Ossification test is not conclusive for ascertaining age to decide if juvenile,...

Ossification test is not conclusive for ascertaining age to decide if juvenile, says SC [read order]

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Ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person, and a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. This was held by the Supreme Court on 30 November 2016, relying upon similar earlier judgments of the court. The judgment was delivered by Justices A.K. Sikri and R. Banumathi in the case of Mukarrab Etc. v. State of U.P. [Criminal Appeal Nos. 1119-1120 OF 2016 (arising out of SLP (Crl.) Nos. 6754-55 of 2014)].

In this case, totally six accused including the appellants herein were convicted under Section 302 IPC read with Section 149 and Section 148 IPC for murder of a person that took place on 22.03.1994, and sentence of imprisonment for life under Section 302 IPC and rigorous imprisonment for two years under Section 148 IPC was awarded to them. While SLPs filed by other 4 accused persons was dismissed at the notice stage itself, notice was issued in the SLPs of the appellants Mukarrab and Arshad, since they had raised the claim (though for the very first time before the Supreme Court) of juvenility as on the date of incident.

Supreme Court held that age determination is essential to find out whether or not the person claiming to be a child is below the cut-off age prescribed for application of the Juvenile Justice Act. The issue of age determination is of utmost importance as very few children subjected to the provisions of the Juvenile Justice Act have a birth certificate. As juvenile in conflict with law usually do not have any documentary evidence, age determination, cannot be easily ascertained, specially in borderline cases. Medical examination leaves a margin of about two years on either side even if ossification test of multiple joints is conducted.

In the present case, the appellants by filing applications under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Rule 12 of the Juvenile Justice Rules, 2007 had claimed that at the time of committing the offences they were juvenile i.e. below the age of 18 years. Appellant-Mukarrab had claimed that he was born on 01.07.1978 and thus, on the date of the incident i.e. 22.03.1994, he was a child aged 15 years 8 months 22 days. Likewise, appellant-Arshad had claimed that he was born on 05.02.1979 and thus on the date of the incident i.e. 22.03.1994, he was a child aged 15 years 1 month 17 days. Appellants did not raise the plea of juvenility before any of the previous fora; it is only before the Supreme Court that they had raised the plea of juvenility.

The Supreme Court referred to Rule 12 of the Juvenile Justice Rules, 2007, which is reproduced as under:

12. Procedure to be followed in determination of Age: ― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining –

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

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

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year,

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

After getting an enquiry conducted through the trial court about the age of the appellants, the Supreme Court referred the age determination matter to a medical board of AIIMS. The medical board gave the opinion that both accused have been brought for examination at AIIMS on 02.05.2016, 22 years after the alleged date of incidence. After going through the various findings of physical, dental and radiological examinations; medical board was of considered opinion that the age of accused was between 35-40 years on the date of examination i.e. 02.05.2016.

The Supreme Court raised the question whether the opinion of the Medical Board of AIIMS determining the age of the appellants between 35-40 years, could be accepted or not.

The court held that it is well-accepted fact that age determination using ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years, which is true in the present case. The Supreme Court referred to the decision in the case of Babloo Pasi v. State of Jharkhand and Anr. (2008) 13 SCC 133, where it had been held as under:-

“It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.”

The court also referred to the decision in the case of State of Madhya Pradesh v. Anoop Singh (2015) 7 SCC 773.

The court held that having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination.

It was held that courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.

It was further held that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.

The court also referred to the contention of the State that the appellant-Mukarrab is involved in 24 cases of various offences allegedly committed between 1988 and 1995. He is alleged to have committed murder and robbery in the year 1988. Likewise, appellant-Arshad is also allegedly involved in commission of serious offences from 1993 to 2003. Many of these cases were still pending. The court said that if it accepted that the appellants had been born in 1979, then in the years 1988, 1989, 1990, the appellant-Mukarrab would have been only in the age of 9, 10, 11 years respectively. In the year 1993, (first case in which appellant-Arshad involved) the appellant-Arshad would have been only 14 years of age. Had it been so, when the appellants were produced in those cases the appellants would have been considered as ‘children’ by the very appearance. They would have been dealt with accordingly by the concerned juvenile court and the matters would not have been kept pending till this date. This was considered as another reason that the opinion of the Medical Board determining the age of the appellants as 35-40 years in May, 2016 could not be relied upon.

In the facts and circumstances of the case, the Supreme Court held that the opinion of the medical board in determining the age of the appellants cannot be relied upon so as to give benefit under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. In the absence of other cogent evidence, the plea of juvenility of the appellants was rejected. Hence, the appeals of these appellants were dismissed.

Read full order of the court:

 

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