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Times Of India
08 january 2013
New Delhi, India.

The Delhi Police’s attempts to verify the juvenile’s age, accused in the gang-rape case, with a bone test could prove to be an exercise in futility. Not only is the bone test unable to give an accurate age of the person, but under the rules governing the Juvenile Justice (JJ) Act its findings cannot take precedence over any documentary evidence.

According to JJ rules 2009, a test by a medical board can only be established after there is no verification or unavailability of three documents — school leaving certificate, panchayat or municipal certificate or a matriculation certificate.

Sudhanshu Ranjan, author of ‘Justice, Judocracy and Democracy in India’, says under JJ rule number 12, documentary evidence of age gets priority over the medical test. "The reasoning was that the medical test is not foolproof either, and there is a possibility of variation of two years, above or below, of the real age. So, the documentary evidence is to be relied upon unless it is shown to be forged. The Supreme Court in Hari Ram’s case upheld this provision."

According to the juvenile’s school leaving certificate, he is short of 18 years by a few months which puts him in the category of juveniles and can be tried under the Juvenile Justice (Care and protection of Children) Act, 2000 which defines every child below 18 years as a juvenile. According to the police, he was the "most brutal" among the six accused of the Delhi gang-rape.

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If tried under the JJ Act, he may be let off within a few months as the maximum punishment under the act is imprisonment of three years, but the child has to be kept in an observation home and is entitled to get bail.

Ranjan added that the police have not relied on the school leaving certificate and instead moved the Juvenile Justice board for the ossification test.

Former chairperson of the Delhi child welfare committee Raj Mangal Prasad said that in most cases documentary evidence was accepted by the JJB till there was reason to believe that it was forged. "According to the law, documentary evidence has to be accepted unless someone has reason to believe that it is not authentic," he said.

Prasad said that the bone test was not reliable as it could only narrow down the age of the person. "In my years in the CWC I also found that medical tests were done causally. That is why the JJB is given enormous discretionary powers. They can even reduce the age of the juvenile keeping in mind the evidence before them," he added.

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