Meghalaya High Court
Cleverstrein Marngar vs Hills District on 15 July, 2026
Author: W. Diengdoh
Bench: W. Diengdoh
2026:MLHC:717-DB
Serial No. 02
Supplementary List HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. No. 28 of 2023 with
Crl.A. No. 29 of 2023
Crl.A. No. 32 of 2024
Date of CAV: 30.06.2026
Date of pronouncement: 15.07.2026
Cleverstrein Marngar ......Appellant
- versus -
1. The State of Meghalaya represented by the Secretary,
Government of Meghalaya, Home (Police) Department,
West Khasi Hills District, Meghalaya.
2. Investigating Officer, Nongstoin Police Station, West Khasi
Hills District, Meghalaya. ...Respondents
AND
Proningstar Marngar ........Appellant
- versus -
1. The State of Meghalaya represented by the Secretary,
Government of Meghalaya, Home (Police) Department,
West Khasi Hills District, Meghalaya.
2. Investigating Officer, Nongstoin Police Station, West Khasi
Hills District, Meghalaya. ...Respondents
AND
Basnes Ryntathiang .........Appellant
- versus -
The State of Meghalaya through the Public Prosecutor, the High
Court of Meghalaya, at Shillong.
...Respondents
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Coram:
Hon'ble Mrs. Justice Revati Mohite Dere, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance in Crl.A.Nos. 28 & 29/2023:
For the Appellant : Mr K. Ch. Gautam, Adv. with
Ms G.C. Marboh, Adv.
For the Respondents : Mr K. Khan, AAG with
Mr S. Sengupta, Addl PP
Mr A.H. Kharwanlang, Addl PP
Appearance in Crl.A. No. 32 of 2024:
For the Appellant : Mr S. Chakrawarty, Sr Adv. with
Mr E. Laloo, Adv.
For the Respondents : Mr K. Khan, AAG with
Mr S. Sengupta, Addl PP
Mr A.H. Kharwanlang, Addl PP
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
JUDGMENT:
(per the Hon’ble, the Chief Justice) (Oral)
All the aforesaid appeals arise out of a common judgment
dated 22.09.2022 and order of sentence dated 23.09.2022
passed by the learned Special Judge (POCSO), West Khasi Hills
District, Nongstoin in Special (POCSO) Case No. 18 of 2016, and
as such, are being decided together.
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2. All the three aforesaid appellants vide the aforesaid
judgment and order of conviction and sentence have been
convicted for the offence punishable under Section 5(g) read with
Section 6 of the POCSO Act, and are sentenced to suffer rigorous
imprisonment for a period of 10 years with a fine of ₹25,000/-,
in default of payment of fine, are directed to further undergo
sentence of three months, simple imprisonment.
3. At the outset, we may note that there were eight accused
persons, who were arrested in connection with the aforesaid
offence. Since three out of eight accused were found to be
Children in Conflict with Law, they were tried before the Juvenile
Justice Court and the rest of the five accused were tried by the
learned Special Judge (POCSO) for the aforesaid offence. All the
five accused were convicted and sentenced as stated aforesaid
by the trial court. It may also be noted, that the aforesaid
appeals have been filed only by three of the said five accused i.e.,
Original Accused No. 1 – Shri Cleverstrein Marngar, Original
Accused No.3 – Shri Proningstar Marngar; and Original Accused
No.5 – Shri Basnes Ryntathiang and as such, we are concerned
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with only three accused. Two other co-accused i.e., Original
Accused No. 2 – Shri Khwarningstar Shangoi and Original
Accused No.4 – Shri Shaitstar Marngar, have not filed appeals
and as such, have not challenged their conviction and sentence.
4. The prosecution case in brief is as under:
The police of Nongstoin Police Station received a written
complaint from the mother of the survivor (PW2) stating therein,
that her daughter aged 15 years was raped by six assailants on
11.09.2016 at about 6.30 p.m. and that the assailants were from
Mawkamoit Myriaw Syiemship village and that from the six
assailants, the survivor knew the names of two of the assailants
and could identify the others by face. Based on this written
complaint, the police registered an FIR with the Nongstoin Police
Station, being Nongstoin P.S. Case No. 84(9)2016 initially for the
alleged offence punishable under Section 9(g)/10 of the POCSO
Act. During the course of investigation, the statement of the
survivor (PW2) was recorded and she was sent for medical
examination; the sketch map was prepared where the incident
took place and photographs were taken and seven accused came
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2026:MLHC:717-DBto be arrested on 15.09.2016 in connection with the said FIR.
Since three out of the eight accused were CCL and they were
forwarded to the Juvenile Board. Another accused i.e., Accused
No. 5 – Shri Basnes Ryntathiang, was arrested on 16.09.2016.
The statement of the survivor and material witnesses were
recorded under Section 164 Cr.P.C. TIP was also conducted and
after investigation, charge-sheet was filed in the Court of the
learned Special Judge (POCSO) on 30.11.2016 as against the
original accused Nos. 1, 2 and 5 i.e., the three aforesaid
appellants and two others for the alleged offence punishable
under Section 9(g)/10 of the POCSO Act.
5. The trial court framed charge against the accused to
which they pleaded not guilty and claimed to be tried.
6. The prosecution in support of its case examined as many
as 18 witnesses;
PW1 – Informant (mother of the survivor)
PW2 – Survivor
PW3 – Shri Sestar Syiem (who had also gone to the
football ground).
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PW4 – Shri Boldingwell Marngar (who had accompanied PW5 to
the football ground).
PW5 – Hamalarisha Syiem (survivor’s friend, who saw the
survivor being dragged)
PW6 – Shri Topborlang Marbaniang (Survivor’s uncle)
PW7 – Father of the survivor – (Panch to seizure of survivor’s
Clothes).
PW8 – Aunt of the survivor – accompanied the survivor
alongwith others to the Mairang Civil Hospital.
Also a Panch to seizure of survivor’s clothes.
PW9 – Shri Phainestar Marbaniang (Panch to seizure of articles
from the spot).
PW10 – Smti. Binalin Marbaniang – Grandmother of survivor
(Panch to seizure of articles from the spot of incident).
PW11 – Shri D.M. Momin (Assistant Jailor, Panch witness to the
TIP).
PW12 – Shri Mangal Singh (Jail Warden, Panch Witness to the
TIP).
PW13 – Smt. Mildalin Lyngdoh (Seizure witness – Panch –
Collection of accused samples).
PW14 – Smt. Banrihun Lyngkhoi, Staff Nurse at the Civil
Hospital, Nongstoin – Panch to collection of samples of
five accused).
PW15 – Dr. Z. Marak – Doctor, who examined the survivor.
PW16 – Shri T.T.M. Sangma (JMFC) (Magistrate, who conducted
the TIP)
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PW17 – WP/S.I. Fredis K. Marak (I/O)
PW18 – Dr. Bryan A. Sun, Dental surgeon, Nongstoin Civil
Hospital, who gave the age estimation certificate of the
survivor.
7. Thereafter, before final arguments took place, charge
came to be altered on 01.04.2022 from Section 9(g)/10 of the
POCSO Act to Section 5(g)/6 of the POCSO Act and opportunity
was afforded to both parties to recall witnesses, if they so
desired. It appears that the accused did not avail of this
opportunity, however, the prosecution recalled PW1, the first
informant and mother of the survivor and through the said
witness, produced the birth certificate of the survivor (PW2), to
prove PW2’s date of birth and to establish that PW2 was a minor,
at the relevant time.
8. The learned trial court thereafter, examined the accused
under Section 313 Cr.P.C. All the aforesaid appellants denied
the incident. The appellants did not adduce any evidence in
support of their defence.
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9. The trial court after hearing the learned counsel for the
accused and the prosecutor, convicted and sentenced the
appellant and two others as stated aforesaid in paragraph 2 of
this Judgment.
10. Mr K. Ch. Gautam, learned counsel appearing for Shri.
Cleverstrein Marngar and Shri. Proningstar Marngar in Crl.A.
Nos. 28 and 29 of 2023, assailed the judgment and order on the
following counts;
(i) that the prosecution had failed to establish the guilt
of the appellants beyond reasonable doubt. Learned counsel
submitted that unless the foundational facts are established by
the prosecution, statutory presumptions under Sections 29 and
30 of the POCSO Act, would not arise. He submitted that the
prosecution had failed to establish the foundational facts in this
case; (a) that the prosecutrix was a minor; (b) that the alleged
incident of sexual assault had taken place; (c) that the
appellants were correctly identified in Court as being the
perpetrators; and (d) that the test identification parade inspired
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confidence, inasmuch as no independent witness was included
in the TIP;
(ii) that there were material contradictions in the
prosecutrix’s evidence which went to the root of the matter, with
respect to the role of the accused, their identity as to who
sexually assaulted her; and several other material
discrepancies;
(iii) that the belated alteration of charge after the
prosecution had led its evidence without giving the accused an
opportunity to recall the witness, had caused serious prejudice
to the appellants thereby, vitiating the trial.
Learned counsel submitted that in this view of the matter,
the appellants be given benefit of doubt and be acquitted of the
offence for which they are convicted and sentenced.
11. Mr S. Chakrawarty, learned Senior Counsel supported and
reiterated the submissions advanced by learned counsel, Mr K
Ch. Gautam.
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12. Mr K. Khan, learned AAG vehemently submitted that the
prosecution had proved its case beyond reasonable doubt and
that the prosecutrix’s evidence could not be doubted, inasmuch
as, she had no axe to grind against the appellants. Learned AAG
submitted that the evidence of the prosecutrix is also duly
corroborated by the evidence of her friend (PW5), who was
present around the time, at the spot when the prosecutrix was
pulled by the accused persons into the forest. He further
submitted that PW5’s evidence is further corroborated by the
prosecutrix’s mother (PW1), uncle (PW6) and other witnesses. He
further submitted that the TIP conducted by PW16, Judicial
Magistrate clearly shows that the prosecutrix had identified all
the accused, except one accused i.e., the original Accused No. 2
(Khwarningstar Shangoi) and that there is no suggestion or
challenge to the TIP so conducted by PW16. Learned AAG further
submitted that the prosecution had, thus, proved the
foundational facts required to prove its case qua the appellants,
however, the appellants have not discharged the burden cast on
them under Sections 29 and 30 of the POCSO Act i.e., the
presumption of guilt, has not been rebutted by the appellants.
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He further submitted that even the birth certificate produced by
PW1, which was exhibited in evidence, was not challenged by
the appellants and as such, the prosecution has proved that the
prosecutrix was a minor at the relevant time i.e., 15 years of age.
Mr. Khan, further submitted that the appellants cannot at the
appellate stage, plead prejudice on the premise that no
opportunity was given to them after the charge was altered,
inasmuch as, the trial court had given them an opportunity to
recall the witnesses, however, the appellants failed to do so. Mr
Khan, learned AAG thus, submitted that no interference was
warranted in the impugned judgment and order of conviction
and sentence.
13. At the outset, we may note that there is no dispute about
the proposition as canvassed by Mr K. Ch. Gautam, learned
counsel and Mr S. Chakrawarty, learned Senior Counsel, that
the burden is on the prosecution to prove its foundational facts
which constitute an offence and it is only after the foundational
facts are established that the statutory presumptions under
Sections 29 and 30 of the POCSO Act, would come into play.
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Thus, it is not necessary to deal with the judgments relied upon
by the learned counsel for the appellants on this aspect.
14. In order to consider whether the prosecution has
established its foundational facts i.e., that the alleged act of
sexual assault had taken place; that the prosecutrix was a
minor, and that the appellants were perpetrators of the offence,
we would first advert to the evidence of the prosecutrix i.e., PW2.
15. PW2 in her evidence has on oath deposed that the incident
took place on 11.09.2016. She has stated that at about 6.30
p.m. on the said date, she was sitting and chatting with her
friends on the football ground i.e., with PW5 and others; that as
she was about to leave, to go home, six male persons came there
and forcibly pulled her from the field and that her friend (PW5)
saw her being pulled; that she shouted for help but the accused
persons gagged her mouth and took her to Mawia-aid and all of
them forcibly committed penetrative sexual assault on her. She
has stated that there were six persons who committed the crime;
that she had seen their faces when they forcibly pulled her from
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the field and that all the said six persons had committed
penetrative sexual assault on her. She has further deposed that
after the incident she became unconscious and did not know
what happened thereafter. She has further deposed that she
remembered that her mobile phone rang and that the accused
persons answered the call and that she heard them using
foul/slang language.
16. PW2 has further deposed that after the incident, the
accused persons asked her to go home on her own and
threatened her not to disclose the incident to anybody; that the
accused persons left the place of occurrence after which, she
contacted her uncle (PW6) and asked him to pick her up from
the place of occurrence as the accused persons had committed
an offence on her. PW2 has further deposed that her uncle
(PW6), mother (PW1) and her friend (PW5) picked her up from
the place of occurrence; that she went home on foot with her
uncle (PW6), her mother (PW1) and her friend (PW5); that on
reaching her home, she narrated to her family members about
the incident.
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17. She has further deposed that she informed the police of the
incident after two days after which, the police recorded her
statement at Nongstoin Police Station and she was taken for
medical examination to Nongstoin Civil Hospital, accompanied
by her mother (PW1). She has deposed that her statement was
also recorded under Section 164. She has identified the
statement as well as her thumb impression appearing on the
said 164 statement.
18. PW2 has further deposed that since she knew the accused
persons by face, she identified them in the TIP and has identified
her thumb impression on the said TIP form. PW2 also deposed
that she led the Police Officer to the place of occurrence,
pursuant to which photographs were taken of the place. To the
question put by the Court, she has stated that all “the accused
are present in Court’s chamber today”.
19. In her cross-examination, PW2 has stated that while she
was at the football ground, one CCL called her on her phone and
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she was chatting with him, as he was her friend. She has stated
that prior to the incident, her male friends had left the place and
that she too was on her way with PW5. It has come in the cross-
examination that six accused persons dragged her from the
football ground, however, she has denied that she did not raise
any hue and cry when the accused persons dragged her. She
has reiterated in her cross-examination that she identified the
accused by face, as she did not know their names.
20. Infact, from a perusal of the cross-examination of PW2, it
is evident that there is nothing in the cross, which discredits her
testimony. In the cross-examination of PW2, it has further come
that the accused raped her from 6.30 p.m. to 10.30 p.m. PW2
has denied the suggestion that she had disclosed before the
doctor that she was raped by eight persons.
21. The aforesaid evidence of the prosecutrix is duly
corroborated by her friend (PW5), who was present with the
prosecutrix, when she (PW2) was pulled by the accused persons.
PW5 was also a minor, aged about 15 years at the time of the
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incident. In her examination-in-chief, she has deposed that she
did not know the accused persons, however, she knew the
survivor (PW2), as she was her friend. She has stated that on
the day of the incident, she and PW2 had gone for a walk to the
football field known as Madan Porno; that on the way they met
two of their male friends, Bahlung Syiemshangoi and Bahrit
Marngar (PW4), who also accompanied them to the football field;
and, that they were there till about 5.30 p.m. She has stated
that her male friend, Bahlung went home ahead of them and as
they were preparing to leave, PW2 got busy talking on the phone;
that when she and Bahrit (PW4) started walking ahead, she saw
some male persons around six or seven of them, pulling PW2’s
hands; that PW2 cried for help; and that as she was scared to
help her, she went and informed her mother of what had
happened. PW5 has further stated that after the incident, when
she visited PW2, PW2 disclosed to her that the accused persons
had gang raped her. PW5 has also identified her statement given
before the Magistrate under Section 164 as well as her thumb
impression thereon.
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22. In the cross-examination of PW5, it has come that PW2 was
talking on her phone, however she did not know with whom she
was talking to, and, that when PW2 was talking to somebody on
her mobile, she was sitting with Bahrit. To the Court question,
she has stated that soon after the incident, she informed PW2’s
mother that PW2 was dragged by some persons; that she
alongwith PW2’s mother went in search of PW2; that they found
PW2 sitting alone near the washing pond from where they
brought her home and when they reached home, PW2 narrated
the incident. She has stated that PW2 was taken to the hospital
where she was hospitalised, as she was gang raped by the
accused persons.
23. The evidence of PW5 clearly fortifies and corroborates
PW2’s evidence that PW5 was present with PW2 (prosecutrix) on
the football ground when she was dragged by the accused
persons into the forest. Admittedly, PW5 has not identified or
named the accused. Being a young girl and as it appears from
her evidence, she was scared to help PW2 and as such,
immediately went to inform PW2’s mother about PW2 being
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dragged by the accused persons. PW5’s conduct of immediately
informing PW2’s mother of the same, lends credence to PW2’s
testimony, of her being dragged by persons into the forest.
24. PW3 (Sestar Syiem) and PW4 (Boldingwell Marngar) have
also corroborated the fact, that PW2 was dragged from the
football ground. PW3 (Sestar Syiem) in his examination-in-chief
deposed that he alongwith his friend PW4 (Boldingwell Marngar)
had gone for a walk to Myriaw village at about 3.30 p.m.; that
although he did not see PW2 and PW5, he learnt that they too
were present at the football field; that his relative informed him
that the victim was dragged by some unknown people from the
football ground; that when he reached home, he received a call
from the minor victim girl informing him that she was raped,
however, he did not go to help her. He has identified his
statement recorded under Section 164 (Exhibit-P-7 and the
signature bearing thereon.
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25. It has come in the cross-examination of PW3 that he learnt
about the incident from PW5; that there was no human habitant
near the football ground but only an empty shed, a club and one
school. To the Court’s question, PW3 deposed that in his
statement recorded under Section 161, he had stated that he
had received two missed calls from the victim girl, and when he
called her back, she asked for help, pursuant to which he,
Boldingwell Marngar (PW4) and PW5 went towards the football
ground; that PW4 told him that the victim was dragged from the
football ground by some unknown persons and hence, he and
Boldingwell Marngar (PW4) went towards the jungle but could
not find the accused persons and hence, returned home.
26. The evidence of PW4 (Boldingwell Marngar) is on similar
lines. He has deposed that he knew the victim girl; that the
incident took place on a Sunday when he went in the evening for
a walk with his friend; that he left the village alongwith PW3
(Sestar Syiem) at about 4 to 4.30 p.m.; that on the way to Myriaw
village, he called PW5 and requested her to go for a walk with
him; that on reaching Myriaw village, he alongwith his friend
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(PW3) directly went to the place where the football ground is
situated, where he met PW5 and PW2; that he sat alongwith PW5
on the footpath while PW2 was sitting at a distance from them
playing with her mobile, while PW3 was standing at a different
location away from them; that after about half an hour or more
of sitting on the footpath, he told PW5 that they should return
home; that while they were returning, PW2 requested them to
wait for her, but he told PW5 that they should leave and let PW2
come on her own; that when he and PW5 started walking home
slowly, thinking that PW2 would follow them at a short distance,
he heard the victim girl calling out to PW5 to help her; that he
heard voices of some men and that out of fear, they ran for their
lives and did not dare to help PW2; that on the way they met
PW3, who informed him that he received a call from PW2, asking
for help, pursuant to which they looked for the victim girl, but
could not find her. PW4 has further deposed that they tried to
contact her on phone, however, her phone was picked up by one
male person, who asked, who was calling and cut the call; and
that thereafter, they tried calling PW2, but her phone was
coming switched off, pursuant to which they returned home.
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27 There is nothing substantial that has come in the cross-
examination of PW4 to discredit his testimony with respect to
what transpired on that day i.e., that PW2 was pulled by some
persons into the forest. The said evidence clearly establishes
that PW2 was dragged by some unknown persons into the
jungle.
28. The aforesaid evidence of PW2, PW5 and others is duly
corroborated by PW6, the uncle of the prosecutrix.
29. PW6 has deposed that he had called the prosecutrix a
couple of times, and that the prosecutrix disclosed a different
place, every time he called her. He has stated that finally when
the prosecutrix was traced and he questioned her as to why she
lied, she disclosed that she has no option but to follow the
instructions given by the boys from Nongjlak village, as they had
threatened her that if she told the truth, they would kill her and
some of them had even slapped her. PW6 has stated that his
niece (PW2) informed him that the accused alongwith one known
person “Kohphit” had committed penetrative sexual assault on
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her. He stated that he took Kohphit’s number from the
prosecutrix and tried calling him up, however, the said person
gave evasive answers on every occasion. He has further stated
that his sister (PW1) later informed him, that she was taking the
prosecutrix to the hospital, as she was complaining of pain. He
has identified his statement recorded under Section 164 and his
signature thereon.
30. It is pertinent to note that there is no cross-examination
with respect to most of what has come in the examination-in-
chief of the said witness. The evidence of the said witnesses is
also duly corroborated by PW1 (mother of the prosecutrix). She
has further stated that on the day of the incident, her minor
daughter asked for permission to go for an evening walk to the
football ground alongwith her friend (PW5); that after some time,
PW5 returned looking for her, however, she was not at home and
that it was only around 6.50 p.m. when PW5 met her in of one
of her neighbours’ house, sitting and chatting; that PW5
informed her that some male persons had pulled her minor
daughter from the football ground where they were sitting and
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that she did not know where those male persons had taken PW2
and hence, being scared, had rushed to inform her (PW1). PW1
has further stated that pursuant to the information received
from PW5, she tried calling her daughter as she was carrying her
mobile handset with her, but she could not get through; that she
informed her brother (PW6) about the incident, who also tried to
contact PW2 from his cell phone; that as her daughter was not
giving proper information, she and her brother had no clue
where her daughter was and as such, they decided to wait. PW1
has further deposed that at about 10.30 p.m., her daughter
(PW2) called on her brother’s cell phone and informed him that
she was in Mawtungtung village, pursuant to which they
immediately left to fetch PW2; that on reaching Mawtungtung,
they found PW2 sitting all alone; that she could not walk by
herself and that she and her brother supported her to walk back
home; that on reaching the house, PW2 narrated that she was
forcibly pulled by some male persons from the playground and
has taken to the jungle and forcibly raped by those male
persons; that on asking, she (PW2) replied that she saw six of
them and that she could identify their faces though she did not
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know their names. PW1 has further stated that on the next day,
her daughter was unable to sleep and was complaining of pain
pursuant to which she took her daughter to the doctor. The
reason given for not taking her daughter to the doctor was that
she was very poor and did not have money and had to borrow
money from her neighbour, to take her daughter to the doctor.
31. PW1 has further deposed that when she took PW2 to the
Civil Hospital, Mairang, the doctor at the Civil Hospital, Mairang
after hearing about the incident advised her to go to Mairang
Police Station; that on reaching Mairang Police Station, the
Police Officer directed her to go to Nongstoin Police Station, as
they were not authorised to take up the case; that she informed
the police that she did not have money to travel to Nongstoin,
pursuant to which, the Police Officer provided a vehicle from
Mairang Police Station and accordingly, she, her husband, her
younger sister and her daughter proceeded to Nongstoin Police
Station; that on reaching Nongstoin Police Station, and on
narration of the incident, an FIR was registered; and that
thereafter, she accompanied a Woman Police Officer, who took
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her daughter to the Civil Hospital, Nongstoin for medical
examination. She has given the date of birth of her daughter as
27.12.2000.
32. When PW1 was recalled after alteration of the charge, she
produced the original birth certificate of her daughter, to show
that PW2 was a minor at the relevant time. It is a matter of
record, that at the time when PW1 was first examined she had
not produced the birth certificate of the minor daughter,
however, later, after the charge was altered and PW1 was again
re-examined, she produced the birth certificate of PW2 issued
by the Registrar, Myriaw PHC, Department of Health and Family
Welfare, Government of Meghalaya, which was marked, after
tallying with the original certificate. There is no challenge to the
birth certificate, which was produced and as such, the date of
birth of the prosecutrix has gone unchallenged. It is the matter
of record, that PW1 had applied for PW2’s birth certificate only
after charge-sheet was filed, however, we do not find that
anything turns on it, as the documents i.e., birth certificate nor
the prosecutrix’s age has per se been challenged.
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33. The medical evidence of PW15, also fortifies the fact, that
the prosecutrix was sexually assaulted. PW15 was working as a
Medical and Health Officer at Nongstoin Civil Hospital at the
relevant time. He examined PW2, aged 15 years, who was
brought by her mother (PW1) and a woman police WPC on
13.09.2016 at around 12.50 p.m. for medical examination.
PW15 after taking the consent of PW2 and her mother (PW1),
started the process of medical examination; he took the history
of the case from the minor victim girl (PW2); who disclosed, that
on 11.09.2016 at 3 p.m. afternoon, she alongwith three of her
friends had gone to the football field; that they sat there for one
hour or so, suddenly, six people dragged her to the nearby
jungle; that her three friends managed to escaped; that they
brough her to a secluded place, one by one, six of them raped
her; that they left her alone in the jungle warning her not to
disclose the incident to anybody; that she was in pain and could
not walk; that her mother picked her up late in the evening; that
the names of the accused persons were not known to her (PW2)
but she knows them by face; and that she had taken a bath,
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changed her clothes after the incident, washed and kept them
at home.
34. On general physical examination, PW15, Dr. Marak found
that there was swelling on the left jaw and cheek, a punch and
scratch on the left side of the neck. PW15 – Dr. Marak has
deposed that PW2 (survivor) has disclosed that the accused
persons had threatened her verbally and all of them had touched
her body, punched, slapped her and that scratch marks were
found on the left side of her neck. PW15 has further deposed
that PW2 disclosed that the accused persons had completed the
penetration by penis and ejaculated inside her vagina and anus
and all of the accused persons hade kissed, licked and sucked
her breasts. On local genital examination, PW15 found that the
minor victim girl was bleeding from both vagina and anus and
white discharge present on her vagina. Since the victim girl had
already taken bath, changed her clothes, he requested the police
to collect her clothes from PW2’s residence. He has stated that
he did not find any semen on the body of the minor victim girl
as she had already taken bath. PW15, however, found tears on
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her fourchette and introitus at 6 O’clock and 7 O’clock positions,
her hymen torn, peri-anal (surrounding of the anus) tears seen
at 10 O’clock and 12 O’clock positions. He stated that he
collected oral swab, scalp hair, nail scrapings, nail clippings,
and blood for grouping and blood for DNA analysis and handed
over the samples to the police.
35. In conclusion, PW15 has stated that after conducting the
medical examination on the survivor (PW2), he found that (1)
there were signs of recent sexual assault; (2) that there were
penetrative injuries in her private parts, and (3) there are
physical assault signs on her neck and left cheek.
36. It is pertinent to note that there is no cross-examination
with respect to the disclosure made by PW2 to the doctor and as
deposed to by the doctor.
37. There is nothing in the cross-examination to dislodge what
is disclosed to by PW2 to PW15. Thus, from the aforesaid
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evidence, the prosecution has clearly established that PW2 was
sexually assaulted.
38. Now coming to the identification of the accused, the
prosecution examined PW11, Assistant Jailor District Jail
Shillong, PW12, Shri Mangal Singh, Jail Warden and PW16, Mr
T.T.M. Sangma, Judicial Officer, to prove the Test Identification
Parade. PW16, Mr T.T.M. Sangma, a Judicial Officer, conducted
the TIP on 01.10.2016 at the District Jail Shillong. The said TIP
was conducted in a special room in the jail opposite to the Legal
Care and Support Centre, which was dedicated specifically only
for conducting TIPs. PW16 has deposed that the prosecutrix had
correctly identified all the suspects, except Khwarningstar
Shangoi (Original Accused No. 2, who has not filed an appeal).
He has stated that the TIP was conducted in the ratio of 2:12
and that the accused were lined up with other jail inmates of
similar height and build; and that the TIP was conducted in the
presence of the Assistant Jailor and the Warden of District Jail
Shillong. He has identified the TIP form filled up by him i.e.,
Exhibit P-5 and his signature thereon.
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39. There is no cross-examination on the aforesaid TIP
conducted by PW16, except to the effect, that the Jail Warder
and District Jailor were made witnesses. PW16 has deposed that
he believed that they were independent witnesses in the case
and as the District Jail Shillong is a high security place, public
would not be permitted to enter.
40. PW11 (Shri D.M. Momin) – Assistant Jailor and PW12 (Shri
Mangal Singh) – Jail Warden are the Panchas, who were present
when TIP was conducted. PW11 has deposed that he was
officiating as an Assistant Jailor at the District Jail Shillong at
the relevant time; that on 01.10.2016, TIP was conducted by
JMFC, Mr T.T.M. Sangma at District Jail Shillong in a special
room; that he was present at the time when the victim identified
the suspects; that PW2 identified all the accused, except
Khwarningstar Shangoi (Original Accused No. 2); and that the
suspects were made to stand in the ratio of 2:12. PW11 has
identified his signature on the said document. It has come in the
cross-examination of PW11 that in the room provided for TIP,
only he, the Magistrate, one Warder, Mangal Singh and the
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victim were present. The evidence of PW12, Warder of the
District Jail Shillong is in similar lines.
41. Admittedly, TIP is not substantive evidence, but only serves
for corroborative purpose. At the outset, we may note, that the
Jail Warden and Jailor are not police. At least, nothing is
brought on record that both, PW11 and PW12 came from the
Police Department. PW11 and PW12, although public servants,
are part of the Prisons Department and not the Police
Department. Hence, the mere presence of the Warder and Jailor
would not vitiate the TIP, for the reason spelt out by PW16 for
taking these witnesses. It is admissible, but its weight is weak.
As noted above, TIP is not substantive proof of guilt by itself, but
has corroborative value. No doubt, ideally PW16 ought to have
involved independent witnesses, however, in the facts,
considering the evidence of these witnesses, their cross, we do
not find that the TIP will be vitiated only because of non-
inclusion of independent witnesses. In the cross-examination of
these witnesses and PW2 (survivor), there are no suggestions of
tutoring, false implication or of PW2 having seen the accused
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before the TIP, or that police were present, etc. In the instant
case, PW2 (survivor) has categorically stated that the “accused
persons are present in Court’s chambers today.” The fact, that
she did not point specifically towards each of them with her
finger does not, in the facts, dilute the identification. In the facts,
PW2 corroborates her identification in the TIP, by identifying the
accused in Court. Also, there is no challenge raised by the
defence to the procedure adopted in the TIP, either during the
cross-examination of the Magistrate (PW15) or of PW2 (survivor).
The fact remains that the victim (PW2) has identified all the
accused except Khwarningstar Shangoi (Original Accused No. 2)
and that the same is recorded in the TIP. Even otherwise,
identification of the accused is fortified by their identification in
Court by PW2. The fact remains, that PW2 has deposed that all
the accused were present in the Court’s chamber, albeit, without
specifically pointing out to each of them. Though much ado, was
made by learned counsel for the appellants with respect to the
manner of identification by PW2, we, in the facts, find the
prosecutrix’s evidence to be credible and trustworthy. There is
nothing on record, to show why PW2 would falsely implicate the
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appellants. Infact, there is no suggestion of false implication or
any other reason that has come on record, for the prosecutrix to
falsely implicate the appellants.
42. It is well settled that if the prosecutrix’s evidence is found
to be truthful and credible, conviction can be based on her sole
testimony. In the facts, we not only find that the prosecutrix’s
evidence to be credible, trustworthy and inspiring confidence,
but the whole incident as it happened, is duly corroborated by
the evidence of other witnesses, as stated hereinabove.
43. Much ado, is also made by the learned counsel for the
appellant that the belated alteration of charge and non-recall of
the witnesses pursuant thereto, had caused serious prejudice to
the appellants and as such, the trial stands vitiated. It is well
settled that under Section 216 CrPC, the trial court is
empowered to alter or add any charge, at any time before the
judgment is pronounced. It is pertinent to note, that an
opportunity was afforded to the appellants to recall the
witnesses, however, they failed to do so. On 01.04.2022, an
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opportunity was given to both, the appellants and the State. The
Roznama shows, that appellants refused the said opportunity,
however, the State recalled PW1 and brought the birth certificate
of the prosecutrix on record. The same is a matter of record. In
this light of the matter, the appellants cannot now cry prejudice
having been caused to them having waived their right. The Apex
Court in the case of P. Kartikalakshmi v Sri Ganesh &
another reported in (2017) 3 SCC 347 has observed that “…it
is now well settled that the power vested in the Court is exclusive
to the Court and there is no right in any party to seek for such
addition or alteration by filing any application as a matter of right.
It may be that if there was an omission in the framing of the
charge and if it comes to the knowledge of the Court trying the
offence, the power is always vested in the Court, as provided
under Section 216 CrPC to either alter or add the charge and that
such power is available with the Court at any time before the
judgment is pronounced. It is an enabling provision for the Court
to exercise its power under certain contingencies which comes to
its notice or brought to its notice. In such a situation, if it comes to
the knowledge of the Court that a necessity has arisen for the
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charge to be altered or added, it may do so on its own and no
order need to be passed for that purpose. After such alteration or
addition when the final decision is rendered, it will be open for
the parties to work out their remedies in accordance with law.”
44. Admittedly, both, appellants and the prosecution were
given an opportunity to recall witnesses, however, the appellants
did not avail of the opportunity, whereas, the State/prosecution
recalled PW1.
45. Considering the aforesaid, we find that no prejudice
whatsoever caused the appellants as contended by them.
46. In view of what is stated aforesaid, we do not find any merit
in the appeal. We find that the prosecutrix has established the
foundational facts against the accused, i.e., that the survivor
(PW2) was a minor; that the incident of rape happened; and that
the appellants were the perpetrators of the same. However, the
accused have failed to rebut the presumption under Sections 29
and 30 of the POCSO Act. Thus, we find that the trial court has
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rightly convicted the appellants for the offences with which they
are charged and as such, no interference is warranted in the
impugned judgment and order.
47. Accordingly, all Appeals stand dismissed.
(W. Diengdoh) (Revati Mohite Dere)
Judge Chief Justice
Signature Not Verified Page 36 of 36
Digitally signed by SYLVANA
LIZ KHARBHIH
Date: 2026.07.15 18:06:13 IST
