UPENDRA PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD .

(2.) IN this application under Section 482, Code of Criminal Procedure Petitioner challenges correctness of the order dated 15.11.99 passed by learned S.D.J.M. Bhubaneswar in G.R. Case No. 3585 of 1999 and the confirming order dated 15.1.2000 of the Sessions Judge, Khurda at Bhubaneswar rejecting the prayer of the Petitioner to get the custody of his daughter who, according to him, was aged about 15 years on the date of the occurrence.

(3.) AS per the informant's report and the prosecution allegation the victim girl Lily Pradhan's date of birth is 18.1.1984. Notwithstanding that, the Courts below have rejected the prayer of the Petitioner to take custody of the girl on the ground that the ossification test reveals her age to be 17 - 18 years and the victim girl herself stated her age to be 20 years. Learned Sessions Judge has also referring to the decision reported in AIR 1970 Punjab 450 has made an inference that the date of birth noted in the School Leaving Certificate does not reflect the correct date of birth. Suo motu such presumption will not arise unless there is sufficient ground to raise such a presumption. That aspect was completely lost sight by the learned Sessions Judge. Apart from that, the ossification test does not accurately determine the age of a person. As noted by the learned Sessions Judge there exist a margin or error of two years in determining the age on the basis of ossification report. So if the age is made less by two years that supports the version of the Petitioner that his daughter is aged about 15 years. Hence there is no reason to disbelieve the same in the absence of any contrary material.