Under which circumstances the court can held that victim was minor even though no ossification test was conducted?

 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 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 father of the victim who has the knowledge of the date of birth of the daughter, his testimony would be also important in that respect and, therefore, in this case the prosecution had proved that the victim was a child.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 718 of 2016

Decided On: 03.10.2023

 Sunil  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

Vibha Kankanwadi and Abhay S. Waghwase, JJ.

Author: Vibha Kankanwadi, J.

Citation: MANU/MH/3996/2023.

Read full Judgment here: Click here

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Whether the court can rely on identification of accused by victim even if she has not stated name of accused in her statement U/S 164 of CRPC?

The identification of the accused is the important point raised on behalf of the accused, however, only a stray suggestion or question was asked in the cross-examination. It was not tried to be elaborated and it was not extracted as to whether she had seen the accused prior to the incident or not. She was certain in saying that the boy was from out of village and she is unable to tell his name and after the incident he ran away. Only on the basis of this statement, we cannot come to the conclusion that the identification of the accused by the victim is false or inadmissible. A witness may not be knowing name of the accused, but thereafter with the description or some other particulars like relative of somebody to whom the witness is knowing or would have seen residing in a particular place are the criteria with which the identity can be established. Here, no questions were asked on that point, but the fact is that the incident is alleged to have taken place at 8.00 a.m. i.e. the broad daylight and she had sufficient time to recognize the accused. Rather it has been extracted in her cross-examination that she had stated about the incident to her brother after returning home and after her parents reached there, they went to the police station on the same day. That means what has been left out in the examination-in-chief has been extracted in the cross-examination. Therefore, we do not find any fault as regards the identification of the accused. Her identification before the Court i.e. in the substantial evidence carries importance. 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. {Para 9}

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 718 of 2016

Decided On: 03.10.2023

 Sunil  Vs.  The State of Maharashtra

Hon'ble Judges/Coram:

Vibha Kankanwadi and Abhay S. Waghwase, JJ.

Author: Vibha Kankanwadi, J.

Citation: MANU/MH/3996/2023.

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How to appreciate evidence of bone ossification test and margin of error principle?

 It is an admitted position that the Medical Board did not examine the prosecutrix personally for ascertaining her age and Board has based its finding on the report, Ex.P.3 prepared by Dr. Sheetal Jain and the X-ray plates dated 9.12.99 and 28.12.99. It is also an admitteds fact that the prosecution has failed to examine the person who took the X-rays on 8.12.99 and 28.12.999. Even the X-ray report dated 8.12.99 has not been exhibited. It is also not established from the record as to on whose nequisition the X-ray was again done on 28.12.99. Neither the said requisition nor the report have been produced on record. On the other hand, the prosecutrix has stated that she was X-rayed only once. PW.13 Prahlad Singh, Investigating Officer has also admitted that he got the prosecutrix medically examined only once on 8.12.99 for determining her age and to find out whether rape was committed on her. In this unconstroverted fact situation, it would not be safe to place reliance on the X-ray plates dated 28.12.99 and the opinion of the medical board, which is based on such X-ray plates. Be that as it may, assuming it to be true that according to the ossification test, the age of the prosecutrix was between 14 to 16 years, still it is well settled that margin of error of 2-3 years in age on either side is permissible. {Para 17}

18. On the question of margin of error of 2-3 years on either side is permissible, learned counsel for the appellant has placed reliance on Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir (1), Mangal Singh v. State of Rajasthan (2), Gurinder Singh v. State of Punjab (3), Narendra Singh v. State of Madhya Pradesh (4), Sheela Bai and Anr. v. State of M.P. (5) and Sribatcha Khamari v. State of Orissa (6).

19. I have gone through the case laws cited above and the ratio of all the cases referred to above is that margin of error in age by 2-3 years is permissible on either side.

21. I have gone through the case laws cited by the counsel for the complainant. Having carefully gone through the case laws, I am of the considered view that law laid down in the aforesaid cases are not applicable to the facts and circumstances of the present case as the facts involved in those cases and that of involved in the present case are entirely distinguishable, inasmuch as, the oral as well as documentary evidence viz., the school leaving certificate have been considered and found highly untrustworthy and unreliable.

22. Thus, as stated above, there is no direct documentary or oral reliable evidence about the age of the prosecutrix, except the medical evidence, according to which her age, as per the ossification test was between 14 to 16 years when the offence as alleged was committed. However, keeping in view the margin of error in age ascertained by ossification test may be 2-3 years as propounded in the case laws cited by the counsel for the appellant, the question that emerges is as to whom the benefit of margin should be given. Considering the fact that it is a case of criminal liability, the benefit of margin should go in favour of the accused appellant unless such margin is explained by some piece of evidence. In the instant case, as discussed above, there is no explanation by any substantial piece of evidence. Therefore, I am inclined to give marginal benefit to the accused appellant. Keeping in mind the permissible variance of 2-3 years in the age, it is held that the age of the prosecution, at the time of incident, was 18-19 years. 

Rajasthan High Court

Nand Kishore vs State Of Rajasthan on 22 May, 2002

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HP HC: Margin of error in age ascertained by ossification test can be plus 3 years

Further, the ossification test shows that the age of the prosecutrix was 15½ years at the time of the incidence, so applying the principle of plus three it can safely be taken as 18 years, especially when Modi's Medical Jurisprudence and Toxicology says that plus three can be given in normal circumstances, considering extreme climatic conditions, viz., place of living and other circumstances. In the case in hand, the prosecutrix has grown up in extreme climatic conditions and the available record shows that she was more than 15½ years of age at the time of the incidence, thus applying the well accepted method of Modi's Medical Jurisprudence and Toxicology her age can be more than 18 years. Thus, the prosecution has failed to establish that at the time of the incidence the prosecutrix was below 18 years of age.

 In the High Court of Himachal Pradesh at Shimla

(Before Chander Bhusan Barowalia, J.)

Aneep Kumar Vs  State of Himachal Pradesh 

Cr. Appeal No. 99 of 2010

Decided on September 11, 2017,

Citation: 2017 SCC OnLine HP 1528

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Whether court can declare accused juvenile if his ossification test was conducted when he was aged 40-55 years?

As per the Scheme of the Act, when it is obvious to the Committee  or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1 held, in the context of certificate required under Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 175 OF 2021

RAM VIJAY SINGH  Vs  STATE OF UTTAR PRADESH 

Author: HEMANT GUPTA, J.

Dated: FEBRUARY 25, 2021.

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Whether ossification test can be treated as conclusive for determining age of juvenile?

At page 31 of Modi’s Text Book of Medical
Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
“In ascertaining the age of young persons radiograms of any of the main joints
of the upper or the lower extremity of both sides of the body should be taken,
an opinion should be given according to the following table, but it must be
remembered that too much reliance should not be placed on this table as it
merely indicates an average and is likely to vary in individual cases even of
the same province owing to the eccentricities of development.”
Courts have taken judicial notice of this fact and have always held that the evidence
afforded by radiological examination is no doubt a useful guiding factor for
determining the age of a person but the evidence is not of a conclusive and
incontrovertible nature and it is subject to a margin of error. Medical evidence as to
the age of a person though a very useful guiding factor is not conclusive and has to
be considered along with other circumstances.
26. In a recent judgment, State of Madhya Pradesh v. Anoop Singh (2015) 7
SCC 773, it was held that the ossification test is not the sole criteria for age
determination. Following Babloo Pasi and Anoop Singh’s cases, we hold that
ossification test cannot be regarded as conclusive when it comes to ascertaining the
age of a person. More so, the appellants herein have certainly crossed the age of
thirty years which is an important factor to be taken into account as age cannot be
determined with precision. In fact in the medical report of the appellants, it is stated

that there was no indication for dental x-rays since both the accused were beyond
25 years of age.
27. At this juncture, we may usefully refer to an article “A study of wrist
ossification for age estimation in pediatric group in central Rajasthan”, which reads
as under:-
“There are various criteria for age determination of an individual, of which
eruption of teeth and ossification activities of bones are important.
Nevertheless age can usually be assessed more accurately in younger age
group by dentition and ossification alongwith epiphyseal fusion.
[Ref: Gray H. Gray’s Anatomy. 37th ed. Churchill Livingstone Edinburgh
London Melbourne and New York: 1996; 341-342];
A careful examination of teeth and ossification at wrist joint provide valuable
data for age estimation in children.
[Ref: Parikh CK. Parikh’s Textbook of Medical Jurisprudence and
Toxicology. 5th edn.: Mumbai Medico-Legal Centre Colaba:1990;44-45];
……
Variations in the appearance of center of ossification at wrist joint shows
influence of race, climate, diet and regional factors. Ossification centres for the
distal ends of radius and ulna consistent with present study vide article “A
study of Wrist Ossification for age estimation in pediatric group in
Central Rajasthan” by Dr. Ashutosh Srivastav, Senior Demonstrator and a
team of other doctors, Journal of Indian Academy of Forensic Medicine
(JIAFM), 2004; 26(4). ISSN 0971-0973].
28. In the present case, their physical, dental and radiological examinations were
carried out. Radiological examination of Skull (AP and lateral view), Sternum (AP
and lateral view) and Sacrum (lateral view) was advised and performed. As per the
medical report, there was no indication for dental x-rays since both the accused
were much beyond 25 years of age. Therefore, the age determination based on
ossification test though may be useful is not conclusive. An X-ray ossification test
can by no means be so infallible and accurate a test as to indicate the correct
number of years and days of a person’s life.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1119-1120 OF 2016

MUKARRAB ETC   Vs STATE OF U.P. 

Bench: A.K. Sikri, R. Banumathi

Dated:November 30, 2016.

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