In a significant ruling, the Bombay High Court has stated that the absence of a wisdom tooth is not conclusive proof of a survivor’s age under the POCSO Act. This judgment led to the acquittal of Maherban Hasan Babu Khan, who had been convicted of rape and related charges.
Maherban Hasan Babu Khan was convicted by a special court in Raigad district for having sexual intercourse with a young girl under the promise of marriage. When the girl informed him of her pregnancy on March 25, 2016, he promised to return from Uttar Pradesh and marry her but failed to do so, avoiding her instead. Following this, the victim, born on December 19, 2000, filed a criminal complaint against Khan, leading to his arrest.
In his defense, Khan claimed he intended to marry the victim and searched for her upon returning from Uttar Pradesh, only to be arrested. He expressed his willingness to marry her and take responsibility for the child.
Justice Anuja Prabhudesai noted that the Raigad district court had convicted Khan on December 18, 2019, based on a dentist’s testimony. The dentist, who examined the victim clinically and radiographically, suggested that her age was approximately 15 to 17 years due to the absence of a wisdom tooth (third molar).
However, during cross-examination, the dentist admitted that a wisdom tooth could erupt any time after 18 years of age. Justice Prabhudesai emphasized that the prosecution failed to present relevant witnesses to prove the victim’s age beyond a reasonable doubt. As a result, the prosecution could not establish that the victim was under 18 years old.
Justice Prabhudesai concluded that without conclusive evidence proving the victim’s age, the provisions of the POCSO Act could not be invoked. The court determined that the physical relationship between Khan and the victim appeared consensual, and without proof of the victim being a minor, it did not constitute rape under Section 375 of the IPC.
Consequently, the Bombay High Court quashed the conviction and acquitted Maherban Hasan Babu Khan.
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