This Court is required to test the evidence produced by the prosecution on the anvil of aforesaid dictum of the Supreme Court: HIGH COURT OF MADHYA PRADESH AT INDORE

The appeal filed by the appellant is partly allowed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of PHIROZ V. THE STATE OF MADHYA PRADESH through HON’BLE JUSTICE SATYENDRA KUMAR SINGH

The facts of the case are that the Appellant and complainant’s minor daughter – prosecutrix aged about 13 years were known to each other as appellant lives opposite to prosecutrix maternal grandfather’s house at Geeta Nagar, Indore. On 30.04.2015, at about 9:00 p.m., when complainant along with his other family members including his minor daughter – prosecutrix had gone to attend a marriage function of his relative at Sunny Garden, Geeta Nagar Indore, then appellant called his minor daughter – prosecutrix on the road and on the pretext of marriage, took her to Sarwate Bus Stand, Indore in an autorickshaw and thereafter to Khandwa by bus and forcefully committed rape upon her. Thereafter, he took her to Bhopal by bus and there also, he committed rape upon her. Complainant on being informed by witnesses Shammo Bi and Shayra Bi that appellant took prosecutrix in an autorickshaw searched for her at nearby places and thereafter on 01.05.2015 at about 19:00 hrs lodged FIR at Police Station Chandan Nagar against the appellant for the offences punishable u/S 363 and 366 of IPC. On the next day, i.e., on 02.05.2015, at about 13.05 hours, S.I. S.S. Rajput went to the place of occurrence and prepared spot map, recorded the statements of complainant and other witnesses. Thereafter, on 06.05.2015 recovered the prosecutrix from the possession of the appellant as per dastiyabi panchnama and sent the her to District Hospital, Indore for medical examination, where on the same day, at about 20:25 hours. Dr. Kalpana Amb also prepared prosecutrix’s vaginal swab slide, collected her pubic hairs and her undergarments, sealed and hand over the same to the concerned police constable, who brought the prosecutrix to hospital for chemical examination. For determination of age, she referred the prosecutrix to Radiologist for ossification test.

In view of material improvements, the testimony of the prosecutrix cannot be accepted as that of a sterling witness and it is not safe to rely upon the same without any corroboration. In such circumstances, appellant’s conviction u/S 376(2)(I), 376(2)(N) of IPC as well as Sec 5L/6 of POCSO Act is not sustainable. So far as conviction of the appellant under u/S 366 of IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC. In view of the aforesaid discussion, impugned judgment with regard to conviction of the appellant for the offence punishable u/S 363 of IPC is liable to be affirmed, but conviction with regard to offences punishable u/S 366, 376(2)(I), 376(2)(N) of IPC and Sec 5L/6 of POCSO Act is not sustainable and is hereby set aside.
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