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HIGH COURT OF MEGHALAYA

AT SHILLONG

Crl.A. No. 45 of 2024

Date of CAV: 04.08.2026

Date of pronouncement: 11.08.2026

Welcome Thongni

...Appellant

- versus -

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

Home Department, Government of Meghalaya, Shillong.

2. The State of Meghalaya through Superintedent of Police,

Nongstoin, West Khasi Hills District, Meghalaya.

3. The Officer-in-Charge, Women Police Station, Nongstoin,

West Khasi 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. S. Thapa, Adv.

For the Respondents : Mr. K. Khan, AAG with

Mr. S. Sengupta, Addl PP

i) Whether approved for Yes/No

reporting in Law journals etc.:

ii) Whether approved for publication Yes/No

in press:

Serial No. 01

Supplementary

List 2024:MLHC:763

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

The aforesaid appeal is directed against the judgment and

order dated 27.03.2024, passed by the learned Special Judge

(POCSO), West Khasi Hills, Nongstoin in Special POCSO Case

No. 4 of 2020, by which the learned Judge was pleased to convict

the appellant for the offence punishable under Section 5(n) read

with Section 6 of the POCSO Act and sentence him to undergo

rigorous imprisonment of 20 years and to pay fine of ₹30,000/-

in default of payment of fine, to undergo further simple

imprisonment of three months.

2. Under Section 357A Cr.P.C. read with Rule 9(2) of POCSO

Rules, 2020, the learned Judge also recommended

compensation of ₹1,50,000/- to be paid to the survivor by the

Meghalaya State Legal Services Authority, for utilising the same

exclusively for the welfare of the child-survivor. Interim

compensation, if any and if paid, was directed to be adjusted

against the final compensation.

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3. It is the prosecution case that the appellant, uncle of the

survivor committed aggravated penetrative sexual assault on the

survivor, aged six years, at his residence. On the disclosure

made by the survivor (PW2) to PW1(mother of the survivor), an

FIR came to be lodged as against the appellant alleging the

aforesaid offence. During the course of investigation, the Police

recorded the statement of witnesses both, under Sections 161

and 164, and conducted other investigation, after which they

filed charge-sheet as against the appellant in the Court of the

learned Special Judge (POCSO).

4. The learned Special Judge (POCSO) framed charge as

against the appellant on 25.03.2021 for the offence punishable

under Section 5(n) read with Section 6 of the POCSO Act, to

which the appellant pleaded not guilty and claimed to be tried.

5. The prosecution in support of its case, examined six

witnesses. They are as under:

PW1- Smti. Brialsidoris Nongdkhar (Mother of the survivor).

PW2 – Child–Survivor. 2024:MLHC:763

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PW3 – Shri. Shngainpher Lyngkhoi (brother of the appellant)

PW4 – Smti. Seltimoris Nongdkhar (Mother-in-law of the

Appellant).

PW5 – Dr. Manjurika Surong, Medical & Health Officer, civil

Hospital Nongstoin.

PW6 – W.P./S.I.,D.P. Nongbri, Ivestigating Officer.

6. Mr. S. Thapa, learned counsel for the appellant assailed

the judgment and order on several counts. Learned counsel

submitted that there were several inconsistencies in the

evidence of the prosecutrix inter se and with other witnesses. He

further submitted that the prosecution had failed to examine

some material witnesses, who had either seen the sexual assault

or who had informed of the disclosure made by PW2 to PW1

(mother of the survivor). He further submitted that the evidence

of the survivor (PW2) does not inspire confidence nor is of a

sterling quality, warranting placing implicit reliance on the

same. He further submitted that even otherwise, taking the

prosecution case as it stands, no offence under Section 5 is

disclosed qua the appellant and that at the highest, the offence 2024:MLHC:763

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would be one under Section 7 of the POCSO Act , punishable

under Section 9 of the said Act, having regard to the evidence

what has come on record, i.e., that the appellant had touched

the private part of the prosecutrix and that there was no

penetration warranting application of Section 5 read with

Section 6 of the POCSO Act. He further submitted that the same

is also evident from the evidence of PW5, the doctor, who

medically examined the prosecutrix. Mr. Thapa, learned counsel

relied on the following judgments in support of his submissions:

1) Criminal Appeal No. of 2025 (arising out of SLP(Crl.)

No. 10377 of 2025 : Laxman Jangde v State of

Chhattisgarh through the Station House Officer .

2) (2012) 8 SCC 21 : Rai Sandeep alias Deepu v State (NCT

of Delhi).

7. Mr. K. Khan, learned AAG opposed the appeal. Learned

AAG submitted that the evidence of the survivor (PW2), who at

the relevant time was six years and at the time of deposition was

nine years, inspires confidence and as such, is duly 2024:MLHC:763

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corroborated by the evidence of PW1 (mother of the survivor) and

PW5, the doctor, who medically examined the survi vor. He

submitted that the evidence is clear and clinching qua the

appellant and clearly shows the complicity of the appellant in

the crime. He further submitted that, despite the prosecution

having proved its foundational facts, as required, the appellant

had failed to rebut the presumption cast on him under Sections

29 and 30 of the POCSO Act.

8. Having regard to the aforesaid submissions, we find that

in the facts, the most material evidence is that of the survivor

i.e., PW1 (mother of the survivor, who is the first informant),

PW2 (survivor) and the evidence of PW5, the doctor, who

medically examined the prosecutrix.

9. The prosecution examined the first informant as PW1

(mother of th survivor). PW1 in her examination-in-chief has

disclosed that her daughter (PW2) was aged six years at the

relevant time; that the appellant is her elder sister’s husband

and that he lived in the house adjacent to theirs. According to 2024:MLHC:763

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PW1, the incident took place in November, 2019; that when she

had returned home after cutting grass in the evening and was

cooking, her niece came to their house and told her to ask her

daughter (PW2) about the incident which had taken place; that

her daughter started crying and hence, her niece asked her

(PW2) to speak out and not be afraid; that on consistently

making inquiry, her daughter (PW2) narrated that on one

occasion, the appellant had called her, taken her to his house

and thereafter, to his bedroom where he removed her trousers

as well as his trousers and thereafter, inserted his finger in her

private part. PW1 has further deposed that since, at that

moment, her son called out to the survivor (PW2), the appellant

and PW2 came out of the house and the appellant pretended to

give sugarcane to her daughter (PW2) to eat.

10. According to PW1, when her husband returned home, she

narrated the incident to him pursuant to which he became

furious and wanted to confront the appellant, however, seeing

his anger, she prevented him from confronting the appellant and 2024:MLHC:763

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any untoward incident from happening. PW1 has further

deposed that she waited for her elder sister (appellant’s wife) to

return home from Lawse village where she had gone to attend a

funeral and when she returned, she informed the incident as

was narrated by her daughter (PW2), however, her sister did not

respond. PW1 has further deposed that on the next day, they

waited for her elder sister to come home and discuss about the

allegations, however, she did not turn up, pursuant to which,

she went to her sister’s house and confronted her whether she

had asked the appellant about the incident; that her sister

informed her that the appellant had denied committing any

offence and further stated that if he had committed any such

act, she would not have been alive; that since she was not

content with the said response, she decided to take her daughter

for medical examination to ascertain the truth; that she also

informed her mother about the incident, who accompanied her

alongwith her minor daughter (PW2) to the Civil Hospital, at

Nongstoin.

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11. According to PW1, the Medical Officer at the Civil Hospital,

took her consent and conducted medical examination of PW2

and after the medical examination, asked her to lodge an FIR,

however, she refused as she wanted to know the result of the

medical examination and as such, returned home. PW1 has

further deposed that on reaching home she found the appellant’s

parents present at the house of her elder sister. She has deposed

that when the appellant was confronted by the family members,

he denied committing the offence, but stated that if there was

any injury on the minor victim girl (PW2), it was because he had

slapped the private part of the girl and as such, sought

forgiveness. From the evidence, it further appears that on the

next day, members of the village came to PW1’s house and

advised her to lodge an FIR, pursuant to which she, her

husband, her mother and her elder brother went to Nongstoin

Police Station, pursuant to which the incident was reduced into

writing by the concerned Police Officer.

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12. PW1 has further deposed that before she could sign the

FIR, she received a phone call from the appellant asking for

forgiveness; and that he cried, and told her that if anything

happened, it was due to a mistake, pursuant to which she did

not sign the FIR and proceeded to the Civil Hospital, Nongstoin

with her mother to collect the medical report of her daughter

(PW2). PW1 has stated that on reaching the hospital they were

informed that the medical report was sent directly to the Police

Station, since it related to an offence against a minor and hence,

they returned home. PW1 has further deposed in her

examination-in-chief that on the next day, members of the

village, came again to their house and inquired whether they had

lodged an FIR, pursuant to which she informed that she did not

desire to lodge an FIR since the appellant had sought forgiveness

and she felt pity for him. She has stated that the villagers told

her that if she did not lodge the FIR, the Police will register a

case against them and hence, she alongwith her mother, elder

brother and her uncle went to the Police Station and narrated

the incident, which was reduced into writing and the FIR (Exibit- 2024:MLHC:763

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P2) was registered. PW1 has also deposed that she was taken by

the Police to the Court, where her statement was recorded by the

Magistrate under Section 164 Cr.P.C. (Exhibit-P3).

13. There is nothing substantial that has come in the cross-

examination of PW1 to disbelieve her testimony. Infact, it is

pertinent to note that there is no cross-examination with respect

to the disclosure made by PW2 to her mother i.e., paragraph 10

of the evidence; that he sought forgiveness from PW1 i.e.,

evidence that has come in paragraphs 19, 20 and 21 of the

examination-in-chief. PW1 has categorically disagreed that the

statement recorded before the Police, the Magistrate and the

statement recorded in Court were different in any way. It is also

pertinent to note that in paragraph 17 of the cross-examination

of PW1, it has come as under:

“17. It is a fact that my minor victim daughter narrated to

me that the accused initially inserted with his finger in the

private parts of my minor victim daughter and thereafter

attempted penetrative sexual assault upon my minor victim

daughter.”

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14. PW1 produced the original birth certificate of her daughter

(PW2) to show that she was a minor, aged six years old at the

relevant time. The said birth certificate was exhibited and that

there is no challenge to the same.

15. PW2, the survivor, aged about six years at the relevant

time and about nine years when she deposed before the Court.

She was asked certain questions by the learned Judge to

understanding her ability to depose. The learned Judge though

did not administer oath to PW2 as she was nine years of age has

observed that the child appeared to be bright and capable to

understand all types of questions put to her and could also give

rational answers. PW2 identified the appellant as her uncle and

deposed that she would see him everyday since he lived close by.

When asked what did the appellant do to her, she deposed as

under:

“Q8. What did the accused do to you?

Ans. One day while I was in th house of Meideng (residence

of the accused) there was no persons during day time,

Padeng took me to the bed of ‘ka Bih’ (daughter of Meideng)

and he opened my pant, he also opened his pant and put 2024:MLHC:763

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his private parts (ong jung) in my private parts (ong jung).

He laid on top of me for sometimes and I could feel the pain

in my private parts at that point of time. After that he went

to cut sugarcane.

Q10. What were you doing in the house of Padeng

(accused)?

Ans. On that day I went to cut sugarcane from the garden

of Padeng (accused) and after cutting sugarcane, Padeng

(accused) called me inside his house.

Q. What happened thereafter?

Ans. Thereafter accused committed penetrative sexual

assault upon me.”

16. There is no cross-examination with respect to what is

deposed to by PW2 to question Nos. 8 and 10. PW2 has admitted

that she had narrated the incident to her mother and father and

also to one Ka Lit. She has denied that she had asked for ₹10/-

from the appellant or that the appellant used to beat her or she

was tutored by her mother. The said evidence of PW2 not only

inspires confidence, but also appears to be credible and

trustworthy. No reason is forthcoming in PW2’s cross for her to

falsely implicate the appellant. As noted aforesaid, there is no

cross with respect to sexual assault by the appellant on PW2,

and as such, the same has gone unchallenged. 2024:MLHC:763

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17. The said evidence of PW2 is duly corroborated by PW5, Dr.

Manjurika Surong, who medically examined PW2. PW5 in her

evidence has stated that on 13.12.2019, the survivor was

brought to Civil Hospital, Nongstoin at about 7 p.m. by her

mother and one lady police personnel for medical examination;

that before conducting the medical examination, she took the

consent from the mother after which, she recorded the sexual

assault history as narrated by the survivor. Paragraph of the

examination-in-chief of PW5, Dr. Manjurika Surong is as under:

“5. The survivor stated before me in the presence of her

mother that on 28/11/2019 at about noon her uncle Shri

Welcome Thongni called her from outside and led her to the

bedroom where he took off her pant and underwear and

then he took off his trousers and underwear. He then laid

on top of her and touch her private parts with his fingers

and according to the survivor attempted penetration was

done. After that he put his trousers and she put on her

underwear and pant. He then went out of the room on

hearing her elder brother (Name withheld) called out her

name.

6. ...

7. Date and time of assault was on 28/11/2019 at

Nongjyllieh village at noon.

8. During the course of examination I put some more

questions to the survivor wherein she narrated that there 2024:MLHC:763

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was no verbal thread (sic), no physical violence and no

weapons or objects used to threaten her. The survivor

narrated that the accused touched her vulval area and that

there was attempted penetration by penis and finger in her

vagina.

9. In general physical examination the survivor was

conscious and oriented and there was no abnormality

detected physically.

10. In genital examination no abnormality detected except

fourchette and introitus erythema was found which means

that the area is red.”

18. Again, it is pertinent to note that there is no cross-

examination with respect to what is deposed to by PW5 i.e., the

history given by the survivor to her. Although, the doctor has in

her cross-examination stated that there were no visible injuries

on the survivor, that necessarily does not lead to a conclusion

that there was no sexual assault on the girl child, inasmuch as

the allegation is, of inserting finger and of partial penetration.

The doctor has categorically deposed that the fourchette and

introitus erythema area were found to be red. Thus, not only the

evidence of PW2 inspires confidence and appears to be of a

sterling quality but the said evidence is duly corroborated by her 2024:MLHC:763

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mother, PW1 and the doctor, PW5. There is nothing on record to

show as to why PW2 or PW1 would falsely implicate the

appellant, more particularly when he was related to PW2 i.e., he

was PW2’s uncle.

19. As far as non-examination of certain witnesses mentioned

to by PW2 is concerned, we do not find the same to be fatal in

the facts. It is not the number but the quality of evidence that is

material.

20. As far as applicability of Section 5(n) of the POCSO Act is

concerned, we find having regard to the evidence that has come

on record and also having regard to the definition of ‘penetrative

sexual assault’ as defined in Section 3 of the POCSO Act, that

the case would squarely fall under Section 5 read with Section 6

and not under Section 7 (sexual assault) read with Section 9 of

the POCSO Act. In order for a case to come under Section 7, one

of the ingredients is touching certain parts of a child’s body with

sexual intent, which is not the case and as such, Section 7 will

have no application. 2024:MLHC:763

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21. Considering the aforesaid evidence on record, we find that

the prosecution has not only laid the foundational facts as

required to prove its case, but we also find that the appellant

has miserably failed to rebut the presumption cast on him under

Section 29 and 30 of the POCSO Act, more particularly, when

the prosecution had proved the foundational facts. In this view

of the matter, no infirmity can be found in the impugned

judgment and order of conviction and sentence dated

27.03.2024, passed by the learned Special Judge (POCSO), West

Khasi Hills, Nongstoin in Special POCSO Case No. 5 of 2020 and

as such, the said judgment and order stands confirmed.

22. Since, the trial court has also recommended

compensation of ₹1,50,000/- to be given by the Meghalaya State

Legal Services Authority to the child-survivor, a report to be

submitted by the Secretary, District Legal Services Authority,

West Khasi Hills, Nongstoin. Member Secretary, Meghalaya

State Legal Services Authority, as to whether the said amount 2024:MLHC:763

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has been disbursed to the child-survivor or not. The said report

to be submitted before this Court within six weeks.

23. The Registry to forward forthwith a copy of this judgment

and order to both, the Member Secretary, Meghalaya State Legal

Services Authority and the Secretary, DLSA, West Khasi Hills

District, Nongstoin, to enable them to submit their report.

24. Although, the appeal stands disposed of, p lace the

aforesaid appeal for recording compliance of paragraph 2 of the

judgment on 24

th

September, 2026.

(W. Diengdoh) (Revati Mohite Dere)

Judge Chief Justice

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