Wisdom Tooth Absence Not Enough to Prove Age in POCSO Case, Says Bombay High Court
The Bombay High Court has said that the absence of a wisdom tooth cannot be treated as clear proof of a person being a minor. This decision came during the hearing of a case under the POCSO Act, where the accused, Maherban Hasan Babu Khan, was previously convicted of rape and other charges.
According to the complaint, the accused had sexual relations with the girl after promising to marry her. When the girl became pregnant and informed him on March 25, 2016, he said he would return from Uttar Pradesh to Raigad, Maharashtra, and marry her. However, he did not return and started avoiding her, after which she filed a police complaint.
The girl claimed she was born on December 19, 2000. The accused, however, said he had planned to marry her and was looking for her after returning to Raigad. He claimed that police arrested him suddenly and that he was willing to take care of the child she gave birth to.
The trial court convicted him based on the testimony of a dentist, who said the victim had no wisdom tooth, suggesting her age was around 15 to 17 years. But during cross-examination, the dentist admitted that wisdom teeth can appear even after 18 years.
Justice Anuja Prabhudesai, who heard the appeal, pointed out that the prosecution did not call enough reliable witnesses or provide documents to prove the girl’s age. As a result, the court said her age was not confirmed beyond reasonable doubt.
Since the evidence showed the relationship was consensual, and the girl’s age was not proven to be under 18, the court ruled that POCSO charges do not apply. Without proof of age, the relationship does not qualify as rape under Section 375 of the Indian Penal Code.
The court set aside the conviction and acquitted Maherban Hasan Babu Khan.
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