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Showing contexts for: margin of error in Boominathan vs State: Inspector Of Police on 20 June, 2025Matching Fragments
8. In the instant case, the prosecution did not recover School Certificate or Birth Certificate of the victim (PW1). But, they have taken the victim to the Radiologist for the purpose of ascertaining her age. The Radiologist has ascertained her age as 'completed 16 years of age and not completed 17 years of age'.
9. So, it is claimed by the learned counsel for the appellant that the appellant has got the benefit of margin of error on either sides for two years and hence the victim's age can be considered as 'more than 18 years', which means, she is not a child within the purview of the POCSO Act.
11. The learned counsel for the appellant claimed that the margin of error in such cases is two years and if that benefit is given to the appellant, he cannot be charged under Section 8 of the POCSO Act. But, it has been held repeatedly that the margin of two years cannot be automatically applied in all POCSO Act cases.
12. Attention of this Court was drawn to the Judgement of the Apex Court held in Rajak Mohammad vs. The State of Himachal Pradesh in Criminal Appeal No.1395/2015, dated 23.08.2018, wherein it is stated that, while the age of the child determined on the basis of radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet, if the totality of the circumstances leave room for doubt with regard to the correct age of the prosecutrix, the benefit of such doubt would go in favour of the accused. https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/07/2025 01:30:06 pm ) So, it is not only the margin of error which would absolve the appellant from the liability to be charged under Section POSCO Act, but the other aspects of the case should also be taken into consideration before passing the above doubt in favour of the appellant.
19. It is seen from the evidence that the appellant was very protective and possessive about PW1 and PW2, who are his sister's children. Even according to the evidence of PW1 and PW2, at the time of occurrence, one third person by name Velmurugan was present, who had pacified the appellant when he started to beat PW1 and PW2.
20. Apart from all this contradictory and doubtful circumstances, the age of the victim was also not determined through her School Certificate. No reason has been given by the prosecution as to what prompted them to ascertain the age of the victim through medical examination without attempting to collect the School Certificate or Date of Birth Certificate. Since the age has been determined only through medical examination, marginal error advantage can also be given to the appellant in the extraneous circumstances of the case. As the marginal error can be one or two years on either side and as the victim was found to be 'completed 16 years of age and not completed 17 years of age', it cannot be strictly concluded that the victim is a child within the https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/07/2025 01:30:06 pm ) definition of POCSO Act.
21. In view of the marginal error and doubts regarding the age of the victim, the benefit of doubt can be given in favour of the appellant in the extraneous facts and circumstances of the case. Though the marginal error in the case of determination of age through medical examination cannot be an automatic interference, while the totality of the circumstances evaluated and it leaves room for doubt, then such benefit can be allowed to be passed on in favour of the appellant.