Gauhati High Court - Itanagar
Tap Tassar (Convict) vs The State Of Ap And Anr on 13 November, 2025
Page No.# 1/31
GAHC040014072023 2025:GAU-AP:1265
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./31/2023
Tap Tassar (Convict)
Son of Late Tap Tei, Resident of Sektap village, P.O Boasimla, District Kamle,
Arunachal Pradesh. (Convict is undergoing sentence at District Jail, Ziro), Contact
No. 7085580558
VERSUS
The State of AP and Anr.
represented by Public Prosecutor
2:XYZ (Informant/Victim)
Age: 0
Occupation :
C/o Child Welfare Committee
Itanagar
District Papum Pare
Arunachal Pradesh 79111
Advocate for the Petitioner : Subu Koyang, Ugin Puri,Radhe Yakang
Advocate for the Respondent : P P of AP, Legal Aid Counsel,Jaya Doji
Page No.# 2/31 BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA JUDGMENT & ORDER (CAV) Date : 13-11-2025 Heard Mr. S. Koyang, learned counsel appearing for the appellant. Also heard Ms. T. Jini, learned Addl. PP for the State respondent and Ms. J. Doji, learned counsel for the respondent No. 2 (Informant/Victim).
2. This Criminal Appeal under Section 374(2) of the Cr.P.C., 1973 challenging the Judgment and Order dated 15.09.2023 and the Order of Sentence dated 18.09.2023 passed in Sessions Case (Z) No. 04/2022 in Raga P.S. Case No. 11/2021 under Section 376(2)(f) of the Indian Penal Code (IPC) read with Section 10/11 of the Prohibition of Child Marriage Act, 2006, whereby the accused appellant has been convicted under Section 376(2)(f) of IPC passed by the learned Sessions Judge, Lower Subansiri /KurungKumey/ KraDaadi/ Kamle Districts, Head Quarter, Ziro, Arunachal Pradesh (hereinafter referred to as Sessions Court, Ziro) thereby the accused appellant was sentenced to undergo Rigorous Imprisonment (RI) for a term of ten (10) years and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo further imprisonment for three (3) months.
3. The facts relevant for consideration in the instant Criminal Appeal, in brief, are as follows:-
(i) That on 16.03.2021, Ms. XYZ (real name of the victim is withheld) filed an FIR against one Shri Tap Tassar (Gaon Burah) of Sektap Village, Raga before the Officer-in-Charge, Itanagar Women Police Station (IWPS), Arunachal Pradesh, inter alia, alleging that Shri Tap Page No.# 3/31 Tassar who is the maternal grandfather as well as father-in-law of Ms. XYZ has been raping her for the last 3-4 years; that her mother died when she was an infant and her father got remarried and she was given away by way of a child marriage to her step mother's brother who later got married to an another woman; that her father-in-law forcefully raped her after tying her hands and legs; that the rape for the first time occurred when she was yet to reach puberty and later, it became a daily schedule for aforesaid Tap Tassar, who repeatedly raped her on daily basis; that she was also raped one week before the lodging of the FIR; that unable to tolerate anymore, she fled her home and came to Itanagar and filed the instant FIR.
(ii) On receipt of the aforesaid FIR, Itanagar Women P.S. Case No. 00/2021 (Ziro FIR) under Section 376AB read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO') was registered. Thereafter, the then O.C., IWPS forwarded the FIR to SP, Kamle, as the place of occurrence falls under the jurisdiction of Raga Police Station. Thereafter, on 05.05.2021, the then O.C. P.S. Raga re-registered the case as Raga P.S. Case No. 11/2021 under Section 376 IPC read with Section 6 of POCSO Act against her father Sri Pegmir Tapuk had given her to one Shri Tap Tagia, the son of the accused appellant in child marriage, Section 10/11 of Prohibition of Child Marriage Act, 2006 have been registered against the aforesaid Sri Pegmir Tapuk.
(iii) Upon getting the endorsement from the O.C. P.S. Raga, Inspector Sri Ige Lollen carried out the preliminary investigation. It may be Page No.# 4/31 worthwhile to mention herein that after the filing of the FIR and registration of the IWPS Case No. 00/2021, the Informant was taken to TRIHMS, Naharlagun for medical examination but she refused any physical examination despite counselling by the Doctor. Thereafter, her statement under Section 164(5A)(a) of Cr.P.C before the learned Chief Judicial Magistrate, Yupia was recorded. During the investigation, the I.O. collected the Birth Certificate and the Electoral Voter Identity Card (EPIC Card), which revealed that she was born on 10.08.1995 and thereby, it made the Informant 25 years 6 months and 16 days at the time of filing of the FIR.
(iv) Ultimately, after the completion of the investigation, Charge sheet was filed under Section 376AB, IPC read with Section 6 of POCSO Act, 2012 against the appellant, Sri Tap Tassar and under Section 9/10 of Prohibition of Child Marriage Act, 2006 against the father of the Informant, i.e. Sri Pegmir Tapuk.
(v) Thereafter, ultimately, charges against the appellant under Section 376(f), IPC and under Section 10/11 of Prohibition of Child Marriage Act, 2006 against the aforesaid Sri Pegmir Tapuk were framed dropping the charges under Section 6 of POCSO Act, after due consideration of the arguments of the the respective counsel for the parties appearing for them. Since both the appellant and the aforesaid Sri Pegmir Tapuk pleaded not guilty and claimed to be tried, the trial proceeded against them.
(vi)The prosecution examined as many as 8 prosecution witnesses to bring home the charges against the appellant and aforesaid Sri Pegmir Tapuk.
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(vii)The appellant and the aforesaid Sri Pegmir Tapuk were examined on 27.03.2023 under the provisions of 313 Cr.P.C., wherein, both denied all the allegations. The appellant stated that the Informant was dropped at his house by her father Sri Pegmir Tapuk to look after her but it is false that the Informant was married to his son Sri Tap Tagia. He further stated that he had not committed rape on the Informant. Sri Pegmir Tapuk had also stated that he never sold his daughter or married her off to Sri Tap Tagia.
(viii)The appellant as well as the aforesaid Sri Pegmir Tapuk did not adduce any evidence in their defence.
(ix) Ultimately, by the Judgment and Order dated 15.09.2023 and Order of Sentence dated 18.09.2023, the learned Sessions Court, Ziro convicted the appellant under Section 376(2)(f), IPC and sentenced him to undergo R.I. for a term of ten (10) years and to pay a fine of Rs.5,000/-(Rupees Five thousand) only, in default of payment of fine, to undergo further Simple Imprisonment (S.I.) for three (3) months whereas the aforesaid Sri Pegmir Tapuk was discharged of the charges framed against him under Section 9/10 of the Prohibition of Child Marriage Act, 2006.
4. At this stage, before considering the rival submissions made by the learned counsel for the respective parties, it would be important to consider the evidences adduced by the prosecution witnesses, during the trial which are available on record.
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5. The prosecution has examined the Informant, Ms. XYZ as PW 1. She recognized the appellant as Tap Tassar and the accused No. 2 Pegmir Tapuk as her father. She deposed that in March, 2021, she went to Oju Mission, Naharlagun from her village Sektap and reported some women in Oju Mission about her sexual exploitation by the appellant. Thereafter, with the help of those women, she lodged the FIR before the IWPS against the appellant. She deposed that when she was a small kid, her father gave her marriage to Sri Tap Tagia, the son of the appellant. She deposed that she stayed with the aforesaid Tap Tagia as his wife for few months, however, Tap Tagia married another woman and later on, shifted to his wife's village called Basscamp. She deposed that in the same month, when her husband Tap Tagia left with his wife, the appellant Tap Tassar by chasing his wife away and after confining her to his room, assaulted her with a stick and thereafter, tearing her clothes with a knife committed rape on her. She deposed that hearing her scream, one old man named Viki Tach tried to help her but when his wife stopped him, he did not interfere. She deposed that she cried for about 2(two) days but the brothers and relatives of the appellant did not support her. She deposed that she started staying with the appellant as his wife but the appellant continued to torture her by assaulting her with sticks and knives. She deposed that she came to know later that her father, Sri Pegmir Tapuk was threatened by the appellant and his associates that if he did not give her in marriage to Tap Tagia they would kill him and throw his body into the river. She deposed that the appellant used to suspect her of sleeping with other guys and once the appellant assaulted one Adivasi Mistri alleging him falsely of sleeping with her. She deposed that the appellant used to harass her by snatching her hard-earned money and Page No.# 7/31 accused her of giving him cold food. She deposed that at Raga, she heard about Oju Mission and therefore, came to Naharlagun by a Sumo vehicle and reported about her torture to the madams available there. She deposed that hearing her story, she was taken to the Police Station in Itanagar and she filed the complaint against the appellant. She deposed that she had given her statement before the Magistrate at Court. She further deposed that she was also taken to the Hospital by the Police. She deposed that while staying at the residence of the appellant, she never wanted to have any physical relationship with the appellant. However, the appellant used to torture her and forcibly have sex with her. She further deposed that the appellant had sexually assaulted her even before she started having her menstruation. During her examination, she admitted Exhibit-P1(a) as her thumb impression/RTI. She admitted Exhibit-P2 as her statement under Section 164 Cr.P.C. before the Magistrate and Exhibit P-2(a) as her RTI. She also admitted Exhibit P-3 as her medico legal examination and Exhibit P- 3(a), (b) and (c) as her thumb impressions. She admitted Exhibit P-4 as her Aadhar Card and Exhibit P-5 as her EPIC Card.
During her cross-examination by the counsel for the appellant, the PW1 deposed that the date of birth written in her Aadhar Card (Exhibit P-4) is correct and her date of birth is 10.08.1995. She deposed that after her marriage with Tap Tagia as he was residing at Sektap, she stayed with Tap Tagia for few months. She deposed that Smti Viki Kampu, the sister of the appellant and her brother Pegmir Kyokam knew about her marriage to Tap Tagia. She deposed that though she belonged to Christian community her marriage was neither solemnized in any church nor under any customary practice as per Nyishi tribe. She deposed that she could not say as to how many years, she stayed at the residence of the Page No.# 8/31 appellant. She deposed that she was raped by the appellant about one year back for the first time at midnight at 12.00 PM. She deposed that she did not allow the Doctor to check her by opening her cloths but the Doctors examined her over the cloths. She deposed that it was not a fact that for fear of being caught of having an affair with a non tribal person, she did not allow the Doctor to examine her. She deposed that Viki Tach told her that he wanted to help her but was stopped by Viki Kampu. She deposed that she used to run away to the jungle at night and used to come back voluntarily in the mornings. She deposed that the appellant and his relatives had threatened her father Pegmir Tapuk in her presence to give her in marriage to Tap Tagia or else they would kill him and throw him in the river. She deposed that at the time of aforesaid threatening, the wife and children of the appellant were also present. She deposed that after committing rape on her, the appellant injured her with his dao and she still has scar marks on her body, though, she did not examined herself in any Hospital. She also deposed that she did not lodge any complaint for such assaults by the appellant. She deposed that she came to Itanagar by a Sumo with the daily wages earned by her by breaking stones. She deposed that she did not have any evidence to prove that she was married to the appellant Tap Tasar. She denied that just to escape from the house of the appellant, she had deposed falsely that she had been raped and tortured by the appellant. She denied that she had been instructed by someone to run away from the residence of the appellant. She deposed that she had visited Itanagar earlier also to the house of the appellant's daughter. She further deposed that she had heard about Oju Mission of giving shelter to woman facing atrocities in the Raga village itself.
During her cross-examination by the counsel for the accused No. 2, i.e. Pegmir Tapuk, the Informant deposed that she had stated before the S.I. of IWPS that she and Tap Tagia lived as husband and wife but he got married to another lady.
Page No.# 9/31 She admitted to have stated before the Magistrate that by the time she was taken to the residence of Tap Tagia, he was already married to another girl. She further admitted that her father had not handed her over to the appellant to be the wife of Tap Tagia, rather, only to look after the children of Tap Tagia, her father handed her over to the appellant.
6. PW2, Smti. Tap Ekha is the wife of the appellant. She deposed that she recognized the appellant and the other person standing on the dock. She deposed that the accused persons are Sri Tap Tassar, her husband and Sri Pegmir Tapuk, her son-in-law. She deposed that after the death of the mother of the Informant, she bought her to her village at Sektap and looked after her as a mother. She deposed that the Informant was accompanied by her father to drop her at her village by walking. She deposed that the Informant ran away from her house saying that she would be going to the market. She deposed that the Informant ran away from her house after staying in her house for 5 years, however, she did not know her exact age. She deposed that the Informant was brought to her house when she was about 2 years' old. She deposed that she was unaware about the whereabouts of the Informant and though she tried to search for her, she could not find her. She deposed that as per her knowledge, no offence was committed on the Informant by the accused persons. At that stage, the witness was declared hostile on a prayer made by the learned PP.
On her cross-examination by the PP, PW2 deposed that she did not state before the Police that the Informant was brought by her father to her house as wife of her son Tap Tagia. She deposed that Tap Tagia and Puri Yaya are staying in basscamp since long. She denied that the appellant and the Informant had Page No.# 10/31 physical relationship. She denied that the Informant was staying as daughter-in- law and looking after household responsibilities. She denied that she was deposing falsely to protect the appellant. She deposed that she was not aware if the Informant had alleged the appellant of committing rape on her.
The defence counsel for both the accused have declined to cross-examine PW. 2.
7. PW 3, Sri Tap Tagia is the son of the appellant and he recognized the appellant as his father and the accused No. 2, Pegmir Tapuk as his brother- in-law. PW 3 deposed that the Informant was staying at his mother's house since she was a small child and brought by her father Pegmir Tapuk. He deposed that the Informant used to call him as elder brother and he used to treat her as his younger sister. He deposed that he had been staying at Basscamp for the last 19 years after his marriage. He deposed that the appellant reported him about the missing of the Informant and he even went looking for her but could not find her. He deposed that he did not know why the Informant left his mother's house. He deposed that he never gave statement to the Police. He deposed that he heard from his father, the appellant that the Informant who is now at Oju Mission had lodged a complaint against the appellant for raping her. He deposed that on being asked by the Police, he handed over the Election card of the Informant to the Police. He denied that he was deposing falsely to protect the appellant, his father. He admitted Exhibit P-6 as the seizure memo of the Election Voter Identity Card of the Informant, Exhibit P-6 (a) as his signature and Exhibit P-7 as the birth certificate of the victim girl. He admitted Exhibit M-1 as the original EPIC card of the Informant.
Page No.# 11/31 During cross-examination by the counsel for the appellant, PW 3 deposed that the Informant was brought to their village when she was about 4 years' old. He deposed that since the parent of the Informant are their relatives, after the expiry of the Informant's mother, his mother brought her to their house to look after the Informant. He deposed that he did not know if the Informant had any love affair with any labourer.
During the cross-examination by the counsel for accused No. 2, i.e. Pegmir Tapuk, he deposed that he had stated before the Police as to how the Informant was brought to their house. He further deposed that he was interrogated by the Police with regard to the instant case.
8. PW4, Smti Tap Yaya is the wife of Tap Tagia (PW3). She deposed that in the year, 2003 when she shifted to Sektap village at her husband's house after the marriage, she saw the Informant there and she thought that her father-in-law, the appellant had kept the Informant as his daughter in his house. She deposed that she shifted to her maternal house at Basscamp with her husband and later on, she heard that the Informant left the house of the appellant with an excuse of buying a Pepsi and never came back home. She deposed that she was not aware why the Informant left her house. She deposed that as per her knowledge, the Informant was not the wife of the appellant. She deposed that as per her knowledge, the deceased mother of the Informant had handed over the Informant to the wife of the appellant to keep her as her daughter. She further deposed that she was unaware whether Pigmer Tapuk did ritual of Nyida for the victim and the appellant.
During cross-examination by the counsel for the appellant, PW 4 deposed that the Page No.# 12/31 Informant used to call her husband Tap Tagia as elder brother and she saw her husband treating the Informant as his younger sister. Cross examination was declined by counsel for the accused No. 2, Pigmer Tapuk.
9. PW5, Shri Tap Topu has recognized the appellant as well as the accused No. 2, Pegmir Tapuk. He deposed that after the death of the Informant's mother, the Informant was handed over to the appellant by her father to bring up her as his child. He deposed that when the Informant was handed over to the appellant though she was very small she could walk by herself. He deposed that the Informant was not brought as the wife of Tap Tagia.
During her cross-examination by the counsel for the appellant, the PW5 deposed that the appellant tried to get the Informant admitted in School but he was not aware why she was not admitted.
During his cross-examination by the counsel for the accused No. 2, Pegmir Tapuk, he deposed that Pegmir Tapuk is the son-in-law of the appellant Tap Tassar.
10. PW 6, S.I. Napho Wangsa deposed that on 05.05.2021 while he was the O.C./PS, Raga, he received one complaint letter forwarded from O.C./IWPS. He deposed that after registering the case under Section 376 (a) IPC read with Section 6 of POCSO Act, he visited the place of occurrence to arrest the accused persons but he could not find them there. He deposed that later on, he was directed by the SP, Kamle to hand over the case to Inspector, Ige Lollen. PW. 6 identified the FIR (Exhibit P-1). He also admitted his signature on the FIR as Exhibit P-1 (b). He also admitted Exhibit P-8 (a) as his signature. He admitted Exhibit P-9 as the extract copy of the FIR and Page No.# 13/31 Exhibit P-9(a) as his signature on that.
The counsel for the appellant declined cross-examination of PW. 6.
During cross examination by the accused No. 2, Pegmir Tapuk, PW 6 deposed that while receiving the FIR, he did not receive any Aadhar Card or Election Card of the Informant annexed to the FIR. He admitted that no documents to prove the age of the Informant was annexed with the FIR.
11. PW 7, Sri Puri Tada deposed that Inspector Lollen came to his residence at Basscamp to make him the seizure witness of documents seized from the possession of Tap Tagia. He deposed that he saw Tap Tagia handing over the Birth Certificate of the Informant and also the Election Photo Identity Card to the Police. He admitted his signature exhibited as Exhibit P-6 (b) on the seizure memo of the original Birth Certificate of the Informant. He admitted P-7 as the seized birth certificate of the Informant and Exhibit M-1 as the seized Election card of the Informant.
The counsel for the appellant has declined cross-examination of PW. 7.
During cross-examination by the counsel for the accused no. 2 Pegmir Tapuk, he deposed that he felt that the Birth Certificate seized from the possession of Tap Tagia was a laminated one. He denied the suggestion that a different Birth Certificate was shown to him from the one that was seized by the Police in his presence.
12. PW 8 Shri Ige Lollen recognized both the appellant as well as the accused no.2. He deposed about the brief facts of the FIR that was received Page No.# 14/31 on 05.05.2021 to the effect that the appellant had raped the Informant since the last 3-4 years. He deposed that the Informant was married to Tap Tagia. He deposed that the appellant forcefully raped her and the first rape happen before she reached her puberty and thereafter, she was repeatedly raped by the appellant on daily basis. He further deposed that even one week before lodging of the FIR at IWPS, she was raped by the appellant and unable to bear the torture anymore, she fled away from the house. He deposed that after filing of the FIR at IWPS, a case was registered vide IWPS Case No. 00/2021 under Section 376AB IPC read with Section 6 of POCSO Act and thereafter, forwarded the same to the SP, Kamle. He deposed that the case was re-registered as Raga P.S. Case No. 11/2021 under Section 376 IPC read with Section 6 of POCSO Act. He deposed that SI Napo Wangsa, initially took up the investigation and later on, same was entrusted to him. He deposed that the Informant was examined at Child care Institute, Oju Mission, Naharlagun on 02.07.2021 in presence of her elder sister and recorded her statement under Section 161 Cr.P.C. He deposed that during the investigation, he found that when the Informant was very small, her father sold her on child marriage to Tap Tagia. He deposed that Tap Tagia was much older than her and later he married a different girl and shifted to Basscamp village. Thereafter, the Informant stayed with the appellant as his wife. He deposed that the Informant did not remember the date or year when the appellant forcefully had sexually intercourse with her and at that time, her menstruation did not start. He deposed that the appellant used to suspect her of having sexual relationship with other persons and so she left her village and came to Itanagar. He deposed that while the Informant was in Child Care Institute, Oju Mission, Page No.# 15/31 she was forwarded to TRIHMS, Naharlagun for medical examination by the O.C. IWPS and as per the medial legal certificate, the Informant refused any physical examination of her despite repeated counselling. He deposed that he seized the original Birth Certificate and the Election Photo Identity Card of the Informant on being produced by Tap Tagia. He deposed that as per the Birth Certificate, the age of the Informant was 25 years 6 months and 16 days as on the date of lodging of the FIR at IWPS on 16.03.2021. He deposed that the statement of the Informant was recorded under Section 164 Cr.P.C. before the CJM, Yupia on 09.06.2021. He deposed that the appellant was arrested on 19.05.2021 and his statement was recorded under Section 161 Cr.P.C. He deposed that on examination, the appellant admitted that the accused no. 2 took two (2) Mithuns from him as loan for treatment of his wife many years back but he could not return the said loan and offered daughter Ms. XYZ's sister on child marriage to his son Tap Tagia, however, since she refused the marriage, he gave the Informant, XYZ on child marriage to Tap Tagia who was around 6-7 years at that time. Later on, his son Tap Tagia fell in love with Ms. Puri Yaya and got married in 2003 and shifted to village Basscamp. In the year 2015, he had physical relationship with the Informant and after that, she stayed with him as his second wife. The Appellant found the Informant missing and one of his labourer was also missing on 23.02.2021 for about an hour. She had illicit relationship with the labourer. Therefore, he had beaten her. However, in the next morning, Shri Pegmir Tapuk came and the matter was resolved. Then on 05.03.2021, the Informant went to village Yatap for shopping and did not return.
Page No.# 16/31 PW8 further deposed that he examined all the available witnesses and recorded their statements under Section 161 Cr.P.C. He deposed that all the available witnesses admitted that the Informant was subjected to child marriage with Tap Tagia. He deposed that after Tap Tagia married a girl of his choice and shifted to another place, the appellant kept the Informant as his second wife. He further deposed that he visited the place of occurrence on 05.05.2021 but no physical evidence was found. He deposed that the investigation revealed that the Informant was subjected to child marriage when she was around 6-7 years old, by her father Shi Pegmir Tapuk to Tap Tagia, the son of the appellant. Later on, after he married another girl, shifted to Basscamp village, however, the Informant continued to stay with the appellant and his first wife at village Sektap. He deposed that as per the Informant, the appellant raped her when she was yet to get into the menstrual cycle. He deposed that the Informant was staying as his second wife and fled away from the village in the month of March, 2021. He deposed that the investigation revealed that the appellant had committed offence under Section 376 AB of the IPC read with Section 6 of POCSO Act, 2012 read with Prohibition of Child Marriage Act, 2006 and the accused no. 2, Shri Pegmir Tapuk, the father of the Informant, committed offence under Section 10/11 of Prohibition of Child Marriage Act, 2006. He deposed that finding prima facie case against the appellant as well as the accused no. 2, he filed the Charge-sheet. He admitted that exhibit P-6 has the seizure memo of original Birth Certificate and the election identity card of the Informant which he seized and Exhibit P-6(c) as his signature on it. He admitted Exhibit P-7 as the original Birth Certificate of the Informant, Exhibit P-10 as the forwarding letter addressed to the Special Judge (POCSO) with prayer for recording statement of the Informant before the Magistrate and Exhibit P-10(a) as his signature on that. He further admitted Exhibit P-11 as the Charge-sheet and Exhibit P-11(a to e) as his signatures on it. He admitted Exhibit M-1 as the original EPIC card of the Informant.
Page No.# 17/31 During cross examination by the counsel for the appellant, PW-8 admitted that he had seized the original Birth Certificate and the EPIC card on 12.05.2021 and it was a fact that at the time of lodging the FIR, the age of the Informant was found to be 25 years 6 months, which he had mentioned in the charge-sheet. He admitted the fact that the age of the Informant as mentioned in the FIR to be of 17 years is false. He also admitted that 3-4 years prior to the lodging of the FIR, during which time the Informant was alleged to have been raped by the appellant, she was 21-22 years' of age as per her Birth Certificate. He admitted that the Informant stated before the Magistrate that she did not know her age and the Magistrate accordingly, recorded that the age of the Informant was not known. He admitted that as per MLC report, the Informant denied to be examined herself by doctors in spite of repeated counselling. He admitted that none of the witnesses stated that rape was committed and the physical relation between the Informant and the appellant was consensual. He admitted that the Informant was already a major in the year 2016-17. He deposed that during the investigation, it was revealed that the Appellant was involved in child marriage of the Informant.
During cross examination by the counsel for the accused no. 2, Pegmir Tapuk, PW-8 admitted that except the statement of the Informant, he could not gather any evidence to prove the child marriage. He denied that he had filed the Charge- sheet wrongly against the accused persons under the Prohibition of Child Marriage Act, 2006. He denied the suggestion that the Informant did not state before him that she was given in child marriage with Tap Tagia.
13. As mentioned earlier, during the appellant's examination under Section 313 of the Cr.P.C. 1973, the appellant pleaded his innocence and denied the truthfulness of the prosecution story. The appellant denied of committing rape on the Informant. He also denied that the Informant was given Page No.# 18/31 marriage to his son Tap Tagia.
14. The learned Trial Court, after due examination of the evidences brought on record, has come to a finding that no offence under the Prohibition of Child Marriage Act, 2006 could be established by the prosecution against the appellant as well as the accused no. 2, Shri Pegmir Tapuk.
15. The learned Trial Court, after detailed consideration of the evidences brought on record, has come to a finding that the statement of the prosecutrix supports the proposition of the prosecution and the foundational fact of the appellant committing sexual intercourse with the Informant. The learned Court relied on the case of Rai Sandeep @ Depu Vs. The State (NCT) of Delhi, reported in (2012) 8 SCC 21, which laid down the standard as who should be said to be a "sterling witness". The learned Trial Court has also relied on the case of Krishna Kumar Malik Vs The State of Haryana, reported in (2011) 7 SCC 130, wherein, the Hon'ble Supreme Court observed that the accused can be guilty of commission of an offence of rape if the solitary evidence of the prosecutrix is sufficient, provided that same inspire confidence and appear to be absolutely trustworthy, unblemished and of sterling quality. The learned Trial Court came to the finding that the evidences led by the prosecution are reliable, trustworthy and conceivable that the appellant had committed the offence as alleged. Accordingly, the Trial Court passed the impugned Judgment & Order dated 15.09.2023 and the Sentence Order dated 18.09.2023.
16. Mr. S. Koyang, learned counsel appearing for the appellant, submits that the impugned Judgment & Order dated 15.09.2023 and the Sentence Page No.# 19/31 Order dated 18.09.2023 suffer from manifest illegality, which had resulted in failure of justice and therefore, the same is not sustainable under the law. He submits that the learned Trial Court passed the Judgment and Order in a mechanical manner without properly appreciating the evidences on record and without taking into account the contradictions existed in various statements of the Informant as well as other witnesses. The learned counsel asserted that the FIR was filed by the Informant giving false information regarding the commission of the offence by the appellant and she had filed the FIR falsely by stating her age to be 17 years at that time whereas, the investigation revealed that she was more than 25 years of age at the time of filing of the FIR. He submits that the very basis of the filing of the FIR is incorrect and the Informant had adopted falsehood by suppressing her exact age.
17. The learned counsel for the appellant submits that the learned Trial Court had solely relied on the statement of the Informant to convict the appellant, treating her statement to be of a sterling witness. He submits that in view of many contradictions and false statements, which were not corroborated by any of the Prosecution witnesses, the Informant could not have been termed as a "sterling witness". He submits that there was total absence of any quality in the statements of the Informant to be treated as of sterling witness. He submits that the Hon'ble Apex Court has in catena of cases, laid down the principles and standard for treating one as sterling witness. He submits that the statement or evidence put forwarded by the witness must be of very high quality and calibre and the same should be unassailable. He submits that the statement of the witness should be consistent from the starting point to the end to be treated as sterling Page No.# 20/31 witness. In the instant case, he submits that the Informant at the very beginning, while lodging the FIR had suppressed her age by stating her age to be of 17 years, whereas, she was more than 25 years of age at that point of time. He further submits that there are many inconsistencies in her statements from the process of filing of the FIR till the end of the Trial.
18. The learned counsel for the appellant submits that the learned Trial Court failed to appreciate the material contradictions with regard to her deposition that she stayed with Sri Tap Tagia as his wife for few months and thereafter, he married to another lady and shifted to Basscamp village, whereas, she contradicted the same in her statements recorded under Section 164 Cr.P.C., wherein she had stated that Tap Tagia was much older than her and he was already married when she went to his house. Therefore, the learned counsel submits that the version of the Informant is not at all trustworthy. He submits that the statement of the Informant is not reliable as the evidence is full of contradictions and inconsistencies. Therefore, he submits that the conviction of the appellant on the basis of statements containing such contradictions and inconsistence is not tenable in law.
19. The learned counsel for the appellant submits that another material inconsistency which is apparent is that the Informant in her FIR mentioned that the appellant raped her for the last 3-4 years, whereas, the Informant had contradicted her own statement by stating in cross -examination that she was raped by the appellant about one year back for the first time at midnight 12.00 pm. The learned counsel submits that with such glaring inconsistencies, the learned Trial Court should not have relied on the Page No.# 21/31 allegation of rape by the appellant without any other corroborating evidence of such rape and thereby should not have convicted the appellant. Therefore, he submits that the impugned Judgment & Order is liable to be set aside and the appellant should be acquitted.
20. The learned counsel for the appellant submits that the learned Trial Court failed to appreciate the fact that the Informant refused any physical examination of her by the doctors in spite of repeated counselling by the doctors. He submits that it is not possible to prove a rape case without the Informant's medical examination, in absence of any eye witnesses. Therefore, he submits that the conviction of the appellant in absence of medical examination of the Informant is liable to be quashed in the interest of justice.
21. The learned counsel for the appellant submits that none of the witnesses, including PW-2 to 7, has corroborated the claim of the Informant that she was raped by the appellant. Therefore, he submits that the prosecution has miserably failed to prove their case based on any cogent and reliable evidence. He submits that the Trial Court, by convicting the appellant solely on the evidence of the Informant which is full of contradictions and inconsistencies, should not have convicted the appellant without any further corroboration.
22. The learned counsel appearing for the appellant has relied on the case of Ram Maruthi Pawar vs. State of Maharashtra & Another, reported in (2009) 12 SCC 406 and submits that the Hon'ble Apex Court has acquitted the accused wherein, the conviction was made solely on the basis of evidence which is full of contradictions. The learned counsel for the Page No.# 22/31 appellant has also relied on the case of Rai Sandeep @ Depu Vs. The State (NCT) of Delhi, reported in (2012) 8 SCC 21 and submits that the learned Trial Court had wrongly appreciated the ratio laid down in the case of Rai Sandeep (Supra). He submits that the Hon'ble Apex Court had rejected the prosecutrix as the sterling witness, because, she failed to pass the test for sterling witness mentioned in the case. The Hon'ble Apex Court observed that when there exists total variation in her version from what was stated in the complaint and what was deposed in the Court at the time of Trial, along with other material variations, the prosecutrix could not have been termed as the "sterling witness". Therefore, he submits that the learned Trial Court should not have treated the deposition of the Informant as of sterling quality of a sterling witness and thereby, relying solely on her deposition, should have convicted the appellant.
23. In view of the aforesaid submissions, the learned counsel for the appellant submits that this is a fit case wherein, this Court should interfere and set aside and quash the impugned Judgment & Order dated 15.09.2023 and the Order of Sentence dated 18.09.2023.
24. Whereas, Ms. T. Jini, the learned Addl. P.P. submits that there is no mistake committed by the learned Trial Court in convicting the appellant solely on the basis of the evidence of the Informant, who is a victim of rape. She submits that there may be certain variances in the statements and depositions of the Informant but, the same cannot take away the prosecution's story that the Informant was raped for several occasions by the appellant. She submits that the statements of the Informant, under Section 164 of the Cr.P.C., corroborates the contents and allegations in the Page No.# 23/31 FIR. She submits that the defence had miserably failed to bring on record any material and/or evidence to show the innocence of the appellant and the whole circumstances surrounding the case, points finger to the guilt of the appellant. The learned Addl. PP further submits that there is no motive or intention that could be derived from the materials as to why the Informant, who was given shelter by the family of the appellant, would accuse the appellant falsely for a heinous crime such as rape.
25. The learned Addl. P.P., while relying on the case of Deepak Kumar Sahu vs. State of Chhattisgarh, reported in 2025 SCC Online SC 1610, submits that if the evidence of the victim does not suffer from any basic infirmities and the factor of probability does not render it unworthy evidence, the conviction could be based solely on the evidence of the prosecutrix. She submits that as the Hon'ble Apex Court had observed the aforesaid as a general rule, there is no reason to insist on the corroboration except in certain cases. To further her same argument, the learned Addl. P.P. relied on the case of Lok Mal @ Loku Vs. The State of Uttar Pradesh, reported in (2025) 4 SCC 470, wherein the Hon'ble Apex Court had observed that the evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness and conviction can be made on the sole testimony of the prosecutrix. She submits that if the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. The learned Addl. P.P. further relied on the case of State of Rajasthan Vs. Noore Khan, reported in 2000 3 Supreme 70 for the same principle of law that there is no rule of law that the testimony of prosecutrix cannot be acted without corroboration in material particulars.
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26. The learned Addl. PP also relied on the case of Kingkong Das Vs. State of Assam and Another, reported in 2016 2 Gau Law Journal 579 as well as the case of Shri. Ramdin Mawia Vs. The State of Mizoram, reported in 2022 0 Supreme (Gau) 1192 for the same principle that a conviction could be made solely on the basis of the testimony of the prosecutrix/the rape victim.
27. Ms. J. Doji, the learned counsel appearing for the victim, i.e. the respondent no. 2 submits that she endorse the submission made by the learned Addl. PP and the Trial Court has not committed any error by convicting the appellant solely on the basis of the testimony of the victim. The learned counsel submits that the defence could not demolish the prosecution's story of rape by way of any cogent or reliable evidence. She submits that the defence version of absolute denial of any commission of offence of rape is not tenable without having any basis. Therefore, she submits that the Judgement and Order dated 15.09.2023 and the Order of Sentence dated 18.09.2023, passed by the learned Trial Court may not be interfered by this Court.
28. I have considered the submissions made by the learned counsel appearing for the respective parties and have also gone through the materials available on record. I have also gone through the case laws that have been cited by the learned counsel for the parties in support of their respective submissions.
29. On perusal of the FIR dated 16.03.2021 lodged by the Informant, it is seen that the Informant had specifically mentioned her age to be 17 years at the time of lodging of the aforesaid FIR. However, from the evidence Page No.# 25/31 brought on record, i.e. the Birth Certificate which was seized by the Investigating Officer clearly shows that the Informant was, in fact, 25 years 6 months and 16 days on the date of lodging of the FIR. This aspect has also been specifically deposed and admitted by PW-8, the Investigating Officer. Therefore, it is apparent that at the very beginning, the prosecution's story has started with a false assertion about the age of the Informant as a minor girl, who had been alleged to have been raped by the appellant. Another very material inconsistency could be seen in the FIR is that the Informant had stated that the appellant, who is the maternal grand- father as well as father-in-law of the Informant had allegedly raped her for last 3-4 years, whereas, at the same time, the Informant had stated in the FIR that for the first time when she was allegedly raped by the appellant, she was yet to reach the puberty. Generally, in India, a girl child attains puberty within the age group of 9-14 years and in the instant case, as her age has been ascertained as more than 25 years at the time of lodging the FIR and her statement that she had been allegedly raped by the appellant for the last 3-4 years, that would make her age more than twenty (20) years at the time of the alleged rape. Therefore, it is discernible form the aforesaid facts that her statement in the FIR that she was raped for the first time before she reached puberty cannot be termed as true and correct. This material variance in her statement about her age is not something which could be easily ignored.
30. A perusal of the FIR also reveals that the Informant had mentioned that she was married as a child to Sri Tap Tagia, the son of the appellant who later got married to another woman. However, the Informant, in her statement recorded under Section 164 Cr.P.C., contradicted the aforesaid Page No.# 26/31 statement by stating that Sri Tap Tagia was much older than her and he was already married when she went to their house. This contradicts her statements in the FIR as well as her deposition before the Trial Court to the effect that she stayed with Sri Tap Tagia as his wife for three (3) months and later, Sri Tap Tagia married another lady and shifted with her to Basscamp village.
31. The Informant, in her deposition before the Trial Court deposed that she came to know later that her father Sri Pegmir Tapuk was threatened by Tap Tassar, the appellant and his associates that if he did not give her marriage to Sri Tap Tagia, they would kill him and throw his dead body in the river. However, at the same time, in her cross-examination, she deposed that Tap Tassar, the appellant and his relatives had threatened her father Sri Pegmir Tapuk in her presence to give her in marriage to Sri Tap Tagia or else, to kill him and throw the body in the river. The aforesaid two statements, definitely, contradicts each other.
32. It is seen in her deposition that the Informant had deposed that she came as a small kid and was married to Tap Tagia and after Tap Tagia married another lady, the appellant had raped her before she reached the age of puberty. Whereas, in her cross-examination, she contradicted her statement by deposing that she was raped by Tap Tassar only about a year ago for the first time at midnight 12 pm. This material contradiction also makes her version not reliable. As per as her statement regarding her marriage to Tap Tagia, in her cross-examination, she deposed and admitted that her father did not handover her to Tap Tassar to be the wife of Tap Tagia, rather only to look after the children of Tap Tagia, her father had Page No.# 27/31 handed her over to Tap Tassar, the appellant. From the aforesaid contradiction in the statements of the Informant, from the very beginning of the lodging of the FIR and during the Trial, it is clear that there are material variances in her statements as to various facts and allegations against the appellant.
33. The learned Trial Court, in it's conclusion, has come to a clear finding that the Informant, i.e. PW-1 could be termed as a "Sterling Witness" as she has passed the test of standard laid down by the Hon'ble Apex Court. The learned Trial Court, while convicting the appellant did not search for any other evidence or corroboration, but solely relied on the evidence of the Informant. Therefore, the issue herein is to whether under the face of the above discussed material contradictions in the versions of the Informant, the Informant could be termed as "Sterling Witness" with her evidence to be termed as of sterling quality.
34. In this connection, it will be apposite at this stage to refer to the case of Rai Sandeep (supra), wherein, the Hon'ble Apex Court in very details set out the qualities for being a Sterling Witness. The relevant paragraphs of the aforesaid case are reproduced herein below: -
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be Immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would Page No.# 28/31 be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version' to sieve the other supporting materials for holding the offender guilty of the charge alleged.
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23. On the anvil of the above principles, when we test the version of PW 4, the prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests mentioned above. There is total variation in her version from what was stated in the complaint and what was deposed before the court at the time of trial. There are material variations as regards the identification of the accused persons, as well as the manner in which the occurrence took place. The so-called eyewitnesses did not support the story of the prosecution. The recoveries failed to tally with the statements made. The FSL report did not co-relate the version alleged and thus the prosecutrix failed to instill the required confidence of the court in order to confirm the conviction imposed on the appellants."
35. In the case of Krishna Kumar Malik Vs. The State of Haryana, reported in (2011) 7 SCC 130, the Hon'ble Apex Court had laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacuna.
36. In the case of Nirmal Prem Kumar & Others Vs. The State, reported in Manu/SC/0188 2024, the Hon'ble Apex Court, while relying on the aforesaid two cases of Rai Sandeep (supra) and Krishna Kumar Malik (supra) has held that the Court can rely on the victim as a Sterling Witness without further corroboration, but the quality and credibility must be exceptionably high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies, excepted), from the initial statement to the oral testimony, without creating any doubt Page No.# 30/31 qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be sustained.
37. Having examined the aforesaid principles laid down by the Hon'ble Apex Court in the above-mentioned cases and considering the statements and depositions made by the Informant in the instant case, I am of no doubt that the evidence of the Informant cannot be termed as of "sterling witness". The apparent variations and clear inconsistencies in Informant's versions make the same doubtful, unreliable and untrustworthy. Therefore, in my considered opinion, in absence of any material corroboration to the allegations of the Informant, solely on the basis of the statements and depositions of the Informant, the conviction of the appellant cannot be sustained.
38. Further to the above, another material fact that needs consideration is that the fact of refusal of any medical examination by the Informant despite several counselling by the doctors for such examination. This is an admitted fact that the Informant refused any physical medical examination by the doctors.
39. In the case of State of Himachal Pradesh Vs. Rajesh Kumar, reported in 2025 SCC Online SC 577, the Hon'ble Apex Court has held that it is a well settled proposition of law that non-allowance of medical examination by an alleged rape victim, raises negative inferences against them. In the instant case in hand also, the same principle can be applied to as the Informant though being an adult lady, did not allow her to be Page No.# 31/31 physically examined by the doctors, which clearly goes against her allegations. This aspect of the matter adds to the doubt that has already been raised by various material contradictions and inconsistencies in her statements and depositions from filing of her FIR to the end of the trial.
40. In view of the aforesaid discussions, I am of the considered opinion that the conviction of the appellant only on the basis of the sole evidence of the Informant without any corroboration is not warranted. Taking into account the apparent inconsistencies and untrustworthy versions of the Informant and the finding of this Court that she cannot be treated as a Sterling Witness, in my considered opinion, the impugned Judgment and Order dated 15.09.2023 and the Order of Sentence dated 18.09.2023 are not sustainable and therefore, the same are set aside and quashed.
41. In view of the aforesaid findings, the appellant is acquitted of charge under Section 376 (2)(f) of IPC.
42. The appellant shall be released forthwith if not wanted in any other case.
43. The appeal is accordingly disposed of as allowed.
44. Registry is directed to send back the TCR to the concerned Court along with the copy of this Judgment & Order immediately.
JUDGE Comparing Assistant