August 26,2018:

Age Determination of a Victim By Rakesh Kumar Singh (Download PDF)

  1. Offences related to sexual assault are very serious and if the victim is a minor, her consent are statutorily and judicially declared as of no value. Additionally, some statute sexual assualt against minor casts a reverse onus of proof on the person who is accused of such offences. In such circumstances, age determination of the victim assumes significance. In the present paper we will try to understand the mode and manner of determining the age of a victim.
  2. We know that Juvenile Justice Act deals primarily with a minor person who is found to be in conflict with law and provides for the method to determine his age. In the earlier Act of 2000, the method was provided through Rules whereas in the new Act of 2015, the method is provided in the statute itself. It was however, the Supreme Court which opined that there is nothing which should come in the way of applying the same methodology for determining the age of victim. It was done in Jarnail Singh vs State of Haryana (2013) 7 SCC 263.
  3. The Supreme Court in Jarnail Singh(supra) has held “On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules)................. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime”.

3.1.      It seems that to avoid any kind of doubt due to availability of different documents or other circumstances, the Supreme Court further commented as “In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view, that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW – PW6. It would also be relevant to mention, that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material including the ossification test, for determining the age of the prosecutrix VW-PW6. The deposition of Satpal-PW4 has not been contested”.

3.2.      It is thus clear that age of victim has to be determined in the same manner as is being done of a person accused of a crime. It seems that the executive machinery has given due consideration to the opinion of the Supreme Court and has now come up with statutory rules to recognize the same. However the same is limited only in respect of offences against children committed under the Juvenile Justice Act. Government has notified Juvenile Justice Rules 2016 and Rule-54(18)(iv) provides as “For the age determination of the victim, in relation to offences against children under the Act, the same procedures mandated for the Board and the Committee under section 94 of the Act to be followed”.

3.3       Be that as it may, till the judgment in Jarnail Singh holds good, the age of victim has to be determined on the same line as of the person accused of an offence. It is Section-94 of JJ Act 2015 that provides for the manner in which the age is to be determined.

It reads as “Presumption and determination of age.-

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person”.

3.4.      The aforesaid provision clearly suggests that it is couched in a preferential term. Meaning thereby that if certificates issues by two authorities are available before the court and show two different date of birth, the court has to follow the first preference certificate and cannot look into the second preference certificate irrespective of contradictory age mentioned therein. One may not be able to digest this on plain logic but till the time the statute provides so, he will have no other option but to accept what is provided.

  1. Now, if we take a scenario where no certificate as mentioned in Section-94 is available, the residuary clause will come into picture saying “age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”.

4.1.      Age determination methodology related to medical examination is a very difficult contemplation. Science in this respect does not show exact result and the medical opinion can be given in a range of age and not with certainty. What if the medical opinion suggests the age between 17 – 19 or 17 – 18? There have been certain decisions while dealing with persons accused of an offence. However, we are talking about age of victim and there are two very recent judgments which deals with the victim age on medical opinion.

  1. Delhi High Court on 08.08.2018 has pronounced a judgment in Sweta Gulati vs State and has dealt specifically with the issue of medical opinion giving age between 17-19 in respect of a victim.

5.1.      High Court was facing a situation where certificate was not available. This can be seen from the observation “Since there was no document available, a Bone Ossification Test of the victim ‘K’ was conducted for her age determination. As per the Ossification Test Report, the age was estimated to be in range of 17 to 19 years, as on 05.12.2016”.

5.2.      High Court posed the issue as “The question that arises for consideration is as to whether, while determining the age of the victim, the benefit of doubt in age estimated by the bone ossification test is to go to the accused or the victim”.

5.3.      On medical opinion theory, it commented as “The settled principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. The Supreme Court, in several decisions, has taken judicial notice of the fact that the margin of error in age ascertained by radiological examination is two years on either side”.

5.4.      The other point raised by the High Court can be found in its observation “Now the question that arises for consideration is as to whether the lower of the age or the higher of the age is to be taken. If benefit of doubt has to go to the accused then one would have to take the higher limit and if benefit of doubt has to go in favour of the prosecutrix then the lower of the two limits would have to be taken”.

5.5.      The High Court in Sweta Gulati(supra) clearly held on tis point as “It is also settled position of law that benefit of doubt, other things being equal, at all stages goes in favour of the accused”.

5.6.      High Court commented on factual position as “The bone ossification test report has estimated the age as 17 to 19 years. So applying the margin of error principle, of two years on either side, the age could be between 15 to 21 years. In the present case even if the margin of error is not taken on the higher side, the upper limit of the age estimated by the ossification test is 19 years”.

5.7.      Ultimately, the High Court arrived at the finding as “Giving the benefit of doubt to the accused, the age of the victim has to be taken as 19 years of age”.

  1. Someone may say that since the upper age in medical opinion was 19 years, the High Court found the age of victim as 19 years. Scrutiny of the judgment however shows that the observation regarding upper age is an additional thought and this is clear from the observation “even if the margin of error is not taken on the higher side”. We therefore have to accept that after giving margin on either side, the upper age has to be considered as the benefit of doubt has to go in favour of an accused.
  2. Supreme Court also recently on 23.08.2018 has pronounced a judgment in Razak Mohammad vs State and has dealt specifically with the issue of medical opinion giving age between 17-18 in respect of a victim. This judgment has been rendered by a three judges bench. There is no other larger bench judgment on determination of victim's age and therefore this judgment has to be treated as a binding precedent and has to be followed.

7.1.      Supreme Court in Razak Mohammad (supra) posed the issued as “In view of the above, the focal point for decision would be the age of the prosecutrix in order to determine as to whether she was a major so as to give her consent”.

7.2.      On the point of medical opinion, it observed “On the other hand, we have on record the evidence of Dr. Neelam Gupta (P.W.8) a Radiologist working in the Civil Hospital, Nalagarh who had given an opinion that the age of the prosecutrix was between 17 to 18 years”.

7.3.      It also commented on the value of medical opinion as “While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix”. Interestingly, the Supreme Court has also indicated that sufficient margin on either way has to be allowed. This is precisely the opinion of the High Court in Sweta Gulati(supra).

7.4.      What is however more significant is the issue regarding utility of the age after giving sufficient margin on either side. On this point, the comment of Supreme Court regarding doubt created on account of medical opinion and as to who should be benefited assumes significance. It has held as “The benefit of the aforesaid doubt, naturally, must go in favour of the accused”. It is here that we can bring the High Court judgment in Sweta Gulati(supra) which clearly says that benefit of doubt in such case should go to the accused. It can be accepted that the three judges bench of Supreme Court has confirmed the opinion of High Court.

7.5.      Ultimately, the Supreme Court in Razak Mohammad(supra) held as “We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence”.

  1. Some fertile mind may however argue that the decision of Supreme Court in Razak Mohammad(supra) was rendered in the facts and circumstances of the case. We therefore need to look into the observation made by the Supreme Court on facts as “In this regard, we have considered the evidence and materials on record. The age of the prosecutrix has been sought to be proved by the prosecution by bringing on record the School Admission Form (Exhibit PW5/A) and the certificate (Exhibit PW5/B) issued by one Jasdeep Kaur (P.W.5), JBT Teacher of Government School Dungi Plate. P.W.5 in her deposition has stated that the writings in the School Admission Form (Exhibit PW5/A) are in her handwriting and the signature affixed is that of the mother of the prosecutrix. In cross-examination, P.W.5 had stated that the details mentioned in Exhibit PW5/A have been obtained from the School Leaving Certificate issued by the Government Primary School, Tambol. The certificate issued by the Government Primary School Tambol on the basis of which the details in the Admission form (Exhibit PW5/A) was filled up by P.W.5 has not been exhibited by the prosecution. Nothing hinges on the document exhibited by the prosecution as Exhibit PW5/B as that is the consequential certificate issued on the basis of the entries in Exhibit PW5/A. The mother of the prosecutrix who had allegedly signed Exhibit PW5/A has not been examined by the prosecution”.

8.1.      What is clear from the above is that it only indicates the absence of a proper certificate which can be counted to determine the age. We already know that only in the absence of proper certificates that a medical opinion can be called upon by the court to determine the age. As such, the observation of Supreme Court “While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused” can only mean that since there is no proper certificate, the age has to be determined on medical opinion giving sufficient margin on either side and since such age range leaves room for doubt, the doubt should go in favour of accused.

  1. In view of the above analysis, one may arrive at following result:
  • Age of victim has to be determined in the same manner as is being done in respect of a person who is accused of an offence;
  • Age has to be determined in terms of Section-94 of JJ Act;
  • The Court has first to look for the available certificates;
  • The Court has to rely on first preference certificate irrespective of availability of other certificate;
  • The Court cannot doubt the first preference certificate on the ground that other certificates are showing some different age;
  • Medical opinion can be sought for only if all priority certificates are found to be not available;
  • Medical opinion does not provide the exact age;
  • Sufficient margin (say two years) on either side has to be given in respect of medical opinion;
  • Range of age in medical opinion upon margin being given will leave room for doubts;
  • Benefit of doubt has to go in favour of the accused and therefore, the upper age of medical opinion has to be accepted by the court in respect of age of victim.
  1. In some other paper we will discuss the interplay of certificates mentioned in Section-94 and difference vis a vis earlier Rule-12 of 2007. Presently however we can say that the above is sufficient to deal with the concept of age determination of victim through medical opinion.

Picture Source :