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Overview
The Allahabad High Court (Lucknow Bench) has set aside a 2011 trial court conviction in a kidnapping case, holding that an accused cannot be convicted solely on the strength of a statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (CrPC) once the victim and other prosecution witnesses turn hostile during trial. The bench reasoned that because a Section 164 CrPC statement is recorded without the accused being present — and therefore without any opportunity for cross-examination at that stage — it cannot, by itself, carry an accused’s guilt across the line once the makers of that statement resile from it in open court.
- Case: Lal Babu v. State of U.P.
- Citation: 2026 LiveLaw (AB) 408
- Bench: Justice Subhash Vidyarthi
- Court: Allahabad High Court, Lucknow Bench
- Date: 14 July 2026
Facts
The appellant had been convicted by a trial court in 2011 in a case involving an offence of kidnapping under Section 366 of the Indian Penal Code, 1860 (IPC). During investigation, a statement had been recorded under Section 164 CrPC. At trial, however, the victim and other prosecution witnesses turned hostile and did not support the prosecution’s version. Despite this, the trial court proceeded to convict the appellant, relying substantially on the Section 164 CrPC statement recorded years earlier. The appellant challenged the conviction before the Allahabad High Court.
What the Court Held
1. A Section 164 CrPC statement is not substantive evidence. The Court reasoned that a statement recorded under Section 164 CrPC is taken by a Judicial Magistrate during investigation, before the accused enters the picture as a participant able to test it. Because the accused has no opportunity to cross-examine the maker of the statement at the time it is recorded, such a statement cannot be treated as substantive evidence capable of independently proving guilt.
2. Its use is limited to corroboration or contradiction. The Court held that the proper evidentiary role of a Section 164 CrPC statement is confined to corroborating or contradicting the witness’s testimony given later in court, in the manner contemplated for previous statements. It is not a substitute for evidence tested by cross-examination at trial.
3. Hostile testimony strips the statement of its anchor. Once the victim and the other prosecution witnesses turned hostile and declined to support the Section 164 CrPC version at trial, there was no surviving in-court testimony for that statement to corroborate. On the facts, that left the prosecution without the substantive evidence needed to sustain a conviction.
4. Conviction set aside; appellant acquitted. Applying this reasoning, the Court set aside the 2011 trial court conviction and acquitted the appellant, holding that a conviction cannot be allowed to rest solely on a Section 164 CrPC statement in the absence of corroborating substantive evidence.
Precedents Relied On
The Allahabad High Court’s reasoning tracks a settled line of Supreme Court authority on the limited evidentiary status of statements recorded under Section 164 CrPC:
- R. Shaji v. State of Kerala, (2013) 14 SCC 266 — the Supreme Court held that because the defence has no opportunity to cross-examine a witness at the time a Section 164 CrPC statement is recorded, such a statement “cannot be treated as substantive evidence”; its use is confined to corroboration and contradiction of the witness’s court testimony under Section 157 of the Indian Evidence Act, 1872.
- Somasundaram @ Somu v. State Rep. by the Deputy Commissioner of Police, (2016) 16 SCC 355 (decided 3 June 2020) — the Supreme Court reiterated, citing George v. State of Kerala, (1998) 4 SCC 605, that a Section 164 CrPC statement “cannot be used as substantive evidence and can be used only for contradicting or corroborating” a witness, and that it is impermissible to convict an accused on such a statement alone in the absence of other evidence.
Takeaway
This ruling is a straightforward application of settled doctrine to a hard fact pattern: a conviction built years after the event, on a single investigation-stage statement, once the very witnesses who gave that statement decline to stand behind it in court. The decision is a reminder that a Section 164 CrPC statement — however credible-sounding on paper, and however carefully recorded by a Judicial Magistrate — is not a shortcut around the requirement of evidence tested by cross-examination. Prosecutors cannot treat it as a safety net for a case that collapses at trial, and the accused’s right to confront the evidence against him remains the operative safeguard even where a witness’s earlier account pointed to guilt.
Useful Resources
- LiveLaw — Conviction Cannot Be Based Solely On S. 164 CrPC Statement If Victim Turns Hostile During Trial: Allahabad High Court
- Indian Kanoon — Section 164, The Code of Criminal Procedure, 1973 (bare text)
- Indian Kanoon — R. Shaji v. State of Kerala (2013)
- Indian Kanoon — Somasundaram @ Somu v. State Rep. by the Deputy Commissioner of Police (2020)
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