The Allahabad High Court in (PIL) Misc. WP No. 855 of 2012 directed the Juvenile Justice Boards to hold inquiries to determine the age of prisoners languishing in jails who claimed to have been juveniles in conflict with the law. The medical board subjected the Petitioner to X-rays of the skull and sternum. Upon medical examination of the Petitioner, the Medical Board gave its report certifying that on the date of the commission of the alleged offence, the Petitioner could have been around 15 years of age and on the date of the medical examination, the Petitioner was around 56 years of age.
The Family Register, issued under the UP Panchayat Raj (Maintenance of Family Registers) Rules, 1970, shows the year of his birth as 1968 and the offence was committed in 1982 therefore the age of the Petitioner at the time of the commission of the offence was 14 years (as per the family register).
Now the Petitioner claims before the Hon’ble Supreme Court of India that as he was juvenile on the date of the commission of the alleged offence in 1982, he could not have been put to trial along with other co-accused and should have been dealt with under provisions of the Juvenile Justice Act as prevailing at the relevant point of time.
Family Register
In the case of Manoj v. State of Haryana, (2022) 6 SCC 187, it was observed in regard to the Family Register referred to above as under:
“39. We are unable to approve the broad view taken by the High Court in some of the cases that the family register is not relevant to determine the age of the family members. It is a question of fact as to how much evidentiary value is to be attached to the family register but to say that it is entirely not relevant would not be the correct enunciation of law. The register is being maintained in accordance with the rules framed under a statute. The entries made in the regular course of the affairs of the Panchayat would thus be relevant but the extent of such reliance would be in view of the peculiar facts and circumstances of each case.”
Court’s Observation
In view of Section 7A of the 2000 Act referred to hereinabove, applicable to the Petitioner herein, the plea of juvenility could be raised in any court, at any stage even after the final disposal of the Special Leave Petition under Article 136 of the Constitution. In the case of the Petitioner herein, his Special Leave Petition had also been dismissed by the Supreme Court. However, the Supreme Court is still obliged to consider the plea of juvenility taken by the Petitioner and grant him appropriate relief. The fact that the 2000 Act has later been replaced by the 2015 Act would make no difference.
While referring to the judgment delivered in the case of Ashwani Kumar Saxena v. State of Madhya Pradesh, AIR 2013 SC 553, the Hon’ble court has held that, in deciding whether an accused is juvenile or not, a hyper-technical approach should not be adopted. While appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile, if two views are possible on the same evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The inquiry contemplated is not a roving inquiry. The Court can accept as evidence something more than an affidavit i.e. documents, certificates, etc. as evidence in proof of age. A mere opinion by a person as to the accused looking one or two years older than the age claimed by him (as the opinion of the headmaster in the present case) or the fact that the accused told his age to be more than what he alleges in the case while being arrested by the police officer would not hold much water. It is the documentary evidence placed on record that plays a major role in determining the age of a juvenile in conflict of law. And, it is only in the cases where the documents or certificates placed on record by the accused in support of his claim of juvenility are found to be fabricated or manipulated, that the Court, the Juvenile Justice Board, or the Committee need to go for a medical test for age determination.
Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as ‘2007 rules’) clearly mandates that while conducting an inquiry about the juvenility of an accused, the Juvenile Justice Board would seek evidence by obtaining the matriculation or equivalent certificates and in the absence whereof the date of birth certificate from the school first attended and in absence whereof the birth certificate given by a corporation or a Municipal authority or a Panchayat. It is made clear by subclause (b) that only in the absence of the aforesaid three documents, medical information would be sought from a duly constituted Medical Board which will declare the age of the juvenile or child. Thus, it is only in the absence of the aforesaid documents that the Juvenile Justice Board could have asked for medical information/ossification test.
In the instant case, the accused has not produced any matriculation certificate or equivalent certificate to prove his age. What is produced by him is only the Family Register issued under the U.P. Panchayat Raj Act, 1947. The document cannot be accepted as equivalent to a matriculation certificate to prove the age of the accused. However, the evidentiary value of the Family Register will have to be looked into in the course of the inquiry that the court may order.
Determination of plea of juvenility at a belated stage
Ideally, there should not be any dispute as to the age of a person if the birth is registered in accordance with law and the date of birth is entered in the school records on the basis of the genuine record of birth. However, in India, the factors like poverty, illiteracy, ignorance, indifference, and inadequacy of the system often lead to there being no documentary proof of a person’s age. Therefore, in those cases where the plea of juvenility is raised at a belated stage, often certain medical tests are resorted to for age determination in absence of the documents enumerated in Section 94 of the Act 2015. The rule allowing the plea of juvenility to be raised at a considerably belated stage has its rationale in the contemporary child rights jurisprudence which requires the stakeholders to act in the best interest of the child.
What is a bone ossification test?
The bone ossification test (hereinafter “ossification test”) is a test that determines age based on the “degree of fusion of bone” by taking the xray of a few bones. In simple words, the ossification test or osteogenesis is the process of bone formation based on the fusion of joints between the birth and age of twenty five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of the clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive.
Vishnu v. State of Maharashtra, (2006) 1 SCC 283 - The ossification test by the medical officer is to assist the court which falls under the ambit of medical expert opinion i.e., advisory in nature and not binding. However, such an opinion cannot override ocular or documentary evidence, which has been proved to be true and admissible as they constitute “statement of facts”.
The margin of error principle
The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method.
Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 - The ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond a reasonable doubt.
Arnit Das v. State of Bihar, (2000) 5 SCC 488 - The Court should not take a hypertechnical approach while appreciating evidence for the determination of the age of the accused. If two views are possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This approach was further reiterated by Supreme Court in Rajendra Chandra v. State of Chhattisgarh, (2002) 2 SCC 287, in which it laid down that the standard of proof of age determination is the degree of probability and not proof beyond reasonable doubt
Rishipal Singh Solanki v. State of Uttar Pradesh, (2021) SCC OnLine SC 1079 - Section 94 of the 2015 Act does not give precedence to the matriculation and other certificates, to determine the age of a person, since the said section only deals with the matter of procedure. The Supreme Court held that lex non cogit ad impossibilia (the law does not demand the impossible) and when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person and other available certificates may be taken into consideration.
The bench was conscious of the fact that in the case on hand the convict was subjected to medical examination after being referred to the Medical Board. However, the report on record does not inspire much confidence. Over and above the same, the decision in the case of Ram Vijay Singh (supra) makes it very clear that in the absence of reliable and trustworthy medical evidence to find out the age of the appellant herein, the ossification test conducted in the year 2021 when the appellant was above 50 years of age cannot be conclusive to declare him as a juvenile on the date of the incident. The Supreme Court observed that when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with the law. However, when the person is around 40 years of age, the structure of bones cannot be helpful in determining the age. In such circumstances, it will be a matter of debate as to what extent the new ossification test report that may come on record can be relied upon and to what extent the same would be helpful to the appellant herein.
Hon'ble Court observed and directed that despite all the odds against the Petitioner, we would still like to look into the matter in the larger interest of justice. It will be in the fitness of things if the Petitioner is once again subjected to the ossification test at the Civil Hospital, Allahabad, or any other latest medical age determination test and such test shall be carried out by a team of three doctors, one of whom should be the head of the Department of Radiology.
Following directions are issued by the Hon’ble Supreme Court in the instant case-
The Sessions Court, Agra to examine the claim of the Petitioner to juvenility in regard with law within one month from the date of communication of this order;
The concerned Sessions Court shall also examine the authenticity and genuineness of the Family Register sought to be relied upon by the Petitioner;
The Sessions Court shall ensure that the Petitioner is medically examined by taking an ossification test or any other modern recognized method of age determination;
The Sessions Court concerned shall submit its report as regards the aforesaid to the Supreme Court within one month from the date of communication of this order; etc.
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