Ossification test requires benefit of doubt to accused; school admission register insufficient to prove minority under POCSO | Gauhati HC acquits accused in Section 6 POCSO case : Gauhati HC

The Gauhati High Court acquitted the appellant of charges under Section 363 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, holding that the trial court erred in relying on an unexamined school admission register to prove minority and that the ossification test, when read with a +/-2 year margin in favour of the accused, showed the victim was above 18 at the time of the alleged incident, rendering the POCSO charge unsustainable.

Background & Facts

The Alleged Incident

The appellant, Horen Bhuyan, was accused of having kidnapped, seduced and made pregnant the victim, Smti Anju Ghatowar, on or subsequent to 07 May 2021, as per the charge framed by the trial court. The victim stated that she had eloped with the appellant due to a consensual relationship and had informed him of her pregnancy on 07 May 2021, after which they travelled together to Jorhat and Dibrugarh before arriving at the appellant’s house.

Medical Evidence and Age Determination

• The victim was examined by Doctor PW-3 on 11 May 2021, who reported the absence of hymen and estimated her age to be above 16 years and below 18 years based on radiological assessment.
• An ultrasonography conducted on 13 May 2021 revealed a single intrauterine live pregnancy of 13 weeks and 3 days gestational age.
• The radiological/ossification test report dated 13 May 2021, as testified by PW-3, indicated the victim’s age to be over 16 years and below 18 years at the time of the incident.
• However, relying on Supreme Court precedents, the Court noted that an ossification test carries a margin of approximately +/-2 years and, when the benefit of this margin is given to the accused, the victim’s age must be considered above 18 years.

Charges Framed

On 25 February 2022, the learned Trial Court framed charges under Section 366 of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012, alleging that the appellant had taken away the victim on 07 May 2021 at 12 noon without her guardian’s consent with intent to seduce or force her to illicit intercourse, and had committed penetrative sexual assault and made her pregnant on or after that date.

Procedural History

• The case originated as Dergaon P.S. Case No. 188/2021.
• The Special Judge (POCSO), Golaghat, convicted the appellant under Section 363 IPC and Section 6 POCSO Act vide judgment and order dated 30 September 2024 in Special POCSO Case No. 50/2021.
• The appellant filed the present criminal appeal (CRL.A(J)/92/2025) before the Gauhati High Court.
• The appeal was heard and judgment delivered on 15 September 2026.

Parties' Positions

For the Appellant: Counsel submitted that the victim’s age was not proved to be a minor because the entry in the school admission register lacked evidentiary value without examination of the person who made the entry, and that the charge failed to give notice of any alleged offence prior to 07 May 2021, violating Section 211(3) Cr.P.C. It was further argued that there was no evidence of sexual intercourse on or after 07 May 2021, and the victim’s own testimony established a consensual relationship between two adults.

For the Respondent: The State and the victim contended that the school admission register entry could be relied upon to determine age, citing State of Chhattisgarh vs. Lekhram, and that any error in the charge framing did not occasion a failure of justice since the appellant was aware of the allegations, as shown by cross-examination of the prosecution witnesses, invoking Sections 215 and 464 Cr.P.C.

Relief Sought

The appellant sought acquittal from the charges under Section 363 IPC and Section 6 POCSO Act, setting aside of the impugned judgment dated 30 September 2024, and immediate release from judicial custody.

The Legal Issue

The central question was whether the trial court could lawfully rely on an unexamined entry in the school admission register to prove the victim’s minority for the purpose of attracting the provisions of the POCSO Act, and whether the ossification test report, when read with the statutorily recognised +/-2 year margin in favour of the accused, demonstrated that the victim was above 18 years of age at the time of the alleged incident, thereby negating the essential ingredient of minority under Section 6 of the POCSO Act, 2012.

Arguments Presented

For the Appellant/Petitioner

Counsel relied on Birad Mal Singhvi vs. Anand Purohit (AIR 1988 SC 1796) to argue that an entry in a school admission register has no evidentiary value to prove age unless the person who made the entry or provided the date of birth is examined; in the present case, the mother of the victim (PW-2) stated she did not possess the birth certificate and could not state the date of birth, having only assumed the victim’s age to be 16 years at the time of the alleged incident, thereby failing to establish the foundation for the register’s reliability. It was further contended that the charge, framed solely for an offence alleged to have occurred on or after 07 May 2021, violated the requirement of Section 211(3) Cr.P.C that the offence be given a specific name to afford the accused notice, and that no evidence existed to show sexual intercourse on or after that date, while the victim’s own testimony under Section 164 Cr.P.C confirmed a consensual relationship between two adults.

For the Respondent/State

The respondents relied on State of Chhattisgarh vs. Lekhram ((2006) 5 SCC 736) to assert that school admission register entries are admissible under Section 35 of the Indian Evidence Act, 1872 and possess evidentiary value when corroborated by oral testimony of persons aware of the fact, such as the parents. They argued that any error or omission in the charge framing did not vitiate the trial because the appellant was not misled, as evidenced by his awareness during cross-examination that he had been charged with raping the victim and being responsible for her pregnancy prior to 07 May 2021, invoking the protection afforded by Sections 215 and 464 Cr.P.C, which shield a finding from invalidity absent a failure of justice.

The Court's Analysis

The Court began by examining the evidentiary value of the school admission register entry. Relying on Birad Mal Singhvi vs. Anand Purohit, it held that the entry in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. Since the mother of the victim, PW-2, expressly stated that she did not possess the birth certificate and could not specify the date of birth, having only assumed the victim’s age to be 16 years at the time of the alleged incident, the foundation for the register’s reliability was absent. Consequently, the Court could not treat the admission register as conclusive proof of minority.

Turning to the medical evidence, the Court noted the radiological/ossification test report dated 13 May 2021, which placed the victim’s age between 16 and 18 years. However, drawing on Mukarrab Vs. State of UP ((2017) 2 SCC 210) and Yuvaprakash vs. State of TM ((2024) 17 SCC 684), the Court emphasized that an ossification test cannot be solely relied upon as conclusive proof of age and carries a margin of approximately +/-2 years. In accordance with the principle that, in case of doubt, the benefit must be given to the accused, the Court added two years to the upper limit of the ossification estimate, thereby concluding that the victim must be considered above 18 years of age at the time of the incident.

The Court then addressed the challenge to the charge framing under Sections 215 and 464 Cr.P.C. It observed that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground of any error, omission or irregularity in the charge unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. The appellant’s own awareness, demonstrated during cross-examination of PW-2, that he had been charged with raping the victim and being responsible for her pregnancy prior to 07 May 2021, negated any claim of being misled. Moreover, the victim’s testimony under Section 164 Cr.P.C corroborated a consensual relationship and her voluntary movement with the appellant due to her pregnancy, further undermining the prosecution’s case.

Finally, the Court considered the essential ingredient of minority under Section 6 of the POCSO Act, 2012. Since the victim’s age could not be established as below 18 years, the requisite condition for attracting the provisions of the POCSO Act was missing. The Court therefore concluded that the trial court could not have convicted the appellant under Section 6 POCSO Act, and consequently the conviction under Section 363 IPC, which was predicated on the same factual matrix, also failed.

"Thus, due to the above reason, the victim would have to be considered to be above 18 years at the time of the incident."

Accordingly, the impugned judgment and order dated 30 September 2024 were set aside, the appellant was acquitted of the charges under Section 363 IPC and Section 6 POCSO Act, and the respondents were directed to release the appellant from judicial custody immediately if not wanted in any other case.

The Verdict

The appellant succeeded in the appeal. The Court set aside the impugned judgment and order dated 30 September 2024 passed by the Special Judge (POCSO), Golaghat, acquitted the appellant of the charges under Section 363 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, and directed the respondents to release the appellant from judicial custody immediately, provided he is not required in any other case. The appeal was accordingly allowed.

What This Means For Similar Cases

Evidentiary Value of School Register

• The mere entry of a date of birth in a school admission register is insufficient to prove minority unless the person who made the entry or provided the information is examined and cross-examined.
• Practitioners must challenge the foundation of such documentary evidence by seeking proof of the informant’s knowledge or examining the register’s custodian.
• Reliance on an uncorroborated register entry risks violating the evidentiary standards laid down in Birad Mal Singhvi vs. Anand Purohit.

Ossification Test and the Benefit of Doubt

• An ossification test provides only an approximate age range and carries a recognised margin of error of approximately +/-2 years.
• In criminal proceedings where age is a material ingredient of the offence, the benefit of this margin must be given to the accused to resolve any doubt in favour of innocence.
• The prosecution must supplement ossification findings with additional evidence such as birth certificates or school records supported by reliable testimony to prove age beyond the permissible margin.

Consensual Relationship and Age of Majority

• A victim’s testimony under Section 164 Cr.P.C indicating a consensual relationship and voluntary cohabitation with the accused, especially when coupled with medical evidence of pregnancy, can rebut the presumption of minority under the POCSO Act.
• Where the victim asserts that she eloped with the accused due to love and informed him of her pregnancy, the defence may argue that the essential element of lack of consent or minority is missing.
• Courts are inclined to treat such consensual conduct between persons who have attained majority as outside the purview of penal provisions designed to protect children.