COURT ON ITS OWN MOTION [Petitioner] Vs. STATE OF NCT OF DELHI [Respondent]
(CRL.REF. 2/2024)
(CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT HON’BLE MR. JUSTICE MANOJ JAIN)
Facts: A Reference under Section 395(2) of the Code of Criminal Procedure, 1973 (in short „Cr.P.C.‟) has been received from the court of learned Additional Sessions Judge (SC-POCSO), South District, Saket Courts, New Delhi.
Issue: Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?
Arguments on behalf of counsel for petitioner:
An argument was raised before the learned Trial Court that the age of the victim should be construed as 20 years on the premise that further margin of error of two years has to be given. In alternate, it was contended by the defence that even if benefit of such margin was not to be given, since the age of the victim, as per the ossification test, was estimated as falling between 16 to 18 years, the upper age, i.e., age of 18 years should be reckoned and, therefore, POCSO Act should be held as not applicable.
Arguments on behalf of counsel for respondent:
Respondent/State has also assisted this Court by Mr. Tarang Srivastava, learned APP who, in all fairness, admits the above situation and states that keeping in mind the fact that benefit of doubt must go to accused at all the stages, the upper age needs to be taken, while also giving further requisite margin of two years. Learned APP has also placed his reliance on a Division Bench judgement of this Court State v. Mohd. Shakir, wherein as per the ossification report the age of the victim had been assessed between 16-18 years.
Held: The court held that, “The ossification test determines age based on the “degree of fusion of bone” by taking the x-ray of a few bones. It evaluates the process of the bone formation based on fusion of joints between birth and generally upto the age of 25-30 years. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for calculation of the bone age is radiography of the hand and wrist until the age of 18 years as the elongation of the bone is complete after adolescence. Beyond that, the medial age of clavicle is used for bone age calculation till the age of 22 years. Of course, age determination using ossification test does not yield accurate and precise conclusions, particularly after the examinee crosses the age of 30 years.”
