In November 2022, over four years after the gang rape and murder of an eight-year-old girl in Kathua, the Supreme Court held that one of the accused persons, who claimed to be a juvenile at the time of the commission of the offence, be tried as an adult.
Contradictory documents
The claimed date of birth, which showed the accused to be approximately 15 years and two months old at the time of the commission of the offence, was published in the certificate issued by the local municipal committee. This came under the scanner as no such birth had taken place on that date in the hospital, as reported by the claimant’s father. Moreover, the secondary school register showed a date of birth which was at variance with the claimed date and by eight months. Therefore, despite provisions of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014 stating that age could be determined based on school and municipality documents, the court held that these contradictory documents in this case did not inspire confidence regarding the minority status of the delinquent.
The court relied upon the medical opinion of a team of five doctors on the basis of physical, dental and radiological examination that the approximate age of the respondent was over 19 years. The court also stated that better techniques such as the ‘wisdom teeth’ technique and the ‘epigenetic clock’ technique, which measures DNA methylation levels and has a low margin of error, be introduced in India. Though the medical expert’s estimate of age is only an opinion and not a statutory substitute for proof, it assumes importance because the date of birth is not recorded truthfully by all.
The most popular test for determining age is the ossification test. The extent of ossification (i.e., calcification) and the union of epiphysis in bones, particularly long bones such as radius and ulna, humerus, tibia and fibula, and femur, are helpful in estimating age. Though the variations in climatic, dietetic, hereditary and other factors affect the extent of ossification in different regions, a fairly close estimate within a margin of two years (for example, 16-18 years), allowing a margin of error of six months on either side (15.5 years or 18.5 years) may be made from puberty to the consolidation of the skeleton.
These estimates, as per Medical Jurisprudence and Toxicology for India by J.P. Modi, are based on research studies published in various medical journals between the 1920s and 1960s. No new study seems to have been conducted since then. While a wide range such as 19-23 years is not mentioned in the book, the estimated age in the case under consideration is given as 19-23 years without mentioning the extent of ossification. If 21 years is taken as an average age, the respondent becomes older to his own elder sibling mentioned in the judgment.
The Supreme Court’s ruling referred to the technique of wisdom teeth (also known as third molars). This technique was already used to estimate age in the Kathua case. Though none of the four third molars were found to have erupted, an orthopantomogram (panoramic radiograph) examination showed root formation of the upper two molars and near-complete root formation of the lower molars. The average period of eruption of ‘third molars’, mentioned in Wheeler’s Dental Anatomy, Physiology, and Occlusion, is between the 17th and 21st year of age; and root formation is between the 18th and 25th year. In some rare cases, the third molars may not appear until advanced adult age; and in some cases, these may appear as early as 15 years. Though the cause of non-eruption of third molars (such as insufficient space) was not mentioned, the estimated dental age of the respondent was given as over 19 years, without providing reason or the basis for the decision. It is therefore desirable that the dentist and/or radiologist explain every aspect of how tooth eruption impacts age so that these can be scrutinised by the courts. No such scrutiny was done by any of the courts.
It is quite unlikely that a toddler of about 1.5 years at the time of registration of birth was actually over 5.5 years. However, the respondent of approximately 15 years was proved to be over 19 years. No questions, whatsoever, were asked about the methodology of medical tests done and their accuracy. Whether the respondent was mature enough to commit the heinous offence or not is besides the point.
Another recommended technique is the ‘epigenetic clock’ technique which measures DNA methylation levels to estimate the chronological age of the subject. It is a biological process through which methyl groups are added to DNA molecules. This primarily occurs on cytosine that precedes a guanine nucleotide (CpG sites). However, the use of this technique is yet to be explored by Indian forensic scientists.
Register births truthfully
In an analysis of 100 cases of rape (2012-14) of minor girls decided by the trial courts of Raipur, this author found that the prosecutrix could be proved as a minor only in less than one-third of the cases. Though school certificates were produced in more than three-fourth of the cases, the court admitted minority only in about one-fourth of the cases. In most cases, parents could not substantiate their statement with the hospital or any other record. Based on the ossification test, minority could be proved only in one out of seven cases. Minority became difficult to prove with increase in age. However, about 50% of the birth certificates issued under the provisions of law were admitted as credible pieces of evidence.
According to the United Nations Children’s Fund report (2016), only 72% of births of children below five years were registered in India. And out of 26 million children born every year, around 10 million went unregistered. A dedicated target under Goal 16 of the Sustainable Development Goals is to provide legal identity for all, including birth registration, by 2030. According to the National Family Health Survey (NFHS), the share of India’s institutional deliveries has increased to 88.6% in 2019-21 (NFHS-5) from 40.8% in 2005-06 (NFHS-3). It is surprising that even with the increase in institutional deliveries, proving age remains a contested issue in criminal trials.
Non-registration of birth by the ‘head of the house’ or hospital is punishable with a fine of up to ₹50 under the Registration of Births and Deaths Act, 1969. The draft amendment to this Act inter alia proposes to increase the fine up to ₹250 and ₹1,000 for an individual and institution, respectively. The objective is to obviously to persuade people to register births and deaths, and not severely punish those who do not do so.
Though the introduction of better medical techniques to estimate age is welcome, it would be better if every birth is registered on the basis of hospital or any other proof so that its credibility is maintained in the court of law. Ultimately, a statement of fact (about the date of birth) has more evidentiary value than the estimated age based on medical opinion, which may falter at times.
Published - January 10, 2023 12:15 am IST
