A statement under Section 164 Cr.P.C. cannot serve as substantive evidence for conviction without corroborating evidence, especially when key witnesses turn hostile.

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:

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.

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.

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 victim turned 16 years old that she lodged the complaint. It is not in dispute that the victim had also given a st