Ossification Test – Issues with the Appreciation by Courts

Introduction

Bone ossification, or osteogenesis, is the process of bone formation. Bone age is calculated through ossification tests, which are a guesswork based on the fusion of joints in the human body between birth and twenty – five years of age, although this varies slightly based on the individual.

Bone ossification test is conducted in order to find the age of the accused or victim on the date of the incident in a particular case. This test becomes pertinent in cases involving juveniles as special provisions have been created with respect to the children who are in conflict with law as well children who need protection and care [Juvenile Justice Act (Care and Protection of Children), 2015 ‘the JJ Act 2015’]

Age of the accused on the date when the offence had been committed, has to be determined in order to figure out how they are to be treated and punished by the justice system, as juveniles have to be treated in a different manner by the investigating authorities, special courts have also been set up to adjudicate upon the wrongdoings committed by them, [Refer Commissions for Protection of Child Rights Act, 2005; Protection of Children from Sexual Offences Act, 2012] and separate remand homes have also been created for juvenile criminals[section 48, the JJ Act]. The punishments for crimes against minor victims are also stricter as compared to crimes against major victims, [ For e.g., the punishment for the rape of a minor is greater, also even consensual sex with a child less than sixteen years of age in considered rape. Refer Indian Penal Code, 1860, ⸹⸹ 366A, 375, 376(f).] and hence, determination of the age of the victim on the date of the incident has to be determined.

Evidentiary Value

The Ossification test result is considered the opinion of the medical experts and hence is dealt under S. 45 of the Indian Evidence Act, 1872, which deals with expert opinion in general. There is no specific provision which encompasses medical opinions and results. Ossification test results are the lowest in the hierarchy of evidence which is to be relied upon as per the hierarchy provided by the Juvenile Justice Act, 2016. [section 94, the JJ Act]. It is used only if on the mere appearance the age of the person cannot be determined and no documentary evidence like matriculation certificate etc. is available.

The Supreme Court in the case of Vishnu v. State of Maharashtra, held that ossification test, coming under the ambit of expert medical opinion cannot override available documentary evidence, which has been proved to be true and admissible, as they are statements of facts. In another case it has held that if documentary evidence is genuine and admissible as per the requirements of law, then they are to be relied upon instead of the ossification test results. But in cases wherein the documentary evidence cannot be relied upon due to forgery or fabrication, or improper maintenance; or are inadmissible due to non-fulfilment of mandatory legal conditions; the age based on ossification test becomes important and relevant.

The Supreme Court in the case of Ramdeo Chauhan v. State of Assam, has held that if no documentary or any other evidence like statement of parents about age is available, then the age based on ossification test cannot be cast aside and has to be considered, though it isn’t a sound substitute for documentary proof.

Determination of the age of a person based on ossification test cannot be conclusive proof as the results are not accurate, and it does not indicate the exact number of years and days a person has lived. The court has held that the opinion of the doctor though not conclusive, has corroborative value.

Problems associated with the test

There are certain fallacies in the reliability of the age determined using ossification tests. These problems have an impact on the evidentiary value placed on the tests.

Variation in the test results

The major reason for ossification tests to not be a strong piece of evidence is because generally there is a variation of two years on both sides of the given possible age range.[1] The process of ossification may also vary based on factors like the nutrition, genetic peculiarities, injuries, geographical and climatic conditions, economic conditions, etc.

The court has also held that a uniform criterion cannot be applicable in the entirety of the country due to its diverse conditions within its various regions itself. It also held that the process of ossification also varies based on the gender of examinee.

The decision of the court, especially in cases involving the conviction of a person, cannot be based merely on the approximate date obtained through a test that doesn’t not give a definitive result.

Dichotomy in the appreciation

There is also a dichotomy in the appreciation of the ossification test results by the court as the benefit of doubt is given to the accused and the age — lower or upper — whichever is in favour of the accused is taken. The scale of balance favours the interests of the accused over the interests of the victim. This is problematic as the same type of evidence is appreciated in one manner with regard to the accused and in a different manner when the age of the victim is in question.

For instance, in the case of Shweta Gulati v. State Government of the NCT of Delhi, the age of the victim was under consideration and the court considered the higher age to be actual age to give the benefit to the accused. Whereas, in the case of Arnit Das (1) v. State of Bihar, the court held that a hyper-technical approach should not be taken and in borderline cases the accused is to be considered to be a juvenile. This stance was further supported, and the court held that the age should be determined based on the degree of probability and it need not be proved beyond reasonable doubt.

Circumstances of the case

The court has also held that each case must be based on its own facts and circumstances, so a blind and mechanical approach cannot be taken. Even when no other proof is available and the result of the ossification tests points towards the juvenility of the accused when the offence was committed, the court has not relied upon the results as the sole basis to determine the age. This was the case in Mukarrub v. State of U.P., as the accused in question had been charged with numerous offences prior to the particular offence in question, and the court held that at that time if their age had been the age as per the results, they would have clearly appeared to be juvenile and would have been treated in that particular manner and hence the test is not conclusive.

Age of the examinee

Bone ossification test also becomes difficult after the person whose age is to be determined crosses a certain age. Therefore, it cannot be used to determine the age of people after a lapse of time from the time of occurrence of the crime or if the accused raises the plea of minority after the passage of a long period of time — there is no restriction in raising the plea at a later stage — as the already inaccurate ossification test becomes even more inaccurate.

Suggestions

While conducting the bone – ossification test several ossification centres should be taken into consideration such as the dental age, x-rays of various parts, the sexual maturity of the person in order to reduce the margin of variation.
For conducting the ossification test a well-qualified, professional and expert panel of doctors should be formulated and medical experts from various fields like dentistry, orthopaedics, gynaecology, urology, radiology, etc should be included.
Since there arises a problem as to the variation and difficulty in getting accurate results after a certain time has elapsed, in cases where the minority cannot be determined by the mere appearance of the person in question, the ossification test should be conducted as soon as the person is taken into custody.
In order to overcome the dichotomy existing with the appreciation of the ossification test results, some specific guidelines should be set as to whether the lower or the upper age is to be considered, which would be the same in cases involving the determination of the age of accused or victim.
Forgery and fabrication, which hampers the authenticity of documents, is easy and frequent, and hence they should be not relied upon even if there is a slight doubt. In such cases, the ossification test should mandatorily be conducted for corroboration.

Conclusion

Bone ossification tests are conducted on a large scale in India but no consistent practice has been evolved in the courts with respect to its appreciation as well as the exact number of ossification centres that are to be analysed. Certain guidelines have to be enacted in order to ensure that there is no lacuna in the court’s practice and the parties approaching the court to have a clear conception as to how and what will be court’s conduct when the test shows a particular type of result. The provisions of the Juvenile Justice Act, being a beneficial piece of legislation should not be misused, due to the loopholes in the law.

[1] R. M. Jhala & V. B. Raju, Medical Jurisprudence 198 (6th ed. 1997).

About the Author: Rashmi [2018-23 Batch] is pursuing B.B.A.LL.B.(Hons) at National Law University, Jodhpur.

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