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Rajeep Sandilya vs The State Of Madhya Pradesh on 4 July, 2018

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’

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