The Bombay High Court recently underscored that a bone ossification test to ascertain the age of a victim in a case under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is mandated only when the victim’s age is on the brink of majority. The division bench, comprising Justice Vibha Kankanwadi and Justice Abhay S Waghwase, made this observation while dismissing an appeal against a conviction and life sentence for the rape of a 14-year-old child.
The appellant, Sunil Sable, had been convicted under various sections of the IPC and the POCSO Act for the incident that took place on August 23, 2015. The victim’s age became a focal point of the case, with the defense emphasizing that the school authorities had not directly verified the girl’s birth certificate upon her admission.
The court noted,
“There was no ossification test conducted in this case, however, this question would come when the girl is on the border line. When there is still a margin of four years, it cannot be said that the girl was not a ‘child’ as defined under Section 2(d) of the POCSO Act.”
The court further referred to the case of P. Yuvaprakash v. State (2023), which mandates following section 94 of the Juvenile Justice Act in age dispute cases.
In the absence of a birth certificate issued by the school or municipal authority and without an ossification test, the court relied on the testimony of the victim’s father to determine her age. The father’s assertion, corroborated by the school headmaster’s testimony regarding the date of birth recorded in school records, was deemed sufficient.
The defense also raised concerns about the delay between the incident and the filing of the FIR and questioned the identification of the accused. The court, however, found no grounds to doubt the victim’s testimony regarding the identification of the accused, emphasizing that the incident occurred in broad daylight. The court stated,
“No doubt, in her statement under Section 164 of the Code of Criminal Procedure, she has not stated the name of the accused, but at that time, the accused was not before the girl and, therefore, the identification is important, rather than the name.”
The court attributed minor discrepancies in the girl’s statements to her initial hesitance stemming from shame and emphasized the role of the investigating officer in ensuring the comfort of such victims during the statement recording process.
Medical evidence, which confirmed injuries consistent with sexual assault, and the consistent testimony of the girl, further solidified the case against the accused. The court concluded by upholding the trial court’s decision and dismissing the appeal.
Case Details:
- Case No.: Criminal Appeal No. 718 of 2016
- Case Title: Sunil s/o Fattesing Sable v. State of Maharashtra
