Delhi High Court: In an appeal filed by the appellant (‘accused’) under Section 415 of the Bharatiya Nagrik Suraksha Sanhita, 2023 assailing the judgment of conviction and order on sentence, whereby the appellant was convicted in a FIR registered under Sections 376 of the Penal Code, 1860 and Section 6 Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), Amit Sharma, J., stated that when as per the prosecution’s case, the survivor’s age was approximately 17 years at the time of the incident, therefore in absence of any documentary proof of the date of birth, the ossification test as per Section 94(2)(iii) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’) ought to have been conducted.
The Court stated that the prosecution had failed to discharge its obligation to prove that the survivor was a child as per Section 2(1)(d) of the POCSO Act. Further, the survivor had clearly stated that relationship was consensual in nature, and she had also repeatedly stated that the relationship had started at her instance. Thus, the Court set aside the judgment of conviction dated 4-6-2024 and order on sentence dated 3-10-2024 and accordingly acquitted the accused.
Background
On 30-5-2017, an information was received regarding the survivor aged about 17 years of being admitted in BSA Hospital. The survivor had given birth to a child and was unmarried at that time. On receiving the said information IO reached the hospital and collected the Medico-legal case of the survivor wherein it was stated that the survivor’s cousin aged about 30 years had forcefully established physical relations with her. The doctor then handed over certain samples of the newborn child and the survivor to the IO.
Thereafter the survivor’s statement was recorded wherein she alleged that about 10 months prior to the registration of the present FIR, her distant relative i.e. the accused came to her family’s house and started residing there. It was further alleged that one day when there was no family member at the house, the accused forcefully established physical relations with her and thereafter, threatened her not to disclose the said incident to anyone. It was further stated that she did not tell anyone regarding the aforesaid incident due to the threat made by the accused. Thereafter, on 30-5-2017 she experienced abdominal pain due to which her mother took her to the hospital, and she was informed regarding her pregnancy and gave birth to a child.
After hearing final arguments on behalf of the parties, the impugned judgment of conviction and order on sentence was passed. The accused submitted that the survivor in her initial statement alleged that the accused had forcefully established physical relations with her but in her deposition before the Trial Court, she categorically denied. The accused also pointed out that on the date of the incident the age of the survivor was 19 ½ years and the same was confirmed by the survivor during her examination before the Trial Court.
The issue before the Court was whether the survivor was less than 18 years of age. The case of the prosecution was that the date of birth of the survivor as per the school records was 3-8-1999 bringing her age on the date of the incident to around 17 years.
Analysis, Law, and Decision on importance of Ossification Test
The Court stated that whenever a dispute regarding the age of a person arises in context of her/him being a minor, the Court should take recourse to the steps indicated under Section 94(2) of JJ Act. The three primary documents which would require consideration for the Court would be the following documents:
- Date of birth certificate issued by school or matriculation or equivalent certificate;
- If the aforesaid document is not available, then date of birth could be decided as per birth certificate issued by corporation or municipal authority or a panchayat;
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However, if that is also not available, then the age could be determined based on the ossification test or any other latest medical age determination test.
The Court stated that the only document which was produced on record was a school admission register, which were not based on any proof of birth document issued by any Corporation or a Municipal Authority or a Panchayat. Thus, in absence of the same and in view of the stand taken by the survivor in her statement under Section 164 of the Criminal Procedure Code, 1973 (‘CrPC’), where she stated that the date of birth given to the school was wrong as she was born on Holi in March 1998, it was incumbent upon the prosecution to establish that her age was less than 18 years by conducting ossification test or any other latest medical age determination test.
The Court stated that in the peculiar circumstances of this case, when as per the prosecution’s case, the survivor’s age was approximately 17 years at the time of the incident, therefore in absence of any documentary proof of the date of birth, the ossification test as per Section 94(2)(iii) of the JJ Act ought to have been conducted. In the present case, despite the clear statement given by the survivor that the relationship between the accused and herself was consensual in nature, he was convicted under the POCSO, only because on the date of incident she was less than 18 years of age.
The Court further noted the survivor’s statement under Section 164 of CrPC, wherein she categorically stated that the accused was reluctant however, she insisted. Thus, there was no inducement on part of the accused. Moreover, even as per the case of the prosecution, age of the survivor was around 17 years and, in these circumstances, not proving the case beyond reasonable doubt as mandated under Section 94 of the JJ Act, the benefit of doubt ought to go to the accused.
The Court stated that the prosecution had failed to discharge its obligation to prove that the survivor was a child as per Section 2(1)(d) of the POCSO Act. Further, the survivor had clearly stated that relationship was consensual in nature, and she had also repeatedly stated that the relationship had started at her instance.
Thus, the Court set aside the judgment of conviction dated 4-6-2024 and order on sentence dated 3-10-2024 and accordingly acquitted the accused.
[Karan Kumar v. State (NCT of Delhi), CRL.A. 1067 of 2024, decided on 3-6-2025]
Advocates who appeared in this case :
For the Appellant: M.P. Sinha, Yatharth Sinha, Neeraj Kanwar, Hitesh Thakur, Arnav Jain, Govind Pareek, Vikas Kumar, Satyam Mishra, Shwetabh Sharma, Shubham Tyagi, Arjun Singh Didaliya, Ankit Sahu and Kanchan Bharti, Advocates.
For the Respondents: Shubhi Gupta, APP for the State. SI Bharti Singh, P.S. Aman Vihar; Tanya Agarwal, Advocate.
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