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20. It has been submitted that the site plan prepared by the I.O. neither discloses the location of the house of P.W.2 with reference to the place of occurrence nor it discloses the spot from where she had allegedly witnessed the three accused running. Moreover, the suggestion put to PW2 that her house is at a distance of 300-400 yards from the place of occurrence has not been specifically denied though she claimed that she is not aware of the distance. Further, in her testimony, PW2 has neither disclosed the time nor the time-gap by which, or within which, she received information from her brother Jagdish regarding the murder of her husband and her son by the accused-appellants. Otherwise also, since it has not specifically come in the evidence as to how contemporaneous with the incident was the reporting of the incident by the informant to PW2, the hearsay evidence would not become admissible by applying the principle of res gestae enshrined under section 6 of the Evidence Act.

28. It has thus been prayed that the conviction of the accused appellant by the trial court is completely unjustified and the impugned judgment and order be therefore set aside.

29. Per Contra, the learned A.G.A. submitted that the evidence brought on record indicated that the two deceased had died at the same time and on or about the same spot. One of them died due to gun shot injury as also incised wounds and the other died due to several incised wounds which disclosed that multiple assailants were there. Shortly, after hearing the gun shot, the appellant - Naresh was seen in the company of other two accused persons with such weapons of which injuries were found on the body of the two deceased and, soon thereafter, Jagdish, the informant, who had accompanied the two deceased, came rushing and informed P.W.2 that her husband and her son have been killed by five persons, out of those five, three were seen by her. All this constituted part of the same transaction and therefore the statement of Jagdish Prasad (the informant), narrated to his sister - Ramwati (P.W.2), becomes admissible in evidence by applying the doctrine of res gestae enshrined under section 6 of the Evidence Act and as such was admissible and sufficient to record conviction, particularly, when nothing material could come out of her cross-examination.

43. From a close scrutiny of the evidence noticed above, it is clear that the information, if any, given to PW2 by her brother and son, does not appear to be contemporaneous with the time and place of the incident for the following reasons: (a) because the place of incident is not demonstrated to be in close proximity; and (b) because the time-gap between the incident and the information provided has not been demonstrated to be almost non-existent.

44. Now we shall examine whether the statement of PW2 in respect of culpability of the accused appellant on the basis of statement of the informant could be considered admissible under section 6 of the Evidence Act, as found by the trial court. The rule of res gestae embodied in section 6 of the Evidence Act in essence is that the facts which, though not in issue, are so connected with the fact in issue as to form part of the same transaction, become relevant by itself, whether they occurred at the same time and place or at different times and places. The apex court had the occasion to examine the said principle in several decisions. In Gentela Vijayavadhan Rao and another v. State of A.P. : (1996) 6 SCC 241, the apex court, in paragraph 15 of the judgment, as reported, held as follows:-

"The principle or law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction-becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman, (1896) 2 O.B. 167 a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between making the statement and the act of rape. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. Reginam, (1952) 2 All E.R. 447, thus :