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When the age of a girl is determined by the Radiological or Ossification Test the margin of error should be 2 years on either side: Telangana High Court overturn the POCSO conviction.

In the case of Mekala Shiva v. The State of Telangana (Criminal Appeal No.167 OF 2022) decided through the learned bench led by Justice K.Surender, the court overturned a conviction under POCSO as there was a doubt regarding the age of the girl who might have been above 18 years of age while applying the margin of error test to the age determined by the doctor on radiological/ossification examination.

Facts of the case: The appeal was filed by the convict, in which he questioned his conviction under POCSO Act.  The court found him guilty of offense under sec Section 5(1) r/w Section 6 (punishment for aggravated penetrative sexual assault) of POCSO Act, and sec 363 of IPC. The case was first filed by the father of the victim girl stating that he found that his daughter was missing one morning, scared and worried about his daughter he went to the police, and right after 2 months of the complaint being lounged the girl was rescued and the accused was arrested by the police.

After examination of the victim girl, it was found that she knew the accused for the past four years. The accused was a major, meaning he was of 19 years of age and working as a mason worker, while he committed the wrongful act. The girl contended that they were in love and chatted frequently and just like that they decided to marry each other. After their marriage, they also participated in sexual intercourse, and only after the accused suffered from a snake bite at his work then only the parents of the accused made know about his whereabouts.

After conducting a dental and radiological examination of the victim girl, it was opined that she was aged more than 16 years but less than 18 years of age and to that effect, the age determination certificate of the victim girl was issued.

The contention of both parties: The counsel for the appellant argued that explanation 2 of sec 375 of IPC provides that any sexual intercourse between a married couple, where the wife is above 15 years is not rape. However, the said ground was rejected, as the supreme court in one of its landmark cases, Independent Thought v. Union of India amended the said explanation and changed the age to 18 years with prospective effect.

The prosecution based their entire case upon the age of the victim but the problem was neither municipal records nor any hospital records were produced to determine the exact age of the victim, further, the doctor who did the ossification test of the victim girl also did not substantiate how the victim was more than 16 years and less than 18 years.

Judgment: The court relied on the case of Jaya Mala v. Home Secretary, Government of J&K in which the Supreme Court had observed that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. And so allowing this margin of error, if it is accepted that she is 16 years of age adding the two years of the said margin, the victim would be more than 18 years. It is important to know that in this case there was no conclusive proof regarding the age of the victim girl and so the appeal was allowed.

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JUDGEMENT REVIEWED BY MANAL NASEEM

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