Meghalaya High Court
Date Of Decision: 06.05.2026 vs The State Of Meghalaya on 6 May, 2026
Author: W. Diengdoh
Bench: W. Diengdoh
2026:MLHC:426-DB
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. No. 38 of 2024
Date of Decision: 06.05.2026
Shri Slander Mawlein
Son of (L) Trip Kharsyiem,
(Convict presently serving sentence in Correctional
home & Prisons, Shillong)
Resident of Ktiehthawiar Village,
P.S. Nongstoin,
District West Khasi Hills,
Meghalaya
.... Appellant
Vs.
The State of Meghalaya
Through the Commissioner & Secretary
To the Government of Meghalaya,
Department of Home (Police),
Civil Secretariat, Shillong.
.... Respondent
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge.
Hon'ble Mr. Justice B. Bhattacharjee, Judge.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Appearance:
For the Petitioner/Appellant(s) : Ms. P. Chettri, LAC.
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For the Respondent(s) : Mr. R. Gurung, GA.
Per W. Diengdoh, J:
JUDGMENT
1. The appellant having been convicted and made to serve a cumulative
sentence of 10(ten) years rigorous imprisonment with fine of ₹ 30,000/- (Rupees
thirty thousand) for an offence punishable under Section 6 of the POCSO Act,
and rigorous imprisonment of 1(one) year with fine of ₹ 5,000/- (Rupees five
thousand) for an offence punishable under Section 506 Part-I IPC, relatable to
Judgment and Sentence dated 03.01.2024 passed by the learned Special Judge,
(POCSO), Nongstoin, West Khasi Hills District in Special (POCSO) Case No.11
of 2019, has now approached this Court, with this instant appeal, with a prayer
to set aside and quash the impugned judgment of conviction and related sentence.
2. The prosecution case emanates from the filing of an FIR before the
Officer-in-Charge, Nongstoin Police Station on 07.12.2018 by the complainant,
who has alleged that the appellant herein, has committed sexual penetration on
her minor daughter (name withheld) aged about 10(ten) years on 04.12.2018, at
his house.
3. On receipt of the said FIR, a case was registered being Nongstoin P.S
Case No. 99 (12) 2018, under Section 5(m)(n)/6 of the POCSO Act, read with
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Section 506 IPC, investigation commence with the recording of the statement of
the complainant and the survivor. The accused/appellant was also arrested on
that day itself, that is, 07.12.2018. In course of investigation, all the formalities
that is, forwarding of the survivor as well as the accused for medical
examination, collection of the birth certificate of the survivor as well as
facilitation of recording of the statement of the complainant and the survivor
respectively, before the Magistrate under Section 164 CrPC, have been
completed. Thereafter, charge sheet was filed, with the Investigating Officer
(I/O) sending the accused/appellant to face trial before the competent court of
jurisdiction.
4. On the case being taken cognizance of by the learned Special Judge,
(POCSO) on 09.05.2019, charge under One Head was framed against the
accused/appellant, the charge being under Section 5(m)(n) of the POCSO Act,
punishable under Section 6 of the said Act. The court has then examined 9(nine)
prosecution witnesses including the complainant, the survivor and the doctor
who has medically examined the survivor and the accused/appellant. About
9(nine) documents were also exhibited which includes the FIR and statement of
the complainant and survivor made under Section 164 CrPC. The photocopy of
the birth certificate of the survivor was also produced as Paper Mark- 1.
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5. On completion of the recording of the deposition of all the 9(nine)
prosecution witnesses, the statement of the accused/appellant made under
Section 313 CrPC, was recorded. When asked as to whether he wish to adduce
evidence, the accused/appellant answered in the negative.
6. The argument on behalf of the prosecution and the defence, was then
heard by the learned Special Judge, (POCSO), after which the said impugned
judgment and sentence was passed.
7. Heard Ms. P. Chettri, learned Legal Aid Counsel (LAC) appearing
for the appellant, who has submitted that the impugned judgment and sentence
meted out to the accused/appellant was based on mis-appreciation of evidence,
wherein vital contradictions in the conduct and statement of the survivor have
not been taken into account and the relevance of medical findings ignored which
has resulted in miscarriage of justice.
8. It is the contention of the learned LAC that the prosecution’s case has
been found wanting mainly on three counts, the first being the contradiction in
the survivor’s statement before the police when her statement was recorded
under section 161 CrPC in which she has stated that the accused carried her to
his house, and there he laid her on the bed and took off her panty as well as his
pants and touched her private parts with his penis.
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9. When she was before the Magistrate to record her statement under
section 164 CrPC, she has stated that the accused carried her to the bed and took
out his penis and laid on top of her. He did the same thing the second time when
he took off her dress and panty and laid down on her.
10. In her evidence before the court, the survivor has stated that the
accused carried her inside the house and took her to his bed, then he opened his
trouser fully and pulled down his underwear. When she tried to scream, he
gagged her mouth with a cloth and came on top of her where he put his penis
inside her vagina.
11. In all the three statements made, the survivor has given different
versions of how the incident happened, as such, under such contradictions, her
evidence not being wholly reliable, the same has to be discarded, submits the
learned LAC.
12. On the second count, the learned LAC has submitted that the learned
Trial Judge has completely ignored the value of the medical evidence. Leading
this Court, to the evidence of PW-8, the doctor who has medically examined the
survivor as well as the accused/appellant, what could be understood from the
said evidence is that the doctor had examined the survivor on 07.12.2018 and
according to him, no abnormality was detected. Importantly, the hymen is found
to be intact and no injuries are seen on her private part. As far as the findings
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upon the examination of the accused/appellant are concerned, this doctor has
clearly stated that “…. on genital examination I found that there is no evidence
of recent sexual activity and there is no injury on this person at the time of
examination….” This according to the learned LAC is proof that there was no
penetrative sexual assault committed upon the survivor by the accused/appellant.
13. Referring to the case of State of H. P. v. Gian Chand (2001) 6 SCC
71, para 14, the learned LAC has submitted that, the Hon’ble Supreme Court has
observed that “…. it is now well settled that conviction for an offence of rape
can be based on the sole testimony of the prosecutrix corroborated by medical
evidence and other circumstances such as the report of chemical examination
etc. if the same is found to be natural, trustworthy and worth being relied on…”.
Since the ocular testimony of the survivor did not match with the medical
evidence, as such, her evidence cannot be taken as wholly reliable, submits the
learned LAC.
14. As to the third count, the learned LAC has submitted that, the
accused/appellant has been convicted mainly for an offence punishable under
Section 6 of the POCSO Act, which speaks of punishment for aggravated
penetrative sexual assault, whereas evidence would suggest otherwise, the
prosecution has therefore failed to prove its case beyond reasonable doubt.
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15. The learned LAC has however submitted that even, if this Court is
inclined to hold the view that the accused/appellant is indeed guilty of the
offence charged, at the most, the punishment for such offence should not be one
under Section 6 of the POCSO Act, but could be altered to one under Section
9(m) and (n) punishable under Section 10 of the said Act. The case of Kali Ram
v. State of Himachal Pradesh, (1973) 2 SCC 808, para 25 has been referred to
in this regard.
16. Per contra, Mr. R. Gurung, learned GA, appearing for the State
respondent, while resisting the contention and submission made by the learned
LAC, and in support of the impugned judgment and sentence, has submitted that
the evidentiary foundation has established the commission of the offence by the
accused/appellant, the prosecution having discharge its initial burden by
presenting cogent evidence to prove its case.
17. The fact that the FIR lodged by the mother of the survivor, who has
exhibited the same as Exhibit-P1, which has detailed the manner in which the
accused/appellant has sexually assaulted her minor daughter, has not been
disputed by the accused/appellant, the same has confirmed the happenstance of
the incident as reported, submits the learned GA.
18. In the statement under Section 164 CrPC recorded before the
Magistrate, both the complainant/mother as well as the survivor have given
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consistent statement, laying down the facts as it is. Therefore, there is no doubt
that the accused/appellant had committed the act of sexual assault upon the
survivor, submits the learned GA.
19. The learned GA has also submitted that the survivor in her evidence
has lucidly narrated what had happened on the day of the incident, how the
accused/appellant, who is her uncle had called her to play with the other children
and that after sending the other children away, he has carried her to his bed,
removed her pants, partially removed his own, gagged her mouth and then
inserted his penis in her vagina, thus the act of sexual assault has indeed taken
place. This piece of evidence has not been contradicted or shaken by the
defence/accused. As such, the testimony of the survivor being reliable, there is
no need even to seek corroboration of the same. The case of State of H.P. v.
Sanjay Kumar, (2017) 2 SCC 51, at para 31, has been cited, wherein the
Hon’ble Supreme Court has observed that, “…. By now it is well settled that the
testimony of a victim in cases of sexual offences is vital and unless there are
compelling reasons which necessitate looking for corroboration of a statement,
the courts should find no difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused….”
20. Another aspect of the contention raised by the learned GA is with
regard to the extra-judicial confession of the accused/appellant, where he has
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voluntary confessed to have committed the offence, when he was present in a
family gathering at the residence of the mother of the survivor (PW-1). This fact
was also corroborated by PW-5, the uncle of the survivor who, in his evidence
has stated that the accused has admitted that he has committed a mistake by
raping the minor girl as he was drunk. This admission of the accused was also
heard by PW-6, the grandfather of the survivor who was present at the said
meeting. Even PW-7, the grandmother of the survivor who was also present at
the said meeting, has confirmed that the accused has admitted to have committed
the offence. Under such a situation, the extra-judicial confession made by the
accused/appellant being voluntary and before witnesses who have no enmity
with him, the same can be relied upon to convict the accused, further submits the
learned GA. To support this contention, the case of Jagroop Singh v. State of
Punjab, (2012) 11 SCC 768, para 29 was referred to.
21. Having heard the argument advanced by the learned counsel for the
respective parties, the facts having been narrated hereinabove, the same need not
be repeated except, if so required.
22. This is a case where an allegation has been made that the
accused/appellant had committed aggravated penetrative sexual assault on the
minor daughter of the complainant. The complainant on being told about the
incident by her minor daughter, had initially informed about the same to her
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family members, including her parents and siblings. Evidence would show that
there was a clan meeting and the decision was taken to file the FIR. The FIR was
then filed about 4(four) days after the incident.
23. Before we examine or appreciate the evidence on record as to
whether the accused/appellant had indeed committed the offence, the fact that
the survivor is the own niece of the accused/appellant is not denied, in fact, most
of the witnesses who are family members of the survivor have confirmed the fact
that she is the daughter of the sister of the wife of the accused/appellant. When
this aspect of the matter has gone uncontradicted, this Court will hold that the
survivor is related to the accused/appellant, of course, by marriage.
24. The fact that the survivor is a minor girl below the age of 12(twelve)
years, the same being proved in evidence on the production of the birth
certificate of the survivor showing her date of birth as 07.05.2008, such
certificate not being contradicted or challenged by the accused/appellant at the
trial, the same becomes admissible and could be relied upon. Therefore, this
Court can safely say that the survivor was below 12(twelve) years old at the time
when the incident had taken place.
25. Coming to the relationship of the accused/appellant and the
survivor, the fact that he is the own uncle of the survivor, has been brought on
record by non-other than his wife who had deposed as PW-3, when she had
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confirmed and identified the accused/appellant as her own husband and the
survivor as the daughter of her younger sister.
26. To the contention of the learned LAC that the prosecution has failed
to prove its case beyond reasonable doubt since the factum of the incident has
not been clearly ascertained, the same being seen from the glaring contradiction
found in the statement of the survivor, before the police, before the Magistrate,
and finally before the Court, this Court, has perused all the three statements made
by the survivor.
27. In her statement made under Section 161 CrPC, the survivor has
stated that the accused/appellant came and carried her to his house, then he laid
her on the bed, took off her panty and also took off his pant and touched her
private part with his penis. In her statement made under Section 164 CrPC, she
has once again stated that the accused carried her to the bed and took out his
penis and laid down on top of her. She has also stated that he also took off her
dress and panty and laid down on her again, thereafter, she fell asleep and did
not know what had happened, she got up when the accused poured water on her
entire body. In her evidence before the court as PW-2, among others, she has
again stated that the accused/appellant carried her inside the house and took her
to his bed, he then open her long pant as she was not wearing any underwear at
that time, he then open his trouser fully and pulled down his underwear up to his
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knees, when she tried to scream and shout for help, he gagged her mouth with a
cloth. He came on top of her and put his penis inside her vagina, thereafter, she
woke up only when he slapped her face and found that her head was wet with
water.
28. Though the survivor may not have uttered the same words on all three
occasions, what has been noticed is that the foundational fact that the
accused/appellant had carried her to his bed and open her pants as well as his
own, thereafter, he had either touched or inserted his penis in her vagina, has not
been contradicted by the accused/appellant in the cross-examination of the
survivor. Therefore, in the absence of effective contradiction, the essence of the
statement or assertion made by the survivor as regard the manner in which the
offence was committed, cannot be doubted by this Court.
29. In this connection, the case of Phool Singh v. State of MP (2022) 2
SCC, 74, para 8, relied upon by the learned GA would be relevant as in a very
elaborate manner, the Hon’ble Supreme Court has spelt out how the sole
testimony of a witness and under what circumstances could be relied upon by
the court, particularly that of a survivor of sexual assault. In this respect, it would
be, but proper for this Court to reproduce the said para as under:
“8. In Ganesan v. State, (2020) 10 SCC 573, this Court has
observed and held that there can be a conviction on the sole
testimony of the victim/prosecutrix when the deposition of the12
2026:MLHC:426-DBprosecutrix is found to be trustworthy, unblemished, credible and
her evidence is of sterling quality. In the aforesaid case, this Court
had an occasion to consider the series of judgments of this Court on
conviction on the sole evidence of the prosecutrix. In paras 10.1 to
10.3, it is observed and held as under: (Ganesan v. State, (2020) 10
SCC 573 (2020) 10 SCC 573, SCC pp. 578-82)
“10.1. Whether, in the case involving sexual harassment,
molestation, etc. can there be conviction on the sole evidence
of the prosecutrix, in Vijay v. State of M.P, (2010) 8 SCC 191,
it is observed in paras 9 to 14 as under: (SCC pp. 195-98)
‘9. In State of Maharashtra v. Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550, this Court held
that a woman, who is the victim of sexual assault, is not
an accomplice to the crime but is a victim of another
person’s lust and, therefore, her evidence need not be
tested with the same amount of suspicion as that of an
accomplice. The Court observed as under: (SCC p. 559,
para 16)“16. A prosecutrix of a sex offence cannot be put
on a par with an accomplice. She is in fact a
victim of the crime. The Evidence Act nowhere
says that her evidence cannot be accepted unless
it is corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same degree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured complainant
or witness and no more. What is necessary is that
the court must be alive to and conscious of the
fact that it is dealing with the evidence of a
person who is interested in the outcome of the
charge levelled by her. If the court keeps this in
mind and feels satisfied that it can act on the
evidence of the prosecutrix, there is no rule of
law or practice incorporated in the Evidence Act13
2026:MLHC:426-DBsimilar to Illustration (b) to Section 114 which
requires it to look for corroboration. If for some
reason the court is hesitant to place implicit
reliance on the testimony of the prosecutrix it
may look for evidence which may lend
assurance to her testimony short of
corroboration required in the case of an
accomplice. The nature of evidence required to
lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her
evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the
circumstances appearing on the record of the
case disclose that the prosecutrix does not have
a strong motive to falsely involve the person
charged, the court should ordinarily have no
hesitation in accepting her evidence.”
10. In State of U.P. v. Pappus, (2005) 3 SCC 594, this
Court held that even in a case where it is shown that the girl
is a girl of easy virtue or a girl habituated to sexual
intercourse, it may not be a ground to absolve the accused
from the charge of rape. It has to be established that there was
consent by her for that particular occasion. Absence of injury
on the prosecutrix may not be a factor that leads the court to
absolve the accused. This Court further held that there can be
conviction on the sole testimony of the prosecutrix and in
case, the court is not satisfied with the version of the
prosecutrix, it can seek other evidence, direct or
circumstantial, by which it may get assurance of her
testimony. The Court held as under: (SCC p. 597, para 12)
“12. It is well settled that a prosecutrix
complaining of having been a victim of the offence of
rape is not an accomplice after the crime. There is no rule
of law that her testimony cannot be acted upon without
corroboration in material particulars. She stands at a
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higher pedestal than an injured witness. In the latter case,
there is injury on the physical form, while in the former it
is both physical as well as psychological and emotional.
However, if the court of facts finds it difficult to accept
the version of the prosecutrix on its face value, it may
search for evidence, direct or circumstantial, which
would lend assurance to her testimony. Assurance, short
of corroboration as understood in the context of an
accomplice, would do.”
11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC
384, this Court held that in cases involving sexual
harassment, molestation, etc. the court is duty-bound to deal
with such cases with utmost sensitivity. Minor contradictions
or insignificant discrepancies in the statement of a
prosecutrix should not be a ground for throwing out an
otherwise reliable prosecution case. Evidence of the victim
of sexual assault is enough for conviction and it does not
require any corroboration unless there are compelling
reasons for seeking corroboration. The court may look for
some assurances of her statement to satisfy judicial
conscience. The statement of the prosecutrix is more reliable
than that of an injured witness as she is not an accomplice.
The Court further held that the delay in filing FIR for sexual
offence may not be even properly explained, but if found
natural, the accused cannot be given any benefit thereof. The
Court observed as under: (SCC pp. 394-96 & 403, paras 8 &
21)
“8. … The court overlooked the situation in
which a poor helpless minor girl had found herself in the
company of three desperate young men who were
threatening her and preventing her from raising any
alarm. Again, if the investigating officer did not conduct
the investigation properly or was negligent in not being
able to trace out the driver or the car, how can that
become a ground to discredit the testimony of the
prosecutrix? The prosecutrix had no control over the
investigating agency and the negligence of an
investigating officer could not affect the credibility of
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the statement of the prosecutrix. … The courts must,
while evaluating evidence, remain alive to the fact that
in a case of rape, no self-respecting woman would come
forward in a court just to make a humiliating statement
against her honour such as is involved in the
commission of rape on her. In cases involving sexual
molestation, supposed considerations which have no
material effect on the veracity of the prosecution case or
even discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which are
of fatal nature, be allowed to throw out an otherwise
reliable prosecution case…. Seeking corroboration of
her statement before relying upon the same, as a rule, in
such cases amounts to adding insult to injury. …
Corroboration as a condition for judicial reliance on the
testimony of the prosecutrix is not a requirement of law
but a guidance of prudence under given circumstances.
…
21. … The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution
case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars.
If for some reason the court finds it difficult to place
implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and
the trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations.”
12. In State of Orissa v. Thakara Besra, (2002) 9 SCC
86, this Court held that rape is not mere physical assault,
rather it often distracts (sic destroys) the whole personality
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of the victim. The rapist degrades the very soul of the
helpless female and, therefore, the testimony of the
prosecutrix must be appreciated in the background of the
entire case and in such cases, non-examination even of other
witnesses may not be a serious infirmity in the prosecution
case, particularly where the witnesses had not seen the
commission of the offence.
13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC
622, this Court held that there is no legal compulsion to look
for any other evidence to corroborate the evidence of the
prosecutrix before recording an order of conviction.
Evidence has to be weighed and not counted. Conviction can
be recorded on the sole testimony of the prosecutrix, if her
evidence inspires confidence and there is absence of
circumstances which militate against her veracity. A similar
view has been reiterated by this Court in Wahid Khan v. State
of M.P. (2010) 2 SCC 9 placing reliance on an earlier
judgment in Rameshwar v. State of Rajasthan, (1951) SCC
1213.
14. Thus, the law that emerges on the issue is to the
effect that the statement of the prosecutrix, if found to be
worthy of credence and reliable, requires no corroboration.
The court may convict the accused on the sole testimony of
the prosecutrix.’
10.2. In Krishan Kumar Malik v. State of Haryana, (2011) 7
SCC 130, it is observed and held by this Court that to hold an
accused guilty for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient, provided the same inspires
confidence and appears to be absolutely trustworthy, unblemished
and should be of sterling quality.
10.3. Who can be said to be a “sterling witness”, has been dealt
with and considered by this Court in Rai Sandeep v. State (NCT of
Delhi), (2012) 8 SCC 21. In para 22, it is observed and held as
under: (SCC p. 29)
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’22. * In our considered opinion, the “sterling witness”
should be of a very high quality and calibre whose version
should, therefore, be unassailable. The court considering the
version of such witness should be in a position to accept it
for its face value without any hesitation. To test the quality
of such a witness, the status of the witness would be
immaterial and what would be relevant is the truthfulness of
the statement made by such a witness. What would be more
relevant would be the consistency of the statement right from
the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the
court. It should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness
should be in a position to withstand the cross-examination of
any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum
of the occurrence, the persons involved, as well as the
sequence of it. Such a version should have co-relation with
each and every one of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion.
The said version should consistently match with the version
of every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial evidence
where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests
to be applied, can it be held that such a witness can be called
as a “sterling witness” whose version can be accepted by the
court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the court
trying the offence to rely on the core version to sieve the18
2026:MLHC:426-DBother supporting materials for holding the offender guilty of
the charge alleged.’ ”
(emphasis in original)
30. In the light of the testimony of the survivor, another aspect of the
matter to be considered is whether the contention of the learned GA that the
accused/appellant has also voluntarily admitted to have committed the offence,
such extra – judicial confession can be relied by this Court, the same can be taken
note of by this Court.
31. In the case of Jagroop Singh (supra) citied by the learned GA, the
Supreme Court has reiterated the settled position of law that extra-judicial
confession, if true and voluntarily, can be relied upon by the court to convict the
accused for the commission of the crime alleged. As has been pointed out, the
accused/appellant in this case had appeared before a meeting of the family
members which included the complainant, the survivor, the brother of the
complainant, the father-in-law of the accused/appellant as well as the mother-in-
law of the accused/appellant, wherein in their respective deposition before the
court as prosecution witnesses, has stated that the accused/appellant had
confessed to have committed the offence, though PW-5, the brother of the
complainant, in his evidence has stated that the accused/appellant has stated in
the meeting that he has committed a mistake by rapping the minor girl as he was
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drunk. In cross-examination, when confronted, this witness has reiterated
whatever he has stated in his chief as far as this assertion is concerned. Similarly,
PW-6 the father-in-law of the accused/appellant, in his deposition, has stated that
“…After that the clan members enquired from the accused but they did not force
him nor threatened him and the accused admitted by saying that “please forgive
me as I have made a mistake…”.
32. The admission of the accused/appellant, though denied in his
statement under Section 313 CrPC, in the face of the evidence of the survivor as
regard the factum of the offence, would in the opinion of this Court be considered
as voluntarily and made without threat promise or inducement. Therefore, such
confession deserves acceptance by this Court.
33. Coming to the contention raised by the learned LAC, that even, if
this Court would find the accused/appellant guilty of the act alleged, in view of
the findings noted in the medical examination report that the hymen of the
survivor is not torn which means that there is actually no penetration, the
accused/appellant may at the most be convicted of a lesser offence other than the
present sentence meted out to him.
34. The offence said to have been committed by the accused/appellant is
found under Section 5(m)(n) of the POCSO Act, punishable under Section 6 and
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additionally for the offence punishable under Section 506 Part-I IPC, the former
carrying a sentence term of 10(ten) years.
35. In the evidence of the survivor, she had stated that when the
accused/appellant laid on top of her, he touched her vagina with his penis.
Though there may not be actual deep penetration of the penis to have ruptured
the hymen, nevertheless, the legal understanding of what “penetration”
conveys, has been found in a number of judicial pronouncements on the subject.
In the case of Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635, the
Supreme Court at para 5 has observed that “…to constitute the offence of rape,
penetration, however slight, is sufficient…”. Under such circumstances, in the
context of the facts of the case of the accused/appellant, this Court is of the
considered opinion that penetration by the accused/appellant has taken place,
and as such, the provision of Section 3(a), POCSO Act, which says that a person
is said to commit penetrative sexual assault, if he penetrates his penis, to any
extent, in to the vagina, … of a child. The fact that the survivor is said to be
below 12(twelve) years old at the time when the offence was committed, and
also that the accused/appellant is the uncle of the said survivor, therefore, the
provision of Section 5(m)(n) of the POCSO Act, are attracted. The punishment
meted out to him under Section 6 of the POCSO Act is therefore justified.
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36. In view of the above findings and observations, this Court, has come
to the conclusion that the impugned judgment and sentence suffer from no legal
or factual infirmities. The same is hereby affirmed.
37. This appeal is accordingly dismissed as devoid of merits and is
hereby disposed of.
38. Sent back the Trial Court records.
(B. Bhattacharjee) (W. Diengdoh)
Judge Judge
Signature Not Verified 22
Digitally signed by
DARIKORDOR NARY
Date: 2026.05.06 17:49:41 IST
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