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"(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?
(ii) Whether the principle of 'margin of error' is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test."

18. Learned counsel submits that while answering the said reference the Hon'ble High Court has held that the legal position is fairly settled and quite apparent. In the POCSO cases, the Court would be required to apply a margin of error of two years in the age of a victim. The Hon'ble Division Bench held that in case of sexual assault wherever the Court is called upon to determine the age of the victim based on ossification test, the upper age given in the reference is to be considered the age of the victim. It is submitted that if the principles laid down by the Hon'ble Division Bench of the Delhi High Court are to be followed, in the present case, the age of the victim ('X') has to be taken as 18 years.

5. Mukarrab and Others v. State of Uttar Pradesh 2016 SCC OnLine SC 1413 Patna High Court CR. APP (DB) No.461 of 2022 dt.23-01-2025

29. The Hon'ble Delhi High Court in the case of Shweta Gulati vs. State of NCT of Delhi reported in 2018 SCC OnLine Del 10448 held that the upper age was considered in order to ensure that the accused was not prejudiced in any manner. The Court was of the view that if there was any uncertainty, the benefit of doubt should go to accused and accused only. In another case of Raju Yadav vs. State of NCT of Delhi reported in 2023 SCC OnLine Del 2782, a conflicting view was taken. At this time, the Court took note of the objective of POCSO Act and held that determining the age of a child victim under POCSO Act, the inclination of the Court should be towards considering the lower side of the margin of error as that would be in consonance with the objective of POCSO Act. Taking note of the conflict in the two judgments of the Delhi High Court, the Hon'ble Court referred its own Division Bench judgment in the case of State v. Basir Ahmad reported in 2023 SCC OnLine Del 5852 in which the same issue had arisen for consideration. In the said case, the accused who was facing trial for committing sexual assault was acquitted by the learned trial court observing that the age of the prosecutrix was shown to be between 17 to 19 years and therefore, there was no conclusive evidence of her being a minor at the time of alleged offence. The benefit was extended to the accused who was acquitted. The Hon'ble Delhi High Court not only upheld the Patna High Court CR. APP (DB) No.461 of 2022 dt.23-01-2025 factum of consideration of the age on the upper side of the ossification report but also approved the principle of giving further margin of two years to such upper estimated age. The pertinent excerpts from the aforementioned judgment is being reproduced hereunder:-

"12. The question which thus arises is whether the lower or the upper age recommended in the ossification test should be adopted to be the age of the prosecutrix. If benefit of doubt has to be given to the accused under all circumstances, then, it is the higher limit which has to be taken and benefit extended as has been held in the cases of Triveniben Vs. State of Gujarat (1989) 1 SCC 678 and Maru Ram Vs. Union of India (1981) 1 SCC 107. So being the case, we may consider the range of age of the prosecutrix as given in the ossification test to be 17 to 19 years. Applying the margin of error principle of two years on either side, the age of the prosecutrix could be anything between 15 to 21 years. Even if the margin of error is not on the higher side, the upper limit of the age has been estimated by the ossification test as 19 years. Giving the benefit, the age of the prosecutrix has to be held as 19 years. Similar conclusion was taken by the Court in the case of Shweta Gulati vs. State of NCT of Delhi 2018 SCC OnLine Del 10448. We thus find that learned ASJ has rightly held the prosecutrix to be major at the time of incident. We find no infirmity in the findings in respect of the age of the prosecutrix."