The determination of the victim's age is crucial in cases of sexual offences, and the court emphasized the importance of following the procedure for determining the age of a juvenile under the Juvenile Justice Act. The court also highlighted the margin of error in age determination through radiological examination and its impact on the final decision.

JUDGMENT :

1. This Criminal Appeal, under Section 374 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), has been preferred by the appellant-Vimlesh (hereinafter referred to as 'appellant') against the judgment and order dated 28.1.2016, passed by Additional Sessions Judge, Court No. 10/Special judge Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'), Unnao, in Special Sessions Trial No. 15/2015 (State vs. Vimlesh), arising out of Case Crime No. 1043/2014, P.S. Makhi, District Unnao, whereby the appellant has been convicted and sentenced for offence under Section 376 (2) I.P.C., for 10 years rigorous imprisonment with a fine of Rs. 10,000/- and for offence U/s 366 I.P.C., for 5 years rigorous imprisonment with a fine of Rs. 5,000/- with further direction that all the sentences shall run concurrently.

2. The prosecution case, in brief, is that Dharam Pal (P.W.-2), father of victim (P.W.-3), lodged the first information report (Ext.-Ka-2) (in short F.I.R.) on 15.12.2014, at about 15:30 p.m. at P.S. Makhi, District Unnao, alleging that P.W.-3 aged about 14 years, had left her house on 07.12.2014 to go to her maternal uncle (mama)'s house situated in Village Kokarikhurd, but it was found that she did not reach there. It was also found that the appellant, who is distant relative, as mama (maternal uncle) of the victim, r/o Mustafabad h/o Pakhraura, had enticed the victim away with the help of appellant's elder brother-Kamlesh, his father-Gauri Shankar and his mother-Nanhi. It is further alleged that the victim had also taken away Rs. 35,000/- in cash, a silver anklet of 200 grams and 2 mobile phones bearing no. 7309354605 and 7052809921 with her.

3. On the said information, a criminal case was registered against the appellant-Vimlesh, Kamlesh along with co-accused-Gauri Shankar and Smt. Nanhi and the investigation was handed over to S.I., Suresh Chandra (P.W.-8), who, during investigation, recorded the statement of Dharam Pal (P.W.-2), visited the place of occurrence, prepared site plan (Ext.-Ka-11), arrested the appellant along with victim (P.W.-3), prepared a recovery memo (Ext.-Ka-3) and sent the P.W.-3 for medico legal examination.

4. Dr. Sanju Agarwal (P.W.-4), examined the victim on 16.12.2014, at about 3:45 p.m. According to her, at the time of examination, the victim was aged about 15 years ; no external or internal injury was found on the person of victim; her hymen was old and torn ; two slides of vaginal smear were prepared and sent for pathological examination. According to her further, she had prepared medico legal examination report (Ext.Ka-6) and supplementary medico legal examination report (Ext.-Ka-7) on the basis of pathological report, but no dead or alive sperm was found and the victim was also sent for determination of her age to radiological expert.

5. Dr. Rajendra Kumar (P.W.-1) conducted the radiological examination of the victim and according to him, on the basis of x-ray report (Ext.-Ka-1) and x-ray plates (material Ex.1), the right knee joint of the victim was fused, whereas the wrist joints were not fused and the victim was aged about 15 years.

6. Meanwhile, investigation was transferred to S.I., Pramod Kumar Yadav (P.W.-7), who produce the victim before the concerned Judicial Magistrate for recording her statement under Section 164 of the Code.

7. The statement, under Section 164 of the Code (Ext.-Ka-5), of the victim (P.W.-3), was recorded on 19.12.2014 by the concerned Judicial Magistrate, wherein she stated that the appellant-Vimlesh had come at her home and enticed her to come with money, which was kept by her father. She further stated that he (appellant) enticed her away and kept moving her till 8 days. She further stated that he used force (rape) with her ; she had requested him to carry her to her home but police had caught her at Chakalbansi. She further stated that the appellant is her maternal uncle (mama) in distant relationship and som