Justice Anuja Prabhudessai of the Bombay High Court ruled that a person's lack of wisdom teeth is not enough evidence to establish that they are a minor. The ruling came in the context of a case under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in which a man had been convicted. The judge found that the prosecution had failed to establish beyond a reasonable doubt that the complainant was a child when the incident occurred.
Brief Facts:
The victim, a 10th-standard student at Vighavali Vibhag High School, accused the Appellant of sexually assaulting her under the guise of marriage. The victim informed the Appellant of her pregnancy, but he did not fulfill his promise of marriage and left Mumbai. The victim, a member of the scheduled caste and a minor at the time of the incident lodged an FIR against the Appellant for rape and sexual assault. The police collected evidence, including DNA testing, and charged the Appellant. The Appellant admitted to having sexual relations with the victim but claimed they were in love and planned to marry. The court found the Appellant guilty of sexual assault and rape under the POCSO Act and IPC and sentenced him accordingly. The court acquitted the Appellant of the SC-ST Act charge as the prosecution failed to prove that the victim was a member of a Scheduled Caste or Tribe. The Appellant has appealed the conviction and sentence.
Contentions of the Appellant:
The Appellant strongly asserted that the prosecution did not investigate the author of the School Leaving Certificate, which is being used to establish the age of the deceased. The Appellant argued that the School Leaving Certificate cannot be considered reliable evidence to establish the victim's age and that there is no conclusive evidence that the victim was under 18 years of age. The Appellant claimed that the relationship was consensual and between two adults, and therefore, should not be considered rape or sexual assault.
Contentions of the Respondent:
The respondents argued that the victim was a student in 10th standard and was around 14 to 15 years old at the time of the incident. They claimed that the School Leaving Certificate was issued in 2010, which was well before the incident, and therefore, it was impossible to fabricate the document. They also asserted that the authenticity of the certificate was not challenged, and thus it was too late to question the age of the victim as stated in the certificate. Additionally, they maintained that the Ossification test supported the documentary evidence and demonstrated that the victim was a child as per the definition given in Section 2(d) of the POCSO Act. Furthermore, they referred to the Supreme Court decision in Mohd. Ikram Hussain vs. State of Uttar Pradesh and Ors., (1964) 5 SCR 86, and the rulings of the Aurangabad Bench in Damodar Pratapram Jangid vs. The State of Maharashtra 2016 ALL MR (Cri) 82 and Baburao Vs. The State of Maharashtra and Ors., 2016 ALL MR (Cri) 4719 to support their argument.
Observations of the Court:
The appellant has been found guilty of offences under Sections 4 and 6 of the POCSO Act for sexual assault and harassment of a minor. The court states that to attract the provisions of the POCSO Act, the prosecution must prove that the victim was a child under the age of 18 years. The court relied on Jarnail Singh vs. State of Haryana, 2013 (7) SCC 163, which analyzed the scope of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, to determine the age of a minor victim. The court further explained that the age of the victim must be determined based on the appearance of the person brought before the Committee. If there is reasonable doubt, then the Committee must follow the prescribed procedure for the determination of age. In the present case, the prosecution relied on the School Leaving Certificate issued by Raigad Zilla Parishad School to prove that the victim was below 18 years of age. The court noted that the entry in the School Register and the School Leaving Certificate was not challenged, and hence, the age of the victim was established to be below 18 years.
Moreover, the prosecution used the testimony of a dentist who claimed that the complainant was between 15 to 17 years old because her wisdom teeth were not visible. However, during cross-examination, the dentist admitted that wisdom teeth can appear after 18 years of age. The court referred to Modi's Medical Jurisprudence (A textbook of Medical Jurisprudence and Toxicology) which says that all permanent teeth appear by puberty except for wisdom teeth which can appear between 17 to 25 years of age. The court concluded that the absence of wisdom teeth cannot prove that the person is under 18 years old, but their presence may suggest that the person is over 17 years old.
Conclusively, the court observed that there was no evidence presented by the prosecution regarding the physical development and secondary sexual characteristics of the complainant. Therefore, the accused is given the benefit of the doubt with regard to the age of the complainant, according to the court. The court stated that the evidence points towards a consensual physical relationship between the accused and the complainant. The court held that if a physical relationship is consensual, it cannot be classified as rape, as the prosecution failed to demonstrate that the complainant was a minor at the time of the incident.
The decision of the Court:
The Appeal was allowed. The Appellant was acquitted of offences punishable under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Sections 376(2)(i) and 376(2)(j) of the Indian Penal Code.
Case Title: Maherban Hasan Babu Khan vs The State of Maharashtra and anr.
Coram: Justice Smt. Anuja Prabhudessai
Case No.: CRIMINAL APPEAL NO. 09 OF 2021 WITH INTERIM APPLICATION NO. 2384 OF 2021 IN CRIMINAL APPEAL NO. 09 OF 2021
Advocate for the Appellant: Mr. Jagdish Kumar Sanjeev Hegde
Advocate for the Respondents: Mr N.B. Patil for Respondent No.1 (State) and Ms Rebecca Gonsalves for Respondent No.2 (victim)
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