The juvenile status of criminals has been much in the news for some time. One of the accused in the 2012 Nirbhaya gang rape was a few months younger than 18 years at the time of the crime and so was sent to a ‘special home’ for three years for receiving reformative services under the Juvenile Justice (Care and Protection of Children) Act, 2000. The other four received capital punishment and were hanged last week. People were furious owing to this huge difference and demanded harsher punishment for the minor, who was proved capable enough to understand the consequences of committing such a heinous crime. After the public rage, the JJ Act was re-enacted in 2015 and now a delinquent juvenile who is 16-18 years old may be treated as an adult if he commits a heinous offence.
The procedure of determining the age of a juvenile delinquent, which was laid down clearly earlier in Rule 12 under the Act of 2000, has been almost rewritten in Section 94 of the new JJ Act. But the recently enacted Protection of Children from Sexual Offences Act, 2012, does not talk about any procedure of determining the age of a minor victim. So many of the POCSO cases end in acquittal due to the prosecution’s inability to prove the juvenile status of victims. So the dichotomy of proving juvenility of a victim and a delinquent remains glaring.
While rejecting the claim of juvenility of 19-year-old Pawan Kumar Gupta, one of the accused in the Nirbhaya case, the Supreme Court, relying on the ratio of Ashwani Kumar Sexana vs State of MP (2012), held that the procedure to be followed in conducting an inquiry for determining the age of a juvenile delinquent is limited in scope as laid down in Rule 12 of the JJ Act itself. If the court passes an order following the laid-down procedure, the order shall be conclusive proof of the age and no further inquiry shall be conducted by the court or the board. The SC also clarified that even though the above certificates may sometimes not contain the correct date of birth, the court is not expected to conduct a roving enquiry. Only in cases where the documents or certificates are found to be fabricated or manipulated does the court need to go for a medical report for age determination.
But the juvenile victims of crime don’t easily get relief as the burden of proving the victim’s correct age beyond reasonable doubt is always on the prosecution. Though a register maintained by hospitals containing date of birth or a date of birth certificate issued by a local body or school certificate are admissible documents under the Evidence Act, the truthfulness of contents, i.e., the exact date of birth, needs to be established by the prosecution. The SC in Birad Mal Singhvi vs Anand Purohit (1998) held that “the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded”. Thus, an entry in the school register is not conclusive evidence but has to be corroborated by oral evidence of a parent on the basis of whom the entry was recorded.
It has been observed that the parents of the prosecutrix often get swayed by the suggestions given by defence counsels that the recorded age was not exact and based on a guess. The defence counsel always attempts to import suspicion in the recorded date of birth to claim the girl is not a minor. In case the prosecutrix is illiterate, the age has to be determined by an ossification (medical) test, which does not provide the exact age, but a range. The extent of ossification and union of epiphysis in bones are helpful in determining age until ossification is completed. Owing to the variation in climatic, dietetic, hereditary and other factors affecting people in different states, it is difficult to formulate a uniform standard to determine age. So a margin of six months may be added on either side of the age range.
But it has been observed that a margin of two years is added erroneously on the suggestion of the defence counsel. The SC in Chhotey Lal vs State of UP (2011) held that “there is no such rule much less an absolute one that two years have to be added to the age determined by a doctor” and “a maximum of six months could be added on both sides as a margin of error”. Though the SC has reiterated this in many judgments, the lower courts still side with the suggestions given by defence counsels to add two years to the higher side of the range as margin of error to claim a woman is older than the age of consent and give an extended benefit to the accused.
The SC in Jarnail Singh vs State of Haryana (2013) held that though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, this statutory provision should be the basis for determining age even for a child who is a victim of crime. The SC said there is hardly any difference in so far as the issue of age is concerned, between a child in conflict with law and a child who is a victim of crime. But it is not followed as a law.
So it is strongly recommended to make the provision of determining age of a juvenile delinquent applicable to a child victim as well through a suitable amendment. The one-year margin of error (as laid down in Rule 12) or six months as suggested by Jaising P Modi in case of medical test can also be brought back as it eliminates ambiguity at all levels. These changes alone will be sufficient to put a juvenile victim and a juvenile delinquent on the same pedestal as far as determination of age is concerned. Neither courts nor investigating agencies would need to conduct a fishing inquiry or investigation to collect evidence for determining the age of either.