The Allahabad High Court has held that an accused cannot be convicted solely on the basis of a statement recorded under Section 164 of the Code of Criminal Procedure (CrPC) when the victim and other key prosecution witnesses turn hostile during the trial. Setting aside a conviction under Section 366 of the Indian Penal Code (IPC), Justice Subhash Vidyarthi emphasized that a statement recorded under Section 164 CrPC is not substantive evidence and cannot, by itself, form the sole basis for conviction because it is recorded during the investigation stage, outside the presence of the accused, who has no opportunity to cross-examine the maker of the statement.
The case arose from an FIR lodged on 11 March 2009, in which the father of a minor girl alleged that his approximately 14-year-old daughter had been kidnapped by the appellant, Lal Babu, and another person in a Maruti car. According to the prosecution, the girl was recovered the following day while she was in the company of the appellant. During the investigation, the victim's statement was recorded before a Judicial Magistrate under Section 164 CrPC, wherein she supported the prosecution's allegations of kidnapping.
The investigation also included a medico-legal examination of the victim. The medical report reportedly revealed no external injuries, including on her private parts, and her radiological examination estimated her age to be around 16 years. After completing the investigation, the police filed a charge sheet against the accused, and the matter proceeded to trial before the Sessions Court.
A dramatic change occurred during the trial when all the principal prosecution witnesses turned hostile. The complainant-father, the victim's younger sister—who had allegedly witnessed the incident—and the victim herself did not support the prosecution's case. The victim testified before the trial court that she had left her home voluntarily after becoming upset and had gone to stay with a relative. She categorically denied that she had been kidnapped by the appellant. She further stated that the statement she had earlier given before the Magistrate under Section 164 CrPC had been made under pressure from the police and did not reflect the true facts.
Despite the complete collapse of the prosecution's oral evidence during trial, the Sessions Court proceeded to convict the accused. The trial court primarily relied upon the victim's earlier Section 164 CrPC statement and the material collected during investigation. It reasoned that the witnesses had probably retracted their earlier allegations due to social pressure and concern for the family's reputation. On that basis, the accused was convicted and sentenced to five years' imprisonment under Section 366 IPC.
The accused challenged the conviction before the Allahabad High Court. Examining the record, Justice Subhash Vidyarthi found the approach adopted by the trial court to be legally unsustainable. The High Court observed that the conviction had effectively been based upon material collected during investigation rather than on admissible evidence tested during trial. Such an approach, the Court held, violated the settled principles of criminal jurisprudence, which require guilt to be established through legally admissible evidence recorded before the trial court.
The High Court attached particular importance to the distinction between a Section 164 CrPC statement and substantive evidence recorded during trial. It explained that a statement under Section 164 is recorded by a Magistrate during the course of investigation. At that stage, the accused has no right to be present and no opportunity to cross-examine the witness. Consequently, such a statement cannot by itself be treated as substantive evidence establishing guilt. Instead, its principal purpose is to preserve the witness's version during investigation and, where appropriate, to corroborate or contradict testimony given during the trial.
The Court referred to Section 273 CrPC, which mandates that evidence in criminal trials must ordinarily be recorded in the presence of the accused. This statutory safeguard ensures that the accused has a meaningful opportunity to observe witnesses, challenge their testimony through cross-examination, and expose any inconsistencies or falsehoods. The High Court observed that this right forms an integral component of a fair criminal trial and cannot be bypassed by relying exclusively upon statements recorded behind the accused's back during investigation.
Justice Vidyarthi further relied upon the Supreme Court's decision in Jayendra Vishnu Thakur v. State of Maharashtra, which recognizes that the accused's right to cross-examine prosecution witnesses is a valuable statutory safeguard. The High Court reiterated that cross-examination is one of the most effective methods for testing the truthfulness, reliability, and credibility of witnesses. Since a Section 164 statement is not subjected to such scrutiny at the time of recording, it cannot independently sustain a criminal conviction.
The judgment also criticised the reasoning adopted by the Sessions Court in presuming that the witnesses had turned hostile due to social pressure. While courts may, in appropriate cases, evaluate whether hostile testimony is influenced by external factors, such assumptions cannot substitute for legal proof. Criminal convictions must rest upon evidence that satisfies the standard of proof beyond reasonable doubt, rather than speculation regarding why witnesses may have altered their version.
Applying these principles, the High Court concluded that the prosecution had failed to establish the charge beyond reasonable doubt. Since the victim herself denied the occurrence of kidnapping during her sworn testimony before the trial court, and every other material witness also failed to support the prosecution, there remained no substantive evidence proving the appellant's guilt. The earlier Section 164 statement, standing alone, could not legally fill that evidentiary gap.
Accordingly, the Allahabad High Court allowed the criminal appeal, set aside the trial court's judgment delivered in 2011, and acquitted the appellant of the charge under Section 366 IPC. The Court held that the conviction was founded upon a patent error of law, as it relied solely upon a Section 164 CrPC statement recorded during investigation without any supporting substantive evidence produced during trial.
The ruling is significant because it reaffirms a well-established principle of Indian criminal law: a statement recorded under Section 164 CrPC is not substantive evidence and cannot, by itself, sustain a conviction when the maker resiles from it during trial. While such statements may be used for corroboration or contradiction in accordance with the Evidence Act, they cannot replace testimony recorded before the trial court in the presence of the accused. The judgment underscores that the constitutional guarantee of a fair trial requires convictions to be based on evidence subjected to adversarial testing through cross-examination.
In conclusion, the Allahabad High Court reaffirmed that the right of an accused to confront and cross-examine prosecution witnesses is fundamental to a fair criminal trial. By holding that a conviction cannot rest solely upon a Section 164 CrPC statement after the victim has turned hostile, the Court strengthened the principles of due process, evidentiary fairness, and proof beyond reasonable doubt. The decision serves as an important reminder that criminal courts must base convictions on substantive evidence presented during trial rather than solely on investigative material recorded outside the accused's presence.
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