Determination of Age

Source: Delhi High Court 

Why in News? 

A bench of Justice Suresh Kumar Kait and Justice Manoj Jain observed that “In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on "bone age ossification report", the upper age given in "reference range‟ be considered as age of the victim”.  

• The Delhi High Court made this observation in the case of Court on Its Own Motion v. State of NCT of Delhi.  

What is the Background of Court on Its Own Motion v. State of NCT of Delhi Case? 

• This is a reference made by an Additional Sessions Judge seeking clarification on how to determine the age of victims in Protection of Children from Sexual Offences, 2015 (POCSO) cases when using bone ossification tests. 
  • The specific case that led to this reference involved an accused facing trial for offenses under Indian Penal Code, 1860 (IPC) Section 376/506 and Section 4 of POCSO Act. 
• There was no school record or birth certificate to determine the victim's age, so a bone ossification test was conducted. 
• The ossification test report estimated the victim's age to be between 16-18 years. 
• The defense argued that either:  
  • A further 2-year margin of error should be applied, making the age range 14-20 years, or 
  • At minimum, the upper age of 18 should be used, making POCSO Act inapplicable. 
• The trial court referred the matter to the Delhi High Court for clarification. 

What were the Court’s Observations?  

• The High Court held that when determining a victim's age in POCSO cases based on bone ossification tests, courts should consider the upper age of the estimated range as the victim's age. 
  • A further margin of error of 2 years should be applied to that upper age. 
• The court's reasoning included: 
  • The adversarial legal system presumes innocence and requires proof beyond reasonable doubt. Any doubt should benefit the accused. 
  • Previous judgments, including those by the Supreme Court, have held that ossification tests are not precise and a 2 year margin of error should be allowed. 
  • While this approach was originally used for juvenile offenders, the same principle should apply for determining victim ages. 
  • This interpretation aligns with established legal principles of giving the accused benefit of doubt at all stages. 
• The High Court directed the trial court to decide the case in accordance with this ruling. 

What is the Procedure of Determination of Age? 

POCSO Act: 

• Provisions 
  • Section 2(d): Defines a child as any person below 18 years of age. 
  • Section 34: Outlines the procedure for age determination by the Special Court: 
    • The court must satisfy itself about the person's age 
    • The court must record its reasons for the age determination in writing 
    • Orders made by the Special Court are not invalidated by subsequent proof of incorrect age determination 
• Landmark Judgment 
  • State v. Varun (2013): Courts should lean towards juvenility of the victim in case of doubt. 
  • Shah Nawaz v. State of Uttar Pradesh (2011): Medical opinion should be sought only when documentary evidence is unavailable. 

Juvenile Justice Act, 2015: 

• Section 94: Prescribes the procedure for age determination: 
  • Committee/Board may determine age based on appearance if obviously a child 
  • If doubt exists, seek evidence in the following order:  
    • School certificate or matriculation certificate  
    • Birth certificate from corporation, municipal authority, or panchayat 
    • Ossification test or latest medical age determination test (only if i and ii are unavailable) 
• Landmark Judgments: 
  • Jarnail Singh v. State of Haryana (2013): Held that the procedure in JJ Act should also apply to determining the age of child victims. 
  • State of MP v. Anoop Singh (2015): Confirmed that Rule 12(3) of JJ Rules 2007 applies to determining the age of rape victims. 

What is the Bone Ossification Test? 

• Bone ossification, or osteogenesis, is the process of bone formation. Bone age is calculated through ossification tests, which are guesswork based on the fusion of joints in the human body between birth and twenty – five years of age, although this varies slightly based on the individual. 
• Bone ossification test is conducted in order to find the age of the accused or victim on the date of the incident in a particular case. This test becomes pertinent in cases involving juveniles as special provisions have been created with respect to the children who are in conflict with law as well children who need protection and care [Juvenile Justice Act (Care and Protection of Children), 2015 ‘the JJ Act 2015’]. 
• Vinod Katara v. State of UP (2022) - The bone ossification test is not an exact science that can provide us with the exact age of the person.