In POCSO cases, the upper limit of age estimation from a bone age ossification test should be considered, with a two-year margin of error applicable.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 395(2) - Protection of Children from Sexual Offences Act, 2012 - Section 4 - Juvenile Justice (Care and Protection of Children) Act, 2015 - Section 94 - Reference regarding age determination in POCSO cases - Court held that in cases where age is determined by bone age ossification test, the upper limit of the age estimation should be considered, with a margin of error of two years applicable. (Paras 46, 47)

(B) Legal Principles - The court emphasized that the benefit of doubt must go to the accused, and the age of the victim should be determined in a manner that does not prejudice the accused. (Paras 23, 24)

Facts of the case:
The reference arose from a trial concerning sexual offences where the victim's age was estimated between 16 to 18 years based on a bone age ossification test, with conflicting opinions on whether to consider the lower or upper age limit. (Paras 4, 5)

Findings of Court:
The court concluded that the upper age limit should be considered for victims in POCSO cases, applying a margin of error of two years. (Paras 46, 47)

Issues: The main issues were whether to consider the lower or upper side of the age estimation report and the applicability of the margin of error in POCSO cases. (Paras 1, 2)

Ratio Decidendi: The court ruled that the upper age limit should be taken into account in cases of sexual assault, ensuring that the benefit of doubt is given to the accused. (Paras 46, 47)

Result: Reference answered in favor of considering the upper age limit.

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 Children from Sexual Offences Act, 2012 (in short “POCSO Act”).

4. Since there was no school record or birth certificate indicating the date of birth of the “victim”, bone age ossification test was got conducted. As per such report (Ex.PW8/B), the age of the victim has been opined to be between „16 to 18 years‟, noticing the general, physical, dental and radiological characteristics.

5. An argument was raised before the learned Trial Court that the age of the victim should be construed as 20 years on the premise that further margin of error of two years has to be given. In alternate, it was contended by the defence that even if benefit of such margin was not to be given, since the age of the victim, as per the ossification test, was estimated as falling between 16 to 18 years, the upper age, i.e., age of 18 1 SC No.147/2018 titled „State vs. Bunty Singh‟ in FIR No.463/2017, PS Hauz Khas. years should be reckoned and, therefore, POCSO Act should be held as „not applicable‟. Defence relied upon Shweta Gulati & Anr. vs. The State Govt. of NCT of Delhi2 whereas the prosecution relied upon Raju Yadav vs. State of NCT of Delhi 3. Noticing the conflicting opinions in the aforesaid two cases, i.e., Shweta Gulati (supra) and Raju Yadav (supra), the aforesaid questions have been posed to us.

6. Thus, the present reference stems from the two divergent judicial opinions of this Court and we have to answer about the manner of calculation of age while considering „bone age ossification report‟ of any child-victim of sexual assault.

7. We have carefully gone through the provisions of POCSO Act as well as Juvenile Justice (Care and Protection of Children) Act, 2015 (in short “JJ Act”).

8. POCSO Act came into force on 14.11.2012. Undoubtedly, POCSO Act seems to be a complete code in itself which deals with the sexual offences targeted against children. The necessity of bringing POCSO Act was felt because the existing laws were not adequately addressing sexual offences against the children and, therefore, it was proposed to enact a self-contained comprehensive legislation, inter alia, to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-being of the child at every stage of the judicial process, 2 2018 SCC OnLine Del 10448 3 2023 SCC OnLine Del 2782 incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provisions for establishment of „Special Courts‟ for speedy trial of such offences.

9. As per Section 2(d), a child means any person below the age of 18 years. Thus, if at the relevant time, i.e., at the time of the commission of the offence, the victim is found to be a person below the age of 18 ye

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2024 Supreme(Online)(DEL) 515

HIGH COURT OF DELHISuresh Kumar Kait, Manoj Jain, JJCOURT ON ITS OWN MOTION – AppellantVersusSTATE OF NCT OF DELHI – RespondentCRL.REF.-2/2024

In POCSO cases, the upper limit of age estimation from a bone age ossification test should be considered, with a two-year margin of error applicable.

HIGH COURT OF DELHI
Suresh Kumar Kait, Manoj Jain, JJ
COURT ON ITS OWN MOTION – Appellant
Versus
STATE OF NCT OF DELHI – Respondent
CRL.REF.-2/2024