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2017 Supreme(Cal) 384
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DEBI PROSAD DEY, J.
Ayesha Mondal - Appellant
Versus
The State of West Bengal & Another - Respondents
CRR No. 338 of 2014 (Appellate Side)
Decided On : 04-08-2017
Uday Sankar Chattopadhyay, Sumon Sankar Chatterjee, Subhadip Banerjee
The validity of an ossification test as a means of determining a juvenile's age in a criminal case.
Headnote:
Juvenile Justice - Ossification Test - Indian Penal Code - Sections 493/376 - Rule 12 of Juvenile Justice (care and protection of children) Rules, 2007
Fact of the Case:
The petitioner challenged the transfer of a case to the Juvenile Justice Board, contending that the accused was a major at the time of the alleged occurrence. The court directed an ossification test to ascertain the accused's age.
Finding of the Court:
The court found that the ossification test report confirmed the accused was a minor at the time of the occurrence, and upheld the decision to transfer the case to the Juvenile Justice Board.
Issues: The main issue was the determination of the accused's age at the time of the alleged occurrence, and whether the ossification test was a valid means of establishing the accused's age.
Ratio Decidendi: The court relied on the ossification test report, as directed by the court, to ascertain the accused's age and found it to be a valid means of determining the accused's minority status.
Final Decision: The revisional application was dismissed, and the Juvenile Justice Board was directed to dispose of the case within one year.
1. None appears on behalf of opposite party no. 1 and 2 despite repeated call. Affidavit of service shall be retained with the record. The petitioner has challenged the order dated 29.11.2013 passed by learned Principal Magistrate, Juvenile Justice Board, Burdwan in connection with Ausgram Police Station case no. 67 of 2009 wherein and where under learned Principal Magistrate of Juvenile Justice Board has held that opposite party no. 2 is a minor in terms of the ossification test report of opposite party no.2.
2. A case under Section 493/376 of the Indian Penal Code at the instance of the petitioner was started against opposite party no. 2 and ultimately after completion of investigation charge sheet under Section 376 was filed against opposite party no.2. Considering the age of opposite party no.2 learned Chief Judicial Magistrate has transferred the case to Juvenile Justice Board for inquiry and disposal.
3. The petitioner being aggrieved by such transfer of case to Juvenile Justice Board filed revision application before this Court being CRR no. 3015 of 2011. The specific case that was canvassed before this Court in the aforesaid criminal revisional application is that opposite party no.2 was major at the time of alleged occurrence. After hearing both sides learned Judge passed the following order.
“Heard the learned counsel for the parties. The matter is taken up for hearing. It is submitted that this is a case under sections 493/376 of the Indian Penal Code. It is further submitted by Mr. Chatterjee, learned counsel for the petitioner that the victim girl is major. The accused-opposite party no.2 namely Shamim alias Bapi Dafadar, is a minor. As per direction of the Hon’ble Court birth certificate was filed which shows that the opposite party no.2 is a minor. Thereafter the victim girl filed an application before the learned court below for ossification test of the opposite party no.2. The same was rejected after hearing both sides. Probably being influenced by the order of the Hon’ble Court the learned court below rejected the prayer for ossification test of the opposite party no.2. It appears that ossification test is conducted scientifically and there is no harm for conducting such test of a person through there is a contradictory order by the court.
Considering the aforesaid position and after hearing the both sides, I think that in the interest of justice the opposite party no.2 be placed for ossification test. The learned court below is hereby directed to arrange for ossification test of the opposite party no.2 as quickly as possible so that the entire truth will come up.
Accordingly, the revisional application along with C.R.A.N. 425 of 2012 is disposed of on contest.”
4. Pursuant to the direction given by learned single Judge opposite party no.2 was placed before the appropriate authority for conducting his ossification test and report was duly submitted before the Juvenile Justice Board at Burdwan. Learned Principal Magistrate has clearly stated in his order dated 29th November, 2013, that as per the ossification test report the age of opposite party no. 2 was ascertained as on the date of examination more than 17 years but less than 18 years. The ossification test was conducted on 12.05.2012 and the occurrence took place on 10th May, 2009. Thus, learned Magistrate was satisfied that on the date of occurrence opposite party no. 2 was a minor.
5. Learned Advocate appearing on behalf of the petitioner contended that no documents in terms of Rule 12 of Juvenile Justice (care and protection of children) Rules, 2007 was ever produced by opposite party no. 2 before the Juvenile Justice Board to prove/ to show his age but the secondary evidence in the form of ossification test, was produced before the Juvenile Justice Board and learned Magistrate has committed grave mistake by accepting the ossification test report as the document to ascertion the age of opposite party no. 2. It is further submitted that learned magis
