The court emphasized the importance of following the procedures outlined in Section 94(2) of the Juvenile Justice Act, 2015, and Section 34(2) of the POCSO Act for determining the age of a victim in a trial under the POCSO Act.

JAY SENGUPTA, J.

1. This is an application challenging an order dated 09.02.2018 passed by the Learned Judge, Special Court (POCSO Act), Basirhat, North 24 Parganas in Case No. Spl. (POCSO) 27 of 2017 under Sections 306, 354, 417 of the Penal Code and Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act, for short), thereby, inter alia, holding the victim girl to be a minor at the date of occurrence.

2. In the course of the above referred proceedings, the accused/petitioner filed a petition dated 28.08.2017 praying for ascertaining the date of birth of the victim girl, presumably for testing the applicability of the POCSO Act on the present facts. It was contended by the petitioner that the victim was born at the Basirhat General Hospital on 09.09.1998 and the said was recorded in the Municipal Birth Register, but as per school admit card, her date of birth was 08.03.1999.

3. On the question of date of birth and age of the victim girl, evidence was led. The Prodhan of the Champapukur from Panchayat, as PW 1, deposed that as per their Register of Births and Deaths, the date of birth of the victim girl was recorded as 08.03.1999. In his cross, he stated that the said date was registered on 17.02.2004 and admitted that there was some overwriting on the ‘month’ portion. DW 1, the Officer-in-Charge of Basirhat Municipality Register of Births and Deaths proved an entry of the birth of a female child to the parents with the same names as those of the victim on 09.09.1998. In the cross-examination, he admitted that the initial put against the relevant entry was not recognised by him. He also admitted that Champapukur fell outside the jurisdiction of Basirhat Municipality.

4. On 09.02.2018, the Learned Trial Court recorded that there was no overwriting on the year of the date as contained in the document of the Panchayat. The Learned Judge went on to rely on Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act of 2015 for short) which provides as under-

“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 there of;

(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.”

The Learned Judge finally held that according to the statute, when birth date was available from the School Registration Certificate under the West Bengal Board of Secondary Education as well as from its Admit Card, where the birth date is given as 08.03.1999, one cannot travel beyond the same. In fact, this date was also corroborated by a school certificate.

5. The Learned Advocate appearing on behalf of the petitioner submitted that the charge under the POCSO Act was added only after submission of charge-sheet. He submitted that when there were two birth dates given in two different documents, the benefit of doubt should go in favour of the accused. The Learned Advocate relied on the paragraphs 23 and 72 of the decision passed by the Hon’ble Supreme Court in Ms Eera vs. State, (2018) 2 Crimes(SC) 99 in support of his contention that medical examination of the victim for determination of age is an absolute imperative in all cases under the POCSO Act.

6. The Learned Advocate appearing on behalf of the State vehemently opposed the applicatio