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Serial No. 01 & 02

Regular List

HIGH COURT OF MEGHALAYA

AT SHILLONG

Date of Hearing: 06.05.2026

Crl.A. No.10 of 2024 Date of Decision : 06.07.2026

Shri. Pynshngainlang Nongrum

S/o Shri. K.J. Singh Dhar

R/o Bhoirymbong, Ri-Bhoi District,

Nongpoh Meghalaya. …..Appellant

-VERSUS-

1. The State of Meghalaya,

Through the Superintendent of Police,

Ri-Bhoi District, Meghalaya.

2. Office in-charge Umiam Police Station

Nongpoh, Ri-Bhoi District, Meghalaya.

…..Respondents

Appearance:

For the Petitioner/Appellant(s) : Mr. K.Ch. Gautam, Adv

Ms. G.C. Marboh, Adv

For the Respondent(s) : Mrs. T. Yangi B, AAG with

Mr. E.R. Chyne, GA

Crl.A No.11 of 2024

Shri. Kontishon Mukhim

S/o Shri. Jar Jar Shylla

R/o Bhoirymbong, Ri-Bhoi District,

Nongpoh Meghalaya. …..Appellant

-VERSUS-

2026:MLHC:662-DB

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1. The State of Meghalaya,

Through the Superintendent of Police,

Ri-Bhoi District, Meghalaya.

2. Office in-charge Umiam Police Station

Nongpoh, Ri-Bhoi District, Meghalaya.

…..Respondents

Appearance:

For the Petitioner/Appellant(s) : Mr. K. Ch. Gautam, Adv

Ms. R. Kharshiing, Adv

For the Respondent(s) : Mrs. N.G. Shylla, Sr.GA with

Ms. I. Lyngwa, GA

Coram:

Hon ’ble Mr. Justice W. Diengdoh, Judge

Hon ’ble Mr. Justice B. Bhattacharjee, Judge

Judgment and Order

Per. B. Bhattacharjee, Judge:

1. These two criminal appeals arising out of the impugned judgment of

conviction dated 21.06.2023 and related order of sentence dated 30.06.2023

passed in Special (POCSO) Case No.32 of 2018 by the Special Judge

(POCSO), Ri-Bhoi District, Nongpoh are taken up together for disposal.

2. The appellant (A-1) in Crl.A. No.10 of 2024 was found guilty and

convicted for committing offences u/s 354/354B/366/366A/375(a) falling

under 375(sixthly)/376(2)(n)/376D/503/506 IPC, 1860 and u/s

3(a)/5(g)(l)/6/7/8 POCSO Act, 2012 and was sentenced in the following

manner: -

(i) U/s 8 POCSO Act, 2012 to imprisonment of 5 years with fine of

Rs.1,00,000/- and in default of payment of fine be imprisoned for

a further one year; 2026:MLHC:662-DB

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(ii) U/s 366 IPC, 1860 to imprisonment of 10 years with fine of

Rs.2,00,000/- and in default of payment of fine be imprisoned for

a further one year;

(iii) U/s 366A IPC, 1860 to imprisonment of 10 years with fine of

Rs.1,00,000/- and in default of payment of fine be imprisoned for

a further one year;

(iv) U/s 376(2)(n) IPC, 1860 to imprisonment for 25 years with fine

of Rs.2,00,000/- and in default of payment of fine be imprisoned

for a further 2 years;

(v) U/s 376D IPC, 1860 to imprisonment for life (as given in the

statute) and fine of Rs.2,00,000/- and in default of payment of

fine be imprisoned for a further 2 years;

(vi) U/s 506 IPC, 1860 to imprisonment for 7 years with fine of

Rs.20,000/- and in default of payment of fine be imprisoned for a

further two months;

3. The appellant (A-2) in Crl.A. No.11 of 2024 was found guilty and

convicted for committing offences u/s 109 r/w section 366 IPC, 1860; u/s

375(a) falling under 375 (sixthly)/376D IPC, 1860 and u/s 3(a)/5(g)/6

POCSO Act, 2012 and was sentenced in the following manner: -

(i) U/s 109 r/w section 366 IPC, 1860 to imprisonment of 10 years

with fine of Rs. 1,00.000/- and in default of payment of fine be

imprisoned for a further one year;

(ii) U/s 376D IPC,1860 to imprisonment for life (as given in the

statute) and fine of Rs. 3,00,000/- and in default of payment of

fine be imprisoned for a further 3 years;

4. All the sentences were to run concurrently. The entire amount of fine

was directed to be paid to the survivor. The time spent in custody during the

investigation and the trial was directed to be set off from the total period of

sentence.

5. The fact of the case is that on 28.08.2017, an FIR was lodged by the 2026:MLHC:662-DB

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mother of the survivor to the Officer In-Charge, Umiam Police Station,

alleging that the appellants, A-1 and A-2, forcibly took her daughter

(survivor) to Madan Kurkalang and sexually assaulted her on 27.08.2017 at

around 5:30 PM and later dropped her back home. Basing on the FIR, a case

was registered as Umiam PS Case No.57(8)2017 u/s 376D IPC r/w section

5(g)/6 POCSO Act and the matter was investigated into. Upon completion of

the investigation, the investigating authority being satisfied that a prima

facie case had been established, filed a charge sheet dated 08.11.2017 u/s

376D IPC, 1860 and u/s 5(g)/6 POCSO Act against A-1 and A-2. Charges

were framed on 30.05.2018 under the aforesaid sections of law against A-1

and A-2, who pleaded not guilty and claimed trial. The prosecution

examined 8 (eight) witnesses and exhibited as many as 11 (eleven)

documents in support of its case. After conclusion of the prosecution

evidence, statements of both A-1 and A-2 were recorded u/s 313 CrPC on

26.05.2023. No defence witness was adduced on behalf of the appellants.

The learned Trial Court, thereafter, heard the final arguments of the

respective parties and passed the impugned judgment of conviction on

21.06.2023 and thereafter, sentenced the appellants by the impugned order

of sentence dated 30.06.2023. The present set of two appeals has been filed

by A-1 and A-2 challenging their conviction and sentence.

6. Assailing the conviction and sentence, the learned counsel for the

appellants submits that the conviction of A-1 and A-2 is not legally tenable

as the testimony of the survivor is not reliable. Referring to the statement of

the survivor u/s 161 and 164 CrPC, he submits that the testimony of the

survivor is fraught with material contradictions, inconsistencies and

improvements rendering her evidence unworthy of any credence. The

learned counsel submits that the evidence of PW-2, the survivor, is

contradictory right from the stage of her entry in the vehicle alleged to have

been used in the commission of the crime. According to him, the

contradiction in the version of the survivor is apparent as the survivor in her 2026:MLHC:662-DB

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statement under 161 CrPC stated that A-1 forced her to enter the vehicle,

whereas, in her statement u/s 164 CrPC, she stated that A-1 pulled her inside

the car and finally, in her evidence before the Trial Court, she stated that she

resisted to go with A-1 but he managed to pull her inside the vehicle. That

apart, he submits that there is also inconsistency in the statements of the

survivor with regard to her relationship with A-1 prior to the alleged incident

inasmuch as the duration of continuance of such relationship has been stated

to be different in her statement u/s 161 and 164 CrPC and her evidence

before the Trial Court. Hence, he submits that the survivor’s testimony must

be viewed with caution and should not be relied upon without corroboration.

7. The learned counsel for the appellants submits that the disclosure made

by the survivor for the first time in her evidence that there was another

incident of sexual assault on her by A-1 prior to the incident narrated in the

FIR amounts to a deliberate embellishment to strengthen the prosecution

case. He submits that absence of any such disclosure in the earlier statement

of the survivor u/s 161 and 164 CrPC is nothing but an instance of

exaggeration and afterthought improvement of the prosecution case and as

such, her testimony is totally unreliable. The learned counsel further

contends that the disclosure of sequence of events with regard to the

occurrence of the incident on 27.08.2017 by the survivor is also totally

inconsistence. Drawing attention of this Court to the statements of the

survivor u/s 161 and 164 CrPC and also the evidence before the Trial Court,

the learned counsel contends that there is a huge inconsistency with regard to

the alleged consumption of alcohol by the appellants and the survivor and

also the manner in which A-1 and A-2 allegedly committed sexual assault on

her. He submits that the disclosure made by the survivor at the stage of

investigation and before the Trial Court with regard to the commission of

offence are at total variance and hence, unsafe to form the foundation of

guilt against A-1 and A-2. To buttress his argument and to impress upon this

Court as to when can the sole testimony of the prosecutrix be relied upon to 2026:MLHC:662-DB

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render a conviction, the learned counsel places reliance on a number of

decisions reported in i) Sadashiv Ramrao Hadbe v. State of Maharashtra &

anr, 2006 (10) SCC 92, ii) Ramdas v. State of Maharashtra, (2007) 2 SCC

170, iii) Raju v. State of Madhya Pradesh, (2008) 15 SCC 133, iv)

Tameezuddin @Tammu v. State (NCT of Delhi), (2009) 15 SCC 566 and v)

Rai Sandeep @Deepu v. State of NCT of Delhi, (2012) 8 SCC 21.

8. The learned counsel for the appellants further contends that the medical

evidence adduced in the matter is of no help to the prosecution case as the

medical examination of the survivor was not conducted in accordance with

the prescribed guidelines u/s 164-A CrPC. He submits that the medical

report in the present case suffers from serious deficiency as no final

observation or conclusion was recorded to indicate whether there was any

sign of sexual assault. Absence of conclusive medical opinion, according to

the learned counsel, weakens the prosecution case and as such, the benefit of

doubt must go to the accused. The case of Tameezuddin @Tammu (supra)

and the decision of this High Court dated 07.08.2023 in Crl.A. No.37 of

2022, Betstarling Basan v. State of Meghalaya & anr are cited to support his

contention. Additionally, the learned counsel contends that there is a total

misapplication of presumption u/s 29 and 30 of the POCSO Act by the Trial

Court inasmuch as the learned Trial Court invoked the statutory presumption

without there being any materials on record supporting the prosecution case.

By relying on the decision reported in 2021 SCC online Tri 176, Joubansen

Tripura v. State of Tripura, the learned counsel submits that without the

prosecution proving the foundational facts, there cannot be application of

section 29 and 30 of the POCSO Act. The learned counsel further submits

that the offence involved in the present case carry extremely severe penal

consequence and hence, the matter requires stricter degree of scrutiny and

proof. Mere presumption, he submits, cannot be a basis for holding someone

guilty in the criminal trial involving serious offence. He refers to the

decision of Mousam Singha Roy & ors v. State of W.B, (2003) 12 SCC 377 2026:MLHC:662-DB

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and submits that the more serious the offence, the stricter the degree of

proof, since a higher degree of assurance is needed for recording conviction.

He also refers to the decision of Kali Ram v. State of Himachal Pradesh,

(1973) 2 SCC 808 to contend that when two views are possible, one pointing

to the guilt of the accused and the other to his innocence, the view which

favours the accused should be adopted. He submits that in the present case,

the conviction recorded by the learned Trial Court does not satisfy the test of

proof beyond reasonable doubt and thus, liable to be interfered with.

9. In addition to the above, insofar as A-2 is concerned, the learned

counsel for the appellant submits that the survivor in her examination-in-

chief before the Trial Court failed to identify A-2. The failure of the survivor

to identify A-2 at the trial indicates that A-2 was not at all connected with

the commission of the alleged crime. In such a scenario, he submits that the

learned Trial Court has committed a gross error in convicting A-2 without an

iota of evidence to link him with the commission of the alleged offence. He

contends that mere seizure of the vehicle by the police is not sufficient to

prove A-2’s involvement in the alleged incident. He, therefore, prays that the

impugned judgment of conviction and the related order of sentence be set

aside and quashed.

10. The learned AAG appearing for the State, on the other hand, supports

the conviction and sentence and submits that there is no illegality or

infirmity in the judgment and order of the Trial Court. She submits that the

statement of the survivor has all along been consistent and she confirmed her

previous statement made u/s 161 and 164 CrPC in her evidence before the

Trial Court. She submits that the evidence of the survivor stood unshaken

and the defence was unable to extract any contradiction. The learned AAG

contends that the evidence of the survivor highlighted a clear picture of what

had happened on the day of the incident and her statement u/s 164 CrPC and

evidence before the Trial Court established that A-1 forced her into the

vehicle and took her to the place of occurrence against her will. She submits 2026:MLHC:662-DB

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that it is also clear from the testimony of the survivor that after they reached

the place of occurrence, A-1 pulled her, lay her on the ground and raped her

and thereafter, aided A-2 to also commit the same offence. She, therefore,

submits that it is apparent that both the appellants took part in sexually

assaulting and raping the survivor. She further submits that the evidence of

PW-1, the mother of the survivor, fully corroborates the evidence of the

survivor.

11. The learned AAG next submits that the presence of A-1 and A-2 in the

house of the survivor on being called by PW-3 on the day of the incident

after the occurrence is a clear proof of their involvement in the commission

of crime. She submits that both the appellants had made extra judicial

confession before PW-3, the brother of the survivor, as it is evident from the

deposition of PW-3 that on enquiry by him, both the appellants agreed to

have sexually assaulted (raped) the survivor but at the same time they were

not regretful about it. Referring to the medical evidence, the learned AAG

submits that PW-6, the medical expert, in her evidence stated that on general

examination of the survivor, there was a bruise over the right side of the

neck, scratch mark on the right shoulder and there was also a bruise on inner

side of her left upper arm. Above medical finding, she submits,

unequivocally establish the use of force upon the survivor and corroborate

the presence of resistance and physical struggle of the survivor during the

ordeal. She submits that mere absence of any injury mark in the private part

of the survivor will not vitiate the case of the prosecution when there are

consistent and credible testimonies of the survivor and other prosecution

witnesses.

12. The learned AAG further argues that the identification of the appellants

is established through the unimpeached testimonies of the survivor, her

family members and by seizure of the vehicle used in the commission of the

crime. She submits that in absence of any challenge to the age of the

survivor by the defence and the fact that she was a minor at the time of the 2026:MLHC:662-DB

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incident, the contention raised on behalf of the appellants before this court

with regard to the application of sections 29 and 30 of POCSO Act is not

tenable as the foundational fact of the case stood well established by the

prosecution at the trial. She submits that inconsistencies pointed out on

behalf of the appellants with regard to the duration of relationship between

the survivor and A-1 prior to the incident and the consumption of alcohol at

the time of occurrence are very trivial in so far as the core allegation of the

case is concerned having no bearing in the conclusion recorded by the Trial

Court. The learned AAG, therefore, submits that the impugned judgment of

conviction and the order of sentence passed by the learned Trial Court are

well reasoned and warrant no interference by this Court.

13. The learned AAG places reliance on the following decisions: -

i) Piara Singh & ors v. State of Punjab (1977) 4 SCC 452 (Para

10).

ii) State of Punjab v. Gurmit Singh & ors (1996) 2 SCC 384 (Para

21).

iii) Ranjit Hazarika v. State of Assam (1998) 8 SCC 635 (Para 6).

iv) Vijay alias Chinee v. State of Madhya Pradesh (2010) 8 SCC 191

(Para 9 to 14 and 25).

v) State of Uttar Pradesh v. Chhotey Lal (2011) 2SCC 550 (Para 32

and 35).

vi) Madan Gopal Kakkad v. Naval Dubey & anr. (1992) 3 SCC 204

(Para 20).

vii) Motilal v. State of Madhya Pradesh (2008) 11 SCC 20 (para 11,

12 and 13).

viii) B.C. Deva @ Dyava v. State of Karnataka (2007) 12 SCC 122

(Para 12 to 15, 17, 18).

ix) State of Himachal Pradesh v. Sanjay Kumar alias Sunny (2017)

2 SCC 51 (Para 30, 31, 32).

x) Raju alias Umakant v. State of Madhya Pradesh (2025) 8 SCC 2026:MLHC:662-DB

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281 (Para 16, 17, 22 and 30).

14. The learned Senior GA representing the State in Crl.A. No.11 of 2024

endorses the submission made by the learned AAG and further submits that

Exhibit-P5 and Exhibit-P6 disclosed that the appellants have voluntarily

admitted to having physical contact with the survivor. She submits that the

physical examination of A-1 revealed presence of abrasion on the right

upper chest wall and left chest wall below the nipple which is consistent

with the survivor’s version of the incident and no explanation for such

injuries was provided by the defence. She further submits that non-mention

of the name of A-2 in the FIR and non-holding of Test Identification Parade

(TIP), cannot be ground for rejecting the prosecution case. With regard to

the evidence that the survivor had continued physical relation with A-1 after

the incident in the month of June or July, 2017, she submits that even if it is

found that the survivor was habituated to sexual intercourse, that alone

cannot be ground to absolve the appellants from the charge. She submits that

victim of sexual assault is not treated as accomplice and hence, her

testimony does not require corroboration from any other evidence including

medical evidence. In addition to the authorities relied upon by the learned

AAG, the learned Sr.GA places reliance on the decisions reported in Amish

Devgan v. Union of India, (2021) 1 SCC 1 and Raju Manjhi v. State of

Bihar. (2019) 12 SCC 784.

15. We have given our careful consideration to the submissions made on

behalf of the parties and also perused the materials available on record.

16. At the outset, it would be imperative to note that the charges against A-

1 and A-2 were initially framed u/s 376D IPC and u/s 5(g)/6 of the POCSO

Act. However, the learned Trial Court convicted A-1 u/s

354/354B/366/366A/375(a) falling under 375(sixthly)/

376(2)(n)/376D/503/506 IPC,1860 and u/s 3(a)/5(g)(l)/6/7/8 POCSO Act,

2012 by adding some more charges and also convicted A-2 u/s 109 r/w 2026:MLHC:662-DB

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section 366 IPC, 1860; u/s 375(a) falling under 375(sixthly)/376D IPC, 1860

and u/s 3(a)/5(g)/6 POCSO Act, 2012 by adding more charges. The said

addition of charges by the Trial Court has not been questioned in the present

set of appeals by the appellants. Further, the finding of the Trial Court that

the survivor was born on 13.09.2000 and at the time of the occurrence of the

alleged offence, she was around 16 years old, has also not sought to be

challenged by the appellants in these appeals.

17. PW-1, the mother of the survivor and the informant, in her evidence

before the Court identified A-1 and A-2. She stated that she has a shop in

front of her residence and she sits in the shop. On 27.08.2017, the survivor

came to see her in the shop at around 5:30 to 6:00 PM before entering home.

The eyes of the survivor were swollen and it appeared that she had cried.

After closing the shop, PW-1 went home and served food to her younger

children and put them to sleep. Afterwards, when she was in the kitchen, she

heard voices in the compound and wanted to go out to see what was

happening. At that point of time, the survivor came running to her, held her

and told her not to allow her brother to go out and narrated the incident to

PW-1. The survivor stated how she was picked up by her ex-boyfriend (A-1)

and forcibly taken to Madan Kurkalang at Bhoirymbong in a vehicle and

thereafter, raped by A-1 and A-2 and was also dropped back to the spot from

where she was picked up. Thereafter, PW-1 went outside and saw both the

appellants along with their three other friends quarrelling with her eldest son.

PW-1 intervened and the appellants were called inside the house to have a

talk. There PW-1 was told by A-1 that he was no longer in a relationship

with the survivor, but A-2 liked the survivor and he was going to give her to

him. PW-1 told the appellants that the survivor was not for sale and asked

her elder son to catch hold of them, but A-1 broke the centre table and both

the appellants were able to run away. The survivor was thereafter, taken to

Bhoirymbong CHC by PW-1 and her husband and as it was a rape case, the

doctor advised them to file a complaint before the police. Thereafter, the 2026:MLHC:662-DB

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matter was informed to the Women Police Sub-Inspector and the survivor

was taken to the Bhoirymbong CHC after recording her statement by the

police. After medical examination, PW-1 filed a complaint before the

Officer-in-Charge, Umiam PS. She exhibited the FIR as Exhibit P1.

In her cross examination, PW-1 stated that the survivor was about 16

years old at the time of the incident. She stated that prior to the incident, she

was not aware that the survivor was in a relationship. Rest of the statements

in the cross do not appear to be of much relevance.

18. PW-2, the survivor, in her evidence before the Court stated that she met

A-1 through Facebook in the year 2017 and became friends. Subsequently,

they met personally, exchanged phone numbers which resulted in proposal

and acceptance by her. On the very first day of their meeting, they went to

one house situated in a secluded area and inside the house A-1 embraced and

kissed her and then raped her. The survivor struggled to free herself and

shouted for help, but without any result. Thereafter, A-1 took her home.

After the incident, the survivor wanted to meet the mother of A-1, but

he kept it on hold. Later when the survivor came to know that A-1 was

having affairs with other girls, she ended her relationship with him. On

27.08.2017 in the evening, she received a call from A-1 whereby he

persuaded her to meet him despite her reluctance. When she went to meet A-

1, he caught hold of her arms and told her to sit in one car (Alto). On her

resistance, he pulled her into the vehicle. There was one driver inside and on

being directed by A-1, the driver drove to Kurkalang football ground. When

they reached the football ground, A-1 took out one beer bottle and tried to

force her to drink, but she refused. The driver (A-2) took the bottle from A-

1. Then, A-1 asked her to go out as he wanted to talk to her. When she asked

what he wanted to talk, he pulled her, lay her on the ground and raped her.

After A-1 raped her, he held her hands and A-2 also raped her. At that point

of time A-1went away. She struggled to free herself, but was helpless and

could not scream for help. 2026:MLHC:662-DB

Page 13 of 27

After A-2 raped her, A-1 came and pulled her into the vehicle and they

left the place of occurrence. She was dropped near her house. Inside the

vehicle she was crying all the way and A-1 told her not to inform to her

parents. As she replied that she would inform her parents, A-1 held her arms

and threatened to rape her again. She kept quiet and went home.

On reaching home, she went straight to the bathroom and washed

herself while crying all along. After that she called her brother to her room

and informed him about the incident. She, then received a message from A-1

asking if she had reached home and that A-2 likes her. Her brother saw the

message, took her mobile and went outside. By that time her mother had

closed her shop and came home. After giving food to her younger siblings

and putting them to sleep, her mother peeped into her room and saw her

crying. When her mother wanted to know the reason, the survivor told her

about the entire incident. After some time, they heard a commotion outside

the house and went out to see what happened. There they saw many boys

gathered near their house and her brother was also standing along with them.

On being called by her mother to come inside the house, only A-1 and A-2

came inside along with her brother to have a talk. When she saw them

entering, she went back to her room but she was called by her mother. Her

mother then wanted to know what happened and A-1 told her that he broke

up with the survivor but A-2 likes her. Her mother told her brother to close

the door so that they could call the police but A-1 created a scene inside the

house and both of them fled away.

The brother of the survivor thereafter, went to call her father who was

at a funeral service. After her father arrived, he was informed of the incident.

Later, the matter was informed to the police. The police took her for medical

examination to CHC, Bhoirymbong. The doctor examined her after taking

her consent. She exhibited Exhibit P-2 as the medical report. The survivor

stated that she was born on 13.09.2000 and exhibited her birth certificate as

Exhibit P-3. She also stated that she had given a statement u/s 164 CrPC 2026:MLHC:662-DB

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recorded by the Magistrate and exhibited the same as Exhibit P-4. The

survivor identified A-1 but could not identify A-2.

In her cross examination the survivor stated that she had a love

relationship with A-1 for about one month prior to the incident. She did not

inform about the first incident to her parents as A-1 told her that he truly

loved her. The first incident took place somewhere in the month of June or

July, 2017. She further stated that apart from the two alleged incidents, in

between she had physical relation with A-1.

Apart from the above, nothing noteworthy was stated by the survivor in

her cross-examination.

19. PW-3, the elder brother of the survivor, in his evidence before the Trial

Court stated that on 27.08.2017 at about 6:30 PM, he was at home. After

some time, his mother called him asking about the survivor as she was

missing from the shop where she was helping the mother. The shop is

situated close to their residence within the same compound. As the survivor

was not home, they assumed that she might have gone to another nearby

shop. When the survivor did not return for about one hour, they started

looking for her. After the shop was closed and they went home, the survivor

arrived and PW-3 saw her crying with swollen eyes. When he enquired as to

why she was crying, after initial reluctance, the survivor told him that she

went to meet her ex-boyfriend A-1. She told him that she was not willing to

go but A-1 forcibly took her in a tourist cab (Alto) of yellow colour, the

registration No. of which she did not remember. The survivor told him that

she was taken to Bhoirymbong, Madan Kurkalang by A-1 and A-2 where

they sexually assaulted (raped) her turn by turn and thereafter, dropped her

back home. He then took the survivor’s phone and called A-1 and asked him

to come home and solve the matter. A-1 agreed to come as he told him that

he would report the matter to police. At around 9:00 PM A-1 and A-2 came

in the same vehicle i.e. Alto (tourist cab) along with three other friends. In

the meanwhile, the survivor had informed about the incident to their mother. 2026:MLHC:662-DB

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PW-3 further stated that though at first A-1 and A-2 were not willing to

come inside the house, they eventually came inside the house and talked

about the matter. On enquiry, A-1 and A-2 agreed to have sexually assaulted

(raped) the survivor but were not regretful about it. Then a quarrel started

between them and PW-3 which eventually ended up in a fight but A-1 and

A-2 managed to run away. PW-3 and their mother along with the survivor

immediately informed the matter to the police on the same day at Khanapara

Police Outpost. The survivor was taken for medical examination. Statement

of PW-3 was recorded by the police. He identified A-1 and A-2 who were

present in the Court room.

In his cross examination, PW-3 stated that he met A-1 and A-2 for the

first time on the night of the incident. Prior to the incident he had no

knowledge about the love relationship between the survivor and A-1. Rest of

the statement of PW-3 did not make any noticeable disclosure.

20. PW-4, the father of the survivor, in his deposition stated that at the time

of the incident he was residing separately from his wife. He did not

remember the date, month and year of the incident, but PW-3 came to his

house at around 7:00 to 7:30 PM and asked him to come as the survivor was

sexually assaulted by A-1 and A-2. PW-4 immediately rushed to the

residence of his wife and on reaching there he found that one glass table was

broken in the drawing room and the survivor was crying in the bedroom. He

enquired from the survivor about the incident whereupon, the survivor told

him that she was taken by A-1 and A-2 in a yellow Alto vehicle to Madan

Kurkalang at Bhoirymbong and was sexually assaulted there. After the

incident she was brough back home. PW-4 discussed with his wife and

decided to file an FIR against A-1 and A-2. He had never seen the accused

persons, but knew their names as mentioned by the survivor.

In his cross examination, PW-4 stated that he was not aware as to

whether the survivor had a boyfriend. He also stated that when he arrived in

his wife’s residence, A-1 and A-2 were not there. 2026:MLHC:662-DB

Page 16 of 27

21. PW-5, the brother-in-law of A-2, is a seizure witness. He stated that on

29.08.2017 some police personnel had come to the residence of A-2 and as

he was residing in the neighbourhood, the Police called him to witness the

seizure of the vehicle. He also stated that on the said date he drove the

vehicle Alto 800 ML05 M2063, yellow colour and dropped it at Umiam

Police Station after the same was seized from the residence of A-2. He

signed the seizure list bearing No. MR No. 72/17 dated 29.08.2017.

In his cross examination, he stated that he did not know anything about

the case.

22. PW-6, the Medical Officer who examined the survivor and A-1 and A-

2, in her evidence before the Court stated that in the year 2017, she was

posted in Bhoirymbong CHC as a Medical and Health Officer. On

28.08.2017 she received a requisition to examine the survivor of a sexual

assault case. She obtained consent of the survivor and her mother for the

medical examination. PW-6 stated that she was informed that the survivor

was 16 years old. While taking the history of the case, the survivor said that

she was taken forcefully by her ex-boyfriend in a car to Madan Kurkalang

where she was sexually assaulted by her ex-boyfriend and one of his

acquaintances at around 5:30 PM on 27.08.2017. While proceeding with the

medical examination and on enquiry, the survivor confirmed that there had

been penetration of her vagina by the penis and emission of semen on her

abdomen. The survivor mentioned that there was kissing, licking and

sucking of her neck. The survivor stated that she had changed her

undergarments and washed her vaginal area and wore clean undergarments.

The survivor stated there was vaginal discharge and painful urination post

incident. On general examination, PW-6 found there was a bruise over the

right side of the neck of the survivor and scratch mark on the right shoulder;

there was also bruise on inner side of her left upper arm. On local

examination of the private parts of the survivor, PW-6 did not observe any

injuries and there were no abnormalities in the labia majora, minora, 2026:MLHC:662-DB

Page 17 of 27

fourchette, introitus, hymen perinium and external urethral meatus. PW-6

collected the biological samples from the survivor and handed them over to

WPSI. She exhibited medical report of the survivor as Exhibit P-2.

PW-6 also conducted medical examination of A-1 and A-2 after

receiving necessary requisition. She stated that history which she took from

them, they voluntarily admitted that both of them had physical contact with

the girlfriend of A-1. She stated that she did not find anything significant in

the physical examination of A-2, however, in the physical examination of A-

1, she found an abrasion at right upper chest wall and left chest wall below

nipple. She exhibited medical reports of A-2 as Exhibit P-5 and A-1 as

Exhibit P-6. She also collected biological samples of both the accused and

handed them over to WPSI.

In her cross examination, PW-6 stated that she could not say whether

there was penetrative sexual assault in the case and admitted that she has not

given any opinion on that aspect. She also could not say whether the hymen

was intact or not as there was no external injury present. She admitted that

there was no external injury on the private part of the accused persons and

admitted that the survivor did not disclose the name of the accused persons

in her history. She also could not say whether the abrasions on the survivor

were recent or old and admitted that there is no such mention in her report.

She also could not say whether the abrasion on A-1 was recent or old. She

stated that she conducted medical examination of the survivor approximately

12 hours after the incident.

23. PW-7, the Police Officer who received the FIR, in his deposition

stated that he received the FIR vide GD Entry No. 09 dated 28.08.2017 and

registered the case as Umiam PS Case No. 57 (08) 2017 u/s 376D IPC r/w

section 5(g)/6 POCSO Act 201. He endorsed the investigation of the case to

PW-8.

24. PW-8, the investigating officer, in her deposition before the Trial Court

stated that on 28.08.2017, at around 2:15 AM, she received information from 2026:MLHC:662-DB

Page 18 of 27

PW-7 that there was a case of sexual assault. At 2:40 AM, the survivor and

PW-1 appeared at Umiam Police Station and verbally reported about the

incident. The survivor was examined and she stated that A-1 picked her up

in one yellow vehicle No. ML 05M 2063 along with one unknown driver.

The survivor stated that they forced her to take alcohol and thereafter A-1

and the driver, whose name she did not know, committed penetrative sexual

assault on her. PW-8, took the survivor for medical examination and

received the medical examination report. She also seized the biological

samples of the survivor collected by the Medical Officer and exhibited

Exhibit P7 as the seizure list.

PW-8 stated that she dropped the survivor to her residence and the

survivor informed her that A-1 is a resident of Lum Mawria, Bhoirymbong.

PW-8 went to the resident of A-1 but he was not present there. After ten

minutes, A-1 returned home and she took him to Umiam Police Station. On

the way to the Umiam Police Station, A-1 showed the residence of A-2 and

PW-8 picked him up from his residence. She stated that both of them

admitted to have committed the crime and they were taken for medical

examination to Bhoirymbong CHC. At 10:30 AM, PW-8 received the

medical examination reports of A-1 and A-2 as well as the biological

samples handed over by the Medical Officer. The samples were seized vide

Exhibit P8 dated 28.08.2017. PW-8 took A-1 and A-2 to Umiam Police

Station and recorded their statement. After the relatives of the accused

persons came to the Police Station, she instructed PW-5, the relative of A-2,

to bring the vehicle which was produced and seized by Exhibit P9. PW-8

stated that on the same date at about 1:00 PM, the complainant arrived at the

Police Station and filed the FIR which was registered and the investigation

was endorsed to her. She immediately arrested A-1 and A-2 and produced

them before the Court.

PW-8 stated that she made a prayer to record the statement of the

survivor u/s 164 CrPC and went to the resident of the survivor and recorded 2026:MLHC:662-DB

Page 19 of 27

the statement of her father, elder brother, and the complainant. She produced

the photographs and documents of the vehicle before the Court. The seized

biological samples were sent to the Forensic Science Laboratory, Shillong.

The original birth certificate of the survivor was seized by Exhibit P-10.

After the conclusion of the investigation, she reviewed the evidence and was

satisfied that A-1 and A-2 had committed the offence. Thereafter, she

consulted her Supervising Officer who agreed with her and charge sheet was

accordingly filed in the case. She exhibited the charge sheet as Exhibit P-11.

In her cross examination, PW-8 admitted that the appellants were taken

into custody and the medical examination of the survivor as well as of the

appellants were conducted before receiving the formal FIR. She also

admitted that no Test Identification Parade (TIP) was conducted to identify

A-2. The rest of the statements made in cross examination are of not much

relevance.

25. Before proceeding further, at this juncture, it would be appropriate to

take note of the different authorities relied upon by the rival parties in

support of their respective arguments.

26. The decisions of Sadashiv Ramrao Hadbe (supra), Ramdas v. State of

Maharashtra (supra), Raju v. State of Madhya Pradesh (supra),

Tameezuddin @Tammu (supra) and Rai Sandeep @Deepu (supra) relied on

by the learned counsel for the appellants laid down that the conviction in a

rape case can be based on the sole testimony of the prosecutrix if it is

capable of inspiring the confidence in the mind of the Court, but that can be

done in a case where the Court is convinced about the truthfulness of the

prosecutrix. The accused must also be protected against the possibility of

false implication and there is no presumption or any basis for assuming that

the statement of the prosecutrix is always correct or without any

embellishment or exaggeration. Further, the decision of Betstarling Basan

(supra) observed that in the absence of the medical report showing any kind

of injury being suffered by the survivor and in the absence of survivor 2026:MLHC:662-DB

Page 20 of 27

asserting or indicating how she had been violated except for using the word

‘rape’ in its several forms, the evidence before the Trial Court was not

sufficient to come to a conclusion that there was any degree of penetration

for an offence of rape or an offence of penetrative sexual assault.

27. In the case of Joubansen Tripura (supra) it was held that

presumptions u/s 29 and 30 of the POCSO Act do not take away the primary

duty of prosecution to establish the fundamental facts. This duty is always

on the prosecution and never shifts to the accused. In Kali Ram (supra), the

Apex Court held that if two views are possible on the evidence adduced in

the case, one pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused should be adopted.

28. In the case of Piara Singh (supra), relied on by the learned AAG, at

para 10, the Apex Court laid down that evidence of extra judicial confession

need not in all cases be corroborated. In Gurmit Singh & ors (supra), at para

21 it was held that in cases involving sexual molestation, the Court is duty

bound to deal with such cases with utmost sensitivity. The Court should not

get influenced by minor contradictions or insignificant discrepancies in the

statement of the prosecutrix. In Ranjit Hazarika (supra) it was held that non-

rupture of hymen or absence of injury in survivor’s private part does not

belie her testimony and corroboration of testimony of prosecutrix by medical

evidence is not always essential. In Vijay alias Chinee (supra) it is provided

that holding of TIP is not a substantive piece of evidence, yet it may be used

for the purpose of corroboration. Non-holding of TIP cannot be a ground to

draw adverse inference against the prosecution. It is further held that when

the statement of the prosecutrix is found to be worthy of credence and

reliable, no corroboration is required, the Court can convict the accused on

the sole testimony of the prosecutrix. The decision also provides that the

absence on injury mark of violence on the private part on the person of the

prosecutrix is of no consequence when the prosecutrix is minor and would 2026:MLHC:662-DB

Page 21 of 27

merely suggest want of violence resistance on the part of the prosecutrix. In

the case of Chhotey Lal (supra), the Apex Court held that the absence of

injuries on prosecutrix is not sufficient to discredit her evidence. It is wrong

to assume that in all cases of intercourse against will or without consent,

there will be some injury on external or internal parts of survivor.

29. Further, in the case of Madan Gopal Kakkad (supra) relied upon by

the learned AAG, it is observed that the extra-judicial confession of the

accused need not in all cases be corroborated. If the extra-judicial confession

made by the accused is not shown to have been obtained by coercion,

promise of favour or false hope etc. and is plenary and voluntary in nature

acknowledging the guilt, it can be acted upon. The decision of Moti Lal

(supra) reiterates the principles enunciated by the Hon’ble Supreme Court in

its various judgments as regards to sustainability of conviction on the sole

testimony of prosecutrix. In the case of B.C. Deva alias Dyava (supra), the

Apex Court upheld the conviction based on sole oral evidence of the

prosecutrix when medical evidence did not corroborate the alleged forced

sexual intercourse. In Sanjay Kumar alias Sunny (supra), the Apex Court

reiterated the proposition of law that the Court should not find difficulty to

act on testimony of survivor of a sexual assault alone to convict the accused

if her testimony inspires confidence of the Court. While restoring the

conviction recorded by the Trial Court, it was held that seeking

corroboration to evidence of prosecutrix as a rule in all cases would literally

amount to adding insult to injury. In Raju alias Umakant (supra), it was held

that a woman or a girl subjected to sexual assault is not an accomplice but a

victim of another person’s lust and it would be improper and undesirable to

test her evidence with suspicion. It was further held that when no definite

medical opinion is available, it would not mean that sexual assault was not

committed on the prosecutrix. It is also well settled that where the ocular

evidence is clear, it will prevail over the medical evidence. 2026:MLHC:662-DB

Page 22 of 27

30. In Amish Devgan (supra), it was held that not naming an accused

person in the FIR is not automatically fatal to the prosecution case as an FIR

is intended to set the law in motion and is not required to be an exhaustive

document. The omission is generally not considered a major flaw if the

accused’s name was initially unknown to the informant and was revealed

later during the investigation or identified in court. In Raju Manjhi (supra),

it was held that TIP is not substantive evidence. There is no provision in

CrPC which obliges the investigating agency to hold or confers a right upon

the accused to claim a TIP. Failure to hold a TIP would not make

inadmissible the evidence of identification in court.

31. An overall analysis of the prosecution evidence in the light of the

above noted propositions of law laid down the Apex Court would

undoubtedly bring to fore that the survivor and A-1 met each other through

Facebook in the year 2017. Thereafter, they met each other in person and

became friends. They remained in contact for some time and developed love

relationship. However, after the survivor came to know about A-1’s affairs

with other girls, she ended the relationship. On 27.08.2017, on the pretext of

personally meeting for a while, the survivor was taken to the place of

occurrence by A-1 against her will in a vehicle (Alto) driven by A-2. On

reaching the place of occurrence known as ‘Madan Kurkalang’, A-1 tried to

force the survivor to take beer and then pulled her out from the vehicle in the

guise of having a talk, lay her on the ground and raped her. After A-1, A-2

also raped her. The survivor struggled to free herself, but failed. Thereafter,

the survivor was brought back by the same vehicle and dropped near her

house. While returning, the survivor was crying in the vehicle where A-1

told her not to inform the incident to her parents otherwise he would rape her

again.

32. The prosecution evidence further reveals that the survivor after

reaching home took a bath and informed about the incident to PW-3, who in

turn called A-1 asking him to come to their house. A-1 agreed to come as he 2026:MLHC:662-DB

Page 23 of 27

was informed that the matter would be reported to the police. Afterwards A-

1 and A-2 came to the house of the survivor along with three other friends.

In the meantime, PW-1 was also informed of the incident by the survivor

after she had returned home from her shop. Both the appellants entered

inside the house of the survivor and after having a talk, created ruckus and

ran away from the scene.

33. The medical examination of the survivor disclosed that there was a

bruise on the right side of the neck and scratch mark on the right shoulder.

There was also bruise on inner side of left upper arm. No injury was found

on examination of the private part. Nothing significant was found in the

physical examination of A-2 by the medical expert. The physical

examination of A-1 revealed an abrasion on right upper chest wall and left

chest wall below nipple. No opinion was rendered by the medical expert as

to whether there was penetrative sexual assault on the survivor or not.

However, absence of such an opinion does not negate the prosecution case

as the evidence of the survivor is clear enough to establish the charge of

penetrative sexual assault in the case. Corroboration by medical evidence is

not required.

34. Perusal of the statement of the survivor u/s 161 and 164 CrPC does

not bring forth any notable contradiction with her evidence before the court.

Instances cited by the learned counsel for the appellants with regard to the

duration of survivor’s relationship with A-1, manner of entry in the vehicle,

use of alcohol and sequence of participation in the alleged offence, do not go

to the core allegation made in the case. It is humanly impossible to

reproduce the statement which was recorded at the stage of investigation in

the same words while adducing evidence in a Court at the stage of trial,

particularly when there exists a gap of considerable period of time in

between. A human being cannot be expected to reproduce earlier statement

like a recording device while deposing as witness in a judicial proceeding

and there are bound to be some discrepancies. So long such discrepancies 2026:MLHC:662-DB

Page 24 of 27

do not go to the root of the allegation and unfold a different picture

altogether, it cannot be said that there exists contradiction to land discredit to

the prosecution case.

35. We are, therefore, convinced that notwithstanding the minor

contradictions, the survivor’s evidence inspires confidence and that she has

clearly narrated about A-1 kidnapping her and also committing rape on her.

36. Insofar as the question of involvement of A-2 is concerned, we find

that the survivor during her evidence before the Trial Court failed to identify

him. The prosecution has not assigned any reason as to why the survivor

declined to identify A-2 before the Trial Court. When it is clear from the

evidence of the survivor that A-1 and A-2 came to her residence on

27.08.2017 after being called by PW-3, her refusal to identify A-2 in the

course of the trial creates a serious doubt about his involvement in the

matter. There is nothing on record to indicate that such refusal on the part of

the survivor stemmed from fear, trauma or external coercion/threats.

37. The learned Trial Court declined to give any credence to the

survivor’s refusal to identify A-2 by holding that identification of accused is

not normally required because of Section 36 of POCSO Act, 2012 and PW-1

and PW-3, the mother and brother of the survivor, clearly identified both the

accused. We are not inclined to accept such reasoning. Section 36 of POCSO

Act, 2012 does not create any embargo on the identification of the accused

by the child survivor. The provision only ensures that the child is not

exposed in any way to the accused at the time of recording of the evidence.

Law does not create any bar if the prosecution in the course of a trial desires

to get the accused identified by the child survivor without exposing the child

to the accused. Hence, once the prosecution chooses to go through such

process, the evidence extracted thereof would naturally have a bearing on the

overall appreciation of the prosecution case. In the present matter, as it is an

admitted fact that none of PW-1 or PW-3 was an eyewitness to the crime and

they did not know A-1 and A-2 personally prior to their meeting in the 2026:MLHC:662-DB

Page 25 of 27

survivor’s residence, their evidence before the Trial Court with regard to

identification of A-2 cannot have overriding effect over the evidence of the

survivor.

38. As the survivor’s refusal to identify A-2 in the course of the trial

appears to be completely voluntary, legal consequences shifts in favour of

A-2. The involvement of A-2 in the commission of the crime becomes

doubtful. We, therefore, feel it totally unsafe to uphold the conviction and

sentence of A-2.

39. Insofar as the conviction and sentence of A-1 u/s 376(2)(n) IPC and

u/s 5(l) POCSO Act is concerned, we find that such conviction is recorded

by the Trial Court on the basis of the disclosure made by the survivor for the

first time before it that she was also raped by A-1 on a previous occasion in

the month of June or July, 2017, prior to the incident mentioned in the FIR.

The materials on record reveal that no such statement was ever made by the

survivor before any authority prior to the disclosure before the Trial Court in

her evidence. The FIR was not lodged or the investigation of the matter was

not conducted on the above factual background. The chargesheet filed also

did not contain any allegation alleging repeated rape on the survivor by A-1.

No charge also was framed to that effect. It is only in the final verdict of the

Trial Court, A-1 was held guilty u/s 376(2)(n) IPC and u/s 5(l) POCSO Act.

It is, therefore, clear that A-1 did not get sufficient opportunity to defend

himself against such accusation. The addition of this charge has caused

serious prejudice to A-1 as the factual foundation for the offence was not

known to him. Hence, the conviction and sentence of A-1 u/s 376(2)(n) IPC

and his conviction u/s 5(l) POCSO Act stand interfered with.

40. As A-1 is found guilty of offence u/s 5(g) of POCSO Act and also u/s

376D IPC, he is convicted for major offence and thus, did not additionally

require to be convicted for section 7/8 POCSO Act as the lesser act of sexual

assault is subsumed by the greater crime of gang penetrative sexual assault.

Section 5 of POCSO Act is essentially an aggravated form of penetrative 2026:MLHC:662-DB

Page 26 of 27

sexual offence and acts as an enhancement when the crime involves specific

aggravating factors, the offence u/s 7/8 POCSO Act gets overlapped for a

single criminal act. The conviction and sentence of A-1 u/s 7/8 POCSO Act,

as such, is not tenable in the eye of law and is hereby interfered with. For the

same reason, the conviction of A-1 u/s 354/354B IPC is also set aside on his

conviction u/s 376D IPC arising out of the same single criminal act.

41. The conviction of A-1 with regard to other sections of law requires no

interference. However, taking into consideration the age of A-1, who was

around 24 years old at the time of the conclusion of the trial, and that he was

not found involved in any other criminal case, we deem it appropriate to

reduce the quantum of sentence awarded to him. The learned Trial Court has

awarded maximum possible sentence in total disregard to the age of A-1 and

that he was a first-time offender. We, therefore, alter the sentences awarded

to A-1 and reduce the same as under: -

i) u/s 376D IPC, 1860, imprisonment for 20 (twenty) years with

fine of Rs. 50,000/- and in default of payment, imprisonment

for 3 (three) months.

ii) u/s 366 IPC, 1860, imprisonment for 2 (two) years with fine of

Rs. 10,000/- and in default of payment, imprisonment for 1

(one) month.

iii) u/s 366A IPC, 1860, imprisonment for 2 (two) years with fine

of Rs. 10,000/- and in default of payment, imprisonment for 1

(one) month.

iv) u/s 506 IPC, 1860, imprisonment for 2 (two) years with fine of

Rs. 10,000/- and in default of payment, imprisonment for 1

(one) month.

All the aforesaid sentences shall run concurrently. The period of

detention undergone by A-1 during the investigation and trial is set off from 2026:MLHC:662-DB

Page 27 of 27

the total period of sentence. The amount of fine imposed shall be paid to the

survivor.

42. Resultantly, Crl.A. No.10 of 2024 stands partly allowed. The

conviction of A-1 u/s 354/354B IPC and u/s 5(l) POCSO Act and conviction

and sentence of A-1 u/s 376(2)(n) IPC and u/s 7/8 POCSO Act is set aside.

However, conviction with regard to other sections of law is upheld with

modification of sentences as indicated above.

43. The Crl.A. No.11 of 2024 stands allowed. The conviction and

sentence of A-2 is set aside. He is directed to be released forthwith if not

required in connection with any other case.

44. Let a copy of this order be forwarded to the learned Trial Court and

also to the learned counsels appearing for the parties.

45. Trial Court record be returned forthwith.

(B. Bhattacharjee) (W. Diengdoh)

JUDGE JUDGE

Meghalaya

06.07.2026

“Shrity,PS” 2026:MLHC:662-DB