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Is rape a 'minor' crime for juveniles?

The Mumbai Police chief may have brushed aside speculation on the age of those arrested for the gang rape of a young photojournalist, stating that all five are adults. But the apprehension that the accused may take advantage of loopholes in the Juvenile Justice (JJ) Act are not unfounded.

There are several cases of people convicted of brutal crimes getting away easily by pleading juvenility.

Maninder* believes this is exactly what happened in the case of his six-year-old daughter Pinky*, who was raped and brutally murdered.

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In August 2007, Anil, a local dada in Sector 27 Rohini, a resettlement colony, had lured Pinky to a vacant DDA plot nearby, and raped and sodomised her. He then strangled her to death, leaving her body in the bushes. Late at night, he went back to where she lay, cut her forearms and threw them in the ladies' loo of the community toilet to mislead investigations.

The next day, Pinky's three-year-old sister Dolly told Maninder that she'd seen Anil take Pinky away.

Anil was arrested two days later and tried in the Rohini sessions court, which sentenced him to death in February 2012. Anil then appealed to the high court, pleading that he was a juvenile.

The court found merit in his appeal, let him off and referred his case to the Juvenile Justice Board. But Anil had already been in jail for three years, the maximum sentence under the JJ Act, and was let off, despite the media outcry at the time.

After his release, Anil went back to live in the same colony close to Pinky's family. His brush with the law hadn't made a difference and he began to threaten Dolly. 'He (Anil) told my daughter that he would do the same to her what he did to his sister,' says Maninder, a daily wage labourer. 'Paanch saal jail main kaat kar uska dar mit gaya hai,'he says.

In January this year, the family filed a first information report (FIR) in Shahbad Dairy thana under Sections 452 (trespassing) and 506 (criminal intimidation, punishable with up to two years in prison) of the IPC. But Anil was released in two days after a trial court granted him bail. He's not been seen since then.

Clearly, despite all the street protests and show of anger after the December 16 gang rape of a 26-year-old and recently, a 22-year-old photojournalist, nothing seems to have changed on the ground.

Too young to rape?
Anil, the accused, had not claimed to be a juvenile in the Rohini sessions court, where he was initially tried. In its judgement, the court had noted that he was 20 at the time of the crime.

But looking at the severity of Pinky's injuries - the post-mortem said strangulation and liver injury were the cause of death; she also had deep bruises in her private parts - it pronounced capital punishment. Anil then filed an appeal in the Delhi high court, contesting the sentence on the grounds that he was a juvenile, that is, less than 18 years old, at the time of the crime.

In cases like that of Anil, who has not been to school and has no age proof or birth certificate, the JJ Act mandates determining age with the help of medical tests. The Mumbai Police has stated that it may resort to bone ossification test to prove the five accused are adults but the odds may not be in their favour as Anil's case shows. The medical reports estimated Anil's age between 22 and 25 years in 2012, which means in 2007, he was 17-20 years old.

The judges also went by the statements of Anil's sisters, who said that he was about one-and-half-years old at the time of their marriage in 1991. Here too there were no marriage certificates, so the year of marriage was established on the basis of their children's birth certificates.

Anil was declared juvenile, and his conviction and sentence were set aside under Section 7A of the JJ Act. (Also read: Mumbai gang rape: It's time to change our juvenile laws)

'Appellants contesting juvenile status are normally given the benefit of doubt. But courts should be given some discretion to weigh the nature of the crime,' says Richa Kapoor, who was additional public prosecutor in Anil's case in the high court.

She refers to the 2012, Supreme Court ruling, in Om Prakash vs State and Another, that '... Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself...'

Is medical evidence foolproof?
In April this year, Jagdish Singh, convicted of a murder committed in 1997, was let off by the high court on the plea of juvenility. In 1998, his bone ossification reports had estimated his age at 18-20 years. Another test was conducted in 2012, which estimated his age at 22-25 years - his age had increased by only five years in 15 years! The high court relied on the first test.

Also read: Mumbai photographer gang rape: India no country for women and Is it time to change our juvenile laws?

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