SUKHAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) 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 Muzaffarnagar. 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.

(2.) 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 Nakkal 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 Kalla, 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, PWs. 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.

(3.) 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.