LI Network
Published on: October 5, 2023 at 10:30 IST
The Bombay High Court has clarified that a bone ossification test to ascertain a victim’s age under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is necessary only when the victim is on the verge of reaching the age of majority.
A division bench consisting of Justice Vibha Kankanwadi and Justice Abhay S Waghwase, sitting in Aurangabad, dismissed an appeal against a man’s conviction and life sentence for sexually assaulting a 14-year-old child.
The court determined the child’s age based on her father’s testimony, without the need for a bone ossification test.
The court explained that an ossification test is relevant only when there is a doubt regarding the victim’s age, especially when the victim is close to the age of majority. In this case, since there was no doubt that the victim was a child under Section 2(d) of the POCSO Act, the father’s knowledge of the daughter’s date of birth was sufficient to establish her age.
The court referenced the case of P. Yuvaprakash v. State (2023), where the Supreme Court held that Section 94 of the Juvenile Justice Act should be followed in disputes over the victim’s age. If a birth certificate from a school or municipal authority is unavailable, an ossification test may be conducted under Section 94 to determine the age.
In this particular case, the girl’s school headmaster testified that the date of birth recorded in the school records indicated she was a minor at the time of the incident. While the defense argued that the school had not directly examined the girl’s birth certificate during admission, the court relied on the father’s testimony to establish the girl’s age.
The incident occurred on August 23, 2015, when the girl attended a religious ceremony in Wanjartanda at a relative’s house. The appellant, Sunil Sable, allegedly sexually assaulted her and threatened her with harm. After her family noticed injuries on her body, she confided in them, leading to the filing of an FIR.
During the appeal, the appellant’s counsel argued that there was an unexplained delay in filing the FIR and questioned the victim’s identification of the accused.
The court, however, found no reason to doubt the girl’s identification of the accused, as the incident occurred in broad daylight, providing ample opportunity for her to recognize him.
The court also dismissed the argument that a Test Identification Parade should have been conducted, as the victim’s identification remained reliable even without knowing the accused’s name.
The court attributed discrepancies in the girl’s statements to initial reluctance to discuss the incident due to shame and criticized the investigating officer’s handling of the victim’s statement.
Additionally, the court considered medical evidence and confirmed that the victim’s injuries were consistent with sexual assault. The girl’s consistent testimony and lack of a clear motive to falsely implicate the accused further supported the court’s decision to affirm the trial court’s judgment.
As a result, the Bombay High Court dismissed the appeal, upholding the conviction and life sentence of the appellant.
Case Title: Sunil s/o Fattesing Sable v. State of Maharashtra
Also Read: POCSO Act and It’s Major Provisions – Law Insider India