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"9. Detenu was arrested and detained on October 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention; Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert in October, AIR 1982 SC 1297 Dr.GRR,J 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This, young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed."

28. This judgment is relied upon by the learned counsel for the appellant on the aspect that the margin of error in age ascertained by radiological examination could be taken as two years on either side. His contention was that as PW.12 had stated that the victim was aged between 13 to 15 years, the margin of error could be around 11 to 17 years on either side; and if the margin of error was considered as 17 years, it would not come under the 6th description of Section 375 of I.P.C., and it had to be seen that whether the act of sexual intercourse was done with her consent.

29. Learned counsel for the appellant further relied on the decision of the Delhi Court in Swetha Gulati (2 supra) wherein it was held that since no Dr.GRR,J document of age was available, the age of the victim was determined by the Child Welfare Committee as 17 years basing on the ossification report. The bone ossification report has estimated the age as 17 to 19 years. Applying the margin of error principle of two years on either side, it was held that the age of the victim therein could be between 15 to 21 years. Even if the margin of error was not taken on the higher side, it was held that upper limit of the age estimated by the ossification test was 19 years, and the benefit of doubt was given to the accused considering the age of the victim as 19 years setting aside the order passed by the Child Welfare Committee and that of the Appellate Court determining the age of the victim as 17 years.

32. In the decisions relied by the learned counsel for the appellant, considering the totality of the circumstances of the cases, the margin of error was allowed to the benefit of the accused. The facts of these cases also would not disclose that they were rape cases against a minor child and Dr.GRR,J the facts of the present case would not disclose that the victim is a consenting party or had the age to give consent.