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Madras High Court

Saravanakumar vs Inspector Of Police on 26 February, 2026

                                                                                            CRL A No. 506 of 2023


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                     DATED: 26-02-2026
                                                              CORAM
                                   THE HON'BLE MR.JUSTICE SUNDER MOHAN
                                                   CRL A No. 506 of 2023



                Saravanakumar
                S/o. Late Palanisamy, D/449,
                Water Tank Back Side, Sampath Nagar,
                Collectorate Post, Erode District.
                                                                                               ..Appellant(s)


                                                                   Vs




                Inspector of Police
                All Women Police Station, Erode.
                Cr.No.27/2021.
                                                                                             ..Respondent(s)



                                   Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to
                set aside the judgment passed in Spl.S.C.No.9 of 2022 by the learned Sessions
                Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Erode, dated
                15.10.2022 by allowing this appeal



                              For Appellant(s):               Mr.R.Vivekananthan

                              For Respondent(s):              Mr.S.Raja Kumar,
                                                              Additional Public Prosecutor




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                                                                                                 CRL A No. 506 of 2023




                                                            JUDGMENT

The Criminal Appeal challenges the judgement dated 15.10.2022 passed

in Spl.S.C.No.9 of 2022 by the learned Sessions Judge, Magalir Neethi

Mandram (Fast Track Mahila Court), Erode, convicting and sentencing the

appellant/accused as follows:

                             Sl.         Offence under Sections                       Sentence imposed
                             No.
                                  1.   5(m), 5(n), 5(l) punishable       To undergo 20 years R.I, with a fine
                                          under Section 6 of the         of Rs.5,000/- (id) to undergo 3
                                       Protection of Children from       months S.I.
                                       Sexual Offences, Act, 2012
                                  2.           506(i) IPC                To undergo 2 years R.I, with a fine of
                                                                         Rs.5,000/-.

The sentences were ordered to run concurrently.

2. The case of the prosecution is that the appellant is the father of the

victim child, who was aged about 16 years at the time of the occurrence; that

after the victim attained puberty in the year 2017, the appellant had

inappropriately touched her and committed penetrative sexual assault on several

occasions on various dates; that he was also in the habit of hugging her, kissing

her and inappropriately touching her private parts; and that the victim girl,

unable to bear the sexual assaults, lodged a complaint on 24.09.2021, based on

which PW10, the Sub-Inspector of Police, registered an FIR (Ex.P13) in Crime

No.27 of 2021 for the offences under Sections 5(m), 5(n), 5(l) r/w 6 of

Protection of Children from Sexual Offences Act, 2012.

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3. The investigation was thereafter conducted by PW11, the Inspector of

Police, who subjected the victim to medical examination and made

arrangements for recording her statement under Section 164(5) Cr.P.C. After

examining all the witnesses, PW11 filed the final report for the offences under

Sections 5(m), 5(n), 5(l) r/w 6 of Protection of Children from Sexual Offences

Act, 2012, and under Section 506(i) IPC.

4. The Trial Court framed charges for the aforesaid offences. The

prosecution examined 11 witnesses and marked Exs.P1 to P17 to prove its case.

Upon appreciation of oral and documentary evidence, the Trial Court found the

appellant guilty of the said offences and sentenced him as stated above.

5. The learned counsel for the appellant submitted that the impugned

judgment cannot be sustained as both the victim and her mother turned hostile;

that the evidence of the Doctor does not corroborate the earlier version of the

victim; that the Trial Court erroneously convicted the appellant on the basis of

the victim’s statement under Section 164(5) Cr.P.C., which was brought on

record during cross-examination; and that, in the absence of substantive

evidence, the impugned judgment is erroneous and liable to be set aside.

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6. Per contra, the learned Additional Public Prosecutor for the respondent

submitted that the victim had initially supported the case during investigation

and subsequently turned hostile in her deposition; that in her cross-examination

she admitted portions of her statement made under Section 164(5) Cr.P.C.; and

therefore the impugned judgment does not warrant interference.

7. As stated above, the prosecution examined 11 witnesses. PW1 is the

victim. PW2 is the mother of the victim. PW3 is the witness to the observation

mahazar. PW4 is the Doctor who examined the appellant and issued the Potency

Certificate (Ex.P4). PW5 is the Doctor who examined the victim and made

entries in the Accident Register (Ex.P9). PW6 is the Headmaster of the School

where the victim studied and issued the School Certificate (Ex.P11), showing

the date of birth of the victim as 22.09.2005. PW7 and PW8 are witnesses to the

arrest and confession of the appellant and both turned hostile. PW9 is the

Doctor who examined the victim and issued the medical examination report

(Ex.P12). PW10 is the Sub-Inspector of Police who registered the FIR. PW11 is

the Investigating Officer.

8. It is the case of the prosecution that the appellant had continuously

committed penetrative sexual assault and other sexual assaults on various dates

after the victim attained puberty on 07.01.2017, and that it was only when the

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victim turned 16 years old that she lodged the complaint. It is not in dispute that

the victim had also given a statement before the learned Magistrate confirming

the version set out in the complaint. However, PW1, in her deposition before the

Court, stated that she lodged the complaint and made a statement under Section

164(5) Cr.P.C. before the learned Magistrate at the instance of the police, since

her mother and father had matrimonial differences, and the police suggested that

filing a complaint under the POCSO Act would be effective. The prosecution

cross examined the victim elaborately. The victim reiterated that she lodged a

complaint and made a statement under Section 164(5) Cr.P.C., but however

stated that the contents thereof were not true and that what she deposed before

the Court is true.

9. Though it is found in her deposition that an admitted portion of the

statement under Section 164(5) Cr.P.C. was marked as Ex.P2, it is seen that

Ex.P2 is a letter and not the statement under Section 164(5) Cr.P.C. The

statement under Section 164(5) Cr.P.C. was marked as Ex.P16 through the

Investigating Officer.

10. It is needless to state that a statement recorded under Section 164

Cr.P.C. is not substantive evidence. It can only be used for the purpose of

corroboration or contradiction. The prosecution confronted the witness with her

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previous statement, thereby attempting to discredit her. It is well settled that the

evidence of a hostile witness can be relied upon to the extent that it inspires

confidence and is consistent with other evidence on record.

11. In the present case, the prosecution itself suggested that the witness

was making a false statement before the Court. In any event, her statement

under Section 164 Cr.P.C. cannot form the basis for conviction. Similarly, PW2,

the mother of the victim, also turned hostile. Though she admitted lodging the

complaint, she stated that she did so only at the instance of the police. Her

admission that she made certain statements before the learned Magistrate is

again of no avail to the prosecution. She further stated that she had matrimonial

differences with her husband who had an extramarital relationship.

12. The other witnesses are of no assistance to the prosecution, as their

evidence is only in support of PW1 and PW2. PW9, the Doctor who issued the

medical examination report (Ex.P12), stated that there were no external injuries

around the genital area or on other parts of the victim’s body. In her cross-

examination, she stated that rupture of the hymen could occur due to sports

activities and need not necessarily be the result of sexual assault.

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13. In the light of the above evidence, this Court is of the view that the

appellant ought not to have been convicted. The conviction recorded by the

Trial Court is not sustainable and this Court is inclined to allow the Criminal

Appeal:

(i) The conviction of the appellant for the offence under Sections 5(m),

5(n), 5(l) r/w 6 of Protection of Children from Sexual Offences Act, 2012, and

Section 506(i) IPC, by the learned Sessions Judge, Magalir Neethi Mandram

(Fast Track Mahila Court), Erode, vide judgment dated 15.10.2022 in

Spl.S.C.No.9 of 2022, is hereby set aside.