High Court · 2025

Crl.A.No.1359 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.08.2025CORAMTHE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYANCrl.A.No.1359 of 2025 &Crl.MP.No.16316 of 2025Jaikumar ... AppellantVs.State represented ByThe Inspector of Police,Gudiyatham Police Station,Vellore District(crime No.12 of 2024) ... RespondentPRAYER: Criminal Appeal filed under Section 415 of BNSS, 2023, praying to set aside the judgment passed by the learned Special Court for Exclusive Trial of Cases under POCSO Act, Vellore in Special SC.No.15 of 2025 dated 18.08.2025 and allow this criminal appeal.For Appellant: Mr.K.T.S.SivakumarFor Respondent: Mr.S.Raja Kumar, Additional Public ProsecutorJUDGMENT1/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 2025This criminal appeal is directed against the judgment passed by the learned Special Court for Exclusive Trial of Cases under POCSO Act, Vellore in Special SC.No.15 of 2025 dated 18.08.2025, thereby convicted the appellant for the offence under Section 9(m) r/w Section 10 of POCSO Act. 2.The case of the prosecution was that when the minor victim girl was playing along with other children on 09.05.2024, the accused attempted to commit aggravated sexual assault on her. On the lodgement of complaint, the respondent registered FIR in crime No.12 of 2024 for the offence punishable under Sections 9(l), 9(m) r/w 10 of POCSO Act. After completion of investigation, final report was filed and the same was taken cognizance by the Trial Court. 3.In order to prove the charges, the prosecution had examined PW1 to PW5 and marked Ex.P1 to Ex.P10. On the side of the accused, no one was examined and no documents were marked before the trial court as defence documents. On perusal of oral and documentary evidences, the trial court found the appellant guilty for the offence punishable under Section 9(m) r/w 10 of POCSO Act and sentenced him to undergo five 2/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 2025years rigorous imprisonment with fine of Rs.10,000/-, in default, to undergo three months simple imprisonment. Aggrieved by the same, the present criminal appeal has been filed by the accused. 4.The learned counsel for the appellant would submit that the entire conviction was rendered based on the statement recorded under Section 164 of Cr.P.C. The statements of victim as well as her mother were recorded and marked as Ex.P6 and Ex.P7. The victim’s statement did not suppor the case of the prosecution. Only based on the statement of the victim’s mother, the trial court convicted the appellant. The victim and her mother were examined as PW2 and PW1 respectively. The grand mother and father of the victim were examined as PW3 and PW4 respectively. PW1 to PW4 did not support the case of the prosecution and they turned hostile. Therefore, the Trial Court ought not have convicted the appellant on the strength of the statement recorded under Section 164 of Cr.P.C. 5.Per contra, the learned Additional Public Prosecutor submitted that though the victim turned hostile before the trial court, she stated in her statement recorded under Section 164 of Cr.P.C. that the 3/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 2025appellant had inappropriately touched the victim. It is also clearly corroborated by the statement recorded under Section 164 of Cr.P.C. of her mother. Therefore, the Trial Court rightly convicted the appellant and it does not warrant any interference by this Court. 6.Heard, the learned counsel appearing on either side and perused all the materials placed before this Court.7.On perusal of the statement of the victim recorded under Section 164 of Cr.P.C., it is stated as follows: eP mHfhf ,Uf;fpwha; ey;y khld;khldh ou!; nghl;Lf;nfh nkf;fg; nghl;Lf;nfh ehd; ou!; ijj;J jUfpnwd; vd;whh;/ vdf;F vd;d gpof;Fk; vd;W nfl;lhh;/ ehd; vJt[k; gpof;fhJ vd;W Twpndd;/ cdf;F ilyhp'; fw;W jUfpnwd; vd;whh;/ ehd; vdJ mk;khtplk; nfl;L brhy;tjhf Twpndd;/ mjd; gpd;dh; vd; kPJ if nghl;L vdJ tyJ gf;f if mUnf jltpdhh;/ mjd; gpd;dh; ehd; vdJ mk;khtplk; ngha; brhd;dhh;/4/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 20258.Thus, it is clear that even according to the minor victim girl, the appellant touched her right hand. The victim’s mother’s statement was also recorded under Section 164 of Cr.P.C. on the same day. She stated that the appellant had touched the victim's breast. But both turned hostile before the Trial Court. The victim girl was examined as PW2 and she deposed that while she was playing with other friends, she fell down and as such, she felt some pain on her body. It is relevant to extract the portion of her deposition as follows: vd;Dila gf;fj;JtPl;L bgz; kw;Wk; vd;Dila epiwa gpuz;l;!; cld; rha;e;juk; Rkhh; 5/30 kzp ,Uf;Fk; tpisahof;bfhz;oUe;njd;/ tpisahz;L bfhz;oUe;J nghJ g{r;broapy; g{ mWf;fyhk;D nghndd;/ g{ mWj;Jf;bfhz;oUe;j nghJ ahnuh fj;jp Tr;ry; nghl;lhh;fs;/ vd;Dila ghl;o tPl;o thrypy; ,Ue;j bjUtpw;F tUk;nghJ vdJ ,lJ gf;f jpirapy; cs;s gf;fj;JtPl;oy; g{r;bro cs;sJ/ ahnuh fj;jp Tr;ry; nghl;ljdhy; ehd; gae;J bfhz;L Xo te;Jtpl;nld;/ Xo tUk;nghJ fPnH tpGe;Jtpl;nld;/ vdJ ,lJ fhy; Kl;oapy; mogl;lJ/ typr;rJ/ mGJbfhz;nl ngha; mk;khtplk; brhd;ndd;/ mk;khtplk; fPnH tGe;Jtpl;nld;. g{ mWf;Fk;nghJ fPnH tpGe;Jtpl;nld; vd;W brhd;ndd;/5/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 20259.Therefore, the victim did not even whisper about the alleged occurrence and she did not support the case of the prosecution. The mother of the victim was examined as PW1. PW1 also deposed and it was same as the deposition of PW2 since she was only a hear say evidence. The victim’s grandmother was examined as PW3. She also turned hostile before the Trial Court. The victim’s father was examined as PW4. He also turned hostile before the Trial Court and the depositions of PW3 & PW4 was same as that of PW1. But the Trial Court convicted the appellant only on the basis of the statement recorded under Section 164 of Cr.P.C. The Hon’ble Supreme Court of India repeatedly held that the conviction done only on the strength of the statement recorded under Section 164 of Cr.P.C. cannot be sustained, since it cannot be used as a sole evidence for the purpose of convicting the accused. Though the statement recorded under Section 164 of Cr.P.C. plays an important role in the conviction of an accused, it cannot be solely relied as a single piece of evidence because the prosecution needs to establish the accused’s guilt beyond reasonable doubt. The role of Section 164 of Cr.P.C. in POCSO cases holds significant implications for the judicial process, victims and accused. The offence under POCSO Act is a grave offence that demands 6/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 2025balance between securing justice for the victims and safeguarding the rights of the accused. While statement recorded under Section 164 of Cr.P.C. holds evidenciary value, its weight in establishing guilt must be determined by the court based on the totality of the evidence presented during the trial. In this case, the prosecution failed to prove the charges beyond any doubt and it lacks corroborative evidence. Therefore, the benefit of doubt goes in favour of the accused. 10.In criminal jurisprudence, the burden is always on the prosecution to prove its case beyond reasonable doubt. When two views are possible and the one favourable to the accused is equally plausible, the benefit of doubt must necessarily go to the accused. In the present case, the prosecution has failed to discharge its burden convincingly, and the trial Court failed to properly appreciate the infirmities in the prosecution case. Therefore, the conviction and sentence awarded by the trial Court in respect of all the charges against the appellant cannot be sustained and are liable to be set aside.11.Accordingly, this Criminal Appeal is allowed and the judgment passed by the learned Special Court for Exclusive Trial of 7/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 2025Cases under POCSO Act, Vellore in Special SC.No.15 of 2025 dated 18.08.2025, is set aside. The appellant is acquitted of all charges under Section 9(m) r/w Section 10 of POCSO Act. The appellant is directed to be set at liberty forthwith unless his custody is otherwise required in connection with any other case. Fine amount, if any paid, shall be refunded to the appellant forthwith. Bail bond, if any executed, shall stand cancelled. Consequently, connected miscellaneous petition is closed. 28.08.2025 lok(2/2)8/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 2025To1.The learned Special Court for Exclusive Trial of Cases under POCSO Act, Vellore 2.The Inspector of Police,Gudiyatham Police Station,Vellore District3.The Public Prosecutor,High Court, Madras.G.K.ILANTHIRAIYAN, J.9/10 https://www.mhc.tn.gov.in/judis Crl.A.No.1359 of 2025lokCrl.A.No.1359 of 2025 &Crl.MP.No.16316 of 202528.08.2025(2/2)10/10