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. 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 through the papers of charge sheet and has submitted that the application for discharge from the Sections of the POCSO Act may be allowed. 6. In support of his case, learned advocate Mr. Learned advocate for the applicant has taken this Court through the papers of charge sheet and has submitted that the application for discharge from the Sections of the POCSO Act may be allowed. 6. In support of his case, learned advocate Mr. Anand Tailor for the applicant has relied upon the decision of Apex Court in the case of P. Yuvaprakash vs. State Rep. by Inspector of Police, 2023 (0) AIJEL SC 71210. 7. Learned APP Ms. Jirga Jhaveri for the respondent-State has submitted that the complainant, in the complaint, has stated that the victim, who is daughter of his elder brother, was aged about 13 years and she was residing with the complainant since one month before the date of the incident. That on 10.09.2022, the victim had gone out of her house and as she did not return till around 7:30 pm, he went to look for her and he saw the applicant committing a rape on her. That at that time, the victim was crying and the complainant is an eye witness to the entire incident. That the victim was immediately taken for treatment and there is ample medical evidence to show that the applicant had physically assaulted the victim as in the medical certificate it is mentioned that her lips were swollen, there were abrasion marks on her right and left shoulders, right elbow, lower back region, upper back region and multiple scratches and abrasions over the right shoulder region. That the applicant has forcefully, after physically assaulting the victim, committed a rape on her and for the same, the complainant is an eye witness to the incident. That the applicant, even during his medical examination, has voluntarily narrated the said facts before the Medical Officer. As far as the age of the victim is concerned, the prosecution has the evidence in the form of the Aadhar Card of the victim, which shows that the date of birth of the victim is 10.05.2008 and the incident has occurred on 10.09.2022, which proves that the victim was only 14 years and 4 months on the date of incident. That if the charge sheet is perused, witness No. 18 is the officer, who has issued the Birth Certificate of the victim and in this matter, the charge is yet to be framed and the prosecution has to lead evidence. That if the charge sheet is perused, witness No. 18 is the officer, who has issued the Birth Certificate of the victim and in this matter, the charge is yet to be framed and the prosecution has to lead evidence. But, prima facie, there is sufficient evidence to show that the victim was a minor on the date of incident. As far as the Ossification Test is concerned, the Ossification Test has been conducted and MLC No. 4728 of 2022 is on record and it is settled law that the Ossification Test is merely an opinion regarding the age of the victim and there is always variation of plus minus of two years. Hence, merely on that basis, it cannot be said that the victim was a major. That the applicant has alleged to have committed a very serious offence and hence, the present application may be rejected. 8. As discussed above, it is the case of the applicant that the prosecution has not produced any evidence regarding the date of birth of the victim but, in the same line, the applicant has produced a copy of the Aadhar Card of the victim, wherein, the date of birth of the victim is 10.05.2008 and the incident has occurred on 10.09.2022 and hence, the victim was 14 years and 4 months on the date of incident as per the date of birth on the Aadhar Card. The applicant has produced a copy of the charge sheet and in the charge sheet, witness No. 18, as cited by the prosecution, is the officer, who has issued the Birth Certificate of the victim. The complainant, in the complaint, has clearly stated that the victim, who is his niece, was 13 years old and even in the Medical Certificate issued by GMERS Medical College and Hospital, Sola, Ahmedabad, the age of the victim is stated as 14 years. That as stated by the learned APP, the charge is yet to be framed and the applicant is alleged to have committed very serious offence and has forcibly committed rape on a minor girl in a public place at around 7:30 pm and the complainant is the eye witness to the incident. That as stated by the learned APP, the charge is yet to be framed and the applicant is alleged to have committed very serious offence and has forcibly committed rape on a minor girl in a public place at around 7:30 pm and the complainant is the eye witness to the incident. That the medical papers also suggests that the applicant has physically assaulted the victim and there were abrasion marks found on the various parts of the body of the applicant and also her lips were swollen and the prosecution has yet to lead evidence on record. That as pointed out by the learned APP in the history before the Medical Officer, the applicant has also voluntarily narrated how the offence came to be committed and the prosecution has evidence regarding the date of birth of the victim. As laid down in the case cited by the learned advocate for the applicant in the case of P. Yuvaprakash (Supra), only in the absence of date of Birth Certificate issued by the Corporation or the Municipality or the Panchayat or the birth certificate from the school, the age shall be determined by the Ossification Test and it is the case of the prosecution that the prosecution has evidence regarding the date of birth of the victim. Even otherwise, the Ossification Test would merely be an opinion about the age of the victim and without leading evidence, it cannot be concluded at this juncture that the victim was not a minor at the time of incident. 9. The applicant has filed the present application under Section 397 read with Section 401 of the Cr.P.C. and as per Section 397 of the Cr.P.C. correctness, legality or propriety of any finding must be examined. On perusal of the order passed by the learned Trial Court, the learned advocate for the applicant has not been able to point out any incorrectness, illegality or impropriety in the impugned order, whereas, the learned Trial Court has observed that the Ossification Test is a mere opinion and the Aadhar Card of the victim has been placed on record, which shows that the date of birth of the victim is 10.05.2008 and it can be said that the victim is 14 years and 4 months of the age at the time of the offence. That the learned advocate for the applicant has not brought on record any documents to show that the victim was, in fact, major on the date of the incident and has not been able to show that the order passed by the learned Trial Court is illegal or improper. It is pertinent to note that the evidence before the learned Trial Court is yet to be produced by the prosecution on record and the charge has not been framed and at this juncture, the application of the applicant deserves to be rejected and accordingly, is rejected. Notice discharged.