Sukhar vs State Of Uttar Pradesh on 1 October, 1999

Sukhar vs State Of Uttar Pradesh on 1 October, 1999

Equivalent citations: AIR 1999 SUPREME COURT 3883, 1999 (9) SCC 507,
1999 AIR SCW 3968, 1999 ALL. L. J. 2578, 1999 (8) ADSC 636, 1999 (3)
CRIMES 191, 2000 CRILR(SC MAH GUJ) 60, 2000 (2) LRI 1198, (2000) 2 KER
LT 10, 2000 CRILR(SC&MP) 60, 1999 (10) SRJ 52, (1999) 7 JT 537 (SC), (1999)
6 SCALE 280, (2000) MAD LJ(CRI) 180, (1999) 4 ALLCRILR 60, (1999) 26
ALLCRIR 2283, (1999) 39 ALLCRIC 831, (1999) 3 CHANDCRIC 97, (1999) 4
CURCRIR 85, (2000) 1 CALLT 52, (1999) 17 OCR 635, (2000) 1 EASTCRIC 319,
(1999) 8 SUPREME 568, (2000) MADLW(CRI) 501, (2000) SCCRIR 20, 2000
SCC (CRI) 419, (1999) 2 EASTCRIC 810, (1999) 3 BLJ 841, 2000 BLJR 1 54,
(1999) 4 CRIMES 191, (2000) 1 PAT LJR 56

Author: M.Srinivasan

Bench: M.Srinivasan

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

Indian Kanoon - http://indiankanoon.org/doc/298217/ 1

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

Indian Kanoon - http://indiankanoon.org/doc/298217/ 2

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.

Indian Kanoon - http://indiankanoon.org/doc/298217/ 3

4. Though admissible to explain or corroborate, or to understand the significance of the act,

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

Indian Kanoon - http://indiankanoon.org/doc/298217/ 4

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.

Indian Kanoon - http://indiankanoon.org/doc/298217/ 5