Meghalaya High Court
Nongpoh Meghalaya vs Nongpoh on 6 July, 2026
Author: W. Diengdoh
Bench: W. Diengdoh
2026:MLHC:662-DB
Serial No. 01 & 02
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Date of Hearing: 06.05.2026
Crl.A. No.10 of 2024 Date of Decision: 06.07.2026
Shri. Pynshngainlang Nongrum
S/o Shri. K.J. Singh Dhar
R/o Bhoirymbong, Ri-Bhoi District,
Nongpoh Meghalaya. .....Appellant
-VERSUS-
1. The State of Meghalaya,
Through the Superintendent of Police,
Ri-Bhoi District, Meghalaya.
2. Office in-charge Umiam Police Station
Nongpoh, Ri-Bhoi District, Meghalaya.
.....Respondents
Appearance:
For the Petitioner/Appellant(s) : Mr. K.Ch. Gautam, Adv
Ms. G.C. Marboh, Adv
For the Respondent(s) : Mrs. T. Yangi B, AAG with
Mr. E.R. Chyne, GA
Crl.A No.11 of 2024
Shri. Kontishon Mukhim
S/o Shri. Jar Jar Shylla
R/o Bhoirymbong, Ri-Bhoi District,
Nongpoh Meghalaya. .....Appellant
-VERSUS-
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1. The State of Meghalaya,
Through the Superintendent of Police,
Ri-Bhoi District, Meghalaya.
2. Office in-charge Umiam Police Station
Nongpoh, Ri-Bhoi District, Meghalaya.
.....Respondents
Appearance:
For the Petitioner/Appellant(s) : Mr. K. Ch. Gautam, Adv
Ms. R. Kharshiing, Adv
For the Respondent(s) : Mrs. N.G. Shylla, Sr.GA with
Ms. I. Lyngwa, GA
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Hon'ble Mr. Justice B. Bhattacharjee, Judge
Judgment and Order
Per. B. Bhattacharjee, Judge:
1. These two criminal appeals arising out of the impugned judgment of
conviction dated 21.06.2023 and related order of sentence dated 30.06.2023
passed in Special (POCSO) Case No.32 of 2018 by the Special Judge
(POCSO), Ri-Bhoi District, Nongpoh are taken up together for disposal.
2. The appellant (A-1) in Crl.A. No.10 of 2024 was found guilty and
convicted for committing offences u/s 354/354B/366/366A/375(a) falling
under 375(sixthly)/376(2)(n)/376D/503/506 IPC, 1860 and u/s
3(a)/5(g)(l)/6/7/8 POCSO Act, 2012 and was sentenced in the following
manner: –
(i) U/s 8 POCSO Act, 2012 to imprisonment of 5 years with fine of
Rs.1,00,000/- and in default of payment of fine be imprisoned for
a further one year;
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(ii) U/s 366 IPC, 1860 to imprisonment of 10 years with fine of
Rs.2,00,000/- and in default of payment of fine be imprisoned for
a further one year;
(iii) U/s 366A IPC, 1860 to imprisonment of 10 years with fine of
Rs.1,00,000/- and in default of payment of fine be imprisoned for
a further one year;
(iv) U/s 376(2)(n) IPC, 1860 to imprisonment for 25 years with fine
of Rs.2,00,000/- and in default of payment of fine be imprisoned
for a further 2 years;
(v) U/s 376D IPC, 1860 to imprisonment for life (as given in the
statute) and fine of Rs.2,00,000/- and in default of payment of
fine be imprisoned for a further 2 years;
(vi) U/s 506 IPC, 1860 to imprisonment for 7 years with fine of
Rs.20,000/- and in default of payment of fine be imprisoned for a
further two months;
3. The appellant (A-2) in Crl.A. No.11 of 2024 was found guilty and
convicted for committing offences u/s 109 r/w section 366 IPC, 1860; u/s
375(a) falling under 375 (sixthly)/376D IPC, 1860 and u/s 3(a)/5(g)/6
POCSO Act, 2012 and was sentenced in the following manner: –
(i) U/s 109 r/w section 366 IPC, 1860 to imprisonment of 10 years
with fine of Rs. 1,00.000/- and in default of payment of fine be
imprisoned for a further one year;
(ii) U/s 376D IPC,1860 to imprisonment for life (as given in the
statute) and fine of Rs. 3,00,000/- and in default of payment of
fine be imprisoned for a further 3 years;
4. All the sentences were to run concurrently. The entire amount of fine
was directed to be paid to the survivor. The time spent in custody during the
investigation and the trial was directed to be set off from the total period of
sentence.
5. The fact of the case is that on 28.08.2017, an FIR was lodged by the
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mother of the survivor to the Officer In-Charge, Umiam Police Station,
alleging that the appellants, A-1 and A-2, forcibly took her daughter
(survivor) to Madan Kurkalang and sexually assaulted her on 27.08.2017 at
around 5:30 PM and later dropped her back home. Basing on the FIR, a case
was registered as Umiam PS Case No.57(8)2017 u/s 376D IPC r/w section
5(g)/6 POCSO Act and the matter was investigated into. Upon completion of
the investigation, the investigating authority being satisfied that a prima
facie case had been established, filed a charge sheet dated 08.11.2017 u/s
376D IPC, 1860 and u/s 5(g)/6 POCSO Act against A-1 and A-2. Charges
were framed on 30.05.2018 under the aforesaid sections of law against A-1
and A-2, who pleaded not guilty and claimed trial. The prosecution
examined 8 (eight) witnesses and exhibited as many as 11 (eleven)
documents in support of its case. After conclusion of the prosecution
evidence, statements of both A-1 and A-2 were recorded u/s 313 CrPC on
26.05.2023. No defence witness was adduced on behalf of the appellants.
The learned Trial Court, thereafter, heard the final arguments of the
respective parties and passed the impugned judgment of conviction on
21.06.2023 and thereafter, sentenced the appellants by the impugned order
of sentence dated 30.06.2023. The present set of two appeals has been filed
by A-1 and A-2 challenging their conviction and sentence.
6. Assailing the conviction and sentence, the learned counsel for the
appellants submits that the conviction of A-1 and A-2 is not legally tenable
as the testimony of the survivor is not reliable. Referring to the statement of
the survivor u/s 161 and 164 CrPC, he submits that the testimony of the
survivor is fraught with material contradictions, inconsistencies and
improvements rendering her evidence unworthy of any credence. The
learned counsel submits that the evidence of PW-2, the survivor, is
contradictory right from the stage of her entry in the vehicle alleged to have
been used in the commission of the crime. According to him, the
contradiction in the version of the survivor is apparent as the survivor in her
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statement under 161 CrPC stated that A-1 forced her to enter the vehicle,
whereas, in her statement u/s 164 CrPC, she stated that A-1 pulled her inside
the car and finally, in her evidence before the Trial Court, she stated that she
resisted to go with A-1 but he managed to pull her inside the vehicle. That
apart, he submits that there is also inconsistency in the statements of the
survivor with regard to her relationship with A-1 prior to the alleged incident
inasmuch as the duration of continuance of such relationship has been stated
to be different in her statement u/s 161 and 164 CrPC and her evidence
before the Trial Court. Hence, he submits that the survivor’s testimony must
be viewed with caution and should not be relied upon without corroboration.
7. The learned counsel for the appellants submits that the disclosure made
by the survivor for the first time in her evidence that there was another
incident of sexual assault on her by A-1 prior to the incident narrated in the
FIR amounts to a deliberate embellishment to strengthen the prosecution
case. He submits that absence of any such disclosure in the earlier statement
of the survivor u/s 161 and 164 CrPC is nothing but an instance of
exaggeration and afterthought improvement of the prosecution case and as
such, her testimony is totally unreliable. The learned counsel further
contends that the disclosure of sequence of events with regard to the
occurrence of the incident on 27.08.2017 by the survivor is also totally
inconsistence. Drawing attention of this Court to the statements of the
survivor u/s 161 and 164 CrPC and also the evidence before the Trial Court,
the learned counsel contends that there is a huge inconsistency with regard to
the alleged consumption of alcohol by the appellants and the survivor and
also the manner in which A-1 and A-2 allegedly committed sexual assault on
her. He submits that the disclosure made by the survivor at the stage of
investigation and before the Trial Court with regard to the commission of
offence are at total variance and hence, unsafe to form the foundation of
guilt against A-1 and A-2. To buttress his argument and to impress upon this
Court as to when can the sole testimony of the prosecutrix be relied upon to
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render a conviction, the learned counsel places reliance on a number of
decisions reported in i) Sadashiv Ramrao Hadbe v. State of Maharashtra &
anr, 2006 (10) SCC 92, ii) Ramdas v. State of Maharashtra, (2007) 2 SCC
170, iii) Raju v. State of Madhya Pradesh, (2008) 15 SCC 133, iv)
Tameezuddin @Tammu v. State (NCT of Delhi), (2009) 15 SCC 566 and v)
Rai Sandeep @Deepu v. State of NCT of Delhi, (2012) 8 SCC 21.
8. The learned counsel for the appellants further contends that the medical
evidence adduced in the matter is of no help to the prosecution case as the
medical examination of the survivor was not conducted in accordance with
the prescribed guidelines u/s 164-A CrPC. He submits that the medical
report in the present case suffers from serious deficiency as no final
observation or conclusion was recorded to indicate whether there was any
sign of sexual assault. Absence of conclusive medical opinion, according to
the learned counsel, weakens the prosecution case and as such, the benefit of
doubt must go to the accused. The case of Tameezuddin @Tammu (supra)
and the decision of this High Court dated 07.08.2023 in Crl.A. No.37 of
2022, Betstarling Basan v. State of Meghalaya & anr are cited to support his
contention. Additionally, the learned counsel contends that there is a total
misapplication of presumption u/s 29 and 30 of the POCSO Act by the Trial
Court inasmuch as the learned Trial Court invoked the statutory presumption
without there being any materials on record supporting the prosecution case.
By relying on the decision reported in 2021 SCC online Tri 176, Joubansen
Tripura v. State of Tripura, the learned counsel submits that without the
prosecution proving the foundational facts, there cannot be application of
section 29 and 30 of the POCSO Act. The learned counsel further submits
that the offence involved in the present case carry extremely severe penal
consequence and hence, the matter requires stricter degree of scrutiny and
proof. Mere presumption, he submits, cannot be a basis for holding someone
guilty in the criminal trial involving serious offence. He refers to the
decision of Mousam Singha Roy & ors v. State of W.B, (2003) 12 SCC 377
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and submits that the more serious the offence, the stricter the degree of
proof, since a higher degree of assurance is needed for recording conviction.
He also refers to the decision of Kali Ram v. State of Himachal Pradesh,
(1973) 2 SCC 808 to contend that when two views are possible, one pointing
to the guilt of the accused and the other to his innocence, the view which
favours the accused should be adopted. He submits that in the present case,
the conviction recorded by the learned Trial Court does not satisfy the test of
proof beyond reasonable doubt and thus, liable to be interfered with.
9. In addition to the above, insofar as A-2 is concerned, the learned
counsel for the appellant submits that the survivor in her examination-in-
chief before the Trial Court failed to identify A-2. The failure of the survivor
to identify A-2 at the trial indicates that A-2 was not at all connected with
the commission of the alleged crime. In such a scenario, he submits that the
learned Trial Court has committed a gross error in convicting A-2 without an
iota of evidence to link him with the commission of the alleged offence. He
contends that mere seizure of the vehicle by the police is not sufficient to
prove A-2’s involvement in the alleged incident. He, therefore, prays that the
impugned judgment of conviction and the related order of sentence be set
aside and quashed.
10. The learned AAG appearing for the State, on the other hand, supports
the conviction and sentence and submits that there is no illegality or
infirmity in the judgment and order of the Trial Court. She submits that the
statement of the survivor has all along been consistent and she confirmed her
previous statement made u/s 161 and 164 CrPC in her evidence before the
Trial Court. She submits that the evidence of the survivor stood unshaken
and the defence was unable to extract any contradiction. The learned AAG
contends that the evidence of the survivor highlighted a clear picture of what
had happened on the day of the incident and her statement u/s 164 CrPC and
evidence before the Trial Court established that A-1 forced her into the
vehicle and took her to the place of occurrence against her will. She submits
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that it is also clear from the testimony of the survivor that after they reached
the place of occurrence, A-1 pulled her, lay her on the ground and raped her
and thereafter, aided A-2 to also commit the same offence. She, therefore,
submits that it is apparent that both the appellants took part in sexually
assaulting and raping the survivor. She further submits that the evidence of
PW-1, the mother of the survivor, fully corroborates the evidence of the
survivor.
11. The learned AAG next submits that the presence of A-1 and A-2 in the
house of the survivor on being called by PW-3 on the day of the incident
after the occurrence is a clear proof of their involvement in the commission
of crime. She submits that both the appellants had made extra judicial
confession before PW-3, the brother of the survivor, as it is evident from the
deposition of PW-3 that on enquiry by him, both the appellants agreed to
have sexually assaulted (raped) the survivor but at the same time they were
not regretful about it. Referring to the medical evidence, the learned AAG
submits that PW-6, the medical expert, in her evidence stated that on general
examination of the survivor, there was a bruise over the right side of the
neck, scratch mark on the right shoulder and there was also a bruise on inner
side of her left upper arm. Above medical finding, she submits,
unequivocally establish the use of force upon the survivor and corroborate
the presence of resistance and physical struggle of the survivor during the
ordeal. She submits that mere absence of any injury mark in the private part
of the survivor will not vitiate the case of the prosecution when there are
consistent and credible testimonies of the survivor and other prosecution
witnesses.
12. The learned AAG further argues that the identification of the appellants
is established through the unimpeached testimonies of the survivor, her
family members and by seizure of the vehicle used in the commission of the
crime. She submits that in absence of any challenge to the age of the
survivor by the defence and the fact that she was a minor at the time of the
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incident, the contention raised on behalf of the appellants before this court
with regard to the application of sections 29 and 30 of POCSO Act is not
tenable as the foundational fact of the case stood well established by the
prosecution at the trial. She submits that inconsistencies pointed out on
behalf of the appellants with regard to the duration of relationship between
the survivor and A-1 prior to the incident and the consumption of alcohol at
the time of occurrence are very trivial in so far as the core allegation of the
case is concerned having no bearing in the conclusion recorded by the Trial
Court. The learned AAG, therefore, submits that the impugned judgment of
conviction and the order of sentence passed by the learned Trial Court are
well reasoned and warrant no interference by this Court.
13. The learned AAG places reliance on the following decisions: –
i) Piara Singh & ors v. State of Punjab (1977) 4 SCC 452 (Para
10).
ii) State of Punjab v. Gurmit Singh & ors (1996) 2 SCC 384 (Para
21).
iii) Ranjit Hazarika v. State of Assam (1998) 8 SCC 635 (Para 6).
iv) Vijay alias Chinee v. State of Madhya Pradesh (2010) 8 SCC 191
(Para 9 to 14 and 25).
v) State of Uttar Pradesh v. Chhotey Lal (2011) 2SCC 550 (Para 32
and 35).
vi) Madan Gopal Kakkad v. Naval Dubey & anr. (1992) 3 SCC 204
(Para 20).
vii) Motilal v. State of Madhya Pradesh (2008) 11 SCC 20 (para 11,
12 and 13).
viii) B.C. Deva @ Dyava v. State of Karnataka (2007) 12 SCC 122
(Para 12 to 15, 17, 18).
ix) State of Himachal Pradesh v. Sanjay Kumar alias Sunny (2017)
2 SCC 51 (Para 30, 31, 32).
x) Raju alias Umakant v. State of Madhya Pradesh (2025) 8 SCC
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281 (Para 16, 17, 22 and 30).
14. The learned Senior GA representing the State in Crl.A. No.11 of 2024
endorses the submission made by the learned AAG and further submits that
Exhibit-P5 and Exhibit-P6 disclosed that the appellants have voluntarily
admitted to having physical contact with the survivor. She submits that the
physical examination of A-1 revealed presence of abrasion on the right
upper chest wall and left chest wall below the nipple which is consistent
with the survivor’s version of the incident and no explanation for such
injuries was provided by the defence. She further submits that non-mention
of the name of A-2 in the FIR and non-holding of Test Identification Parade
(TIP), cannot be ground for rejecting the prosecution case. With regard to
the evidence that the survivor had continued physical relation with A-1 after
the incident in the month of June or July, 2017, she submits that even if it is
found that the survivor was habituated to sexual intercourse, that alone
cannot be ground to absolve the appellants from the charge. She submits that
victim of sexual assault is not treated as accomplice and hence, her
testimony does not require corroboration from any other evidence including
medical evidence. In addition to the authorities relied upon by the learned
AAG, the learned Sr.GA places reliance on the decisions reported in Amish
Devgan v. Union of India, (2021) 1 SCC 1 and Raju Manjhi v. State of
Bihar. (2019) 12 SCC 784.
15. We have given our careful consideration to the submissions made on
behalf of the parties and also perused the materials available on record.
16. At the outset, it would be imperative to note that the charges against A-
1 and A-2 were initially framed u/s 376D IPC and u/s 5(g)/6 of the POCSO
Act. However, the learned Trial Court convicted A-1 u/s
354/354B/366/366A/375(a) falling under 375(sixthly)/
376(2)(n)/376D/503/506 IPC,1860 and u/s 3(a)/5(g)(l)/6/7/8 POCSO Act,
2012 by adding some more charges and also convicted A-2 u/s 109 r/w
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section 366 IPC, 1860; u/s 375(a) falling under 375(sixthly)/376D IPC, 1860
and u/s 3(a)/5(g)/6 POCSO Act, 2012 by adding more charges. The said
addition of charges by the Trial Court has not been questioned in the present
set of appeals by the appellants. Further, the finding of the Trial Court that
the survivor was born on 13.09.2000 and at the time of the occurrence of the
alleged offence, she was around 16 years old, has also not sought to be
challenged by the appellants in these appeals.
17. PW-1, the mother of the survivor and the informant, in her evidence
before the Court identified A-1 and A-2. She stated that she has a shop in
front of her residence and she sits in the shop. On 27.08.2017, the survivor
came to see her in the shop at around 5:30 to 6:00 PM before entering home.
The eyes of the survivor were swollen and it appeared that she had cried.
After closing the shop, PW-1 went home and served food to her younger
children and put them to sleep. Afterwards, when she was in the kitchen, she
heard voices in the compound and wanted to go out to see what was
happening. At that point of time, the survivor came running to her, held her
and told her not to allow her brother to go out and narrated the incident to
PW-1. The survivor stated how she was picked up by her ex-boyfriend (A-1)
and forcibly taken to Madan Kurkalang at Bhoirymbong in a vehicle and
thereafter, raped by A-1 and A-2 and was also dropped back to the spot from
where she was picked up. Thereafter, PW-1 went outside and saw both the
appellants along with their three other friends quarrelling with her eldest son.
PW-1 intervened and the appellants were called inside the house to have a
talk. There PW-1 was told by A-1 that he was no longer in a relationship
with the survivor, but A-2 liked the survivor and he was going to give her to
him. PW-1 told the appellants that the survivor was not for sale and asked
her elder son to catch hold of them, but A-1 broke the centre table and both
the appellants were able to run away. The survivor was thereafter, taken to
Bhoirymbong CHC by PW-1 and her husband and as it was a rape case, the
doctor advised them to file a complaint before the police. Thereafter, the
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matter was informed to the Women Police Sub-Inspector and the survivor
was taken to the Bhoirymbong CHC after recording her statement by the
police. After medical examination, PW-1 filed a complaint before the
Officer-in-Charge, Umiam PS. She exhibited the FIR as Exhibit P1.
In her cross examination, PW-1 stated that the survivor was about 16
years old at the time of the incident. She stated that prior to the incident, she
was not aware that the survivor was in a relationship. Rest of the statements
in the cross do not appear to be of much relevance.
18. PW-2, the survivor, in her evidence before the Court stated that she met
A-1 through Facebook in the year 2017 and became friends. Subsequently,
they met personally, exchanged phone numbers which resulted in proposal
and acceptance by her. On the very first day of their meeting, they went to
one house situated in a secluded area and inside the house A-1 embraced and
kissed her and then raped her. The survivor struggled to free herself and
shouted for help, but without any result. Thereafter, A-1 took her home.
After the incident, the survivor wanted to meet the mother of A-1, but
he kept it on hold. Later when the survivor came to know that A-1 was
having affairs with other girls, she ended her relationship with him. On
27.08.2017 in the evening, she received a call from A-1 whereby he
persuaded her to meet him despite her reluctance. When she went to meet A-
1, he caught hold of her arms and told her to sit in one car (Alto). On her
resistance, he pulled her into the vehicle. There was one driver inside and on
being directed by A-1, the driver drove to Kurkalang football ground. When
they reached the football ground, A-1 took out one beer bottle and tried to
force her to drink, but she refused. The driver (A-2) took the bottle from A-
1. Then, A-1 asked her to go out as he wanted to talk to her. When she asked
what he wanted to talk, he pulled her, lay her on the ground and raped her.
After A-1 raped her, he held her hands and A-2 also raped her. At that point
of time A-1went away. She struggled to free herself, but was helpless and
could not scream for help.
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After A-2 raped her, A-1 came and pulled her into the vehicle and they
left the place of occurrence. She was dropped near her house. Inside the
vehicle she was crying all the way and A-1 told her not to inform to her
parents. As she replied that she would inform her parents, A-1 held her arms
and threatened to rape her again. She kept quiet and went home.
On reaching home, she went straight to the bathroom and washed
herself while crying all along. After that she called her brother to her room
and informed him about the incident. She, then received a message from A-1
asking if she had reached home and that A-2 likes her. Her brother saw the
message, took her mobile and went outside. By that time her mother had
closed her shop and came home. After giving food to her younger siblings
and putting them to sleep, her mother peeped into her room and saw her
crying. When her mother wanted to know the reason, the survivor told her
about the entire incident. After some time, they heard a commotion outside
the house and went out to see what happened. There they saw many boys
gathered near their house and her brother was also standing along with them.
On being called by her mother to come inside the house, only A-1 and A-2
came inside along with her brother to have a talk. When she saw them
entering, she went back to her room but she was called by her mother. Her
mother then wanted to know what happened and A-1 told her that he broke
up with the survivor but A-2 likes her. Her mother told her brother to close
the door so that they could call the police but A-1 created a scene inside the
house and both of them fled away.
The brother of the survivor thereafter, went to call her father who was
at a funeral service. After her father arrived, he was informed of the incident.
Later, the matter was informed to the police. The police took her for medical
examination to CHC, Bhoirymbong. The doctor examined her after taking
her consent. She exhibited Exhibit P-2 as the medical report. The survivor
stated that she was born on 13.09.2000 and exhibited her birth certificate as
Exhibit P-3. She also stated that she had given a statement u/s 164 CrPC
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recorded by the Magistrate and exhibited the same as Exhibit P-4. The
survivor identified A-1 but could not identify A-2.
In her cross examination the survivor stated that she had a love
relationship with A-1 for about one month prior to the incident. She did not
inform about the first incident to her parents as A-1 told her that he truly
loved her. The first incident took place somewhere in the month of June or
July, 2017. She further stated that apart from the two alleged incidents, in
between she had physical relation with A-1.
Apart from the above, nothing noteworthy was stated by the survivor in
her cross-examination.
19. PW-3, the elder brother of the survivor, in his evidence before the Trial
Court stated that on 27.08.2017 at about 6:30 PM, he was at home. After
some time, his mother called him asking about the survivor as she was
missing from the shop where she was helping the mother. The shop is
situated close to their residence within the same compound. As the survivor
was not home, they assumed that she might have gone to another nearby
shop. When the survivor did not return for about one hour, they started
looking for her. After the shop was closed and they went home, the survivor
arrived and PW-3 saw her crying with swollen eyes. When he enquired as to
why she was crying, after initial reluctance, the survivor told him that she
went to meet her ex-boyfriend A-1. She told him that she was not willing to
go but A-1 forcibly took her in a tourist cab (Alto) of yellow colour, the
registration No. of which she did not remember. The survivor told him that
she was taken to Bhoirymbong, Madan Kurkalang by A-1 and A-2 where
they sexually assaulted (raped) her turn by turn and thereafter, dropped her
back home. He then took the survivor’s phone and called A-1 and asked him
to come home and solve the matter. A-1 agreed to come as he told him that
he would report the matter to police. At around 9:00 PM A-1 and A-2 came
in the same vehicle i.e. Alto (tourist cab) along with three other friends. In
the meanwhile, the survivor had informed about the incident to their mother.
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PW-3 further stated that though at first A-1 and A-2 were not willing to
come inside the house, they eventually came inside the house and talked
about the matter. On enquiry, A-1 and A-2 agreed to have sexually assaulted
(raped) the survivor but were not regretful about it. Then a quarrel started
between them and PW-3 which eventually ended up in a fight but A-1 and
A-2 managed to run away. PW-3 and their mother along with the survivor
immediately informed the matter to the police on the same day at Khanapara
Police Outpost. The survivor was taken for medical examination. Statement
of PW-3 was recorded by the police. He identified A-1 and A-2 who were
present in the Court room.
In his cross examination, PW-3 stated that he met A-1 and A-2 for the
first time on the night of the incident. Prior to the incident he had no
knowledge about the love relationship between the survivor and A-1. Rest of
the statement of PW-3 did not make any noticeable disclosure.
20. PW-4, the father of the survivor, in his deposition stated that at the time
of the incident he was residing separately from his wife. He did not
remember the date, month and year of the incident, but PW-3 came to his
house at around 7:00 to 7:30 PM and asked him to come as the survivor was
sexually assaulted by A-1 and A-2. PW-4 immediately rushed to the
residence of his wife and on reaching there he found that one glass table was
broken in the drawing room and the survivor was crying in the bedroom. He
enquired from the survivor about the incident whereupon, the survivor told
him that she was taken by A-1 and A-2 in a yellow Alto vehicle to Madan
Kurkalang at Bhoirymbong and was sexually assaulted there. After the
incident she was brough back home. PW-4 discussed with his wife and
decided to file an FIR against A-1 and A-2. He had never seen the accused
persons, but knew their names as mentioned by the survivor.
In his cross examination, PW-4 stated that he was not aware as to
whether the survivor had a boyfriend. He also stated that when he arrived in
his wife’s residence, A-1 and A-2 were not there.
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21. PW-5, the brother-in-law of A-2, is a seizure witness. He stated that on
29.08.2017 some police personnel had come to the residence of A-2 and as
he was residing in the neighbourhood, the Police called him to witness the
seizure of the vehicle. He also stated that on the said date he drove the
vehicle Alto 800 ML05 M2063, yellow colour and dropped it at Umiam
Police Station after the same was seized from the residence of A-2. He
signed the seizure list bearing No. MR No. 72/17 dated 29.08.2017.
In his cross examination, he stated that he did not know anything about
the case.
22. PW-6, the Medical Officer who examined the survivor and A-1 and A-
2, in her evidence before the Court stated that in the year 2017, she was
posted in Bhoirymbong CHC as a Medical and Health Officer. On
28.08.2017 she received a requisition to examine the survivor of a sexual
assault case. She obtained consent of the survivor and her mother for the
medical examination. PW-6 stated that she was informed that the survivor
was 16 years old. While taking the history of the case, the survivor said that
she was taken forcefully by her ex-boyfriend in a car to Madan Kurkalang
where she was sexually assaulted by her ex-boyfriend and one of his
acquaintances at around 5:30 PM on 27.08.2017. While proceeding with the
medical examination and on enquiry, the survivor confirmed that there had
been penetration of her vagina by the penis and emission of semen on her
abdomen. The survivor mentioned that there was kissing, licking and
sucking of her neck. The survivor stated that she had changed her
undergarments and washed her vaginal area and wore clean undergarments.
The survivor stated there was vaginal discharge and painful urination post
incident. On general examination, PW-6 found there was a bruise over the
right side of the neck of the survivor and scratch mark on the right shoulder;
there was also bruise on inner side of her left upper arm. On local
examination of the private parts of the survivor, PW-6 did not observe any
injuries and there were no abnormalities in the labia majora, minora,
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fourchette, introitus, hymen perinium and external urethral meatus. PW-6
collected the biological samples from the survivor and handed them over to
WPSI. She exhibited medical report of the survivor as Exhibit P-2.
PW-6 also conducted medical examination of A-1 and A-2 after
receiving necessary requisition. She stated that history which she took from
them, they voluntarily admitted that both of them had physical contact with
the girlfriend of A-1. She stated that she did not find anything significant in
the physical examination of A-2, however, in the physical examination of A-
1, she found an abrasion at right upper chest wall and left chest wall below
nipple. She exhibited medical reports of A-2 as Exhibit P-5 and A-1 as
Exhibit P-6. She also collected biological samples of both the accused and
handed them over to WPSI.
In her cross examination, PW-6 stated that she could not say whether
there was penetrative sexual assault in the case and admitted that she has not
given any opinion on that aspect. She also could not say whether the hymen
was intact or not as there was no external injury present. She admitted that
there was no external injury on the private part of the accused persons and
admitted that the survivor did not disclose the name of the accused persons
in her history. She also could not say whether the abrasions on the survivor
were recent or old and admitted that there is no such mention in her report.
She also could not say whether the abrasion on A-1 was recent or old. She
stated that she conducted medical examination of the survivor approximately
12 hours after the incident.
23. PW-7, the Police Officer who received the FIR, in his deposition
stated that he received the FIR vide GD Entry No. 09 dated 28.08.2017 and
registered the case as Umiam PS Case No. 57 (08) 2017 u/s 376D IPC r/w
section 5(g)/6 POCSO Act 201. He endorsed the investigation of the case to
PW-8.
24. PW-8, the investigating officer, in her deposition before the Trial Court
stated that on 28.08.2017, at around 2:15 AM, she received information from
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PW-7 that there was a case of sexual assault. At 2:40 AM, the survivor and
PW-1 appeared at Umiam Police Station and verbally reported about the
incident. The survivor was examined and she stated that A-1 picked her up
in one yellow vehicle No. ML 05M 2063 along with one unknown driver.
The survivor stated that they forced her to take alcohol and thereafter A-1
and the driver, whose name she did not know, committed penetrative sexual
assault on her. PW-8, took the survivor for medical examination and
received the medical examination report. She also seized the biological
samples of the survivor collected by the Medical Officer and exhibited
Exhibit P7 as the seizure list.
PW-8 stated that she dropped the survivor to her residence and the
survivor informed her that A-1 is a resident of Lum Mawria, Bhoirymbong.
PW-8 went to the resident of A-1 but he was not present there. After ten
minutes, A-1 returned home and she took him to Umiam Police Station. On
the way to the Umiam Police Station, A-1 showed the residence of A-2 and
PW-8 picked him up from his residence. She stated that both of them
admitted to have committed the crime and they were taken for medical
examination to Bhoirymbong CHC. At 10:30 AM, PW-8 received the
medical examination reports of A-1 and A-2 as well as the biological
samples handed over by the Medical Officer. The samples were seized vide
Exhibit P8 dated 28.08.2017. PW-8 took A-1 and A-2 to Umiam Police
Station and recorded their statement. After the relatives of the accused
persons came to the Police Station, she instructed PW-5, the relative of A-2,
to bring the vehicle which was produced and seized by Exhibit P9. PW-8
stated that on the same date at about 1:00 PM, the complainant arrived at the
Police Station and filed the FIR which was registered and the investigation
was endorsed to her. She immediately arrested A-1 and A-2 and produced
them before the Court.
PW-8 stated that she made a prayer to record the statement of the
survivor u/s 164 CrPC and went to the resident of the survivor and recorded
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the statement of her father, elder brother, and the complainant. She produced
the photographs and documents of the vehicle before the Court. The seized
biological samples were sent to the Forensic Science Laboratory, Shillong.
The original birth certificate of the survivor was seized by Exhibit P-10.
After the conclusion of the investigation, she reviewed the evidence and was
satisfied that A-1 and A-2 had committed the offence. Thereafter, she
consulted her Supervising Officer who agreed with her and charge sheet was
accordingly filed in the case. She exhibited the charge sheet as Exhibit P-11.
In her cross examination, PW-8 admitted that the appellants were taken
into custody and the medical examination of the survivor as well as of the
appellants were conducted before receiving the formal FIR. She also
admitted that no Test Identification Parade (TIP) was conducted to identify
A-2. The rest of the statements made in cross examination are of not much
relevance.
25. Before proceeding further, at this juncture, it would be appropriate to
take note of the different authorities relied upon by the rival parties in
support of their respective arguments.
26. The decisions of Sadashiv Ramrao Hadbe (supra), Ramdas v. State of
Maharashtra (supra), Raju v. State of Madhya Pradesh (supra),
Tameezuddin @Tammu (supra) and Rai Sandeep @Deepu (supra) relied on
by the learned counsel for the appellants laid down that the conviction in a
rape case can be based on the sole testimony of the prosecutrix if it is
capable of inspiring the confidence in the mind of the Court, but that can be
done in a case where the Court is convinced about the truthfulness of the
prosecutrix. The accused must also be protected against the possibility of
false implication and there is no presumption or any basis for assuming that
the statement of the prosecutrix is always correct or without any
embellishment or exaggeration. Further, the decision of Betstarling Basan
(supra) observed that in the absence of the medical report showing any kind
of injury being suffered by the survivor and in the absence of survivor
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asserting or indicating how she had been violated except for using the word
‘rape’ in its several forms, the evidence before the Trial Court was not
sufficient to come to a conclusion that there was any degree of penetration
for an offence of rape or an offence of penetrative sexual assault.
27. In the case of Joubansen Tripura (supra) it was held that
presumptions u/s 29 and 30 of the POCSO Act do not take away the primary
duty of prosecution to establish the fundamental facts. This duty is always
on the prosecution and never shifts to the accused. In Kali Ram (supra), the
Apex Court held that if two views are possible on the evidence adduced in
the case, one pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused should be adopted.
28. In the case of Piara Singh (supra), relied on by the learned AAG, at
para 10, the Apex Court laid down that evidence of extra judicial confession
need not in all cases be corroborated. In Gurmit Singh & ors (supra), at para
21 it was held that in cases involving sexual molestation, the Court is duty
bound to deal with such cases with utmost sensitivity. The Court should not
get influenced by minor contradictions or insignificant discrepancies in the
statement of the prosecutrix. In Ranjit Hazarika (supra) it was held that non-
rupture of hymen or absence of injury in survivor’s private part does not
belie her testimony and corroboration of testimony of prosecutrix by medical
evidence is not always essential. In Vijay alias Chinee (supra) it is provided
that holding of TIP is not a substantive piece of evidence, yet it may be used
for the purpose of corroboration. Non-holding of TIP cannot be a ground to
draw adverse inference against the prosecution. It is further held that when
the statement of the prosecutrix is found to be worthy of credence and
reliable, no corroboration is required, the Court can convict the accused on
the sole testimony of the prosecutrix. The decision also provides that the
absence on injury mark of violence on the private part on the person of the
prosecutrix is of no consequence when the prosecutrix is minor and would
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merely suggest want of violence resistance on the part of the prosecutrix. In
the case of Chhotey Lal (supra), the Apex Court held that the absence of
injuries on prosecutrix is not sufficient to discredit her evidence. It is wrong
to assume that in all cases of intercourse against will or without consent,
there will be some injury on external or internal parts of survivor.
29. Further, in the case of Madan Gopal Kakkad (supra) relied upon by
the learned AAG, it is observed that the extra-judicial confession of the
accused need not in all cases be corroborated. If the extra-judicial confession
made by the accused is not shown to have been obtained by coercion,
promise of favour or false hope etc. and is plenary and voluntary in nature
acknowledging the guilt, it can be acted upon. The decision of Moti Lal
(supra) reiterates the principles enunciated by the Hon’ble Supreme Court in
its various judgments as regards to sustainability of conviction on the sole
testimony of prosecutrix. In the case of B.C. Deva alias Dyava (supra), the
Apex Court upheld the conviction based on sole oral evidence of the
prosecutrix when medical evidence did not corroborate the alleged forced
sexual intercourse. In Sanjay Kumar alias Sunny (supra), the Apex Court
reiterated the proposition of law that the Court should not find difficulty to
act on testimony of survivor of a sexual assault alone to convict the accused
if her testimony inspires confidence of the Court. While restoring the
conviction recorded by the Trial Court, it was held that seeking
corroboration to evidence of prosecutrix as a rule in all cases would literally
amount to adding insult to injury. In Raju alias Umakant (supra), it was held
that a woman or a girl subjected to sexual assault is not an accomplice but a
victim of another person’s lust and it would be improper and undesirable to
test her evidence with suspicion. It was further held that when no definite
medical opinion is available, it would not mean that sexual assault was not
committed on the prosecutrix. It is also well settled that where the ocular
evidence is clear, it will prevail over the medical evidence.
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30. In Amish Devgan (supra), it was held that not naming an accused
person in the FIR is not automatically fatal to the prosecution case as an FIR
is intended to set the law in motion and is not required to be an exhaustive
document. The omission is generally not considered a major flaw if the
accused’s name was initially unknown to the informant and was revealed
later during the investigation or identified in court. In Raju Manjhi (supra),
it was held that TIP is not substantive evidence. There is no provision in
CrPC which obliges the investigating agency to hold or confers a right upon
the accused to claim a TIP. Failure to hold a TIP would not make
inadmissible the evidence of identification in court.
31. An overall analysis of the prosecution evidence in the light of the
above noted propositions of law laid down the Apex Court would
undoubtedly bring to fore that the survivor and A-1 met each other through
Facebook in the year 2017. Thereafter, they met each other in person and
became friends. They remained in contact for some time and developed love
relationship. However, after the survivor came to know about A-1’s affairs
with other girls, she ended the relationship. On 27.08.2017, on the pretext of
personally meeting for a while, the survivor was taken to the place of
occurrence by A-1 against her will in a vehicle (Alto) driven by A-2. On
reaching the place of occurrence known as ‘Madan Kurkalang’, A-1 tried to
force the survivor to take beer and then pulled her out from the vehicle in the
guise of having a talk, lay her on the ground and raped her. After A-1, A-2
also raped her. The survivor struggled to free herself, but failed. Thereafter,
the survivor was brought back by the same vehicle and dropped near her
house. While returning, the survivor was crying in the vehicle where A-1
told her not to inform the incident to her parents otherwise he would rape her
again.
32. The prosecution evidence further reveals that the survivor after
reaching home took a bath and informed about the incident to PW-3, who in
turn called A-1 asking him to come to their house. A-1 agreed to come as he
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was informed that the matter would be reported to the police. Afterwards A-
1 and A-2 came to the house of the survivor along with three other friends.
In the meantime, PW-1 was also informed of the incident by the survivor
after she had returned home from her shop. Both the appellants entered
inside the house of the survivor and after having a talk, created ruckus and
ran away from the scene.
33. The medical examination of the survivor disclosed that there was a
bruise on the right side of the neck and scratch mark on the right shoulder.
There was also bruise on inner side of left upper arm. No injury was found
on examination of the private part. Nothing significant was found in the
physical examination of A-2 by the medical expert. The physical
examination of A-1 revealed an abrasion on right upper chest wall and left
chest wall below nipple. No opinion was rendered by the medical expert as
to whether there was penetrative sexual assault on the survivor or not.
However, absence of such an opinion does not negate the prosecution case
as the evidence of the survivor is clear enough to establish the charge of
penetrative sexual assault in the case. Corroboration by medical evidence is
not required.
34. Perusal of the statement of the survivor u/s 161 and 164 CrPC does
not bring forth any notable contradiction with her evidence before the court.
Instances cited by the learned counsel for the appellants with regard to the
duration of survivor’s relationship with A-1, manner of entry in the vehicle,
use of alcohol and sequence of participation in the alleged offence, do not go
to the core allegation made in the case. It is humanly impossible to
reproduce the statement which was recorded at the stage of investigation in
the same words while adducing evidence in a Court at the stage of trial,
particularly when there exists a gap of considerable period of time in
between. A human being cannot be expected to reproduce earlier statement
like a recording device while deposing as witness in a judicial proceeding
and there are bound to be some discrepancies. So long such discrepancies
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do not go to the root of the allegation and unfold a different picture
altogether, it cannot be said that there exists contradiction to land discredit to
the prosecution case.
35. We are, therefore, convinced that notwithstanding the minor
contradictions, the survivor’s evidence inspires confidence and that she has
clearly narrated about A-1 kidnapping her and also committing rape on her.
36. Insofar as the question of involvement of A-2 is concerned, we find
that the survivor during her evidence before the Trial Court failed to identify
him. The prosecution has not assigned any reason as to why the survivor
declined to identify A-2 before the Trial Court. When it is clear from the
evidence of the survivor that A-1 and A-2 came to her residence on
27.08.2017 after being called by PW-3, her refusal to identify A-2 in the
course of the trial creates a serious doubt about his involvement in the
matter. There is nothing on record to indicate that such refusal on the part of
the survivor stemmed from fear, trauma or external coercion/threats.
37. The learned Trial Court declined to give any credence to the
survivor’s refusal to identify A-2 by holding that identification of accused is
not normally required because of Section 36 of POCSO Act, 2012 and PW-1
and PW-3, the mother and brother of the survivor, clearly identified both the
accused. We are not inclined to accept such reasoning. Section 36 of POCSO
Act, 2012 does not create any embargo on the identification of the accused
by the child survivor. The provision only ensures that the child is not
exposed in any way to the accused at the time of recording of the evidence.
Law does not create any bar if the prosecution in the course of a trial desires
to get the accused identified by the child survivor without exposing the child
to the accused. Hence, once the prosecution chooses to go through such
process, the evidence extracted thereof would naturally have a bearing on the
overall appreciation of the prosecution case. In the present matter, as it is an
admitted fact that none of PW-1 or PW-3 was an eyewitness to the crime and
they did not know A-1 and A-2 personally prior to their meeting in the
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survivor’s residence, their evidence before the Trial Court with regard to
identification of A-2 cannot have overriding effect over the evidence of the
survivor.
38. As the survivor’s refusal to identify A-2 in the course of the trial
appears to be completely voluntary, legal consequences shifts in favour of
A-2. The involvement of A-2 in the commission of the crime becomes
doubtful. We, therefore, feel it totally unsafe to uphold the conviction and
sentence of A-2.
39. Insofar as the conviction and sentence of A-1 u/s 376(2)(n) IPC and
u/s 5(l) POCSO Act is concerned, we find that such conviction is recorded
by the Trial Court on the basis of the disclosure made by the survivor for the
first time before it that she was also raped by A-1 on a previous occasion in
the month of June or July, 2017, prior to the incident mentioned in the FIR.
The materials on record reveal that no such statement was ever made by the
survivor before any authority prior to the disclosure before the Trial Court in
her evidence. The FIR was not lodged or the investigation of the matter was
not conducted on the above factual background. The chargesheet filed also
did not contain any allegation alleging repeated rape on the survivor by A-1.
No charge also was framed to that effect. It is only in the final verdict of the
Trial Court, A-1 was held guilty u/s 376(2)(n) IPC and u/s 5(l) POCSO Act.
It is, therefore, clear that A-1 did not get sufficient opportunity to defend
himself against such accusation. The addition of this charge has caused
serious prejudice to A-1 as the factual foundation for the offence was not
known to him. Hence, the conviction and sentence of A-1 u/s 376(2)(n) IPC
and his conviction u/s 5(l) POCSO Act stand interfered with.
40. As A-1 is found guilty of offence u/s 5(g) of POCSO Act and also u/s
376D IPC, he is convicted for major offence and thus, did not additionally
require to be convicted for section 7/8 POCSO Act as the lesser act of sexual
assault is subsumed by the greater crime of gang penetrative sexual assault.
Section 5 of POCSO Act is essentially an aggravated form of penetrative
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sexual offence and acts as an enhancement when the crime involves specific
aggravating factors, the offence u/s 7/8 POCSO Act gets overlapped for a
single criminal act. The conviction and sentence of A-1 u/s 7/8 POCSO Act,
as such, is not tenable in the eye of law and is hereby interfered with. For the
same reason, the conviction of A-1 u/s 354/354B IPC is also set aside on his
conviction u/s 376D IPC arising out of the same single criminal act.
41. The conviction of A-1 with regard to other sections of law requires no
interference. However, taking into consideration the age of A-1, who was
around 24 years old at the time of the conclusion of the trial, and that he was
not found involved in any other criminal case, we deem it appropriate to
reduce the quantum of sentence awarded to him. The learned Trial Court has
awarded maximum possible sentence in total disregard to the age of A-1 and
that he was a first-time offender. We, therefore, alter the sentences awarded
to A-1 and reduce the same as under: –
i) u/s 376D IPC, 1860, imprisonment for 20 (twenty) years with
fine of Rs. 50,000/- and in default of payment, imprisonment
for 3 (three) months.
ii) u/s 366 IPC, 1860, imprisonment for 2 (two) years with fine of
Rs. 10,000/- and in default of payment, imprisonment for 1
(one) month.
iii) u/s 366A IPC, 1860, imprisonment for 2 (two) years with fine
of Rs. 10,000/- and in default of payment, imprisonment for 1
(one) month.
iv) u/s 506 IPC, 1860, imprisonment for 2 (two) years with fine of
Rs. 10,000/- and in default of payment, imprisonment for 1
(one) month.
All the aforesaid sentences shall run concurrently. The period of
detention undergone by A-1 during the investigation and trial is set off from
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the total period of sentence. The amount of fine imposed shall be paid to the
survivor.
42. Resultantly, Crl.A. No.10 of 2024 stands partly allowed. The
conviction of A-1 u/s 354/354B IPC and u/s 5(l) POCSO Act and conviction
and sentence of A-1 u/s 376(2)(n) IPC and u/s 7/8 POCSO Act is set aside.
However, conviction with regard to other sections of law is upheld with
modification of sentences as indicated above.
43. The Crl.A. No.11 of 2024 stands allowed. The conviction and
sentence of A-2 is set aside. He is directed to be released forthwith if not
required in connection with any other case.
44. Let a copy of this order be forwarded to the learned Trial Court and
also to the learned counsels appearing for the parties.
45. Trial Court record be returned forthwith.
(B. Bhattacharjee) (W. Diengdoh)
JUDGE JUDGE
Meghalaya
06.07.2026
"Shrity,PS"
Signature Not Verified
Digitally signed by SHRITY
CH MOMIN
Date: 2026.07.06 18:48:27 IST
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