The Delhi High Court has ruled that in cases under the Protection of Children from Sexual Offences (POCSO) Act where the age of the victim is determined through bone ossification tests, courts should consider the upper side of the estimated age range. This significant judgment was delivered by a Division Bench comprising Justice Suresh Kumar Kait and Justice Manoj Jain in Criminal Reference No. 2/2024.
Background:
The reference arose from a case (SC No.147/2018) pending before the Additional Sessions Judge (SC-POCSO), South District, Saket Courts, New Delhi. In this case, the accused was facing trial for offenses under Sections 376/506 of the Indian Penal Code and Section 4 of the POCSO Act. The bone ossification test of the victim estimated her age to be between 16 to 18 years.
Key Legal Issues:
1. Whether courts should consider the lower or upper side of the age estimation report in POCSO cases where the victim’s age is determined through bone ossification tests.
2. Whether the principle of ‘margin of error’ is applicable in such cases.
Court’s Decision:
The High Court answered both questions, providing clarity on these crucial aspects:
1. Age Consideration: The court held that “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.”
2. Margin of Error: The court affirmed that “The margin of error of two years is further required to be applied.”
Important Observations:
Justice Manoj Jain, delivering the judgment, emphasized the importance of giving the benefit of doubt to the accused. The court noted:
“We cannot be oblivious of the fact that we are following adversarial system of law where the presumption of innocence is indispensible philosophy. Though in any criminal trial, the endeavour is to reach the truth, in adversarial system, the judge generally acts like an umpire who watches whether the prosecution has been able to prove the case beyond reasonable doubt or not.”
The court also referred to previous judgments, including the Supreme Court’s decision in Rajak Mohammad v. State of Himachal Pradesh, which held that “the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed.”
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Mr. Tarang Srivastava, the Additional Public Prosecutor for the State, fairly admitted that keeping in mind the fact that benefit of doubt must go to the accused at all stages, the upper age needs to be taken, while also giving further requisite margin of two years.
The High Court has directed that this order be transmitted to all Principal District & Sessions Judges for information and compliance, ensuring widespread implementation of this important ruling in POCSO cases across Delhi.
