Upper Side Of Age Must Be Considered In POCSO Cases Where Victim's Age Is Estimated Through Bone Ossification Test: Delhi High Court

The Delhi High Court has ruled that in cases under the POCSO Act, the court is required to consider the upper side of the estimated age of the victim where the age of is proved through bone age ossification test.

“In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on "bone age ossification report", the upper age given in "reference range‟ be considered as age of the victim,” a division bench comprising of Justice Suresh Kumar Kait and Justice Manoj Jain observed.

The court further held that the principle of “margin of error” is to be applicable in such cases.

The bench was deciding a reference received from POCSO court. In the case, since there was no school record or birth certificate indicating the date of birth of the victim, bone age ossification test was conducted.

As per the report, the age of the victim was opined to be between 16 to 18 years, noticing the general, physical, dental and radiological characteristics.

While answering the reference, the bench said that in the entire POCSO Act, there is no provision laying down procedure for adjudicating and evaluating the age of such child.

The court agreed with a ruling of a coordinate bench in State v. Basir Ahmad which upheld the factum of consideration of the age on the upper side of ossification report while assessing the age of the prosecutrix and also approved the principle of giving further margin of two years to such upper estimated age.

It further took note of the Supreme Court ruling in Rajak Mohammad v. State of Himachal Pradesh wherein it was held that the age established by a radiological examination might not be precise and sufficient margin of error must be allowed.

“The Registry of this Court is directed to transmit copy of this order to the concerned Court and to all the learned Principal District & Sessions Judges for information and compliance, who shall also bring the same to the notice of the concerned Courts,” the court said.

Title: COURT ON ITS OWN MOTION v. STATE OF NCT OF DELHI

Citation: 2024 LiveLaw (Del) 740

Click here to read order