Meghalaya High Court
Shri Ronal Murmu, vs . State Of Meghalaya Through on 19 August, 2025
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
2025:MLHC:741-DB
Serial No.01
Supple List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. A. No. 6 of 2025 Date of Decision:19.08.2025
____________________________________________________________
Shri Ronal Murmu, Vs. State of Meghalaya through
Son of Shri Joseph Murmu Public Prosecutor.
Resident of: Umran Dairy,
P.O: Nongpoh,P.S.: Nongpoh,
District:Ri-Bhoi, Meghalaya
Presently lodged in District
Prison & Correctional Home,
Ri-Bhoi District, Nongpoh.
..... Appellant. ......Respondent.
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge.
Hon'ble Mr. Justice B. Bhattacharjee, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. D. Upadhaya, Legal Aid Counsel
Ms. A. Synrem, Adv.
For the Respondent(s) : Mr. R. Gurung, GA
Mr. S. Sengupta, Addl. PP.
Page 1 of 15
2025:MLHC:741-DB
(JUDGMENT AND ORDER)
Per. B. Bhattacharjee, Judge:
The Judgement dated 12-03-2020 and related order of sentence
dated 10-07-2020 passed by the learned Special Judge (POCSO), Ri-
Bhoi District, Nongpoh, in Special POCSO Case No. 54 of 2015 is
under challenge in this criminal appeal.
1. The brief fact of the prosecution case is that on 25-09-2015 an
FIR was lodged by PW-1 alleging that her daughter, the survivor,
aged about 13 years was missing from home. After enquiry it was
learnt that the appellant came and took her daughter from their
resident to his resident at Umlur, Umron Dairy, Ri-Bhoi District and
had physical relationship and sexual intercourse with her. As her
daughter is still under age, a request was made to take necessary
action. The FIR was registered as Nongpoh PS Case No. 199 (9)
2015 u/S 363/376(2) (i) (n) of the Indian Penal Code (in short IPC)
read with Section 4/6 of the Protection of Children from Sexual
Offences Act, 2012 (in short POCSO Act). Upon completion of the
investigation, a charge-sheet vide charge-sheet No. 153/2015 dated
12-11-2015 under the aforesaid Sections of law was submitted before
the Court against the appellant for trial.
2. On 24-06-2016, the charge against the appellant was framed by
the learned Trial Court u/S 363/376(2)(i)(n) IPC and Section 4/6 of
POCSO Act to which the appellant pleaded not guilty and claimed
Page 2 of 15
2025:MLHC:741-DB
trial. During the course of the trial, the prosecution examined five
witnesses and exhibited as many as seven documents marked as
Exhibit 1 to Exhibit 7. The statement of the appellant u/S 313 Cr.PC
was recorded on 19-11-2018. The appellant did not adduce any
defence witness. The learned Trial Court, after hearing the
prosecution and the defence acquitted the appellant of the charge u/S
363 IPC, but convicted him u/S 363/376(2)(i) IPC and Section 4 of
POCSO Act by the impugned judgment dated 12-03-2020 and by
order dated 10-07-2020 sentenced the appellant to undergo 10 (ten)
years rigorous imprisonment and to pay a fine of Rs. 25,000/-, and in
default, to undergo further 6 (six) months simple imprisonment.
Hence, this appeal.
3. Mr. S. D. Upadhaya, learned LAC for the appellant submits
that the learned Trial Court has miserably failed to notice the glaring
contradiction in the evidence of the prosecution witnesses and
thereby came to a wrong conclusion resulting in conviction of the
appellant. He submits that admittedly there is no eye-witness in the
case and the deposition of PW-3, the survivor, does not speak of
commission of any sexual offence on her by the appellant. He
contends that the evidence of PW-1 as well as PW-2 is totally silent
as regard to allegation of sexual offence against the appellant. The
allegation of kidnapping of the survivor, he submits, also stood
negated as the Trial Court has exonerated the appellant of the charge
U/s 363 IPC. He submits that the evidence of PW-3 speaks only of
her having physical relationship with the appellant and the extent of
Page 3 of 15
2025:MLHC:741-DB
‘physical relationship’ has not been explained. The learned LAC
referred to a decision of the High Court of Sikkim in Crl. A. No. 02 of
2019, Depesh Tamang V. State of Sikkim (2020:SHC:47-DB) to
contend that the term ‘physical relationship’ cannot be construed to
mean sexual assault. He further submits that the learned Trial Court
erroneously came to the conclusion that the survivor was 14
(fourteen) years old at the time of the commission of the alleged
offence without any supporting materials on record as the prosecution
failed to adduce any evidence in that regard. He, therefore, submits
that the conviction and the sentence of the appellant is not sustainable
in law and is liable to be set aside and quashed by this Court.
4. Mr. R. Gurung, learned GA appearing for the State-respondent
supports the conviction and sentence of the appellant and submits that
the learned Trial Court has not committed any irregularity or
illegality in passing the impugned judgment. He submits that the
evidence of PW-3, the survivor, clearly proves the guilt of the
appellant and the evidence of PW-4, the medical witness, further
corroborates the statement of PW-3. He submits that the statement of
the victim of sexual offence can be a sole basis for conviction. He,
thus, submits that no interference is called for with the impugned
judgment of conviction and the order of sentence.
5. The submissions made by the learned Counsel for the parties
are give due consideration and also perused the materials available on
record.
Page 4 of 15
2025:MLHC:741-DB
6. The PW-1, the complainant and mother of the survivor, in her
deposition before the learned Trial Court stated that she has two
daughters, 16 years and 14 years respectively, followed by two sons 9
years and 8 years old (the names of the children were recorded). She
stated that she came to Court to depose with regard to her 14 years
old daughter (second) (survivor) who was forcefully kidnapped by
the appellant on 25-09-2015 from her residence at Umdihar. After
the incident, PW-1 informed the police station by lodging an FIR
(Ext-1) and, thereafter, she along with the police personnel of
Nongpoh PS proceeded towards Umran Dairy as per the information
which was made known to her by one business woman of the village.
Upon reaching Umran Diary along with the police personnel, she
found the survivor from the house of the appellant. After that, she
along with the survivor came back to Nongpoh PS and her statement
was recorded.
In her cross-examination, PW-1 stated that the FIR was
written by the police personnel and was explained to her. She did
not know the date of the FIR and also whether the survivor was
having any affair with the appellant or not. The appellant was not a
visitor to her house. She had given the birth certificate of the
survivor to the police. She stated that she had not seen the appellant
forcibly taking away the survivor and when she found the appellant at
his home, he was along with his mother. She told the police that she
would not allow the survivor to settle with the appellant as she was
younger in age and still a minor.
Page 5 of 15
2025:MLHC:741-DB
7. PW-2, the father of the survivor, in his examination-in-chief
stated that PW-1 is his wife and they have two sons and two
daughters. He stated that he came to depose in the Court in
connection with rape of his daughter (he named a different person) by
the appellant. He stated that he came to know about the incident after
the matter was reported to the police. After the FIR was filed, he had
gone along with the police in search of the appellant and found the
appellant from a tea garden at Umran Diary. He stated that he did not
know the exact place of occurrence.
In his cross-examination, the said witness stated that the
appellant was not acquainted to him and he did not know whether the
appellant was acquainted to his daughter. He had not seen the
appellant coming to his house. He stated that the survivor was found
in the house of the appellant. When he went to the house of the
appellant along with the police, he found the survivor, the appellant
and the parents of the appellant in the house. The house of the
appellant was situated in a tea garden. He asked his daughter if she
was forcibly taken, but she did not answer. He stated that as per his
understanding the appellant and the survivor left with mutual
understanding.
8. PW-3, the survivor, in her examination-in-chief stated that she
knew the appellant as they were school mates. They studied in the
same school and the appellant was senior to her. When she was in
class III and the appellant was in class V, both of them left the school
Page 6 of 15
2025:MLHC:741-DB
and went to some other schools. Thereafter, she did not meet the
appellant for a quite long time. The appellant was working as a sales-
boy in a garment shop at Nongpoh. Once, while shopping, she met
the appellant in the shop and gave her mobile number to him.
Thereafter, the appellant started calling her and wanted to have a
relationship with her. After initial reluctance, the she became
friendly with the appellant. At that point of time, she was in Class VI
and was 14 years old. She met the appellant twice while he came to
her village. On 24-09-2015, the appellant called her and asked her to
come to his place at Umran Diary and accordingly at around 4.30 PM
he came to pick her up. She went along with the appellant in a Tata
Sumo and when she reached the house of the appellant, she met his
parents. The parents of the appellant asked her whether her parents
were aware of her visit to the house of the appellant to which she
answered in negative. On the asking of the parents of the appellant,
she gave her mother’s number to them but her mother could not be
contacted due to network problem. At around 8.30 PM, her mother
and father along with the police came to the house of the appellant
and she was taken to the police station. The appellant was also taken
to the police station along with them and was interrogated by the
police. She was taken for medical examination and thereafter was
sent back home. She was asked to appear before the Court for
recording her statement which was recorded by a lady officer. She
told the Magistrate about her visit to the appellant house and meeting
his parents. She exhibited her statement as Ext-2.
Page 7 of 15
2025:MLHC:741-DB
In her cross-examination, the survivor stated that the
appellant was her boyfriend and she went to his house willingly. She
had physical relationship with the appellant and the appellant did nor
force her to have physical relationship with him. She admitted that
she did not disclose to the Magistrate about the physical relationship
and the contents of the Ext-2 was not explained to her by the
Magistrate. She was only asked to sign the statement.
9. PW-4, the medical witness, in her examination-in-chief stated
that on 24-09-2015, she had examined the survivor after taking
consent in presence of witnesses. Before examining the survivor, she
took the history of the case and as per the narration of the survivor,
two months back the appellant had taken the survivor to nearby
Presbyterian Church of the village and had consensual sex and two
weeks later, they again had a physical relationship near the local
school. On general physical examination, no abnormality was
detected and she did not find any injury on the body of the survivor.
On genital examination of the survivor, no abnormality was detected
except that the hymen was perforated. She collected biological
sample of the survivor and handed over to police who seized the
samples. PW-4 stated that she also medically examined the appellant
and did not detect any abnormality or find any injury on the body of
the appellant. She collected biological sample of the appellant and
handed over to the police who seized those samples. She exhibited
Ext-3 as the seizure list. She prepared Medico Legal Report of the
survivor and exhibited the same as Ext-4. She exhibited Medico
Page 8 of 15
2025:MLHC:741-DB
Legal Report of the appellant as Ext-5. She also exhibited Ext-6
which is the seizure list of the biological samples of the appellant.
In her cross-examination, PW-4 admitted that the
perforation in the hymen of the survivor was not recent as there was
no sign of redness, injury or any tear. She admitted that she had
observed in her report that the survivor had consensual sexual
relationship with the appellant and the observation made by her in the
report was based on the narration made by the survivor.
10. PW-5, the Investigating Officer (IO), in is examination-in-chief
stated that on 24-09-2015, a verbal information was received at the
Nongpoh PS that the daughter of the complainant was missing from
home. On being directed by the Officer-in-Charge she, accompanied
by other staffs, left the police station to Umran Dairy on the leading
of the complainant. During the search, the survivor was found in the
house of the appellant and both the appellant and the survivor were
brought to the Nongpoh PS where both of them were interrogated.
The survivor, in her interrogation told that they were in love and
eloped and they had physical contact. Later, the appellant and the
survivor were medically examined at Civil Hospital, Nongpoh and
their biological samples were collected. Thereafter, the survivor was
allowed to go with her parents and the appellant was detained at the
police station. During interrogation, the appellant stated that he was
in love with the survivor and on the first occasion he went to meet her
at Erpakon and had sexual intercourse with her. On 24-09-2015, both
Page 9 of 15
2025:MLHC:741-DB
of them decided to elope and the appellant took the survivor to
Umran Dairy. When they were about to go to sleep police arrived
and took them to the Thana. On 25-09-2025, the FIR (Ext-1) was
filed and registered and endorsed to him for investigation. PW-5
stated that during her investigation she recorded the statement of the
survivor, the complainant and the available witnesses. She recorded
the statement of the appellant and arrested and forwarded him to the
Court with a prayer for his remand to judicial custody. On the next
day, the complainant produced the birth certificate and he took the
photocopy and attached it with the CD. She had visited the place of
occurrence and prepared a rough sketch-map in presence of witnesses
and exhibited the same as Ext-7. She had sealed and packed the
biological samples in the office of the Superintendent of Police,
Nongpoh and sent them for forensic examination. On completion of
the investigation, as there was a prima facie case against the
appellant, she filed the charge-sheet u/S 363/376(2)(i)(n) IPC r/w
Section 4/6 POCSO Act, 2012.
In her cross-examination, PW-5 admitted that the
mother of the survivor knew that the survivor and the appellant were
in love and had sexual intercourse. She also admitted that the
survivor had stated in her statement u/S 164 Cr.PC that the appellant
never raped her. She stated that there are no eye-witnesses in the
instant case.
Page 10 of 15
2025:MLHC:741-DB
11. Analysis of the prosecution evidence would show that though
PW-1 had filed the FIR (Ext-1) dated 25-09-2015 alleging
commission of sexual offence by the appellant, her evidence before
the Trial Court is totally silent with regard to the same. Her evidence
only speaks of forceful kidnapping of the survivor (second daughter)
by the appellant, which allegation, however, was not found to be true
by the learned Trial Court as it was held that the prosecution has
failed to prove that the appellant had enticed or forced to take away
the survivor from her home. It was further observed that the
ingredients of Section 361 IPC were not available to prove the charge
of kidnapping against the appellant beyond reasonable doubt.
12. From the evidence of PW-2, the father of the survivor, it is
clear that he accompanied the police on 24-09-2015 while they went
to the house of the appellant where the survivor was found. However,
his evidence creates more doubt in the prosecution case as he uttered
the name of a different person as the victim of the alleged offence and
did not name the survivor, who happens to be his own daughter. The
prosecution has not made any attempt to clarify this aspect of the
matter by adducing any further evidence or by offering any
explanation in its argument before the court. Further, the evidence of
PW-2 is also silent insofar as the allegation of commission of sexual
offence by the appellant is concerned.
13. The survivor, who deposed as PW-3, in her examination-in-
chief has not stated anything about the allegation of sexual offence
Page 11 of 15
2025:MLHC:741-DB
perpetrated against her by the appellant as per the prosecution version
of the case. It is only in her cross-examination she stated that she had
physical relationship with the appellant and further added that the
appellant did not force her to have physical relationship with him.
She, however, did not disclose or explain the extent of the physical
relationship which she had with the appellant. ‘Physical relationship’
in the context of human interaction can be a part of a close friendship
and family connection and may include various actions like holding
hands, hugging, cuddling etc. Sexual activity cannot be only
definition of physical relationship. Although, the survivor had given
her statement u/S 164 Cr.PC and exhibited the same before the Trial
Court as Ext-2 in her evidence, but she stated that she did not disclose
to the Magistrate about the physical relationship. She further stated
that the content of her statement in Ext-2 was not explained to her
and she was only asked to sign the statement by the Magistrate.
14. The term ‘physical relationship’ has not been used in the
definition of ‘rape’ provided in Section 375 IPC to mean and include
it as sexual offence. Similarly, the definition of penetrative sexual
assault in Sections 3 of the POCSO Act, 2012 also do not include the
term ‘physical relationship’ to give it a colour of sexual offence
punishable under the law. Hence, existence of ‘physical relationship’
between the appellant and the survivor, without availability of any
direct evidence as to the nature and extent of ‘physical relationship’,
cannot be construed to mean sexual offence within the meaning of
Section 375 IPC or Section 3 of the POCSO Act, 2012. Somewhat
Page 12 of 15
2025:MLHC:741-DB
similar view has been taken by the High Court of Sikkim in the
decision of Depesh Tamang(supra) cited by the learned Legal Aid
Counsel appearing on behalf of the appellant. Consequently, the
conviction of the appellant under Section 376(2)(i) IPC and Section 4
of the POCSO Act cannot be sustained in law.
15. Insofar as the question of determination of age of the survivor
is concerned, it appears that the learned Trial Court, despite noticing
the fact that the birth certificate of the survivor was handed over to
the police but was not seized or produced before the Court, proceeded
to determine the question on the basis of the oral evidence of PW-1
and PW-3 on the ground that the defence had not tried to produce
rebuttal evidence or pleaded anything contrary in terms of Section 29
of the POCSO Act regarding the age of the survivor during
examination of witnesses. It is settled law that the presumption u/S
29 is not available in determination of age of the survivor. The
determination of age is guided by the provision of Section 34 of the
POCSO Act. The presumption u/S 29 of the POCSO Act can only be
raised after the prosecution establishes foundational facts, including
the age of the survivor, on the basis of admissible and substantive
evidence. Therefore, as per the established law, it was essential on
the part of the Trial Court to determine the age of the survivor by
following the procedure prescribed in Section 94 of the Juvenile
Justice (Care and Protection of Children) Act, 2015.
Page 13 of 15
2025:MLHC:741-DB
16. From the judgment and order of the Trial Court, it transpires
that the learned Trial Court has placed reliance on the statement of
the medical witness to hold that the appellant had committed sexual
offence. The evidence of medical witness/expert is relevant under
Section 45 of the Indian Evidence Act, 1872, but it cannot take place
of substantive evidence. The narration of factual aspect as to the
incident in relation to the alleged offence recorded during the course
of the medical examination and the opinion of a medical witness is
not direct evidence, but it has corroborative value. It can only
support the grounds of an eye-witness and prove the direct evidence.
In the present case, the evidence of PW-3 is totally silent as to
occurrence of any sexual offence against her and, therefore, the
learned Trial Court was misled in placing reliance on the evidence of
the medical witness.
17. From what has been discussed above, the impugned
Judgement dated 12-03-2020 and related order of sentence dated 10-
07-2020 passed by the learned Special Judge (POCSO), Ri-Bhoi
District, Nongpoh, in Special POCSO Case No. 54 of 2015 cannot
stand scrutiny of law and is hereby set aside and quashed. The
appellant is set at liberty forthwith if he is not wanted in connection
with any other case.
18. The criminal appeal stands allowed.
Page 14 of 15
2025:MLHC:741-DB
19. Let an authenticated copy of this judgment and order be
furnished to the respective parties forthwith.
(B. Bhattacharjee) (H.S.Thangkhiew)
JUDGE JUDGE
Meghalaya
19.08.2025
"Biswarup PS"
Page 15 of 15
Signature Not Verified
Digitally signed by BISWARUP
BHATTACHARJEE
Date: 2025.08.19 17:49:19 IST