As per case facts, a specially-abled minor child was allegedly sexually assaulted by her uncle. The victim's mother, PW-1, left her alone, later learning about the incident from the victim's ...
2026 INSC 1102 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2026
(Arising out of SLP(Crl.) No(s).11881 of 2022)
CHARMING RUPON ….APPELLANT(S)
VERSUS
STATE OF MEGHALAYA ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
2. Leave granted.
3. This appeal against conviction arises from a
very disturbing set of allegations wherein a specially
abled minor child is alleged to have been subjected to
sexual assault by her uncle i.e., the appellant herein.
However, in a criminal case, the prosecution is
required to prove the charges by leading evidence
which is free from doubt and establishes the guilt of
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the accused beyond reasonable doubt. It is with these
solemn jurisprudential principles in the back of
mind, we shall proceed to decide the present appeal.
4. The appellant-Charming Rupon
1 was arraigned
as an accused in connection with FIR No.
261(6)15/2015 registered at Police Station
Khliehriat, East Jaintia Hills District, for the offence
punishable under Section 6 of the Protection of
Children from Sexual Offences Act, 2012
2. He was
tried before the learned Special Judge (POCSO), East
Jaintia Hills District, Khliehriat
3 in Special POCSO
Case No. 38 of 2020. Vide judgment of conviction and
order of sentence dated 7
th December, 2021, the
accused-appellant was convicted for the aforesaid
offence and sentenced to undergo rigorous
imprisonment for 10 years along with fine of Rs.1
Lakh and in default of payment of fine, to undergo
simple imprisonment for 5 months.
5. The criminal appeal
4 preferred by the accused-
appellant for assailing the judgment of the trial Court
stands rejected by the Division Bench of the High
1
Hereinafter, referred to as “accused-appellant”.
2
Hereinafter, referred to as “POCSO Act”.
3
Hereinafter, referred to as “trial Court”.
4
Criminal Appeal No. 03 of 2022.
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Court of Meghalaya at Shillong
5 vide judgment dated
29
th March, 2022 which is subjected to challenge in
this appeal by special leave.
Brief Facts
6. Succinctly stated, the prosecution case is that
the victim (PW-4), a minor girl suffering from
intellectual disability was subjected to forcible sexual
assault by the accused-appellant on 28
th May, 2015
at her residence. On the date of incident, the victim’s
mother (PW-1) had left the house in the afternoon for
attending to some personal work, leaving the victim
alone at home. While leaving her house, PW-1
allegedly noticed the accused-appellant in the garden
adjoining the house, where he was plucking mulberry
leaves. According to the prosecution, during the
period when the victim was alone, the appellant
entered the house and subjected the victim to sexual
assault.
7. After the accused-appellant had left, the victim
went to the house of her cousin, Ms. J (PW-2), where
she stayed over-night. PW-2 noticed that the victim
appeared disturbed and, upon making enquiries, she
5
Hereinafter, referred to as “High Court”
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disclosed that the accused-appellant had subjected
her to sexual assault. On the following day, PW-2
informed the victim’s mother (PW-1) about the
disclosure made by the victim. However, according to
prosecution case, the victim’s mother (PW-1) did not
give much thought to the allegation as the victim did
not affirm the accusation when questioned.
8. The matter remained unreported for several
days. Subsequently, on 7
th June, 2015, while
attending school, the victim divulged about the
incident to her teacher Ms. Princely, who in turn,
informed the victim’s parents regarding the
complaint made by the child. Thereafter, victim’s
mother (PW-1) once again questioned the child,
whereupon she narrated the occurrence.
9. Pursuant thereto, FIR (Exh. 2) of the incident of
sexual assault upon the child came to be lodged by
her mother (PW-1) at Police Station Khliehriat on 8
th
June, 2015.
10. Since the contents of the FIR would be relevant
for appreciating the matter at hand, the same are
reproduced hereinbelow for ready reference: -
“With reference to the subject cited above, I Smt.
Pxxxxxx Sxxxxxx from Bangla Nongkhlieh Village, I
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came to lodged this FIR against Shri. Charli Rupon
from Shnongrim Village the reason is that he rape
my daughter whose name is xxxxxx her age is 11
years old. The incident occur on the 28-5-2015 at
the time 5 PM. This is a request to your good office
that may you pleased take necessary action.”
11. On the very same day, the victim (PW-4) was
subjected to medical examination at the hands of Dr.
W. Nongtdu (PW-8) who took note of injuries on the
genital region of the victim and opined that the
possibility of sexual assault could not be ruled out.
However, since the FIR itself was lodged after a delay
of nearly 10 days from the date of incident, no
scientific evidence, including any serological report
could be procured during investigation.
12. Investigation of the case was conducted by Sub
Inspector, K. Lyngdoh (PW-7). During the course of
investigation, the Investigating Officer visited the
place of occurrence, recorded the statements of the
material witnesses under Section 161 of the CrPC
and also got the statements of the victim (PW-4) as
well as Ms. J (PW-2) recorded before the learned
Magistrate under Section 164 of the Code of Criminal
Procedure, 1973
6. The investigating officer further
collected the disability certificate issued by Dr.
6
For short, “CrPC”.
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Angelia Paswet (PW-5) affirming that the victim was
suffering from 40% intellectual disability.
13. Upon conclusion of the investigation, a charge
sheet under Section 173(2) of the CrPC came to be
filed against the accused-appellant for the offence
punishable under Section 6 of the POCSO Act.
14. The trial Court framed charges against the
accused-appellant for the aforesaid offence. The
accused-appellant pleaded not guilty and claimed
trial. In order to prove its case, the prosecution
examined 9 witnesses and exhibited certain
documents. Upon being questioned under Section
313 CrPC and when confronted with the allegations
appearing in the prosecution case, the accused-
appellant denied the same and claimed to be
innocent. In defence, he examined 4 witnesses
(including himself) and exhibited one document (D-
Exh. 1) to prove the plea of alibi.
15. Upon conclusion of the trial, the learned trial
Court vide judgment dated 7
th December, 2021
convicted the accused-appellant for the offences
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punishable under Section 6 of the POCSO Act and
sentenced him as noted above.
7
16. Being aggrieved, the accused-appellant
preferred an appeal to the High Court, which stands
dismissed by the Division Bench vide judgment dated
29
th March, 2022. The said judgment is subject
matter of challenge in this appeal with special leave.
Submissions on behalf of the accused-appellant
17. Shri Gaurav Agrawal, learned senior counsel
representing the accused-appellant strenuously
contended that the learned trial Court as well as the
High Court, committed grave error while appreciating
the facts and evidence and in convicting the accused-
appellant for the alleged offence.
18. Shri Agrawal submitted that the prosecution
has failed to satisfactorily explain the delay of nearly
ten days in lodging the FIR. He contended that
although Ms. J (PW-2), the cousin of the victim had
admittedly informed the victim’s mother (PW-1) about
the incident on the very next day, neither was this
fact mentioned in the FIR nor did PW-1 take any
recourse to police action or medical assistance which
7
Para 4.
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would be the natural reaction if at all the allegations
bore any element of truth. Learned senior counsel
further contended that the matter was reported to
police only after the victim allegedly disclosed the
incident to her school teacher, Ms. Princely, who was
a crucial witness to unfurl the truth of the
prosecution case. Despite her pivotal role, the
prosecution failed to examine the said teacher during
trial without offering any explanation for the
omission to do so. It was, therefore, urged that the
unexplained delay in lodging the FIR, coupled with
the withholding of a material witness, seriously
undermines the credibility of the prosecution case.
19. Shri Agrawal next submitted that the
prosecution has failed to establish the identity of the
accused-appellant beyond reasonable doubt. He
urged that although the a ccused-appellant was
known to the victim and her family members prior to
the alleged occurrence, both the victim (PW-4) and
her cousin, Ms. J (PW-2), failed to identify the
accused-appellant during their sworn testimony,
despite being specifically called upon to do so. It was
contended that both these witnesses admitted that
the name of the offender had been disclosed to them
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by the victim’s mother (PW-1), who herself was
admittedly not an eyewitness to the alleged
occurrence. It was also pointed out that the victim
candidly admitted in her cross-examination that her
statement in examination-in-chief was given as
instructed by the learned Public Prosecutor. Thus, it
is a clear case of tutoring.
20. Learned senior counsel further submitted that
no Test Identification Parade was ever conducted, nor
was PW-1 called upon to identify the accused -
appellant before the Court.
21. Learned senior counsel further urged that the
prosecution evidence is inconsistent even as regards
to the accused-appellant’s relationship with the
victim’s family. While the victim (PW-4) described the
offender as her paternal uncle (eldest brother of her
father), PW-1 stated that the accused-appellant was
the husband of her brother’s sister-in-law. According
to the learned senior counsel, this material
contradiction regarding the relationship of the
accused-appellant with the victim’s family remains
unexplained and, when viewed together with the total
failure of the star prosecution witnesses to identify
the accused-appellant during their deposition before
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the Court, renders the prosecution case wholly
unreliable. The identity of the offender is shrouded
in a cloud of doubt and hence the conviction based
on such flimsy evidence cannot be sustained.
22. Lastly, Shri Agrawal contended that apart from
the unreliable oral testimony, there is no
independent or corroborative evidence connecting the
accused-appellant with the alleged offence. Owing to
the delayed lodging of the FIR, no forensic or
scientific evidence could be collected. The medical
evidence merely indicates that the victim was
examined after about ten days of the alleged incident
and does not in any manner connect the offender
with the crime. It was further urged that the defence
plea of alibi was duly proved by documentary and oral
evidence which was ignored and doubted by the
Courts below without proper appreciation and
reasoning. According to the learned senior counsel,
the cumulative effect of these lacunae raises a strong
doubt regarding the truthfulness of the prosecution
case and the accused-appellant’s involvement,
entitling him to the benefit of doubt.
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Submissions on behalf of the Respondent - State
of Meghalaya
23. E-converso, learned Advocate General, Shri
Amit Kumar, appearing for the respondent-State of
Meghalaya vehemently and fervently opposed the
submissions advanced by learned senior counsel
appearing for the accused-appellant. He contended
that the conviction of the accused-appellant was
recorded after proper appreciation of evidence on
record and does not warrant interference by this
Court.
24. Learned Advocate General submitted that the
Courts below rightly placed reliance upon the
statements of the victim (PW-4) and Ms. J (PW-2)
recorded under Section 164 of the CrPC. He urged
that both these statements were recorded by a
Judicial Magistrate at the earliest available
opportunity, when the incident was still fresh in the
minds of the witnesses. According to the learned
Advocate General, these statements lend substantial
corroboration to the prosecution case and cannot be
discarded merely because of trivial inconsistencies in
the deposition made by the witnesses before the trial
Court. He submitted that such minor discrepancies
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are bound to occur in the testimony of a truthful
witness.
25. Learned Advocate General further submitted
that the victim was a specially-abled child suffering
from 40% intellectual disability. The inability to
identify the accused-appellant while deposing before
the trial Court in the year 2017, nearly two years after
the alleged occurrence, is neither unnatural nor
should it be considered sufficient to discredit the
entire prosecution case. According to him, the
combined effect of the victim’s mental condition and
the passage of time adequately explains her inability
to identify the accused-appellant during trial. It was,
therefore, contended that such minor deficiency
cannot efface the consistent and credible description
furnished by the victim at every earlier stage, wherein
she had named the accused -appellant as the
perpetrator of the crime.
26. Learned Advocate General lastly urged that the
testimony of victim’s mother (PW-1) clearly
establishes that, immediately before the occurrence
of the crime, the accused-appellant was seen in the
garden adjoining her house, plucking mulberry
leaves, while the victim had been left alone inside the
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house. Hence a strong presumption arises regarding
the accused-appellant having exclusive knowledge
about the solitary presence of the child and he would
be under the burden to explain the incriminating
circumstances by virtue of Section 106 of the Indian
Evidence Act, 1872.
8 Since the accused-appellant
failed to rebut the said presumption, the conviction
of the accused-appellant recorded by the trial Court
and affirmed by the High Court does not warrant any
interference by this Court.
Discussion
27. We have heard and considered the submissions
advanced by learned senior counsel appearing for the
parties and have gone through the material placed on
record.
28. Since the conviction of the accused-appellant is
primarily based on evidence of the child witness (PW-
4), who was suffering from mental disability, it would
be necessary for this Court to undertake a minute re-
appreciation of the evidence available on record so as
to find out whether the case of the prosecution
8
For short, “Evidence Act”.
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inspires confidence and is convincing enough so as
to confirm the conviction of the accused-appellant.
29. We shall, now proceed to analyse the evidence
of the material prosecution witnesses which forms
the basis of the conviction of the accused-appellant
as recorded by the trial Court and affirmed by the
High Court.
Evidence of PW-1 (Victim’s Mother/Informant)
30. Smt. P (PW-1), the mother of the victim, deposed
that victim girl was her daughter aged 11 years and
was studying in Class 1 at the time of the incident,
she had to drop out of the school on account of her
mental illness. The child was under treatment and on
regular medication since she was 6 years of age. The
witness alleged that the accused Charming Rupon
subjected the child to sexual assault on 28
th May,
2015 at her home between 4:30 to 5:00 pm. On that
day, she was not at her house as she had gone out to
drop her brother’s child to Sutanga and her daughter
(victim) was alone in the house. While leaving she had
seen the accused plucking mulberry leaves from their
garden. According to the witness, the accused was
related to her as the wife of her brother and the wife
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of the accused were sisters. Upon returning home,
she did not find her daughter present and came to
know that the child had gone to stay in the house of
her niece Smt. J (PW-2). On the following morning,
PW-2 told her about the incident, however, she did
not outright believe it because her daughter (victim)
did not confirm this allegation. On 6
th June, 2015,
she met the school teacher Smt. Princely, who
informed that the victim was reluctant to do anything
in school and on deeper counselling it came to light
that she had been sexually assaulted by the accused.
On coming to know of these facts, she reported the
matter to the police on 8
th June, 2015. Thereafter,
medical examination of the victim was conducted,
and her statement was recorded under Section 161
CrPC.
31. In cross-examination, the informant (PW-1)
admitted that the FIR (Exh. 2) was written by the
hostel owner Smt. Phi Nongtdu, where her daughters
were staying. The FIR was read over to her before she
signed it. The brother of the accused namely Harris
Rupon was in a relationship with her sister, but they
were not living together for reasons of which the
witness was unaware. When she reached home on
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28
th May, 2015, her son was not there. She admitted
that she did not get worried when she did not find her
daughter in the house. Most pertinently, the witness
stated that she reached her home from the weekly
market at about 3:45 pm and at that time there was
no one at the house. According to her, the accused
came around at about 4:00 PM but he did not enter
the house on that day. She further admitted that even
after the teacher had told her about the incident, her
daughter did not disclose anything, and it was only
after persistent questioning that she narrated the
occurrence. The witness also admitted that when she
specifically enquired from the victim as to who had
remained at the house after she had left for Sutanga,
the victim did not reply.
32. On a thorough analysis of the evidence, we find
that the conduct of PW-1 was very unnatural. She
had been told by her own niece (PW-2) that her
daughter i.e., the victim herein who was mentally
impaired, had been subjected to rape. However, the
mother, i.e., PW-1 did not give much credence to this
complaint of PW-2. The concern of a mother on
receiving such complaint would be expected to be
heightened as the child was suffering from mental
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deficiency. This disability factor of the child would
definitely have made the mother more wary and a
serious complaint of sexual assault on the child
would not have been brushed aside so casually only
because the child did not confirm that she had been
subjected to any such assault. If at all there had been
any iota of truth in the theory that PW -2 had
informed PW-1 about the incident, then, she being
the mother of the child, would be expected to at least
check her physical condition and to be specific, the
genital area.
33. Hence, on a perusal of the evidence of the
informant (PW-1), grave discrepancies are apparent
regarding the source of information of the alleged
occurrence received by the informant; the hesitation
shown by the informant in taking any action despite
the fact that her own niece had informed her about
the incident; the refusal of the victim to divulge about
the sexual assault despite persistent questioning and
the omission to mention this fact in the FIR. These
are material aspects carrying significance affecting
the credibility of the prosecution case.
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Evidence of PW-2 (Niece of Informant/Victim’s
Cousin)
34. Ms. J (PW-2) is the niece of the informant (PW-
1). In her examination-in-chief, the witness (PW-2)
stated that on 28
th May, 2015, when she went to the
house of PW-1, she saw the victim (PW-4) and the
accused eating kwai (betel nut) and sometime later,
the accused left. Thereafter, the victim informed her
that the accused had sexually assaulted her. The
witness deposed that she took the victim to her own
house as the victim was alone and there she cleaned
and washed her. The victim stayed with her
overnight. On the next day, she took the victim back
to her house and informed the victim’s mother (PW-
1) about the incident. If the witness had washed and
cleaned the victim, the marks of sexual violence
would not go unnoticed, and the mother (PW -1)
would definitely be informed about this telling
circumstances.
35. The facts elicited during cross examination of
the witness completely destroy the credibility of her
version. She gave the following answers upon being
questioned by the defence counsel:-
“I do not know the accused person and cannot
recollect his face now. The name of the Accused
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was told to me by PW1. PW1 told me that it was
U Char who had committed the crime, when I went
and informed her of the matter in the morning. If
this person U Char come to my house, I will not
be able to recognise him. I do not know how PW1
knows that it was U Char who committed the
crime. I never attended school.”
(Emphasis supplied)
36. When the aforesaid discrepancy was noticed,
the witness was subjected to re-examination by the
Public Prosecutor, wherein she stated as below:
“Re-examination: On the day I went to the house
of PW1 I saw the victim and one man eating kwai.
My statement in chief that I saw victim and
Accused Char eating Kwai is not correct.
(The witness was asked to look around the Court
room and Court Dock to identify the Accused
person but witness was not able) As I do not
know the Accused person it was PW1 who told
me the name.”
(Emphasis supplied)
However, it is most pertinent to note that the
Public Prosecutor made no effort whatsoever to
confront the witness with her statement recorded
under Section 164 CrPC.
37. Apparently thus, the witness (PW-2) completely
denied knowing the accused-appellant by name or
even by face and she failed to recognise the accused
who was present in the Court. The witness rather
stated that it was PW-1 who had told the name of the
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accused to her and admitted that she herself did not
know who had committed the crime.
38. Hence, on a careful appreciation of the
testimony of PW-2, it is apparent that her evidence
suffers from serious infirmities. Though she claimed
to have seen the accused at the victim’s house on the
date of the alleged occurrence, the admission
appearing in cross-examination that she neither
knew the accused by face nor could identify him
before the Court completely discredits the version
stated by her in examination-in-chief. She further
clarified in re-examination that her earlier naming of
the accused in examination-in-chief was incorrect
and that the name of the alleged offender had been
supplied to her by PW-1. These admissions strike at
the very foundation of her testimony and completely
diminish its evidentiary value.
Evidence of PW-3 (Medical Jurist)
39. Dr. E. Shullet (PW-3), the medical jurist
deposed in her examination -in-chief that upon
examining the victim, she noted injuries on her
genital region and opined that there w ere signs
suggestive of forceful vaginal penetration and
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possibility of sexual intercourse could not be ruled
out.
40. It is important to note that when the turn to
cross-examine the witness came, the defence counsel
was not available and the accused was asked as to
whether he wanted to cross-examine the witness, on
which the accused replied that his counsel was out
of station and that only he (defence counsel) would
be in a position to effectively cross-examine the
witness. The trial Court did not endeavour either to
provide legal aid to the accused or to defer the cross
examination so that the defence counsel co uld
discharge that duty.
41. Manifestly thus, the testimony of the Medical
Jurist (PW-3) remained untested by cross -
examination, as no effective opportunity to cross
examine the witness was given to the accused whose
defence counsel was absent on that day. Though, the
partial deposition of PW-3 undoubtedly indicates that
the victim had sustained injuries on her genital
region suggestive of sexual assault but the fact
remains that the testimony of the witness remained
untested in cross-examination, not on account of any
waiver by the accused, but because the defence
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counsel was unavailable on the date when the
witness entered the witness-box.
42. Another medical officer examined by the
prosecution was Dr. W. Nongtdu (PW-8). We have
seen the statement of the said witness available on
the record and find that during the course of
recording the evidence of the said witness, the trial
Court did not even offer the opportunity of cross-
examination to the defence counsel. Hence, it can
safely be concluded that the testimony of both
medical jurists cannot be read in evidence as the
defence was not given an effective opportunity of
cross-examining both the witnesses (PW-3 & PW-8).
Evidence of PW-4 (Victim)
43. The victim was examined as PW-4. She stated
that the accused was her uncle, being the eldest
brother of her father. On the day of incident, her
mother had gone out, so she was alone in the house.
She stated that when she went to feed the pigs, the
accused came there, pushed her into her mother’s
bedroom and subjected her to forcible sexual assault
till she started bleeding. Thereafter, the accused went
away. Feeling unwell, she went to her cousin’s house
to whom she told about the incident. On the following
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day, her cousin informed her mother about the
incident.
44. However, in her cross-examination, the witness
made the following admissions which have a material
bearing on the very credibility of the prosecution
case: -
“Before coming to the Court room today I had met
the Special Prosecutor. The Special Prosecutor
had told me what to say before this Court today.
At the time the accused came to our house, I
and my mother were present in the house. My
uncle the Accused come alone in his Alto Car.
When the Accused Raped me I was alone in the
house at that time. My uncle the accused came
to our house only once. I have forgotten his
face. My mother told me the name of the
Accused. On the day of the incident my father was
not in the house. I did not have any Kwai (Bettie
nut) with my uncle the Accused on that day. On
that day I went alone to feed the pig. We have only
one pig. I cannot remember now the face of the
person who came to my house and raped me as
it happened quite sometime back. After the
incident, I have never seen the person again,
and I am not able to identify him now.”
(Emphasis supplied)
45. Apparently, the witness referred to the accused-
appellant in her examination-in-chief as being the
eldest brother of her father. This version, however, is
completely contradicted by the evidence of her
mother (PW-1) who described the relationship of the
accused-appellant with the family in an altogether
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different manner (supra). Thus, even on the aspect of
the relationship of the accused with the victim’s
family, the prosecution case is not consistent.
46. It is important to note that the prosecution did
not make any endeavour to get the accused-appellant
identified by the witness (PW-4) in her examination-
in chief. More importantly, in her cross-examination,
the witness completely denied knowing the accused-
appellant and failed to identify him stating that she
could not remember the face of the person who came
to her house and subjected her to rape as the incident
had happened long time back. She also admitted that
the name of the accused-appellant had been told to
her by her mother. This admission coupled with the
fact that the witness stated that she had met the
public prosecutor who had advised her on what to
say before the Court, creates a doubt in our mind that
the witness may have been tutored to give the
statement against the accused-appellant. It is also
noteworthy that though the defence took the risk of
putting a question pertaining to identity of the
accused and succeeded in eliciting a negative answer
from PW-4, neither the Public Prosecutor, nor the
Presiding Officer bothered to re-examine the witness
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to overcome this anomaly. Furthermore, no effort was
made to confront the witness with the statement
under Section 164 CrPC.
47. Hence, on a careful appreciation of the
testimony of the victim (PW-4), it is clear that her
evidence suffers from material infirmities. The
witness was not asked to identify the accused-
appellant in Court during her examination-in-chief.
The defence posed this question in cross
examination, and the victim admitted that she had
forgotten the face of the alleged offender and further
stated that the name of the accused had been
provided to her by her mother (PW-1). The admission
that she had been instructed by the learned Special
Public Prosecutor on what to state before entering the
witness-box also assumes significance while
appreciating the evidentiary value of her deposition.
These aspects, coupled with the inconsistency
regarding the relationship of the accused with the
victim’s family, cast a serious doubt on the reliability
of the prosecution evidence insofar as the identity of
the perpetrator is concerned.
48. We are conscious of the fact that the victim was
a mentally challenged girl and as such, a certain
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degree of latitude would have to be given while
appreciating her evidence. However, even after giving
due deference to her weak mental disposition we find
that there was a complete failure of the victim to
identify the accused-appellant before the Court.
Admittedly, the prosecution could not present any
scientific corroboration for the incident as the FIR
itself was lodged after 10 days of the incident. In such
a situation, it would be unsafe to rely upon the
testimony of the victim so as to sustain the conviction
of the accused.
49. The submission advanced by learned Advocate
General that the accused-appellant was last seen by
the informant (PW-1) in the garden adjoining her
house and, therefore, the burden shifted upon him
under Section 106 of the Evidence Act is absolutely
farfetched and unconvincing. In this regard, we may
note that the theory of last seen seems to be a
material improvement from the version as set out in
the highly belated FIR (Exh. 2), wherein no such
allegation is levelled. Even according to the version of
PW-1 in her sworn testimony, she merely saw the
accused plucking mulberry leaves in the garden
before she left for Sutanga. She nowhere stated that
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the victim was present with the accused or that both
of them were seen together at any point of time. Thus,
the testimony of PW-1 does not establish the
circumstance of the accused and the victim having
been last seen together and hence there is no
question of shifting the burden of proof on the
accused by virtue of Section 106 of the Evidence Act.
50. Further, if the informant (PW-1) had in fact seen
the accused-appellant in the vicinity of her house on
the relevant day and, on the very next morning, her
niece (PW-2) had informed her about the incident, it
is difficult to comprehend why she would hesitate in
approaching the police immediately. The conduct of
the informant in not taking any prompt action and
not even physically checking her own daughter for
signs of sexual assault despite allegedly receiving
such information from her own niece, is a
circumstance which creates a serious doubt on the
truthfulness of the prosecution story.
51. It is trite that an FIR is not expected to be an
encyclopaedia. However, where a circumstance
subsequently relied upon constitutes a material
incriminating fact forming the very foundation of the
prosecution case, its omission from the earliest
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version assumes considerable significance. A
material improvement made during the course of
trial, particularly on a circumstance sought to
connect the accused with the alleged occurrence,
necessarily calls for closer judicial scrutiny. If such
omission remains unexplained, the subsequent
version may lose much of its evidentiary fervour.
52. In this regard, we may gainfully refer to the
observations made by this Court in Amar Nath Jha
v. Nand Kishore Singh
9 wherein it was observed as
follows: -
“10. The third circumstance which we need to
concentrate on concerns non -reporting of
essential facts which were known to the
informant in the FIR. The High Court while
appreciating the entire materials on record has
affirmatively concluded that PWs 1, 2, 3, 4, 8, 10
and 12 belong to the same family of the deceased
and reside in the same house. It may be of some
significance to note that PW 9 (the informant) of
this case is the nephew of the deceased who lives
in an adjacent house to that of the deceased. In the
FIR, PW 9 has failed to mention the name of PW
1, is a significant person as per the prosecution
as he had allegedly identified the accused Nand
Kishore Singh and Maheshwar Singh, who were
the dacoits responsible for the aforesaid crime.
It has come out from the cross-examination of PW
9 that he was aware of the presence of PW 1 during
the incident but he failed to mention his name in
the FIR. Such non-mentioning of presence of PW
9
(2018) 9 SCC 137.
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1, who was a material witness in this case,
creates further suspicion on the hypothesis
portrayed by the prosecution.
11. The High Court on appreciation of detailed
evidence has for the right reasons concluded that
the informant (PW 9) was aware of the names of
dacoits who had killed the deceased but failed to
name them in the FIR. In this context we may note
that the incident is alleged to have taken place in
the intervening night of 21-4-1999 and 22-4-1999,
whereas the FIR came to be registered at 3.15 a.m.,
after a lapse of 3 hours. Despite sufficient time for
the informant to gather necessary information,
which he did, the names of two accused -
respondents have conspicuously been missing,
which also formed an additional factor for the High
Court to acquit the accused -respondents.
Although we accept that the FIR need not be an
encyclopaedia of the crime, but absence of
certain essential facts, which were
conspicuously missing in the present FIR, point
towards suspicion that the crime itself may be
staged.”
(Emphasis supplied)
53. Similarly, the effect of a vital omission in the
first information report was considered by this Court
in the case of Ram Kumar Pandey v. State of
M.P.
10, the relevant observations from the said
judgment are quoted hereinbelow: -
“9. No doubt, an FIR is a previous statement which
can, strictly speaking, be only used to corroborate
or contradict the maker of it. But, in this case, it
had been made by the father of the murdered boy
to whom all the important facts of the occurrence,
so far as they were known up to 9 -15 p.m. on
10
AIR 1975 SC 1026.
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March 23, 1970, were bound to have been
communicated. If his daughters had seen the
appellant inflicting a blow on Harbinder Singh,
the father would certainly have mentioned it in
the FIR. We think that omissions of such
important facts, affecting the probabilities of
the case, are relevant under Section 11 of the
Evidence Act in judging the veracity of the
prosecution case”
(Emphasis supplied)
54. Applying the aforesaid principle to the facts of
the present case, we find that the prosecution has
placed strong reliance upon the circumstance that
PW-1 had allegedly seen the accused-appellant in the
garden adjoining her house immediately before
leaving for Sutanga. Significantly, this material
allegation finds no mention whatsoever in the FIR
(Exh. 2), despite the fact that the FIR came to be
lodged after a delay of 10 days. Equally significant is
the omission to mention in the FIR that PW-2 had
allegedly informed PW-1 about the incident on the
very next day of the alleged occurrence. Had these
facts actually transpired in the manner sought to be
projected during trial, there was no reason why they
would not have found place in the FIR. These
omissions assume considerable significance and the
subsequent improvements made by the first
informant (PW-1) during the course of evidence
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render her testimony highly doubtful and unsafe to
rely upon.
55. At the cost of repetition, we may also note that
there is a material inconsistency regarding the very
relationship of the accused-appellant with the
victim’s family. While the informant (PW-1) described
the accused-appellant as the husband of her
brother’s sister-in-law, the victim (PW-4) referred to
him as the eldest brother of her father. This
contradiction assumes significance because both
PW-2 and PW-4 failed to identify the accused-
appellant before the trial Court and admitted that his
name had been suggested to them by PW-1.
56. Equally significant is the fact that the
prosecution withheld a material witness, namely, Ms.
Princely, the teacher, whose disclosure admittedly
prompted PW-1 to lodge the FIR. No explanation has
been offered by the prosecution for her non-
examination as a witness. The omission to examine
such an important witness assumes considerable
significance in the facts of the present case. What
exactly was the disclosure made by the child to her
teacher would definitely be a material fact and the
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withholding thereof effects the veracity of the
prosecution case.
57. Though the prosecution is not obliged to
examine each and every witness cited during
investigation, it is unquestionably under a duty to
examine those witnesses whose evidence goes to the
root of the matter and is essential to elicit the truth.
Where a material witness, capable of throwing light
on the genesis of the occurrence is withheld without
any plausible explanation, the Court would be
justified in drawing adverse inference against the
prosecution, particularly when such witness
occupies a pivotal position in the chain of events.
58. In this regard, we may profitably refer to a
judgment rendered by 3-Judge bench of this Court in
Takhaji Hiraji v. Thakore Kubersing
Chamansing
11, wherein this Court held as follows: -
“19. So is the case with the criticism levelled by the
High Court on the prosecution case finding fault
therewith for non-examination of independent
witnesses. It is true that if a material witness,
who would unfold the genesis of the incident or
an essential part of the prosecution case, not
convincingly brought to fore otherwise, or
where there is a gap or infirmity in the
prosecution case which could have been
11
(2001) 6 SCC 145.
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supplied or made good by examining a witness
who though available is not examined, the
prosecution case can be termed as suffering
from a deficiency and withholding of such a
material witness would oblige the court to draw
an adverse inference against the prosecution by
holding that if the witness would have been
examined it would not have supported the
prosecution case. On the other hand if already
overwhelming evidence is available and
examination of other witnesses would only be a
repetition or duplication of the evidence already
adduced, non-examination of such other witnesses
may not be material. In such a case the court ought
to scrutinise the worth of the evidence adduced.
The court of facts must ask itself — whether in the
facts and circumstances of the case, it was
necessary to examine such other witness, and if so,
whether such witness was available to be examined
and yet was being withheld from the court. If the
answer be positive then only a question of drawing
an adverse inference may arise. If the witnesses
already examined are reliable and the testimony
coming from their mouth is unimpeachable the
court can safely act upon it, uninfluenced by the
factum of non-examination of other witnesses……”
(Emphasis supplied)
59. Applying the aforesaid principle to the facts of
the present case, we find that Ms. Princely, the school
teacher, was undeniably a material witness. The
prosecution had itself come up with a case that it was
upon the disclosure allegedly made by the victim to
the said teacher which led the victim’s mother (PW-1)
lodging the FIR after a delay of 10 days. The
disclosure made by the victim to the teacher was,
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therefore, a crucial circumstance, and the testimony
of Ms. Princely would have certainly assisted the
Court in appreciating the prosecution case more
particularly on the aspects of the exact nature of
disclosure made by the child to the teacher and the
reason for delay in lodging of the FIR. Despite her
pivotal role, the prosecution failed to examine Ms.
Princely during the trial and has offered no
explanation whatsoever for withholding her
testimony. In the specific facts of the present case,
this omission assumes considerable significance and
persuades us to draw adverse inference against the
prosecution.
60. The accused-appellant has been very candid in
his defence plea. Not only did he take the risk of
asking the question pertaining to identification to the
victim in cross-examination but in addition thereto,
he specifically came out with a plea of alibi putting
himself in the dock and examining three more
witnesses in support of the said plea. On going
through the statements of the defence witnesses
supported by documentary evidence, we find that
credible evidence was given by the defence to prove
the plea of alibi put forth by the accused-appellant.
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The trial Court as well as the High Court, very lightly
brushed aside this palpable defence evidence which
in our opinion, was not at all justified.
61. Resultantly, the cumulative effect of unnatural
conduct of victim’s mother (PW-1) coupled with the
significant delay in lodging the FIR; failure of the
victim (PW-4) and her cousin (PW-2) to identify the
accused-appellant before the Court; contradictory
versions regarding the relationship of the accused-
appellant with the victim’s family; non-examination
of the teacher Ms. Princely and; the defence evidence
indicating that the accused-appellant had gone to
another village in connection with a property
transaction, creates serious doubt on the
genuineness and credibility of the prosecution
allegations. In our considered opinion, cumulatively
taken, these circumstances are sufficient to persuade
the Court that it would be wholly unsafe to sustain
the conviction of the accused-appellant.
Conclusion
62. In view of the discussion made hereinabove, we
are unable to concur with the view taken by the trial
Court and affirmed by the High Court. The
prosecution has failed to establish the guilt of the
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accused-appellant beyond reasonable doubt. The
Courts below clearly fell in error in relying upon the
wavering testimony of the informant (PW-1), her niece
(PW-2) and the victim (PW-4) to convict the accused-
appellant and in affirming his conviction in appeal.
In our considered opinion, the evidence brought on
record falls woefully short of the standard required
for sustaining the conviction of the accused
appellant. The findings recorded by the Courts below,
in the impugned judgments are unsustainable in law
and the same deserve to be set aside. The appellant
is entitled to be acquitted by giving him the benefit of
doubt.
63. Accordingly, the judgment of conviction and
order of sentence dated 7
th December, 2021 passed
by the trial Court and impugned judgment dated 29
th
March, 2022 passed by the High Court are hereby set
aside.
64. The appellant is acquitted of the charges. He is
in custody and shall be released forthwith, if not
wanted in any other case.
65. The appeal is allowed accordingly.
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66. Pending application(s), if any, shall stand
disposed of.
….……………………J.
(VIKRAM NATH )
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
OCTOBER 09, 2026 .
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