Section 366 IPC| Pubic Hair, Missing Third Molars Cannot Prove Minor Age: Allahabad HC Acquits Man In Kidnapping Case

A trial judge cannot “act as a super-specialist”, the Allahabad High Court recently said while setting aside the conviction of a man for allegedly kidnapping a woman he later married, holding that the presence of pubic hair and absence of erupted third molars could not override medical evidence assessing her age at about 18 years.

The bench of Justice Subhash Vidyarthi allowed the appeal filed by one Bhaiya Lal Raidas against his 2013 conviction under Section 366 of the Indian Penal Code (now Section 87 of the BNS). Raidas had been sentenced to seven years' rigorous imprisonment by an Unnao sessions court.

Case in brief

The prosecution case was that Raidas, allegedly a married man living in the girl's neighbourhood, had enticed her away on October 30, 2010. Her father alleged that she was a minor. 

The high court, however, found that the prosecution had failed to establish her age through reliable evidence.

The girl's father had not mentioned her age in the FIR and told the trial court that he did not know her age or date of birth. During her examination, the prosecutrix claimed to have produced her Class VIII marks-sheet showing her date of birth as September 25, 1993.

But the high court found that neither the original marks-sheet nor its copy was available in the trial court record. It had not been assigned an exhibit number and was not even mentioned in the index of the record.

Court therefore held that the trial court could not have relied upon the date of birth mentioned in a document which was not part of the record.

The high court also took issue with the manner in which the sessions court had assessed the girl's age from her physical characteristics.

The trial court had relied on the fact that she had 14x14 teeth and that axillary and pubic hair were present. It had observed that such hair normally develops by 17, that 14x14 teeth are attained between 12 and 14 years, and that the third molar emerges around 17 years. On this basis, it assessed her age at between 14 and 17 years.

But the high court said this approach was unsustainable.

“Mention of presence of auxiliary and pubic hair cannot lead to an inference that the same were not fully developed when the medico-legal examination report does not say so,” Justice Vidyarthi said.

Court further held that “emergence of the third molars is not essential” and that their absence could not be made the basis for concluding that the girl had not attained 18 years of age.

The trial court, the high court said, had “acted as a super-specialist” by superimposing its own assessment over that of the doctor and radiologist, both of whom had assessed the girl's age at about 18.

Medical evidence

The high court referred to Supreme Court judgments which recognise a margin of error in age determined through radiological examination. It noted that the Supreme Court in Jaya Mala v. Govt. of J & K (1982) had held that the age determined through radiological examination could have an error margin of two years on either side.

Applying that principle, the high court said that although the medical opinion placed the prosecutrix's age at about 18 years, “adding an error margin of 2 years on the higher side”, she could have been as old as 20 on the date of the incident.

“Therefore, I am of the view that the prosecution has failed to establish that the prosecutrix was minor on the date of the incident,” court held.

The medical examination had also found no injury on any part of her body, including her private parts. The ultrasound showed a single live foetus of about 20 weeks, while the radiological examination assessed her age at about 18 years.

Inconsistencies in prosecutrix's statements

The high court also examined the different versions given by the prosecutrix.

In her statement before the Magistrate under Section 164 of the CrPC (now Section 183 of the BNSS), she had said that she was in a friendly relationship with Raidas, that both wanted to marry but her father opposed the marriage, and that she had gone with him to Ludhiana. She said they subsequently married in Hardoi and lived together in Ludhiana.

She had also stated that she was pregnant and wanted to live with Raidas and did not want to return to her parents.

During her testimony before the trial court, however, she alleged that Raidas had made her inhale something, causing her to lose consciousness, and had taken her to Ludhiana, where he committed sexual assault against her.

The high curt said that while a conviction can be based on the solitary testimony of a prosecutrix, this is possible only where she is a witness of “sterling quality” whose testimony inspires confidence.

Court noted that she had remained with Raidas in Ludhiana for seven months and had not alleged the use of force in her earlier statements. It also found it difficult to accept that Raidas alone could have taken an unconscious grown woman from a village in Unnao to Ludhiana.

Holding that the trial court had failed to properly consider these aspects, the high court said its findings were vitiated.

It accordingly set aside the conviction and sentence under Section 366 IPC and acquitted Raidas of the charge.

Case Title: Bhaiya Lal Raidas v. State of U.P.

Judgment Date: August 31, 2026

Bench: Justice Subhash Vidyarthi