Only absence of wisdom tooth can’t decide victim as minor under POCSO Act: Bombay High Court

The court held that the mere absence of wisdom tooth can’t prove the rape survivor is below 18 years of age. The court acquitted the accused convicted under the POCSO Act.

High Court held that the special court had relied on the testimony of the dentist to convict the accused. The dentist had the opinion that the girl was a minor as she had not developed the wisdom tooth. He assessed her age based on her clinical and radiographical examination. Since he had not noticed the wisdom tooth (the third molar), he had opined the age of the victim to be 15 to 17 years of age.

However, he had admitted in his cross-examination that the third molar can grow even after 18 years of age, as noted by the court. The court had referred the Modi’s Medical Jurisprudence. It states that the second molar appears between 12 to 14 years of age and while the wisdom tooth appears between 17 to 25 years of age.

The prosecution had alleged that the accused had sexual intercourse with the girl against the promise to marry. When the victim informed him about her pregnancy, he didn’t marry her. The girl lodged a criminal complaint against her, leading to his arrest.

The court noted prosecution failed to examine the relevant witnesses, thereby failing to prove the age of the victim. Thus, the age remained unproved.

It gave the benefit of the doubt to the accused and the court held that the prosecution could not establish beyond reasonable doubt the age of the girl to be below 18 years.

The court added that the pieces of evidence otherwise point to the consensual relationship among them. POCSO Act cannot be brought as the age of the victim cannot be proved below 18 years and the definition of rape under IPC excludes consensual relationship.

Court quashed the conviction and acquitted the accused accordingly.

 

Source: https://www.barandbench.com/news/pocso-act-bombay-high-court-rules-mere-absence-wisdom-tooth-not-conclusive-proof-age-survivor