Conviction Cannot Be Based Solely On S. 164 CrPC Statement If Victim Turns Hostile During Trial: Allahabad High Court

Setting aside a 2011 trial court conviction in a kidnapping case, a bench of Justice Subhash Vidyarthi ruled that since Section 164 CrPC statement is not recorded in the presence of the accused, he has no opportunity to cross-examine the witness and hence, it can't be relied upon to hold the accused guilty

Case in brief

An FIR was lodged on March 11, 2009, by a father alleging that his 14-year-old daughter was kidnapped in a Maruti car by the appellant (Lal Babu) and his brother. The victim was recovered the next day while in the company of the appellant.

The medico-legal examination report of the victim revealed no mark of injury on any part of her body, including her private parts and her age was radiologically estimated to be around 16 years.

In her Section 164 CrPC statement, the victim deposed against the accused and supported the prosecution's case of kidnapping.

However, during the trial, all the key witnesses, including the complainant (father), the younger sister who allegedly witnessed the kidnapping, and the victim herself, turned hostile.

The victim deposed before the trial court that she had left home in anger to stay with a relative and categorically denied being kidnapped. She further said that her earlier statement under Section 164 CrPC was given under pressure from the police.

Despite this, the Trial Court convicted the accused. Relying on the chargesheet and the victim's Section 164 CrPC statement, the court sentenced the appellant to five years' imprisonment.

The trial court noted that the witnesses had likely resiled from the prosecution's version due to "social pressure" and to save the family's reputation.

High Court's Observations

However, while hearing the criminal appeal, the High Court termed the trial court's approach a "patent error of law" for convicting the appellant solely on the basis of the victim's statement recorded under Section 164 CrPC, from which she had resiled during her examination on oath in the Court.

The bench stressed that criminal jurisprudence requires the prosecution to prove its case beyond a reasonable doubt using evidence recorded in the presence of the accused.

Referring to Section 273 CrPC, the bench noted that all evidence in a criminal trial must be recorded in the presence of the accused so that they have a fair opportunity to test the veracity of the statements through cross-examination.

The bench noted that the statement under Section 164 CrPC is recorded by a Magistrate during the investigation stage, not during the trial and the accused has no opportunity to cross-examine the deponent when a Section 164 statement is recorded.

Hence, it added, the same cannot be treated as substantive evidence and no person can be convicted on the basis of a statement recorded under Section 164 CrPC

The bench also referred to the Supreme Court's judgment in Jayendra Vishnu Thakur v. State of Maharashtra, 2009. The High Court reiterated that the right to watch prosecution witnesses depose and to cross-examine them is a valuable statutory right.

Against this backdrop, observing that the trial court convicted the appellant on material collected "behind the back of the accused", the High Court allowed the appeal and set aside the 2011 judgment. The appellant was thus acquitted of the charge under Section 366 IPC.

Case Title - Lal Babu Versus State of U.P. 2026 LiveLaw (AB) 408

Case Citation: 2026 LiveLaw (AB) 408

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