The Aurangabad bench of the Bombay High Court has held that bone ossification test to determine the age of a survivor in a case under the Protection of Children from Sexual Offences Act (POCSO) is required only when the victim is about to turn major.
A division bench of Justices Vibha Kankanwadi and Abhay Waghwase observed that her age was proved from her father’s testimony.
Persecution has proved that victim was child: Court
The bench was hearing an appeal filed by a man challenging his conviction and life sentence awarded by the sessions court for raping a 14-year-old child and observed that her age was proved from her father’s testimony.
“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”…” said the bench adding: “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.”
Ossification test to be conducted in case of dispute over age: Court
The judges also said that the ossification test had to be conducted in case of dispute over age of the victim and if birth certificate issued by the school or the municipal authority/panchayat is not available.
The headmaster of the school, where the girl studied, testified that as per the records, she was minor at the time of the incident.
On August 23, 2015, when the girl went to Wanjartanda for a religious ceremony at her relative's house, the accused accosted her, sexually assaulted her, and threatened her with harm if she disclosed the incident.
The girl eventually confided in her family after they noticed injuries on her body and a complaint was lodged.
The accused contended that there was a delay of nearly 24 hours in registering the FIR. He also questions the identification of the accused and that no identification parade had been conducted.
'Failure to conduct a Test Identification does not make victim's identification unreliable'
The bench said that since the incident took place in broad daylight, giving her ample opportunity to recognise the accused. It further held that the failure to conduct a Test Identification Parade did not render her identification unreliable.
A witness might not know the name of the accused, but identity can be established through details like a description or association with someone the witness knows or a place of residence, the court said.
“It is rather the failure on the part of the investigating officer to get the proper statement of such a victim. In such cases, the investigating officer should make the girls comfortable and then try to take the statements”, the court stated.
Further, the girl's evidence in this case is consistent and there is no apparent motive to falsely implicate the accused, the court said.
