Shiv Shankar Mishra vs State & Anr.
2020 Latest Caselaw 662 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 31.01.2020
+        CRL.M.C. 426/2020 and CRL.M.A. 1770/2020
         SHIV SHANKAR MISHRA                         ..... Petitioner
                         Through: Mr. Dhruv Gupta, Mr. Vishal Sharma
                                   and Mr. Harshil Gupta, Advs.
                         versus

         STATE & ANR.                                       ..... Respondents
                            Through:     Mr. Hirein Sharma, APP for State
                                         with SI Prateek Saxena, PS - Jaitpur,
                                         Delhi
                                         Mr. Jai Kishan Sharma, Manager, Bal
                                         Vaishali Public School, Jaitpur, Delhi
         CORAM:
         HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                            J U D G M E N T (ORAL)

1. Vide the present petition, petitioner seeks setting aside of order dated

21.01.2020 passed by learned Additional Sessions Judge (POCSO Act),

South-East, Saket District Courts, New Delhi in Sessions Case No.

183/2019 arising out of FIR No. 675/2018 dated 04.11.2018 registered at

Police Station - Jaitpur for the offences punishable under Sections

354/354A/506 IPC read with Section 8 of POCSO Act, 2012, whereby the

prayer of the petitioner to conduct an Ossification test on the

complainant/respondent No.2 was erroneously rejected by the learned trial

Court.

2. Learned counsel appearing on behalf of petitioner submits that

impugned order is erroneous and contrary to the record and is against the

settled cannons of law. Vide the impugned order dated 21.01.2020, Id. Trial

Court erroneously believed and relied upon age related documents of the

complainant purportedly obtained from a private school which show her to

be minor on the date of alleged offence, however, as a matter of fact, the

complainant was a major, hence, in order to test the jurisdiction of the

learned trial Court and the veracity of case of prosecution, an ossification

test is warranted in the facts and circumstances of the present case coupled

with the fact that even invocation of the provisions of the POCSO Act could

be tested accordingly. However, the Id. trial arbitrarily rejected the same.

3. Learned APP appearing on behalf of the State submits that as per the

case of the prosecution, on 04.11.2018, a written complaint was given by the

complainant/ respondent no.2 herein alleging that the petitioner, who

happens to be a close friend of her father, allegedly molested her at an

unknown place in the month of January, 2017 and thereafter, again,

molested her at her house in the month of June, 2017. Upon the said

complaint, an FIR bearing No. 675/2018 dated 04.11.2018 was registered

against petitioner under the provisions mentioned above.

4. On 04.11.2018, the petitioner was arrested by the investigating

authorities in the aforesaid FIR but was subsequently admitted on regular

bail on 30.11.2018. He further submits that there is a school certificate,

where her date of birth is recorded 06.12.2000. If proof of date of birth is

available, there is no requirement of Ossification test. The exercise being

done by petitioner is just to delay the trial. The investigating authorities

filed a charge sheet in the aforesaid FIR under Sections 354A/354B/506 IPC

and section 8 of POCSO Act, 2012, and cognizance was taken by the

concerned Court. The investigating authorities also filed some age related

documents pertaining to complainant collected from her school, namely,

New Bal Vaishali Public School, Delhi, claiming her date of birth as

06.12.2000 and that of her real younger brother as 19.12.2001. Thus, the

complainant was 17 years and 11 months old on the date of incident.

5. On 22.10.2019, the matter was listed for arguments at the stage of

charge before the Ld. trial Court. It was submitted on behalf of petitioner

that facts of the case warrant that an Ossification test be conducted on the

complainant as her purported date of birth i.e. 06.12.2000 is false and her

true date of birth was 06.02.1998, thus, complainant was major on the date

of alleged offence in the month of January, 2017.

6. The petitioner also filed some documents before the trial Court which

were the print outs of the Facebook page of the brother and father of the

complainant, which were available in public domain, which clearly showed

that the date of birth of the complainant and her brother was 6th February

and 19th August, respectively, as against their claim of 6th December and

19th December, respectively. The petitioner also filed an application dated

10.01.2020 under Section 91 Cr.P.C. for directions to the

prosecution/investigating authorities to file on record and also to supply to

the petitioner, the Call Detail Records of mobile no. 9871471791 used by

the complainant for the period from January, 2017 onwards and the matter

was reserved for orders on said two aspects. However, on 21.01.2020, the

Id. Trial Court erroneously passed the impugned order whereby the prayer

for conducting an Ossification test was rejected and the application u/s 91

Cr.P.C. seeking directions to place Call detail Record of the mobile no.

9871471791 on record was allowed and the matter was adjourned for

03.02.2020 for arguments on charge on merits.

7. The documents on record purportedly given by a private school

namely New Bal Vaishali Public Schooi, Delhi, viz. 1) application form for

admission of the complainant, 2) a single sheet reflecting the admission

details of complainant and her brother, 3) affidavit purportedly given by the

father at the time of admission of the complainant in the said school, did not

clearly establish her true age and it was a specific contention of the

petitioner/ accused that complainant was a major on the date of the alleged

offence.

8. On perusal of the impugned order, learned trial Court has held that

"As per Section 94 of the Juvenile Justice (Care & Protection of Children)

Act, 2015 when the date of birth from the school of the child is available

then there Is no occasion for directing her ossification test In view of the

provision of the Juvenile Justice Act."

9. As per Section 94(2) of the Juvenile Justice Act, 2015, 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, the birth certificate given by a Corporation or Municipal Authority

or Panchayat shall be considered. However, in the absence of aforesaid

proof certificates, 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.

10. In the present case, the respondent No. 2 got admitted in second

standard on the basis of an affidavit as stated by Manager of the School, who

is present in Court wherein stated that the victim passed her first standard

from a school of her village. However, there is no school leaving certificate

produced by the parents of victim. Based upon the affidavit, her age is

mentioned as 06.12.2000, whereas, the messages of her own father on her

daughter's birthday were of 6th February. However, the year is not clear

from the messages but there is a doubt whether she was born on 6th

December or 6th February.

11. In view of the doubt as created by the petitioner, for the fair trial, it is

the duty of the Court to ascertain the age of the victim. Accordingly, I

hereby set aside the order dated 21.01.2020 and consequently, trial Court is

directed to take steps for Ossification test of the victim.

12. Petition is accordingly disposed of.

13. Order dasti under signatures of the Court Master.

(SURESH KUMAR KAIT) JUDGE

JANUARY 31, 2020/PB