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14. To appreciate the rival submissions raised at the bar and after weighing and analysing the evidence brought on record, it is necessary to first advert to the age of the victim suffice it to mention that the mother of the victim had given the age of her daughter as 13 years. The victim had stated that she was 14 years old when she was kidnapped. No birth certificate or age certificate was produced by the prosecution. The only document is an entry in a register of a private school i.e. the attendance register, photocopy of which is Ex.PW4/A. The date of birth mentioned therein is 18.08.1993. The Medical Officer had advised radiological CRA-S-232-SB-2009 (O&M) -11- test, ultrasound and DNA test. According to the ossification test, the age of the girl was between 14 to 16. The trial Judge had opined that the girl was under 16.

17. The Medical Officers on the basis of the radiological tests had opined that the girl was between the age of 14 and 16. If a margin of 2 years is added, the girl would be over 16 years of age. The medical report is only an expert's opinion. The accurate assessment of age cannot be made. The prosecution had failed to bring the birth certificate. Even if the report of the ossification test is taken at its face value considering the possibility of an error of plus minus two years in the opinion rendered by the radiological CRA-S-232-SB-2009 (O&M) -16- examination, it could not be concluded with certainty that the prosecutrix was below 16 years of age on the day of incident. The victim was over 16 years of age. It is settled that when two opinions are possible, the one favouring the accused has to be taken. A similar issue was being deliberated by the Division Bench in State of NCT of Delhi Vs. Shiva & Ors., Crl. L.P. No.172/2008, decided on 16.03.2012 wherein it is held:-

"Ossification test was conducted to determine the age of the prosecutrix. Her age was opined between 14 to 16 years as per report Ex.PW-8/B. This report was prepared on 19.02.2003 by Dr.Rahul Garg. However, the prosecution did not produce him to prove his opinion and only examined one M.D.Joshi, Record Clerk, DDU hospital, who merely identified his handwriting and signatures. The prosecution did not summon any other competent doctor to prove the opinion given by Dr.Rahul Garg. Even if the report Ex.PW- 8/B is taken at its face value, considering the possibility of an error of plus minus two years in the opinion rendered by radiological examination, it cannot be concluded with certainty that the prosecutrix was below sixteen years on the date of incident. In Jaya Mala v.Home Secretary, Govt.of J&K (1982) SCC 1296, the Supreme Court held that there can be two years' margin either way in radiological examination.