Madhya Pradesh High Court | Says Trial Courts Consistently Fail in Duties Despite Training | Acquits Accused in POCSO Appeal for Non-Consideration of Ossification Test
Isabella Mariam
The High Court of Madhya Pradesh Division Bench of Justice Vivek Agarwal and Justice Avanindra Kumar Singh allowed an appeal filed against the conviction and sentencing under provisions of the Indian Penal Code and the Protection of Children from Sexual Offences Act. The Bench set aside the judgment of conviction rendered by the trial court and directed immediate release of the appellant. The Court held that the benefit of doubt regarding the age of the victim must accrue to the appellant in light of the ossification test and absence of reliable documentary evidence of age. The Bench further directed that the appellant be released forthwith if not required in any other case, and the case property be disposed of according to the trial court’s directions.
The appeal arose out of the judgment dated 9 October 2023 delivered by the Special Judge under the Protection of Children from Sexual Offences Act, Balaghat, in Special Case No.25/2021. The trial court had convicted the appellant under Section 366 of the Indian Penal Code, Section 3/4 of the Protection of Children from Sexual Offences Act, and Section 5(l)/6 of the Protection of Children from Sexual Offences Act. The appellant was sentenced to rigorous imprisonment of seven years with fine of Rs.5,000 under Section 366 IPC, rigorous imprisonment of ten years with fine of Rs.5,000 under Section 3/4 POCSO Act, and rigorous imprisonment of twenty years with fine of Rs.5,000 under Section 5(l)/6 POCSO Act. In default of payment of fine, the appellant was to undergo rigorous imprisonment for three months for each offence.
Learned counsel for the appellant prayed for withdrawal of the interlocutory application for suspension of sentence and grant of bail, numbered I.A. No.7298/2025. The application was accordingly dismissed as withdrawn. With consent of the parties, the matter was heard finally.
The appellant challenged the conviction on the grounds that the case was one of consent as revealed by the statement of the victim (PW-1). It was submitted that the victim was an adult at the time of the incident, as supported by the x-ray report dated 28 June 2021. The defence alleged that the prosecution failed to exhibit this report before the trial court, thereby withholding material favourable to the accused. The x-ray report indicated fusion of ossification centres of the iliac crest, radius, and ulna, suggesting that the victim’s age was approximately 17 years. Reference was made to Modi’s Textbook of Medical Jurisprudence and Toxicology, which noted a possible error margin of up to two years in age determination through ossification test.
The prosecution presented a date of birth of 24 December 2004 for the victim, supported by Exhibit P/24-C and proved by (PW-9). However, the victim’s mother (PW-2) testified that she did not know the date of birth of her daughter and had not provided any such document during school admission. Similarly, the victim’s father (PW-3) stated that no birth certificate had been prepared nor had the date of birth been recorded in the village register. Both parents admitted lack of knowledge regarding the exact date of birth.
The victim herself (PW-1) stated that she knew the appellant and had been in contact with him over the phone. She admitted to leaving her parents’ home without informing them and traveling to Hyderabad with companions for work. She acknowledged that she initially named the appellant out of fear of her parents. In her statement under Section 164 of the Criminal Procedure Code (Exhibit P/3), the victim stated that the appellant had proposed marriage to her, which she accepted. They performed a marriage ceremony at a temple in Hyderabad and subsequently stayed together.
Dr. Geeta Barmate (PW-12) examined the victim and found no injury marks, noting that the hymen was old torn, with no signs of recent violation. She recommended x-ray examination to assess age, which was carried out. The report of ossification was available on record but not exhibited in trial. The doctor confirmed that the urine pregnancy test was negative and exhibited her medico-legal certificate as Exhibit P/23.
The learned Public Prosecutor opposed the appeal, relying on the positive DNA report and the date of birth records.
The Division Bench observed that "despite regular training in the Madhya Pradesh State Judicial Academy, learned trial Courts are consistently failing to perform their duties as a Judge." The Court noted that although the DNA report (Ex.C/1) was exhibited after closure of prosecution evidence, the trial court failed to record supplementary statement of the accused under Section 313 Cr.P.C. to confront him with this circumstance. The Court remarked, "trial Court did not deem it proper to record supplementary statement of accused under Section 313 of Cr.P.C. and confront him to the circumstances which appeared against him in view of DNA test report despite referring it in its judgment."
The Bench also recorded, "despite there being availability of x-ray report on record as was ordered by Dr. Geeta Barmate (PW-12), that has neither been exhibited nor Court deem it proper to mark it as a Court Exhibit." The Court noted that the report prima facie favoured the accused, as the ossification centres had fused, suggesting an age range of 17 to 19 years. Citing Modi’s text, the Court held, "when this aspect is taken into consideration, then the range of age of the victim will be between 17 to 19 years."
Referring to precedents, the Court cited Alekh Prasad v. State (1964) 2 Cr.L.J. 102, where it was held that if other evidence of age is unsatisfactory, the ossification test may be accepted as a surer ground for age determination, especially when it benefits the accused. The Court referred to Mohd. Said Khan v. State of Madhya Pradesh (1985) 1 Crimes 1 (MP), which held that the ossification test, though not certain, is generally accepted as the best available test. The Court noted Jayamala v. Home Secretary, Government of Jammu Kashmir, AIR 1982 SC 1297, which observed that there could be a variation of one or two years in ossification-based age estimates. The Bench stated, "When this aspect is taken into consideration, then we are constrained to observe that trial Court committed several irregularities."
The Court further cited Lallusingh S/o Jagdishsingh Samgar v. State of M.P., 1996 MPLJ 452, which established that the accused can rely on documents available on record in his defence even without formal proof. The Court also referred to Karan alias Fatiya v. State of Madhya Pradesh, (2023) SCC Online SC 217, where the Supreme Court held that ossification provides only a broad assessment and carries a margin of error.
The Bench observed, "ossification report not giving the range and in view of clear finding of O.C. of illiac crest being fused, benefit can be and should be extended in favour of the accused especially when both the parents of the victim have failed to bring on record any documentary evidence in regard to date of birth of the victim."
It further held, "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."
The Division Bench allowed the appeal and set aside the trial court’s judgment. The Court stated, "Accordingly, this appeal is allowed. The impugned judgment of conviction is hereby set aside. Appellant is acquitted of the charges." It directed, "Appellant be released immediately, if not required in any other case." Further, the Bench ordered, "Case property be disposed of as per the directions of the learned trial Court." The trial court record was directed to be sent back immediately.
Advocates Representing the Parties:
For the Petitioners: Shri Chintransh Shrivastava, learned counsel for the appellant.
For the Respondents: Shri Nitin Gupta, learned Public Prosecutor for the respondent/State.
Case Title: XXX v. State of Madhya Pradesh and Others
Neutral Citation: 2025: MPHC-JBP:38420
Case Number: Criminal Appeal No.14475 of 2023
Bench: Justice Vivek Agarwal, Justice Avanindra Kumar Singh
