Section 164 CrPC Statement Can Be Used For POCSO Conviction Where Victim Turns Hostile But Admits Signature & Does Not Allege Coercion: Madras High Court

The Court was hearing a criminal appeal filed challenging the judgment passed by the Fast Track Mahila Court, Theni, convicting the appellant for offences under Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 506 IPC and sentencing him to life imprisonment.

A Division Bench of Justice N. Anand Venkatesh and Justice K.K. Ramakrishnan observed: “The statement recorded under Section 164 of Cr.P.C. can be used both for contradiction as well as corroboration. Since PW3 has not denied that she gave the statement before the learned Magistrate and the signature found in Exhibit P1 is her signature, the same can be used for corroboration.”

Advocate Mayilvahana Rajendran appeared for the appellant. D. Venkatesh, Counsel for the State (Criminal Side), appeared for the respondent-State.

Background

The prosecution case concerned allegations of penetrative sexual assault upon a minor girl, pursuant to which an FIR came to be registered for offences under the POCSO Act and IPC provisions relating to criminal intimidation. During the investigation, the victim girl was subjected to medical examination and her statement under Section 164 Cr.P.C. was recorded before the Judicial Magistrate.

The medical examination conducted during the investigation revealed that the victim was pregnant. The prosecution thereafter proceeded with an investigation and ultimately filed a final report before the Special Court, following which charges came to be framed against the accused under Section 5(l) read with Section 6 of the POCSO Act and Sections 506(1) and 506(2) IPC.

During the trial, the prosecution examined fourteen witnesses and marked documentary evidence, including the Section 164 statement, medical records and DNA reports. The trial court convicted the accused under the POCSO Act and sentenced him to life imprisonment, apart from convicting him under Section 506 IPC.

Aggrieved by the conviction and sentence, the accused preferred the present criminal appeal before the High Court, contending that the victim girl and her parents had not supported the prosecution's case and had turned hostile during the trial. The appellant further questioned the DNA evidence by alleging defects in the collection of blood samples, the chain of custody and the furnishing of documents under Section 207 Cr.P.C.

Court’s Observation

The High Court noted at the outset that the victim girl and her parents had turned hostile during trial and had not supported the prosecution's case.

The Court observed: “In the case on hand, neither the victim girl nor her parents (PW1 to PW3) supported the case of the prosecution and all of them turned hostile.”

However, the Court noted that the victim girl had admitted that the signature found in the Section 164 Cr.P.C. statement was her signature and had not alleged that the statement was recorded under any threat or coercion.

The Court observed: “PW3, who is the victim girl, has admitted that the signature that is found in the 164 statement is her signature and she does not state that the statement was recorded under any threat or coercion.”

The Bench further observed that the statement recorded under Section 164 Cr.P.C. could be used both for contradiction and corroboration, and therefore, the same could legitimately be relied upon for corroborative purposes despite the victim turning hostile during trial.

The Court thereafter examined the DNA evidence, which it described as the “clinching evidence” relied upon by the prosecution. The Court reconstructed in detail the sequence leading to DNA examination and noted that the need for DNA testing arose only after the filing of the final report, since the child was born subsequently.

The Court recorded that pursuant to a communication issued by the Child Welfare Committee, the investigating officer moved applications before the trial court for obtaining FTA cards and collection of blood samples from the accused, the victim girl and the child. Blood samples were thereafter collected at the Government Medical College Hospital and forwarded through the court to the Forensic Science Laboratory, Madurai.

The Court observed: “It is quite clear from the above sequence of events that the need for conducting the DNA test arose only after the final report was filed.”

Rejecting the challenge regarding the collection of blood samples and chain of custody, the Court held that no such objection had ever been raised during trial and no question had been put to the investigating officer during cross-examination on these aspects.

The Court observed: “It is too late in the day for the appellant to raise any doubts regarding the collection of blood samples since it was not even questioned by the appellant at any point of time and not a single question was raised to the investigating officer during cross-examination.”

The Court further held that there was no material to indicate any tampering of blood samples since the samples had been collected by a government medical officer, immediately sent to the court and thereafter forwarded to the Forensic Science Laboratory within a short period.

The Bench also rejected the appellant’s contention regarding non-furnishing of documents under Section 207 Cr.P.C. and observed that DNA-related documents did not exist at the time of filing of the police report because the child was born subsequently.

The Court observed that the accused was in possession of the relevant documents during the trial, which was evident from the cross-examination conducted on the basis of those documents before the trial court.

The Court also rejected the argument that DNA-related documents were improperly marked by the investigating officer and noted that PW13, the Deputy Director of the Forensic Science Laboratory, Madurai, had been examined during trial and had fully explained the DNA report.

The Bench observed: “This sufficiently establishes that the DNA report was properly prepared and marked in the court and it was also explained by PW13 who is none other than the Deputy Director of FSL, Madurai.”

Distinguishing the Supreme Court judgment in Karandeep Sharma (2025), the Court observed that the said case involved serious procedural lapses in the collection and sealing of DNA samples as well as denial of adequate opportunity during trial, whereas no such infirmities existed in the present case.

The Court concluded that the DNA report conclusively established paternity and thereby substantiated the charge of penetrative sexual assault. The Bench further held that the DNA evidence stood corroborated by the Section 164 Cr.P.C. statement of the victim girl.

While examining the nature of the offence under the POCSO Act, the Court observed that the charge under Section 5(l) read with Section 6 could be sustained only where penetrative sexual assault was committed repeatedly or more than once. Since the victim girl had not supported the prosecution's case during the trial, there was no evidence clearly establishing repeated assaults.

Accordingly, the Court held that the conviction could appropriately be altered from Section 5(l) to Section 5(j)(ii) of the POCSO Act without causing prejudice to the accused since the consequence under Section 6 remained the same.

The Court also held that the conviction under Section 506 IPC could not be sustained since the victim girl had turned hostile and had not supported the allegation relating to criminal intimidation.

Conclusion

The Madras High Court partly allowed the criminal appeal and modified the judgment passed by the Fast Track Mahila Court, Theni.

The Court altered the conviction from Section 5(l) read with Section 6 of the POCSO Act to Section 5(j)(ii) read with Section 6 of the POCSO Act and modified the sentence of life imprisonment to rigorous imprisonment for a term not less than 20 years.

The conviction under Section 506 IPC was set aside.

Cause Title: Murugan v. State rep. by Inspector of Police (Neutral Citation: 2026:MHC:1907)

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