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

Home

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.

Read the full article on SCC Online.

Recent Posts

Get in Touch

Cookie Consent with Real Cookie Banner