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 do so and started avoiding 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 untraceable and suddenly he was arrested by the Police. He said that he would want to marry the girl and even look after the child she gave birth to.

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.

The dentist 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.

In the judgment, Justice Prabhudesai noted that the prosecution did not examine relevant witnesses to prove the victim’s age and therefore it remained unproven. The prosecution, therefore, failed to prove beyond reasonable doubt that the victim was below 18 years of age.

“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 said.

It, therefore, quashed the conviction and acquitted the appellant.

Case: Maherban Hasan Babu Khan vs State of Maharashtra.pdf