Mumbai gang-rape case: Two rapists look to exploit juvenile justice clause

Two of the five accused in the Shakti Mills gang rape of a photojournalist could actually be minors and there is a possibility that they could be tried under the relatively lenient Juvenile Justice Act.

BMC records show that one of the accused is a minor born in 1997, but senior medical officers privy to his age examination said the test reports have "certified him as a major". Meanwhile, the family of another juvenile said they might move an application under the Right to Information for J J Hospital to confirm that their ward is a minor. They claimed he had turned 17 a fortnight ago, as reported in TOI on August 26.

Police have maintained that both are 18. They said they were going by earlier cases against the two, but are conducting age tests. If proven juveniles, they would be charged under the Juvenile Justice Act, and if convicted, face a maximum three-year probation in a remand home as against life imprisonment under the regular law.

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, a juvenile justice board would need to examine the veracity of the claim. Medical tests could be called for to prove his age, said another lawyer.

A series 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. A physician, 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," said the expert.

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 year-wise 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.