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HIGH COURT OF MEGHALAYA

AT SHILLONG

Crl.A. No. 26 of 2024

Date of CAV: 09.06.2026

Date of pronouncement: 18.06.2026

Mosabbir Alom

...Appellant

- versus -

1. The State of Meghalaya, represented by the Secretary to the

Government of Meghalaya, Home (Police), Shillong.

2. The Superintendent of Police, West Garo Hills District,

Meghalaya.

...Respondents

Coram:

Hon’ble Mrs. Justice Revati Mohite Dere, Chief Justice

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Appellant : Mr K. Ch. Gautam, Adv. with

Ms G.C. Marboh, Adv.

For the Respondents : Mr S. Sengupta, Addl PP with

Mr A.H. Kharwanlang, Addl PP

i) Whether approved for No

reporting in Law journals etc.:

ii) Whether approved for publication No

in press:

JUDGMENT: (per the Hon’ble, the Chief Justice)

By this appeal, the appellant has impugned the judgment

and order dated 29.01.2024 and 30.01.2024 respectively ,

passed by the learned Special Judge (POCSO) West Garo Hills,

Serial No. 01

Supplementary List 2026:MLHC:604-DB

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Tura in Special POCSO Case No. 15 of 2018, convicting and

sentencing him for the offence punishable under Section 5(i)

read with Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (POCSO Act) to suffer rigorous imprisonment

of 12 years and with fine of ₹ 30,000/-, in default of payment of

fine, to further undergo six months simple imprisonment; and

for the offence punishable under Section 506 of the Indian Penal

Code (IPC) to suffer two years imprisonment and to pay fine of

₹5000/-, in default of payment of fine to undergo further

imprisonment of 1 month. Both the said sentences were directed

to run concurrently.

The appellant was, however, acquitted of the offences

punishable under Sections 366A and 368 of the IPC for want of

evidence in support of the said charge.

2. Brief facts giving rise to the filing of the aforesaid appeal

are as under;

According to the prosecution, the incident took place on

06.02.2018 at about 8 p.m. when the survivor (PW1), aged 11½

years went outside her house to go to the toilet. It is alleged that 2026:MLHC:604-DB

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the appellant took her, detained her in his house and raped her.

The complainant (PW2) is alleged to have found his daughter

after a search in the house of the appellant on 08.02.2018 at

about 2 a.m. The survivor aged 11½ is alleged to have disclosed

the incident of sexual assault on her by the appellant, pursuant

to which PW2 lodged an FIR with the Phulbari Police Station,

West Garo Hills, alleging offences punishable under Sections

366A and 368 of the IPC and Section 5(l)(m) read with Section 6

of the POCSO Act. During the course of investigation, the police

sent the survivor (PW1) for her medical examination; recorded

statements of the witnesses under Sections 161 and 164, and

after investigation submitted charge-sheet against the appellant

in the Court of the learned Special Judge, POCSO, West Garo

Hills, Tura.

3. The trial court framed charge as against the appellant to

which he pleaded not guilty and claimed to be tried. His defence

was of alibi and false implication.

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4. The prosecution in support of its case, examined the

following witnesses:

PW1 – Survivor.

PW2 – Father of the survivor (complainant).

PW3 – Mohammad Shahjahan, a villager.

PW4– Dr Janki G. Momin, who medically examined the survivor.

PW5 – Motior Rahman, Gaonbura (Village Headman).

PW6 – WPSI G.T. Sangma, Officer-in-Charge, Tura Women P.S.

PW7 – WPSI Bedona Hajong, Investigating Officer.

5. The learned Special Judge after hearing the parties and

considering the evidence on record, convicted and sentenced the

appellant as stated aforesaid in paragraph 1 of this judgment.

Hence, this appeal.

6. Mr K. Ch. Gautam, learned counsel for the appellant

submitted that the prosecution had failed to prove its case

beyond reasonable doubt against the appellant. Learned counsel

submitted that the prosecutrix’s testimony does not inspire

confidence, having regard to what has been deposed to, by PW3

and PW5. He submitted that there was a delay of two days in 2026:MLHC:604-DB

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registration of the FIR, from the date on which the survivor went

missing, and as such, the possibility of false implication of the

appellant cannot be ruled out. He submitted that neither was a

missing report filed by the parents of the prosecutrix, though

she had gone missing. He further submitted that neither had the

prosecution proved that the survivor was kidnapped, resulting

in the trial court acquitting the appellant from the offences

punishable under Sections 366A and 368 of the IPC, for want of

evidence. Mr Gautam, learned counsel further submitted that

PW4, Dr. Janki Momin has not recorded the brief history of the

incident either from the survivor nor from the police. Nor was

the medical certificate so issued, in a proper format. Learned

counsel further submitted that in view of the aforesaid and

several other infirmities, the impugned judgment and order of

conviction and sentence, be quashed and set aside.

7. Mr S. Sengupta, learned Addl PP supported the impugned

judgment and order of conviction and sentence. He submitted

that the evidence of the survivor (PW1) inspires confidence and

is trustworthy. He further submitted that the said evidence of 2026:MLHC:604-DB

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the prosecutrix (PW1) is duly corroborated by the evidence of

PW2, PW3 and the medical evidence of PW4.

8. We have perused the evidence/record with the assistance

of the learned counsel for the respective parties. PW1 at the time

of her deposition was aged 16 years of age and at the time of the

incident, about 11½ years. She has deposed that her date of

birth is 26.08.2006. According to the prosecutrix (PW1), the

incident took place, when she had gone to answer the call of

nature at about 8 to 8.30 p.m. and was returning home. PW1

has stated that one person came from behind, covered her

mouth with his hand, dragged her to his house, which was near

her house; that in his house she recognised the appellant when

she saw his face; that the appellant covered her mouth again

with a cloth, tied her hands behind her back, laid her on the

floor; opened her shirt, pulled off her long pants and opened his

clothes. PW1 has further deposed that when she saw one bucket

near her feet, she tried to push the bucket down, so that it would

make a sound, hoping that someone would rescue her, but she

did not succeed, as the appellant threatened her with a dagger 2026:MLHC:604-DB

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and by telling her that if she did the same again, he would kill

her; that the appellant then tied her feet; that as she was afraid

she did not make any noise; that he laid on top of her and

inserted his penis in her private part; that due to pain in her

private part, she became unconscious; that when she regained

consciousness, it was daytime and found herself lying on the

floor; that her hands were still tied and feet untied and she was

in a naked condition; that the appellant came from the other

room and seeing her up, untied her hands and gave her clothes

to wear, however, her mouth was still tied with a cloth.

9. PW1 has further deposed that when she wore her clothes

again, the appellant tied her hands behind her back and left the

room and closed the door; that after the appellant returned

again, he told her that if her parents found her, she should not

disclose that he had raped her and that if she did so, he would

kill her. PW1 has further deposed that she gestured with a nod

that she would not disclose, after which he left again. She has

further deposed that at night she was rescued by her father,

mother and some villagers; that they untied her mouth and took 2026:MLHC:604-DB

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her home; and that in her house, her father asked her, in the

presence of her mother and other relatives what the appellant

had done to her pursuant to which, she disclosed the incident

to them. PW1 further deposed that her parents took her to

Phulbari Police Station where she disclosed to the police what

she has deposed in the Court today; that she was taken to

Phulbari hospital by one policewoman and two policemen; that

in the hospital, a lady doctor asked her to what had happened,

pursuant to which she disclosed the incident; that the lady

doctor examined her after which she returned back to her

parents.

10. The prosecutrix in her cross-examination has admitted

that the appellant’s house was very close to her house; that the

appellant was married and was staying with his wife; that

although the appellant had three rooms, she was taken only to

one room and that she had not seen any other room; and that

she was not sure whether the appellant’s wife was at home or

not. To the question, whether she went to the house of the

appellant as she wanted to marry him, though he had refused 2026:MLHC:604-DB

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as he was already married, and hence, was falsely implicating

him, the prosecutrix has denied the same.

11. PW2, the father of the prosecutrix in his examination-in-

chief has stated that on 06.04.2018 when he returned home

from the bazar at about 8 p.m., his wife informed him that their

daughter was missing from home; that pursuant thereto, they

informed the people in the village and they all started searching

for their missing daughter, however, they could not find her that

night and hence, returned home. PW2 has further in his

evidence stated that after two days, he was informed by

Gaonbura, Pushkumipara (PW5) that his daughter was in the

house of the appellant and that the same was informed to him

by the appellant himself. He has stated that after getting the said

information, he alongwith Gaonbura and other villagers went to

the appellant’s house; that the house was found locked from

inside; that he does not remember who opened the door; that

inside the house, there were two persons i.e., the appellant and

his daughter; that he did not enter the house, but the villagers

and Gaonbura entered the house and brought the prosecutrix 2026:MLHC:604-DB

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out; and that they returned home. PW2 has further stated that

in the morning, he inquired with his daughter as to what had

happened, pursuant to which she disclosed the incident after

which he went to lodge an FIR with the Phulbari Police Station.

He identified the FIR and his signature thereon. PW2 has further

deposed that his daughter was taken to the hospital by the police

and that he did not accompany her.

12. In his cross -examination, PW2 has admitted that the FIR

was written by one Advocate, named Jahinger Hussain; that he

did not file any missing report for two days, though his daughter

was missing; that he did not take his daughter to the hospital

immediately, though her condition was not good when found;

and that his wife was not sleeping at the time when his daughter

went missing. Suggestions made to PW2; (i) that his daughter

was not willing to go home, as informed by the Gaonbura, and

(ii) that he was falsely implicating the appellant as his daughter

wanted to marry the appellant and hence, he lodged a false FIR,

have been denied by him. PW2 has also admitted that everyone

in the house was awake when his daughter went missing. 2026:MLHC:604-DB

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13. Having minutely perused the evidence of PW1 and PW2,

we find that there are material contradictions/inconsistencies in

their evidence, inter se and between them and PW3 and PW 5.

PW1 has stated that initially the appellant had tied her hands

behind her back and left the room and closed the door from

outside; and that later the appellant came home, threatened her

and then left. She does not say, whether the door was locked

from outside or inside. PW1 further states that she was rescued

by her father, mother and villagers, whereas, PW2 has deposed

that on reaching the appellant’s house, they found that the door

was locked from inside and that he had gone with the villagers.

He does speak about his wife accompanying him . We find it

rather strange and unnatural that if the prosecutrix was

kidnapped, and the door was locked from inside and not outside,

what prevented her from going out; that PW2, her father did not

enter the house of the appellant; that the prosecutrix was not

taken to the hospital immediately, though allegedly raped, but

was taken to the hospital on the next day, and that too, she was

not accompanied by her parents/family but by the police, more

particularly, when the girl was around 11½ years of age. 2026:MLHC:604-DB

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Thus, we find;

(i) PW1 in her testimony has stated that she was alone,

tied in a room and the appellant had left her there, whereas,

PW2 states that there were two persons in the house i.e., the

appellant and his daughter.

(ii) We also find it strange and unnatural that the

prosecutrix (PW1) was not taken immediately to the hospital but

was taken by the police on the next day unaccompanied by PW2

or any family member. PW1 also states that she was

accompanied by no family member but only by the police to the

doctor.

(iii) With respect to the presence of the appellant at home,

when PW2 went there, none of the witnesses speak of the same.

14. The aforesaid evidence and material contradictions/

inconsistencies that have come in the evidence of PW1 and PW2,

will also have to be considered keeping in mind what the

prosecution witnesses i.e., PW3 and PW5, have deposed. Both

these witnesses do not support the evidence of by PW1 and PW2.

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15. PW3, Mohamad Shahjahan Sk, in his evidence has

deposed that he received a phone call from Motior, the Gaonbura

(village headman) of Pushkumipara (PW5) asking him to

accompany him to the house of the appellant; that when he

reached the house of the appellant, they found three women

already present, however, the appellant was not present at

home; that he was told by Motior, the Gaonbura of

Pushkumipara (PW5), that the prosecutrix was inside the room

and the room was locked from in side; that the Gaonbura

knocked the door and the victim herself opened the door ,

pursuant to which the Gaonbura (village headman) and three

women entered the room. PW3 has deposed that he did not know

what happened inside the room, as he was waiting outside the

room. He has stated that he did not know where the appellant

was at that time. He has further stated that he had not made

any inquiry from the prosecutrix.

16. PW5, the Gaonbura of Pushkumipara has deposed that on

the day of the incident, the appellant’s wife came to his residence

and informed him that somebody was inside the house and was 2026:MLHC:604-DB

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locked from inside; that before going, he asked PW3 to

accompany him to go to the appellant’s house, pursuant to

which they both went; they knocked the door and asked who

was inside but received no reply; that he asked the person inside

to open the door, as he was the Gaonbura of the village; that the

door was opened, pursuant to which he alongwith two–three

women entered inside the house and saw one girl inside the

house; that he asked the girl why she did not reply, pursuant to

which she disclosed that she was scared; that on inquiry why

she was scared, she replied that her parents used to assault her;

that when she was asked why her parents would assault her,

she replied that her parents made her work in the bakery of her

father and when she refused to do so, the parents would assault

her; that he inquired from the women who entered the house of

the appellant alongwith him to which, they replied that the girl

was staying next to the house of the appellant; that he told one

of the women to call the mother of the girl, pursuant to which

the mother came and the survivor (PW1) was handed over to her.

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17. In his cross-examination, PW5 has accepted that the girl

was hiding in the appellant’s house out of fear from her parents

and that she did not narrate anything about the appellant. PW5

has also accepted that the door of the house was opened by the

prosecutrix herself.

18. It is pertinent to note that the testimonies of both, i.e.,

PW3 and PW5 had not been challenged by the prosecution. The

aforesaid evidence of PW3 and PW5 completely contradicts the

story of the prosecutrix i.e., PW1 and her father, PW2. In these

circumstances, it is difficult to place implicit reliance on the

testimony of PW1 (prosecutrix) with respect to her disclosure of

sexual assault by the appellant.

19. As noted above, PW5 has categorically stated that the

prosecutrix’s mother was called and she took the survivor. The

prosecutrix’s mother had not been examined by the prosecution.

Infact, the testimonies of PW1 and PW2 do not reveal that the

prosecutrix’s mother had come or was present, when the

prosecutrix opened the door of the appellant’s house. In light of 2026:MLHC:604-DB

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the evidence that has come on record in particular, that of PW3

and PW5, which has gone unchallenged, we find it difficult to

place implicit reliance on the testimony of PW1 and PW2. We

also find it rather strange that the parents of the prosecutrix,

who was allegedly about 10-11 years of age, would be sent alone

on the next day to the hospital for her medical check-up, only

with the police, considering allegations of sexual assault on her.

20. PW4, Dr Janki G. Momin attached to Phulbari Hospital

has categorically stated that she did not take brief history of the

victim as there was no prescribed medical format, for recording

her observation. She has deposed that the prosecutrix was

accompanied by the police. Although, PW4 has stated that the

prosecutrix had some injury in the fourchette and her hymen

was not intact, she has not been able to state whether the tear

was old or new. She has also admitted that she was not given

any birth certificate to give the correct age of the prosecutrix.

She has further admitted that the injury of the fourchette could

be because of other reasons like scratching, falling , etc.

Admittedly, the medical report is not in the format as is required 2026:MLHC:604-DB

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and no history was taken from the victim nor any history

recorded in the medical note.

21. It is also pertinent to note that the trial court having

regard to the evidence that had come on record, acquitted the

appellant of the offences punishable under Sections 366A and

368 of the IPC, on the premise, that the prosecution had failed

to prove the said charges against the appellant.

22. Having noticed material discrepancies and

inconsistencies in the evidence of the prosecutrix-PW1, PW2,

PW3 and PW5, we find that we cannot place implicit reliance on

the testimony of the prosecutrix vis-à-vis sexual assault on her

by the appellant. In this view of the matter, we deem it

appropriate to give benefit of doubt to the appellant.

23. Accordingly, the appeal is allowed and impugned

judgment and order dated 29.01.2024 and 30.01.2024

respectively, passed by the learned Special Judge (POCSO), West

Garo Hills, Tura in Special POCSO Case No. 15 of 2018, stands 2026:MLHC:604-DB

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quashed and set aside and as such, the appellant is acquitted of

the offences for which he was convicted and sentenced. The

appellant be released forthwith if not required in any other case.

Fine, if any, paid, be returned to the appellant.

24. The appeal is allowed on the aforesaid terms.

25. All parties to act on the authenticated copy of this order.

(W. Diengdoh) (Revati Mohite Dere)

Judge Chief Justice

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