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When Ossification Test can’t yield trustworthy results, it can’t be a basis to determine the age:SC

Ram Vijay Singh Versus State of Uttar Pradesh , SLP (Criminal) No. 2898 of 2020)

Decided on February 25, 2021

This case was decided by a bench of the Supreme Court, consisting of Hon'ble Justice RF Nariman, Hon'ble Justice Hemant Gupta and Hon'ble Justice BR Gavai.

An appeal was preferred against the order of the High Court of Allahabad, dismissing an appeal against conviction of Ram Singh, under Section 302, read with Section 34 of the IPC.

The appellant had filed an application for bail on the grounds of his being a juvenile on the date of the incident, that is, 20.07.1982. The High Court had accepted the report of the Radiologist, mentioning that the age of the appellant at the time was between 15 ½ to 17 ½.

The High court sought a report of the Medical Board consisting of five doctors, to determine the appellant’s age. The Board concluded that his age, as on 08.09.2020 was 40-55 years. The High Court submitted that the appellant was a juvenile on the date of the incident. It relied upon the case of Mukarrab and Others V. State of UP, and concluded that the accused, Ram Vijai Singh, was below 17 years.

In the Gun license issued to the appellant on 24.07.1982, the date of birth mentioned by the appellant was 30.12.1961.

To confirm the validity of the plea of juvenility, the Court referred to Abuzar Hossain V. State of West Bengal, wherein it was held that the claim of juvenility can be raised at any stage of the case.

This case is based on the Juvenile Justice (Care and Protection of Children) Act, 2000 and its amended Act of 2015. The procedure for determination of age is under Section 94 and the process of inquiry and evidence of age is provided under Section 9(2).

Rule 12(3)(b) of the Juvenile Justice Rules, analogous with Section 94 of the current Act, provides that in case the exact assessment of the age cannot be done, the Court consider his age on the lower side, within the margin of one year. It is to be noted that Section 94 does not contain this provision. According to the Section, since there is no documentation to determine the age, ossification or other latest medical test must be conducted.

The learned senior counsel, Mr. Gopal Sankaranarayanan, for the appellant, reinforced the decision of the High Court, where the age was determined to be 15 ½ to 17 ½ years in 1982, after medical testing. He argued that the law provides for using ossification test as the basis of determining juvenility, hence, it cannot be ignored.

Mr. Goel, on the contrary, argued that procedure as provided under Rule 12(3)(b) of the Rules is not materially different from that contained in the Statute. In fact, the discretion given to the Court to lower the age by one year in the Rules has been omitted. He further relied upon a judgment of this Court in Mukarrab wherein it has been held that the Courts have observed that the evidence afforded by radiological examination is a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and 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 the ossification test cannot be regarded as conclusive when the appellants have crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision [Para 12].

Other cases, namely, State of MP V. Anoop Singh and Babloo Pasi V. State of Jharkhand, were relied on to conclude that ossification test cannot be regarded as conclusive in ascertaining the age of a person. Having crossed the age of 30, it becomes even more difficult.

We find that the procedure prescribed in Rule 12 is not materially different than the provisions of Section 94 of the Act to determine the age of the person. There are minor variations as the Rule 12(3) (a)(i) and (ii) have been clubbed together with slight change in the language. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules. The importance of ossification test has not undergone change with the enactment of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was under Rule 12 of the Rules [Para 14].

The Court relied on its judgment in Arjun Panditrao Khotkar V. Kailash Kushanrao Gorantyal, wherein the maxim, “Law does not demand the impossible,” was used. Thus, when the ossification test cannot yield trustworthy results, such test cannot be made a basis to determine the age of the person. In this manner, it dismissed the reliability of the Medical Report.

Coming on to the Arms License given to the appellant, and the date of birth mentioned in it (30.12.1961), the appellant was calculated to be 21 years of age in 1982. Thus, the Court held that he cannot be treated as a juvenile.

After addressing the issue of juvenility, the Court addressed the merits of the case, the argument raised by the appellant’s counsel was that an important witness, Girendra Singh, was not examined by the prosecution. Discrepancies in the testimony of PW-1, Ram Naresh Singh, were also pointed out, suggesting that he was an unreliable witness.

The Court dismissed these arguments based the reluctance of Indian Courts to apply the maxim “Falsus in uno, falsus in omnibus.” This was held by this Court in Ilangovan V. State of TN.

Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony of the said witness cannot be disregarded qua the present appellant. Still further, it is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence. It is the quality of evidence which is relevant in criminal trial and not the quantity. Therefore, non-examination of Girendra Singh cannot be said to be of any consequence [Para 19].

Lastly, it the post-mortem report showed that the deceased was injured by a blunt and a sharp-edged weapon. The appellant was armed with a Lathi (blunt weapon), as testified by the eyewitness, and the other convicted accused, Shiv Vijay Singh, was armed with an axe (sharp-edged weapon).

The Court addressed a few issues in this case, regarding the question of juvenility and the reliability of the ossification test. When it becomes difficult to determine the age through medical exam, other evidence must also be looked at to conclusively determine juvenility.

With this, the Court stated,

Hence, the Apex Court dismissed the appeal.

- Navyaa Shukla, IndicLegal



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