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11. However, the victim in her statement under Section 164 Cr. P. C. stated her age as 20 years and the learned Magistrate also assessed her age as 20 years and she stated in her statement under Section 164 Cr. P. C. which is Ext. B that she has married with the appellant out of her own sweet will at Deoghar and none has threatened and she has a pregnancy of 4 - 5 months.

12. P. W. 6 is the doctor who examined the victim during investigation and found her age on the basis of radiological examination below 18 years. The doctor in his evidence in cross-examination has stated that below 18 years means more than 17 years but less than 17½ years. The doctor found old tear of hymen on the person of the victim and found the pregnancy of the victim of 12 to 14 weeks.

13. The trial court taking into consideration the evidence of P. Ws. 1 to 5 who deposed that the age of the victim as 14 years. The evidence of the doctor P.W. 6 who has reported her age as below 18 years meaning thereby in between 17 to 17- 1/2 years and the victim in her statement under Section 164 Cr. P. C. stated her age as 20 years as well as the age of the victim in the transfer certificate Ext. 4 mentioned as 24.09.1983. Hence, held that the evidence of the doctor based on radiological examination is not reliable as the radiologist has not been examined nor it appears that the detail examination was made for confirming the age of the victim.

20. And this view has further been confirmed in decision reported in AIR 2011 SC 715 (Alamelu and another v. State, Represented by Inspector of Police) With (Sekar and another v. State, Represented by Inspector of Police) With (Rangaswamy and another v. State, Represented by Inspector of Police.) while considering the evidence has cited an observation reported in AIR 2004 SC 175 "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue." Hence it is well settled that mere proof of the document (transfer certificate Ext. 4) by formal witness and even the evidence of the I.O. that he verified the fact of age mentioned in the register does not furnish evidence of the truth of the fact or content of the document. The truth or otherwise of the fact in issue namely the date of birth of the victim could be proved by admissible evidence i.e. by the evidence of those persons who gave vouchsafe for the truth of the fact in issue. No evidence produced to prove the date of birth of the victim in such circumstance. The date of birth mentioned in the transfer certificate cannot be accepted as the document has no probative value and hence determining the age of victim on the basis of entry is not sustainable. Hence, the age of the victim could not have been fixed on the basis of transfer certificate. There is no reliable evidence to vouchsafe the correctness of the date of birth recorded in transfer certificate. The medical evidence does not rule out the possibility of the girl being major specifically with regard to the age enunciated by victim in her statement under Section 164 Cr. P. C. and the court having assessed her age as 20 years. However, the doctor has assessed the age of the victim on the basis of radiological examination to be less than 17 years and he has mentioned that it is more than 17 but less than 17½ years. However, it is well settled that the age of the victim on the basis of radiological examination is not the exact date but has its variation of two years plus minus. However, when two possibilities are equally possible then one in favour of the accused is required to be taken. However, it is well settled that the age accrued by the doctor by radiological examination is not the exact age but a variation of + - 2 years then one is taken in favour of accused is required to be preferred. This presumption coupled with the fact that the victim in her statement under Section 164 Cr. P. C. has stated her age as 20 years and the Judicial Magistrate who recorded her statement also assessed her age as 20 years.

22. Having regard to the fact the date of birth on the basis of the documentary evidence Ext. 4 having been established the age on the basis of Ext. 4 is not acceptable and hence the finding recorded by the learned lower court that the age of the girl was below 16 years on the basis of Ext. 4 is hereby set aside.

23. However, having regard to the fact the evidence of the victim in her statement under Section 164 Cr. P. C. as 20 years and further the evidence of the doctor on the basis of radiological finding which is more than scientific in nature apparently 17 to 17½ years and if two years taken the margin of error be taken as two years her age was 17½ to 19½ years and once it is established that the victim was more than 18 years then the evidence are sufficient to establish that she was a consenting party. Hence, the order of conviction and sentence recorded by the lower court is hereby set aside and accordingly, this appeal is allowed.