The Determination of the Victim’s Age in Rape Cases through the Bone Ossification Test: Legal Analysis

What is the bone ossification test?

The bone ossification test (hereinafter “ossification test”) is a test that determines age based on the “degree of fusion of bone” by taking the x-ray of a few bones.[1] In simple words, the ossification test or osteogenesis is the process of the bone formation[2] based on the fusion of joints between birth and the age of twenty five years in an individual.[3] Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age.[4] The most common method used for calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence.[5] However, it must be noted that the ossification test varies slightly based on individual characteristics[6], therefore the ossification test though is relevant however it cannot be called solely conclusive.[7]

Need and relevance in India

The Juvenile Justice Act (hereinafter “JJ Act”) under Section 94(2)(iii), Section 68(1) read with Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides the legislative sanction for conduct of ossification test or other medical age determination test available in the absence of other documentary proof of age i.e. matriculation certificate or birth certificate, which has to be given within 15 days from the date of such order. The test is to be conducted by the Child Welfare Committee (CWC).[8] The provision mentioned herein is the basis for determining the age of a child under the JJ Act which even includes a child who is a victim of crime in addition to a child in conflict with the law.[9]

The need for a medical test such as the ossification test in order to determine the age of the victim in cases of rape arise primarily as the consent of a minor does not hold any statutory or judicial value under the Indian law.[10] Therefore, institutions where there are no other documentary evidence’s available that establish the age of the victim it is pertinent that the ossification test be carried out in the interest of justice and owing to the fact that in such cases there is a reversal of the burden of proof. The problem of no age proof documents is widespread in India especially in the rural areas. Secondly, the ossification test gains relevance in situations wherein the prosecution or the victim may attempt to falsify the age in order to attain a conviction and/or make their case stronger by removing the legal issue pertaining to consent, therefore this may lead to an abuse of the legal process. Further, by virtue of age falsification or lack of proof pertaining to age will go against the tenets of a fair trial to which the accused is entitled to and would result in attracting stringent sections under the POCSO Act. An example of forged and fabricated documentation pertaining to age can be seen in Ram Suresh Singh v. Prabhat Singh[11], wherein the documentary proof of age given by the respondent was found to be false and fabricated, the Court herein held that in such a situation it had no other option but to rely on the ossification test.

Legal analysis

A. Advisory not binding

The evidentiary value given to an ossification test is the same as has been given to the opinion of experts under Section 45 of the Evidence Act, 1872. In Ramdeo Chauhan v. State of Assam[12], it was held by the Supreme Court that:

“The statement of the doctor is no more than an opinion, the court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question … In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform.”

In Vishnu v. State of Maharashtra[13] the Court clarified further that the ossification test by the medical officer is to assist the court which falls under the ambit of medical expert opinion i.e., advisory in nature and not binding. However, such an opinion cannot overrule ocular or documentary evidence, which has been proved to be true and admissible as they constitute “statement of facts”. The Court in Vishnu placed reliance on Madan Gopal Kakkad v. Naval Dubey[14] to hold that a medical witness is not a witness of fact therefore the opinion rendered by such a medical expert is merely advisory until accepted by the Court however once accepted they become the opinion of the Court.[15]

B. Margin of error principle

The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above individual characteristics such as growth rate of bones and skeletal structures can affect the accuracy of this method.[16] The courts in India have also observed in Ram Suresh Singh v. Prabhat Singh and Jyoti Prakash Rai v. State of Bihar that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test[17] irrespective of whether the ossification test of multiple joints are conducted.[18] The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination.[19] It is trite law that the standard of proof for age determination is the degree of probability and not proof beyond reasonable doubt.[20]

C. Benefit to the accused

The position of law with regard to who gets the benefit of this two-year margin of error as recognised by the courts in India is settled by Shweta Gulati v. State (Govt. of NCT of Delhi)[21] wherein the Delhi High Court dealt with bone ossification test report that had estimated age of the victim as 17 to 19 years. The Court determined that in such a case applying the margin of error principle, of two years on either side could put the age anywhere between 15 to 21 years. The Court concluded that even if the age is not taken on the higher side in such cases the age of the victim would be 19 years by application of the margin of error principle.

The Court held in unequivocal terms that:

“Giving the benefit of doubt to the accused, the age of the victim has to be taken as 19 years of age …. It is also settled position of law that benefit of doubt, other things being equal, at all stages goes in favour of the accused.”

Therefore, it is now settled law that by virtue of the benefit of doubt going to the accused the age of the victim as established by the ossification test is to be considered on the higher side. The same view has been affirmed by the Supreme Court in Rajak Mohammad v. State of H.P.[22]

It is also pertinent to note that in cases of determining juvenility of the accused, the margin of error is taken at the lower side i.e. “in favour of holding the accused to be a juvenile in borderline cases.”[23] It is therefore clear that the ossification test is used as per the intention of the particular legislation and the spirit of law.

D. Prosecutorial burden

The proof of age irrespective of whether it is vide documentary proof or in absence of such documents via an ossification test lies upon the prosecution to establish.[24] In the absence of such a proof the defence can at any time ask the prosecution to produce proof of age.[25]

Critique and conclusion

In a country such as India documentary proof of age may not always be present with the victim owing to a multitude of reasons, therefore conducting a medical test to determine age becomes essential in order to administer justice. The bone ossification test is however not completely reliable and does not hold good after the victim crosses a certain age as has been mentioned above.

In light of the same it is essential that firstly, the bone ossification test of the victim is conducted as soon as the prosecution realises that the victim’s age is a matter of contention for the adjudication of the case and further that documentary proof pertaining to the victim’s age is either not present or not reliable in accordance with the Evidence Act. The role of the defence where the prosecution fails to present age proof is to ask for the conduct of bone ossification test or any other medical test to determine age at the earliest instance. Secondly, the bone ossification test must be coupled with other medical tests to determine age such as dental age, sexual maturity, x-rays of other body parts which will in turn assist the court better in determining the age of the victim through corroboration of these various techniques.

† Advocate, Delhi-NCR

[1] Urmi Chudgar, Bahuli Sharma & Bharti Ali, Handbook for Public Prosecutors: Issues under the Pocso Act: A Compilation of Legal Cases and Facts (HAQCRC, Dec 2019) <https://www.haqcrc.org/wp-content/uploads/2019/12/handbook-for-pps-on-csa-1.pdf> accessed on 20-5-2021.

[2] Bone ossification test (Aspirant World, 19-12-2019) <https://aspirantworld.in/bone-ossification-test/> accessed on 20-5-2021.

[3] Grant Breeland, Margaret A. Sinkler, et al., Embryology, Bone Ossification (NCBI, 8-5-2021) <https://www.ncbi.nlm.nih.gov/books/NBK539718/> accessed on 20-5-2021.

[4] Arsalan Manzoor Mughal, Nuzhat Hassan & Anwar Ahmed, Bone Age Assessment Methods: A Critical Review (2014) 30(1) Pak J. Med. Sc.

<http://pjms.com.pk/index.php/pjms/article/view/4295/2158> accessed on 20-5-2021.

[5] Ibid.

[6] Grant Breeland, Margaret A. Sinkler, et al., Embryology, Bone Ossification (NCBI, 8-5-2021) <https://www.ncbi.nlm.nih.gov/books/NBK539718/> accessed on 20-5-2021.

[7] Rakesh Kumar, Medical Examination of Victim of Rape: Section 164-A of the Code of Criminal Procedure, 1973 (2014) 3(3) GRA <https://www.worldwidejournals.com/global-journal-for-research-analysis-GJRA/recent_issues_pdf/2014/March/medical-examination-of-victim-of-rape-section-164andamp-ndash-a-of-the-code-of-criminal-procedure-1973_March_2014_1598852149_19.pdf> accessed on 21-5-2021.

[8] Shubhankar Tiwari, Revisiting the Ossification Test under the Juvenile Justice Act, (Law School Policy Review, 10-5-2020)

<https://lawschoolpolicyreview.com/2020/05/10/revisiting-the-ossification-test-under-the-juvenile-justice act/#:~:text=According%20to%20Section%2094(2,juvenile%20holds%20good%20or%20not.> accessed on 21-5-2020.

[9] Jarnail Singh v. State of Haryana, (2013) 7 SCC 263.

[10] S. 376, Penal Code, 1860, (45 of 1860).

[11] (2009) 6 SCC 681.

[12] (2001) 5 SCC 714; see also Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133.

[13] (2006) 1 SCC 283.

[14] (1992) 3 SCC 204.

[15] Parhlad v. State of Haryana, (2015) 8 SCC 688.

[16] Shubhankar Tiwari, Revisiting the Ossification Test under the Juvenile Justice Act (Law School Policy Review 10-5-2020)

[17] (2009) 6 SCC 681; see also (2008) 15 SCC 223.