Tuesday 12 October 2021

How to appreciate evidence of bone ossification test and margin of error principle?

 It is an admitted position that the Medical Board did not examine the prosecutrix personally for ascertaining her age and Board has based its finding on the report, Ex.P.3 prepared by Dr. Sheetal Jain and the X-ray plates dated 9.12.99 and 28.12.99. It is also an admitteds fact that the prosecution has failed to examine the person who took the X-rays on 8.12.99 and 28.12.999. Even the X-ray report dated 8.12.99 has not been exhibited. It is also not established from the record as to on whose nequisition the X-ray was again done on 28.12.99. Neither the said requisition nor the report have been produced on record. On the other hand, the prosecutrix has stated that she was X-rayed only once. PW.13 Prahlad Singh, Investigating Officer has also admitted that he got the prosecutrix medically examined only once on 8.12.99 for determining her age and to find out whether rape was committed on her. In this unconstroverted fact situation, it would not be safe to place reliance on the X-ray plates dated 28.12.99 and the opinion of the medical board, which is based on such X-ray plates. Be that as it may, assuming it to be true that according to the ossification test, the age of the prosecutrix was between 14 to 16 years, still it is well settled that margin of error of 2-3 years in age on either side is permissible. {Para 17}

18. On the question of margin of error of 2-3 years on either side is permissible, learned counsel for the appellant has placed reliance on Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir (1), Mangal Singh v. State of Rajasthan (2), Gurinder Singh v. State of Punjab (3), Narendra Singh v. State of Madhya Pradesh (4), Sheela Bai and Anr. v. State of M.P. (5) and Sribatcha Khamari v. State of Orissa (6).

19. I have gone through the case laws cited above and the ratio of all the cases referred to above is that margin of error in age by 2-3 years is permissible on either side.

21. I have gone through the case laws cited by the counsel for the complainant. Having carefully gone through the case laws, I am of the considered view that law laid down in the aforesaid cases are not applicable to the facts and circumstances of the present case as the facts involved in those cases and that of involved in the present case are entirely distinguishable, inasmuch as, the oral as well as documentary evidence viz., the school leaving certificate have been considered and found highly untrustworthy and unreliable.

22. Thus, as stated above, there is no direct documentary or oral reliable evidence about the age of the prosecutrix, except the medical evidence, according to which her age, as per the ossification test was between 14 to 16 years when the offence as alleged was committed. However, keeping in view the margin of error in age ascertained by ossification test may be 2-3 years as propounded in the case laws cited by the counsel for the appellant, the question that emerges is as to whom the benefit of margin should be given. Considering the fact that it is a case of criminal liability, the benefit of margin should go in favour of the accused appellant unless such margin is explained by some piece of evidence. In the instant case, as discussed above, there is no explanation by any substantial piece of evidence. Therefore, I am inclined to give marginal benefit to the accused appellant. Keeping in mind the permissible variance of 2-3 years in the age, it is held that the age of the prosecution, at the time of incident, was 18-19 years. 

Rajasthan High Court
Nand Kishore vs State Of Rajasthan on 22 May, 2002
Equivalent citations: 2002 CriLJ 4157, RLW 2003 (2) Raj 765, 2002 (3) WLC 567

Bench: K C Sharma
Read full Judgment here : Click here

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