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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

Serial No. 02

Supplementary List 2026:MLHC:717-DB 2026:MLHC:717-DB

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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. 2026:MLHC:717-DB 2026:MLHC:717-DB

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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 2026:MLHC:717-DB 2026:MLHC:717-DB

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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 2026:MLHC:717-DB 2026:MLHC:717-DB

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to 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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 9 of 36

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. 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 11 of 36

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. 2026:MLHC:717-DB 2026:MLHC:717-DB

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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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 13 of 36

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. 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 14 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 15 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 16 of 36

incident. In her examination-in-chief, she has deposed that she

did not know the accused persons, however, she kn ew 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. 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 17 of 36

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 wa s 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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 18 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

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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. 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 21 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 22 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 23 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 24 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 25 of 36

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. 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 26 of 36

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, 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 27 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 28 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

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evidence, the prosecution has clearly established that PW2 was

sexually assaulted.

38. Now coming to the identification of the accused, t he

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. 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 30 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 31 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 32 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 33 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 34 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

Page 35 of 36

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 2026:MLHC:717-DB 2026:MLHC:717-DB

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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

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