Madras High Court
Mahath vs The State Rep.By, Inspector Of Police, on 14 July, 2026
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl. A. No.236 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 24.04.2026
DELIVERED ON 14.07.2026
CORAM:
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.236 of 2026
Mahath Appellant/Accused
Vs.
The Inspector of Police
J.J. Nagar Police Station
I/c Thirumangalam All Women Police Station
Chennai District
(Crime No.16/2024) Respondent/Complainant
Criminal Appeal filed under Section 374(2) of Cr.P.C., 1973, read
with Section 415(2) of BNSS, 2023, against the judgment dated
16.02.2026 in Spl.S.C. No.51 of 2024 rendered by the Sessions Judge,
Special Court for Exclusive trial of cases under POCSO Act, Thiruvallur.
For appellant : Mr.P.Muthamizhselvakumar
For respondent : Mr.S.Udayakumar
Government Advocate (Criminal Side)
JUDGMENT
The instant criminal appeal is filed by the accused (hereinafter
referred to as “the appellant”) seeking to set aside the judgment dated
16.02.2026 passed by the Sessions Judge, Special Court of Exclusive
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Trial of Cases under the POCSO Act, Thiruvallur District (hereinafter
referred to as “the Trial Court”) in Spl.S.C.No.51 of 2024 (hereinafter
referred to as “the impugned judgment”) convicting and sentencing him
under Section 366 of IPC, Section 9 of the Prohibition of Child Marriage
Act, 2006 and Section 5(l) read with Section 6(1) of the POCSO
Amendment Act, 2019.
2. Vide the impugned judgment, the Trial Court convicted and
sentenced the appellant as tabulated below:
Penal Provision Imprisonment Fine Amount
Section 366 IPC Ten years Rigorous Rs.10,000/- in default of which to
imprisonment undergo three years simple
imprisonment.
Section 9 of the Two years Rs.25,000/- in default of which to
Prohibition of Child Rigorous undergo six months of simple
Marriage Act, 2006 imprisonment imprisonment.
Section 5(l) r/w. Ten Years Rigorous Rs.10,000/- in default of which to
Section 6(1) of the Imprisonment undergo three years of simple
POCSO imprisonment.
Amendment Act,
2019
The aforesaid sentences were ordered to run concurrently
3. In furtherance of the conviction and fine, the Trial Court
noted that an interim compensation of Rs.1,00,000/- was already
ordered to be paid to the victim girl (P.W.3) for her future vide order
dated 08.04.2024 in C.M.P. No.928 of 2024 and therefore, the Trial
Court was not awarding any further compensation under the impugned
judgment.
Crl. A. No.236 of 2026
4. The case of the prosecution is as follows:
4.1. At the time of the alleged commission of offence, the
victim girl (P.W.3) was a child as defined under Section 2(1)(d) of the
POCSO Act. Her date of birth is 03.09.2007 and to prove the same, her
birth certificate (Ex.P12) was marked.
4.2 The victim girl (P.W.3) aged about 16 years, studying in
XII standard in a Government School, fell in love with the appellant, viz.,
Mahath, who was also a resident of the same locality. Upon learning
about her relationship with the appellant, the victim’s father (P.W.1) and
the victim’s mother (P.W.2) advised her to sever her relationship with
him.
4.3. While so, the victim girl (P.W.3) went to school as usual on
22.01.2024. At about 4.00 p.m., the father of the victim girl (P.W.1)
received a call from mobile phone of the victim girl (P.W.3), during which
she informed her father (P.W.1) that she had got married with the
appellant and would not return home. Since the father of the victim girl
(P.W.1) was unable to trace her whereabouts, he lodged a complaint
(Ex.P1) before JJ Nagar Police Station, based on which, a First
Information Report (Ex.P2) in Crime No.16 of 2024 was registered by
Suryalingam, Inspector of Police, as a girl-missing case.
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4.4. Thereafter, the case file was transferred to the file of the
Inspector of Police, viz., Vijayalakshmi (P.W.6) [hereinafter referred to
as “the I.O. (P.W.6)”] who was on station duty at the All Women Police
Station, Thirumangalam, for investigation. Subsequently, the victim girl
(P.W.3) was secured, interrogated, and her statement was recorded.
She was then sent to KMC Hospital for medical examination. Dr.Deepa
(P.W.7), after examining the victim, issued the Accident Register
(Ex.P3).
4.5. Thereafter, the I.O. (P.W.6) visited the place of occurrence
and in the presence of Ayyappan (P.W.4) and Raj (P.W.5), prepared the
observation mahazar (Ex.P4) and rough sketch (Ex.P5). The signatures
of Ayyappan (P.W.4) and Raj (P.W.5) were marked as Exs.P6 and P7
respectively. Thereafter, the I.O. (P.W.6) recorded the statement of the
victim girl (P.W.3) and filed an alteration report (Ex.P8) on 24.01.2024
for the offences under Section 366-A IPC and Section 9 of the Prohibition
of Child Marriage Act.
4.6. On 13.02.2024, the I.O. (P.W.6) took steps to record the
statement of the victim girl (P.W.3) under Section 164 Cr.P.C. before the
Judicial Magistrate, Additional Mahila Court, Thiruvallur, and the same
was marked as Ex.P11. The medical report of the victim girl (P.W.3) was
marked as Ex.P9.
Crl. A. No.236 of 2026
4.7. On 21.02.2024,the I.O. (P.W.6) issued a notice to the
appellant under Section 41A Cr.P.C./Section 35 of BNSS, 2023, and
released him on police bail. Meanwhile, on 27.01.2024, the I.O. (P.W.6)
produced the appellant before Dr.Ravikumar (not examined) for medical
examination and obtained the medical report regarding potency, which
was marked as Ex.P10. She completed the investigation and filed the
final report dated 21.02.2014 against the appellant under Sections 366-
A IPC, Section 9 of the Prohibition of Child Marriage Act, and Sections
5(l) and 6 of the POCSO Act which was taken up on file on 29.02.2024 by
the Trial Court.
4.8. Upon the appearance of the appellant, copies of the
documents were furnished to him in compliance with Section 207 Cr.P.C.
Thereafter, charges under Sections 366-A IPC, Section 9 of the
Prohibition of Child Marriage Act, and Sections 5(1) and 6 of the POCSO
Act were framed against him. The charges were read over and explained
to him and he pleaded not guilty.
4.9. Though the prosecution cited nine witnesses, they
examined only seven witnesses, and marked thirteen documents. On
the side of the appellant, neither any witness was examined nor any
document was marked.
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4.10. On the strength of the oral and documentary evidence let
in, the Trial Court found the appellant guilty and convicted him as stated
at paragraph 2 (supra). Aggrieved against the judgment of conviction
and sentence imposed on him, the present criminal appeal has been filed
by the accused.
5. Before proceeding further, it is imperative to reproduce the
evidence recorded in this case.
5.1. The father of the victim girl (P.W.1) deposed that he was
residing at Padi working as a private driver; he has a son and a
daughter; he lodged the complaint (Ex.P.1) regarding the missing of his
daughter and reprimanded her for not studying properly in school; he
was aware of the relationship between his daughter (P.W.3) and the
appellant; consequently, on 20.01.2025, he arranged the engagement
of his daughter with the appellant and intended to conduct their
marriage after she attained the age of 18 years; the complaint (Ex.P1)
was lodged only on the ground that his daughter was missing. No cross-
examination was made.
5.2. The mother of the victim girl (P.W.2) deposed that her
husband lodged a complaint (Ex.P.1) with the police on account of
missing of their daughter; since her daughter was not studying properly,
Crl. A. No.236 of 2026
they reprimanded her, owing to which, their daughter informed them
that she is going to her friend’s house; their daughter was in relationship
with the appellant and they had arranged her engagement with the
appellant on 20.01.2025, and their intention was to conduct her
marriage with the appellant after she attained the age of 18 years. No
cross-examination was made.
5.3. XXXX, the victim girl (P.W.3) deposed that in the previous
year, when she was studying in IX standard, her parents came to know
that she fell in love with the appellant, who lives in their area and her
father scolded her and informed her that after completing XII standard,
he will arrange for her marriage; as she scored low marks in XII
standard, her father reprimanded her and hence, she got angry and
went to her friend’s house and stayed there for a day; her father
misunderstood that she had eloped with the boy with whom she was in
love with and thereafter, her father filed a complaint in the police
station; next day, when she came back to her home, her father took her
to the police station; she also informed her father that she was in her
friend’s place; she was then subjected to medical examination which
does not disclose any misfortune; in the enquiry conducted by the
Judicial Magistrate, she stated that she had eloped with the appellant, as
tutored by her counsel and that they went to Chidambaram where they
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stayed in a hotel and returned on the next day; as the case became
serious, she gave statement as tutored by her counsel.
5.4. Ayyappan (P.W.4) deposed that he lives in
Thirumullaivoyil and is working as a Carpenter and that he knows
nothing about this case; the signature of the witness in the observation
mahazar (Ex.P.4) shown to him is not his; the police came to his
company and enquired about his address and did not ask him anything
else.
5.5. Raj (P.W.5) testified that he is living in Bajanai Koil
Street, Padi, and is working in a company; the signature of the witness
in the observation mahazar (Ex.P.4) shown to him is not his; the police
came to his company and enquired about his address and did not ask
him anything else.
5.6. The I.O. (P.W.6) deposed that on 24.01.2024, while she
was on duty at the All Women Police Station, a girl-missing case
registered in J.J.Nagar Police Station as Crime No.16 of 2024 was taken
up for investigation; the victim girl (P.W.3) was produced before her and
her statement was recorded; the FIR was marked as Ex.P.2; thereafter,
the victim girl (P.W.3) was sent to KMC Hospital for medical
examination, where she was examined by Dr. Deepa (P.W.7). The
medical certificate received from the hospital was marked as Ex.P.3
Crl. A. No.236 of 2026
(Accident Register); thereafter, she visited the place of occurrence and
prepared the observation mahazar (Ex.P.4) and rough sketch (Ex.P5) in
the presence of J.J. Nagar Police personnel; the observation mahazar
was marked as Ex.P.4 and the rough sketch was marked as Ex.P.5; the
signatures of Ayyapan (P.W.4) and Raj (P.W.5) were marked as Ex.P.6
and Ex.P.7 respectively; she interrogated Ayyapan (P.W.4) and Raj
(P.W.5) and recorded their statements; she also interrogated the victim
girl (P.W.3) and recorded her statement and altered the case as a girl
missing case under Section 366-A IPC and Section 9 of the Prohibition of
Child Marriage Act vide Alteration Report (Ex.P.8); the medical
examination report of the victim girl (P.W.3) was marked as Ex.P.9; on
21.02.2024, a notice under Section 41-A Cr.P.C. was issued to the
appellant, and he was taken into police custody; on 27.01.2024, the
appellant was sent for medical examination and was examined by
Dr.Ravikumar; the medical report relating to the appellant was marked
as Ex.P.10; the statement of the doctor was also recorded; on
13.02.2024, the statement of the victim girl (P.W.3) was recorded in
camera and the said statement was marked as Ex.P.11; the birth
certificate of the victim girl (P.W.3) was marked as Ex.P.12; after
completing the investigation, she filed the final report against the
appellant for offences punishable under Section 366-A IPC, Section 9 of
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the Prohibition of Child Marriage Act and Section 5(l) read with Section 6
of the POCSO Act; the alteration report was marked as Ex.P.13.
5.7. Dr. Deepa (P.W.7) deposed that she was working as an
Assistant Professor in the Kilpauk Government Hospital; on 23.01.2024,
at about 3.00 p.m., while she was on duty at the hospital, a female Head
Constable, Jyothi Lakshmi, brought the victim girl, aged about 16 years,
for medical examination; during the course of examination, she
questioned the victim girl about the circumstances of the case; the
victim girl informed her that she was in love with the appellant and that
both of them had got married on 22.01.2024 at the Thiruverkadu
Amman Temple; during the medical examination, the victim girl stated
that after their marriage, they had been to Chidambaram, where they
stayed in a hotel for two days during which period the appellant had
sexual intercourse once, with her consent; the victim girl also informed
her that she had appeared before the J.J.Nagar Police Station on
24.01.2024 at about 11.30 a.m.; upon examination, no external injuries
were found on the body of the victim girl; the hymen was not found to be
intact and on examination of her uterus, she was not found pregnant;
however, based on the clinical findings and history provided, she opined
that the victim girl had engaged in sexual intercourse; samples collected
from the genital region of the victim girl were sent for swab analysis; the
Crl. A. No.236 of 2026
forensic report did not reveal the presence of spermatozoa or semen in
the samples examined; the medical opinion and the medical
examination certificate issued by her were marked as Ex.P.9; during the
course of investigation, the I.O. (P.W.6) examined her and recorded her
statement.
6. After completion of recording the evidence on the side of
the prosecution, the appellant was questioned under Section 313(1) (b)
of Cr.P.C., regarding incriminating materials found in the evidence
adduced and he denied them as false.
7. The sum and substance of the submissions made by the
learned counsel for the appellant is as follows:
(i) The Trial Court committed a grave error in convicting the
appellant despite the fact that the father of the victim girl (P.W.1), the
mother of the victim girl (P.W.2) and the victim girl (P.W.3) did not
support the case of the prosecution during trial; in the absence of their
support to establish the prosecution case, the conviction is
unsustainable.
(ii) The Trial Court erred in law in convicting the appellant
solely on the basis of the statement of the victim girl (P.W.3) recorded
under Section 164 Cr.P.C., particularly, when the prosecution failed to
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establish the foundational facts of the case through legally admissibleevidence; during the course of trial, P.Ws.1 to 3 resiled from their earlier
statements, did not support the prosecution case and were consequently
treated as hostile witnesses; in such circumstances, a conviction
founded primarily on the statement recorded under Section 164(5)
Cr.P.C. is legally untenable.
(iii) The Trial Court failed to appreciate that Ayyappan (P.W.4)
and Raj (P.W.5), who were cited as witnesses to the preparation of the
observation mahazar (Ex.P4) and rough sketch (Ex.P5), also turned
hostile and no other independent witness was examined to prove the
prosecution case.
(iv) The I.O. (P.W.6) failed to collect any documentary
evidence, such as receipts, photographs or other materials, to establish
the alleged marriage between the victim girl (P.W.3) and the appellant
said to have been performed at Thiruverkadu Temple; likewise, no
material was collected, nor any witness examined, to prove their alleged
stay at Chidambaram; in the absence of such evidence, the Trial Court
erred in holding that the prosecution had proved its case beyond
reasonable doubt based on certain stray answers of the witnesses during
cross-examination.
Crl. A. No.236 of 2026
(v) The Trial Court erred in invoking the presumptions under
Sections 29 and 30 of the POCSO Act without the prosecution first
establishing the foundational facts necessary for the application of such
statutory presumptions.
8. On the above grounds, the learned counsel for the
appellant prayed that the judgment of conviction and sentence passed
by the Trial Court be set aside and appeal be allowed.
9. In support of his contention that the Trial Court ought not
to have relied on the statement recorded under Section 164 Cr.P.C. to
convict the appellant, the learned counsel for the appellant relied on the
decision of a Division Bench of this Court in Palraj vs. The Inspector
of Police, Pattiveeranpatti Police Station, Dindigul District 1.
10. Per contra, the learned Government Advocate (Criminal
Side) appearing for the respondent/State advanced the following
submissions:
(i) The prosecution has established the charges against the
appellant beyond reasonable doubt through cogent and reliable
evidence and the Trial Court, upon proper appreciation of the oral and
1
Crl.A. (MD) No.1063 of 2024 decided on 26.08.202613/32
documentary evidence available on record, rightly convicted theappellant and the same does not warrant interference by this Court.
(ii) Merely because the victim girl (P.W.3) turned hostile
during trial, the prosecution case cannot be thrown out in its entirety;
the evidence of a hostile witness is not effaced from the record and the
Court is entitled to rely upon such part of the testimony which supports
the prosecution case and is otherwise found to be credible.
(iii) The statement of the victim girl (P.W.3) recorded under
Section 164 Cr.P.C. assumes considerable evidentiary value in the facts
and circumstances of the case; the victim girl (P.W.3) had clearly
narrated the occurrence before the learned Magistrate at the earliest
point of time and there is nothing on record to indicate that the said
statement was obtained by coercion or undue influence; even in the
statement recorded under Section 161 Cr.P.C., the victim girl (P.W.3)
had named the accused to be the person who had taken her to
Chidambram after their marriage at Thiruverkadu and committed
penetrative sexual assault on her; therefore, the subsequent retraction
by her during trial cannot, by itself, render the earlier statement wholly
unreliable.
(iv) Ayyappan (P.W.4) and Raj (P.W.5) who were examined
with regard to the preparation of the observation mahazar (Ex.P4) and
Crl. A. No.236 of 2026
rough sketch (Ex.P5), turning hostile does not materially affect the core
prosecution case; their evidence pertains only to the investigation and
not to the occurrence itself; their lapses cannot undo the prosecution’s
proven case.
(v) The non-production of photographs and receipts relating to
the alleged marriage or letting in of evidence regarding the stay of the
victim girl (P.W.3) and the appellant at a particular place is not fatal to
the prosecution case; it is a settled principle that every omission or lapse
in investigation does not necessarily enure to the benefit of the accused
when the substantive evidence available on record points towards his
guilt.
(vi) The prosecution has successfully established the
foundational facts necessary for attracting the statutory presumptions
under Sections 29 and 30 of the POCSO Act; once such foundational
facts are proved, the burden shifts upon the accused to rebut the
statutory presumptions; in the present case, the appellant has failed to
rebut such presumption either by cross-examining the prosecution
witnesses or by adducing any acceptable evidence.
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(vii) Therefore, the findings recorded by the Trial Court are
based on a proper appreciation of the evidence on record and do not
suffer from any perversity or illegality warranting interference by this
Court and hence, the conviction and sentence slapped on the appellant
are liable to be set aside and this appeal is liable to be dismissed.
11. Heard the learned counsel for the appellant and the
learned Government Advocate (Criminal Side) appearing for the
respondent/State and perused the materials available on record.
12. Insofar as submissions (i) and (iii) advanced by the
learned counsel for the appellant regarding P.Ws.1 to 5 not supporting
the prosecution case, the records reveal that the parents of the victim
girl (P.Ws.1 and 2) did not support the prosecution case. The victim girl
(P.W.3) was also treated as a hostile witness. Though she was cross-
examined by the prosecution, no material could be elicited to
substantiate the allegations levelled against the appellant. A significant
inconsistency is evident between the statement of the victim (Ex.P.13)
recorded under Section 164 Cr.P.C. on 13.02.2024 and her deposition
before the Trial Court on 15.04.2025. During her testimony before the
Court, the victim girl (P.W.3) categorically stated that her earlier
statement under Section 164 Cr.P.C. was false and that she had made
such a statement after being tutored by her advocate. According to her
Crl. A. No.236 of 2026
deposition, she had not accompanied the appellant, but had, in fact,
stayed at her friend’s house. Thus, the victim girl (P.W.3) expressly
retracted her earlier statement and disowned the allegations made
therein.
13. Further, the medical evidence also fails to lend support to
the prosecution case. Although Dr.Deepa (P.W.7) deposed that the
victim child’s hymen was not intact, she also categorically deposed that
no external injuries were found on the victim’s body and neither semen
nor spermatozoa was detected in the samples sent for forensic
examination. Hence, in the absence of supporting oral evidence from the
victim girl (P.W.3) regarding sexual assault and in view of lack of
medical evidence, the conviction recorded by the Trial Court solely on
the basis of the Accident Register (Ex.P3) and the Medical Certificate
(Ex.P9) cannot be sustained. More so, merely because the hymen was
not found to be intact, it cannot be inferred that the accused is
responsible for the same. Further, Ayyappan (P.W.4) and Raj (P.W.5),
independent witnesses cited for proving the observation mahazar
(Ex.P4) and rough sketch (Ex.P5), were also treated as hostile and did
not support the prosecution case. Consequently, all the material
prosecution witnesses, viz., P.Ws.1 to 5, failed to corroborate the
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prosecution version. In such circumstances, when the victim girl
(P.W.3) herself did not support the allegations and the other material
witnesses also failed to substantiate the prosecution case, there
remained no reliable ocular evidence connecting the appellant with the
alleged offences.
14. It is a settled principle of law that a conviction cannot be
sustained on mere conjectures, surmises, or on the weakness of the
defence. The burden lies on the prosecution to establish the foundational
facts through cogent and reliable evidence. Therefore, in the present
case, the failure of the victim girl (P.W.3) and the other material
witnesses to support the prosecution case with regard to the alleged acts
of sexual assault, kidnap and child marriage strikes at the very root of
the prosecution story. The foundation of the prosecution case having
been demolished, the conviction and sentence imposed by the Trial
Court are rendered unsustainable in law.
15. Insofar as submission (iv) made by the learned counsel
for the appellant regarding the failure of the prosecution to collect vital
documents and evidence, a careful scrutiny of the evidence of the I.O.
(P.W.6) discloses certain significant deficiencies in the investigation. The
Crl. A. No.236 of 2026
prosecution case proceeds on the premise that the appellant had
allegedly married the victim girl (P.W.3) at Thiruverkadu Temple and
thereafter, stayed with her at Chidambaram. However, despite the
importance of these allegations to the prosecution case, no
documentary evidence was collected during the course of investigation
to substantiate the same. Although the I.O. (P.W.6) did not admit in her
cross-examination that she had failed to visit the alleged place of
marriage for verification, the records reveal that no photographs,
marriage records, temple receipts, certificates, registers or any other
contemporaneous documents were collected to establish that marriage
had, in fact, been solemnized between the victim girl (P.W.3) and the
accused at the said temple.
16. Similarly, with regard to the allegation that the victim girl
(P.W.3) and the appellant had stayed together at Chidambaram, the I.O.
(P.W.6) failed to secure any hotel records, lodge registers, receipts,
booking details or other documentary materials capable of corroborating
such a stay. No effort appears to have been made to trace or collect
independent evidence from the establishments where the parties were
allegedly accommodated. It is further evident that no independent
enquiry was conducted with the temple authorities, local witnesses, or
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the management of any hotel, lodge or place of stay to verify the
prosecution allegations. Such enquiries would have constituted the best
available evidence to corroborate the prosecution version regarding the
alleged marriage and subsequent cohabitation of the victim with the
accused. The absence of investigation in those lines assumes
significance, particularly, when the material witnesses, including the
victim girl (P.W.3), failed to support the prosecution case during trial.
The duty of the I.O. (P.W.6) is not merely to record statements but also
to collect all available evidence, both oral and documentary, which may
throw light on the truth of the allegations. In the present case, the
failure to secure basic documentary records relating to the alleged
marriage and stay at Chidambaram constitutes a material lapse in the
investigation. These omissions have deprived the prosecution of
independent corroborative evidence on crucial aspects of its case.
17. Insofar as the submission (v) relating to the applicability of
the presumptions under Sections 29 and 30 of the POCSO Act, the
learned counsel for the appellant contended that the Trial Court erred in
extending the benefit of the statutory presumptions to the prosecution
without the prosecution first establishing the foundational facts
necessary for raising such presumptions. According to the learned
Crl. A. No.236 of 2026
counsel for the appellant, the prosecution had failed to adduce reliable
and cogent evidence to establish the essential ingredients of the alleged
offences and, therefore, the burden could not have been shifted to the
appellant by extending the benefit of the presumptions contemplated
under Sections 29 and 30 of the POCSO Act to the prosecution. Per
contra, the learned Government Advocate (Criminal Side) submitted
that the Trial Court was justified in drawing the statutory presumptions.
It was argued that the evidence of P.Ws.1 to 3 disclosed that
arrangements had been made for the engagement of the victim girl
(P.W.3) with the appellant and that the marriage between them was
proposed to be solemnized after the victim attained the age of 18 years.
It was further submitted that the defence had admitted the existence of
a love affair between the victim girl (P.W.3) and the appellant. Reliance
was also placed on the evidence of Dr. Deepa (P.W.7), who issued the
Accident Register (Ex.P3) and the Medical Certificate (Ex.P9), to contend
that sufficient materials were available before the Trial Court for it to
extend the benefit of the presumptions under Sections 29 and 30 of the
POCSO Act to the prosecution and to record a finding of guilt against the
appellant. While considering the opposing submissions of the learned
counsel in this regard, this Court finds that the evidence on record
reveals that the parents of the victim girl (P.Ws.1 and 2) did not support
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the prosecution case. The victim girl (P.W.3) herself turned hostile and
categorically resiled from her earlier statement recorded under Section
164 Cr.P.C. At the cost of repetition, the independent witnesses, viz.,
Ayyappan (P.W.4) and Raj (P.W.5), also failed to support the
prosecution version. Further, the medical evidence of Dr. Deepa (P.W.7)
does not furnish any conclusive support to the prosecution allegations.
Apart from the failure of the material witnesses to support the
prosecution case, the investigation itself suffered from serious
deficiencies. As alluded to above, the I.O. (P.W.6) failed to collect and
produce material documentary evidence such as marriage records,
temple receipts, photographs, proof of stay, hotel or lodge records, or
any independent evidence capable of corroborating the prosecution
allegations. No independent witness was examined to establish the
alleged marriage or the alleged stay of the victim girl (P.W.3) with the
appellant. These omissions assume greater significance in view of the
hostile stand taken by the principal prosecution witnesses.
18. It is well settled that the presumptions under Sections 29
and 30 of the POCSO Act, do not operate in a vacuum. Before such
presumptions can be availed by the prosecution, they must first
establish the foundational facts constituting the offence through reliable
and acceptable evidence. Only upon the discharge of such initial burden,
Crl. A. No.236 of 2026
does the statutory presumption arise against the accused. Where the
prosecution fails to prove the foundational facts as in the present case,
the presumption cannot be mechanically invoked to fill gaps in the
prosecution case or to compensate for deficiencies in the prosecution’s
evidence.
19. Insofar as submission (ii) made by the learned counsel for
the appellant regarding the evidentiary value of a statement recorded
under Section 164 Cr.P.C., the learned counsel contended that the Trial
Court had placed undue reliance upon the statement of the victim girl
(P.W.3) recorded under Section 164 Cr.P.C., notwithstanding the fact
that the victim girl (P.W.3) had subsequently resiled from the said
statement during her evidence before the Court. In this regard, it is
relevant to refer to the decision of this Court in Siva vs. The State rep.
by the Inspector of Police, Thiruvalam Police Station, Vellore
2
District – , wherein, while considering the evidentiary value of
statements recorded under Section 164 Cr.P.C., this Court held as
follows:
“14. It is a peculiar case where almost all the independent
prosecution witnesses including the witnesses to the arrest and seizure of
the weapon of offence produced by the prosecution have turned hostile.
The alleged author of Ex.P1 complaint, who is the niece of the deceased,2
2022 (4) MLJ (Crl) 11323/32
has also turned hostile. Virtually, except the official witnesses, no
independent witness has supported the case of the prosecution and the
prosecution has not taken proper initiative to prove its case. However, the
Trial Court has proceeded to rely upon the statements recorded from such
witnesses under section 164 Cr.P.C. viz., Exs.P11 to P14 to render the
conviction against the appellant.
15. The law is well settled that a statement recorded under
Section 164 of the Code of Criminal Procedure is not substantive evidence
and it can be used to corroborate the statement of a witness and it can be
used to contradict a witness. In Ram Kishan Singh vs. Harmit Kaur and
another (1972) 3 SCC 280, it has been laid down that a statement recorded
under Section 164of the Code of Criminal Procedure is not substantive
evidence and it can be used to corroborate the statement of a witness and
it can be used to contradict a witness.
16.In Baij Nath Sah vs. State of Bihar (2010) 6 SCC 736 also, the
Apex Court has held that mere statement of the prosecutrix recorded
under Section 164 Cr.PC. is not enough to convict the appellant and it is not
substantive evidence and it can be utilised only to corroborate or
contradict the witness vis-a-vis statement made in court.
17. In the case on hand, the Trial Court has held that though the
eyewitnesses to the occurrence had turned hostile during their
examination in court, their statements recorded under Section 164 Cr.P.C.,
corroborates the medical evidence viz., the wounds found on the dead
body as revealed in the postmortem certificate and thereby found the
appellant guilty. However, strangely, the Trial Court has ignored the fact
that when the occurrence is said to have taken place on 20.9.2010 and the
postmortem certificate was issued on 21.9.2010, the statements from the
witnesses had been recorded on 6.10.2010. Such a long delay in recording
the statements of the witnesses speaks much.
18. Further, the Trial Court, taking presumption available under
Section 80 of the Indian Evidence Act, 1872, had proceeded to rely upon
Exs.P11 to P14, the statements recorded from the witnesses under Section
164Cr.P.C. to render conviction against the appellant.
Crl. A. No.236 of 2026
19. Of course, there a presumption is available under Section 80
of the Indian Evidence Act, 1872 as to the documents produced as record
evidence. The legal provision reads as under:-
“80. Presumption as to documents produced as record of
evidence.—Whenever any document is produced before any
Court, purporting to be a record or memorandum of the
evidence, or of any part of the evidence, given by a witness in a
judicial proceeding or before any officer authorized by law to take
such evidence, or to be a statement or confession by any prisoner
or accused person, taken in accordance with law, and purporting
to be signed by any Judge or Magistrate, or by any such officer as
aforesaid, the Court shall presume— that the document is
genuine; that any statements as to the circumstances under
which it was taken, purporting to be made by the person signing
it, are true, and that such evidence, statement or confession was
duly taken.”
20. The question as to whether such presumption is applicable to
the statement (memorandum of identification proceedings) recorded by a
Magistrate under Section 164 Cr.P.C. has been elaborately dealt with by a
Three Judges Bench in Sheo Raj vs. State [(1963) SCC OnLine All 123] and
held that a statement made under Section 164, Cr.P.C. is not ‘evidence’, is
not made in a ‘judicial proceeding’ and is not given under oath. It has been
held therein as under:-
” …. A statement made by a person to a police officer in the
course of an investigation cannot be used for any purpose at any
enquiry or trial in respect of the offence under investigation
(except for contradicting him), vide Section 162; it is open to any
person to make a statement or confession before a Magistrate (of
a certain class) in to course of an investigation, or at any time
thereafter, but before the commencement of an enquiry or trial
and the statement or confession will be recorded by the
Magistrate under Section 164and is not subject to the bar
imposed by Section 162. Such a statement, being a previous
statement, may be used only to contradict the person when he
appears as a witness at the enquiry or trial of the offence or to
25/32
corroborate him. A statement made by a person before a
Magistrate of the required class holding an identification
proceeding and recorded by him is a statement governed by Sec.
164; there is no dispute on this point. It is to be noted that Sec.
164 simply mentions “any statement or confession made to him
in the course of an investigation” and not “any statement or
confession made to him in the course of an investigation by any
witness or accused person.” It does not state whose statement of
confession is to be recorded by him Actually at this stage, when
the offence is still under investigation, there are no witnesses and
no accused persons (except in the sense of persons against whom
a charge of having committed the offence is levelled and is under
investigation). It is only after the investigation has been
completed that the police can decide who is to be the accused of
the offence before a Magistrate and who are to be the witnesses
in the case. Till then there can be no decision about the status of a
person as an accused person or as a witness and all persons
examined by the police during the investigation are mere
interrogatories or informants or statement-makers. The
provisions in the Code relating to investigation do not refer to any
person as a witness. Though “witness” is not defined in the
Evidence Act, Secs. 118, 119 and 120 of it make it clear that a
witness is a person who testifies before a court. Under section 59
all facts may be proved by oral evidence and “oral evidence” is
defined in Sec. 3 to mean and include all statements made by
witnesses before a court. The definition of “proved” shows that
the question of proof of a fact arises only before a court so long as
there is no court there is no question of a fact being proved and
consequently no question of oral evidence and witnesses.
Evidence can be given only in respect of the existence or non-
existence of a fact in issue or a relevant fact, vide Sec. 5. Which is
a fact in issue or a relevant fact is a matter that arises only before
a court because only before a court there can arise the question
whether a certain fact is proved or not. These provisions of the
Evidence Act make it clear that no person can claim the status of a
witness except in relation to a proceeding before a court. It
follows that while an offence is still under investigation there is
Crl. A. No.236 of 2026nobody who can be called “witness” and there is no statement
that can be called “evidence.”
…… ……. ……
A Magistrate is certainly authorized by law to take evidence but
only in a case of which he has taken cognizance; he is not
authorised by law to take evidence in a case pending before
another Magistrate or in a case that has already been decided by
himself or another Magistrate or in a case that has not yet
reached a court. He is not authorized by law to record evidence of
any person in any matter and in any circumstance. A Magistrate
recording a statement under Sec. 164 is not authorized by law to
take evidence for the simple reason that he is not charged with
the fluty (sic for “duty”) of deciding any case and there is no
matter to be proved or disproved before him. The other
alternative is that the evidence must have been given in a judicial
proceeding. When a Magistrate records a statement under Sec.
164 there are only two proceedings in which it can possibly be
said to have been recorded, (1) the investigation by the police
and (2) the proceeding of recording the statement itself. The
investigation by the police is not a judicial proceeding. “Judicial
proceeding” is not defined in the Evidence Act, but since we are
concerned with a statement recorded under the Code of Criminal
Procedure the question whether it was recorded in a judicial
proceeding or not must be decided in the light of the definition
given in the code. “Judicial proceeding” is defined in Sec. 4(1) (m)
to mean “any proceeding in the course of which evidence is or
may be legally taken on oath.” If evidence may be legally taken on
oath it is enough even though evidence is actually not taken on
oath. An investigation is a judicial proceeding only if it can be
predicated that in the course of it evidence may be legally taken
on oath. “In the course of which” means “in the carrying out of
which” or “in the conducting of which” and not “during the
pendency of which.” Anything that is done while a proceeding is
pending is not necessarily done in the course of it; if it is not a part
of it or is done by one not connected with it, it is not done in the
course of it even though it is done during its pendency. In the
course of an investigation no evidence can be legally taken on
27/32
oath by anybody concerned in the investigation. The police have
no power to administer oath. As I explained earlier, there is no
question of evidence being taken in the course of an
investigation. If a Magistrate does something while an
investigation is pending it is not done in the course of it. An
investigation which would not be a judicial proceeding if a
Magistrate did not do something during its pendency does not
become one simply because he does something, such as
recording a statement under Sec. 164. Since an investigation is to
be done solely by the police nothing that he does during its
pendency becomes a part of it and can be said to have been done
in the course of it. Consequently even if a Magistrate can legally
administer oath to a person before recording his statement
under Sec. 164the investigation does not become a judicial
proceeding.
…… …… ……
12. Thus I find that the statement made by a person under Sec.
164 cannot be said to be made in a judicial proceeding. Sec. 80,
Evidence Act, is, therefore, not applicable to it.”
21. The principles laid down in the above decision make it clear
that presumption under Section 80 of the Indian Evidence Act,
1872 cannot be drawn to rely upon the Statements of witnesses
recorded under Section 164 Cr.P.C during investigation to render
a conviction.” (emphasis supplied by this Court)
20. The principle emerging from the aforesaid decision is that
a statement recorded under Section 164 Cr.P.C. is not substantive
evidence by itself and cannot form the sole basis for conviction. Such a
statement can only be used for corroboration or contradiction of the
maker of the statement in the manner known to law. Where the maker
of the statement does not support the prosecution case during trial and
Crl. A. No.236 of 2026
specifically retracts the allegations contained in the statement recorded
under Section 164 Cr.P.C., the evidentiary value of such statement
becomes considerably weakened and it cannot, by itself, be treated as
proof of the allegations contained therein. In the present case, although
the victim girl (P.W.3) had given a statement under Section 164 Cr.P.C.
on 13.02.2024, she subsequently resiled from the said statement during
her deposition before the Trial Court on 15.04.2025. She categorically
stated that the earlier statement was made falsely and that she was
tutored by her advocate. Despite being treated as hostile and subjected
to cross-examination by the prosecution, nothing substantial was
elicited to support the prosecution allegations by contradicting her. In
such circumstances, the statement recorded under Section 164 Cr.P.C.
could not have been treated as substantive evidence to sustain the
conviction of the appellant, particularly, when the victim girl (P.W.3)
herself disowned the contents thereof and when there was no
independent and reliable corroborative evidence available on record.
Therefore, the reliance placed by the Trial Court on the statement
recorded under Section 164 Cr.P.C., in the absence of supporting
evidence, is legally unsustainable.
21. It is also pertinent to note that even as per the evidence of
the parents of the victim girl (P.Ws.1 and 2), they had accepted the
29/32
relationship between the appellant and their daughter, performed their
engagement, and were intending to solemnize their marriage after the
victim girl (P.W.3) attained majority. This aspect of the evidence, which
was favourable to the defence, was not accorded due consideration by
the Trial Court while appreciating the overall circumstances of the case.
22. In this context, it is relevant to refer to the observations
made by a Division Bench of this Court while dealing with a similar issue
in Palraj, (supra),in which, following the earlier Division Bench decision
in Chinnathambi and another v. The Inspector of Police, D-4, R.K.
Pet Police Station, Thiruvallur District3, the Division Bench had
strongly deprecated the practice of recording convictions solely on the
basis of statements recorded under Section 164 Cr.P.C. during the
course of investigation. Having found that the conviction in that case
was founded upon such inadmissible material, the Division Bench
expressed its concern regarding the manner in which the trial had been
conducted and issued appropriate directions to ensure greater judicial
sensitivity and adherence to settled principles governing appreciation of
evidence.
3
Crl. A. Nos.355 & 437 of 2016 decided on 04.08.2016
Crl. A. No.236 of 2026
23. Having carefully examined the entire evidence on record,
this Court finds that there is no legally admissible evidence connecting
the appellant with the commission of the alleged offences, when
especially the victim girl (P.W.3) and her parents (P.Ws.2 and 3) have
not supported the case of the prosecution. Further, taking into
consideration the facts of the present case, this Court records its utter
dismay over the insensitive manner in which the matter has been dealt
with.
24. In the light of the foregoing discussion, this Court holds
that the conviction and sentence recorded by the Trial Court are
unsustainable in law. Accordingly, the conviction and sentence imposed
upon the appellant vide the impugned judgment are set aside. The
appellant is acquitted of all the charges levelled against him and is
entitled to all consequential benefits in accordance with law. Bail bond, if
any, executed by him shall stand discharged. Fine amount, if any, shall
be refunded to him.
14.07.2026
cad
31/32
A.D.JAGADISHCHANDIRA, J.
raa
To:
1. The Registrar General
Madras High Court
Chennai 600 104
2. The Sessions Judge,
Special Court for Exclusive trial of Cases
under POCSO Act
Thiruvallur
3. The Inspector of Police
J.J.Nagar Police Station
i/c Thirumangalam All Women Police Station
Chennai District
4. The Public Prosecutor
High Court of Madras
Chennai 600 104Judgment in
Criminal Appeal No.236 of 202614.07.2026
