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248 cr.a. 572.18.jud..odt

8. I have heard learned Advocates for the appellants and learned APP for the State. I have also heard learned appointed Advocate to represent the victim/respondent No.2. Perused the record and proceedings.

9. Learned Advocate for accused No.1 submitted that there has been an inordinate delay in lodging the report and therefore, appellants deserve benefit of doubt. Learned Advocate submitted that there was a 37 days delay in lodging the report and therefore, the delayed report is suggestive of the fact that it was a result of due deliberation. The report was after thought and completely embellished. Learned Advocate submitted that the learned Sessions Judge has failed to properly appreciate this evidence. As far as accused No.2 is concerned, learned Advocate submitted that there is no iota of evidence against accused No.2 except the words of the victim. Learned Advocate for accused No.2 submitted that, therefore, accused No.2 deserves benefit of doubt. Learned Advocates for accused 248 cr.a. 572.18.jud..odt Nos.1 and 2 submitted that the report of the radiologist clearly proved that her age was between 16 to 18 years on the date of the incident. Learned Advocate submitted that in the case of a report of ossification test, there is always margin of error of two years on either side. Learned Advocates submitted that the margin of error on the higher side i.e. the margin of error which supports the contention of the accused is required to be accepted, and if it is so accepted it would show that on the date of the incident, the victim was more than 18 years of age. Learned Advocate submitted that evidence of PW-5 and PW-6 with regard to the birth date of the victim cannot be given any weightage and importance in the teeth of the report of the radiologist. Learned Advocates by relying upon the report of the radiologist tried to make good their submissions that the victim was a consenting party to the act. Learned Advocates, in order to prove this point, took me through her statement of the victim recorded under Section 164 of the Cr.P.C. and pointed 248 cr.a. 572.18.jud..odt out that in the said statement the victim had stated that in the month of July, 2014, accused Nos.1 & 2 had committed sexual intercourse with her. Learned Advocates submitted that the victim was consenting party. Learned Advocates further submitted that the evidence of the victim and her father as to the occurrence of the incident is not trustworthy. Learned Advocates pointed out various omissions and contradictions from their evidence and submitted that such dented evidence cannot be believed. As far as accused No.1 is concerned, the DNA report is against him. Learned Advocate submitted that purity of the sample and quality control of the samples analysed by DNA analyser has not been proved beyond any doubt to place implicit reliance upon the DNA report. Learned Advocate submitted that only on the basis of DNA report, the evidence of the victim and her father cannot be accepted.

10. Learned APP submitted that the DNA report has been used as a corroborative piece of evidence to base the 248 cr.a. 572.18.jud..odt conviction of the accused. Learned APP submitted that, on the basis of the cogent and concrete evidence, the prosecution has established the complete chain from the time of collection of the blood samples and other samples till the samples were analysed in the F.S.L. Nagpur. Learned APP submitted that there is hardly any material on record to doubt the quality control. Learned APP submitted that evidence on record is sufficient to prove that the victim, on the date of report, was carrying a pregnancy of six weeks and three days. Learned APP submitted that the delay in this case has been properly explained. It is pointed out that admittedly the victim was admitted in Irwin Hospital from 08.08.2014 to 04.09.2014. Learned APP further submitted that evidence of the victim (PW-1) and her father would show that on the say of the accused, her father was pressurized. Learned APP submitted that though accused Nos.3 to 7 are acquitted by the learned Judge, however, the fact remains that evidence of the victim 248 cr.a. 572.18.jud..odt and evidence of her father (PW-3) on the point of delay cannot be discarded. Learned APP further submitted that on the basis of proved minor omissions and contradictions no dent has been caused to the core of the evidence of the victim and her father. Learned APP submitted that on the basis of the legally admissible documentary evidence, the prosecution has proved that the birth date of victim is 10.02.2000. Learned APP, therefore, submitted that the margin of error of two years has to be appreciated in view of the documentary evidence. It is submitted that on the basis of cogent and concrete evidence it has been proved that on the date of the incident, the victim was 14 years old and as such a 'child' as defined under Section 2 (d) of the POCSO Act. Learned APP submitted that the learned Sessions Judge has thoroughly appreciated and analysed the evidence of the prosecution and recorded the cogent reasons in support of his findings. In short, it is submitted that the well reasoned judgment and order passed by learned Sessions Judge does not warrant interference.

248 cr.a. 572.18.jud..odt

14. In the above context, it is necessary to appreciate the evidence of Ajay Kadukar (PW-8), Radiologist. On 09.08.2014, he had examined the victim. He took the x-ray of the victim. He found that the victim had fracture to her hand. He has stated that on 15.09.2014, the victim was referred to him for a sonography test to determine the pregnancy. He conducted the sonography test. He has stated that the result of the sonography test disclosed that the victim was pregnant with gestation of 6 weeks 3 days plus or minus one week. He has stated that he conducted the ossification test of the victim. He has opined that the age of the victim as per the ossification test was between 16 to 17 years. It is true that as far as the result of ossification test is concerned, there is always a margin of error of two years on either side. In the absence of documentary evidence, the submissions advanced by the accused would have merited consideration. By accepting the error of margin on the higher side, the age of the victim on the date of the incident as 248 cr.a. 572.18.jud..odt per the ossification test would be 19 years. However, in the teeth of the evidence of birth date of the victim, as discussed above in this case, the margin of error on the lower side of age has to be accepted. It has been supported by the documentary evidence. It needs to be stated that when there is concrete documentary evidence to establish the birth date of the victim, then such evidence has to be given precedence over the report of radiologist. The scientific method of determination of the age by conducting the ossification test may not provide concrete evidence of the age. As stated above, in the case of the age determination by the radiologist, there is always a margin of error on either side. In my view, therefore, there is no substance in the submissions of learned Advocates for the accused that the victim on the date of incident was more than 18 years of age. The evidence on record is sufficient to conclude that the victim was 14 years of age on the date of the incident and as such, a child as understood by Section 2(d) of the POCSO Act.