POCSO Act | Requirement Of Ossification Test Is Unwarranted If Date Of Birth Certificate From School Is Available: Allahabad HC
The Allahabad High Court held that once a date of birth certificate is available from a school, the requirement of an Ossification Test is unwarranted for the determination of the age of a minor victim.
The Victim had married the accused out of her own free will and they were living together as husband and wife. The father of the victim lodged an FIR against the accused. After due investigation, the victim was found to be a minor on the date of the incident. A charge sheet was filed against the accused for offences under Sections 363, 366 and 376 IPC and Sections 5 and 6 Protection of Children from Sexual Offences Act (POCSO Act).
The Court held that the consent of a minor has no consequence for the offences under the POCSO Act as well as Section 375 IPC, irrespective of whether the minor victim had married the accused or not.
A Single Bench of Justice Anish Kumar Gupta observed, “It is crystal clear that the provisions of the Juvenile Justice Act, 2015, can also safely be applied for determination of the age of a victim of crime, specifically the crimes with regard to sexual offences, which are covered under the provisions of the POCSO Act as well as under the Indian Penal Code.”
Advocate Binod Kumar Tripathi represented the applicant, while G.A. Geetam Singh appeared for the opposite party.
The primary question which arose in the case was regarding the determination of the age of the victim and the procedure to do so.
The Court relied on the Supreme Court’s decision in Independent Thought v. Union of India & Anr. (2017) 10 SCC 800, where it was established that “any sexual relations with a girl of less than 18 years of age would amount to rape, by any person, whether he is her husband or otherwise would amount to offence of rape in terms of Exception -2 to Section 375 I.P.C.”
The Court held that the provisions of the Juvenile Justice Act, 2015 can be applied for the determination of the age of a victim of sexual offences as there is no provision in the POCSO Act or under the I.P.C. for determination of the age of the victim.
The Court explained that once the Date of Birth Certificate from the school is available, the Ossification Test is unwarranted. However, if the prosecution fails to prove the school-issued Birth Certificate during the trial, the Ossification Test becomes relevant for determining the victim's age. Since the School Leaving Certificate was presented by the opposite party indicating the victim's date of birth, the age determined by the Ossification Test lost its significance. Therefore, the School Leaving Certificate proved that the victim was a minor on the date of the incident.
Accordingly, the High Court dismissed the application.
Cause Title: Puspendra Singh v. State Of U.P. & Anr. (2024:AHC:16667)
Appearance:
Applicant: Advocate Binod Kumar Tripathi
Opposite Party: G.A. Geetam Singh and Shweta Singh Rana