The conviction under the POCSO Act was overturned due to lack of corroborative evidence and DNA results disproving paternity, emphasizing the necessity for reliable witness testimony in sexual crime cases.

Judgment :

M. Zothankhuma, J.

1. Heard Mr. P.K. Munir, learned counsel for the appellant and Mr. R. R. Kaushik, learned Additional Public Prosecutor, Assam for the State. Mr. K. P. Pathak, learned counsel appears for the respondent No. 2.

2. This is an appeal against the judgment dated 26.09.2023 passed by the learned Special Judge, POCSO at Golaghat in Special POCSO Case No.25/2022, arising out of Golaghat P.S. Case No.69/2022, by which the appellant had been convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for life with a fine of Rs.50,000/-, in default, to undergo rigorous imprisonment for 3 (three) months.

3. The case against the appellant is that he had raped the victim girl who was an alleged minor, due to which the appellant has been convicted under Section 6 of the POCSO Act, 2012. The ossification test that had been conducted on the victim shows that she was between 16 and 18 years during the time the incident of rape had occurred. Keeping in view the decision of the Supreme Court in the case of Ram Suresh Singh vs. Prabhat Singh @ Chhotu & Another, reported in (2009) 6 SCC 681 and Jyoti Prakash Rai @ Jyoti Prakash vs. State of Bihar , reported in (2008) 15 SCC 223 , the age determined by an ossification test not being a precise one and therefore a 2 year margin of error may be applied on either side of the age of the victim.

4. In the case of State of Uttar Pradesh vs. Chhoteylal , reported in (2011) 2 SCC 550 , the Supreme Court had held that there is no such Rule, much less and absolute one that two years have to be added to the age of the victim, determined by a doctor. This decision had been made on the basis of a Three Judges Bench decision of the Supreme Court in the case of State of Karnataka vs. Bantara Sudhakara @ Sudha & Anr, reported in (2008) 11 SCC 38, wherein it has been stated at para 12 as follows:-

"12. .................. Additionally, merely because the doctor's evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years' age has to be added to the upper age-limit is without any foundation."

5. The above being said, in the case of Rajak Mohammad vs. State of Himachal Pradesh , reported in (2018) 9 SCC 248 , the Supreme Court has held that while it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt would naturally go in favour of the accused.

6. Though the above judgments are in relation to giving the benefit of ± 1 or 2 years to an accused on whom an ossification test had been conducted. One issue that arises is whether to determine the age of the accused, the above said principle of ± 2 years margin of error can be applied on an ossification test conducted on a victim. Though it is settled law that in the event of there being 2 views, one in favour of the accused and one in favour of the State, we should lean in favour of the accus