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HIGH COURT OF MEGHALAYA

AT SHILLONG

Crl.A. No. 42 of 2024

Date of CAV: 03.06.2026

Date of pronouncement: 11.06.2026

Yowan O. Lamare

...Appellant

- versus -

1. The State of Meghalaya through the Superintendent of

Police, East Jaintia Hills District, Meghalaya.

2. Officer-in-charge, Women Khliehriat Police Station, East

Jaintia 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 : Ms G.C. Marboh, Adv.

For the Respondents : Mrs T. Yangi B., AAG with

Mr E.R. Chyne, Asst. PP

i) Whether approved for Yes

reporting in Law journals etc.:

ii) Whether approved for publication Yes

in press:

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

By this appeal, the appellant has impugned the judgment

and order dated 19.01.2023 passed by the learned Special Judge

(POCSO), East Jaintia Hills District, Khliehriat, in Special

Serial No. 01

Supplementary

List 2026:MLHC:568-DB

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(POCSO) Case No. 15 of 2020, convicting and sentencing him for

the offence punishable under Sections 5(m) read with Section 6

of the POCSO Act, 2012, to suffer minimum sentence of 10 years

rigorous imprisonment and to pay a fine of ₹ 10,000/-, in default

of payment of fine to further undergo simple imprisonment for

five months.

The trial court also directed the appellant to pay

compensation of ₹ 4,00,000/- to the survivor. Since the accused

lacked financial means, being a daily wage labourer, the trial

court directed the State to disburse compensation under Clause

4 of the Meghalaya Victim Scheme, 2022, which in turn was to

be recovered from the appellant.

2. The prosecution case in brief is as under:

On 27.06.2019 at about 8.30 p.m. when the prosecutrix

aged 9 years was asleep, the appellant aged 27 years is alleged

to have sexually assaulted her. The said incident was witnessed

by the survivor’s mother who lodged an FIR as against the

appellant alleging offences punishable under Section 5(m) read 2026:MLHC:568-DB

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with Section 6 of the POCSO Act . During the course of

investigation, the prosecutrix was medically examined, the

statements of witnesses were recorded under Sections 161 and

164 Cr.P.C. and after investigation, charge-sheet was filed in the

said case in the Court of the learned Special Judge (POCSO),

East Jaintia Hills, Khliehriat.

Charge came to be framed against the appellant to which,

he pleaded not guilty and claimed to be tried.

The prosecution in support of its case, examined the

following witnesses;

PW1 – Mother of the survivor (complainant).

PW2 – Survivor.

PW3 – Friend of the survivor.

PW4 – Dr. C. Sariang, who conducted the medical examination.

PW5 – Ms. Anuwa Lakiang, Nurse.

PW6 – WPSI E. Khardewsaw attached to Khliehriat Women P.S.

PW7 – WPSI S. Kharsati, second Investigating Officer attached

to Khliehriat Women Police Station.

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Thereafter, 313 statement of the appellant was recorded.

The defence of the appellant was that of denial, alibi and false

implication. The appellant examined three witnesses in support

of his defence of alibi i.e., DW1, DW2 and DW3.

After hearing the learned counsel for the respective parties

and after considering the evidence on record, the learned Special

Judge (POCSO) convicted the appellant as stated aforesaid in

paragraph 1 of this judgment.

3. Ms G.C. Marboh, learned counsel for the appellant

vehemently submitted that the prosecution had failed to prove

its case qua the appellant beyond reasonable doubt. She

submitted that the prosecution had failed to prove the age of the

prosecutrix that she was a minor at the relevant time, inasmuch

as the original birth certificate of the prosecutrix was never

produced by the prosecutrix. She further submitted that the

evidence of the prosecution witnesses, if perused appears to be

suspicious and untrustworthy. She submitted that even the

eyewitness to the incident is unreliable and reliance cannot be 2026:MLHC:568-DB

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placed on her testimony. Learned counsel for the appellant

further submitted that the possibility of the prosecutrix being

tutored considering her impressionable age of 10 years could not

be ruled out in the facts. She further submitted that the sister

of the prosecutrix, who was sleeping next to the prosecutrix at

the time of sexual assault by the appellant on the prosecutrix,

was never examined. According to the learned counsel for the

appellant, apart from the aforesaid infirmities, even the FSL

report has come negative rendering the entire prosecution case

suspicious.

4. Learned counsel for the appellant relied on the judgments

of the Apex Court in Mousam Singha Roy & ors. v. State of

W.B. reported in (2003) 12 SCC 377; J. Yashoda v. K. Shobha

Rani reported in (2007) 5 SCC 730; K. Venkateshwarlu v.

State of Andhra Pradesh reported in (2012) 8 SCC 73; Rai

Sandeep alias Deepu v. State (NCT of Delhi) reported in

(2012) 8 SCC 21 ; Krishnegowda & ors. v. State of

Karnataka by Arkalgud Police reported in (2017) 13 SCC 98;

Agniraj & ors. v. State through Deputy Superintendent of 2026:MLHC:568-DB

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Police CB-CID reported in 2025 SCC OnLine SC 1203 ;

judgment of the High Court of Tripura in the case of Joubansen

Tripura v. State of Tripura reported in 2021 SCC OnLine Tri

176; judgment of the High Court of Delhi in the case of Ram

Nawal v. State passed in Crl.A. 705/2018; and, judgment of

the High Court of Meghalaya in Anwar Hussain Sheikh v.

State of Meghalaya & anr reported in 2022 SCC OnLine

Megh 429.

5. Mrs T. Yangi B, learned AAG submitted that no

interference was warranted in the impugned judgment and order

of conviction and sentence. She submitted that the evidence of

the prosecutrix is of a sterling nature, inspiring confidence and

that the said evidence is duly corroborated by her mother (PW1),

an eyewitness to the sexual assault and PW3, a friend of the

prosecutrix, who had seen the appellant in the house at the time

of the incident. Mrs. Yangi, learned AAG further submitted that

the FIR lodged against the appellant was prompt and not an

afterthought, giving credence to the incident. She further

submitted that the conduct of the appellant and his family 2026:MLHC:568-DB

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members in seeking forgiveness from the prosecutrix’s family

speaks volumes and shows that the incident in question had

indeed taken place. She further submitted that there is no

suggestion or motive that has come on record for the prosecutrix

and her family members to falsely implicate the appellant. She

further submitted that there is no challenge to the birth

certificate by the appellant, much less, any challenge to the age

deposed to by PW1, PW4 and PW7. She further submitted that

the medical evidence reveals that the prosecutrix’s hymen was

torn, corroborating the testimony of the prosecutrix.

6. Having heard learned counsel for the respective parties

and having perused the evidence on record, we find that the

prosecution has proved its case beyond reasonable doubt qua

the appellant and as such, there is no ground to interfere with

the judgment and order of conviction and sentence imposed by

the trial court on the appellant for reasons to follow.

7. The prosecution examined the survivor as PW2, who at

the relevant time was about 9 years of age. She has stated that 2026:MLHC:568-DB

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in June, 2019, the incident took place in the night when she was

sleeping with her elder sister. She has stated that the appellant

came, picked her up from the bed where she was sleeping, put

her on the floor of the TV room, pulled her panty, pulled his

pants down and put his male organ in her private part. She has

stated that her mother witnessed the incident. She has stated

that her mother saw the incident pursuant to which the

appellant was shocked and sought apology from her mother;

that her mother called her father; that she was very scared and

hence, did not scream; that on her father reaching home, her

mother narrated the incident to him, pursuant to which her

father went to the accused person’s house; that her father

informed the incident to other co-villagers and also to the police

at Lumshnong; that they went to Khliehriat Police Station and

thereafter, to the doctor at Khliehriat.

8. At the outset, we may note that there was no cross -

examination with respect to the actual sexual assault disclosed

by PW2 in her examination-in-chief. Although, certain questions

were put to PW2, nothing material has come on record to 2026:MLHC:568-DB

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discredit or disbelieve her testimony. Much ado has been made

by the learned counsel for the appellant that PW2 was tutored

by her mother, inasmuch as PW2 in her cross-examination has

stated that it was a fact, that her mother had told her what to

say before the Magistrate. Infact, the cross-examination of PW2

reveals that PW2 had disclosed that her mother had told her

only to say the truth as to what happened. The same cannot be

construed as tutoring by the mother of PW2.

9. The aforesaid evidence with respect to sexual assault on

PW2 by the appellant having gone unchallenged is duly

corroborated by PW1 i.e., the mother of the prosecutrix. PW1

has stated that the incident took place on 27.06.2019. She has,

in her examination-in-chief stated that on the day of the incident

she was sleeping with her son in the bedroom; that at around

8.30 p.m. whilst she was sleeping, one girl Miss K (PW3) came

to visit their house to watch T.V.; that when the girl left her

house, she woke up to close the door of the house which is in

the kitchen; that when she entered the kitchen to close the main

door, she saw from the kitchen that the appellant had laid on 2026:MLHC:568-DB

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her daughter on the floor of the T.V. room which was attached

to the kitchen which had no curtain; that the appellant’s pants

were down and the panty of the victim girl was down to her knee;

that on seeing this she screamed and called her husband; that

when the appellant got up, her daughter came straight to her

and cried; that when her husband reached home, the appellant

had ran away and that she narrated the incident to her

husband; that her husband on learning the incident, went to the

house of the appellant which was behind their house and

informed the mother of the appellant; that her husband also

informed the headman of the village; that when her husband

returned home, the appellant and his m other came to their

house and both asked for forgiveness; that on seeing blood

stains on the panty of her daughter, she took her to Khliehriat

CHC for medical check-up on the same day at around 9.30 p.m.;

that as the doctor was not available, they returned home; that

they informed the police; that thereafter, her daughter was taken

to Khliehriat CHC for medical check-up. PW2 has further

deposed that her daughter was 9 ½ years at the time of the

incident. PW1 identified the appellant who was present in Court. 2026:MLHC:568-DB

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10. There are certain minor omissions in the cross-

examination of PW2, however, they are not material omissions

which would go to the root of the matter. Again, it is pertinent to

note, that there was no cross-examination whatsoever, with

respect to what was deposed to by PW1 in her examination-in-

chief i.e., with respect to the incident of sexual assault by the

appellant on her daughter on 07.06.2019 and with respect to

forgiveness sought by the appellant and his mother post the

incident. There is also no challenge to the age of the victim girl

by the appellant.

11. The aforesaid evidence is again, corroborated by the

evidence of PW3 Miss K, who was watching T.V. at the house of

PW1 at the relevant time. PW3 aged 15 years has stated that on

27.06.2019, she had gone to watch T.V. at PW1’s house; that

whilst watching T.V. with PW3 and others, PW2 started feeling

sleepy and hence, went to sleep; that her sister also went to

sleep; that after some time PW2’s brother also went to sleep and

that she was sitting alone watching T.V. She has further stated 2026:MLHC:568-DB

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that at around 7.30 p.m., the appellant came to PW1’s house

and watched T.V.; that as she too was feeling sleepy, she told

the appellant to leave the house, however, the appellant did not

listen and kept silent and so she asked the appellant to close the

door before he leaves the house and thereafter, she left the house

of PW1. PW3 has identified the appellant in Court.

12. Again, nothing material has come in the cross -

examination of PW3 to discredit her testimony with respect to

the appellant’s presence in the house at the relevant time. On

the contrary, it has come in the cross-examination, that at the

time when the appellant entered the house of the prosecutrix

(PW2), the front door was ajar and that she was not aware

whether the appellant was drunk or not when he came to the

house. Thus, from the aforesaid evidence that has come in the

cross-examination, it is evident that the appellant does not

dispute his presence in the house at the relevant time.

13. The evidence of the aforesaid three witnesses again is,

duly corroborated by the medical evidence of PW4, Dr. C. 2026:MLHC:568-DB

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Sariang, who was at Khliehriat CHC at the relevant time. She

has stated that on 28.06.2019 at around 1.15 p.m., a minor

victim girl was brought to Khliehriat CHC as she was sexually

assaulted; that she medically examined the victim girl and

recorded the brief history of sexual violence. The brief history of

sexual violence reads thus;

“The incident took place on the 27/06/2019 at around

8.:30PM at Lumshnong village the estimated during is 17

hours ago with one episode, the nine (9) years old girl was

sexually assaulted by Yoowan-O Lamare, 30 years old man

and was found by her mother and the incident was also

narrated by the mother.”

The threat that was given to the victim girl was “don’t

scream.” On examination of the victim girl, it was found that in

the vulva region, there was a mild swollen bilaterally with hymen

torn. Clinical findings revealed recent sexual intercourse had

occurred. In the cross-examination of the said witness, it has

come that during examination of the victim girl, PW4 did not find

any injury mark on any part of the body except the vulva part

and that there was vaginal bleeding; that the hymen was torn 2026:MLHC:568-DB

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due to penetration and further the injury, in her findings was

due to sexual assault.

14. Thus, the aforesaid evidence as has come on record, we

find that the prosecutrix’s evidence inspires confidence, is of

sterling quality and is trustworthy. The said evidence is also duly

corroborated by the evidence of her mother, her friend (PW3) and

the medical doctor (PW4).

15. It is pertinent to note that throughout the cross -

examination, there is no suggestion to any of the witnesses that

the appellant was not present at the spot, nor was it suggested

that he was not the author of the sexual assault. Nor was the

age of the victim challenged. It is also pertinent to note, that it

is only in the 313 statement for the first time, that the appellant

had denied having gone to the prosecutrix’s house. In support

of the same, the appellant examined three witnesses i.e., DW1-

Shri. Rimiki Lamare, DW2 – Shri. Dakaru Lamare and D3 –

Smti. Pinky Lamare.

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DW1 in his evidence has stated that on 27.06.2019 at

around 7 to 7.30 p.m., he and the appellant were returning

home and they reached the village at 8 p.m.; that on reaching

the village, the appellant got down from his vehicle whilst he had

proceeded to his house. He has stated that whilst he was parking

his car at the roadside near his house, he received a call from

the appellant’s sister disclosing to him that the appellant had

raped the victim girl. The said witness has admitted that he is

the cousin of the appellant; that prior to the incident, he and the

appellant would frequently visit the victim’s house.

DW2 has stated that he rushed to the appellant’s house

after learning of the incident at around 8.30 p.m.; that there was

commotion; that he heard and saw the mother of the appellant

seeking forgiveness from the prosecutrix’s mother telling her

that she could not accept that her son had done such act.

In the cross-examination, DW2 has stated that on his

arrival at the house of the victim, the appellant and his mother

were present and that they were both seeking forgiveness from 2026:MLHC:568-DB

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the mother of the victim. The said evidence of DW2 infact,

supports the testimony of PW1 wherein, she has categorically

stated that after the incident both, the appellant and his mother

sought forgiveness.

DW3 has stated that on the day of the incident her brother

i.e., the appellant had come home at around 8.30 p.m. from

work. Her testimony does not in any way further the appellant’s

case with respect to his plea of alibi i.e., that the appellant was

not present at the spot of the incident or the plea of alibi.

16. It is also pertinent to note that there are no suggestions

or any evidence brought on record as to why the witnesses would

falsely implicate the appellant.

17. As far as the age of PW3 is concerned, the fact remains

that the defence has not challenged her age (10 years) or that

she was not a minor.

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18. As far as the submission of the learned counsel for the

appellant that no preliminary questions were put to PW3 is

concerned, we find that under Section 118 of the Evidence Act,

1872, the child witness is competent to depose unless the court

is of the opinion that he/she is not capable of understanding the

questions put to him/her because of his/her tender age. Section

4 of the Oaths Act, 1969 is the relevant provision with respect

to administration of oath to all witnesses, including a child

witness. Under the proviso of sub-section 1 of Section 4, it is laid

down that where the child witness is under 12 years of age,

unless satisfaction as contemplated by the said proviso is

recorded, oath cannot be administered to a child witness. The

proviso of Section 4(1) of the Oaths Act categorically states that

in the absence of an oath or affirmation, any evidence given by

the child witness below 12 years or age will not be rendered

inadmissible. As is evident, the child witness in the present case

was about 10 to 11 years at the relevant time i.e., time of

deposition. Admittedly, no oath was administered to PW3.

Infact, under Section 118 of the Evidence Act, the trial Judge is

under a duty to record its opinion by putting questions to a child 2026:MLHC:568-DB

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where he is able to understand the questions put up to him and

is able to give rational answers to the said questions. The trial

Judge is expected to record his opinion, that the child witness

understands his duty to speak the truth and state why he or she

arrived at the said opinion, that the child understands the duty

of speaking the truth. The reason for carrying out the said

exercise is to exclude the possibility of the child witness being

tutored.

19. Thus, it is evident that before recording evidence of a child

witness (minor), it is the duty of the Judicial Officer to ascertain

whether the minor is able to understand the questions put to

him and is in a position to give rational answer; that the Judicial

officer must be satisfied that the minor is able to understand the

questions and respond to them; and that the child understands

the importance of speaking the truth. Thus, the role of the judge

who records the evidence of the child witness is extremely

important and crucial. In the facts of the case, preliminary

examination of the minor has not been done. There is nothing to

indicate in the recording of the evidence of the child witness, 2026:MLHC:568-DB

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that this exercise as required was carried out. Thus, the learned

trial judge has not performed his duty as required. Nevertheless,

we have carefully and minutely scrutinised the evidence of PW3.

As discussed hereinabove, we find that the evidence of the minor

victim i.e., PW2 inspires confidence and is trustworthy. The said

evidence of PW2 is duly corroborated by the evidence of her

mother (PW1) and a friend (PW3).

20. We may also note, that it is not necessary to refer to each

of the judgments relied upon by the learned counsel for the

appellant, inasmuch as there is no dispute with respect to the

propositions laid down in them. Suffice it to state that, the

judgments are in the facts of those cases and are clearly

distinguishable and do not apply to the facts in hand.

21. In view of the aforesaid, we find that no interference is

warranted in the impugned judgment and order convicting and

sentencing the appellant. The appeal being devoid of merit,

stands dismissed.

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22. The Secretary, Meghalaya Legal Services to submit a

report, as to whether the State of Meghalaya had disbursed

compensation to the survivor (PW2) of ₹ 4 lakhs, as directed by

the trial court (mentioned in para 1 of the Judgement). Report

to be submitted within six weeks.

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

and order to the Secretary, DLSA, East Jaintia Hills District,

Khliehriat, to enable the Secretary to submit the report.

24. We record our appreciation for the painstaking efforts put

in by learned counsel, Ms Marboh and for arguing the appeal

with tenacity and diligence.

25. Place the aforesaid appeal for recording compliance on

23

rd

July, 2026.

(W. Diengdoh) (Revati Mohite Dere)

Judge Chief Justice

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