IN THE SUPREME COURT OF  INDIA           CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NO. 618  OF 2007

SHANKER & ANR. ..  APPELLANT(S)

vs.

STATE OF U.P. ..  RESPONDENT(S)

O R D E R

We 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.

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P.W.1 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.  

We thus find no merit in the appeal.  It is accordingly dismissed.  

                     .................J.

        (HARJIT SINGH BEDI)

     .................J.

                                    (J.M. PANCHAL) New Delhi, July 16, 2009.