State of Chhattisgarh Vs Shahil Bhardwaj

Under the POCSO Act No. 108 of 2024 by the learned Additional Sessions Judge F.T.S.C. (POCSO), District Raigarh (C.G.) (hereinafter referred to as the “learned trial Court”), whereby the learned trial Court acquitted the respondent of the offence punishable under Sections 65(1), 351(2) of the BNS and Section 4(2) of Prevention of Childresh from Sexual Offences Act, 2012 (for short, ‘POCSO Act’), holding that the prosecution failed to prove the charges beyond reasonable doubt.

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3. Case of the prosecution, in brief, is that:

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(i) The father of the victim has lodged a written complaint before Police Station Jutemill, District Raigarh stated that the minor daughter whose date of birth is 02.04.2009 and is 15 years, 08 months, 03 days old and has studied up to class 10^th in the school. On 05.12.2024 he had brought his daughter/victim home after getting her discharged from the hostel. The victim was very upset and started crying in front of her father and mother. Then mother started the questioning the victim then victim told that Shahil Bhardwaj resident of local had been talking to her by making love affair with her for the past one and a half years by giving false promise of marriage. After that, he took her to one of his friend's house and had forcible made sexual relationship with her on 03.11.2024 at 10.30 a.m. The accused/respondent has threatened her that he will kill her and her family members if told anyone, due to which she got scared. On the aforesaid report lodged by the

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complainant, the FIR was registered against the respondent/accused vide Crime No. 495/2024 at Police Station Jutemill, District Raigarh for the offence punishable under section 65(1), 351(2) of the BNS and under Section 4 of the POCSO Act. During investigation the victim was medically examined. The statement of the victim under section 183 of the BNSS was recorded before the learned Magistrate.

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(ii) After collecting evidence completing investigation charge sheet was filed before the concerned Additional Sessions Judge, District Raigarh. The accused/respondent was charged for the offences punishable under sections 65(1), 351(2) of the BNS and under Section 4(2) of the POCSO Act. The prosecution examined 13 witnesses in support of its case.

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(iii) After appreciating the evidences on record, the learned trial Court did not believe the evidence proving guilt of the respondent/accused, and therefore, acquitted the respondent/accused from the offence charged vide impugned judgment and order dated 29.11.2025, hence, the present Criminal Miscellaneous Petition has been filed seeking leave to appeal.

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4. Learned State counsel submits that the learned trial Court committed a grave error in acquitting the respondents/accused by unjustifiably discarding the evidence of the complainant without assigning any cogent, convincing, or substantial reasons. It is

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contended that the learned trial Court failed to consider that, for proving the age of the victim, the Inspector (PW-11) had seized the birth certificate (Article A-1) and the admission register from the Clerk (PW10) of the school vide Ex. P/18, wherein the date of birth of the victim is recorded as 02.04.2009. The said seizure has been duly proved by the prosecution witnesses.

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5. It is further submitted by the learned State counsel that the learned trial Court failed to properly appreciate the statement of the victim to the effect that on 03.11.2024, when she had come out of her house, the accused/respondent asked her to meet him. Thereafter, she went some distance away and started talking to the accused/respondent. The accused then told her that a friend’s house was nearby and suggested that they go there to sit and talk, and accordingly took her there. At that time, no one was present in the house. Thereafter, the accused/respondent told the victim that he would marry her and forcibly established physical relations with her. Despite the prosecution having led consistent, reliable, and corroborative evidence through its witnesses, the learned trial Court failed to properly evaluate and appreciate their testimonies in their correct legal perspective and erroneously acquitted the accused. The findings recorded by the learned trial Court are therefore perverse, contrary to the evidence available on record, and unsustainable in law. Accordingly, it is most respectfully prayed that leave to appeal against the impugned judgment of acquittal be granted.

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6. We have heard learned State counsel and perused the record of the case including the impugned judgment of acquittal.

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7. Learned trial Court while acquitting the accused/respondent has observed in paragraphs 61 to 71 as follows:

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“61. Defence witness Tushar Khute (DW-1) stated in his court testimony that on 4 November 2024, the victim’s mother came to his house and asked whether the accused and the victim had come there the previous day. He stated that he, his mother, and his sister informed her that they were at home on 03.11.2024 and that neither the accused nor the victim had come to their house on that date. He further stated that about one month after the incident, the police from Jutmill Police Station came to their house and recorded his statement and his mother’s statement. They also told the police that the victim was lying and that neither the victim nor the accused had come to their house.

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62. Defence witness Mrs. Shivkumari Khute (DW-2) stated in her court testimony that on 4 November 2024, the victim’s mother came to her house and asked whether the accused and the victim had come there the previous day. She replied that on 03.11.2024 they were at home and that neither the accused nor the victim had come to their house on that date. She further stated that about one month after the incident, police personnel from Jutmill Police Station came to her house and recorded her statement, and she also told them that the victim was lying and that the accused and the victim had not come to her house.

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63. Defence witness Mrs. Shivkumari Khute (DW-2)

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further stated in her testimony that the signatures appearing on Exhibit P-3 (portion E to E) are hers, and that when she signed the document, it was blank.

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64. Defence witnesses Tushar Khute (DW-1) and Mrs. Shivkumari Khute (DW-2) denied during their crossexamination the prosecution’s suggestion that they were not at home on 03.11.2024. They also denied the suggestion that on 03.11.2024 the accused and the victim had come to their house and that the accused had committed any wrongful act with the victim.

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65. The victim (PW-1) stated in paragraph-40 of her cross-examination that the house where the incident allegedly took place belongs to Tushar, and that Shivkumari Khute is Tushar’s mother. She also accepted the defence suggestion that Shivkumari Khute lives in the said house and that, since they live in the same neighbourhood, she has known them for many years.

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66. In paragraph-41 of her cross-examination, the victim (PW-1) also accepted the defence suggestion that the house shown as the place of incident in Exhibit P-3 belongs to Shivkumari Khute and Tushar, and that Tushar’s sister, who is approximately the same age as the victim, also lives in that house.

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67. From the statement of the victim (PW-1), it is clear that the alleged place of incident is the house of defence witnesses Shivkumari Khute and Tushar. The local Patwari also obtained the signature of Shivkumari Khute as the house owner on Exhibit P-3. The victim has alleged that the accused committed the incident in the house of Tushar and Shivkumari Khute

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on 03.11.2024. However, the investigating officer did not record the police statements of Shivkumari Khute and Tushar nor include them in the case file. The defence examined Tushar (DW-1) and Shivkumari Khute (DW-2) in support of its case, and these witnesses stated that they were at home on 03.11.2024, and that neither the accused nor the victim came to their house on that day, and that no such incident took place in their house. Their statements remained unshaken during crossexamination, and the prosecution could not bring any fact during cross-examination to show that they were falsely claiming that the accused and the victim did not come to their house on 03.11.2024. Further, from the examination reports of Gynecologist Dr. Usha Rani (PW-6) and Medical Officer Dr. Jyoti Ekka (PW-9), marked as Exhibits P-12 and P-14, it is not clearly established that the victim was subjected to rape. Therefore, the medical reports do not support the victim’s statements. The forensic report received from the Regional Forensic Science Laboratory, marked as Exhibit P-25, also states that no human spermatozoa were found on the victim’s slide. Thus, this report also does not support the victim’s version. The victim has stated that the incident occurred at about 10:30 AM, but the prosecution has not examined any other witness to show that on 03.11.2024 the accused took the victim to the place of incident mentioned in Exhibits P-2 and P-3. The victim (PW-1) also told the medical officer that the incident occurred in 2023 and repeatedly from April 2024 to November 2024, but the victim’s relatives have knowledge only about the alleged incident of 03.11.2024, and the written

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complaint also does not mention any earlier incident. Therefore, the statement of the victim appears doubtful and unreliable. In such circumstances, the statement of the victim that on 03.11.2024 the accused took her to the house shown in the site map Exhibits P-2 and P-3, forcibly established sexual relations with her, and threatened to kill her if she disclosed the incident, does not appear reliable.

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68. Section 63 of the Bharatiya Nyaya Sanhita defines the offence of rape. According to this provision, a person is said to commit rape if he, with or without the consent of a woman, and when she is under eighteen years of age:

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman, or makes her do so with him or another person; or (b) inserts, to any extent, any object or any part of the body other than the penis into the vagina, urethra, or anus of a woman, or makes her do so with him or another person; or

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(c) manipulates any part of a woman’s body in such a manner as to cause penetration into the vagina, urethra, anus, or any part of her body; or (d) applies his mouth to the vagina, anus, or urethra of a woman, or makes her do so with him or another person.

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69. Section 3 of the Protection of Children from Sexual Offences (POCSO) Act defines penetrative sexual assault. According to this provision, a person commits penetrative sexual assault if he: (a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a child, or makes the child do so with him or another person; or

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(b) inserts any object or any part of the body other than the penis into the vagina, urethra, or anus of a child; or (c) manipulates any part of the body of the child in such a manner as to cause penetration into the child’s vagina, urethra, anus, or any part of the body; or (d) applies his mouth to the penis, vagina, anus, or urethra of the child, or makes the child do so with him or another person.

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70. According to the prosecution’s case, the accused allegedly had sexual relations with the victim on 03.11.2024, knowing that she was a minor. However, as discussed under Issue No. “A”, the prosecution failed to prove that the victim was a minor on 03.11.2024. Although the victim’s father (PW-2), mother (PW-3), brother-in-law (PW-4), and maternal uncle (PW-5) stated that the accused Shahil Bhardwaj committed rape upon the victim as per the victim’s account, the victim’s own statement that the accused had sexual relations with her on 03.11.2024 and threatened to kill her if she disclosed the matter does not appear reliable.

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71. Therefore, after analyzing the entire evidence, the prosecution has failed to prove beyond reasonable doubt that the accused Shahil Bhardwaj committed rape on a minor girl under sixteen years of age on 03.11.2024, or that he criminally intimidated the victim by threatening to kill her, or that he committed the offence of penetrative sexual assault against a minor girl under sixteen years of age. Accordingly, the issues framed as “B” and “C” are not proved.”

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8. Having considered the submissions advanced by learned State

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counsel and upon perusal of the entire record, including the impugned judgment, this Court finds that the learned trial Court has minutely examined the evidence of the prosecution as well as the defence witnesses. The trial Court has taken into account the testimony of the victim, the statements of the defence witnesses, the medical evidence, and the forensic report, and thereafter recorded a finding that the prosecution has failed to prove the charges beyond reasonable doubt. The trial Court has also noticed material discrepancies and circumstances which render the prosecution version doubtful, particularly with regard to the place of occurrence and the medical and forensic evidence not supporting the allegation of rape. The defence witnesses, namely Tushar Khute (DW-1) and Shivkumari Khute (DW-2), whose house is alleged to be the place of occurrence, have categorically stated that neither the accused nor the victim came to their house on the alleged date of incident, and their testimony could not be shaken during cross-examination.

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9. It is well settled that in an appeal against acquittal, the scope of interference by the appellate Court is very limited. Unless the findings recorded by the trial Court are shown to be perverse, manifestly illegal, or wholly unsustainable on the basis of the evidence on record, the appellate Court would not be justified in interfering with the order of acquittal. Recently, the Hon'ble Supreme Court, while considering the scope of interference in an appeal against acquittal in State of Rajasthan vs. Kistoora Ram , reported in 2022 SCC OnLine SC 984 , has held as follows:

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“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.”

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10. In the present case, the findings recorded by the learned trial Court are based on a proper appreciation of the evidence available on record and cannot be said to be perverse or wholly unsustainable in law. Even otherwise, the view taken by the learned trial Court is a possible and plausible view on the basis of the material placed before it. Therefore, this Court does not find any sufficient ground to grant leave to appeal against the judgment of acquittal.

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11. Consequently, the Criminal Miscellaneous Petition seeking grant of leave to appeal, being devoid of merit, is hereby rejected . As a result, the appeal also stands dismissed .

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Brijmohan

State of Chhattisgarh v. Shahil Bhardwaj

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State of Chhattisgarh v. Shahil Bhardwaj

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