Delhi High Court: A reference was made under Section 395(2) of Criminal Procedure Code (CrPC) from the court of Additional Sessions Judge (SC-POCSO), South District, Saket Courts, New Delhi seeking decision on 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 and 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. A division bench of Suresh Kumar Kait and Manoj Jain, JJ., answered that 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 and for the second question it was answered in the affirmative stating that the margin of error of two years is further required to be applied.
The petition was filed following a trial where the accused, charged with sexual assault, was acquitted. The Trial Court observed that the age of the prosecutrix was between 17 to 19 years according to the bone age ossification test, leading to inconclusive evidence regarding her being a minor at the time of the alleged offense. Consequently, the accused received the benefit of doubt and was acquitted. This decision prompted the filing of the petition to address the legal questions regarding age determination in POCSO cases.
The Court examined judgments from Single Benches and Division Benches of the Delhi High Court and the Supreme Court, emphasizing the principle of granting the benefit of doubt to the accused. In State v. Basir Ahmad, 2023 SCC OnLine Del 5852, the Court upheld considering the upper side of the ossification report while assessing the age of the prosecutrix and approved giving a further margin of two years to the upper estimated age. In Rajak Mohammad v. State of Himachal Pradesh, (2018) 9 SCC 248, the Supreme Court allowed the appeal of a convict by observing that the age determined by a radiological examination might not be precise, necessitating a margin of error and considering the upper estimated age. In State v. Mohd. Shakir, 2019 SCC OnLine Del 7262, the Division Bench of the Delhi High Court reiterated that the benefit of doubt should go to the accused, considering the upper limit of the age bracket given by the ossification test. Similarly, in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223, the Supreme Court observed that the age determined by ossification tests is not precise, thus a two-year margin of error should be applied.
The Court noted that the ossification test evaluates bone age based on the degree of bone fusion, which provides only a broad assessment of age. Ossification tests do not yield precise conclusions, especially beyond the age of 30 years. The Court referenced medical jurisprudence, highlighting the variability in age determination through radiological examinations. Thus, emphasizing the principle of ‘margin of error’, the Court highlighted the necessity of considering the upper age limit provided by ossification tests and applying an additional margin of error to ensure the benefit of doubt is extended to the accused.
The Court also provided clear answers to the reference questions 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.”
Thus, the Court directed that the observations and answers provided should guide the Additional Sessions Judge in deciding the case. Additionally, the Registry was instructed to transmit copies of the order to the courts concerned and Principal District & Sessions Judges for information and compliance.
[Court on its own motion v. State NCT of Delhi, 2024 SCC OnLine Del 4484, decided on 02-07-2024]
Advocates who appeared in this case :
For the Respondent State: Mr. Tarang Srivastava, learned APP for State with SI Anju
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