The court pointed out that evidence must be established for the jump from physical relations to sexual assault and then to penetrative sexual assault.
A man has been acquitted in a POCSO case by the Delhi High Court, which said the usage of the phrase ‘physical relations’ by the survivor minor cannot automatically mean sexual assault.
A bench of Justices Prathiba M Singh and Amit Sharma allowed the appeal by the accused, who was awarded imprisonment for the remainder of his life, and observed that it was unclear how the trial court concluded that there was any sexual assault when the survivor had voluntarily gone with the accused.
The court further declared that physical relations or ‘samband’ to sexual assault and then to penetrative sexual assault must be established by evidence and cannot be deduced as an inference.
“The mere fact that the survivor is below 18 years cannot lead to a conclusion that there was penetrative sexual assault. The survivor used the phrase ‘physical relations’, but there is no clarity as to what she meant by using the said phrase,” the court said in the judgement passed on December 23.
Even the use of the words ‘sambaed banana’ is insufficient to constitute an offence under Section 3 of the POCSO Act or Section 376 IPC. Though consent would not matter if the girl is a minor under the POCSO Act, the phrase ‘physical relations’ cannot be converted automatically into sexual intercourse, let alone sexual assault, it held.
