Court Should Incline Towards Considering Lower Side On Margin Of Error When Bone Ossification Test Opines Child Victim’s Age Between 15-17 Yrs: Delhi HC

The Delhi High Court has observed that where the bone ossification test for determining age of a child victim under the POCSO Act opines the age between 15 to 17 years, the court should incline towards considering the lower side on the margin of error.

Observing that such an approach would be in consonance with the objectives of POCSO Act, Justice Jasmeet Singh observed:

“…the Supreme Court in Jarnail Singh case has only leaned towards the benefit of the lower age side to both the child in conflict with law and the minor victim under the POCSO Act. Hence, I am of the view that for determining the age of a child victim under the POCSO Act, where the bone ossification opines her age between 15-17 years, the inclination of the Court should be towards considering the lower side on the margin of error.”

The court said that it cannot be the intention of POCSO Act to treat a victim, who is a borderline minor, as a major in case the minor does not have a birth certificate or school certificate and has undergone a bone ossification test.

“Such an interpretation would not be in furtherance of POCSO Act but rather in contradiction and derogation to the objective and purpose of POCSO Act,” the court said.

Justice Singh made the observations while dismissing the appeal moved by a man and a woman in a minor rape case. On January 31, 2020, the trial court found the man guilty of committing aggravated penetrative sexual assault on the minor aged about 13 years under section 6 of POCSO Act. The woman was found guilty of abetting and aiding the offence committed by the man under section 16 of POCSO Act.

The duo was sentenced to undergo rigorous imprisonment for a period of 10 years along with fine of Rs.10,000.

It was the prosecution’s case that in 2013, the woman who was the maternal aunt of the minor victim, took the prosecutrix to her place of employment wherein the man, who was working as house guard, committed rape when the minor was sleeping. It was alleged that the woman bolted the room from inside when the offence of rape was being committed.

The counsel appearing for the man submitted that the provisions of POCSO Act could not be attracted in the case as the age of the prosecutrix was not established to be under 18 years.

It was contended that the age of the prosecutrix as provided in the medical examination report was ascertained to be between 15-17 years and thus, keeping in view the range of the test, the age could have been in the range of 13-19 years at the time of the incident.

It was further submitted that the bone ossification test relied upon by the prosecution was merely a photocopy of medical test which was conducted in another FIR and not the one in question.

Upholding the conviction and sentence, Justice Singh said that once there was a bone ossification test already on the court record, even though in another case, which was not disputed by the appellants as well as the amicus curiae, the prosecutrix could not be required to undergo another bone ossification test.

The court said that permitting such test to be conducted again would amount to re-victimization and undergoing the trauma once again by the child survivor.

“Moreover, considering the entire evidence on record, namely the statement of the prosecutrix, the MLC confirming her hymen tear, the FSL report concluding the presence of semen on the underwear of the prosecutrix which matches with that of the appellant No.1, I am also of the view that mere absence of injuries on the vital parts/organs of the prosecutrix is not enough to refute the otherwise strong factual matrix of the case establishing the offences under Section 6 and 16 of the POCSO Act,” the court said.

The court observed that the testimony of the prosecutrix was of sterling quality and that there was no reason to discredit or disbelief her statement.

“The appellants have not been able to rebut the presumption of guilt which operates against them under section 29 of POCSO Act. The prosecution has successfully proved the guilt of the appellants in committing the offence beyond a reasonable doubt,” the court said.

Title: RAJU YADAV v. STATE OF NCT OF DELHI and other connected matter

Citation: 2023 LiveLaw (Del) 407

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