[POCSO Act] Mere Non-Eruption Of Wisdom Teeth Not Conclusive Proof Of A Person's Minority: Bombay High Court

Justice Anuja Prabhudessai held that the prosecution could not prove beyond reasonable doubt that the complainant was a child at the time of the incident.

“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 court held.

The complainant alleged that the man had sexual relationship with her under the pretext of marriage when she was a 10th standard student. After she informed him about her pregnancy on March 25, 2016, he did not receive her calls and did not return to Mumbai, it was alleged. The complainant gave birth to a child who is the biological child of the appellant as per DNA report.

In his defense, the man stated that they were in a relationship, and he had gone to his native place in Uttar Pradesh to inform his mother about the marriage. When he got to know about her pregnancy, he told her that he would marry her after returning but could not trace her after returning. He stated that he is ready to marry her and take care of the child.

The trial court in 2019 convicted him under sections 4 (punishment for penetrative sexual assault) and 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act and sections 376(2)(i) and 376(2)(j) of the IPC. Hence the present appeal.

The prosecution relied on a dentist’s testimony that the wisdom teeth of the complainant were not clinically seen and hence her age was approximately 15 to 17 years. However, in his cross examination, he testified that wisdom teeth can erupt at any time after 18 years of age.

The court referred to Modi's Medical Jurisprudence which states that all permanent teeth erupt by the age of puberty except the third molars i.e., wisdom teeth which erupt between 17 to 25 years. At the most, eruption of wisdom tooth can suggest that the person is above 17 years, but mere non eruption cannot prove that the person is below 18 years old, the court opined.

The prosecution also relied on a School Leaving Certificate, which provided the complainant’s date of birth as December 19, 2000, as well as Ossification test results to prove that she was a child at the time of the incident.

The court noted that the complainant’s date of birth was recorded in the School Register on the basis of the School Leaving Certificate issued by a previous school.

Prosecution did not examine the person who recorded her date of birth in the School Register. Further the elder siblings of the complainant did not disclose her date of birth court noted.

Since the material based on which her date of birth was recorded in the School Register and the School Leaving Certificate is absent, the entry regarding her age in these documents has no probative value, the court held.

The Ossification test report stated that the victim was below 18 years of age. The court noted that this report was not admitted under section 294 of CrPC. Rather, the prosecution produced it through the Medical Superintendent of the hospital, who did not write the report himself.

The prosecution did not examine the orthopaedic surgeon who examined the victim, the medical officer who wrote the report, or any other orthopaedic surgeon or radiologist who could explain the basis of the opinion. Therefore, the court held that the Ossification test report has no evidentiary value.

The court noted that ossification test or other medical test is not incontrovertible and has a margin of error of 2 years on other side. The dentist assessed the complainant’s age as 15 to 17 years. Considering the margin of error in age even as one year, the complainant would be 18 years old and would not be a child under section 2(b) of the POCSO Act, the court held.

The court noted that the prosecution did not give any evidence regarding the complainant’s physical development and secondary sexual characteristics. Therefore, the benefit of doubt regarding the complainant’s age goes in favour of the accused, the court held.

The evidence indicates that the physical relationship between the appellant and the complainant was consensual, the court said. The court held that a consensual relationship would not constitute rape as the prosecution did not prove that the complainant was a child at the time of the incident.

Case no. – Criminal Appeal No. 09 Of 2021

Case Title – Maherban Hasan Babu Khan v. State of Maharashtra and Anr.