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2020 Supreme(Del) 42
IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KUMAR KAIT, J.
Shiv Shankar Mishra - Petitioner
Versus
State & Another - Respondent
Crl.M.C. No. 426 of 2020 & Crl.M.A. No. 1770 of 2020
Decided On : 31-01-2020
For the Petitioner:Dhruv Gupta, Vishal Sharma, Harshil Gupta, Advocates.
For the Respondents: Hirein Sharma, APP, Jai Kishan Sharma, Manager, Bal Vaishali Public School, Jaitpur, Delhi.
In cases of doubt about a child's age, the court has a duty to ascertain the age for a fair trial, and an ossification test can be ordered if there is doubt about the age based on available documents.
Headnote:
Ossification Test - Jurisdiction of Trial Court - POCSO Act, 2012, Section 8 - Juvenile Justice (Care & Protection of Children) Act, 2015, Section 94
Fact of the Case:
The petitioner sought setting aside of the trial court's order rejecting the prayer for conducting an ossification test on the complainant, who alleged molestation by the petitioner. The prosecution claimed the complainant was a minor based on school documents, while the petitioner argued for an ossification test to prove she was a major at the time of the alleged offence.
Finding of the Court:
The court found doubt regarding the complainant's age and directed the trial court to conduct an ossification test for fair trial.
Issues: Dispute over the complainant's age and the necessity of an ossification test to ascertain her age at the time of the alleged offence.
Ratio Decidendi: The court held that in cases of doubt regarding a child's age, it is the duty of the court to ascertain the age for a fair trial, and an ossification test can be ordered if there is doubt about the age based on available documents.
Final Decision: The petition was disposed of, and the trial court was directed to conduct an ossification test of the victim.
JUDGMENT :
1. Vide the present petition, petitioner seeks setting aside of order dated 21.01.2020 passed by learned Additional Sessions Judge (POCSO Act), South-East, Saket District Courts, New Delhi in Sessions Case No. 183/2019 arising out of FIR No. 675/2018 dated 04.11.2018 registered at Police Station – Jaitpur for the offences punishable under Sections 354/354A/506 IPC read with Section 8 of POCSO Act, 2012, whereby the prayer of the petitioner to conduct an Ossification test on the complainant/respondent No.2 was erroneously rejected by the learned trial Court.
2. Learned counsel appearing on behalf of petitioner submits that impugned order is erroneous and contrary to the record and is against the settled cannons of law. Vide the impugned order dated 21.01.2020, Id. Trial Court erroneously believed and relied upon age related documents of the complainant purportedly obtained from a private school which show her to be minor on the date of alleged offence, however, as a matter of fact, the complainant was a major, hence, in order to test the jurisdiction of the learned trial Court and the veracity of case of prosecution, an ossification test is warranted in the facts and circumstances of the present case coupled with the fact that even invocation of the provisions of the POCSO Act could be tested accordingly. However, the Id. trial arbitrarily rejected the same.
3. Learned APP appearing on behalf of the State submits that as per the case of the prosecution, on 04.11.2018, a written complaint was given by the complainant/ respondent no.2 herein alleging that the petitioner, who happens to be a close friend of her father, allegedly molested her at an unknown place in the month of January, 2017 and thereafter, again, molested her at her house in the month of June, 2017. Upon the said complaint, an FIR bearing No. 675/2018 dated 04.11.2018 was registered against petitioner under the provisions mentioned above.
4. On 04.11.2018, the petitioner was arrested by the investigating authorities in the aforesaid FIR but was subsequently admitted on regular bail on 30.11.2018. He further submits that there is a school certificate, where her date of birth is recorded 06.12.2000. If proof of date of birth is available, there is no requirement of Ossification test. The exercise being done by petitioner is just to delay the trial. The investigating authorities filed a charge sheet in the aforesaid FIR under Sections 354A/354B/506 IPC and section 8 of POCSO Act, 2012, and cognizance was taken by the concerned Court. The investigating authorities also filed some age related documents pertaining to complainant collected from her school, namely, New Bal Vaishali Public School, Delhi, claiming her date of birth as 06.12.2000 and that of her real younger brother as 19.12.2001. Thus, the complainant was 17 years and 11 months old on the date of incident.
5. On 22.10.2019, the matter was listed for arguments at the stage of charge before the Ld. trial Court. It was submitted on behalf of petitioner that facts of the case warrant that an Ossification test be conducted on the complainant as her purported date of birth i.e. 06.12.2000 is false and her true date of birth was 06.02.1998, thus, complainant was major on the date of alleged offence in the month of January, 2017.
6. The petitioner also filed some documents before the trial Court which were the print outs of the Facebook page of the brother and father of the complainant, which were available in public domain, which clearly showed that the date of birth of the complainant and her brother was 6th February and 19th August, respectively, as against their claim of 6th December and 19th December, respectively. The petitioner also filed an application dated 10.01.2020 under Section 91 Cr.P.C. for directions to the prosecution/investigating authorities to file on record and also to supply to the petitioner, the Call Detail Records of mobile no. 9871471791 used by the complainant for the period from Jan
