Age Determination of Rape Victim

Age Determination of Rape Victim

Offences related to sexual violence and sexual assault are very heinous, and if the victim is a minor, then her consent is statutorily and judicially of no value altogether. In such cases, in contrast to the common practice, the onus of proof is on the accused rather than the victim. Furthermore, the age of the victim gains significance as offences against minor girls create a different class of offences. Therefore, determining the age of the victim is of significant importance. The Juvenile Justice Act of 2015 deals with the protection of minors victimized in sexual offence cases, and it also provides for determining the age of the victim. The Supreme Court, in the case of Jarnail Singh v. State of Haryana [(2013) 7 SCC 263], held that on the issue of determining the age of the victim, one needs to refer to Section 12 of Juvenile Justice Rules, 2007. It was also made clear that the victim’s age was to be determined in the same manner as of a person accused of a crime. However, the same is limited to the offences committed against children within the purview of the Juvenile Justice Act. Section 94 of the Juvenile Justice Act 2015 provides for how the age determination is to be done. Section 94 (Presumption and determination of age) lays down a 3-step approach to determining the victim’s age.

Suppose it is evident to the Board or the Committee that the said victim is a child from the appearance of the same person; after observation of age nearly as possible, the Board or the Committee shall begin with the enquiry without waiting for further evidence. In case there are some reasonable doubts with the Board or the Committee regarding the victim’s age, it shall undertake the age determination process. Firstly, the birth certificate from the school, or any matriculation or equivalent certificate from the examination board, is to be considered, if available. Without the certificates above, the Birth certificate from the municipal authority or the panchayat is accounted for.

Only if, in the absence of certificates from both the authorities, the age determination process shall be carried out by performing a bone ossification test or any other medical age determination test available on the victim, as per the orders of the Board or the Committee. The test shall be conducted within 15 days of any order passed. Lastly, the age that the Board or the Committee records shall be considered to be the final age of the victim.

Another important observation is that there is room for doubt in age determination, carried out by medical tests. Referring to the cases of Ram Suresh Singh v. Prabhat Singh [(2009) 6 SCC 681] and Jyoti Prakash Rai v. State of Bihar [(2008) 15 SCC 223], it was held that the ossification test isn’t conclusive for age determination as it does not reveal the exact age of the person. Still, it leaves a margin of two years on either side of the age range as the test prescribes.

An important question arising from this is whether the lower age is to be considered or the higher age is to be considered. After much deliberation, the Supreme Court held that all things being equal, the benefit of the doubt in age estimation by bone ossification test is to go to the accused. The above statement was opined in the cases of Triveniben v. State of Gujarat [(1989) 1 SCC 678] and Maru Ram v. Union of India [(1981) 1 SCC 107] and was further confirmed in the case of Sweta Gulati v. State Govt. of Delhi-NCR. [(2018) SCC OnLine Del 10448]

What is evident from the observations mentioned above is that the primary source of age determination should be the certificates by authorities, which are the School/Board and the municipal authority or the panchayat. Only in the absence of the certificates can medical tests based on bone ossification be taken into consideration to determine the victim’s age.