Upper Side Of Age Estimation Report Has To Be Considered In POCSO Cases Where Victim's Age Is Proved Through Bone Age Ossification Test: Delhi HC

The Delhi High Court has held that in cases under the POCSO Act, when a bone age ossification test is used to determine the victim's age, the court must consider the upper end of the estimated age range.

The Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was deciding on a reference from a POCSO court. The following questions of law were framed to be answered:

(i) 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?

(ii) Whether the principle of "margin of error" is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test?

There was no school record or birth certificate to indicate the victim's date of birth. Therefore, a bone age ossification test was conducted. According to the report, based on general, physical, dental, and radiological characteristics, the victim's age was estimated to be between 16 and 18 years.

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."

Further, the Bench emphasized that the ossification test only gives a broad assessment of the age, and cannot give an exact age. In furtherance, the Court observed that as the age determined by the ossification test is not precise, a two-year margin of error/ flexibility needs to be applied on either side.

Accordingly, the reference was answered.

Cause Title: Court on its own motion vs State of NCT of Delhi (Neutral Citation: 2024: DHC: 4915-DB)

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