The Telegraph
Friday , January 4 , 2013
Since 1st March, 1999
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Shroud on age test on sixth rape suspect
Charges filed against five

New Delhi, Jan. 3: Delhi police today filed a chargesheet against five of the six bus rape accused amid indications they may not have arranged for the promised ossification test on the sixth to determine if he was indeed a minor.

Asked why the sixth accused was not mentioned in the chargesheet, public prosecutor Rajiv Mohan said outside the Saket district court: “We are waiting for the results of the ossification test.”

But police spokesperson Rajan Bhagat, when queried, could only say: “We had planned to take him for the test but I don’t know if it has been done or not.”

D.K. Mishra, a criminal lawyer and uncle of the rape victim’s male friend who too was attacked, alleged the police had not taken steps to have the test done.

“They told me they are (still) planning to file an application before the metropolitan magistrate’s court and the Juvenile Board to get the test done,” Mishra said.

But he added that two police officers had visited the school in Badaun, Uttar Pradesh, where Raju had studied till Class VII. “From the school register, the principal gave an affidavit saying he was 17 years and six months old.”

If that is true, the ossification test may not matter. The Supreme Court recently said the matriculation certificate or the date-of-birth certificate issued by a school should be considered the primary evidence in determining the juvenile status of an accused.

Medical tests come into play only if these certificates — as well as civic body or panchayat age certificates — are not available.

If Raju’s juvenile status is established, he will be tried in a juvenile court and the maximum punishment will only be three years. The other five accused have allegedly told the police that Raju had been the most “brutal and aggressive” among them all.

Normally, the chargesheet doesn’t mention any punishment but in this case, it has sought the death penalty for all the five accused it names.

Mohan said the chargesheet against Raju would be filed shortly. “In the 33-page chargesheet, we have mentioned his role in the heinous crime.”

The 23-year-old victim was gang-raped and brutalised with an iron rod in a moving bus on December 16 night and died on December 29 in a Singapore hospital.

Confidentiality plea

The police urged the court to keep the victim’s identity confidential amid suggestions from a Union minister that her name be revealed if the family has no objections.

“We appeal to the court to ensure the content of the FIR, which has the victim’s name, not be disclosed,” Mohan said. The police also requested a trial behind closed doors.

Section 327(2) of the criminal procedure code too says that rape trials “shall be conducted in camera” and makes it illegal for anyone to publish anything relating to such proceedings without court permission. Section 228A of the Indian Penal Code bans the disclosure of a rape victim’s name on the pain of a two-year jail term.

The chargesheet said blood samples found in the bus had matched those of all the six accused and fingernail scratches, etc, on the body of each had matched the victim’s DNA.

Police delay

The police failed to file the chargesheet before the designated metropolitan magistrate by the end of normal court hours at 5pm. Eventually, it was filed before duty magistrate Surya Malik Grover at 5.30pm. “It took time to arrange the bulky documents attached with the chargesheet,” Mohan said.

The metropolitan magistrate will examine the chargesheet and the other documents and, if satisfied, will “commit” (forward) them to the sessions court that will try the case from day to day.

Some women lawyers shouted in the courtroom that there was no need for a trial in the “open and shut case” and demanded the accused be “handed over to the public”. The court’s bar association has decided that no member would defend the accused.

The five accused chargesheeted — driver Ram Singh, his brother Mukesh, gym assistant Vinay Sharma, fruit seller Pawan Gupta and cleaner Akshay Thakur — face charges of murder, attempt to murder, gang rape, kidnapping, unnatural offences, dacoity, destruction of evidence and criminal conspiracy with common intention. Raju was a helper-cum-cleaner.