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4. Appellant was also medically examined in the same hospital. No marks of external injury were found on the body of the appellant as well. Doctor opined that there was nothing to suggest that appellant was not competent to perform sexual intercourse under normal circumstances.

5. Age of the prosecutrix was got determined through radiological examination by a medical board of doctors since no document could be produced by the parents of the prosecutrix in support of her age. After examining the x-ray plates of her wrist, elbow, shoulder and pelvis, doctors opined that age of the prosecutrix was between 14 to 16 years.

12. Learned Amicus Curiae has vehemently contended that age of the prosecutrix has to be taken 18 years after extending benefit of two years on the higher end, as determined by the doctors through radiological examination. Conduct of the prosecutrix as emerges from the record indicates that she was a consenting party. Prosecutrix had accompanied the appellant and stayed with him for about seven days without raising any alarm or making any effort to escape which itself shows that she was a consenting party. During this period she had passed through crowded places and travelled by public transport without raising any alarm, She even did not complain to any person including her fellow passengers that appellant had been taking her with him forcibly. Prosecutrix has not deposed that appellant had threatened her by showing any weapon or otherwise and for this reason she had meekly accompanied him. Testimony of prosecutrix is discrepant as she has taken inconsistent stand at different stages. In nutshell, his contention is that prosecutrix being a consenting party, no offence of rape within the meaning of Section 375 IPC is made out against the appellant. Reliance has been placed on Satish Kumar Vs. State (Delhi) 1987 (3) Times 597. He has further contended that offence under Section 363 IPC is not made out since the prosecutrix had accompanied appellant voluntarily. Reliance has been placed on S. Varadarajan Vs. State of Madras 1964 (1) SCR 243.

14. I have considered the rival contentions of both the parties and meticulously scrutinized the evidence led before the Trial Court. First of all, it would be relevant to return a finding regarding age of the prosecutrix. In case, prosecutrix is found below 16 years of age her consent would be immaterial in view of clause sixthly of Section 375 IPC which provides that sexual intercourse with a woman under 16 years of age with or without her consent would amount to rape. In this case, no documentary evidence was made available to the Trial Court regarding exact age of the prosecutrix. No ocular evidence is also there to conclusively indicate that the age of prosecutrix was below 16 years as on the date of incident. Only medical evidence is available in this regard. PW7 Dr. M.K. Wahi was the Chairman of the Board which had rendered opinion regarding the age of the prosecutrix on the basis of radiological examination. He has deposed that x-ray plates were examined by him and other members of the Board. From the physical, dental and radiological examination it was found that prosecutrix was above 14 years but below 16 years of age. At the same time he has admitted that there is possibility of margin of six months to one year error on lower side of the age as well as on the higher side of the age. Thus, it is clear that age of a person cannot be conclusively determined by radiological examination. Margin of error is always there. In Jaya Mala Vs. Home Secretary, Govt. of Jammu & Kashmir & Ors. 1982 SCC 502, it has been held that one can take judicial notice that the margin of error in age ascertained by such examination is two years on either side. In Satish Kumar (Supra), Senior Radiologist had opined the age of the prosecutrix between 14 to 16 years. It was held that there can be existence of variation in the age on account of climatic, diabetic or hereditary factors extending upto one to two years, thus, age of the prosecutrix, could be between 17 to 18 years. In Azim vs. State 2010 III AD (Delhi) 823, as per the opinion of the doctor, who had examined the x-ray plates, age of the prosecutrix was above 14 and below 16 years. A Single Judge of this Court held that since there can be variation of up to two years in the bony age determined by examination of X-ray plates, the age of the prosecutrix could be up to approximately 18 years at the time she left the house of her parents. In this case no other evidence is available except report of PW7 according to which age of the prosecutrix was between 14 to 16 years. By giving benefit of margin of error of two years, the age of the prosecutrix can safely be taken as approximately 18 years. Thus, prosecutrix is to be taken as major as on the date of incident.