Kakoo v. The State of Himachal Pradesh (1976)

Facts of the Case : 

1. The basic Representative information of the parties are as follows – 

2. Citation: AIR 1976 SUPREME COURT 1991, 1977 SCJ 114, (1976) 2 SCC 215, 1976  SCC(CRI) 270, ILR 1976 HP 97 

3. Bench : P.N. SHINGHAL, R.S. SARKARIA 

4. The event of the case are as follows – 

The Petitioner, Kakoo, a 13 years old boy living in Himachal Pradesh. He was convicted of  committing rape on the 2 years old Girl Child. The case was first tried in the High Court of  Himachal Pradesh which pronounced the judgement against the petitioner with 4 years rigorous  imprisonment. Under Article 136 of the Indian Constitution, the appellate appeals to this Hon’ble  court to grant Special Leave.  

Issue of the Case:  

The issue that the Petitioner’s Legal representative, Mr. Kohli raised were the appellant was 13  years old at the time of commission of the crime, who is considered juvenile. According to the  section 82 & 83 of the Indian Penal Code,1860 a juvenile who has committed the offence is not  treated as criminal.  

Law:  

The Law point on this case involves Concept of Doli Incapax which is mentioned under Section  82 & 83 of the Indian Penal Code.  

According to Section 82 & 83 provides that any child who is below 7 years, commits crime that  child can not be treated as criminal or cannot be punished. If the child is between the age 7 to 12  & doesn’t have the capability to understand the consequence of the offensive action, that child  will not be punished & treated as criminal.  

Doli Incapax  

Meaning – Doli Incapax means Incapable of wrongdoing. It is used to protect children held  responsible for criminal actions.  

The Crime is defined by a famous legal maxim “Actus reus non facit reum nisi mens sit rea,”  which means one cannot be guilty of a crime unless there is guilty mind & guilty action. In this  terminology, guilty mind represents that intention to commit the crime & guilty action represents  the actual commission of the crime.  

 In Doli Incapax, there is Actus rea but absence of Mens rea as the child is incapable &  immature to develop the cruelty in their mind. Therefore it is for the protection of the children to  be not treated as criminal but to reform them. 

Provisions regarding Doli Incapax in the Juvenile justice (Care & Protection) Act,2000:  According to Juvenile Justice (Care and Protection for Children) Act, 2000, 18 years is the age of  Criminal Responsibility. Before 18 years children can be protected by Doli Incapax.  

Section 82 of the Indian Penal Code:  

Section 82 is considered as General Exception. This section give arise to absolute immunity to  any child aged below 7 years for considered guilty & Criminal for the offence. This section is  inserted due to the children below age 7 years cannot understand the consequence of their  actions.  

Section 83 of the Indian Penal Code:  

According to this section, any child aged between 7 – 12 years convicted of a crime will be  granted partial immunity. For acquiring immunity through this section required to fulfill 2 basis  – 

1. The Child should be in the said age category  

2. The child should not have attended the level of maturity to understand the consequence of  their actions.  

Case Laws aws regarding Doli Incapax  

– Ram Dhan v. State of Uttar Pradesh : 

Ram Dhan v. State of Uttar Pradesh, AIR 1972 SC 1197 [India] 

In 1972, the judgement of this case was pronounced stating the application of Section 83 of the  IPC, which requires the prosecution’s legal representative to prove the minor hasn’t attained the  level of maturity. While helding the Hon’ble Supreme Court of India acquitted the child & stated  that the confession should be taken in judicial settings without inducement.  

– Hiralal Mallick v. State of Bihar : 

Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236 [India] 

In 1977, The Hon’ble Court held that the children below the age of 7 years & are considered  incapable of committing any crime mentioned under Section 82 of the Indian Penal Code.  

– Umesh Chandra v. State of Rajasthan : 

Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 626 [India] 

In 1982, The Hon’ble Court held that the age of the offender at the time of commissioning the  crime and the application of the doli incapax doctrine in the criminal Responsibility of juvenile.  

– Gopinath Ghosh v. State of West Bengal:  

Gopinath Ghosh v. State of West Bengal, (1984) 2 SCC 665 [India] 

In 1984, The Hon’ble Supreme Court stated that the issue of a minor being tried as like that of an  adult, ruling that if anyone is a minor at the time of the commission of an offense, they should be  tried as minor under section 2(35) of the Juvenile Justice Act.  

– Sheila Barse v. Union of India:  

Sheila Barse v. Union of India, AIR 1986 SC 1773 [India]

In 1986, The Hon’ble Supreme Court addresses the importance & requirement for the special  treatment of Children in conflict with the statute & aligning with the key aspects of doli incapax. 

– Ramesh v. State of Haryana:  

Ramesh v. State of Haryana, (2001) 5 SCC 638 [India] 

In 2001, The Hon’ble Court held that the minor should not be seen as same as an adults in the  criminal matters & reflect the application of the key aspects of doli incapax. 

– Pratap Singh v. State of Jharkhand: 

Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 [India] 

In 2005, The Hon’ble Supreme Court emphasized the issue of minor’s offence and to understand  the sections of the Juvenile Justice (Care and Protection for Children) Act, addressing that a child  under the age of 18 years is considered to be doli incapax. 

– Raghbir v. State of Haryana : 

Raghbir v. State of Haryana, (2007) 8 SCC 551 [India] 

In 2007, This case on spotlight on the application of Section 82 which is for doli incapax for  children aged between 7 – 12 years, where the prosecution side requires to give valid evidence  that the minor is capable of form mens rea.  

– Subramanian Swamy v. Raju : 

Subramanian Swamy v. Raju, (2014) 12 SCC 674 [India] 

In 2014, this case which has the involvement of the Nirbhaya gang rape case, where the  applicant raise to questioned at reducing the age limit for juvenile Criminals was argued which  further leads to the amendments in the Juvenile Justice (care and Protection for Children) Act,  but readdressing the applicability of doli incapax doctrine for certain age groups. 

– Sambhaji Kamble v. State of Maharashtra:  

Sambhaji Kamble v. State of Maharashtra, (2020) 5 SCC 466 [India] 

In 2020, The Hon’ble High Court of Bombay scrutinized the theory of doli incapax concerning a  juvenile’s involvement in committing the offence and reinforced the statutory protections  provided for minors under the Juvenile Justice (Care and Protection for Children) Act.  

Petitioner’s Argument:  

Mr. Kohli, the legal representative of the appellant, writes in his submit that if the punishment is  to reform the prisoner or offender then they can be reclaimed in the society. Through such  rigorous imprisonment to a boy aged 13 years, living with Criminals for longer period would  cause adverse effect on the Child & demolished the primary object of reformative theory. He  further continued the statement concluded with a plea to reduce the imprisonment period &  rigorous nature of the punishment.  

Respondent’s Argument:  

Learned Counsel, as the Legal Representative of the State, writes in his submission that the Child  offender was capable of understanding the consequences of his action. Due to which when 

committing the crime, he was engross to the point that the victim’s mother have to struggle to  dragged the baby away from the grip of the offender.  

Analysis:  

The Bench while deciding this case stated that the crime done in a sadistic manner which steel  the heart of law but this cannot overshadowed the fact that the offender committed the crime at  13 years. Enactments regarding section 82 & 83 of the Indian Penal Code have been passed in  several states of India but there is no enactment in force for such in Himachal Pradesh.  

Conclusion:  

Taking all into account, Justice P.N. SHINGHAL & Justice R.S. SARKARIA held that the  imprisonment period of the child offender to be reduced to 1 year & a compensation of ₹2,000  shall be given to the victim’s mother. If there is a delay or default in paying the compensation  amount then it will result into additional 6 months of rigorous imprisonment period to the child  offender.