The Bombay High Court recently ruled that the mere absence of a wisdom tooth cannot be considered conclusive proof of a victim’s age in cases under the POCSO (Protection of Children from Sexual Offences) Act. This ruling came during an appeal filed by Maherban Hasan Babu Khan, who had been convicted of rape and related charges under the POCSO Act.
Background of the Case
According to the prosecution, Khan had sexual relations with a girl on the promise of marriage. When the girl informed him of her pregnancy in March 2016, Khan allegedly promised to return from Uttar Pradesh and marry her, but he failed to do so and started avoiding her. The victim, claiming to be born on December 19, 2000, later filed a criminal complaint, leading to Khan’s arrest.
In his defense, Khan argued that he intended to marry the victim but lost contact with her after his return from Uttar Pradesh. He claimed that he was arrested before he could trace her and expressed his willingness to marry her and take care of the child.
Court’s Observations
Justice Anuja Prabhudesai, a single-judge bench, reviewed the case, noting that the lower court had based its conviction on the testimony of a dentist. The dentist had examined the victim and observed that her wisdom tooth (third molar) had not yet emerged. Based on this, the dentist estimated the victim’s age to be between 15 and 17 years.
However, during cross-examination, the dentist admitted that wisdom teeth can erupt at any time after the age of 18. The court further noted that the prosecution had not presented any other witnesses or evidence to conclusively prove the victim’s age.
Justice Prabhudesai highlighted that since the victim’s age could not be definitively proven, it could not be established beyond reasonable doubt that she was under 18 years of age. This was critical because the physical relationship between the appellant and the victim appeared consensual.
Verdict and Acquittal
As the prosecution failed to prove the victim’s age conclusively, the court ruled that the provisions of the POCSO Act could not be applied. Without evidence that the victim was a minor, the consensual relationship could not be classified as rape under Section 375 of the Indian Penal Code (IPC).
As a result, the court quashed Khan’s conviction and acquitted him of all charges.
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