Bone ossification or osteogenesis signifies the process of bone formation which serves as a tool for age determination based on the degree of bone fusion. It analyses our skeletal and biological progression with the help of X-ray images of our hands and wrist. But it must be kept in mind that medical opinion based on bone ossification test is not entirely accurate.[i]

Significance of Ossification Test

The Indian criminal justice system delineates distinct procedures, correctional methodologies, and punitive measures for an adult and a child, reflecting a tailored approach to addressing the legal and rehabilitative needs of each. A child means any person below the age of eighteen years.[ii] If that child is above the age of sixteen and has been apprehended for committing a heinous offense, the Juvenile Justice Board, after conducting a preliminary assessment, may determine that the individual should be tried as an adult under the appropriate legal framework.[iii]

Such kind of a trial snatches away their Right to Fresh Start according to which their criminal records would be destroyed post-rehabilitation.[iv] This underscores the need to establish an objective and precise age estimation mechanism.

Similarly, the age determination of victim is crucial to establish the criminal liability of the accused under POCSO[v] cases. Challenges such as lack of birth registration, different dates of birth in different documents, improper maintenance of school records etc... makes the process of age determination more complex. In such cases the trial court rejects the documents on grounds of discrepancy regarding the date of birth in various documents and orders for the medical examination of the victim for age determination.[vi]

Procedure for Age Determination

Section 94(2) of Juvenile Justice (Care and Protection of Children) Act, 2015 (herein after JJ Act) read with Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, provides the following hierarchy for age estimation of a child.

1. The date of birth certificate from school, or the matriculation or equivalent certificate from the concerned examination Board, if it is not available
2. The birth certificate given by a corporation or a municipal authority or a panchayat
3. Only in the absence of the above two, age shall be determined by an ossification test or any other latest medical age determination test.

The term 'any other medical test' can include dental examination and opinion of the medical board based on the examination of physical features i.e. status of pubic hair, growth of sexual organs like breast, chest hair, beard etc. [vii]

Can Ossification Test be done in POCSO Cases?

Section 34(2) of Protection of Children from Sexual Offences, 2012 (hereinafter POCSO Act) only states that the Special Courts have to satisfy itself about the age of the child. It doesn't state the basis and procedure for such age estimation. Further Section 94 of JJ Act doesn't include the term 'courts' as it only refers to 'Committee' and 'Board'.

However, this lapse was filled by the Supreme Court in Jarnil Singh vs. State of Haryana,[viii] where the court was of the opinion that there is hardly any difference between a child in conflict with law and a child who is the victim of a crime as such the provisions of JJ Act should be applicable to determine the age of child victims. Hence ossification test can also be followed in POCSO cases.

Legal analysis of Ossification Test by Courts:

1. Margin of Error Principle: In Ram Suresh Singh v. Prabhat Singh [ix] and Jyoti Prakash Rai v. State of Bihar [x] the Supreme Court observed that the age determined by ossification tests is not precise, thus a two-year margin of error should be applied. For example, if the age is found to be 17-19 years, then by applying the margin of error principle the age will be 15-21 years. Recently the Delhi High Court has answered that the margin of two-year principle is applicable even in cases under POCSO Act where age determination is done through ossification test. [xi]
    
2. Upper Age Limit and Benefit of Doubt: The question as to whether the upper age or the lower age limit has to be taken was addressed in Shweta Gulati v. State (Govt. of NCT of Delhi) [xii] that if the benefit of doubt has to go to the accused, then one would have to take the higher limit and if the benefit of doubt has to go in favour of the prosecutrix then the lower of the two limits would have to be taken. It is also a settled position of law that the benefit of doubt, other things being equal, at all stages goes in favour of the accused. In sexual assault cases, wherever the court is called upon to determine the age of the victim based on bone age ossification report, the upper age given in the "reference range" should be considered as the age of the victim. [xiii] But giving the benefit of doubt to the accused casts doubts on the deprivation of the victim's rights under the JJ Act and POCSO Act.
    
3. Evidentiary Value of Ossification Test: In Vishnu v. State of Maharashtra [xiv], 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. Hence, the evidentiary value of the ossification test is the same as that of expert opinion under Section 39 of the Bhartiya Sakshya Adhiniyum, 2023.

Problems with Ossification Test

The reliability of ossification test is questioned on scientific basis. Ethnic based differences pose a threat to the accuracy of skeletal development of a person. The age of acquiring skeletal maturity by a person differs significantly. Often bone deficiency diseases might deaccelerate the degree of bone fusion. A definite yardstick for age determination cannot be proposed due to variations in genetic, hereditary, dietic or climatic factors to which a person is exposed to. In Vinod Katara vs. State of Uttar Pradesh,[xv] the court held that bone ossification test is not an exact science that can provide us with the exact age of a person.

Other Techniques for Age Determination

The fact that dental growth deviation is much lessor than skeletal growth deviation paves way for development and research in the field of forensic dentistry. The Demirjian Method which primarily assess the growth of our wisdom tooth aligns can be the next defining test. Notably, this method is specifically tailored to assess individuals between the ages of 15 and 19, aligning well with the requirements of JJ Act. New developments in forensic dentistry or any such medical age determination test have to be welcomed to improve the accuracy of age estimation and for avoiding mistrials.

End-Notes:

• Pavan Kumar vs. State of Uttar Pradesh 2024 (126) ACC 613 (SC)
• Section 2(d), Protection of Children from Sexual Offences, 2012 (Act No. 32 of 2012)
• Section 15, Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No. 2 of 2016)
• Revisiting the ossification test under the Juvenile Justice Act, Law School Policy Review & Kautilya Society. Available at: lawschoolpolicyreview.com/2020/05/10/revisiting-the-ossification-test-under-the-juvenile-justice-act/ (Accessed: 17 October 2024).
• Protection of Children from Sexual Offences, 2012 (Act No. 32 of 2012)
• 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). Available at: haqcrc.org/wp-content/uploads/2019/12/handbook-for-pps-on-csa-1.pdf (Accessed: 17 October 2024)
• Chapter 8 – ‘Age Determination’ by Anant Kumar Asthana - “Workshop for Magistrates on Juvenile Justice (Care and Protection of Children) Act, 2015” 21st to 23rd September, 2018 at National Judicial Academy, Bhopal, prepared by Yogesh Pratap Singh, Research Fellow, National Judicial Academy
• (2013) 7 SCC 263
• (2009) 6 SCC 681
• (2008) 15 SCC 223
• Court on its own motion v. State NCT of Delhi, 2024 SCC OnLine Del 4484
• (2018) SCC OnLine Del 10448
• Supra xi
• (2006) 1 SCC 283
• Vinod Katara vs. State of Uttar Pradesh, 2022 LiveLaw SC 757