By Jibin Mathew George, Amity Law School, Delhi.
Editor’s Note: The author explained the various facet of the Doctrine of Res-Gestae with the help of various case laws and its interpretation from the Indian Evidence Act, 1872.
Section 5 of the Indian Evidence Act lays down that evidence may be given of fact in issue and relevant fact described under S. 6 states:
“Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place of at different times and places.”
The principle of law embodied in S.6 is usually known as the doctrine of res gestae. Facts which may be proved, as part of res gestae, must be facts other than those in issue but must be connected with it. Though hearsay evidence is not admissible, when it is res gestae it can be admissible in a court of law and may be reliable evidence. This section is used by lawyers as a last resort so; there is not much case law on this section.
The rationale behind this is the spontaneity and immediacy of such statement that there is hardly any time for the concoction. So, such statement must be contemporaneous with the acts which constitute the offense or at least immediately thereafter.
Res gestae includes facts which form part of the same transaction. So, it is pertinent to examine what is a transaction, when does it start and when does it end. If any fact fails to link itself with the main transaction, it fails to be a res gestae and hence inadmissible. Res gestae include elements that fall outside of the modern hearsay definition altogether, such as circumstantial evidence of the state of mind, so-called “verbal acts,” verbal parts of acts, and certain non-verbal conduct.
Because excited utterances are connected closely in time to the event and the excitement flows from the event, excited utterances were deemed part of the action (the “things done”) and hence, admissible despite the hearsay rule. Res gestae also hired the hearsay exceptions for present-sense impressions, excited utterances, direct evidence of the state of mind, and statements made to physicians.
MEANING OF RES GESTAE
Res gestae has no exact English translation. A literal translation means “something deliberately undertaken or done”.[i]Few areas of the common law of hearsay are in greater dispute than the doctrine of res gestae.[ii]Dean Wigmore comments, “The phrase res gestae is, in the present state of the law, not only entirely useless but even positively harmful… It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. It should never be mentioned.”
Res gestae has been defined as, “Things did, or liberally speaking, the facts of the transaction explanatory of an act or showing a motive for acting; a matters incidental to a main fact and explanatory of it; including acts and words which are so closely connected with a main fact as will constitute a part of it, and without a knowledge of which the main fact might not be properly understood, even speaking for themselves though the instinctive words and acts of participants not the words and acts of participants when narrating the events, the circumstances, facts and declaration which grow out of the main fact, and contemporaneous with it and serve to illustrate its character or these circumstance which are the atomic and undersigned incidents of a particular litigated act and are admissible when illustrative of such act.”[iii]
In Babulal v. W.I.T Ltd.,[iv] it was observed that the statement of law in section 6 of the evidence act is usually known as Res Gestae. The literal meaning of the word ‘res’ is “everything that may form an object of rights and includes an object, subject matter or status”.
Res Gestae has been described as a term of protean significance and that there have been many definitions of the term. No evidential problem is as shrouded in doubt and confusion[v] as is Res Gestae. The rule as to the admissibility of evidence known as the Res Gestae rule has been declared to be incapable of any precise definition and it has been applied to so many different and unrelated situations that it has been said that the difficulty of formulating a description of Res Gestae which will serve all circumstances seems insurmountable.[vi] It would be little short of miraculous if one single doctrine of Res Gestae would suffice for every situation.
There must be a main or principal fact or transaction, and only such declarations are admissible which grow out of the principal transaction and serve to illustrate its character, and are contemporary with, and derive some degree of credit from it. The main transaction is not necessarily confined to a particular point of time, but may extend over a longer or shorter period, according to the nature and character of the transaction.
A transaction, as the term used in this sec. is defined by a single name, as a crime, a contract, wrong or any other subject of inquiry which may be an issue. It includes both immediate cause and effect of an act or event, and also its collection of relevant circumstances, the other necessary antecedents of its occurrence, connected with it, at a reasonable distance of the time, pace and cause and effect.[vii]
A good working test of deciding what transaction is; is the proximity of time, unity or proximity of place, continuity of actions, and community of purpose. But the main test must be continuity of action and community of purpose. The condition for admissibility of a statement made by a person who was at the scene of occurrence is the proximity of time, the proximity of the police station and the continuity of action. The expression suggests not necessarily proximity of time so much as continuity of action and purpose.[viii]
A transaction may constitute a single incident occupying a few moments or it may be spread over a variety of acts, declaration etc. All these constitute incidents, which though not strictly constituting a fact in issue, accompany and tend to explain or qualify the fact in issue. All these facts are relevant only when they are connected by the proximity of time, unity or proximity of place, continuity of action and community of purpose or design.[ix]
Evidence which is connected with the principal subject matters of the charges as parts of one and the same transaction is relevant.[x] Two distinct offenses may be so inseparably connected that the proof of one necessarily involves proving the other, and in such a case on a prosecution for one, evidence proving it cannot be excluded because it also proves the other.[xi]
Evidence as to other offenses by the accused would be relevant and admissible if there is a nexus between the offense charged and the other offenses or the two acts form part of the same transaction so as to fall within S.6. An entirely separate and disconnected offense is not admissible merely because it occurred at or about the same time as the res gestae of the offense on Trial.[xii]
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.[xiii]
This section admits a very large class of facts connected with facts in issue or relevant facts, though not forming part of the transaction. Facts forming part of the same transaction are admissible under the preceding section. Evidence relating to collateral facts is admissible when such facts will, if established reasonable presumption as to the matter in dispute and when such evidence is reasonably conclusive. The section provides for the admission of several classes of facts which are connected with the transaction under inquiry in particular modes,
(1) As being the occasion or cause of a fact;
(2) As being its effect;
(3) As giving an opportunity for its occurrence; and
(4) As constituting the state of things under which it happened.
A fact in issue cannot be proved by showing that facts similar to it, but not part of the same transaction, have occurred at the other times. Thus, when the question is, whether a person has committed a crime, the fact that he had committed a similar crime before, is irrelevant.
ALLEGED FACT: property recovered from accused by the deceased, the murder of the deceased. The court said that unless it could be conclusively established that the property was with the deceased at the time of the offense, the question of the property would not be good enough nexus with the murder.[xiv]
A TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE
The primary question which the judge must ask oneself is-can the possibility of concoction or distortion is disregarded?[xv]
To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy him that the event was as unusual or starting or fanatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.
In order for the statement to be sufficiently ‘spontaneous’, it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declaring was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative.
Quite apart for the time factor, there may be a special feature in case, which relates to the possibility of concoction or distortion.
As to the possibility of a report on the facts narrated in the statement if only the ordinary fallibility of human recollection is relied on, this goes to the weight to be attached to and not the admissibility of the statement and is, therefore, a matter of jury.
To sum up, it can be laid that the test to be applied in deciding whether a hearsay statement made by a bystander or victim indicating the identity of the attacker is admissible can be put succinctly;
- Was the identification relevant?
- Was it spontaneous?
- Was there an opportunity for concoction?
- Was there any real possibility of error?
If the exited utterance is relevant, the statement will be admissible if the answer to the second question is also yes, and the answer to the other question is no,38 otherwise the statement is inadmissible. A statement may be spontaneous even though made in response to questioning.[xvi]
WHERE DOES THE JUDICIARY STAND?
The test of admissibility, on one hand, relies on the exact contemporarily approach laid down inBedingfield’s case[xvii] in contrast to the flexible and accommodating approach laid down in Foster’s case[xviii]. It was precisely with a view to settle this ambiguity that the Privy Council in Ratten’s case[xix]entirely dispensed with the test of contemporaneity and adopted the test of “spontaneity and involvement”.
Lord Wilberforce in Ratten’scase contended that the test should not be the uncertain one whether the making of the statement was in some sense part of the transaction. This may often be difficult to establish and therefore he emphasized on spontaneity as the basis of the test. He asserted that “hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”
Courts began focusing on how long the excited condition lasted rather than focusing on when the statement was made and thus liberalized the strict timing requirement. Apparently reluctant to explicitly follow Wigmore, judges first expanded the exception by categorizing statements as “contemporaneous enough.” [xx]
Like India present day rulings in England and America tend to indicate that the utterance must be spontaneous or natural, and though not precisely contemporaneous must be substantially so.[xxi] There can be no fixed limit of time each case must depend upon its own circumstances. How slight separation of time and place is sufficient to render evidence of a statement inadmissible?[xxii]
Where a witness in describing the offense asserted that B said: those ruffians who a year ago took away Subhashini have again come. It was held that the time of the occurrence in respect of the occurrence it is res gestae under S.6. But statement however made at the time of an occurrence relating to a previous occurrencewhich took a year is not res gestae.[xxiii]
Thus the principal of admissibility of declarations accompanying acts can be summarized as;[xxiv]
- The declaration (oral and written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover, the declaration must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
- The declaration must be substantially contemporaneous with the fact and not merely the narrative of a past.
- The declaration and the act may be by the same person, or they may be by a different person, e.g. the declarations of the victim, assailant, and bystanders. In the conspiracy, riot the declarations of all concerned in the common object is admissible.
- Though admissible to explain or corroborate, or to understand the significance of the act, the declaration is not evidence of the truth of the matters stated.
A spontaneous exclamation is admissible because “under certain external circumstances of physical shock a state of nervous excitement may be produced which stills the reflective faculties and removes their control so that the utterance which occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.”[xxv]
The traditionally cited principle behind this exception is that an individual who makes a statement immediately after a stressful event lacks sufficient time or capacity to fabricate a lie about what happened. Thus, this class of statements contains sufficient indicia of reliability so as to be admitted despite its hearsay character.[xxvi]
In a case, the accused had killed his wife and daughter. The deposition by the father of the deceased that the father of the accused made a telephone call to him and said that his son had killed the deceased was found to be not admissible. The question before the court was that was that can the deposition of the accused father beadmitted under S. 6 as a hearsay exception being part of Res Gestae?
In the absence of finding as to whether theinformation given by accused father to father of the deceased that accused had killed his wife and daughter, was either at the time of the commission of the crime or immediately thereafter so as to form part of the same transaction declined to accept the evidence as relevant under section 6.[xxvii]
In State of Andhra Pradesh vs. Gentela Vijayavardhan Rao[xxviii] the appreciable interval between the act of carnage and magistrate’s recording the statement recorded by the magistrate was found inadmissible under res gestae.
In Bishna vs. State of West Bengal,[xxix] where the two witnesses reached the place of occurrence immediately after the incident had taken place and found the dead body of Prankrishna and injured Nepal in an unconscious state. One of them found the mother of Prannkrishna and Nepal weeping and heard about the entire incident from an eye-witness and the role played by each of the appellants, their testimony was held to be admissible under Section 6 of the Evidence Act.
In all the cases mentioned above the test applied to make the evidence admissible was to consider that was the statement was made at the spur of the moment without an opportunity to concoct and fabricate anything. Where the judges are satisfied that the reaction was the most immediate result of the circumstances being relevant to the facts in issue, they have allowed such evidence to be admitted.
EXPANSION OF THIS DOCTRINE
Courts have slowly broadened the scope of this section to cases like domestic violence, child witness etc.
Domestic violence and assault cases necessarily involve a startling event; they often include the issue of excited utterances. In these cases, it is only victims who can identify the alleged culprit. So such testimony of the victims must be admitted.
In India, women may not react just after the crime of rape or sexual violence because they are under the influence of such gruesome event that they do not respond immediately. It is possible that they respond after a day or two but such statement spoken can still be admitted under res gestae. If it can be proved that the victim was still under the stress of shock then such a statement can be admitted.
Usually, cases of rape take place in isolation. So there is no eye witness to such an event. Rape and domestic violence cases are different than any other crime.
The testimony of children is often the subject of excited utterance debate.[xxx] Usually, whenever there is a time gap, the transaction is said to end and any statement which does not form part of the transaction is inadmissible. However, in cases of children, this rule is relaxed. The rationale for expanding the exception for children emphasizes how children cope with stress because their statements are often made well after events occur at the first safe opportunity to speak.[xxxi]
In Uttam Singh vs. State of Madhya Pradesh,[xxxii]the child witness was sleeping with the deceased father at the relevant time of the incident and was awakened by the sound of the fatal blow of the axe on the neck of the deceased. Seeing it, the child shouted to his mother for help by naming the accused as the assailant.
On hearing the sounds the mother and sisters of the child and other witnesses gathered at the spot. This evidence was held to be admissible as a part of the same transaction as such shout was the natural and probable as per the facts of the case. In this case, if child witness failed to react on the spot but spoke later, it could still be admissible under sec 6.
Usually, the evidence is brought under res gestae when it cannot be brought under any other section of the Indian evidence act. The intention of law makers was to avoid injustice, where cases are dismissed due to lack of evidence. If any statement is not admissible under sec. 6 it can be admissible under Sec.157 as corroborative evidence.
Court has always minded that this doctrine should never be expanded to an unlimited extends. That is why Indian courts have always considered the test of “continuity of the transaction”. Any statement which was made after a long time gap and which was not a reaction to the event is not admissible under Sec.6 of the Evidence Act.
But courts have permitted certain statement which was spoken after a long time gap from the occurrence of the transaction because there was sufficient proof that the victim was still under the stress of excitement and so whatever was said was as a reaction to the event.
The strength of sec. 6 lies in its vagueness. The word transaction used in this section is not distinct. It varies from case to case. Each case in criminal law should be judged according to its own merit. When it is proved that the evidence forms part of the same transaction it is admissible under sec. 6 but whether it is reliable or not depends on the discretion of the Judge.
Formatted on March 2nd, 2019.
[i] Translation provided by Dr. Philip Pattenden, Dir. Of Studies in Classic, Peterhouse, Cambridge.
[ii] Edmund M. Morgan, Hearsay – What Is It?, 12 Wash. L. Rev. 1, 4 (1937) , p. 132 (describing phrase res gestae as “inexact and indefinite in its scope”).
[iii]VinodkumarBaderbhai Patel v. State of Gujarat, 1998 INDLAW GUJ 22
[iv] 1956 INDLAW CAL 105
[v] Julius Stone, Res GestaRaegitata, Vol. 55 The Law Quarterly Review, p. 66
[vi] 31 A CJS 978
[vii] R vs Ring A 1929 B 296
[viii] Ganesh vs R, A 1931 P 52
[ix]Amritalavs R 42 C 957
[x] R vsVajiram, 16 B 414, p. 430-31
[xi] Peoples vs Marble 38 Mich 117
[xii] Peoples vs Lane, 100 California 379
[xiii] Sec. 7 of Evidence Act
[xiv]Annasuyamma vs. State of Karnataka, 2002 INDLAW KAR 99
[xv] R vs Andrews 1987 A.C 281, H.L
[xvi] R vs Smart 2004 EWCA Crim 2072, 26
[xvii]  14 Cox CC 341
[xviii]  6 C. & P. 325
[xix]Rattenv. Reginam, 1971 INDLAW PC 6
[xx] Commonwealth vs Burke, 159 N.E.2d 856, 864 (Mass. 1959) (finding victim’s statement to a witness a short time before victim was found unconscious admissible as a spontaneous exclamation), overruled on other grounds by Commonwealth vsBeldotti, 567 N.E.2d 1219 (Mass. 1991); Reardon vs Marston 38 N.E.2d 644, 647 (Mass. 1941) (holding that statement made at an accident scene “was so nearly contemporaneous with the actual impact itself that it could have been found to have been intimately connected with the happening of the accident”) (emphasis added).
[xxi]SudiptoSarkar, V.R Manohar, Law of Evidence, 16th Ed. 2007, p.209
[xxii]TepervsReginam 1952 INDLAW PC 1
[xxiii]Khijiruddinvs R, 53 C 373
[xxv] See 6 Wigmore, supra note 55, 1748, at 199
[xxvi] Ohio vs Roberts, 448 U.S. 56, 57 (1980)
[xxvii]Vasa Chandrasekhar Raov.PonnaSatyanarayanavsPonnaSatyanarayana 2000 INDLAW SC 326
[xxviii] 1996 INDLAW SC 2361
[xxix] AIR 2006 SC 302 at p. 309 para 27
[xxx] See generally Lucy S. McGough, Child Witnesses: Fragile Voices in the American Legal System 126-88 (1994) (discussing the relationship between hearsay and child witnesses in both civil and criminal contexts); Nancy Walker Perry & Lawrence S. Wrightsman, The Child Witness: Legal Issues and Dilemmas 169-73 (1991) (discussing the challenges courts face with respect to hearsay rulings when dealing with child witnesses).
[xxxi] See Commonwealth vs Di Monte, 692 N.E.2d 45, 50 (Mass. 1998) (“Our affirmance of a judge’s admission of a statement to a physician from a child some five hours after she had been scalded is an outer limit in our cases thus far.”); see also Commonwealth vs Hardy, 716 N.E.2d 109, 114 n.7 (Mass. App. Ct. 1999) (noting children’s statements are given “special consideration” for excited utterances).
[xxxii] 2002 INDLAW MP 79