RAJDEEP SHANDILYA Vs. THE STATE OF M.P.

JUDGEMENT

(1.) Heard on I.A. No. 17846/2017, which is an application under section 389 (1) of Cr.P.C., 1973 for suspension of the custodial sentence passed against appellant Rajdeep Shandilya.

(2.) 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:- <FRM>JUDGEMENT_387_LAWS(MPH)7_2018_1.html</FRM>

(3.) 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 support the prosecution story. Prosecutrix also deposed that appellant assaulted her before Twinkle (PW/12) while she too did 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 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 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 signed by any medical officer so that entry is also doubtful. Prosecution did produce entry of the school register or marksheet 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 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 complete and on the basis of that report also it can 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 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 v. State of Madhya Pradesh reported in (2013) 14 SCC 340 and Tomaso Bruno and Another v. State of U.P. reported in (2015) 7 SCC 178