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2024 Supreme(Online)(DEL) 515

HIGH COURT OF DELHI
MR. JUSTICE SURESH KUMAR KAIT, MR. JUSTICE MANOJ JAIN, JJ
COURT ON ITS OWN MOTION – Appellant
Versus
STATE OF NCT OF DELHI – Respondent


Advocates:
Mr. Tarang Srivastava, learned APP for State with SI Anju

Judgement Key Points

The relevant paras that discuss the two-year margin of error in the context of age estimation from bone ossification tests are as follows:

In the judgment, it is clearly stated that the upper age limit should be considered in cases where age is determined through ossification tests, with a margin of error of two years applicable. The court emphasizes that the bone ossification test provides a reference range rather than a precise age, and the margin of error must be taken into account to ensure fairness and accuracy in legal proceedings (!) .

Furthermore, it is clarified that the principle of applying a two-year margin of error is to be followed, and this margin should be added to the upper limit of the estimated age range to determine the age of the victim in POCSO cases. This approach aligns with the objective of giving the benefit of doubt to the accused while considering the biological variability inherent in ossification tests (!) .

In summary, the paras highlight that in cases where age is assessed via bone ossification testing, the court should consider the upper end of the estimated age range and apply a margin of two years to account for possible inaccuracies, ensuring that the benefit of doubt is provided to the accused.


JUDGEMENT

MANOJ JAIN, J

1. A Reference under Section 395 (2) of the Code of Criminal Procedure, 1973 (in short „ Cr.P.C .‟) has been received from the court of learned Additional Sessions Judge (SC-POCSO), South District, Saket Courts, New Delhi seeking decision on the following questions of law:-

    “(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? (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.”.

2. Before venturing to answer the Reference, it would be useful to, briefly, refer to comprehend the factual matrix of the case1 pending before the said referral court. It was only while dealing with the above case that the learned ASJ was, apparently, caught in a dilemma, compelling him to send the Reference in question.

3. In said case, the accused is facing trial for commission of offences under Section 376/506 IPC and for offence under Section 4 of Protection of

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