The article is divided into the following three parts for better understanding of the subject, viz. Part I: WHETHER reliance on JJ Act for age determination proper?, Part II: How is the age of the victim to be determined, and Part III : Determining the age of the POCSO Victims: at what stage should Courts act.
PART I: WHETHER RELIANCE ON JJ ACT FOR AGE DETERMINATION PROPER?
1. INTRODUCTION
The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) does not contain any provision which prescribes the specific method to be followed to determine the age of the victims for offences alleged to have been committed under the Act. The POCSO Act deals with offences committed against minor victims/children (persons below the age of 18 years, see section 2(d) of the POCSO Act), whereas the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as JJ Act, 2015) primarily deals with offences committed by minors.
The earlier Juvenile Justice Act of 2000 (hereinafter referred to as JJ Act, 2000) as well as the present JJ Act, 2015 along with rules framed thereunder contain provisions prescribing the specific method to be followed in order to determine the age of a child in conflict with law (minor perpetrator of the alleged crime).
2. JUDICIAL PRECEDENTS MANDATING USE OF JJ ACT PROCEDURE
A Division Bench of the Hon’ble Supreme Court in Jarnail Singh versus State of Haryana[1], in a matter pertaining to offences under section 366, 376(2)(g) and 120-B of IPC, held that the age of a child who is a victim of crime should be determined as per Rule 12 of JJ Act, 2000. Similar law was laid down by the Hon’ble Supreme Court in Mahadeo versus State of Maharashtra[2]. The latter-mentioned case also dealt with IPC offences.
In P. YuvaPrakash versus State[3], the Hon’ble Supreme Court has categorically held that the age of a victim under the POCSO Act has to be determined as per the steps indicated in section 94 of the JJ Act, 2015. Similar view was expressed by the Hon’ble Supreme Court in State of U.P. versus Anurudh & Another[4].
The law developed by judicial precedents, as it stands today and as it stood in the earlier decade, has been unequivocal that the age of a victim under the POCSO Act has to be determined as per the mode indicated in the JJ Act, 2000 and JJ Act, 2015 and rules made thereunder.
3. REASONING OF THE SUPREME COURT IN THE KEY CASES
The question to be examined is whether it is appropriate and proper to rely upon the procedure prescribed under the JJ Act for age determination of a victim under the POCSO Act. For this, it is necessary to examine on what basis and in what manner the provisions of the JJ Act, 2000 or JJ Act, 2015 were applied by the Hon’ble Supreme Court for age determination of the victims of IPC offences or POCSO offences.
In Jarnail Singh case (supra)[5], the Hon’ble Supreme Court gave the following reasoning for applying the JJ Act 2000 yardstick for age determination of the victims:
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime.
In Mahadeo case (supra)[6], the Hon’ble Supreme Court gave the following reasoning for applying the JJ Act, 2000 framework for age determination of the victims:
We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out…In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.
In P. YuvaPrakash case (supra)[7], the Hon’ble Supreme Court gave the following reasoning for applying the JJ Act, 2015 benchmark for age determination of the victims under the POCSO Act:
It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the Pocso Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act.
In Anurudh case (supra)[8], the Hon’ble Supreme Court gave the following reasoning for applying the JJ Act, 2015 standard for age determination of the victims under the POCSO Act:
Having discussed thus, the two separate fields that these two legislations govern, we now turn back to the question of age determination. If the POCSO Act is examined, it can be found that the Act does not prescribe a manner for determination of the age of the victim. As we have already noticed, it is an established position in law that the procedure under Section 94 of the JJ Act is to be applied.[See: Section 34 of the Act]
4. CRITIQUE OF APPLYING THE JJ ACT FRAMEWORK TO THE POCSO VICTIMS
Section 3 of the Indian Evidence Act, 1872/Section 2(1)(j) of the Bharatiya Sakshya Adhiniyam, 2023 defines the term proved and as per the definition a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Under the general law, whenever a court is faced with an age determination question of a victim, the Court (if not restricted by the JJ Act yardstick) can consider not only the evidence adduced in the case but also other matters before it, to come to a conclusion whether the age of the person is proved to be of that of minority or not. The scope of consideration of various kinds of evidence and matters, in such an unrestricted case, is extremely wide.
The reasoning given by the Hon’ble Supreme Court in applying the JJ Act, 2000 yardstick to determine the age of the victims in Jarnail Singh case (supra)[9] is that there can hardly be any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. In so holding, the Hon’ble Supreme Court has not considered the fact that the JJ Act, 2000 is a welfare/beneficial piece of legislation; inquiry is conducted under the JJ Act, not trial; an inquiry is conducted not by a Court but by a Juvenile Justice Board; no disqualification attaches to a child in conflict with law upon conviction as per the provisions of the JJ Act, unlike other penal laws; and most importantly, the object of the JJ Act is not punitive like other penal laws but is reformative, rehabilitative, and reintegrative. The Hon’ble Supreme Court, without taking into consideration the above factors, has restricted the extremely wide power of courts of criminal jurisdiction under Section 3 of the Indian Evidence Act, 1872/Section 2(1)(j), 2(1)(c) and 2(1)(i) of the Bharatiya Sakshya Adhiniyam, 2023 to take into account a variety of evidence and other matters produced before it, to determine the age of the victims.
It is respectfully submitted that by doing so the Hon’ble Supreme Court has inadvertently created a situation in which the possibility of injustice to minor victims cannot be ruled out. This may be illustrated through examples. In a given case, a minor victim or his family may not possess the documents mentioned in the JJ Act as valid for consideration in an age determination process, but may possess other strong evidence including:
● An entry in a register made by the hospital in which the minor was born, maintained by it in the ordinary course of its business;
● A video recording of the mother giving birth to the victim along with the video recorder which captured the footage, with the recorded date embedded therein;
● Contemporary documents (prepared on or near the date of birth) stating the child’s date of birth, etc.
This evidence may have great probative value and may be unimpeachable. There may also be unchallenged oral evidence pertaining to the age of the victim in the case. Value of such evidence may be far greater than that of the medical opinion which may be sought in the matter. Medical opinion about age is not always absolutely accurate. The Hon’ble Supreme Court has held in Mukarrab and others versus State of U.P.[10] that age determination through ossification test does not yield accurate and precise conclusion after the examinee crosses the age of 30 years. Medical opinion may vary depending upon a range of factors like nutrition, the age at which examinee is examined, etc. By unnecessarily restricting the court to consider only the evidence prescribed under the JJ Act and preventing it from considering any other evidence that may come before it, will remove from consideration several pieces of evidence which may have high probative value and which may be instrumental in accurately determining the age of the victim in question.
In the authors’ respectful view, rather than restricting the evidence to be considered to the ones prescribed under the JJ Act, it should be left to the wisdom of experienced judges manning courts of criminal jurisdiction throughout the country to consider and assess any evidence regarding age which may come before them. They will certainly take into consideration and be guided by the various guidelines issued by various superior courts on the probative value to be attached to various evidence relevant for age determination and thereafter they will decide the question of age, finally. In case they decide incorrectly, the decision can be corrected in appeal or revision; but, restricting the evidence which the court can consider in the first place will lead to more possibility of injustice than justice being done.
Here section 34 (2) of the POCSO Act is also worth consideration, which reads as follows:
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
The POCSO Act has been enacted after the JJ Act, 2000 came into force. The Legislature must have been conscious and will be presumed to be conscious of the fact that procedure for age determination had been prescribed for children in conflict with law under the JJ Act, 2000. Had the Legislature wanted to adopt the same procedure for age determination of the victims under the POCSO Act, the Legislature could have specifically said so under the POCSO Act. On the contrary, section 34(2) of the POCSO Act suggests that there are no restrictions, like the ones in the JJ Act about the evidence which is admissible, when it comes to determination of age under the POCSO Act.
The reasoning given in P. YuvaPrakash case (supra)[11] by the Hon’ble Supreme Court for applying the JJ Act, 2015 yardstick for age determination of the victims under the POCSO Act is that a conjoint reading of section 34 (2) of the POCSO Act and section 94 of the JJ Act, 2015 make the position crystal clear. With great respect, a combined reading of the above two provisions does not make the position unambiguous, as held, and does not make JJ Act yardstick applicable to age determination of the victims under the POCSO Act.
It is respectfully submitted, for the above mentioned reasons, the reasoning given by the Hon’ble Supreme Court in Jarnail Singh case (supra)[12], Mahadeo case (supra)[13], P. YuvaPrakash case (supra)[14] and Anurudh case (supra)[15] require reconsideration for ends of justice.
The Legislature should intervene and make necessary amendments to the POCSO Act so as to make its intent clear as to whether the procedure under the JJ Act, 2015 should be followed or not for age determination of the victims.
5. CONCLUSION
From a legal perspective, in the respectful opinion of the authors, with the delivery of justice as the ultimate motive, a revisit of the aforementioned judicial precedents, or legislative intervention as aforementioned, is the need of the hour as there is no rationale for restricting the power of criminal courts in the age determination process to the evidence prescribed under the JJ Act instead of permitting them to consider the full and unrestricted range of relevant evidence available in an age determination process.
PART II: HOW IS THE AGE OF THE VICTIM TO BE DETERMINED
1. THE APPLICABLE LAW
As per the settled and applicable law at present, as discussed in Part I of the article, the age of a victim under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) is determined in accordance with the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as JJ Act, 2015), which is reproduced below for ready reference:
Presumption and determination of age.—(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining—
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
2. THE TWO WAYS OF AGE DETERMINATION
If the above provision is closely scrutinised, it makes it clear that age determination, broadly speaking, can be done in two ways.
2.1 AGE DETERMINATION THROUGH APPEARANCE
Primarily, age is to be determined, as per Section 94(1) of the JJ Act, 2015, through the appearance of the victim. If on the basis of the appearance of the victim, the Special Court is satisfied that the victim is a child, then the Special Court shall record such observation stating the age of the child as nearly as may be. It shall be the end of the matter so far as the trial court is concerned and there will be no need to undertake an age determination process as provided in Section 94 (2) of the JJ Act, 2015.
2.1.1 THE RIGHT TO BE HEARD: THE AUTHORS’ VIEW
Whenever the Special Court is of the prima facie view, based on the appearance of the victim, that the victim is a child, it shall record the same in the case proceedings and grant the accused an opportunity to persuade the court against finalising that view. If the Special Court is convinced by the accused’s arguments, it shall hold that age cannot be determined solely on appearance and shall proceed under Section 94(2) of the JJ Act, 2015. If not convinced, it shall record its final view that the victim is a child. Once, such a view is finalised, it will be an end of the matter pertaining to age determination as far as the trial court is concerned and there will be no further inquiry as per Section 94(2) of the JJ Act, 2015. Giving an opportunity to the accused to argue against the court’s prima facie view, will be an observance of the principle of natural justice, namely Audi Alteram Partem and the principles emanating from Article 21 of the Constitution of India.
2.1.2 SUPPORTIVE PRECEDENTS
The Hon’ble Punjab and Haryana High Court in Gajab Singh versus State of Haryana[16] has held that age can be determined on the basis of physical appearance. The relevant portion of the judgment is as under:
A perusal of the provisions of the Act would show that under new provisions of law, the primacy has been given to the assessment of the Board/Court as to the age of the accused. This assessment can be done on physical appearance or even on the basis of the examination by other method like putting basic question to adjudge the age and understanding of the accused. In any case, if there is any doubt in the mind of the Court/Board, then the provision prescribes that, it is the birth certificate given by the school or the date of birth as mentioned in the matriculation certificate; which shall be taken into consideration in the first instance. If these two certificates are not available, then the further certificates, as mentioned in the Section, are to be taken into consideration.
A similar view was taken by the Hon’ble Supreme Court in Ram Vijay Singh v. State of U.P.[17] in which it has been held as under:
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.
2.2 AGE DETERMINATION AS PER SECTION 94(2)
In case the Special Court, on the basis of appearance, entertains a doubt as to whether the victim is a child or not, the Special Court shall necessarily resort to the procedure prescribed for age determination in Section 94(2) of the JJ Act, 2015.
2.2.1 ON WHOM DOES THE BURDEN OF PROOF LIE
If the process for age determination is undertaken as per the above provision, then the first question that arises would be: on whom does the burden of proof lie to prove the age of the victim? Section 103 of the Indian Evidence Act, 1872/ Section 106 of the Bharatiya Sakshya Adhiniyam, 2023 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. As per the above provision, the burden of proving the age of the victim will be on the prosecution, as it is the prosecution who wishes the Court to believe that the victim was a minor, on the date of the incident, so as to bring the alleged act of the accused within the purview of the POCSO Act. The Hon’ble Supreme Court in Abuzar Hossain @ Gulam Hossain versus State of West Bengal[18], has held that initial burden has to be discharged by the person who claims juvenility.
2.2.2 THE EVIDENCE THROUGH WHICH AGE IS TO BE FINALLY PROVED
The next question that will arise is through what kind of evidence the age of the victim is to be finally proved. The language of Section 94(2) of the JJ Act, 2015 is unambiguous in this regard. It clearly provides that the certificates mentioned in Section 94(2)(i) shall be first looked into. In case they are unavailable, only in that eventuality, birth certificates mentioned in Section 94(2)(ii) shall be looked into. Section 94(2)(iii) clearly provides that in case certificates mentioned in Section 94(2)(i) and Section 94(2)(ii), both, are unavailable, only in such a case, age shall be determined by medical age determination test as mentioned in Section 94(2)(iii). The language of the section makes it absolutely clear that through no other evidence, the age of a person can be finally determined.
In P. YuvaPrakash case (supra)[19], the Hon’ble Supreme Court refused to rely upon a school transfer certificate to determine the age of the victim, as it did not belong to the description of any of the documents mentioned in Section 94(2) of the JJ Act, 2015.
2.2.3 USE AND EXTENT OF USE OF OTHER RELEVANT EVIDENCE: THE AUTHORS’ VIEW
The evidence mentioned in Section 94(2) of the JJ Act, 2015 is certainly relevant and admissible in the order mentioned in the section. Does it mean no other evidence can be looked into? Here it must be remembered that finally for proving the age only the evidence mentioned in the above section is to be looked into, but any other evidence which weakens or strengthens the evidence mentioned in Section 94(2) of the JJ Act, 2015 can also be looked into as it is also relevant as per section 11 of the Indian Evidence Act, 1872/ Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 which reads as follows:
Facts not otherwise relevant are relevant–
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
It must be remembered that only through the evidence mentioned in Section 94(2) of the JJ Act, 2015, the age of a victim can be proved; but to determine the probative value of the certificates mentioned in Section 94(2), other evidence may be looked into. The purpose of aforementioned other evidence shall be restricted solely to assisting the court in forming an opinion about the probative value of the certificates mentioned in Section 94(2) and shall not extend to becoming the sole criterion for determination of the victim’s age.
For example, date of birth certificate from the school may show the date of birth of the victim as 01.01.2001; but there may be a form filled in by the father of the victim for claiming the delivery-related hospitalisation charges of the victim’s mother in which the father of the victim has mentioned the date of birth of the victim as 01.01.2000. In such a case, the entry in the form filled in by the father can be looked into to decide the probative value of the date of birth certificate from the school. Finally, the age of the victim will have to be decided on the basis of the evidence mentioned in Section 94(2) of the JJ Act, 2015, but the use of such other evidence is only to help the court to form an opinion as to the probative value of the evidence mentioned in the above section.
2.2.4 EFFECT OF NEGATING OTHER RELEVANT EVIDENCE: THE AUTHORS’ VIEW
If such other evidence is shut from the purview of the court’s consideration, it is bound to have disastrous effects. In the aforementioned example, the victim may be determined to be a minor in case his/her age is determined as per the date of birth mentioned in the date of birth certificate from the school, but may turn out to be a major if the entry in the form filled in by the father is also taken into consideration. If the accused wants to challenge the probative value of the date of birth certificate, he should have the right to point out to the court the admission of the father of the victim regarding the victim’s date of birth in the form filled in by the father. If such evidence is removed from consideration, the Court may determine the victim to have been a child when in fact the victim may not have been a child on the date of the alleged incident and this can have a disastrous effect on the accused.
2.2.5 HOW TO PROVE THE CERTIFICATES
The next question that will arise is how the certificates mentioned in Section 94(2) of the JJ Act, 2015 are to be proved.
Before the present JJ Act, 2015 came into force, the age of the victims under the POCSO Act was determined as per the earlier Juvenile Justice (Care and Protection of Children) Act, 2000 ((hereinafter referred to as JJ Act, 2000) and rules framed thereunder. Dealing with the JJ Act, 2000, the Hon’ble Supreme Court in Ashwani Kumar Saxena versus State of M.P.[20] held that certificates may not be correct, but the Court, JJ Board or a Committee functioning under the JJ Act, 2000 is not expected to conduct a roving inquiry and go behind those certificates. It was held that only in cases where the certificates are found to be fabricated or manipulated, there would arise a need to order a medical examination for age determination. The relevant para of the judgment is as under:
There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination.
A Division Bench of the Hon’ble Madhya Pradesh High Court in Ramswaroop versus State of M.P.[21], has held in a matter pertaining to the age determination of a POCSO Act victim as under:
We are of the view that if prosecution is able to prove the date of birth in consonance with the requirement of J.J. Act by producing the Admission Register or any other document, the Court is not required to go beyond and behind the said document and conduct a roving inquiry as to on what basis said date of birth was recorded. We say so because the legislative intent ingrained in Section 94 shows that the law makers have placed reliance on certain documents on the strength of which age can be determined. If said test is fulfilled by producing relevant document, the Courts are not obliged to examine further source of such declaration or entry mentioned in the said document.
2.2.5.1 THE ROVING INQUIRY AND THE PROOF BEYOND REASONABLE DOUBT DEBATE: THE AUTHORS’ VIEW
The question is would the mere presentation of the certificates tantamount to proof or will the birth entry in the certificate be required to be further proved?
We must bear in mind that the POCSO Act did not and does not make the JJ Act, 2000 or the JJ Act, 2015 applicable to the age determination process for victims under the POCSO Act. It is through judicial precedents that the Courts have started applying the JJ Act procedure for age determination of victims under the POCSO Act.
Judgments by the Hon’ble Supreme Court in Jarnail Singh versus State of Haryana[22], Mahadeo versus State of Maharashtra[23], P. YuvaPrakash versus State[24] and State of U.P. versus Anurudh & Another[25], discussed in detail in Part I of the article, have only made the procedure of age determination as prescribed under the JJ Act applicable to age determination process of POCSO Act victims. No judgment has specifically made the evidentiary standards applicable for age determination in JJ Act matters applicable to age determination in POCSO Act matters. It must not be forgotten that the JJ Act and POCSO Act operate in different fields, their purposes are different along with their framework. Under the JJ Act, an inquiry is conducted not a trial and the purpose of the Act is not penal like other criminal statutes, but is reformative, rehabilitative, and reintegrative; whereas, in a criminal case under the POCSO Act, a trial is conducted and not an inquiry. It is a golden principle of criminal jurisprudence that the guilt of the accused is to be proved by the prosecution beyond reasonable doubt. In a POCSO case, to prove the guilt of the accused, the prosecution has to necessarily prove that the victim was a child. Age is a necessary ingredient of every offence against the child under the POCSO Act. Hence, in order to prove the guilt of the accused under the POCSO Act, the prosecution shall necessarily have to prove the age of the victim to be below 18 years, beyond reasonable doubt. To prove beyond reasonable doubt that the victim was a child, the mere presentation of the certificates prescribed under the JJ Act would not suffice. The prosecution will have to prove the basis of the entry in the certificates by examining the person who got the entry made in the relevant register who shall also have to disclose the source of his/her information about the date of birth of the victim. The person who made the entry may also have to be examined by the prosecution. If upon consideration of the evidence and other matters before the Court, the Court thinks that the entry in the certificate has been proved beyond reasonable doubt, only then the Court will regard it as proved and not otherwise. The judgment in Ashwani Kumar Saxena (supra)[26] rendered in a matter pertaining to the JJ Act and holding that Court cannot go behind the certificates and conduct a roving inquiry cannot be made applicable to age determination process under the POCSO Act as the evidentiary standards for age determination in both the cases are not the same. In a POCSO case, unlike one in a JJ Act matter, age has to be proved beyond reasonable doubt and a roving inquiry is in no way restricted or barred.
A Division Bench of the Hon’ble Madhya Pradesh High Court in Upendra versus State of M.P. and others[27], dealing with a POCSO Act matter, discarded the school entry register on account of reasonable doubt about the age of the victim. The relevant portion of the judgment is as under:
When date of birth of the prosecutrix is under doubt and there is a reasonable doubt to discard the school entry register on the basis of the teacher from school and the testimony of the parents, then prosecutrix cannot be considered to be a child in terms of Section 2(1)(d) of the POCSO Act, 2012….
Thus, it must be remembered that the judgment in Ashwani Kumar Saxena (supra)[28], which holds that no roving inquiry can be conducted while determining age under the JJ Act is not applicable to the age determination process under the POCSO Act, as the evidentiary standards applicable to age determination in a POCSO Act matter is proof beyond reasonable doubt, unlike one in a JJ Act age determination matter, as age is a necessary ingredient of every offence committed against a child under the POCSO Act.
2.2.5.2 OTHER THINGS TO REMEMBER
To prove any certificate mentioned in section 35 of the Indian Evidence Act, 1872/Section 29 of the Bharatiya Sakshya Adhiniyam, if it has been issued by a public servant, the law laid down in the judgments cited below should be borne in mind.
The Hon’ble Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal[29] has held as under:
The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’.
The Hon’ble Supreme Court in Birad Mal Singhvi versus Ananad Purohit[30] has held as under:
Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury [AIR 1941 Cal 41 : 45 CWN 141 : 193 IC 419] a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Mali Ram [AIR 1951 Punj 377] , Sakhi Ram v. Presiding Officer [AIR 1966 Pat 459] , Ghanchi Vora Samsuddisn Isabhai v. State of Gujarat [AIR 1970 Guj 178] and Radha Kishan Tickoo v. Bhushan Lal Tickoo [AIR 1971 J&K 62] , In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar’s register or in school certificate in election cases. The courts have consistently held that the date of birth mentioned in the scholar’s register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Jagannath Prasad, [42 ELR 465 (All HC)] K. Paramalali v. I.M. Alangam [31 ELR 401 (Mad HC)] , Krishna Rao Maharu Patil v. Onkar Narayan Wagh [14 ELR 386 (Bom HC)].
…The entries regarding dates of birth contained in the scholar’s register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value….
The Hon’ble Supreme Court in Alamelu & Another Versus State[31] has held as under:
The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.
The judgments of the Hon’ble Supreme Court in Murugan @ Settu versus State of Tamil Nadu[32], the Hon’ble M.P. High Court in State of M.P. versus Salman Khan[33] and the Hon’ble Bombay High Court in Maherban Hasan Babu Khan versus State of Maharashtra and Another[34] are also relevant in this context.
A perusal of the above judgments show that an entry in a register, on the basis of which a certificate is issued, has to proved by admissible evidence and its mere presentation is not sufficient to prove its contents. The person who recorded the entry and the person who gave the details on the basis of which the entry was made may have to be examined. Proof of the source of information of the person who gave the details may also be necessary to prove the entry beyond reasonable doubt.
If it is a private school, section 35 of the Indian Evidence Act, 1872/Section 29 of the Bharatiya Sakshya Adhiniyam will not apply. But even in such a case, the document containing the entry will have to be proved as per the above-mentioned method so that the entry contained in the document can be regarded as proved beyond reasonable doubt.
2.2.6 OSSIFICATION TEST
When the certificates mentioned in Section 94(2) of the JJ Act, 2015 are not available, the Special Court shall resort to an ossification test or any other latest medical test ordered to be conducted for age determination.
Regarding ossification test, the Hon’ble Supreme Court in Vinod Katara versus State of U.P.[35], has held as under:
The bone ossification test (hereinafter “the ossification test”) is a test that determines age based on the “degree of fusion of bone” by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive.
In Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] , this Court clarified that the ossification test by the medical officer is to assist the court which falls under the ambit of medical expert opinion i.e. advisory in nature and not binding. However, such an opinion cannot override ocular or documentary evidence, which has been proved to be true and admissible as they constitute “statement of facts”. This Court in Vishnu [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] placed reliance on Madan Gopal Kakkad v. Naval Dubey [Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 : 1992 SCC (Cri) 598] , to hold that a medical witness is not a witness of fact therefore the opinion rendered by such a medical expert is merely advisory until accepted by the court, however, once accepted, they become the opinion of the court.
The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh [Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194] , and Jyoti Prakash Rai v. State of Bihar [Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796] , that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination….
2.2.6.1 BENEFIT OF DOUBT TO WHOM?
It is a settled principle of criminal jurisprudence that the benefit of any reasonable doubt must be given to the accused in a criminal trial. In light of the above principle, the benefit of the margin of error in an ossification test must be given to the accused. A Division Bench of the Hon’ble M.P. High Court in Deul Kharole versus State of M.P. and others[36], while giving the benefit of the margin of error to the accused, has held as under:
Therefore, as per the ossification report which was promptly drawn within one month of the incident, since there can be an error of a year or two and when that error is taken into consideration, then victim will be deemed to be an adult, benefit is required to be accrued in favour of the appellant.
2.2.7 PRESUMPTION AS TO AGE, WHETHER PERMISSIBLE?
Another important question is whether a presumption as to age of the victim can be drawn under section 29 of the POCSO Act. Before dealing with this question, the above section is reproduced below:
29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
One of the ingredients of offences under section 3, 5, 7 and 9 of the POCSO Act is that the victim must be a child at the date of commission of the offence. Although there is no authority on the point as to whether the presumption under section 29 would include a presumption as to the age of the victim, the language of the section suggests that only the offending sexual act has to be presumed to have been committed and no presumption is to be raised as to the ingredient of the age of the victim. The phrase committed or abetted or attempted to commit the offence renders this interpretation rational and logical.
For the sake of argument, if it is assumed that the presumption under section 29 would take within its purview a presumption as to the victim of the offence being a child, even then it is an established principle of criminal jurisprudence that for a presumption to operate, foundational facts will have to be proved first by the prosecution. The age of the victim would be a foundational fact, which will have to be proved first. Foundational facts are to be proved beyond reasonable doubt. In this context, reference may be made to the judgment of the Hon’ble Supreme Court in Just Rights For Children Alliance and Another versus S. Harish and Others[37], in which it has been held as under:
…any statutory presumption would operate only after the prosecution first lays the foundational facts necessary for the offences that have been alleged beyond a reasonable doubt.
Thus, in any case, whether a presumption as to the age of the victim is made or not under section 29 of the POCSO Act, the age of the victim under the POCSO Act will have to be proved beyond reasonable doubt by the prosecution.
3. CONCLUSION
The age of a victim under the POCSO Act has to determined as per the provisions contained in the JJ Act, although as discussed in Part I of the article, the same is equivalent to unnecessarily restricting the criminal court’s power to appropriately determine age after taking into account all the possible relevant evidence by circumscribing it with only the evidence prescribed under the JJ Act. The age of victims under the POCSO Act has to be primarily determined based on the basis of appearance and only in case of doubt age determination process as contemplated in Section 94(2) of the JJ Act, 2015 has to be undertaken. Once such a process is undertaken, the certificates mentioned therein are to be proved beyond reasonable doubt and a roving inquiry is not barred, like in a JJ Act matter. Medical test for age determination is to be taken as the last resort when the certificates mentioned in the above provision are unavailable. Benefit of margin of error is to granted to the accused. The golden principle of criminal jurisprudence regarding proof beyond reasonable doubt has to be borne in mind throughout the process of age determination of victims under the POCSO Act and the court’s should not get swayed by the no roving inquiry principle postulated in JJ Act age determination inquiries.
PART III : DETERMINING THE AGE OF THE POCSO VICTIMS: AT WHAT STAGE SHOULD COURTS ACT
1. AT THE BAIL STAGE: PRIMA FACIE VIEW, NOT MINI TRIAL
The Hon’ble Supreme Court has in State of U.P. versus Anurudh & Another[38] held that the Special Court under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) cannot undertake age determination process vis-à-vis the victim, at the stage of bail. At the stage of bail, the Special Court, from a perusal of the documents mentioned in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as JJ Act, 2015) can only form a prima facie view about the age of the victim without going into the question of correctness or otherwise of the documents.
2. AT THE INCEPTION OF TRIAL VERSUS AT THE STAGE OF JUDGMENT
In terms of Section 94(1) of the JJ Act, 2015, if the Special Court[39] finds on the basis of the appearance of the victim that the victim is a child, it will record its observation, and there will be no need to undertake an age determination process as provided in Section 94(2) of the JJ Act, 2015.
The victim usually appears before the Special Court at the stage of recording of evidence. That is usually the stage when for the first time, the Special Court gets an opportunity to see the victim. From this stage until the culmination of trial and before the pronouncement of the judgment, a considerable amount of time may elapse. Sometimes, years may pass due to a variety of reasons, although trial is expected to be completed within a year from the date of taking cognizance of the offence[40]. Consider a scenario where a victim appears before the Special Court in the year 2026 when he is 10 years old, owing to certain reasons, the trial could not be completed for 10 years. If in 2036, a judgment is passed in the case and it is held therein on the basis of appearance of the victim that the victim was approximately 10 years of age at the time of the commission of the offence, then a difficult situation may arise. The appeal against conviction of the accused may take years to be finally decided. Suppose in 2041, the appeal is decided. At the time of final decision in the appeal, the victim turns 25. Even if the appellate court summons the victim and observes his or her appearance, it may be extremely difficult to determine by the victim’s appearance, his/her age in the year 2026. In order to avoid such an anomaly, it is imperative that age determination on the basis of appearance be conducted not at the stage of judgment, but immediately upon the victim’s appearance before the court for the recording of evidence.
The procedure adopted for trial in a POCSO case is extremely different from trial of any other sexual offence case. In a POCSO case, there are provisions for presumption of certain offences and of culpable mental state of the accused under Sections 29 and 30 respectively. The standard of rebuttal on the accused is that of beyond reasonable doubt under Section 30 of the POCSO Act unlike other reverse burden clauses. The accused or his advocate cannot directly question the victim in the case, the questioning has to be through the Special Court. Evidence of the victim has to be recorded within 30 days and the trial has to be completed within a period of 1 year from the date of taking cognizance of the offence[41]. Punishments prescribed under the POCSO Act are generally harsher in degree when compared to their IPC/BNS counterparts. A Special Court under the POCSO Act has jurisdiction to try a case only if the victim was a child at the time of commission of the offence.
In view of the foregoing, it is essential that the Special Court first determines whether the victim was a child at the relevant time, since the Special Court derives jurisdiction to try the case only if the victim was a child on the date of the offence, and it is only thereafter that the different and stringent provisions of the POCSO Act can apply.
In its 2026 judgment in Anurudh (supra)[42], the Hon’ble Supreme Court has held as follows and given an imprimatur to the above mentioned procedure in the following words:
As is obvious and as we have observed, the victim being a child is sine qua non for the application of the POCSO Act. If a charge-sheet is filed and it contains charges against a person under the POCSO Act, it is but obvious that such an accused would challenge the same at the first available instance in the Court concerned, or in other words, at the inception of trial, so as to ensure that the foundation of the trial is correctly in place before it proceeds further. The Court would then undertake the exercise as provided for, and in accordance with the result obtained therefrom, proceed further, either under the POCSO Act or under the provisions of the IPC, as the case may be. Should the accused be dissatisfied with the manner in which the result has been drawn by the Trial Court, an appeal from such determination would have to be filed and only when the question of age is set at rest can the trial proceed forward on firm footing.
In view of the reasons stated above and the law laid down by the Hon’ble Supreme Court in the Anurudh case (supra)[43], it is clear that age determination process ought to be conducted at the earliest, immediately after the framing of charges. The evidence of the victim must be recorded within a period of 30 days from the date of taking cognizance. Along with the evidence of the victim, all such evidence that has a bearing on the age of the victim must be recorded. Upon completion of such evidence, the Special Court must first determine whether the victim was below 18 years of age on the date of offence. If so determined, the Court should proceed with the trial under the POCSO Act; if not, the case will have to go for trial before the court of competent jurisdiction.
3. NO STATUTORY APPEAL? FILLING THE LEGISLATIVE GAP
The Hon’ble Supreme Court in Anurudh case (supra)[44] has held that if an accused is aggrieved by age determination by the Special Court, he may file an appeal. It is apposite to mention that the POCSO Act and the rules framed thereunder do not contain any provision for such an appeal from an age determination order passed by the Special Court. The Hon’ble Supreme Court in Ganga Bai versus Vijay Kumar[45] has held as follows:
The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.
A right of appeal cannot be created by a judicial order alone. A right of appeal should have been given by the Legislature in the POCSO Act for orders of age determination passed by the Special Court. Since no right of appeal has been so provided, the only remedies available are a revision petition or a petition under Article 226 or 227 of the Constitution of India before the jurisdictionally competent Hon’ble High Court, or a Special Leave Petition before the Hon’ble Supreme Court. The scope of a revision petition or the other constitutional remedies aforementioned is considerably narrower than that of a statutory appeal. To cure this, the Legislature should make suitable amendments to the POCSO Act by incorporating a provision for appeal from any final order of the Special Court pertaining to age determination, specifying the period of limitation for filing such an appeal and whether the filing thereof would automatically operate as a stay of the trial.
4. Victims Are Not Offenders: Why Juvenility Cannot Be Raised at Any Stage
A crucial distinction exists in the scheme of the JJ Act, 2015 and the POCSO Act so far as the treatment of juvenility is concerned. Under the JJ Act, an offender may claim the benefit of juvenility at any point in time, even after the completion of proceedings, given the beneficial and rehabilitative nature of the statute. However, no analogous right exists for the victims in POCSO cases. The plea of juvenility on behalf of the victim cannot be raised at any stage of the proceedings.
In this context, the Hon’ble Supreme Court in Anurudh case (supra)[46] has held as under:
Unlike an offender who can claim benefit of juvenility at any point in time, even after completion of proceedings given the beneficial nature of the JJ Act, a victim of a crime cannot claim to be a juvenile at any point in time, for the charges against which an offender is tried, are intrinsically tied to the age of the victim. If a victim of a sexual offence was allowed to claim juvenility at any stage of the proceedings, in the same manner that an offender can under Section 9 of the JJ Act, it would have serious procedural and substantive consequences. For instance, an accused may have been charged under Section 376IPC which applies when the victim is an adult. However, if the victim is later determined to be below eighteen, the offence would fall under the POCSO Act, where consent is irrelevant and the punishments are more stringent. This would mean that the earlier trial, framing of charges, and recording of evidence were all conducted under an incorrect legal framework. The proceedings would therefore be vitiated, and the trial could be rendered a nullity, necessitating the reframing of charges and a fresh trial under the correct statute.
CONCLUSION
The age determination of victims in POCSO cases is not a mere procedural formality—it is the jurisdictional bedrock upon which the entire edifice of a POCSO trial rests. The law, as it now stands clarified by the Hon’ble Supreme Court in Anurudh case (supra)[47] is unambiguous that age determination is not a matter to be deferred until the stage of judgment but must be undertaken at the inception of the trial. The Special Court must therefore be alive to this jurisdictional imperative from the very outset. To act otherwise would be to build the trial on uncertain foundation. It is only when the trial proceeds on the legal and jurisdictional footing from the inception that the final verdict, whether of conviction or acquittal, can withstand the scrutiny of law. Till the Legislature takes note of the existing lacuna in the POCSO Act with respect to the absence of a statutory right of appeal against age determination orders and makes suitable amendments, the accused is left to pursue remedies that are considerably narrower in scope, which is a state of affairs that does not reflect well on the completeness of the statutory scheme of the POCSO Act.
*ShriKrishna Dagliya , Special Judge (POCSO ACT)/District and Additional Sessions Judge, Anuppur, MP (M.P.)
**Vidhi Dagliya, Civil Judge, Senior Division, Anuppur, MP
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[4] 2026 SCC OnLine SC 40
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[39] By virtue of judgment in P. YuvaPrakash versus State, (2024) 17 SCC 684, ‘Board’ read as ‘Special Court’
[40] Section 35 POCSO Act
[41] Section 35 POCSO Act
[42] 2026 SCC OnLine SC 40
[43] 2026 SCC OnLine SC 40
[44] 2026 SCC OnLine SC 40
[45] 1974 SCC OnLine SC 143
[46] 2026 SCC OnLine SC 40
[47] 2026 SCC OnLine SC 40