Dismissed

Sanjay @ Sanju Verma v. State of Chhattisgarh

Chhattisgarh HC3 Mar 2021CRMP/186/2021

Case brief

AI extract

What is this about?

In a petition against an order rejecting an application for an ossification test to determine the victim's age in a POCSO/rapes case, the High Court dismissed the petition. The bench held that school admission certificates confirm the age, making medical tests unnecessary as a last resort, while keeping the specific age issue open for trial.

What did the court decide?

The petition challenging the rejection of the ossification test application was dismissed; no cost awarded.

Sanjay @ Sanju Verma Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 186 of 2021

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Sanjay @ Sanju Verma, S/o Shri Pitamber Verma,
Aged about 23 years, R/o Village Arjuni, Police
Station Bhatapara Gramin, Distt. Balodabazar-
Bhatapara, Chhattisgarh.

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 ---Petitioner/Accused

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Versus

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State of Chhattisgarh, Through the Station House
Officer,PoliceStationSimga,Distt.
Balodabazar-Bhatapara, Chhattisgarh.

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 --- Respondent

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For Petitioner :-Mr. Govind Ram Miri, Advocate
For State:-Mr. Ravi Bhagat, Dy. G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

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03/03/2021

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1.Petitioner's application for medical examination

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of the victim to determine her age has been
rejected by learned Special Judge (Atrocities),
Balodabazar-Bhatapara by impugned order dated
24/11/2020 (Annexure P/1) against which the
instant petition has been preferred.

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2.Mr. Govind Ram Miri, learned counsel for the
petitioner, would submit that learned Special
Judge is absolutely unjustified in rejecting
petitioner's application for ossification test

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of the victim by passing a non-reasoned and non-
speaking order and without assigning any reason,
his application has simply been rejected by
learned Special Judge, as such, the impugned
order deserves to be set aside.

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3.Mr. Ravi Bhagat, learned State counsel, would
support the impugned order and he would rely
upon the decision of the Supreme Court in the
matter of State of Madhya Pradesh v. Anoop
Singh1.

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4. I have heard learned counsel for the parties, considered their submissions made herein-above and went through the records with utmost circumspection.

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5. Petitioner herein has been charge-sheeted for offences punishable under Sections 363, 366 and 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012. In the particulars of crime, victim's age has been mentioned as 17 years whereas in the copy of her

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school admission certificate, it has been
mentioned as 24/12/2004, as such, petitioner
filed an application for conducting ossification
test of the victim which has been rejected by

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1 (2015) 7 SCC 773

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learned Special Judge by the impugned order
which is not a reasoned and speaking order. It
could have been passed by clearly stating the
grounds on which petitioner's application has
been rejected and no specific reason has been
assigned by learned Special Judge in the
impugned order, but the fact remains that in one
of the certificates, victim's date of birth has
clearly been mentioned as 24/12/2004.

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6.In the matter of Anoop Singh(supra), Their
Lordships of the Supreme Court have relied on
its earlier judgment of Mahadeo S/o Kerba Maske

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v. State of Maharashtra2and held that

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ossification test is not sole criterion for
determination of date of birth, when birth
certificate and middle school certificate are
available as under :-

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“14. This Court in Mahadeo v. State of
Maharashtra has held that Rule 12(3) of the
Juvenile Justice (Care and Protection of
Children) Rules, 2007, is applicable in
determining the age of the victim of rape.
Rule 12(3) reads as under :

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“12.(3) In every case concerning a child
or juvenile in conflict with law, the age
determination inquiry shall be conducted
by the court or the Board or, as the case
may be, the Committee by seeking evidence
by obtaining -

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2 2013 (14) SCC 637

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(a)(i) the matriculation or equivalent
certificates, if available; and in the
absence whereof;

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(ii) the date of birth certificate from
the school (other than a play school)
first attended; and in the absence
whereof;

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(iii) the birth certificate given by a
corporation of a municipal authority or
a panchayat;

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(b) and only in the absence of either
(I), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from
a duly constituted Medical Board, which
will declare the age of the juvenile or
child. In case exact assessment of the
age cannot be done, the Court or the
Board or, as the case may be, the
Committee, for the reasons to be
recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on
lower side within the margin of one
year.

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and, while passing orders in such case
shall, after taking into consideration
such evidence as may be available, or the
medical opinion, as the case may be,
record a finding in respect of his age
and either of the evidence specified in
any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall
be the conclusive proof of the age as
regards such child or the juvenile in
conflict with law.”

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15. This Court further held in para 12 of
Mahadeo as under :(SCC p. 641)

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“12..... Under Rule 12(3)(b), it is
specifically provided that only in the
absence of alternative methods described
under Rules 12(3)(a)(i) to (iii), the
medical opinion can be sought for. In the
light of such a statutory rule prevailing
for ascertainment of the age of the
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.

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(emphasis supplied).

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This Court therefore relied on the
certificates issued by the school in
determining the age of the prosecutrix. In
para 13, this Court observed: (Mahadeo
case, SCC p. 641)

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“13. In light of our above reasoning, in
the case on hand, there were certificates
issued by the school in which the
prosecutrix did her Vth standard and in
the school leaving certificate issued by
the school under Ext. 54, the date of
birth of the prosecutrix has been clearly
noted as 20-5-1990, and this document was
also proved by PW 11. Apart from that the
transfer certificate as well as the
admission form maintained by the Primary
School, Latur, where the prosecutrix had
her initial education, also confirmed the
date of birth as 20-5-1990. The reliance
placed upon the said evidence by the
courts below to arrive at the age of the
prosecutrix to hold that the prosecutrix
was below 18 years of age at the time of
the occurrence was perfectly justified
and we do not find any grounds to
interfere with the same.”

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16. In the present case, we have before us
two documents which support the case of the
prosecutrix that she was below 16 years of
age at the time the incident took place.
These documents can be used for
ascertaining the age of the prosecutrix as
per Rule 12(3)(b). The difference of two
days in the dates, in our considered view,
is immaterial and just on this minor
discrepancy, the evidence in the form of
Exts. P-5 and P-6 cannot be discarded.
Therefore, the trial court was correct in
relying on the documents.”

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7.Thus, in view of the aforesaid decision of the

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Supreme Court in the matter of Anoop Singh
(supra) relying upon their decision in Mahadeo
(supra), ossification test to determine the age

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of the victim can be only be used as a last
resort. In the instant case, a copy of victim's
School admission certificate is available in
which her date of birth has been mentioned as
24/12/2004, as such, there is no need for
conducting an ossification test to determine the
age of the victim and I do not find any case for
setting aside the impugned order at this stage.
However, this issue as to the age of victim is
kept open and shall be decided during the course
of trial by the Special Judge.

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8. The instant petition deserves to be and is accordingly dismissed. No cost(s).

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9. A copy of this order be sent to the concerned Special Judge for information and needful.

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Sanjay @ Sanju Verma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sanjay @ Sanju Verma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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