Conviction set aside: the child could not identify him, her cousin did not know him, and the teacher who started the case was never called
Justices Vikram Nath and Sandeep Mehta acquit a man sentenced to ten years under Section 6 of the POCSO Act, holding that neither medical jurist could be read in evidence because the defence was never given an effective chance to cross-examine, and that the last-seen theory was a material improvement absent from the FIR.
The allegation was as grave as they come: an eleven-year-old girl with a forty per cent intellectual disability, left alone at home in a village in East Jaintia Hills, sexually assaulted by a man related to the family. A Special Judge under the POCSO Act convicted him in December 2021 and sentenced him to ten years' rigorous imprisonment with a fine of one lakh rupees; the Meghalaya High Court dismissed his appeal in March 2022. On 9 October 2026 a Division Bench of Justice Vikram Nath and Justice Sandeep Mehta set both judgments aside and acquitted him. The judgment, authored by Justice Mehta and marked reportable, opens by saying what the case required: that in a criminal case the prosecution must prove the charge by evidence free from doubt, “and it is with these solemn jurisprudential principles in the back of mind” that the appeal fell to be decided. What the re-appreciation found was a prosecution in which the two witnesses who mattered most could not say who had done it, and in which two doctors gave evidence that no one on the defence side was ever allowed to test.
Ten days to an FIR
The prosecution case was that on 28 May 2015 the victim's mother left the house in the afternoon, leaving the child alone, and that while leaving she noticed the appellant in the adjoining garden plucking mulberry leaves. During the period the child was alone, it was alleged, he entered the house and assaulted her.
After he left, the child went to her cousin's house and stayed overnight. The cousin, finding her disturbed, asked what had happened and was told of the assault. The next morning the cousin told the mother. The mother did not give the allegation much thought, because when questioned the child did not affirm it.
The matter then stayed unreported. In the first week of June the child spoke about the incident at school to her teacher, Ms. Princely, who informed the parents; the mother questioned the child again and this time she narrated the occurrence. The FIR was lodged at Police Station Khliehriat on 8 June 2015 — ten days after the date of the incident, and it is reproduced in full in the judgment because its contents turned out to matter. It is four sentences long. It names the man, gives the child's age as eleven and the date and time of the incident, and asks the police to take necessary action. It says nothing else.
The child was medically examined the same day. The doctor noted injuries in the genital region and opined that the possibility of sexual assault could not be ruled out. Because the FIR came nearly ten days late, no scientific evidence — no serological report — could be obtained. The investigating officer recorded statements under Section 161, had the statements of the child and the cousin recorded before a Magistrate under Section 164, and collected a disability certificate confirming forty per cent intellectual disability. A charge sheet followed under Section 6 of the POCSO Act; the prosecution examined nine witnesses, and the accused examined four, including himself, and produced one document to prove a plea of alibi.
What the mother did not do
The mother deposed that her daughter was eleven, had been studying in Class 1 but had dropped out because of her mental illness, and had been under treatment and on regular medication since she was six. On the day of the incident she had gone out to drop her brother's child at Sutanga, and on leaving had seen the accused plucking mulberry leaves in their garden. On returning she did not find her daughter, and learnt she had gone to her niece's house.
Her cross-examination did two kinds of damage. The FIR, it emerged, had been written by the owner of the hostel where her daughters stayed and read over to her before she signed. She reached home from the weekly market at about 3.45 p.m. and there was no one at the house; the accused came at about 4 p.m. but — on her own account — did not enter the house that day. She admitted she did not get worried on not finding her daughter. She admitted that even after the teacher told her about the incident her daughter disclosed nothing, and that it was only after persistent questioning that she narrated it. She admitted that when she asked the child who had stayed at the house after she left, the child did not reply.
The Bench called the conduct “very unnatural”. Told by her own niece that her mentally impaired daughter had been raped, the mother gave the complaint little credence. A mother's concern on receiving such a complaint would be expected to be heightened, not lowered, by the child's disability; it would not be brushed aside merely because the child did not confirm it. “If at all there had been any iota of truth” in the account that the niece had informed her, the judgment says, the mother would at least have checked the child's physical condition, and specifically the genital area. She did not.
The cousin who could not pick him out
The cousin's examination-in-chief was straightforward: she went to the house on 28 May 2015, saw the victim and the accused eating kwai, and after he left the victim told her of the assault. She took the child to her own house, cleaned and washed her, and kept her overnight.
Cross-examination, the Court found, “completely destroy[ed] the credibility of her version”. She said she did not know the accused and could not recollect his face; that the name had been told to her by the victim's mother; that if the man came to her house she would not be able to recognise him; and that she did not know how the mother knew who had committed the crime.
The Public Prosecutor re-examined her, and it made things worse. She stated that on the day in question she saw the victim and one man eating kwai, and that her statement in chief naming the accused “is not correct”. Asked to look around the courtroom and the dock to identify the accused, she could not. No effort whatsoever, the judgment records, was made to confront her with her statement recorded under Section 164.
There was a further point on her evidence that cut the other way too. If she had washed and cleaned the child, marks of sexual violence would not have gone unnoticed — and the mother would certainly have been told of them.
The victim's cross-examination
The victim deposed that the accused was her uncle, the eldest brother of her father; that her mother had gone out and she was alone; that when she went to feed the pigs he came, pushed her into her mother's bedroom and assaulted her until she bled; and that she then went to her cousin's house.
In cross-examination she said she had met the Special Prosecutor before coming to court and that he had told her what to say. She said that when the accused came to the house she and her mother were both present, and separately that when she was raped she was alone. She said he came only once, that she had forgotten his face, and that her mother had told her his name. Asked to identify the man who had come to her house and raped her, she said she could not remember the face, as it had happened a long time back, and that she had never seen him again.
The prosecution had not asked her to identify the accused in her examination-in-chief at all. The defence put the question in cross-examination and got a negative answer; neither the Public Prosecutor nor the Presiding Officer then re-examined her to meet it, and again no attempt was made to confront her with her Section 164 statement.
The Bench was explicit that latitude was due. “We are conscious of the fact that the victim was a mentally challenged girl and as such, a certain degree of latitude would have to be given while appreciating her evidence.” But even after that deference, there was a complete failure to identify the accused in court; and with no scientific corroboration available because of the ten-day delay, it would be unsafe to rest a conviction on her testimony. The admission that she had been instructed on what to say, read with the inconsistency about how the accused was related to the family — her father's eldest brother on her account, the husband of her mother's brother's sister-in-law on her mother's — created a doubt that she may have been tutored.
Two medical jurists, and no cross-examination of either
This is the part of the judgment with the longest reach beyond the case.
The first medical jurist deposed that she had noted injuries on the victim's genital region and that there were signs suggestive of forceful vaginal penetration. When the turn came to cross-examine her, the defence counsel was not available. The accused was asked whether he wanted to cross-examine, and said his counsel was out of station and that only counsel would be in a position to do it effectively. The trial court neither provided legal aid nor deferred the cross-examination.
The second medical officer was worse served: on the record, the trial court “did not even offer the opportunity of cross-examination to the defence counsel”.
The conclusion is flat. The testimony of both medical jurists cannot be read in evidence, because the defence was not given an effective opportunity of cross-examining either. The Court was careful to say that the partial deposition undoubtedly indicated injuries suggestive of sexual assault — but the evidence remained untested, “not on account of any waiver by the accused”, and so could not be used.
Mulberry leaves are not a last-seen circumstance
The Advocate General argued that because the mother had last seen the appellant in the garden adjoining the house, with the child alone inside, he had exclusive knowledge of her solitary presence and the burden shifted to him under Section 106 of the Evidence Act.
The Bench called that submission “absolutely farfetched and unconvincing”. On the mother's own sworn testimony she merely saw the accused plucking mulberry leaves before she left; she nowhere stated that the victim was with him, or that the two were seen together at any point. There was therefore no last-seen circumstance to speak of, and no question of shifting the burden of proof.
Worse for the prosecution, the last-seen theory appeared to be a material improvement on the FIR, which levels no such allegation. An FIR is not expected to be an encyclopaedia — but where a circumstance later relied upon is a material incriminating fact forming the very foundation of the case, its omission from the earliest version assumes considerable significance, and an unexplained improvement at trial loses much of its evidentiary fervour. The Court drew on Amar Nath Jha v. Nand Kishore Singh, (2018) 9 SCC 137, where the omission of a material witness's name from an FIR registered three hours after the incident pointed to suspicion that the crime may have been staged, and on Ram Kumar Pandey v. State of M.P., AIR 1975 SC 1026, where omissions of important facts affecting the probabilities of the case were held relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution. Here two things were missing from an FIR lodged ten days late: that the mother had seen the accused near the house, and that her niece had told her of the incident the very next day.
The teacher who was never called
It was the disclosure to the school teacher that led the mother to go to the police after ten days of inaction. The teacher was never examined, and no explanation was offered for not examining her.
Relying on the three-Judge decision in Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, the Bench held that while the prosecution need not examine every witness cited, it is under a duty to examine those whose evidence goes to the root of the matter; and where a material witness capable of throwing light on the genesis of the occurrence is withheld without plausible explanation, the court is justified in drawing an adverse inference. What exactly the child disclosed to her teacher, and why the FIR was delayed, were both material facts only that witness could speak to. The adverse inference was drawn.
The alibi, and the order
The Court noted that the appellant had been candid in his defence. He took the risk of asking the victim the identification question in cross-examination, and he went further, putting himself in the witness box and examining three more witnesses in support of a plea of alibi. On the statements of the defence witnesses, supported by documentary evidence, the Bench found that credible evidence had been given to prove the alibi — that he had gone to another village in connection with a property transaction — and that the trial court and the High Court had “very lightly brushed aside this palpable defence evidence”, which was not at all justified.
Cumulatively, then: the unnatural conduct of the mother; the significant delay in the FIR; the failure of both the victim and her cousin to identify the accused in court; contradictory versions of how he was related to the family; the non-examination of the teacher; and defence evidence placing him in another village. Taken together, these circumstances made it wholly unsafe to sustain the conviction.
The courts below, the judgment holds, fell into error in relying on the wavering testimony of the informant, her niece and the victim; the evidence on record “falls woefully short of the standard required”. The conviction and sentence of 7 December 2021 and the High Court's judgment of 29 March 2022 were set aside. The appellant was acquitted of the charges and, being in custody, directed to be released forthwith if not wanted in any other case. The appeal was allowed and pending applications disposed of.