POCSO Act: Bombay High Court rules mere absence of wisdom tooth is not conclusive proof of survivor's age

Mere absence of wisdom tooth is of not a conclusive evidence to prove the age of a rape survivor, the Bombay High Court held last week, while acquitting a man convicted under the Protection of Children from Sexual Offences Act (POCSO Act) [Maherban Hasan Babu Khan vs State of Maharashtra]..Single-judge Justice Anuja Prabhudesai noted that the special court in Raigad district, while convicting the appellant on December 18, 2019, had relied on the testimony of the dentist, who examined the victim both clinically and radiographically, to assess her age. He had deposed that he did not notice the wisdom tooth i.e. the third molar and on this basis opined that the age of the victim was approximately 15 to 17 years. In his cross-examination, the dentist had, however, admitted that wisdom tooth can erupt at any time after 18 years of age, the judge noted.Justice Prabhudesai referred to Modi’s Medical Jurisprudence, which stated that the second molars erupt between 12 to 14 years whereas the third molar (wisdom tooth) erupts between 17 to 25 years. "It is thus evident that all the permanent teeth except the wisdom tooth, erupt by the time the average boy or girl reaches the age of puberty whereas, wisdom tooth erupt between the ages of 17 to 25 years. Eruption of wisdom tooth may at the most suggest that the age of the person is 17 years or above but non-eruption or absence of wisdom tooth does not conclusively prove that the person is below 18 years of age. Therefore, the mere fact that wisdom tooth have not erupted is not of great importance in assessing the age," the judge held. .The bench was hearing an appeal filed by one Maherban Hasan Babu Khan challenging his conviction under charges of rape and other relevant provisions of the POCSO Act. As per the prosecution case, he had sexual intercourse with the victim girl on the promise of marriage. However, when she informed him that she was pregnant on March 25, 2016, he said he will return to Raigad from his native place in Uttar Pradesh and marry her. But he did not marry her and in fact avoided her.Therefore, the victim, who claimed that she was born on December 19, 2000, lodged a criminal complaint against him, after which he was arrested. In his defence, the man claimed that he wanted to marry the victim and after his return from Uttar Pradesh, he tried to trace her but she was not traceable and suddenly he was arrested by the Police. He maintained that he would want to marry the girl and even look after the child she gave birth to. .In the judgment, Justice Prabhudesai noted that the prosecution did not examine relevant witnesses to prove the victim's age and thus it remained unproved."The prosecution has also not adduced any evidence regarding the victim’s physical growth and development and secondary sexual character. This discrepancy also leaves room for ample doubt with regard to the correct age of the victim, the benefit of which must necessarily go in favour of the appellant," the judge observed.The prosecution, therefore, failed to prove beyond reasonable doubt that the victim was below 18 years of age, the Court held. "This was relevant as the evidence on record otherwise indicates that the physical relationship between the Appellant and the victim was consensual. In the absence of evidence to prove that the victim was below 18 years of age, the provisions of the POCSO Act cannot be invoked and consensual relationship would not constitute rape within the meaning of Section 375 of the IPC," the bench underscored.It, therefore, quashed the conviction and acquitted the appellant..Advocates Jagdish Kumar and Sanjeev Hegde appeared for the Appellant.Additional Public Prosecutor NB Patil represented the State. Advocate Rebecca Gonsalves represented the victim..[Read Judgment]