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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

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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

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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.

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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

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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.