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7. While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused."

(emphasis supplied)

25. Thus it is clear that for the determination of age of victim, primacy shall be given to Date of Birth (hereinafter referred to as 'DoB') mention in matriculation (or equivalent) certificate, in absence thereof DoB mention in the school first attended by the victim shall be taken into consideration, in absence of both, the entries made by a corporation or a municipal authority or a panchayat regarding DoB shall be taken into account and finally if none of the aforesaid document containing DoB is available, medical evidence regarding age of victim, shall be taken into consideration. It is further clear that neither merely ocular evidence nor any other document shall be considered for determination of age.

29. In addition to above, the victim (P.W.-3) has also not stated that at the time of occurrence she was below to 16 years. In this regard she has only stated that she had studied upto Class-V in Primary School and according to entries made in school, she was minor but she further stated that she could not state whether the entries were true or false. Thus, the victim herself was not sure whether the entries regarding her age made in scholar register was correct or not. Further she was recovered by police on 31.03.2009 and she was produced on 01.04.2009 for medico legal examination before Dr. Rekha Gaur (P.W.-4), who after medico legal examination has reported that secondary sex characteristics of victim (P.W.-3) were fully developed at the time of examination ; her weight was 43 kg. having 14/14 teeth ; in radiological report her joints of right elbow, knee, wrist were fused and on the basis of said examination, the victim's age was declared at about 18 years at the time of occurrence. In addition to above, her (P.W.-3) statement was recorded before trial Court on 31.10.2013 where she had disclosed her age as 21 years. The occurrence was happened in 2009. It means that again according to this witness, her age was more than 16 years at the time of occurrence. Thus, the prosecution has failed to produce any document as required by 2007, Rules (supra) and also in view of law laid down by Supreme Court in Jarnail Singh (supra) and Rajak Mohammad (supra), to prove the age of victim. In addition to above, the evidence produced by the prosecution as discussed above has also been found unreliable.

30. So for as the consideration of medical opinion regarding the age of victim at the time of occurrence is concerned, in view of law laid down by the Supreme Court in Jarnail Singh (supra) if the prosecution fails to prove her age by a document as required in sub rule (i), (ii) and (iii) of aforesaid Rule 12, medical evidence shall be relied upon as last option to determine her age.

31. According to Dr. Rekha Gaur (P.W.-4) victims' age, at the time of examination, was at about 18 years. It is also pertinent to note that opinion regarding age of any person, based on medical and radiological evidence can not be treated accurate and exact. Such determination of age by medical expert may vary in view of race, gender, geographical area, nutritional status and other factors like colour of pubic and armpit hair, development of sexual characteristics and other changes in the body of the victim. Such variation may be of one or two year of either side.

32. Supreme Court in Jaya Mala v. Home Secretary J & K and Ors. AIR 1982 SC 1297 has held as under:

"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."

33. Dr. Rekha Gaur (P.W.-4) on the basis of radiological examination of the victim (P.W.-3) as well as development of her sexual characteristics, had found the age of victim as 18 years. From the perusal of statement of this witness as well as medico legal examination report (Ext.-Ka-1), it transpires that Munnu Lal (P.W.-5) was also present at the time of medico legal examination of the victim and he had given consent for such examination. In addition to above, the victim in her statement under Section 164 of the Code, recorded by the Judicial Magistrate, has specifically stated that at the time of occurrence her father, Munnu Lal (P.W.-5) had disclosed last year her age as 18 years and age mentioned by her father (P.W.-5) in F.I.R. as 14 years was false.