Unproved victim age, subject to ossification-test margins, precludes aggravated conviction under Section 4(2) POCSO.

The appellant was prosecuted for allegedly dragging the victim, then stated to be 12 years old, into a paddy field and committing penetrative sexual assault upon her on 18 November 2020.

The incident was reported by the victim’s father, leading to registration of Sipajhar P.S. Case No. 843/2020 under Section 376 IPC read with Section 4 of the POCSO Act.

The Trial Court convicted the appellant under Section 8 read with Section 4(2) of the POCSO Act and sentenced him to 20 years’ rigorous imprisonment with a fine of ₹20,000.

In appeal, the appellant challenged the proof of the victim’s age, the reliability of her testimony in view of alleged mental illness, and the absence of dock identification.

The victim’s birth certificate, although allegedly seized during investigation, was not exhibited, while the radiological examination assessed her age at 12–14 years.

1. Whether the prosecution proved beyond reasonable doubt that the victim was below 16 years of age so as to attract Section 4(2) of the POCSO Act.

2. Whether the alleged unsoundness of mind of the victim rendered her testimony unreliable or required corroboration before conviction.

3. Whether the absence of a formal dock identification by the victim vitiated the conviction.

4. What offence and sentence were legally attracted if the victim was below 18 but her age below 16 was not proved.

The Court applied Sections 4(1) and 4(2) of the POCSO Act, distinguishing the punishment for penetrative sexual assault against a child below 18 years from the aggravated punishment applicable where the child is below 16 years.

Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 was relied upon for age determination, with the Court holding that, where documentary age proof is not proved, an ossification or radiological examination may be considered, but its assessment must receive a margin of error.

Relying on Jaya Mala v. Home Secretary, Government of J&K, (1982) 2 SCC 538, and Rajak Mohammad v. State of Himachal Pradesh, (2018) 9 SCC 248, the Court held that radiological age determination is not exact and a margin of approximately two years on either side must be allowed.

Yuvaprakash v. State of T.N., (2024) 17 SCC 684, was relied upon for the proposition that, in the absence of proved documentary age records, age may be established through ossification testing, subject to the benefit of doubt.

Section 36 of the POCSO Act was also applied regarding the manner in which a child’s evidence may be recorded without direct exposure to the accused, including through video conferencing.

The Court accepted the victim’s account of penetrative sexual assault because it was corroborated by PW-3, who saw the victim and the appellant naked in the field, and by the medical evidence showing a torn hymen and a reddish stretch mark.

The allegation of mental illness was not established: the doctor’s opinion was based only on the history supplied by the guardian, while the other witnesses and the Magistrate who recorded the victim’s Section 164 Cr.P.C. statement found no indication that she was mentally incapable of narrating the incident.

The Court further held that the victim had effectively identified the appellant during her testimony, as the appellant was present through video conferencing and she denied the suggestion that he had not assaulted her.

However, the birth certificate and seizure list were not exhibited, leaving the radiological assessment of 12–14 years as the only reliable age evidence.

Applying the permissible margin of error of two years, the Court held that the prosecution had not proved that the victim was below 16 years; nevertheless, she remained below 18 years, making Section 4(1), rather than Section 4(2), applicable.

The conviction and sentence under Section 4(2) of the POCSO Act were set aside because the prosecution failed to prove that the victim was below 16 years of age.

The appellant was instead convicted under Section 4(1) of the POCSO Act and sentenced to 11 years’ rigorous imprisonment with a fine of ₹20,000, with six months’ rigorous imprisonment in default of payment.

The appeal was accordingly disposed of and the Trial Court Record was directed to be returned.