Statements Recorded U/S 164 CrPC Are Not Substantive Evidence, Can Only Be Used For Corroboration: Madras High Court Reiterates

Justice S Vaidyanathan and Justice AD Jagdish Chandira took note of the judicial precedents where the courts have clearly laid down that the statements recorded under Section 164 of the CrPC are not substantive evidence and that they can only be used to corroborate/contradict the statement of a witness.

In the present case, the appellant was alleged to have assaulted the deceased with whom he had been living for twenty years resulting in her death. It was alleged that the appellant was already married and had three daughters. When he demanded the deceased to transfer her title in the house property in the name of the daughters, she refused the same. The appellant then developed doubt on the conduct of the deceased and used to pick up frequent quarrel with her and beat her, it was alleged. The deceased lodged a complaint before the police and the issue was settled. However, later the appellant attacked the deceased with a wooden log and she succumbed to her injuries. The appellant was convicted by the trial court under Sections 302 and 352 of IPC.

The appellant submitted that the order of conviction was against law as the trial court failed to take note of the fact that all the eyewitnesses had turned hostile and there was no admissible evidence against the appellant to convict him. The trial court had erred in relying upon the statements of the witnesses recorded under Section 164 CrPC to convict the appellant. He submitted that the law clearly stated that statements recorded under Section 164 Cr.P.C. can either be utilised only to corroborate or contradict the witnesses vis-a-vis statement made in court and it cannot be a substantive piece of evidence. Thus, the trial court had erred in ordering conviction especially when the prosecution had not taken any steps to contradict the witnesses who turned hostile.

It was further submitted that since the mahazar witnesses had turned hostile, the recovery of material objects itself was unbelievable. Further, the prosecution had also not established the title of the deceased to the house property which was the alleged motive for the offense.

The respondent state, on the other hand argued that prosecution witnesses turning hostile could not be a ground for acquittal of the accused. He further submitted that the prosecution witnesses had given a clear and cogent statement (under Section 164 CrPC) before the Judicial Magistrate which is corroborated by the medical evidence.

The court, after hearing both the sides reiterated the legal position that a statement recorded under Section 164 of the Code of Criminal Procedure is not substantive evidence and it can be used to corroborate the statement of a witness and it can be used to contradict a witness. The same was upheld by the court in RamKishan Singh vs. Harmit Kaur and another (1972) 3 SCC 280 and later in BaijNath Sah vs. State of Bihar (2010) 6 SCC 736.

The High Court noted that in the present case, the trial court had proceeded to hold that even though the eyewitnesses had turned hostile, their statements under Section 164 CrPC corroborates the medical evidence. The trial court however, had ignored the fact that though the occurrence took place on 20.09.2010, the statements were recorded on 06.10.2010. "Such a long delay in recording the statements of the witnesses speaks much."

The trial court had taken presumption under Section 80 of the Indian Evidence Act, 1872 as to documents produced as record of evidence. However, in Sheo Raj vs. State (1963) SCC OnLine All123) a three judge bench had clearly laid down that presumption under Section 80 of the Evidence Act was not applicable to the statements recorded by a Magistrate under Section 164 CrPC as these statements were not 'evidence', was not made in a 'judicial proceeding' and was not given under oath.

Even though the prosecution contended that bloodstains found on the shirt of the appellant was the same blood group as that of the deceased, the court held that mere matching of blood group itself was not sufficient to convict the accused as was held in the case of Sonvir @ Somvir vs. State of NCTof Delhi (2018) 8 SCC 24.

Taking all these into consideration, the court opined that the prosecution had not proved its case beyond all reasonable doubt and in such circumstances, it was not proper to convict the appellant/accused on the materials available on record. The trial court had misled itself into a specious reasoning that there is corroboration between the statements of the witnesses recorded under Section 164 Cr.P.C and the medical evidence. Observing that the same could not be endorsed by the court, the court set aside the order of conviction of the trial court and acquitted the appellant of all charges.

Case Title: Siva v. State by Inspector of Police

Case No: Criminal Appeal No.642 of 2018

Citation: 2022 LiveLaw (Mad) 318

Counsel for the Appellant: Mr.T.R.Ravi

Counsel for the Respondent: Mr.Babu Muthumeeran, Additional Public Prosecutor