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15. It is a settled position of law that a margin of two years on either side is to be considered when age is estimated on the basis of medical evidence, i.e, X- ray report, commonly known as an ossification test.

16. It is well settled that an ossification test, though is a guiding factor for determining the age, the same is not conclusive or incontrovertible and leaves a margin of error and the benefit of doubt with regard to the age of the victim always goes in favor of the accused.

17. In this regard, learned counsel for the appellant has relied upon the decision of a Co-ordinate Bench of this High Court in the case of Sri Utpal Debnath Vs. The State of Assam & Others , reported in 2023 (0) Supreme (Gau) 259, (Criminal Appeal No. 276 of 2019), decided on 04.05.2023, wherein it has been observed as follows:

"26. As regards the evidence of PW-9 i.e. Dr. Atreyee Goswami, who examined the victim girl, is concerned, it appears that she exhibited only Page No.# 13/21 medical examination report as Ext. 4 and on perusal of medical examination report, it appears that the Column No. 3 which mentions about the age of the patient, has been kept unfilled and nothing has been mentioned therein. It also appears that doctor has opined that the age of the victim is below 18 years (16 to 17 years) as per the report of radiologist, though no separate report of radiologist has been exhibited in this case. Even if, we consider the opinion of PW-9 as regards the age of the victim, which was based on radiological examination of the victim, it is an accepted fact that the age determined on the basis of radiological examination may not be an accurate determination of the age and sufficient margin of error on either way has to be allowed. The Hon'ble Supreme Court of India, in several of its decisions, has laid down that in case of ascertainment of age by radiological examination, a margin of error of two years on either side has to be reckoned with.
27. In the instant case, as no certificate of age has been exhibited, during trial, by any of the prosecution witnesses, the doctor's opinion is the only evidence, available in, the present case which may be relied upon. In such a case a margin of error has also to be reckoned with. It is also a settled principle now that in case of determination of age on the basis of the opinion of the radiologist, the benefit of the margin of error should always go to the accused. In the instant case, the doctor has opined that the age of the victim was below 18 years (16 to 17 years) and if we add 2 (two) years of margin of error to 16 (sixteen) to 17 (seventeen) years, it will come 18 (eighteen) to 19 (nineteen) years, in which case, the victim may not be regarded as a minor as under section 2(1)(d) of the POCSO Act, 2012 a child is defined as any person below the age of 18 years. Same is also the case in case of offence under Section 363 of the Indian Penal Code. In view of above circumstances, this Court is constrained to hold that the prosecution side has failed to prove that the age of the victim was less than 18 years when the alleged offence was committed and the benefit of the same would go to the accused (present appellant)."

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18. Further, in the cited case of Alamelu & Another Vs. State Represented by Inspector of Police reported in (2011) 2 SCC 385, the Hon'ble Apex Court held as follows:

"46. In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognised by this Court in Jaya Mala v. Govt. of J&K. In the aforesaid judgment, it is observed as follows: