POCSO Act | Bone Ossification Test Vital Only When Victim On Cusp Of Majority, Bombay HC Accepts Victim A Minor Based On Father's Evidence

The Bombay High Court recently held that bone ossification test to determine the age of victim in a case under the Protection of Children from Sexual Offences Act, 2012 is required only when the victim is on the cusp of majority.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad dismissed a man’s appeal against conviction and life sentence for raping a 14-year-old child and observed that her age was proved from her father’s testimony.

“There was no ossification test conducted in this case, however, this question would come when the girl is on the border line. When there is still margin of four years, it cannot be said that the girl was not a “child” as defined under Section 2(d) of the POCSO Act. The father of the victim who has the knowledge of the date of birth of the daughter, his testimony would be also important in that respect and, therefore, in this case the prosecution had proved that the victim was a child.”

The court referred to P. Yuvaprakash v. State (2023) in which the Apex Court held that section 94 of the Juvenile Justice Act has to be followed in case of dispute over age of the victim. If birth certificate issued by the school or the municipal authority/panchayat is not available, ossification test may be done to determine the age, as per section 94.

The girl’s school headmaster testified that when she joined the school in the 5th standard, her school leaving certificate from her previous school was submitted. The date of birth in the school records, recorded based on this certificate, indicates she was a minor during the incident, he said. The defence emphasized that the school authorities had not directly examined the girl's birth certificate when admitting her.

However, despite there being no birth certificate issued by the school or the municipal authority and without an ossification test, the court considered the girl a minor of the date of the incident based on her father’s testimony.

The prosecution’s case

The incident occurred on August 23, 2015, when the girl went to Wanjartanda for a religious ceremony at her relative's house. At approximately 8:00 am the appellant Sunil Sable, who had been staying with his maternal aunt nearby, allegedly accosted her, sexually assaulted her, and threatened her with harm if she disclosed the incident.

The girl eventually confided in her family after they noticed injuries on her body. Her father lodged a complaint, leading to the registration of an FIR. The Special Judge under the POCSO Act, convicted Sable under sections 376 (1)(2)(i) (rape), 341 (wrongful restraint), and 506 (criminal intimidation) of the IPC and section 4 (punishment for penetrative sexual assault) of the POCSO Act. Thus, he filed the present appeal.

Arguments

Advocate Pradeep K Palve for the appellant argued that there was unexplained delay between the alleged incident on August 23, 2015, and the filing of the FIR on August 24, 2015. He questioned the identification of the accused, emphasizing that in her initial statement under Section 164 of the CrPC, the victim had described her attacker as an unknown person from a different village. Further, no Test Identification Parade was conducted, he said.

Court’s ruling

The court found no grounds to doubt the girl's testimony regarding identification of the accused. It highlighted that the incident occurred in broad daylight, giving her ample opportunity to recognize the accused. The court also opined that the failure to conduct a Test Identification Parade did not render her identification unreliable.

A witness might not know the name of the accused, but identity can be established through details like a description or association with someone the witness knows or a place of residence, the court said.

“No doubt, in her statement under Section 164 of the Code of Criminal Procedure, she has not stated the name of the accused, but at that time, the accused was not before the girl and, therefore, the identification is important, rather than the name”, said the court.

The court attributed some discrepancies between the girl’s statement to the police and her testimony before the court to her initial reluctance to speak about the incident due to shame.

“It is rather the failure on the part of the investigating officer to get the proper statement of such victim. In such cases, the investigating officer should make the girls comfortable and then try to take the statements”, the court stated.

The court said that there was delay no delay in filing the FIR out the incident as the girl was initially frightened and could be made comfortable only after the arrival of her mother.

The court also considered medical evidence, where the victim was examined by a doctor who confirmed injuries consistent with sexual assault. Further, the girl's evidence in this case is consistent and there is no apparent motive to falsely implicate the accused, the court said.

Thus, the court affirmed the trial court's decision and dismissed the appeal.

Case no. – Criminal Appeal No. 718 of 2016

Case Title – Sunil s/o Fattesing Sable v. State of Maharashtra