Does an ossification test carry a margin of two years on either side so that it cannot by itself fix the age of the prosecutrix?

Paragraph 14Similarly, though the prosecution has filed the birth certificate Ex.P.19 to show as if P.W.3 was born originally on 22.12.1999, as already stated, the name of the child was not mentioned in the birth certificate and the names of one Marappan and Malliga were shown as parents of the child and that the address mentioned in the birth certificate was also not tallied with the address of P.W.1. Therefore, merely because parents name was similar, it cannot be concluded that the Ex.P.19 birth certificate relates only to P.W.3. It is common in the village that there are many persons in similar name. Therefore, unless and until the birth certificate relied on by the prosecution is proved to be genuine and relating only to P.W.3, the age as mentioned by the prosecution to conclude that she was minor cannot be a certain one. It is further to be noted that, P.W.11, the medical officer, who has performed Ossification test, has found that P.W.3 has completed 17 years. It is well settled that as far as the ossification test is concerned, there is always two years error of margin on either side. Therefore, that cannot also be certain. At any event, when the evidence of parents itself indicate that the correct date of birth was not reflected in the school certificate and that the other certificates relied on by the prosecution also was not established, considering the fact that P.W.3 has also completed Plus 2, it is to be noted that she should have completed 17 years and further evidence also would indicate that even prior to that, she had also worked in a Banian company. Further, the brother of the victim, namely P.W.5 also has stated that there was love affair between P.W.3 and the accused.

Paragraph 15In this regard, it is relevant to refer to a decision of Hon’ble Supreme Court in Rajak Mohammad v. State of H.P., (2018) 9 SCC 248 and in paragraph no.9, the Hon’ble Supreme Court has held as follows: ‘9. While it is correct that the age determined on the basis of a radiological examination may not be 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.‘