SUKHAR versus STATE OF UTTAR PRADESH

Citation: [1999] SUPP. 3 S.C.R. 314 · Decided: 01-10-1999 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
SUKHAR 
v. 
STATE OF UTTAR PRADESH 
OCTOBER 1, 1999 
[G.B. PATTANAIK, M. SRINIVASAN AND 
N. SANTOSH HEGDE, JJ.] 
Penal Code, 1860-5.307-Conviction of an accused on the uncor-
roborated evidence of a witness, inimical to accused-Validity of-Enmity due 
C to forcible cultivation of land-Accused firi11g at victim and causing in-
jury-Hearing alann, witness reaching the spot-Statement of witness that vic-
tim told him that accused fired at him-Wit11ess admitting being inimical to 
accused-No other person present examined to co"oborate the evidence of 
said witness---Held; accused cannot be convicted on the unreliable and shaky 
D evidence of witness without c01roboration-Conviction and sentence set 
aside-Evide1lce Act, 1872. 
E 
F 
Evidence Act, 1872 : 
S. 6-Hearsay evidence-Admissibility of 
S. 32-Dying declaration-Admissibility of-FIR and statement given 
· by injured to investigating officer-Victim dying duri11g the pendency of 
trial-Cause of death or connection between death and injury sustained not 
established-Held, FIR and statement of victim is not admissible under S.32. 
S. 3rStatement given by victim under S.161 Cr. P.C.-Admissibility 
of-Code of Criminal Procedure, 197rS.161. 
Appellant was prosecuted for an offence under S. 307 IPC. The 
prosecution case was that the victim's land was forcibly cultivated by his 
G nephew without giving him any batai, resulting in enmity between them. 
On the fateful day, while the victim was going on the road, his nephew, 
the accused-appellant fired shots at him. On hearing an alarm, PW 1 and 
PW 2 reached the place of occurrence. In the meantime, accused escaped. 
Victim was taken to the police station and FIR was recorded. The victim 
died, during the pendency of trial but cause of his death not established. · 
H PW 2 gave a statement before Trial Court that the victim had told him 
314 
SUKHAR v. STATE 
315 
that the accused had fired at him. Trial Court relying upon the FIR and A 
statement of victim and the testimony of PW2, convicted and sentenced 
the accused. On appeal, High Court held that the charge under S. 307'of 
IPC was established beyond reasonable doubt. Hence the present appeal. 
On behalf of the appellant it was contended that the evidence of PW 
2 C\lnnot be held to be admissible under S. 6 of the Evidence Act, 1872 B 
inasmuch as what the victim told the witness when the witness reached 
the scene of occurrence and the factum of alleged shooting by the a~cused 
at the victim cannot be said to have formed part of the same transaction; -
even if the evidence should be admissible the same cannot be held to be 
reliable and, therefore, on such unreliable testimony the conviction cannot C 
be sustained for the charge under S. 307 IPC. 
On behalf of respondent-State it was contended that a plain reading 
of the evidence of PW 2 clearly establishes that the firing of shot by the 
appellant and rushing down of PW 2 to the scene of occurrence and the 
statement of the victim to PW 2 must be held to be part of the same D 
transaction and, therefore, the High Court was fully justified in coming 
to the conclusion that the evidence is admissible under S. 6 of the 
Evidence Act as a part of res gestae; and that nothing has been elicited in 
the cross-examination of PW 2 to dub him unreliable and as such the 
Courts below rightly relied upon his evidence. 
Allowing the appeal, the Court 
HELD : 1.1. Appellant cannot be convicted on the unreliable and 
shaky evidence of PW 2 without any corroboration. Consequently, convic-
E 
tion and sentence of appellant under S. 307 IPC is set aside. [322-D] 
F 
1.2. Admittedly appellant and PW 2 were inimical to each other 
since long. It was also elicited in the cross-examination of PW 2 that by 
the time he reached the scene of occurrence, more than 20 persons had 
gathered next to victim and yet none of them has been examined by the 
prosecution to corroborate PW 2 as to what was told to him by the victim. G 
The witness also stated in cross-examination that victim 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 of them but to examine only PW 2 who was admittedly 
inimically deposed towards the accused-appellant. In this view of the H 
316 
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R. 
A matter, the evidence of PW 2 cannot be held to be of such an unimpeach· 
abie character on whose testimony alone, the

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