The 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. 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 Sukhar 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. Nakkal appeared at the police station on the date of occurrence at 9.40 a.m.
The
Nakkal was examined by 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, Ram Kala and Pitam merely stated as to
what they heard from the injured at the relevant point of time and according to
Pitam, 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 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 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 Court relied upon the statement of Pitam 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 Pitam and the evidence, the charge under Section 307 has thus been established beyond reasonable doubt.
The
appeal of the accused was dismissed. The
appellant strenuously contended that the evidence of Pitam 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.
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. The appellant further contended that even if the evidence should be admissible but the same cannot be held to be reliable and on such unreliable testimony the conviction can’t be sustained for the charge under Section 307 IPC.
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