Full Judgment Text
2026:MHC:1907
Crl. A(MD)No.1034 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 03.06.2026
PRONOUNCED ON : 05.06.2026
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl. A(MD)No.1034 of 2023
Murugan : Appellant(s)
Vs.
The State rep. by
The Inspector of Police,
Bodinayakkanur Taluk Police Station,
Theni District.
Crime No.125 of 2020. : Respondent(s)
PRAYER: Criminal Appeal is filed under Section 374(2) of the Code of
Criminal Procedure, to call for records and set aside the conviction and
sentences imposed by the learned Fast Track Mahila Court, Theni, in
Spl.S.C.No.27 of 2020 dated 31.07.2023 and acquit the appellant.
For Appellant : Mr.Mayilvahana Rajendran
For Respondent : Mr.D.Venkatesh
Counsel for the State (Crl. side)
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Crl. A(MD)No.1034 of 2023
J U D G M E N T
(Judgment of the Court was
delivered by N.ANAND VENKATESH, J.)
The sole accused in the present appeal has assailed the judgement
passed by the Fast Track Mahila Court, Theni, in Special S.C.No.27 of
2020, dated 31.07.2023, wherein the appellant has been convicted for
offence under Section 5(l) read with Section 6 of the “Protection of
Children from Sexual Offences Act, 2012” (hereinafter referred to as
“Act” for brevity) and sentenced to undergo life imprisonment and to pay
a fine of Rs.1000/-, in default to undergo one month simple
imprisonment and was also convicted for offence under Section 506 of
IPC and sentenced to undergo one month simple imprisonment. The
sentences were directed to run concurrently.
2. The case of the prosecution is that the appellant, who was aged
about 40 years, called the victim girl, who was aged about 13 years, to
the house of one Balaji on 18.01.2020 at 2.00 PM and committed
penetrative sexual assault on her. He also threatened the victim girl not to
disclose the occurrence to anyone. The further case of the prosecution is
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that the appellant repeatedly committed the said offence and once again
threatened the victim girl on 16.02.2020 not to reveal about the same to
anyone.
3. The incident came to light and PW1, who is the mother of the
victim girl, gave a complaint (Exhibit P6) to PW11 based on which an
FIR came to be registered in Crime No.125 of 2020 (Exhibit P7) for
offences under Section 5(l) r/w 6 of the Act and Section 506(1) of IPC.
4. The investigation was taken over by PW14 and the investigation
officer went to the scene of crime on 29.03.2020 at about 11.00 AM and
recorded the statements of the victim girl and her parents and others. An
observation mahazar (Exhibit P11) and rough sketch (Exhibit P12) were
prepared. The accused person was arrested on the same day at about
15.30 hours and he was produced before the concerned court and
remanded to judicial custody.
5. PW14 proceeded to collect the school certificate (Exhibit P4)
from the Headmaster of the Government High School (PW6). He
ascertained the date of birth of the victim girl as 29.05.2006. The
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statement of the Headmaster was also recorded.
6. The victim girl was subjected to medical examination and the
medical examination was conducted by PW12, who found that the victim
girl was five weeks pregnant. The certificate of examination (Exhibit P8)
was issued and the following finding has been rendered:
“Examination:
The person examined was moderately built and
moderately nourished. Her physical and mental status
was normal for her age. Her secondary sexual characters
were well developed gives history of 02 months of
ammenorhoea, Per abdomen examination – soft.
Pervaginal examination hymen not intact, vagina admits
one finger, no discharge. No external injuries over breast
or genitalia Uterus – anteverted bulky. UPT – Positive.”
7. The victim girl was produced before the Judicial Magistrate and
her statement under Section 164 of Cr.P.C. was recorded (Exhibit P1).
8. After recording the statements of the witnesses under Section
161(3) of Cr.P.C., and after completion of investigation, the police report
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came to be laid before the Special Court which was taken on file in
Special S.C.No.27 of 2020.
9. The Special Court framed charges against the accused person for
offences under Sections 5(l) r/w 6 of the Act, Section 506(2) and 506(1)
of IPC. The accused person denied the charges when he was questioned.
10. The prosecution examined PW1 to PW14 and marked Exhibits
P1 to P24.
11. The incriminating circumstances and evidence was put to the
accused person when he was questioned under Section 313(1)(b) of
Cr.P.C. and he denied the same as false.
12. The accused person did not examine any witness nor mark any
documents.
13. The trial court on considering the facts and circumstances of
the case and on appreciation of oral and documentary evidence, came to
the conclusion that the prosecution has laid the foundational facts and the
legal presumption of the commission of offence has not been rebutted by
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the accused person and accordingly, convicted and sentenced the accused
person in the manner stated supra. Aggrieved by the same, the present
appeal has been filed before this Court.
14. This Court has carefully considered the submissions made on
either side and the materials available on record.
15. The main ground that was urged by the learned counsel for the
appellant is that neither the victim girl nor her parents supported the case
of the prosecution and the trial court had convicted the appellant only
based on the DNA report. There were no materials to show that there was
proper chain of custody and whether the samples were properly taken.
Apart from that, the relevant documents were marked through the
investigating officer and not through the expert who had prepared the
report. The relevant documents pertaining to the DNA test came to
surface only after the filing of the final report and those copies were not
furnished to the accused person as mandated under Section 207 of
Cr.P.C. In view of the same, it is submitted that the conviction and
sentence of the accused person is not sustainable. The learned counsel in
order to substantiate the submission would rely upon the judgment of the
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Apex Court in Karandeep Sharma @ Razia @ Raju v. State of
Uttarkhand , in Criminal Appeal Nos.630 to 631 of 2018, dated
04.03.2025.
16. Per contra, Mr.D.Venkatesh, learned Counsel appearing for the
respondent-State submitted that the investigation officer has clearly
explained the manner in which the sample was taken and sent for DNA
test and the investigation officer has not been confronted with any
questions during cross-examination to assail the taking of samples and
the DNA report collected from the expert. Insofar as the furnishing of
documents is concerned, the copies were furnished to the accused person
and it is only based on the same, the cross-examination was done by the
accused person through his counsel. The judgment that was relied upon
by the counsel for the appellant will not apply to the facts of the present
case. Hence, it is contended that there are no merits in this criminal
appeal and the same is liable to be dismissed by this Court.
17. 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. PW3, who is the victim girl, has admitted that the
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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.
She even goes to the extent of denying the birth of the child. 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.
18. The clinching evidence in this case that was strongly relied
upon by the prosecution is the DNA report that was marked as Exhibits
P9, P10, P18, P19, P20, P21 and P24. The DNA report makes it
abundantly clear that the appellant is the father of the child that was born
to the victim girl/PW3.
19. In the case in hand, the child was born to PW3 only on
24.10.2020, after the final report was filed in this case. Hence, the Child
Welfare Committee had sent a letter dated 17.12.2020 to the investigation
officer to take necessary steps for DNA test. Based on the same, the
investigation officer submitted an application to the trial court on
05.01.2021 to get FTA card and the same was allowed by the trial court
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by letter dated 06.01.2021. The trial court had sent a letter to the Deputy
Director, Forensic Science Laboratory, Madurai, to furnish FTA card and
accordingly, the FTA card along with the covering letter was received
from the Deputy Director. Pursuant to the same, on 20.01.2021, the
investigation officer submitted an application for collecting blood
samples from the accused person, victim girl and the child. On receipt of
this letter, the trial court through a communication dated 01.02.2021
informed the Medical Officer, Government Medical College Hospital,
Theni, to collect the blood samples. On 10.02.2021, the blood samples
were collected and sent to the trial court with a covering letter. On receipt
of the same, the trial court sent a communication to the Assistant
Director, Forensic Science Laboratory, Madurai, on 16.02.2021 to
analyse the blood samples and to send the DNA report. The DNA report
dated 11.08.2021 was prepared and it was sent to the trial court on
02.09.2021. On 04.09.2021, the DNA report was submitted to the trial
court.
20. 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. It
is too late in the day for the appellant to raise any doubts regarding the
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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. Even insofar as the chain
of custody is concerned, the blood samples were collected by the medical
officer of the Government Medical College Hospital, Theni, on
10.02.2021 and within 6 days it was sent to the FSL, Madurai and the
DNA report was prepared on 11.08.2021. Therefore, there is no material
to show that there was any tampering of the blood samples collected,
since it has gone to the court immediately and thereafter was sent to the
FSL.
21. The other ground that was raised by the learned counsel for the
appellant as if documents were not furnished to the accused person as
mandated under Section 207 of Cr.PC., is again unsustainable. None of
the documents pertaining to DNA was available at the time of filing of
the police report. The child was born only after filing of the police report
and thereafter steps were taken to conduct the DNA test. The fact that the
copy of the relevant documents was furnished to the accused person is
evident from the fact that the accused person had put questions to PW13,
who is the Deputy Director of FSL, Madurai, based on those documents
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which shows that the accused person was very much in possession of the
relevant documents pertaining to the DNA test.
22. It is submitted that the relevant documents pertaining to the
DNA test ought not to have been marked through the investigation
officer and only the person who made the report ready should have been
examined. PW13 has been examined in this regard and he explained
about the DNA report and sufficient questions have been put to the
witness during cross-examination. In view of the same, the accused
person had sufficient opportunity to assail the DNA report and after
having availed the opportunity, the accused person cannot be allowed to
turn around and question the collection of samples, furnishing of
documents and opportunity to cross-examine during the trial.
23. The judgment that was relied upon by the learned counsel for
the appellant will not have any application to the facts of the present
case. That was a case where the accused is said to have committed sexual
assault on a child who was later found dead in a nearby field. The hair of
the suspect is said to have been recovered from the body of the child and
was sent for DNA profiling and the report was relied upon. The Apex
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Court rendered the findings that the procedure of collection and
forwarding of DNA samples to the FSL was full of lacunae and loopholes
and even at the very inception, the procedure of collecting the samples
was tainted, since it was not sealed when it was sent to the FSL. That
apart, the Apex Court found that the entire trial had been conducted in a
hasty manner without giving reasonable opportunity to the accused
person to cross-examine the witnesses. Therefore, it was held that the
DNA report has to be necessarily eschewed and in the absence of any
other evidence, the accused therein was entitled for an acquittal.
24. In the case in hand, the blood samples were taken not only
from the accused person and the victim girl but it was also taken from the
child that was born to the victim girl. The collection of blood samples
was never questioned by the accused person. Thereafter, it was sent to
the court and within a short time, the court had handed over the same to
the FSL. The FSL report was submitted to the trial court and PW13, was
examined on the side of the prosecution to talk about the DNA report.
25. This sufficiently establishes that the DNA report was properly
prepared and marked in the court and it was also explained by PW13
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who is none other than the Deputy Director of FSL, Madurai.
26. The trial court was perfectly right in relying upon the DNA
report to come to the conclusion that the child was born to the appellant
and the victim girl and that clearly laid the foundational fact to
substantiate the charge of penetrative sexual assault against the victim
girl. It was corroborated by the 164 statement that was recorded by the
victim girl which was marked as Exhibit P1.
27. In the light of the above discussion, the grounds that were
raised by the learned counsel for the appellant does not carry any merit
and the same is liable to be rejected by this Court.
28. The charge that has been framed against the accused person
was for offence under Section 5(l) r/w Section 6 of the Act. This charge
can be sustained only in a case where penetrative sexual assault is
committed on the child more than once or repeatedly. Since PW3 did not
support the case of the prosecution, it is not clear as to whether there
were repeated penetrative sexual assaults on the child. In view of the
same, it will be appropriate to bring this case under Section 5(j)(ii) of the
Act and its consequence will be the same. Therefore, by altering the
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offence, no prejudice will be caused to the accused person.
29. Insofar as the sentence imposed by the trial court, considering
the facts and circumstances of the case and also taking note of the fact
that the victim girl and her parents had chosen to remain hostile, this
Court is inclined to modify the sentence. Accordingly, the sentence of life
imprisonment is modified to one of rigorous imprisonment for a term not
less than 20 years as provided under Section 6 of the Act.
30. Insofar as the charge under Section 506 of IPC is concerned,
since PW3 has turned hostile, this charge cannot be sustained and hence,
the conviction under this provision has to be set aside.
31. In the result, this criminal appeal is partly allowed in the
following terms:
(a) The judgment of the learned Sessions Judge,
Fast Track Mahila Court, Theni, made in Special
S.C.No.27 of 2020 dated 31.07.2023 is modified and the
appellant is convicted for offence under section 5(j)(ii)
of the Act and sentenced to undergo rigorous
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imprisonment for a term not less than 20 years; and
(b) The conviction under Section 506 of IPC is set
aside.
[N.A.V., J.] [K.K.R.K., J.]
05.06.2026
Index : Yes/No
Internet : Yes
Neutral Citation : Yes
PKN
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Crl. A(MD)No.1034 of 2023
To
1.The Sessions Judge, Fast Track Mahila Court, Theni.
2.The Inspector of Police,
Bodinayakkanur Taluk Police Station,
Theni District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
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Crl. A(MD)No.1034 of 2023
N.ANAND VENKATESH, J.
AND
K.K.RAMAKRISHNAN, J.
PKN
Judgment made in
Crl.A.(MD)No.1034 of 2023
05.06.2026
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