Important point
For bringing 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.

Headnote:(i) Indian Evidence Act, 1872—Section 32 read with Section 161 of Code of Criminal Procedure—Dying declaration—First information report of injured and statement recorded under Section 161 Cr.P.C.—Injured dying during trial —Cause of death and date of death not known—Held : FIR as well as statement given by injured to investigation officer not admissible as dying declaration. (Para 2)
       (ii) Indian Evidence Act, 1872—Section 6—Res gestae—Conditions precedent to admissibility of hearsay evidence.
       Held : 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. (Para 6)
       Where the evidence of the witness stated that he heard the sound of firing and he went to the place and found the injured lying on the ground after being hit by a bullet, but he did not see him being hit by the bullet and when he asked the injured, the injured told him that his nephew, the accused, hit him with the bullet, the Supreme Court held that the statement of witness indicating the injured told him that his nephew had fired at him, would became admissible under Section 6 of the Evidence Act. (Paras 5 to 10)
       (iii) Indian Penal Code, 1860—Section 307 r/w Section 6 of Indian Evidence Act, 1872—Attempt to murder—Conviction on basis of hearsay evidence — Legality of—Injured lodged FIR stating that accused fired at him—Death of injured during trial—Cause and date of death not known—Hearsay evidence of a witness—Witness inimical to accused—No other persons who were present at scene of occurrence examined to corroborate statement of witness—Statement though admissible under Section 6 Evidence Act could not be relied upon—Conviction not sustainable—Acquittal ordered. (Para 11)
       Result : Appeal allowed.

Judgement Key Points

Key Points: - The hearsay evidence must be almost contemporaneous with the acts and form part of the same transaction to be admissible under Section 6. (!) - For Section 6, the statements must be made contemporaneously with the acts or immediately thereafter; there should be no interval allowing fabrication. (!) - The court discusses admissibility of PW 2’s statement that the injured told him the accused fired at him as part of res gestae, applying Section 6. (!) [5000127990010] - The principle and scope of Section 6 as explained through authorities Gentela Vijavardhan Rao & Anr. v. State of A.P. and Rattan Singh v. State of H.P. are cited. (!) [5000127990009] - Even if admissible under Section 6, the reliability of such testimony must be corroborated; conviction cannot rest on unreliable, uncorroborated Section 6 evidence. [5000127990011] - The Supreme Court ultimately acquitted the appellant due to lack of corroboration and unreliability of the sole Section 6 evidence. (!)

What is the admissibility of hearsay evidence under Section 6 of the Indian Evidence Act in the context of res gestae?

What are the conditions for an utterance to be admissible under Section 6 as part of res gestae?

What is the consequence of unreliable corroboration when relying on Section 6 evidence to convict under IPC Section 307?

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.

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 feel 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 dies 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 c

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What is the admissibility of hearsay evidence under Section 6 of the Indian Evidence Act in the context of res gestae?

What are the conditions for an utterance to be admissible under Section 6 as part of res gestae?

What is the consequence of unreliable corroboration when relying on Section 6 evidence to convict under IPC Section 307?

Cases Referred (2)