Age determination under Indian Law. Procedure and lacunae


Essai, 2019
7 Pages, Note: 5.2/7

Extrait

Table of Contents

Abstract

Importance of age determination

Procedure for determination of age

Reliability of documentary evidence

Reliability of Medical Opinion

Flaws in ossification test

Correct approach

Conclusion

Abstract

Age determination is of paramount importance for ascertaining whether an accused comes within purview of Juvenile Justice Act, 2015 or not. The 2015 Act gives some special privileges to juveniles accused of committing a crime. Importance of age determination has further increased after the introduction of “judicial waiver” system which allows treatment of juvenile offenders as an adult if they are accused of committing a heinous crime (between 16-18 years of age).

The provisions for age determination lean heavily in favour of juvenile offenders. The Child Welfare Committee (CWC) has been given wide powers in this aspect. If an accused, by his appearance, appears to be child below 18 years, then the committee shall record the approximate age and proceed without any further inquiry. If there are reasonable grounds for doubting the age, then the committee relies upon matriculation certificate or birth certificate. Only in the absence of birth certificate or relevant school documents, the committee decides to go ossification test or other medical test for determination of age.

The essay shall be a critical analysis of the procedure for determination of age, approach of Indian courts in age determination and the lacunae in the procedure, if any.

Keywords- Ossification test, medical evidence, juvenile justice.

Importance of age determination

Age determination is a crucial aspect since the benefits enshrined under the Juvenile Justice (Care and Protection of Children) Act, 2015 are available only to a person who has not completed the age of eighteen years. Sec 2(35) of the 2015 Act defined juvenile as a child below the age of eighteen years.1 Under the 2015 Act, the importance of age determination has further due to the creation of an exception under which a child above sixteen years of age may be tried as an adult if he is accused of committing a heinous offence.2

Procedure for determination of age

Under the 2015 Act, a three layered procedure is mentioned for determination of age:-3

1. Based upon appearance- In this case, a presumption is drawn in favour of a juvenile. If a person appears to be a child below 18 years, then the Child Welfare Committee (CWC) shall record the approximate age and proceed without waiting for further confirmation.
2. Based upon documentary evidence- If there are reasonable grounds for doubting the age, then the date of birth mentioned in matriculation certificate, or birth certificate shall be relied upon.
3. Based upon medical evidence- Medical opinion has to be relied upon only in the absence of documentary evidence.

Reliability of documentary evidence

When matriculation certificate or birth certificate is available, courts usually refuse to entertain any objection over the age of a juvenile. This is mainly because documentary evidence is the primary evidence under Indian Evidence Act, 1872.4 In Nirbhaya’s case, the age of the accused was 17 years and six months according to his birth certificate and other school documents. Police requested the court to conduct ossification test. But the court refused the plea and held that it cannot permit the test in presence of a positive evidence such as birth certificate.5 In Raju Kumar v. State of Haryana,6 court admitted “mark sheet” as proof of age.

Courts have always interpreted the provisions of Juvenile Justice Act in favour of juveniles. In Arnit Das v. State of Bihar,7 court held that while deciding whether an accused is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused. When two views are possible are possible on the same evidence, the court should lean in favour of holding the accused to be juvenile in borderline cases.

In a few cases, court has rejected school documents for determination of age if they do not fulfill the requirements of Indian Evidence Act, 1872. In Ravindra Singh Gorkhi v. State of Uttar Pradesh,8 court rejected school leaving certificate as it did not satisfy the requirements of Indian Evidence Act, 1872. The court found that no proper register was maintained and original register wasn’t produced before the court. Register wasn’t maintained in the ordinary course of business. It was concluded that the certificate was made for the purpose of that case only. Therefore, court rejected the said certificate.

The curious case of Bihar

Forging a school leaving certificate is relatively easy as compared to other documents. This is evident by a scandal which was busted in Bihar. Bihar police arrested a school principal who made fake certificates for adult criminals and certified in courts that they were juveniles. His modus operandi was very simple. Since he was the principal, it was relatively easy for him to fake a school leaving certificate. On an additional charge of Rs. 50,000, he would certify in court that his clients were juveniles. Police suspects that he sold more than 100 forged school leaving certificates during his tenure as a principle. He even sold them to criminals from other states as well. As per police reports, there are many other people selling fake certificates.9

Reliability of Medical Opinion

In the absence of birth certificate or matriculation certificate, age is determined based upon medical opinion. The primary test for age determination is the ossification test. Human bones are remodelled and new layer of bone material is laid by a process called ossification (or osteogenesis).10 Based upon this phenomenon, ossification test is carried out.

Courts have held that medical opinion based upon ossification test is merely an expert opinion under the Indian Evidence Act, 1872. Therefore, it cannot be binding upon courts. In State of Madhya Pradesh v. Anoop Singh,11 court held that the ossification test is not sole criteria for determination of age. A blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of a medical opinion by radiological examination. In Mukkarab v. State of U.P.,12 court held that the medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered only along with other cogent evidence.

Flaws in ossification test

One of the major flaws with the ossification test is that it only tells the ‘estimated’ age of a person and not the exact age. It only estimates the ‘biological’ age of a person which differs from ‘legal’ age. Ossification test leaves a margin of atleast six months on either side even if the test is conducted upon multiple joints. At times, it shows a variation of four years.13 If test is conducted upon single bone, it may leave an error of upto two years on either side. If it is conducted upon multiple joints with overlapping age of fusion, the margin may be reduced upto six months on either side.14 Still, the possibility of an error cannot be ruled out. Ossification test leaves much room for speculation and does not give a sure indication as to the age of a person, particularly when it is in the border region.15

Another major flaw is that the test is not useful when a person has crossed 25-27 years of age. This is primarily because nearly all the bones are completely ossified and the skeletal growth ceases by the age of 25 years.16 In Mukkarrab Singh’s[17] case, the medical report stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.

Correct approach

There are better techniques available and are used for determination of age across the world. For example, the U.S. immigration department uses “wisdom teeth” technique for determination of age.18 Under this technique, doctors examine the third molar which usually erupts between 17 to 25 years of age. The average error is in this technique is also significantly lower than the ossification of any other bone.19 Another technique is the “epigenetic clock” technique. Epigenetic clock is DNA clock which measures DNA methylation levels to estimate age of a tissue or an organ. The median error in this technique can be reduced to less than four weeks.20 Such techniques need to be introduced in India as well.

Until better techniques aren’t adopted for determination of age, courts shall be look into “state of mind” and “criminal maturity” of a juvenile and decide whether he should be tried as an adult or not. This is primarily because some kids grow faster than others. For instance, a boy who is reared in high delinquency area may reach criminal maturity by the age of twelve or thirteen years. He has reached criminal maturity because criminality has become an integrated part of his personality. He plans his offenses, knows how to “fix” things if caught, and thinks of himself as “delinquent” or “bad.”21 This approach is based upon the principle enunciated in sec 83 of the Indian Penal Code, 1860 which states nothing is an offence done by a child above 7 years and under 12 years of age if it is proved that he was immature to understand the consequences of his act.22 However, this approach shall be used only in the cases where medical evidence is not conclusive and there are reasonable grounds for doubting the credibility of available documentary evidence.

[...]


1 Juvenile Justice (Care and Protection of Children) Act, 2015 (Act 2 of 2016), Chapter I, Sec- 2(35) - “juvenile” means a child below the age of eighteen years.

2 Juvenile Justice (Care and Protection of Children) Act, 2015 (Act 2 of 2016), Chapter IV, Sec 15 and sec 19

3 Juvenile Justice (Care and Protection of Children) Act, 2015 (Act 2 of 2016), Chapter X, Sec 94

4 Indian Evidence Act, 1872(Act 1 of 1872) Part II, Chapter V, Sec 62- Primary evidence

5 http://www.thehindu.com/news/national/gang-rape-case-plea-for-bone-ossification-test-turned-down/article4353611.ece Last accessed on 25-12-17.

6 (2010) 3 SCC 235

7 (2000) 5 SCC 488

8 (2006 )5 SCC 584

9 http://www.hindustantimes.com/india-news/bihar-how-criminals-beat-the-law-with-ex-school-principal-s-fake-age-certificates/story-48UEuP09Vpn60k9rzs3OhJ.html last accessed on 26-12-17

10 Caetano-Lopes J, Canhão H, Fonseca JE (2007). "Osteoblasts and bone formation". Acta reumatológica portuguesa. 32 (2): 103–10. PMID 17572649

11 (2015) 7 SCC 773

12 Criminal Appeal Nos. 1119-1120 Of 2016

13 Modi Jaising P., Modi’s Medical Jurisprudence, Lexis Nexis, 24th Edition, 2013.

14 Jhala, R.M. and Raju, V.B., Jhala and Raju's Medical Jurisprudence, Eastern Book Company, 6th Edition, 1997.

15 Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1

16 Marieb Elaine N. and Hoehn Katja N., Human Anatomy and Physiology, Pearson, 10th Edition, 2015.

17 Supra note 12.

18 https://www.newscientist.com/article/mg21428644-300-with-no-paper-trail-can-science-determine-age/ Last accessed on 02-01-18

19 Shamin T, Age Estimation: A Dental Approach, Journal of Punjab Academy of Forensic Medicine & Toxicology, Volume 6 Issue 1. ISSN- 0972-5687

20 https://genomebiology.biomedcentral.com/articles/10.1186/s13059-017-1245-8 Last accessed: 02-01-18.

21 Walter C. Reckless, Simon Dinitz, and Ellen Murray, “Self-Concept as an Insulator Against Delinquency,” American Sociological Review, 21: 744-746, December, 1956.

22 Indian Penal Code, 1860 (Act 45 of 1860), Chapter IV, Sec 83- Act of a child above seven and under twelve of immature understanding Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion

Fin de l'extrait de 7 pages

Résumé des informations

Titre
Age determination under Indian Law. Procedure and lacunae
Université
Damodaram Sanjivayya National Law University
Note
5.2/7
Auteur
Année
2019
Pages
7
N° de catalogue
V498265
ISBN (ebook)
9783346051127
Langue
Anglais
mots-clé
Ossification test, medical evidence, juvenile justice, Age determination
Citation du texte
Abhinav Mishra (Auteur), 2019, Age determination under Indian Law. Procedure and lacunae, Munich, GRIN Verlag, https://www.grin.com/document/498265

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