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38. The Hon'ble Supreme Court through the three Judge bench in Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal (2012) 9 SCR 224 held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. It is now well settled that the burden is always upon prosecution to establish what is alleges."

23. The Hon'ble Supreme Court in Mukarrab & Ors. vs. State of U.P. (2017) 2 SCC 210 observed that medical examination leaves a margin of two years on either side even if ossification test of multiple joints is conducted. It has further been observed that the Courts have always held that the evidence afforded by radiological examination is no doubt a useful Patna High Court CR. APP (DB) No.682 of 2019 dt.23-09-2024 guiding factor for determining the age of a person but the evidence is not conclusive and incontrovertible nature and it is subject to a margin of error. It is difficult to determine the exact age of the person concerned on the basis of radiological/ossification test or other tests.

24. The margin of error in age has been judicially recognized by Hon'ble Supreme Court in the case of Jay Mala vs. Home Secretary, Government of Jammu & Kashmir and Others (1982) 2 SCC 538 wherein the Hon'ble Supreme Court observed that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

25. The age of prosecutrix has an extremely crucial bearing in the case and it is imperative to establish the age of victim and thereby her minority. The law is now well settled that the method to determine the age of a juvenile is also applicable to determine the age of victim. As stated above, the Hon'ble Supreme Court in P. Yuvaprakash Vs. State represented by Inspector of Police reported in 2023 SCC OnLine SC 846 observed that whenever the dispute with respect to the age of a person arises in the context of her/him being a victim under the POCSO Act, the Courts have to take recourse to the steps indicated in Section 94 of the J.J. Act."

31. From the aforesaid observation made by the Division Bench of this Court after considering the various decisions rendered by the Hon'ble Supreme Court, it can be said that whenever the dispute with respect to the age of the person arises in the context of her or him being a victim under the POCSO Act, the Courts have to take recourse to the steps indicated in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015. Section 94(2)(iii) of Act of 2015 clearly indicates that the date of birth certificate from the school or Patna High Court CR. APP (DB) No.682 of 2019 dt.23-09-2024 matriculation or equivalent certificate by the concerned examination Board has to be firstly preferred. Further, the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed. Further, the evidence of approximate age of the victim would not be sufficient to come to any conclusion about the exact age of victim. If there is doubt with regard to the correct age of prosecutrix, the benefit must go in favour of the accused. It has been further observed that when a claim of juvenility is raised, the burden is on a person raising the claim to satisfy the Court to discharge the initial burden. Further, the burden proving that someone is a juvenile is upon the person claiming it and the said burden is always upon the prosecution to establish what it alleges. It has been also observed that the evidence afforded by radiological examination is, no doubt, a useful guiding factor for determining the age of a person but the evidence is not conclusive and incontrovertible nature and it is subject to a margin of error.

32. Now, keeping in view the aforesaid observation made by the Division Bench of this Court, relying upon various decisions rendered by the Hon'ble Supreme Court, if the evidence led by the prosecution, in the present case, is examined, it is revealed that PW-1 (victim) has stated, during Patna High Court CR. APP (DB) No.682 of 2019 dt.23-09-2024 cross-examination, that her date of birth mentioned on the matric certificate is 15.03.2001. However, she did not produce the said certificate before the Court. Further, PW-2 (Doctor), who had examined the victim had determined the age of the victim below 18 years on the basis of radiological report. However, she has admitted, during cross-examination, that she is not a radiologist or pathologist and thereafter, PW-2 has stated that it emerges that the victim is below the age of 18 years. It is pertinent to observe, at this stage, that the prosecution did not examine the radiologist. At this stage, it is also required to be observed that PW-5 (Investigating Officer) has specifically admitted, during cross- examination, that he had not verified the date of birth of victim girl from where she gave her matriculation examination. Thus, though it was the duty of the prosecution to prove the age of the victim girl by producing the documentary evidence, the prosecution has failed to produce such documentary evidence from which it can be established that victim girl in the present case was minor on the date of incident. Further, even from the radiological report, PW-2 has opined that the victim girl was below the age of 18 years. However, in view of the decision rendered by this Court as well as the Hon'ble Supreme Court, it can be said that the evidence afforded by radiological examination is a useful guiding factor for Patna High Court CR. APP (DB) No.682 of 2019 dt.23-09-2024 determining the age of a person, but the said evidence is not conclusive and incontrovertible nature and it is subject to a margin of error. Further, as per the decision rendered by the Hon'ble Supreme Court in the case of Jaya Mala Vs. Home Secretary, Goverment of Jammu and Kashmir, reported in AIR 1982 SC 1297, one can take judicial notice that margin of error in age ascertained by the radiological examination is two years on either side.