of the child regarding the harmful act which he commits.
Evidence of teachers:
The teacher’s evidence is also a method to rebut the presumption of doli incapax. The teacher can better observe the nature of the child according to his mental or moral condition. He can also understand the ability of a child to understand what is good or bad.
Through the teacher’s evidence, the prosecution can conclude by considering the child’s ability and understanding of wrong or harmful acts.
Conclusion
The principle of doli incapax covers the criminal responsibility of children. According to that, in India, a child below seven years of age cannot be prosecuted for any offence. This principle clearly says that a child can not understand that the act was done by him and the result. The said principle is based on the presumption that children can not commit a crime with the intent of criminality by nature. However, children between the ages of 8 and 14 can be prosecuted, but for that, the prosecution has to take the full burden of proof to prove the offence against a minor. The concept of doli incapax can be rebutted with strong evidence, beyond a reasonable doubt, that a child knew the intent and result of the act that he did.
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