Sukhar
Vs. State of Uttar Pradesh [1999] INSC 379 (1 October 1999)
G.B.Pattanaik,
M.Srinivasan, N.S.Heger 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.
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