Factual Background
In the case of Maherban Hasan Babu Khan vs the State of Maharashtra, the appeal was submitted by one Maherban Hasan Babu Khan contesting his conviction for rape and other pertinent POCSO Act clauses. He engaged in sexual activity with the victim girl while promising her marriage, according to the prosecution’s case. On March 25, 2016, when she told him she had become pregnant, he responded that he would leave his home in Uttar Pradesh and travel to Raigad to get married to her. However, he did not get married to her and avoided her. The victim, who asserted that she was born on December 19, 2000, filed a criminal complaint against him as a result, and he was subsequently taken into custody.
Contention from Parties
The defendant claims that after returning from Uttar Pradesh, he sought to find the victim to propose to her but was unsuccessful, and then all of a sudden, the police detained him. He continued to say that he would like to get married to the girl and even take care of the child she bore.
Analysis of Order
The Bombay High Court declared last week in acquitting a man who had been convicted under the Protection of Children from Sexual Offences Act (POCSO Act) that the mere absence of a wisdom tooth is of no sufficient evidence to indicate the age of a rape survivor. The victim was estimated to be between 15 and 17 years old by the court since the third molar, which contains the victim’s wisdom tooth, was not visible. However, the dentist had acknowledged during his cross-examination that wisdom teeth can emerge at any time after the age of 18.
The second molars erupt between the ages of 12 and 14, but the third molar (also known as the wisdom tooth) emerges between the ages of 17 and 25, according to Justice Prabhudesai’s citation of Modi’s Medical Jurisprudence. All of the permanent teeth—all but the wisdom tooth—erupt by the time the typical boy or girl enters puberty. Wisdom teeth, however, often appear between the ages of 17 and 25. The presence or lack of wisdom teeth does not necessarily indicate that a person is younger than 18 years old; at best, it may indicate that they are at least 17 years old. Therefore, it is not very significant to determine age based solely on the absence of wisdom teeth. Justice Prabhudesai pointed out that the prosecution failed to interview pertinent witnesses to establish the victim’s age, leaving it unproven.
This was significant because it showed that the Appellant and the victim had a mutually consenting physical relationship. The POCSO Act’s provisions cannot be used in this situation, and a consenting relationship would not qualify as rape under Section 375 of the IPC if there is no proof that the victim was under the age of 18. As a result, it overturned the conviction and declared the appellant innocent.