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New Delhi, Oct 21 (IANS) The Delhi High Court has acquitted a man convicted under the Protection of Children from Sexual Offenses (POCSO) Act, ruling that the phrase “physical intercourse” used by the prosecutor was too vague to constitute evidence of rape or penetrative sexual assault.
Noting that the prosecution has failed to prove the essential elements of the offense beyond reasonable doubt, a single-judge bench of Justice Manoj Kumar Ohri said: “In the peculiar facts and circumstances of this case, the use of the term ‘physical relation’, without any supporting evidence, would not be sufficient to hold that the prosecution has been able to prove the offense beyond reasonable doubt.”
Appellant Rahul alias Bhupinder Verma was sentenced to 10 years of rigorous imprisonment by the trial court for allegedly having sexual relations with his 16-year-old cousin on the pretext of marriage.
The FIR was filed in March 2016, almost one and a half years after the alleged incident.
In his judgment, Justice Ohri said that the delay in filing the FIR was inadequately explained.
“In the absence of solidly established reasons, the delay of one and a half years in reporting the incident becomes significant,” the court said. “There is no evidence on record to prove that she lacked the capacity to speak from the time after the incident until the FIR was lodged,” the court said.
According to the prosecution, the victim had lost her voice after consuming poison when the accused refused to marry her and the complaint was filed only after she regained her ability to speak.
However, Justice Ohri found no medical evidence to corroborate that claim, adding: “There is no evidence on record to prove that she had no capacity to speak from the time after the incident till the time the FIR was lodged.”
The Delhi High Court said that neither the Indian Penal Code (IPC) nor the POCSO Act defines the term “physical intercourse”, and its mere use in testimony cannot automatically be read as rape or penetrative sexual assault.
“Would the use of the expression ‘physical intercourse’ automatically constitute rape/penetrative sexual assault or should there be some further description, or other evidence, to establish a connection between the term ‘physical intercourse’ and the crime?” He asked.
Relying on a recent Delhi HC judgment, Justice Ohri said that “the phrase ‘physical intercourse’ cannot automatically be converted into sexual intercourse, leave alone sexual assault”.
The bench said that the trial court and the prosecution failed to seek clarity from the victim during her testimony.
Justice Ohri said, “No clarification was sought by the APP or the court as to what the victim child meant by the term ‘physical intercourse’ and whether such penetration met the elements of sexual assault.”
Delhi HC said that under Section 165 of the Evidence Act, it is the statutory duty of the court to ask certain questions to discover relevant facts or obtain proper evidence, especially when dealing with vulnerable witnesses.
Calling it an “unfortunate case”, Justice Ohri quashed the conviction and directed that the appellant be released from custody “immediately unless required in any other case”.
“Accordingly, the appeal is allowed and the impugned judgment is set aside and the appellant is acquitted. As a necessary sequence, if not necessary in any other case, the appellant is forthwith released from jail,” the bench said.
–IANS
PDS/VD