THE HIGH COURT OF MADHYA PRADESH
Cr.A.No.2303/2017
(RAJDEEP SHANDILYA VS. THE STATE OF M.P.)
JABALPUR Dated : 04.07.2018
Shri Anil Khare, learned Senior Advocate with Shri Abhinav
Shrivastava, learned Advocate for the appellant.
Shri M.K. Soni, learned Government Advocate for the
respondent/State.
Heard on I.A. No.17846/2017, which is an application U/S.389 (1) of
Cr.P.C. for suspension of the custodial sentence passed against appellant
Rajdeep Shandilya.
This appeal has been preferred against the judgment dated 01/06/2017
passed by II Additional Sessions Judge, Balaghat, District-Balaghat (M.P.) in
Sessions Trial No.315/2015 whereby learned Judge found appellant guilty and
convicted and sentenced as under:-
Details of Imprisonment in
Sections Act imprisonment fine if lieu of fine
deposited amount
Protection of
Children from
3/4 Further R.I. for 21
Sexual R.I. for 7 years Rs.2,000/-
months
Offences Act,
2012.
Indian Penal R.I. for 10 Further R.I. for 30
376(1) Rs.2,000/-
Code years months
376(2) Indian Penal R.I. for 10 Further R.I. for 09
2,000/-
(dha) Code years months
Learned counsel for the appellant submitted that the Trial Court
without appreciating the evidence properly wrongly found the appellant guilty
for the aforesaid offence. Prosecutrix in her statement deposed that the
appellant committed rape with her for the first time on 29/05/2015 while she
lodged the report on 03/11/2015. She also deposed that first time Ku. Riya
(PW/10) introduced the appellant to her while Ku. Riya (PW/10) did not
support the prosecution story. Prosecutrix also deposed that appellant
assaulted her before Twinkle (PW/12) while she too did not support the
statement of the prosecutrix. There is no evidence on record to corroborate the
prosecutrix’s statement. Even, prosecutrix in her statement deposed that she
sent SMS by her mobile No.8518808207 to the appellant. She also deposed
that appellant made her nude video. Police also seized mobile of the appellant
but did not took call details of that mobile and neither got any video, so there
is no evidence on record to corroborate the prosecutrix’s statement that the
appellant committed rape with her. From the prosecution evidence, it is also
not proved that the prosecutrix was minor at the time of incident. Although,
prosecution produced prosecutrix’s birth certificate (Ex.P/10) for proving her
date of birth but from the statement of Pradeep Sudhakar Pranjpaye (PW/7), it
is clear that the date of birth of the prosecutrix was entered in date of birth
register on the basis of information sent by doctor from the hospital but that
information was not signed by any medical officer so that entry is also
doubtful. Prosecution did not produce entry of the school register or mark-
sheet of the prosecutrix regarding proving her age so adverse inference can be
drawn against the prosecution. Although, ossification test report (Ex-P-20)
was also produced by the prosecution for proving her age but from the
statement of Dr. V.K. Rawat (PW/18), who conducted ossification test of the
prosecutrix, it appears that he did not examine her teeth to determine her age
and gave the report only on the basis of X-Ray of wrist, elbow and pelvic
bone, so that report is also not complete and on the basis of that report also it
can not be assumed that prosecutrix was minor at the time of incident. On the
other hand, Dr. Rashmi Chaturmohta (PW/11), who examined the prosecutrix
deposed that secondary sex character of the prosecutrix were well developed
which shows that the prosecutrix was major at the time of incident. Even Dr.
Geeta Barmate (PW/16), who also examined the prosecutrix deposed that
prosecutrix was habitual for intercourse. Prosecutrix deposed in her statement
that the appellant committed intercourse with her 45 times while prosecutrix
did not report this fact to anybody before lodging the report which is
unbelievable. There are many contradictions and improvements in the
statement of the prosecutrix. Learned trial Court without appreciating all these
facts wrongly found the appellant guilty for the offences. In this regard, he
also placed reliance on Apex Court judgement passed in Kailash @ Tanti
Banjara Vs. State of Madhya Pradesh reported in (2013) 14 SCC 340 and
Tomaso Bruno Another Vs. State of U.P. reported in (2015) 7 SCC 178
On the other hand, learned counsel for the State opposed the prayer and
submitted that there is sufficient evidence available on record against the
appellant. From the statement of prosecutrix and other prosecution witnesses,
it is clearly proved that the appellant committed sexual intercourse with the
prosecutrix, who was only 14 years of age. So learned trial Court did not
commit any mistake in finding the appellant guilty for the aforesaid offence
and prayed for its rejection.
This Court has gone through the record and arguments put forth by the
learned counsel of both the parties. Although, the statements of the prosecutrix
were not supportted by the statements of Ku. Riya (PW/10) and Twinkle
(PW/12) but both of these witnesses are not the witnesses of the fact that the
applicant committed rape with the prosecutrix. There is no prohibition in law
to convict the accused of rape on the basis of sole testimony of the prosecutrix
and the law does not require that her statement be corroborated by the
statements of other witnesses as held by the Apex Court in the case of Mohd.
Iqbal v. State of Jharkhand reported in (2013) 14 SCC 481.
Although, prosecution did not produce any call detail, SMS or video
while police seized the mobile of the appellant but only on that basis also the
statement of the prosecutrix cannot be discarded. Appellant only took the
defence that prosecutrix gave false statement against him on the pressure of
her parents but there is no defence of the appellant as to why the parents of the
prosecutrix pressurised her to make such a false statement against him. The
facts of the case Tomaso Bruno Another Vs. State of U.P. (Supra) relied
by the learned counsel of the appellant do not match with the present case. In
that case, appellants therein were foreign tourist in India charged with the
murder of their companion in a hotel room and the case of the prosecution
was solely based on the circumstantial evidence that it was appellants alone
who could do this because all the three were staying in a single room. So
appellant’s location at material time was crucial to unravel the truth and this
could be determined with the help of CCTV recording in hotel and movement
of mobile phone. But prosecution did not produce that evidence. While in this
case, direct evidence i.e. the statement of the prosecutrix is on record so that
judgement does not help appellant much.
The information sent from the hospital based on which the
prosecutrix’s date of birth was entered in the birth register of Municipal
Corporation was not signed by any doctor. But the copy of the date of birth
certificate was seized by the police from the possession of Sheela (PW/4) on
the date of FIR i.e. 03/11/15 and that document is a copy of entry of
Municipal Corporation register which is said to have been prepared on
29/06/2001 much before the date of incident. So it cannot be thrown out only
on the basis that the information on which that entry was made was not signed
by any doctor.
In the date of birth register, the age of the prosecutrix is mentioned as
21/06/2001. Based on that, the age of the prosecutrix appears to be 14 years at
the time of incident. That age is also corroborated by the ossification test
report of the prosecutrix (Ex.P/20) given by Dr. D.K. Raut (PW/18), who also
deposed that on the basis of ossification test he found the age of the
prosecutrix to be 14 years. Although, he did not examine the prosecutrix’s
teeth and gums for determining her age, and gave that report only on the basis
of X-ray of right wrist, elbow and pelvis bone of the prosecutrix. But only on
that ground the report does not become valueless. It is also a corroborative
piece of evidence. In the judgment of Hon’ble Apex Court Kailash @ Nati
(supra) relied by the learned counsel for the appellant it is not held by the
Hon’ble apex Court that the age determination report solely based upon the X-
ray report of the wrist, knee and hip joint cannot be considered regarding
determination of age. So, this judgment also do not help the appellant much.
Dr. Rashmi Chaturmohta (PW/11), who examined the prosecutrix
deposed that the secondary sex character of the prosecutrix were well
developed. But she also deposed in her statement the age of the prosecutrix as
14 years. The applicant did not challenge her statement on that point. Learned
trial Court also at the time of recording the statement of prosecutrix estimated
her age as 14 years as mentioned in the deposition sheet. Sheela (PW/4), the
mother of the prosecutrix also stated in her cross examination that her
marriage was solemnized in the year 1998 and prosecutrix is her elder
daughter. Even if it assumed that prosecutrix was born within one year of her
marriage, in that case, also at the most prosecutrix’s age appears to be 16
years at the time of incident.
The prosecutrix clearly deposed that the applicant committed
intercourse with her, so looking to the facts and circumstances of the case, in
the considered opinion of this Court, it is not a fit case to suspend the sentence
of appellant and release him on bail. Hence, application is rejected.
Let the case be listed for admission after four weeks.
(Rajeev Kumar Dubey)
Judge
vs
Digitally signed by
VARSHA SINGH
Date: 2018.07.06
14:09:33 +05’30’