PETITIONER: SUKHAR Vs. RESPONDENT: STATE OF UTTAR PRADESH DATE OF JUDGMENT: 01/10/1999 BENCH: G.B.Pattanaik, M.Srinivasan, N.S.Heger JUDGMENT:
PATTANAIK, J.
The appellant stood charged for the offence under
Section 307 IPC for causing injury to Nakkal on 17.4.78 at
7.30 a.m. near the Chak in village Tejalhera in the
district of Mjuzaffarnagar. On the basis of materials
available on record through the prosecution witnesses, the
learned Additional Sessions Judge convicted him for the
offence under Section 307 and sentenced him to rigorous
imprisonment of five years. On an appeal being carried, the
High Court of Allahabad upheld the conviction and sentence
of the appellant and dismissed the appeal. This Court
having granted leave, the present appeal is before us.
Prosecution case in nutshell is that Nakkal appeared at the
police station on the date of occurrence at 9.40 a.m. and
narrated the incident as to how he was injured by the
accused. The police then treated the said statement as
First Information Report and started investigation. The
informant was then taken to the hospital for medical
examination.As per the FIR, the accused Sukhar is the nephew
of Nakkal and had cultivated the land of Nakkal
forcibly.When Nakkal demanded batai, Sukhar abused Nakhal
and refused to give any batai. Thus,there was enmity
between Nakkal and Sukhar. On the fateful day during the
morning hours,while Nakkal was going on the road, Sukhar
caught hold of his back and fired a pistol shot towards him.
Nakkal raised an alarm on account of which Ram Kala and
Pitam reached the scene of occurrence and at that point of
time, Nakkal fell down and the accused made his escape. The
two witnesses, Pitam and Ram Kala, brought Nakkal to the
police station whereupon the police recorded the statement
of Nakkal and started investigation. The said Nakkal was
examined by PW 5, the Doctor who was on duty at the Primary
Health Centre and gave the injury report, Exh. Ka-6. On
completion of investigation, the police submitted the
charge-sheet and ultimately the accused stood his trial.
During trial, the prosecution witnesses, PW 1 and 2 merely
stated as to what they heard from the injured at the
relevant point of time and according to PW 2, the injured
had told him that the assailant, Sukhar had fired upon him.
It is to be stated that while the trial was pending the
injured Nakkal died but the prosecution did not make any
attempt to establish how he died or his death is in any way
connected with the injury sustained by him on the relevant
date of occurrence. Even it is not known as to when he
died. The learned Sessions Judge was of the opinion that
the FIR recorded by the Investigating Officer and the
statement of Nakkal recorded under Section 161 of the Code
of Criminal Procedure was admissible under Section 33 of the
Evidence Act and relying upon the said material as well as
the statement of PW 1 to the effect that the injured told
him that the accused, Sukhar has fired at him, the learned
Sessions Judge convicted the accused/appellant under Section
307 IPC and sentenced him to undergo rigorous imprisonment
for five years. On an appeal, the High Court came to the
conclusion that the FIR as well as the statement given by
the injured to the Investigating Officer is not admissible
as dying declaration under Section 32 of the Evidence Act
and in our view, the said conclusion is unassailable. The
High Court further came to the conclusion that the statement
of the injured under Section 161 of the Code of Criminal
Procedure could not be held admissible in evidence under
Section 33 of the Evidence Act and we do not see any
infirmity with the said conclusion. The High Court however
heavily relied upon the statement of Pitam, PW 2 and even
though he was an eye witness to the occurrence but his
evidence to the effect that as soon as he reached the place
where the injured was lying, the injured told him that the
injury has been caused on him by the appellant, should be
admissible under Section 6 of the Evidence Act. On the
basis of aforesaid statement of PW 2 and the evidence of PW
5, the High Court came to the ultimate conclusion that the
charge under Section 307 has thus been established beyond
reasonable doubt. Consequently, the appeal of the
accused/appellant was dismissed. Ms Sandhya Goswami,
learned counsel appearing for the appellant strenuously
contended that the evidence of PW 2 cannot be held to be
admissible under Section 6 of the Evidence Act inasmuch as
what the injured told the witness when the witness reached
the scene of occurrence and the factum of alleged shooting
by the accused at the injured cannot be said to have formed
part of the same transaction. According to the learned
counsel, the evidence of PW 2 being categorical that by the
time he reached the scene of occurrence, several people had
gathered, it cannot be said that what the injured stated to
him in fact formed part of the same transaction. The
learned counsel appearing for the respondent on the other
hand contended that a plain reading of the evidence of PW 2
would clearly establish that the firing of shot by the
appellant and rushing down of PW 2 to the scene of
occurrence and the statement of the injured to said PW 2
must be held to be part of the same transaction and,
therefore, the High Court was fully justified in coming to
the conclusion that the evidence is admissible under Section
6 of the Evidence Act as a part of res gestae. Ms. Sandhya
Goswami, learned counsel appearing for the appellant further
contended that even if the evidence should be admissible but
the same cannot be held to be reliable and, therefore, on
such unreliable testimony the conviction can not be
sustained for the charge under Section 307 IPC. Learned
counsel for the respondent, on the other hand, submitted
that nothing has been elicited in the cross- examination of
PW 2 to dub him unreliable and as such Courts below rightly
relied upon his evidence. In view of the rival submissions,
the first question that arises for consideration is whether
the evidence of PW 2 indicating what he heard from the
injured can at all be held admissible under Section 6 of the
Evidence Act. Before examining the question, it would be
appropriate to extract the relevant part of the evidence of
said PW 2:- 2. It was one year & 11 months ago at 7
7.30 A.M. while I had gone to attend the call of nature
when I heard the sound of firing and I went there and saw
Nakkal lying on the ground near the sugar cane of Kallan
after being hit by a bullet. I did not see him being hit by
the bullet. When I asked him Nakkal told me that his nephew
Sukkar hit him with the bullet.
Section 6 of the Evidence Act is an exception to the
general rule whereunder the hearsay evidence becomes
admissible. But for bringing such hearsay evidence within
the provisions of Section 6, what is required to be
established is that it must be almost contemporaneous with
the acts and there should not be an interval which would
allow fabrication. The statements sought to be admitted,
therefore, as forming part of res gestae, must have been
made contemporaneously with the acts or immediately
thereafter. The aforesaid rule as it is stated in Wigmores
Evidence Act reads thus: Under the present Exception [to
hearsay] an utterance is by hypothesis, offered as an
assertion to evidence the fact asserted (for example that a
car-brake was set or not set), and the only condition is
that it shall have been made spontaneously, i.e. as the
natural effusion of a state of excitement. Now this state
of excitement may well continue to exist after the exciting
fact has ended. The declaration, therefore, may be
admissible even though subsequent to the occurrence,
provided it is near enough in time to allow the assumption
that the exciting influence continued.
Sarkar on Evidence (Fifteenth Edition) summarises the
law relating to applicability of Section 6 of the Evidence
Act thus: 1. The declarations (oral or written must
relate to the act which is in issue or relevant thereto;
they are not admissible merely because they accompany an
act. Moreover the declarations must relate to and explain
the fact they accompany, and not independent facts previous
or subsequent thereto unless such facts are part of a
transaction which is continuous.
2. The declarations must be substantially
contemporaneous with the fact and not merely the narrative
of a past.
3. The declaration and the act may be by the same
person, or they may be by different persons, e.g., the
declarations of the victim, assailant and bystanders. In
conspiracy, riot &c.the declarations of all concerned in the
common object are admissible.
4. Though admissible to explain or corroborate, or to
understand the significance of the act, declarations are not
evidence of the truth of the matters stated.
This Court in Gentela Vijayavardhan Rao and Another V.
State of A.P. 1996 (6) SCC 241 considering the law embodied
in Section 6 of the Evidence Act held thus: The principle
of law embodied in Section 6 of the Evidence Act is usually
known as the rule of res gestae recognised in English law.
The essence of the doctrine is that a fact which, though not
in issue, is so connected with the fact in issue “as to form
part of the same transaction” becomes relevant by itself.
This rule is, roughly speaking, an exception to the general
rule that hearsay evidence is not admissible. The rationale
in making certain statement or fact admissible under Section
6 of the Evidence Act is on account of the spontaneity and
immediacy of such statement or fact in relation to the fact
in issue. But it is necessary that such fact or statement
must be a part of the same transaction. In other words,
such statement must have been made contemporaneous with the
acts which constitute the offence or at least immediately
thereafter. But if there was an interval, however slight it
may be, which was sufficient enough for fabrication then the
statement is not part of res gestae.
In another recent judgment of this Court in Rattan
Singh V. State of H.P. 1997 (4) SCC 161, this Court
examined the applicability of Section 6 of the Evidence Act
to the statement of the deceased and held thus: . The
aforesaid statement of Kanta Devi can be admitted under
Section 6 of the Evidence Act on account of its proximity of
time to the act of murder. Illustration A to Section 6
makes it clear. It reads thus:
(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the bystanders at the
beating, or so shortly before or after it as to form part of
the transaction, is a relevant fact.
(emphasis supplied) Here the act of the assailant
intruding into the courtyard during dead of the night,
victims identification of the assailant, her pronouncement
that appellant was standing with a gun and his firing the
gun at her, are all circumstances so intertwined with each
other by proximity of time and space that the statement of
the deceased became part of the same transaction. Hence it
is admissible under Section 6 of the Evidence Act.
Applying the ratio of the aforesaid two cases to the
evidence of PW 2, we have no hesitation to come to the
conclusion that his statement indicating that the injured
told him that his nephew has fired at him, would become
admissible under Section 6 of the Evidence Act. We are,
therefore, unable to accept the first submission of Ms
Goswami, learned counsel appearing for the appellant. The
next question that arises for consideration is whether even
if the statement becomes admissible, can the statement be
held to be so reliable that a conviction under Section 307
can be based thereupon. PW 2 in the cross- examination
candidly admitted that Sukhar, the present appellant and he
are inimical to each other since long before. It was also
elicited in the cross-examination of the said witness that
by the time he reached the scene of occurrence, more than 20
persons had gathered next to Nakkal and yet none of them has
been examined by the prosecution to corroborate PW 2 as to
what was told to him by the injured. The witness also
stated in the cross-examination that Nakkal was naming the
accused as his assailant in front of all those people who
had gathered but it is not understood as to why the
prosecution has chosen not to examine any one of them but to
examine only PW 2 who was admittedly inimically disposed of
towards the accused/appellant. In this view of the matter,
the evidence of PW 2 cannot be held to be of such an
unimpeachable character on whose testimony alone, the
conviction can be based without any corroboration. On the
other hand, the witness being inimical to the accused and on
account of what has been elicited in his cross-examination,
his evidence requires corroboration before being accepted.
Admittedly there is not an iota of corroboration either from
any oral evidence or from any other circumstance. In this
view of the matter, we have no hesitation to come to the
conclusion that the conviction of the appellant on the
unreliable and shaky evidence of PW 2 without any
corroboration, cannot be sustained. We accordingly set
aside the conviction and sentence of appellant and acquit
him of the charges levelled against him. The accused who is
in jail should be released forthwith. The appeal is allowed
accordingly.