Statement Under Section 164 CrPC Is Not Substantive Evidence, Cannot Be Sole Basis For Conviction When Victim Turns Hostile: Madras High Court

"A statement recorded under Section 164 Cr.P.C. is not substantive evidence by itself and cannot form the sole basis for conviction." Madras High Court, in a significant ruling, held that a statement recorded under Section 164 of the Code of Criminal Procedure (CrPC) is not substantive evidence and cannot form the sole basis for a conviction under the POCSO Act when the victim resiles from it during the trial.

A single-judge bench of Justice A.D. Jagadish Chandira observed that where the maker of the statement retracts the allegations and does not support the prosecution case, "the evidentiary value of such statement becomes considerably weakened and it cannot, by itself, be treated as proof of the allegations contained therein."

The appellant challenged his conviction and 10-year rigorous imprisonment sentence under Section 366 of the IPC, Section 9 of the Prohibition of Child Marriage Act, and Section 5(l) read with Section 6(1) of the POCSO Act, handed down by a Special POCSO Court. The prosecution's case was that the appellant allegedly kidnapped a 16-year-old girl, married her at a temple, and subjected her to penetrative sexual assault at a hotel in Chidambaram. During the trial, the victim girl and her parents turned completely hostile, with the victim testifying that she had never accompanied the appellant and that her prior Section 164 CrPC statement was falsely tutored by an advocate.

The primary question before the court was whether a conviction could be sustained solely on the basis of a statement recorded under Section 164 CrPC when all material prosecution witnesses, including the victim, had turned hostile. The court was also called upon to determine whether statutory presumptions under Sections 29 and 30 of the POCSO Act could be invoked in the absence of foundational facts being proved by the prosecution.

Foundational Facts Essential For POCSO Presumptions

Addressing the trial court's application of statutory presumptions against the accused, the High Court clarified that Sections 29 and 30 of the POCSO Act do not operate in a vacuum. The prosecution is mandated to first establish the foundational facts constituting the offence through reliable and acceptable evidence. The court noted that only upon the discharge of this initial burden does the reverse onus presumption arise against the accused.

"Where the prosecution fails to prove the foundational facts as in the present case, the presumption cannot be mechanically invoked to fill gaps in the prosecution case or to compensate for deficiencies in the prosecution’s evidence."

Evidentiary Value Of Section 164 CrPC Statements

The court strongly deprecated the trial court's reliance on the victim's Section 164 CrPC statement to render a conviction. Relying on earlier precedents, the bench emphasized that such a statement can only be used to corroborate or contradict the maker in the manner known to law. The court found that since the victim categorically stated in her deposition that her earlier statement was false and tutored, it entirely lost its corroborative value.

"In such circumstances, the statement recorded under Section 164 Cr.P.C. could not have been treated as substantive evidence to sustain the conviction of the appellant, particularly, when the victim girl (P.W.3) herself disowned the contents thereof and when there was no independent and reliable corroborative evidence available on record."

Inapplicability Of Section 80 Evidence Act

The bench also rejected the notion that a presumption of genuineness under Section 80 of the Indian Evidence Act could be used to elevate a Section 164 CrPC statement to the status of substantive evidence. Citing the landmark decision in Sheo Raj vs. State, the court reiterated that an investigation by the police is not a judicial proceeding, and a statement recorded during this stage cannot act as standalone proof of guilt when the witness turns hostile in court.

"The duty of the I.O. is not merely to record statements but also to collect all available evidence, both oral and documentary, which may throw light on the truth of the allegations."

Fatal Lapses In Police Investigation

Scrutinizing the probe conducted by the Investigating Officer, the High Court pointed out glaring deficiencies that demolished the prosecution's narrative. The court noted that the IO completely failed to collect material documentary evidence, such as marriage records, temple receipts, photographs, or hotel and lodge registers from Chidambaram, which could have corroborated the allegations of child marriage and sexual assault.

"The failure to secure basic documentary records relating to the alleged marriage and stay at Chidambaram constitutes a material lapse in the investigation. These omissions have deprived the prosecution of independent corroborative evidence on crucial aspects of its case."

Lack Of Corroborative Medical Evidence

The court also observed that the medical evidence failed to support the prosecution's case. While the medical officer noted that the victim's hymen was not intact, the bench highlighted the doctor's categorical admission that no external injuries were found and neither semen nor spermatozoa was detected. The court held that merely because the hymen was not intact, it could not be automatically inferred that the accused was responsible for the same, especially in the absence of supporting oral testimony.

Concluding that there was no legally admissible evidence connecting the appellant to the alleged offences, the High Court expressed utter dismay over the insensitive manner in which the trial court dealt with the matter. The court allowed the criminal appeal, set aside the conviction and sentence, and acquitted the appellant of all charges.

Date of Decision: 14 July 2026