The Ossification Test is merely an opinion about the age of the victim and without leading evidence, it cannot be concluded that the victim was not a minor at the time of the incident.

ORDER :

1. This revision application has been filed by the applicant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, wherein, the applicant has challenged the impugned order below Exh.6 passed by the learned 5th Additional Sessions Judge, Ahmedabad (Rural) at Viramgam in Special Case (POCSO) No. 10 of 2022 on 14.08.2023.

2. The brief facts that emerge from the record of the case are as under:

2.1. That the applicant is the original accused of Special Case (POSCO) No. 10 of 2022 and FIR No. 11192061220224 of 2022 was registered on 11.09.2022 with the Viramgam Town Police Station, District Ahmedabad (Rural) for the offences punishable under Sections 376, 506(2) and 323 of the IPC and under Sections 3(a), 4, 5(l), 6, 9(l) and 10 of the Protection of Children from Sexual Offences Act, 2012 (herein after referred to as ‘the POCSO Act’ for short).

2.2. That after due investigation, a charge sheet came to be filed against the applicant and the case is registered as Special Case (POCSO) No. 10 of 2022. The applicant filed a discharge application under Section 227 of the Code of Criminal Procedure, 1973 for discharging him from the sections of the POCSO Act and after hearing the necessary parties, the learned 5th Additional Sessions Judge, Ahmedabad (Rural) at Viramgam rejected the application by order dated 14.08.2023.

3. Being aggrieved and dissatisfied with the said order, the applicant has preferred the present revision application mainly stating that as per the case of the complainant, who was known to the applicant, the victim, who is the niece of the complainant, went out from the home at around 5:30 pm on 10.09.2022 and did not return back till 7:30 pm. That the complainant went in search of her and when he went near a bridge, which was under construction near his home at village Bhojva, he saw that his niece was shouting “save me, save me” and as he rushed to her, he saw the applicant committing rape on his niece. He caught hold of the applicant and pulled him off from his niece. The victim’s jeans pant was lying nearby and the victim was crying and told him that the applicant had forcefully committed a rape on her. That the complainant and others took the victim to Viramgam Hospital and the police was called and a complaint was registered. The main contention of the applicant is with regard to the age of the victim and it is stated that the Aadhar Card of the victim suggests the date of birth of the victim is 10.05.2008 and as per the statement of the victim, her date of birth is 02.10.2008. That the Ossification Test and certificate issued by the Radiologist suggest that the victim is about 18 to 20 years old and hence, the applicant cannot be charged for the offence punishable under the POCSO Act as the victim was a major at the time of incident and therefore, the impugned order passed by the learned 5th Additional Sessions Judge, Ahmedabad (Rural) at Viramgam rejecting the application below Exh.6 made by the applicant may be quashed and set aside.

4. I have heard learned advocate Mr. Anand Tailor appearing for the applicant and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the respondent-State. Though served, the respondent-original complainant has not appeared either in-person or through an advocate.

5. Learned advocate for the applicant has reiterated the contents of the application and has vehemently argued that there is no iota of evidence to show that the victim was a minor on the date of incident and the only evidence that is produced by the prosecution is the Aadhar Card of the victim, which shows that the date of birth of the victim is 10.05.2008. That the Ossification Test of the victim has been done, which states the victim is aged between 18 to 20 years at the time of commission of the offence, and hence, the applicant cannot be charged for the offences punishable under the provisions of sections of the POCSO Act. Learned advocate for the applicant has taken this Court thro