Upper age determined in ossification test to be considered as sexual assault victim's age: Delhi HC

New Delhi: When the age of a victim of sexual assault has to be determined on the basis of bone age ossification, the upper age given in the reference range in the report should be considered and the margin of error of two years is required to be applied in POCSO Act cases, the Delhi High Court has held.

In a judgement uploaded on Wednesday, a bench of Justices Suresh Kumar Kait and Manoj Jain observed that presumption of innocence is an indispensable philosophy in the country's adversarial system of law, and if there is an element of doubt, such benefit has to go to the accused.

The decision of the bench came on reference received from a trial court here 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 is widely used to determine the approximate age of a person on the basis of ossification or hardening of bones as part of the aging process.

An argument was made before the trial court that the age of the victim should be construed as 20 years after considering the 'upper age' in the range and further giving a margin of error of two years.

Answering the trial court's reference, the bench took into account certain decisions by the Supreme Court and the high court to note that the age established by a test might not be precise and, therefore, sufficient margin of error must be allowed.

It added that in the absence of a school certificate or birth certificate, when a court orders an ossification test, such test gives an estimation but it "does not provide us with precise and definite age".

"We cannot be oblivious of the fact that we are following 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," the court said.

It said India's criminal justice system prescribes that a case against any accused has to be proved beyond doubt.

"Meaning thereby, if there is an element of doubt, such benefit has to go to the accused," the court said in its judgement dated July 2.

"In such cases of sexual assault (under POCSO Act), 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 margin of error of two years is further required to be applied," it ruled.