Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 25.04.2024
Judgment delivered on: 02.07.2024
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COURT ON ITS OWN MOTION .....Petitioner
versus
STATE OF NCT OF DELHI ......Respondent
Advocates who appeared in this case:
For the Respondent State: Mr. Tarang Srivastava, learned APP for
State with SI Anju
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
MANOJ JAIN, J
1. A Reference under Section 395(2) of the Code of Criminal
Procedure, 1973 (in short „Cr.P.C.‟) has been received from the court of
learned Additional Sessions Judge (SC-POCSO), South District, Saket
Courts, New Delhi seeking decision on the following questions of law:-
“(i) Whether in POCSO cases, the Court is required to
consider the lower side of the age estimation report, or
the upper side of the age estimation report of a victim in
cases where the age of the victim is proved through bone
age ossification test?
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(ii) Whether the principle of „margin of error‟ is to be
applicable or not in cases under the POCSO Act where
the age of a victim is to be proved through bone age
ossification test.”.
2. Before venturing to answer the Reference, it would be useful to,
1
briefly, refer to comprehend the factual matrix of the case pending
before the said referral court. It was only while dealing with the above
case that the learned ASJ was, apparently, caught in a dilemma,
compelling him to send the Reference in question.
3. In said case, the accused is facing trial for commission of offences
under Section 376/506 IPC and for offence under Section 4 of Protection
of Children from Sexual Offences Act, 2012 (in short “POCSO Act”).
4. Since there was no school record or birth certificate indicating the
date of birth of the “victim”, bone age ossification test was got
conducted. As per such report (Ex.PW8/B), the age of the victim has
been opined to be between „16 to 18 years‟, noticing the general,
physical, dental and radiological characteristics.
5. An argument was raised before the learned Trial Court that the age
of the victim should be construed as 20 years on the premise that further
margin of error of two years has to be given. In alternate, it was
contended by the defence that even if benefit of such margin was not to
be given, since the age of the victim, as per the ossification test, was
estimated as falling between 16 to 18 years, the upper age, i.e., age of 18
1
SC No.147/2018 titled „ State vs. Bunty Singh‟ in FIR No.463/2017, PS Hauz Khas.
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years should be reckoned and, therefore, POCSO Act should be held as
„not applicable‟. Defence relied upon Shweta Gulati & Anr. vs. The State
2
Govt. of NCT of Delhi whereas the prosecution relied upon Raju Yadav
3
vs. State of NCT of Delhi . Noticing the conflicting opinions in the
aforesaid two cases, i.e., Shweta Gulati (supra) and Raju Yadav (supra),
the aforesaid questions have been posed to us.
6. Thus, the present reference stems from the two divergent judicial
opinions of this Court and we have to answer about the manner of
calculation of age while considering „bone age ossification report‟ of any
child-victim of sexual assault.
7. We have carefully gone through the provisions of POCSO Act as
well as Juvenile Justice (Care and Protection of Children) Act, 2015 (in
short “JJ Act”).
8. POCSO Act came into force on 14.11.2012. Undoubtedly, POCSO
Act seems to be a complete code in itself which deals with the sexual
offences targeted against children. The necessity of bringing POCSO Act
was felt because the existing laws were not adequately addressing sexual
offences against the children and, therefore, it was proposed to enact a
self-contained comprehensive legislation, inter alia , to provide for
protection of children from the offences of sexual assault, sexual
harassment and pornography with due regard for safeguarding the interest
and well-being of the child at every stage of the judicial process,
2
2018 SCC OnLine Del 10448
3
2023 SCC OnLine Del 2782
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incorporating child-friendly procedures for reporting, recording of
evidence, investigation and trial of offences and provisions for
establishment of „Special Courts‟ for speedy trial of such offences.
9. As per Section 2(d), a child means any person below the age of 18
years. Thus, if at the relevant time, i.e., at the time of the commission of
the offence, the victim is found to be a person below the age of 18 years,
such victim would be considered „child‟ in context of POCSO Act.
10. However, in the entire POCSO Act, there is no provision laying
down procedure for adjudicating and evaluating the age of such child.
Section 34, POCSO Act merely prescribes procedure in case of
„commission of offence by child‟ and determination of age by Special
Court. It reads as under: -
“Sec.34 (Procedure in case of commission of offence by child
and determination of age by Special Court)-
(1) Where any offence under this Act is committed by a child,
such child shall be dealt with under the provisions of [the
Juvenile Justice (Care and Protection of Children) Act, 2015
(2 of 2016]).
(2) If any question arises in any proceeding before the
Special Court whether a person is a child or not, such
question shall be determined by the Special Court after
satisfying itself about the age of such person and it shall
record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be
invalid merely by any subsequent proof that the age of a
person as determined by it under sub-section (2) was not the
correct age of that person.”
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11. Apparently, as per bare reading of heading of Section 34, it
envisages a situation where a wrongdoer is found to be a child. Section
34(1) stipulates that where any offence under POCSO Act is committed
by a child, such child shall be dealt with under the provisions of the JJ
Act. Thus, in any such situation, the Special Court ceases to have any
further jurisdiction and such juvenile in conflict with law is required to be
dealt with as per mandate of JJ Act.
12. Though the manner and procedure for adjudicating the age of child
has not been prescribed under POCSO Act, JJ Act gives us some valuable
insight.
13. As per Section 94 of JJ Act, whenever any person is brought
before the Child Welfare Committee or Juvenile Justice Board and there
are reasonable grounds for doubt regarding the age of such person, the
Committee or the Board shall undertake the process of age determination,
by seeking evidence. As per above Section, the first preference has to be
given to a date of birth certificate from the school and in absence thereof,
a birth certificate given by the concerned Municipal Authority and it is
only in the absence of the aforesaid two documents that the age would be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the
Board.
14. For the sake of convenience, we extract Section 94 of JJ Act which
reads as under: -
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“Sec.94 (Presumption and determination of age)-
(1) Where, it is obvious to the Committee or the Board, based
on the appearance of the person brought before it under any
of the provisions of this Act (other than for the purpose of
giving evidence) that the said person is a child, the Committee
or the Board shall record such observation stating the age of
the child as nearly as may be and proceed with the inquiry
under section 14 or section 36, as the case may be, without
waiting for further confirmation of the age
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as the
case may be, shall undertake the process of age
determination, by seeking evidence by obtaining —
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test conducted on the order
of the Committee or the Board shall be completed within
fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of
this Act, be deemed to be the true age of that person.”
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15. It is, however, no longer res integra that the procedure prescribed
under JJ Act shall not only apply to a juvenile wrongdoer but also to a
victim of the crime.
16. In this regard, we may usefully refer to Jarnail Singh vs. State of
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Haryana . When the aforesaid matter was considered by the Hon‟ble
Supreme Court, the prevalent Act was Juvenile Justice (Care and
Protection of Children) Act, 2000, which prescribed the procedure for
determination of age and the relevant Rules were, Juvenile Justice (Care
and Protection of Children) Rules, 2007. Rule 12 of such Rules of 2007,
though, meant for determining the age of a child in conflict with law, it
was observed by Supreme Court that such statutory provision should also
be the basis for determining age, even of a child, who was victim of
crime.
17. Para 22 and 23 of Jarnail Singh (supra) read as under: -
“22. On the issue of determination of age of a minor, one
only needs to make a reference to Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred to as “the 2007 Rules”). The
aforestated 2007 Rules have been framed under Section
68(1) of the Juvenile Justice (Care and Protection of
Children) Act, 2000. Rule 12 referred to hereinabove reads
as under:
“ 12.Procedure to be followed in determination of
age .—(1) In every case concerning a child or a
juvenile in conflict with law, the court or the Board or
4
2013 SCC OnLine SC 507
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as the case may be, the Committee referred to in Rule
19 of these Rules shall determine the age of such
juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of making
of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis
of physical appearance or documents, if available,
and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall
be conducted by the court or the Board or, as the case
may be, the Committee by seeking evidence by
obtaining—
(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the
margin of one year,
and, while passing orders in such case shall, after
taking into consideration such evidence as may be
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available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii)
or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or
the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the
date of offence, on the basis of any of the conclusive
proof specified in sub-rule (3), the court or the Board
or as the case may be the Committee shall in writing
pass an order stating the age and declaring the status
of juvenility or otherwise, for the purpose of the Act
and these Rules and a copy of the order shall be given
to such juvenile or the person concerned.
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of Section 7-
A, Section 64 of the Act and these Rules, no further
inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of
this Rule.
(6) The provisions contained in this Rule shall also
apply to those disposed of cases, where the status of
juvenility has not been determined in accordance with
the provisions contained in sub-rule (3) and the Act,
requiring dispensation of the sentence under the Act
for passing appropriate order in the interest of the
juvenile in conflict with law.”
23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of
the view that the aforesaid statutory provision should be
the basis for determining age, even of a child who is a
victim of crime. For, in our view, there is hardly any
difference insofar as the issue of minority is concerned,
between a child in conflict with law, and a child who is a
victim of crime. Therefore, in our considered opinion, it
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would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW, PW 6.
The manner of determining age conclusively has been
expressed in sub-rule (3) of Rule 12 extracted above.
Under the aforesaid provision, the age of a child is
ascertained by adopting the first available basis out of a
number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is expressed
in a preceding clause, it has overriding effect over an
option expressed in a subsequent clause. The highest rated
option available would conclusively determine the age of a
minor. In the scheme of Rule 12(3), matriculation (or
equivalent) certificate of the child concerned is the highest
rated option. In case, the said certificate is available, no
other evidence can be relied upon. Only in the absence of
the said certificate, Rule 12(3) envisages consideration of
the date of birth entered in the school first attended by the
child. In case such an entry of date of birth is available, the
date of birth depicted therein is liable to be treated as final
and conclusive, and no other material is to be relied upon.
Only in the absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever
is to be taken into consideration for determining the age of
the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in the
absence of any of the aforesaid, that Rule 12(3) postulates
the determination of age of the child concerned, on the
basis of medical opinion.”
(emphasis supplied)
18. Thus, the Hon‟ble Supreme Court, in no uncertain terms, came to
the conclusion that the procedure prescribed for determining the age of a
child in conflict with law, was also equally applicable for determining the
age of a victim of a crime. Though the aforesaid Act of 2000 has now
been replaced by the JJ Act, 2015, fact remains that in view of the above
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said specific observation, the procedure for determination of age for a
child-victim would still remain the same.
19. If one has a school certificate or birth certificate, then obviously
there would not be any difficulty, provided these documents are duly
proved before the Court in accordance with law and are admitted in
evidence.
20. The age given in any such birth certificate or school record would
be a specific and fixed one, being based on date of birth.
21. In absence of said documents, when the Court orders for
ossification test, such test though gives us the estimation of age but it
does not provide us with precise and definite age. It rather gives us a
reference range, which, generally, is found to be of two years.
22. In the case in hand also, such estimation age is given as 16-18
years by the concerned Medical Board. The issue is whether age of the
victim should be taken on the lower side or on the upper side of such
range. What ought to be the approach of the Court – whether to consider
the age of the child victim as 16 years or as 18 years? And secondly and
more importantly, whether any further “margin of error” is also to be
applied on either side, thereby making the age range, in context of
present situation, from „16 to 18 years‟ to „14 to 20 years.‟
23. We cannot be oblivious of the fact that we are following
adversarial system of law where the presumption of innocence is
indispensible philosophy. Though in any criminal trial, the endeavour is
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to reach the truth, in adversarial system, the judge generally acts like an
umpire who watches whether the prosecution has been able to prove the
case beyond reasonable doubt or not. Since the adversarial system in
India is based on the „innocence of the accused‟, the burden of proof,
generally, falls on prosecution. Our criminal system prescribes that a case
against any accused has to be proved beyond doubt. Meaning thereby, if
there is an element of doubt, such benefit has to go to the accused.
24. Admittedly, in context of any juvenile wrongdoer, the endeavour
of the defence would always be to seek margin of error on the „lower
side‟ as the same would prove to be beneficial for such wrongdoer who
would be in a better position for being treated as juvenile in conflict with
law, thereby becoming entitled to get due protection in many ways,
including sentencing aspect. Thus, though the courts are zealous to see
that a juvenile gets benefit of the provisions of JJ Act but at the same
time it is also imperative for the courts to ensure that such protection and
privileges are not misused by unscrupulous persons to escape
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punishments for having committed serious offences .
25. Be that as it may, the margin of error is, generally, applied on the
lower side while considering the age of any such juvenile in conflict with
law.
26. Interestingly, as per the earlier Rules, i.e., the Juvenile Justice
(Care and Protection of Children) Rules, 2007, Rule 12 itself provided
that whenever a medical opinion was to be sought from a duly constituted
5
Mukarrab and others v. State of Uttar Pradesh 2016 SCC OnLine SC 1413
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Medical Board and in case the exact assessment of age could not be done,
the Court or the Board or the Committee, for the reasons to be recorded,
may, if considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one year .
27. Obviously, the margin of one year on the lower side was given in
order to achieve the underlying objective of JJ Act. Qua the border-line
cases, where the concerned competent authority or the Court was not
fully certain and sure whether the person was actually a child in conflict
with law or not, it was considered necessary that in case there being any
doubt of any kind whatsoever, the benefit of one year on the lower side
be given so that such person is considered a juvenile and is duly taken
care of in accordance with JJ Act and the Rules made thereunder.
28. We note that in JJ Act, 2015, such provision regarding „benefit of
margin of one year on the lower side‟ has been dispensed with as there is
no such stipulation in Section 94 of JJ Act, 2015. However, the judicial
precedents still carry full weight, which we shall discuss little later.
29. Let us now take note of the conflicting judgments, as noted by the
learned Trial Court in its order dated 06.02.2024.
30. In Shweta Gulati (supra), though the question was with respect to
the payment of wages to a minor victim who had been sexually assaulted,
there was no document ascertaining her age and, therefore, the bone age
ossification test of victim was got conducted and as per such report, the
age of the victim was determined to be in range of 17 to 19 years. The
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concerned Child Welfare Committee determined the age of the victim as
17 years, which order was upheld in appeal by the Court of learned ASJ.
When the revision petition was filed before this Court, this Court made
reference to Jarnail Singh (supra) and held that benefit of doubt, at all
stages, was to go to the accused.
31. Para 13 to 19 of said judgment reads as under: -
“13. The question that arises for consideration is as to whether,
while determining the age of the victim, the benefit of doubt in
age estimated by the bone ossification test is to go to the
accused or the victim.
14. The settled principle is that the ossification test is not
conclusive of age determination. It is settled that it is difficult to
determine the exact age of the person concerned on the basis of
ossification test or other tests. The Supreme Court, in several
decisions, has taken judicial notice of the fact that the margin
of error in age ascertained by radiological examination is two
years on either side.
15. Now the question that arises for consideration is as to
whether the lower of the age or the higher of the age is to be
taken. If benefit of doubt has to go to the accused then one
would have to take the higher limit and if benefit of doubt has
to go in favour of the prosecutrix then the lower of the two
limits would have to be taken.
16. It is also settled position of law that benefit of doubt, other
things being equal, at all stages goes in favour of the accused.
17. In the present case as no document of age was available,
the age has been determined by the Child Welfare Committee
as 17 years based on the ossification report. The bone
ossification test report has estimated the age as 17 to 19 years.
So applying the margin of error principle, of two years on
either side, the age could be between 15 to 21 years. In the
present case even if the margin of error is not taken on the
higher side, the upper limit of the age estimated by the
ossification test is 19 years.
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18. Giving the benefit of doubt to the accused, the age of the
victim has to be taken as 19 years of age. Accordingly, the
order dated 06.09.2017 passed by the Child Welfare Committee
(CWC) as well as the order of the Appellate Court dated
21.02.2018 is not sustainable.
19. In view of the above, the impugned order dated 06.09.2017
passed by the Child Welfare Committee (CWC) as well as the
order of the Appellate Court dated 21.02.2018 is set aside to
the limited extent that it determines the age of the victim as 17
years.”
32. Thus, as per the aforesaid judgment delivered on 08.08.2018, the
upper age was considered in order to ensure that the accused was not
prejudiced in any manner. It was with the apparent objective that if there
was any uncertainty, the benefit of doubt should go to accused and
accused only.
33. Same issue again cropped up before this Court in Raju Yadav
( supra ). In that case, the accused had been held guilty for committing
various offences including sexual assault and he filed appeal challenging
his such conviction and order on sentence. Appellant took the plea that
the victim was minor. In said case, there was no birth certificate or school
record and bone age ossification test was got conducted, which opined
her age between 15-17 years. The contention of the accused was that
after taking into consideration the margin of error of 2 years, the age of
the prosecutrix should be considered as 19 years on the date of offence
and, therefore, the accused could not have been convicted under POCSO
Act. This Court took note of the objective of POCSO Act and held that
for determining the age of a child victim under POCSO Act, the
inclination of the Court should be towards considering the lower side on
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the margin of error as that would be in consonance with the objective of
POCSO Act. It was observed that it could not be the intention of POCSO
Act to treat a victim, a border-line minor, as a major in case the victim
did not have a birth certificate/school certificate and has undergone a
bone age ossification test. The appeal was dismissed holding that such an
interpretation would not be in furtherance of POCSO Act but rather in
contradiction and derogation to the objective and purpose of POCSO Act.
Said judgment is dated 16.05.2023 and it looks that the parties did not
bring to the knowledge of the Court, the ratio given in Shweta Gulati
(supra).
34. Obviously, there is a conflict between the aforesaid two judgments
of Shweta Gulati (supra) and Raju Yadav (supra).
35. However, there is one important aspect which cannot be lost sight
of.
36. These two judgments are rendered by Single Bench of this Court.
37. There is a judgment of Division Bench of this Court as well as one
judgment of the Supreme Court which answer the given Reference to a
very large extent.
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38. In the case of State v. Basir Ahmad , a Coordinate Bench of this
Court presided over by one of us, (Suresh Kumar Kait, J.) was faced with
the similar issue. The accused, who was facing trial for committing
sexual assault, was acquitted by learned Trial Court observing that the
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2023 SCC OnLine Del 5852
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age of the prosecutrix was shown to be between 17 to 19 years and,
therefore, there was no conclusive evidence of her being a minor at the
time of alleged offence. Consequently, the benefit was extended to the
accused who was acquitted. Such order was assailed before this Court
and the appeal was dismissed. This Court not only upheld the factum of
consideration of the age on the upper side of ossification report while
assessing the age of the prosecutrix but also approved the principle of
giving further margin of two years to such upper estimated age. The
pertinent excerpt from the aforementioned judgement is as under:
“ 12. The question which thus arises is whether the lower or the
upper age recommended in the ossification test should be adopted
to be the age of the prosecutrix. If benefit of doubt has to be given
to the accused under all circumstances, then, it is the higher limit
which has to be taken and benefit extended as has been held in the
cases of Triveniben Vs. State of Gujarat (1989) 1 SCC 678 and
Maru Ram Vs. Union of India (1981) 1 SCC 107 . So being the
case, we may consider the range of age of the prosecutrix as given
in the ossification test to be 17 to 19 years. Applying the margin of
error principle of two years on either side, the age of the
prosecutrix could be anything between 15 to 21 years. Even if the
margin of error is not on the higher side, the upper limit of the age
has been estimated by the ossification test as 19 years. Giving the
benefit, the age of the prosecutrix has to be held as 19 years.
Similar conclusion was taken by the Court in the case of Shweta
Gulati vs. State of NCT of Delhi 2018 SCC OnLine Del 10448.
We thus find that learned ASJ has rightly held the prosecutrix to be
major at the time of incident. We find no infirmity in the findings in
respect of the age of the prosecutrix.”
39. In context of said all important aspect of „granting of benefit of
doubt to accused at every stage‟, we may also refer to Rajak Mohammad
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v. State of Himachal Pradesh whereby the Hon‟ble Supreme Court
allowed the appeal of the convict who was facing charges of kidnapping
and sexual assault and acquitted him while observing as under:-
“4. In view of the above, the focal point for decision would be
the age of the prosecutrix in order to determine as to whether
she was a major so as to give her consent.
5. In this regard, we have considered the evidence and materials
on record. The age of the prosecutrix has been sought to be
proved by the prosecution by bringing on record the school
admission form (Ext. PW 5/A) and the certificate (Ext. PW 5/B)
issued by one Jasdeep Kaur (PW 5), JBT Teacher of Government
School Dungi Plate. PW 5 in her deposition has stated that the
writings in the school admission form (Ext. PW 5/A) are in her
handwriting and the signature affixed is that of the mother of the
prosecutrix.
6. In cross-examination, PW 5 had stated that the details
mentioned in Ext. PW 5/A have been obtained from the school
leaving certificate issued by the Government Primary School,
Tambol. The certificate issued by the Government Primary
School, Tambol on the basis of which the details in the admission
form (Ext. PW 5/A) was filled up by PW 5 has not been exhibited
by the prosecution.
7. Nothing hinges on the document exhibited by the prosecution
as Ext. PW 5/B as that is the consequential certificate issued on
the basis of the entries in Ext. PW 5/A. The mother of the
prosecutrix who had allegedly signed Ext. PW 5/A has not been
examined by the prosecution.
8. On the other hand, we have on record the evidence of Dr
Neelam Gupta (PW 8), a Radiologist working in the Civil
Hospital, Nalagarh who had given an opinion that the age of the
prosecutrix was between 17 to 18 years.
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2018 SCC OnLine SC 1222
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9. While it is correct that the age determined on the basis of a
radiological examination may not be an accurate determination
and sufficient margin either way has to be allowed, yet the
totality of the facts stated above read with the report of the
radiological examination leaves room for ample doubt with
regard to the correct age of the prosecutrix. The benefit of the
aforesaid doubt, naturally, must go in favour of the accused.
10. We will, therefore, have to hold that in the present case the
prosecution has not succeeded in proving that the prosecutrix
was a minor on the date of the alleged occurrence. If that is so,
based on the evidence on record, already referred to, we will
further have to hold that the possibility of the prosecutrix being a
consenting party cannot be altogether ruled out.
11. We will, therefore, have to conclude that the appellant-
accused deserves to be acquitted on the benefit of doubt. We,
consequently, set aside the order of the High Court and the
conviction recorded as well as the sentence imposed and acquit
the appellant-accused of the offences alleged. We further direct
that the appellant-accused be released from custody forthwith
unless his custody is required in connection with any other
case.”
(emphasis supplied)”
40. Thus, the Hon‟ble Supreme Court in Rajak Mohammad (supra),
held that the age established by a radiological examination might not be
precise and, therefore, sufficient margin of error must be allowed. It also
considered the upper estimated age observing that the accused must get
the benefit of doubt.
41. Respondent/State has also assisted this Court by Mr. Tarang
Srivastava, learned APP who, in all fairness, admits the above situation
and states that keeping in mind the fact that benefit of doubt must go to
accused at all the stages, the upper age needs to be taken, while also
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giving further requisite margin of two years. Learned APP has also
placed his reliance on a Division Bench judgement of this Court State v.
8
Mohd. Shakir , wherein as per the ossification report the age of the victim
had been assessed between 16-18 years. This Court held that it is a
settled principle of law that the benefit of doubt at all stages, other things
being equal, goes in favour of the accused. It is also an established
principle of law that if in a case the benefit of doubt has to go to the
accused then the upper limit of the age bracket is assumed as held by the
Apex Court in Ram Suresh Singh v. Prabhat Singh reported in (2009) 6
SCC 681 and Jyoti Prakash Rai v. State of Bihar reported in (2008) 15
SCC 223.
9
42. In Ram Suresh Singh v. Prabhat Singh , Jyoti Prakash Rai v. State
10
of Bihar , it has been observed by Hon‟ble Supreme Court that the age
determined by ossification test is not a precise one and, therefore, two-
year margin of error/ flexibility needs to be applied on either side. Of
course, these judgments were in context of juvenile in conflict with law
but the principle of applying „margin of error‟ shall be no different while
considering a case of child-victim.
11
43. In Karan v. State of Madhya Pradesh , it has been observed by
Full Bench of Supreme Court that ossification test gives only a broad
assessment of the age and it cannot give an exact age. It also observed
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( 2009) 6 SCC 681
10
(2008) 15 SCC 223
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that there is also an element of margin of plus or minus one to two years.
44. The ossification test determines age based on the “degree of fusion
of bone” by taking the x-ray of a few bones. It evaluates the process of
the bone formation based on fusion of joints between birth and generally
upto the age of 25-30 years. Bone age is an indicator of the skeletal and
biological maturity of an individual which assists in the determination of
age. The most common method used for calculation of the bone age is
radiography of the hand and wrist until the age of 18 years as the
elongation of the bone is complete after adolescence. Beyond that, the
medial age of clavicle is used for bone age calculation till the age of 22
years. Of course, age determination using ossification test does not yield
accurate and precise conclusions, particularly after the examinee crosses
the age of 30 years. In Mukarrab (supra), Hon‟ble Supreme Court has
observed as under:-
“26. Having regard to the circumstances of this case, a blind and
mechanical view regarding the age of a person cannot be adopted
solely on the basis of the medical opinion by the radiological
examination. At p. 31 of Modi's Textbook of Medical Jurisprudence
and Toxicology, 20th Edn., it has been stated as follows:
“In ascertaining the age of young persons radiograms of
any of the main joints of the upper or the lower extremity of
both sides of the body should be taken, an opinion should
be given according to the following Table, but it must be
remembered that too much reliance should not be placed
on this Table as it merely indicates an average and is likely
to vary in individual cases even of the same province owing
to the eccentricities of development.”
Courts have taken judicial notice of this fact and have
always held that the evidence afforded by radiological
examination is no doubt a useful guiding factor for
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determining the age of a person but the evidence is not of a
conclusive and incontrovertible nature and it is subject to a
margin of error. Medical evidence as to the age of a person
though a very useful guiding factor is not conclusive and
has to be considered along with other circumstances.”
45. Thus, the legal position seems fairly settled and quite apparently,
the attention of the learned Trial Court was not drawn to Division Bench
judgment of this Court as given in State v. Basir Ahmad (supra). We have
no reason to come to any different opinion. Moreover, we have already
taken note of the judgment given by Hon‟ble Supreme Court in Rajak
Mohammad (supra) which leaves no uncertainty in our minds in
answering the Reference in question.
46. As an upshot of our foregoing discussion, the Reference is
answered as under: -
(i) Whether in POCSO cases, the Court is required to consider the
lower side of the age estimation report, or the upper side of the age
estimation report of a victim in cases where the age of the victim is
proved through bone age ossification test?
Ans: In such cases of sexual assault, wherever, the court is called
upon to determine the age of victim based on „bone age ossification
report‟, the upper age given in „reference range‟ be considered as
age of the victim.
(ii) Whether the principle of „margin of error‟ is to be applicable or
not in cases under the POCSO Act where the age of a victim is to be
proved through bone age ossification test.
Ans: Yes. The margin of error of two years is further required to be
applied.
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47. In view of above, learned Additional Sessions Judge shall decide
the case in accordance with the observations made herein above and in
terms of answers to the Reference.
48. Reference stands answered and the present matter stands disposed
of.
49. The Registry of this Court is directed to transmit copy of this order
to the concerned Court and to all the learned Principal District &
Sessions Judges for information and compliance, who shall also bring the
same to the notice of the concerned Courts.
(MANOJ JAIN)
JUDGE
(SURESH KUMAR KAIT)
JUDGE
JULY 02, 2024
st
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