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23. There is considerable controversy regarding the reason for the incident. While PWs 1 and 4 would say that there used to be quarrels often between the deceased and the accused regarding the parking of the auto rickshaw, which was taken on hire by the deceased, in the compound of the accused, PW3 would deny the same. She would say that the auto rickshaw was always parked in their compound. Unfortunately, the scene plan is of little help in this regard. What is significant is the testimony of PW6, the owner of the auto rickshaw on whose evidence, the prosecution placed considerable reliance. The evidence of PW6 is to the effect that, on the date of incident also, auto rickshaw was parked in the compound of the accused persons. What is noteworthy is that, PW6 had also gone along with the deceased to park the auto rickshaw. When he found that, it was not to the liking of the accused persons, he assured them that the auto rickshaw would not be parked in that compound in future.

24. With this evidence on record, it becomes difficult to accept the version given by the prosecution that it was the parking of the auto rickshaw on the date of incident which was in issue.

25. Again, the scene plan shows two close neighbours residing near the house of the accused. None of them was sought to be examined to prove that the auto rickshaw could not be parked anywhere other than the compound of accused Nos.1 to 3. One would have expected the prosecution to examine some witnesses in this regard.

The correct legal position stated above needs no further elucidation."

29. After having thus understood the law relating to res gestae, an attempt shall now be made to see whether the so called narration of incident by PW3 and PWs 1 and 4 fall within the ambit of the said principle.

30. One of the essential ingredients to constitute res gestae is proximity in point of time of conveying of information and continuity of the activity. Except for some little evidence furnished by PWs 1 and 4 that they are residing nearby, there is no acceptable evidence to show how far they were residing from the residence of accused Nos. 1 to 3 where the incident is alleged to have taken place. It is also significant to notice at this point of time  that PWs 1 and 4 would say that they came to the place of incident hearing the cries of PW3. It is surprising to note that her cries did not attract the neighbours. The question as to how long after the incident PWs 1 and 4 reached the place of occurrence, is a matter to be proved by the prosecution. The close proximity is a factor which may indicate that there was no chance for embellishment or development which is the sine qua non for applying the principle of res gestae. If that be so, prosecution is bound to show that PWs 1 and 4 reached the place of occurrence soon after the incident. The scene plan again is no help, as already stated, for the simple reason that the residence of PWs 1 and 4 are not shown in the plan. There is no other independent evidence to show that they are residing nearby. Unless it is shown that PWs 1 and 4 reached the place of occurrence immediately after the incident had taken place, the principle of res gestae cannot be applied.