http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

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.