The court upheld the principle that the margin of error in age determination affects the applicability of charges under the POCSO Act, ultimately favoring the accused due to inconclusive age evidence.

JUDGMENT

Swarana Kanta Sharma, J.

1. The present criminal revision petition under Section 397 read with Section 401(5) of the Code of Criminal Procedure, 1973 has been filed against the impugned order dated 06.03.2018 passed by learned Additional Sessions Judge, Special Court (POCSO), North East District, Karkardooma Courts, Delhi, whereby the learned Trial Court discharged the accused for the offences punishable under Section 06 of The Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") in case FIR no. 58/2017 registered at Police Station Karawal Nagar, New Delhi for offences punishable under Sections 376/506 IPC & Section 6 POCSO Act.

2. The brief facts of the present case are that the victim, a minor girl, aged about 14 years, lodged a complaint with the police alleging that for past four months, she had been residing with her grandmother and paternal uncle's son namely Sonu in a rented house. Her parents had died in her childhood and she stays home. It is alleged that one Jabbar uncle (accused), aged about 50 years was residing near her house and had been teasing her since December 2016. It is further alleged that one day, Jabbar gave her Rs. 50/- and asked her to eat cheej and took her to third pulia in an isolated place and gagged her mouth with a piece of cloth and did wrong acts with her. Thereafter, accused threatened her that if she disclosed the incident to anyone, he will kill her and due to fear, she did not tell anyone about the incident. She further alleged that on 30.01.2017, at around 6.00pm, accused met on her way to Sombazar, threatened her and took her to a secluded place where he again raped her and upon raising alarm, he threatened to kill her brother and grandmother. She further alleged that on 13.02.2017, in the afternoon accused again caught hold of her hand and tried to take her with him but she resisted and ran away and came home. She narrated the entire incident to her grandmother, who informed her cousin Sonu. Thereafter, cousin of victim informed the police.

3. Subsequently, on the basis of the statement of the prosecutrix, MLC and counseling report, FIR No.58/2017 under section 376/506 IRC and 6 of POCSO Act was registered and investigation was initiated. The statement of prosecutrix u/s 164 Cr.P.C was recorded on 14.02.2017 and she was taken for Ossification test at GTB Hospital to ascertain proof of her age. On 27.02.2017, accused surrendered in Court and thereafter, accused was medically examined and statement of the accused was recorded. After perusing documents on record and evidence collected, Ld. Sessions Court discharged accused under section 6 of POCSO Act and framed charges only under section 376/ 506 IPC against the accused.

4. Learned APP for the State has argued that the age of the victim was determined on the basis of ossification test which opined that the age of the victim is between 16 to 18 years. He, therefore, states that benefit which was given by the concerned court for assessment of age of the prosecutrix of two years margin of error on the higher side was erroneous. It is therefore, stated that the discharge under POCSO Act is not sustainable in law.

5. Learned APP for the State has contended that the benefit of margin of error of two years could not have been granted in this case and in case the same is not granted, the victim will fall under category of `child' and charge under POCSO Act will be made out.

6. Section 6 of the POCSO Act reads as under:

"6. Punishment for aggravated penetrative sexual assault (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to im