Point of Law: It is well settled that ossification test or other medical test though is a guiding factor for determining age but it is not conclusive or incontrovertible and leaves a margin of error of two years on either side.

JUDGMENT :

1. Heard Mr. Z. Hussain, learned Amicus Curiae. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor for the State/respondent.

2. This appeal has been preferred by the sole appellant challenging the judgment and order dated 05.12.2020 passed by the learned Special Judge, Udalguri in POCSO Case No. 22/2017, whereby the accused/appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (herein after referred as POCSO Act) and sentenced him to undergo rigorous imprisonment for 10(ten) years and instead of imposing the fine amount directed him to pay compensation of Rs.50,000/-to the victim girl and her male child as provided under Section 357(3) Cr.P.C. and in default of payment of compensation, the appellant will be liable to under further simple imprisonment of 3(three) months.

3. The case of the prosecution is that the informant lodged an FIR on 31.03.2017 before the O/C, Mazbat P.S. stating inter-alia that since her parents passed away in her childhood, she grew up in the house of her grandfather Sri Mikhel Rajowar in the same village. She was about 13 years old at that time. The appellant on the pretext of marrying her, developed a love affair with her and impregnated her after having sexual intercourse with her on multiple occasions. It is further stated in the FIR that though the victim requested the appellant repeatedly to take her to his house but he did not pay heed to her request. Subsequently, he was eloped with another girl.

4. On receipt of the complaint, a case was registered vide Mazbat P.S. Case No. 20/17 under Section 6 of POCSO Act and investigation was initiated. During investigation, the investigating officer visited the place of occurrence, recorded the statement of the witnesses under Section 161 Cr.P.C. Subsequently, the victim was forwarded to the Magistrate for recording her statement under Section 164 Cr.P.C. and thereafter, she was sent for medical examination. After completion of investigation, charge-sheet was submitted against the accused/appellant under Section 6 of POCSO Act. Charge was framed accordingly under section 6 of POCSO which was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried.

5. During course of trial, 9(nine) witnesses were examined by the prosecution and exhibited five documents but the appellant did not adduce any evidence in support of his defence. After completion of trial, the statement of the appellant was recorded under Section 313 Cr.P.C. wherein incriminating materials found in the evidence of the witnesses were put to him to which he denied the same and pleaded his innocence. After hearing the arguments advanced by the learned counsel for the parties, the learned Special Judge, Udalguri convicted the accused/appellant as aforesaid. Hence, the appellant has preferred this appeal.

6. Mr. Z. Hussain, learned Amicus-Curiae has argued that to bring home the charge under the POCSO Act, the age determination of the victim is the prime factor which the prosecution has failed to do so during trial. The prosecution only proved the age of the victim through medical evidence as there is no birth certificate or any document to prove the actual age of the victim. It is also submitted by the learned Amicus Curiae that it is the established principle of law that there is a margin of error of two years of either side and the benefit of doubt always goes in favour of the accused. The radiological report states that the age of the victim was 16 to 17 years at the relevant time of the incident. As held by the Hon’ble Supreme Court that ossification test is no doubt a surer test but the margin of error is two years on either side. Therefore, the victim was not a minor at the relevant of the incident. Being major at the relevant time of the occurrence, the case does not fall under the purview of POCSO Act and in view of the evidence on record, Section 376 IPC is also not attracte