The decision came on reference received from a trial court dealing with a POCSO case in which the age of the victim was determined between 16 and 18 years in a bone age ossification test. The Delhi High Court recently said that in the POCSO (Protection of Children from Sexual Offences Act) cases where the age of the victim is determined with a bone age ossification test, the upper age given in the test’s reference range is to be considered and margin of error of two years should be applied. A division bench of Justice Suresh Kumar Kait and Justice Manoj Jain in its July 2 order observed, “We cannot be oblivious of the fact that we are following (an) adversarial system of law where the presumption of innocence is indispensable philosophy…Since the adversarial system in India is based on the ‘innocence of the accused’, the burden of proof, generally, falls on prosecution. Our criminal system prescribes that a case against any accused has to be proved beyond doubt…if there is an element of doubt, such benefit has to go to the accused.” The decision came on reference received from a trial court dealing with a POCSO case in which the age of the victim was determined between 16 and 18 years in a bone age ossification test. The test determines age based on the “degree of fusion of bone” by taking an X-ray of a few bones. It evaluates the process of bone formation based on fusion of joints between birth and generally up to the age of 25-30 years, the High Court noted. One of the questions in the reference stated whether in POCSO cases, a 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. After considering certain decisions by the Supreme Court and the High Court, the bench – while answering the reference – said, “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.” The bench further said that the “margin of error of two years is required to be applied” in such cases.

The High Court further said that while courts are “zealous to see that a juvenile gets benefit” of the Juvenile Justice Act, at the same time it is imperative that courts ensure that such protection and privileges are “not misused by unscrupulous persons to escape punishments for having committed serious offences”. It, however, observed that in cases involving juveniles, the “margin of error is, generally, applied on the lower side”. It also said that if there is a school or birth certificate of the victim then there would not be any difficulty, as the age given in such a certificate “would be a specific and fixed one, being based on the date of birth”. However, in the absence of such documents, the bench said, when a Court orders an ossification test, the test gives an “estimation of age but it does not provide us with precise and definite age”. It rather gives us a reference range, which, generally, is found to be two years, the bench added.