$~33 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 27^th September, 2024 + CRL.M.C. 2791/2022 & CRL.M.A. 28235/2023 SAHNE ALAM @ SAHIL CAUDHARY .....Petitioner Through: Mr. Sony & Mr. Krishan Parashar, Advs.

versus STATE OF NCT OF DELHI & ANR. .....Respondents Through: Mr.Naresh Kumar Chahar, APP for the State SI Partap Singh, PS-

Mohan Garden CORAM:

HON'BLE MR. JUSTICE AMIT MAHAJAN AMIT MAHAJAN, J.

1. The present petition is filed challenging the orders dated 06.12.2021 and 11.03.2022 passed by the learned Additional Sessions Judge (‘ASJ’), POCSO Court, Dwarka Courts, New Delhi, in FIR No. 611/2021 dated 28.10.2021 registered at Police Station Mohan Garden for offences under Sections 328/376 of the Indian Penal Code, 1860 (IPC) and Sections 4/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

2. By the impugned order dated 06.12.2021, the learned ASJ disregarded the petitioner’s recorded date of birth as mentioned in the school he was attending and directed a bone-age Signature Not Verified CRL.M.C. 2791/2022 Page 1 of 10 Signed By:HARMINDER ossification test to determine his age. Subsequently, by the order dated 11.03.2022, the learned ASJ dismissed the petitioner’s application to be declared a juvenile.

3. Briefly stated, the FIR was registered on the basis of the complaint filed by the complainant, a minor at the time of the incident, wherein she alleged that she got acquainted with the petitioner through a common contact at a dance academy. On the alleged date of the incident, the petitioner invited her to a meeting, during which he offered her a drink alleged to be spiked, and then committed sexual assault upon her.

4. The petitioner claimed to be aged 17 years at the time of the alleged incident. The learned Trial Court, while dismissing the application filed by the petitioner seeking the benefit of juvenility, observed as under :

“14. Though in JJ Act, 2015 under Section 94, there is no mention of any margin to be given on the approximate age determination of the accused by way of bone ossification test, nonetheless, in view of the above dictum of the Supreme Court and Delhi High Court, it is clear that radiological examination being an accurate determination, sufficient margin on either side has to be allowed and the benefit should go in favour of the accused. Thus, on the touchstone of this principle, in the instant case, even if the margin of two years is accorded to the accused on the date of the alleged offence i.e. 28.10.2021, he is found to be around 19 years of age and is to be treated as an adult.”

5. The learned counsel for the petitioner contends that at the time of the incident, the petitioner was a minor and therefore ought to have been tried as a juvenile. The petitioner relies on his school records, which indicate that his date of birth is Signature Not Verified CRL.M.C. 2791/2022 Page 2 of 10 Signed By:HARMINDER

10.07.2004, thereby making him less than 18 years old at the time of the alleged offence. The petitioner also challenges the ossification test that was conducted, arguing that the margin of error should be considered in his favor.

6. He argues that the benefit of doubt, when determining age in such matters, should go in favor of the accused, especially when the ossification test can have a margin of error of two years.

7. He submits that in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’), the recourse to ossification test could have only been taken in the absence of a school certificate.

8. He submits that, in the present case, the school certificate of the petitioner clearly indicated that the date of birth of the petitioner was 10.07.2004 and, therefore, at the time of incident, he was a minor.

9. Per Contra, the learned Additional Public Prosecutor for the State opposes the present petition. He submits that the learned ASJ had adequately applied its mind to the proposition of law and the precedents adduced by the pet