Margin of error in age ascertained by radiological examination can be 3 years on either side

Bail Application

High Court of Himachal Pradesh: A Single Judge Bench of Chander Bhusan Barowalia, J. allowed a criminal appeal and acquitted the appellant-accused of the charges under Sections 363, 366A, and 376 of IPC, giving him the benefit of doubt as to the age of the prosecutrix.

It was alleged that the prosecutrix was a minor and the appellant took her away on the pretext of marrying her and had sexual intercourse with her. The appellant was charged and convicted by the trial court under the above-mentioned sections. Learned counsel for the appellant, inter alia, contended that the court below failed to take into consideration the fact that as per the prosecutrix, her age was more than 17 years. And even as per the radiological examination the bony age of the prosecutrix was 15-and-half years, so there was a possibility of three years plus-minus and there was a possibility that her age was over 18 years.

The High Court perused the material on record and decisions of the Supreme Court as cited by the parties, and relying on Modi’s Medical Jurisprudence and Toxicology, held that plus three can be given in normal circumstances, considering extreme climatic conditions, viz. place of living and other circumstances. In the instant case the prosecutrix grew up in extreme climatic conditions and the available record showed that she was more than 15 years of age at the time of incidence; thus applying the above-mentioned method, there was a possibility that her age was more than 18 years. Accordingly, benefit of doubt was given to the appellant and the appeal was allowed. The appellant-accused was acquitted of all the charges.  [Aneep Kumar v. State of H.P., 2017 SCC OnLine HP 1528, order dated 11.09.2017]

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