& ANR. Vs. State of U.P.  INSC 1233 (16 July 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 618 OF 2007 SHANKER & ANR. ..
have heard learned counsel for the parties very carefully. We have also gone
through the evidence and examined the site plan with the help of the learned
counsel for the appellants. We find that the case against the accused has been
proved by the evidence of Chakrapal Singh - P.W.1 and Smt. Vishuna - P.W.2 an
injured witness whose presence at the spot has even been admitted by the
defence. The primary argument made by the learned counsel for the appellants is
that as Smt. Vishuna was not in a position to see the actual assault on the
deceased as she was in the courtyard whereas the murder had taken place in the
shop adjoining the road, her evidence vis-a-vis the murder has to be discarded.
In addition it has been urged that Manoj Kumar who had conveyed the information
to the informant Chakrapal Singh PW.1 the first informant that his brother was
being assaulted by the accused had not been examined, the evidence of Chakrapal
Singh PW.1 was also not admissible. We find no merit in either of the pleas.
Chakrapal Singh PW.1's evidence is admissible by virtue of Sec.6 of the
Evidence Act being res gestae evidence.
clearly stated that when he looked into the shop he found that the appellant
Shankar and Lakhan were holding the deceased by his limbs whereafter the fatal
blow in the neck had been given by Meeru the husband of PW.2 Smt. Vishuna. We
have also examined the site plan and observe that the distance between the
place of murder and the place of injury to Vishuna was only about 25 feet. To
our mind there is a clear possibility that Vishuna was thus aware of the
happenings in the shop.
find no merit in the appeal. It is accordingly dismissed.
.................J. (HARJIT SINGH BEDI)
.................J. (J.M. PANCHAL)
July 16, 2009.
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