The Hon’ble Delhi High Court ruled that the relevant documents which need consideration by the concerned Court for determination of age are (i) the date of birth from the school or matriculation or equivalent certificate from the concerned examination board and in the absence thereof (ii) the birth certification given by a corporation or a municipal authority and (iii) and only in 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. 

In the present case, the Bench opined that though the basis of recording the date of birth of the victim in school records appeared to be an affidavit furnished by the father of the victim at relevant time but the same does not lead to an automatic inference that the same had been wrongly furnished and the age of the victim in such an eventuality has to be treated above 18 years. 

It was also held that the appellate court was not required to re-appreciate the evidence at the stage of consideration of application 389 Cr.P.C. and try to pick up some contradictions or loopholes in the case of the prosecution. 

Brief Facts: 

The present application has been preferred by the Appellant under Sections 389 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) for suspension of sentence under Section 363 IPC and Section 6 of POCSO Act. 

Contentions of Appellant: 

It was argued that age of the victim could not be proved on the basis of Date of Birth recorded in the school record since the same is not supported by any record from municipal authorities on the basis of which the date of birth was recorded.

Contentions of the State: 

It was contended that victim was aged about 14 years and nothing has come up on record to presume that she had reached the age of valid consent, i.e. 18 years. 

Observations of the Court: 

It was noted that Section 34(1) of the POCSO Act, 2012 where an offence is committed under POCSO Act by a child, such child shall be dealt under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015. Section 34(2) further provides that if any question arises in any proceedings 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 further the reasons for such determination shall be recorded in writing. 

On the relevance of Section 94 of the JJ Act, it was ruled that the relevant documents which need consideration by the concerned Court for determination of age are (i) the date of birth from the school or matriculation or equivalent certificate from the concerned examination board and in the absence thereof (ii) the birth certification given by a corporation or a municipal authority and (iii) and only in 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. 

In the present case, it was noted that the age of the victim was not bordering the age of consent of 18 years but was claimed to be about 14 years on the date of the incident. 

The Bench opined that though the basis of recording the date of birth of the victim in school records appeared to be an affidavit furnished by the father of the victim at relevant time but the same does not lead to an automatic inference that the same had been wrongly furnished and the age of the victim in such an eventuality has to be treated above 18 years. It was also held that the appellate court was not required to re-appreciate the evidence at the stage of consideration of application 389 Cr.P.C. and try to pick up some contradictions or loopholes in the case of the prosecution. 

The decision of the Court: 

Based on the aforementioned reasons, the application was accordingly dismissed. 

Case Title: Rasul Azam V. The State Gnct Of Delhi & Anr.

Case No.: CRL.A. 537/2023

Coram: Hon’ble Justice Anoop Kumar Mendiratta 

Advocate for Appellant: Adv. Ms. Sunita Arora 

Advocates for Respondent: Advs. Ms. Meenakshi Dahiya, APP with W/SI Himanshi and ASI Anita 

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