[POCSO Act] When Date Of Birth In School Register Is Based Merely On Parents' Word, Ossification Test May Be Required: Delhi High Court
The Delhi High Court recently granted relief to a POCSO convict, noting that the prosecution failed to establish beyond doubt that the survivor was a minor at the time of alleged offence.Justice Amit Sharma observed that the survivor's date of birth mentioned in her school register was not on the basis of any proof of birth document issued by any Corporation or a Municipal Authority or...
The Delhi High Court recently granted relief to a POCSO convict, noting that the prosecution failed to establish beyond doubt that the survivor was a minor at the time of alleged offence.
Justice Amit Sharma observed that the survivor's date of birth mentioned in her school register was not on the basis of any proof of birth document issued by any Corporation or a Municipal Authority or a Panchayat. Rather, the entry was made based on what was conveyed by her parents.
The bench also took into account the survivor's assertion that she was a major at the time of incident, born on the day of Holi in March, 1998 and her age given by the parents is incorrect.
As such, the bench observed, “it was incumbent upon the prosecution to establish that the victim's age was less than 18 years by conducting ossification test or any other latest medical age determination test conducted on orders of the Committee or the Board.”
Ordinarily, wherever a dispute with respect to 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 the JJ Act.
The three primary documents which would require consideration for the Court would be the following documents:
i. First of all, the first entry must be referred in which the priority had been given to date of birth certificate issued by school or matriculation or equivalent certificate.
ii. If the documents mentioned in first entry are not available, then the documents mentioned in second entry are to be preferred, date of birth can be decided as per birth certificate issued by corporation or municipal authority or a panchayat.
iii. However, if the documents of second entry are also not available, then the age can be determined on the basis of ossification test or any other latest medical age determination test
In the present case the Court noted that the only document which had been produced on record was a school admission register and no other document. It had also come on record that the entries made in the said register were not on the basis of any proof of birth document issued by any Corporation or a Municipal Authority or a Panchayat.
Thus, the Court ruled, “The burden was on the prosecution to prove that on what basis, the parents had given the date of birth which is mentioned in the admission register of the school.”
It held that the prosecution failed to discharge its obligation to prove that the survivor was a child in terms of Section 2 (1)(d) of the POCSO Act.
Furthermore, the Court noted that the survivor had categorically stated that the relationship between the accused and herself was consensual in nature and that the appellant was reluctant however, she insisted. Thus, the Court also set aside the conviction for rape under IPC.
As such, the appeal against conviction was allowed.
Appearance: Mr. M.P. Sinha, Mr. Yatharth Sinha, Mr. Neeraj Kanwar, Mr. Hitesh Thakur, Mr. Arnav Jain, Mr. Govind Pareek, Mr. Vikas Kumar, Mr. Satyam Mishra, Mr. Shwetabh Sharma, Mr. Shubham Tyagi, Mr. Arjun Singh Didaliya, Mr. Ankit Sahu and Ms. Kanchan Bharti, Advocates for Appellant; Ms. Shubhi Gupta, APP for the State. SI Bharti Singh, P.S. Aman Vihar. Ms. Tanya Agarwal, Adv.(DHCLSC) For R-2.
Case title: Karan Kumar v. State & Anr.
Citation: 2025 LiveLaw (Del) 664
Case no.: CRL.A. 1067/2024