Ossification Test Is Not Conclusive And Leaves Margin Of Error Of Two Years On Either Side: Gauhati HC Acquits POCSO Accused

Finding from the evidence on record that there is no documents like birth certificate or school certificate to prove the age of the victim, and the prosecution has proved her age through radiological report which recorded the age of the victim to be 16 to 17 years, the Gauhati High Court ruled that the provisions of the POCSO Act cannot be invoked and consensual relationship would not constitute the offence of rape within the meaning of Section 375 of the IPC, in the absence of evidence to prove that the victim was below 18 years of age.

A Single Judge Bench of Justice Malasri Nandi observed that “It is well settled that ossification test or other medical test though is a guiding factor for determining the age but it is not conclusive or incontrovertible and leaves a margin of error of two years on either side. It is also a settled position that the benefit of doubt regarding the age of the victim always goes in favour of the accused”.

Since in the present case, the radiologist has assessed the age of the victim 16 to 17 years, therefore, considering the margin of error in age even as one year, the Bench stated that the victim would be 18 years of age and would not be a child within the meaning of Section 2(d) of the POCSO Act.

Amicus Curiae Z Hussain appeared for the Petitioner, whereas Add. Public Prosecutor S.H Bora appeared for the Respondent.

The brief facts of the case were that the informant lodged an FIR in 2017 stating that after passing away of her parents in her childhood, she grew up in the house of her grandfather. When she was about 13 years old, the appellant on the pretext of marrying her, developed a love affair and impregnated her after having sexual intercourse on multiple occasions. Though the victim requested the appellant repeatedly to take her to his house, he did not pay heed to her request. Subsequently, he eloped with another girl. After completion of investigation and medical examination, a charge-sheet was submitted against the accused/appellant under Section 6 of POCSO Act and the Trial Court convicted the appellant. Hence, the appellant approached the High Court.

After considering the submission, the Bench noted that the evidence of the victim indicates that the relationship was consensual.

The Bench then highlighted that 'Child' within the meaning of Section 2(d) of the POCSO Act means any person below the age of 18 years, and hence, in order to attract the provisions of the POCSO Act, the onus is on the prosecution to prove that the victim was a 'child' within the meaning of section 2(d) of the POCSO Act.

The Bench then observed from a plain reading of section 94 of the Juvenile Justice Act, 2015 that when there is doubt about the age of the person, the age must be determined first on the basis of the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination board and if no such material is available then on the basis of birth certificate given by a corporation or a Municipal Authority or Panchayat and in the absence of such evidence on the basis of ossification test or any other medical age determination test.

“Section 94 does not contain provision regarding benefit of margin of error to be given to the child or juvenile as provided in Rule 12(3)(b) of 2007 Rules, which provided for benefit to the child or juvenile by considering his/her age on lower side within the margin of one year”, added the Bench.

The High Court therefore stated that since the prosecution has not adduced any evidence regarding the victim's physical growth and development and secondary sexual character, such discrepancy leaves room for ample doubt regarding the correct age of the victim, the benefit of which must necessarily go in favour of the appellant.

Accordingly, the High Court quashed the conviction and sentence recorded by the Special Judge against the accused/appellant under Section 6 of POCSO Act.

Cause Title: Shiva Chautal v. State of Assam

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