Police cite earlier cases against accused to seal escape clause

Five accused in the Shakti Mills gangrape case

As Rape Survivor Goes Home, Family Of Another Accused Ratchets Up Juvenile Claim & Says He Was Also Born In 1997

Conduct Age Tests As Further Backup

 

Sumitra Deb Roy, Bhavika Jain & Mateen Hafeez TNN

Aseries of tests, including a detailed physical examination, analysis of sexual characteristics, dental and bone X-rays, were performed on the Shakti Mills gangrape case accused at the state-run J J Hospital on Monday.
 

    Aphysician, dental and forensic medicine experts were involved and the age determination report was handed over to the police the same day, confirmed the source (see box).   A senior forensic medicine expert said the tests can collectively help give an estimate or an age range, not the exact age. “We can suggest age in the range of six months to one year. At times, the range can go up to two years. By and large, it is a fairly accurate method,” he said. 

    Activist-lawyer Anand Grover said “a birth certificate is adequate proof of age to show that one is a minor”. However, if there is a conflict, ajuvenile justice board would need to examine the veracity of the claim. Medical tests could be called for to prove his age, said another lawyer.

    In the case of the first arrested accused, the BMC’s office of birth registrations at Lower Parel shows the youth’s date of birth as February 26, 1997. That makes him 16 years and 6 months old.
 

    In the computerized yearwise data stored at the G/ South ward office of the BMC, the information is the same as on the document the youth’s family had produced earlier. But it had tell-tale signs of overwriting. The delivery record showed the youth was born on 26.2.1997 at 2.58am at KPMH hospital. The receipt issued by the hospital was taken to the BMC office on March 18 and his birth was registered.
 

    “The date of birth on any birth certificate is taken from the hospital statement that his family produces and, hence, the dates on both documents are the same,” said a civic official.     It’s clear why the family of the other accused touted as a juvenile wants to get the delivery report from hospital. The mother of the accused said she had delivered a girl a year after the 1992 riots in the city. The accused was born four years later at J J Hospital. “I don’t have any proof to show his age, but we will get the papers to give the details of his age,” she said. 

    The police on Wednesday again clarified that they were relying on papers of the earlier arrests of some of the accused to determine their age. “We do not want to give any chance to defence and, hence, by our own we have opted to conduct bone and dental tests of the accused which will determine his actual age in three-four days. If he is a minor, we will we will try him under the juvenile law,” said Himanshu Roy, joint commissioner of police. 

    The law on dealing with minors in crime is very clear. “If he is a minor, he cannot, as the law goes, be tried as an adult in regular courts and has to be tried by a juvenile justice board. That’s the stark reality,” said Aabad Ponda, a crime law counsel in Mumbai.
 

    Lawyers say unless the legislature changes the law or the Supreme Court—where a PIL on the issue is pending—alters it, minors, even if they are below 18 by a day when committing a crime, cannot be sent to jail or tried in regular courts. The law, if changed, would also not apply retrospectively.

    (With inputs by Swati Deshpande & S Ahmed Ali)
 

NOT A MINOR ISSUE AT ALL
Juvenile Joust Aug 23 | Family of first accused to be arrested claims he is 16 and a half. Police say youth arrested in 2011, had said to he was 17 

Aug 24 | Relative produces a BMC certificate showing accused born on Feb 26, 1997. But there are clear signs of overwriting  

Aug 25 | Family of another accused says he’s a minor, turned 17 recently. Don’t have any paper. Claims cops manipulated his age to 18 when he was arrested in 2012 in a scrap theft case  

Aug 26 | Mumbai police commissioner Satyapal Singh clarifies all five accused are adults. Reiterates 2011 arrest record for first accused. Says potency and bone tests will be done to make a “watertight” case Aug 27 | Accused go through potency and bone tests  

Aug 28 | BMC records show first arrested accused born on February 26, 1997
Tests to Confirm Age General | Height, weight, measurement of waist; nutritional status
Sexual characteristics | Development of secondary sexual characteristics or signs of sexual maturation
 

    Dental examination | Holds the key as x-ray of
    dental roots helps gauge the extent of tooth
    wear. For juveniles, the calculation is based
    on growth and factors like fusing of bones,
    development of teeth, etc
 

Bone study | Bone ossification shows the maturity of a skeletal system. Usually done by taking an X-ray of wrist and hand and comparing them with X-rays of standard bone development in kids of same gender and age
Body development index | Measuring midarm circumference, mid-thigh circumference, mid-forearm, mid-leg, chest circumference, abdominal circumference at the level of umbilicus, etc.
 

Age determination | Cumulative assessment of all reports helps a doctor, preferably a forensic medicine expert, suggest age in the range of 6 months to 1 year
 

Crime & Punishment Five accused booked under section 376(D) (gangrape) of the amended IPC, which entails a maximum punishment of life in jail. IPC sections 34 (common intention), 341 (wrongful restraint), 343 (wrongful confinement), and 506 (II) (criminal intimidation) have also been slapped on them
If proved a juvenile and convicted, accused face a maximum of 3 years in a reform home under the Juvenile Justice Act
    A juvenile can be tried only by a Juvenile Justice Board under simpler procedures
 

Nirbhaya Case An accused is being tried as a juvenile. Verdict is expected on August 31
 

How to Prove Age
    Matriculation (Class X) certificate will do in court. In its absence, a birth certificate from a regular school or from a local body will do
    Only when no certificates are available, courts will seek medical opinion
 

Benefit of Doubt to a Minor SC in 2012 held that when exact age cannot be concluded even after tests, court may, if necessary, give benefit to the juvenile by holding him a minor
 

CopSpeak
    We do not want to give any
    chance to defence and, hence, we, on our own, have opted to conduct bone and dental tests which will determine accused’s actual age in three-four days. If he is a minor, we will we will try him under the juvenile law only
Himanshu Roy | JOINT COMMISSIONER OF POLICE

Documentary Proof
The BMC record (above) shows the DOB of the first arrested accused; (right) the delivery report his family flaunted

The date of birth is taken from the hospital statement a family produces and, hence, the dates on both documents (BMC record and delivery report given by family) are same
Civic official

 

The Times of India, August 29, 2013