Sample Material of Current Public Administration Magazine
Fairer determination of age of victim and accused
Two important amendments were made in the law, pursuant to
the Delhi gang rape of December 2012. First, the age of consent was raised from
16 to 18 years and second, the juvenile delinquent was to be treated as major if
his age is between 16 and 18, and based on his mental and physical capacity to
commit the alleged heinous crime and ability to understand the consequences. The
first amendment, made in the IPC, relates to the victim of rape and the second,
to a child in conflict with law.
There are two common sources used in the criminal cases for
determining the age of a child — documentary and biological. Documentary
evidence is where the birth of the child is entered in a book to be maintained
by a credible agency. Biological evidence is obtained from a medical examination
specifically oriented towards determining the age of a child. However, as a
medical test cannot determine the precise age, it is considered only in the
absence of other evidence.
A research study of 100 cases of rape of minor girls has
revealed that the most common practice by the investigating agency has been to
collect school certificates. Though school certificates were produced in 79
cases, these were admitted by the court as credible only in 21 cases. Similarly,
though the ossification test for determining age was conducted in seven cases,
the victim was admitted by the court as a minor girl in just one case.
The main objective of the defence counsel is to cast
suspicion in the recorded date of birth and to prove that the girl is not a
minor. In addition, if the case falls in the category of alleged statutory rape
— consensual sex with a girl under the age of consent — the whole case falls.
The burden of proving the age of the victim is on the prosecution and there is
no standard procedure to guide the police.
The situation is quite different for determining the age of a
child in conflict with law. The law here is more precise and accused-friendly.
Section 94 of the newly enacted JJ Act of 2015 clearly lays down the procedure
for determining the age of a juvenile delinquent. It says that the date of birth
certificate from the school or matriculation or the equivalent certificate from
the concerned examination board shall be the preferred evidence for determining
age. Determining age on the basis of an ossification test shall be resorted to
only in the absence of the above certificates.
The extent of ossification and the union of epiphysis in
bones are helpful for determining age. But variations in climatic, dietetic,
hereditary and other factors affecting people from different states make it
difficult to formulate a uniform standard. Therefore, a margin of six months,
based on the time-tested principles of medical jurisprudence, is added on either
side of the range. However, a two-year margin has been used erroneously by
defence counsel and accepted by the courts.
Two suggestions can prove useful to the investigating
agencies in determining the age of the victim. One, an amendment should be made
in the POCSO Act and the procedure of determining age of a child in conflict
with law as prescribed in section 94 of the JJ Act of 2015 should be applied to
the victims of rape as well. Two, the six-month margin of error can be added to
the range of age estimated on the basis of the ossification test. Such changes
in law will surely put to rest the confusion created by the defence lawyers.
This will not only give clarity to the medical doctors for firmly deposing in
the court but will also help the investigating agencies in collection of proper
evidence about the age of the victim.
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