Rape survivor: Consider advanced age in bone test for rape survivor

New Delhi: If the age of a sexual assault survivor is to be determined on the basis of bone age ossification, the upper age given in the reference range of the report must be considered, and a margin of error of two years must be applied in Pocso Act cases, the Delhi High Court has said. A bench of Justices Suresh Kumar Kait and Manoj Jain on Tuesday observed that the presumption of innocence is an indispensable philosophy in the adversarial legal system of the country, and if there is an element of doubt, the benefit of the same must go to the accused. The order was given on the basis of a reference received from a trial court dealing with a case under the Protection of Children from Sexual Offences Act, in which the age of the survivor was determined to be between 16 and 18 years in a bone test. It was argued before the trial court that the age should be construed as 20 years after taking into account the “upper age” in the range and further giving a margin of error of two years. The Supreme Court held that the age established by a test may not be precise and hence a sufficient margin of error must be allowed. When a court orders an ossification test in the absence of a school or birth certificate, the result “does not provide us with a precise and definite age”, but an estimate, it added. The Court said it could not “ignore the fact that we follow an adversarial legal system where the presumption of innocence is an indispensable philosophy. “Since the adversarial system in India is based on the innocence of the accused, the burden of proof generally lies on the prosecution”.

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