DOCTRINE OF RES GESTAE
Abstract
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.
Keywords
Excited Utterence, contemporaneous, Res Gestae, ambiguity, Manufactured
Testimony.
What is Res Gestae?
The principle underlying Section 6, the following is sometimes termed as res gestae.
This phrase means simply a transaction, ' thing done', 'the subject matter', 'Res gestae'
of any case properly consists of that portion of actual world's happenings out of which
the right or liability, complained or asserted in the proceeding, necessarily, arises.
Apparently the phrase is well established in the Law of Evidence. It is necessary
therefore, to understand what it really means. That has been used in two senses. In the
restricted sense it means world's happening out of which the right or liability in
question arises. In the wider sense it covers all the probative facts by which res gestae
are reproduced to the tribunal where the direct evidence of witness or perception by
the court are unattainable. In restricted meaning res gestae imports the conception of
action by some person producing the effects for which the liability is sought to be
enforced in action. To be clear, in the restricted sense "facts which constitute the res
gestae must be such as so connected with the very transaction or fact under
investigation as to constitute a part of it." Whatever act, or series of acts constitute, or
in point of time immediately accompany and terminate in. The principal act charged
as an offence against the accused from its inception to its consummation and whatever
may be said by either of the parties during the continuance of the transaction, with
reference to it, including herein what may be said by the suffering party, though in
absence of the accused during the continuance of the action or the latter, form part of
the Principal transaction and may be given in evidence as part of res gestae of it.
While, on the other hand, statements made by the complaining party, after all action
on the part of wrong-doer has ceased and some time has elapsed do not form part of
res gestae and should be excluded.
"The res gestae may be defined as those circumstances which are the, automatic and
undersigned incidents of a particular litigated act and which are admissible when
illustrative of such act. These incidents may be separated from the act by a lapse of
time more or less appreciable. A transaction may last things weeks. The incident may
consist of sayings and doings ; they may comprise "ngs left undone as well as the
things done. They must be necessary incidents of the litigated act in the sense that
they are not produced by the calculated Policy ssayo'c the aeors. They are the acts
talking for themselves not what people when talking about the acts. In other words
they must stand on an immediate casual relation to the actual relation not broken by
the interposition of voluntary individual witness seeking to manufacture evidence for
itself. The test of the admissibility of evidence as part of res gestae is whether the act,
declaration or exclamation is so intimately interwoven or connected with the principal
facts or even which it characterises as to be regarded as a part of the transaction itself
and also whether it negatives any premeditation or purpose to manufacture testimony".
Facts forming part of same transaction
The transaction consists both of the physical acts and the words accompanying such
physical acts, whether spoken by person doing such acts, the person to whom such
acts are done or any other person or persons.
Physical acts forming a part of a transaction
The facts forming the part of the same transaction with the fact in issue are relevant.
The expression 'res gestae' as applied to a crime means the complete transaction from
its starting point in the act of the accused until the end is reached. What in any case
constitutes a transaction depends wholly on the character of the act and the
circumstances of the case. It frequently happens that, as evidence of circumstances
may be resorted to for the purpose of proving the commission of a particular offence
charged, the proof of those circumstances involves the proof of other acts either
criminal or apparently innocent. In such cases it is proper that the chain of evidence
should be unbroken. If one or more links of that chain consist of circumstances which
tend to prove that the prisoner has been guilty of other crimes than the one charged,
there is no reason why the court should exclude those circumstances. They are so
intimately connected and blended with the main facts adduced in evidence that there
is no reason why the criminalities of such intimate and connected circumstance should
exclude them more than other facts apparently innocent. Thus, if a man be indicted for
murder and there be proof, that the instrument of death be pistol, proof of that the
pistol belonged to another man, that the prisoner was there on that night and the pistol
was seen in his possession on the day of the murder, just before the fatal act, is
undoubtedly admissible, although it has a tendency to prove the prisoner guilty of
larceny. Where a prisoner was charged with stealing six marked shilling from a till
and evidence was tendered of the taking of other money at the same time, it was held
that the evidence was admissible as the several acts of the accused in taking the
money were the parts of the same transaction. Such circumstances constitute a part of
the transaction and whether they perfectly are innocent in themselves or involve guilt
makes no difference as to their bearing on the main question which they are adduced
to prove." A fact forming part of the same transaction with the fact in issue is relevant
under • Section 6 though left to itself it has no bearing on the fact in issue. It is a
general that the evidence of connected precedent or surrounding circumstances is
proper to show the probability that the principal fact has happened in all cases where
it may naturally be assumed that a connection exists between the main fact and
subordinate fact.
Where the transaction consists of several physical acts, in order that the chain of such
acts may constitute the same transaction, they may be connected together by
proximity of time, by proximity of place, continuity of action and community of
purpose.
Statements as Res Gestae
In Gentela Vijay Vardhan Rao and Others v. State of Andhra Pradesh1, the accused
sneaked into passenger bus with most inflammable liquid, petrol and match-box and
then set it at blaze as a result 23 passengers were roasted to death. The Magistrate
recorded the statement of victim under expectation of death. In view of appreciable
interval between acts of carnage and Magistrate's recording of statement, the
statements recorded by Magistrate did not form part of res gestae.
In State of Andhra Pradesh v. Panna Satyanarayan2, the accused murdered his wife
and daughter. The father of the deceased wife stated that father of accused told him on
telephone that his son had killed the dece, There was no finding as to whether the
information given by accused's father to the deceased's father that the accused had
killed the deceased was either of the time of commission of the crime or immediately
thereafter so as to form the part of same transaction. The statement was held to be not
relevant under Section 6.
The time.- Section 6 of Evidence Act is an exception to the general rule whereunder
the hearsay evidence is admissible for bringing hearsay evidence under Section 6, it
has to be established that it must be almost contemporaneous with the acts and there
should not be an interval which would allow fabrication. The statements sought to be
1
2
AIR 1996 SC 2791.
AIR 2000 SC 2138.
admitted, therefore, as forming part of res gestae, must have been made
contemporaneously with the acts or immediately thereafter3.
No uniformity exists in the length of time over which the transaction shall properly be
held to extend. The act or transaction may be completed in a moment of time, or, if
there are connecting circumstances it may extend, through a period of days, or weeks
or even months. If on a public street there is an unexpected collision between two men,
entirely strangers to each other, the transaction of the collision is confined within the
few moments it occupies. When there is a social fair in which two religious parties are
arrayed against each other for weeks, then all that such parties do or say under such
circumstances is as much part of the transaction as blows given in homicides for
which particular prosecution may be brought. In case of direct evidence as to oral
contract entered into at a particular interview, the transaction may cover only a few
minutes. In a case where an agreement between the parties has been reached by a
series of negotiations, extending over months or even years, the title covered by the
transaction will be extended.
Space.- No limitation can be imposed as to the territorial boundaries within which the
transaction must occur. Those of sudden quarrel, shooting or stabbing 'may occur at
one place even in a room. They may on the other hand, like a rebellion, or other
movement may cover the breadth of a country or of a continent.
Psychological acts forming part of the transaction or- ''words accompanying
physical acts".
The words spoken by the person doing the act, or by the person to whom they were
done or by the bystanders are relevant as a part of the same transaction, but it should
be borne in mind that such statements or declarations, as they are called, in order that
they might be admissible as res gestae should be contemporaneous with the
transaction in issue, that is, the interval should not be made as to give time and
opportunity for fabrication and connection and they should not amount to mere
narrative of a past occurrence. They are admitted, when they appear to have been
made under the immediate influence of some principal transaction relevant to the
issue and are so connected with it as to characterise or explain, immediate influence
of some principal transaction relevant to the issue. A bare statement of the
complainant to the third person is not admissible, it is the power of perception
unmodified by recollection that is appealed to and not of a recollection modifying
perception. Whenever recollection comes in whenever there is opportunity for
recollection and explanation the statements cease to be part of the transaction. A
declaration must be substantially contemporaneous with the fact and if it is separated
from the fact by an interval which, though however slight allows of fabrication, it
cannot be treated as substantially contemporaneous with it and would not the
statement of its effect as res gestae and would reduce it to the status of a complaint or
narration of a pest event4.
All spontaneous statements in some way connected with the transaction under
investigation are not admissible. It must be shown that the statement is a part of the
transaction. The statement is not admissible only because it is uttered in the course of
the transaction. To be admissible it must be a part of the transaction. If 'A' assaults 'B'
on the neck with a knife and this is seen by bystanders who exclaim, 'A' is killing 'B'
3
4
Sukhar v. State of U.P., (1999) 9 SCC 507.
Kameshwar Prasad Singh v. Rex, 1951 ALJ 149
5
,the exclamation is as much part of the transaction of murder as the gushing out of
the blood from the wound inflicted on the neck with the only difference that the latter
is a physical reaction to the act whereas the former is the psychological reaction
through perception. While no doubt the spontaneity of the statement is guarantee of
the truth the reaction for its admissibility under Section 6 is that it is part of the
transaction and not merely because it is spontaneo'is.
In R. v. Bedingfied6, a woman with a throat cut came out of the room suddenly and
said to the witness "Aunt see what Bedingfied has done to me". C.J. Cockburn held it
to be not admissible as res gestae because the statement was made after the incident
was over.
In R. v. Christie 7 , a statement made by a young boy to his mother shortly after
indecent assault on him by the offender was held not to be res gestae as it being so
separate by the time and circumstances could not be said to be part of the same
transaction.
In Often v. Regina8, the caller a woman giving her address in distress guested the
telephone operator to connect the police but call could not be completed as it ended
suddenly. When the police came to her house, she was found there dead. Her husband,
who was charged of killing her by shooting, took the plea that the fire was accidental
but it was held to be intentional on the basis of her call to the operator to connect the
police as no victim of accident wow think of getting the police prior to the incident.
The call by the woman and whatever she said was held to be res gestae.
According to Lord Wilberforce Bedingfied's case was more useful as a focus of
discussion than the decision on the facts.
Res Gestae an exception to hearsay
The res gestae is an exception to the principle that hearsay evidence is no evidence. In
R. v. Foster9, the deceased had been killed in an accident by the speeding truck. The
witness had not seen incident but only the speeding truck. The deceased stated to him
what had happened with him in the accident. The Court held the statement of the
deceased to the witness to be admissible in evidence as res gestae.
Statement in answer to a question
As said earlier, the requirement of Section 6 is that the statement must have been
made contemporaneously with the act or immediately after it and not at such an
interval of time as to make it a narrative of past events. If the statement is answer to a
query after lapse of some time, it cannot be treated as res gestae10. At the time of
murder, the cry of deceased 'save me' and that of the children that their mother was
being killed are relevant as res gestae11.
5
Sawal Das v. State of Bihar, AIR 1974 SC 778
(1695) 6 Skin 402.
7 (1914) AC 545, Per Lord Atkinson
8 (1971) 1 WLR 801 (PC)
9 (1834) 6 C & C 325; 172 ER 1261.
10 Pratap Singh v. State, 1971 Cr LJ 172
11 Sawal Das v. State of Bihar, AIR 1974 SC 778
6
When a minor married girl was abducted by accused immediately on her recovery at
the railway platform she told her uncle that she had handed over her ornaments to
Ram Das who had placed them in his jhola and had run away with the ornaments. The
statement is relevant under Section 612.
Pratap Singh was charged with the murder of Ram Charan. One Sarfaraz Beg deposed
before the court that at about 1.50 p.m. on the night of the alleged occurrence, he
heard some row from his house which was at the distance of about 400 yards from the
place of occurrence. He said that he went towards the place of occurrence near which
a large crowd had collected. On going inside the house he found a dead body lying
with fresh wounds. According to the witness, Mst. Mahadevi was there. When she
was questioned about the murder she stated that her husband and brother had run
away after committing the murder. It was held that as the statement was in answer to a
query and was made after the lapse of some time after the murder, it cannot be treated
either as spontaneous or as part of the transaction of the murder, and so was not
adimissible13.
Test for Res Gestae
1. The first test says that if there a relation of cause and effect or vice versa, i.e. a
causal relation between the fact in issue and the fact which is intended to be given as
evidence, then that fact can be said to form part of the same transaction as the fact in
issue. This test, however, is of not much worth as every event is the collaborative
effect of innumerable effects. Now, supposing that all these causes and effects are to
be treated as relevant and evidence is permitted to be given of all these facts, then the
very purpose of restricting the evidence in a court of law to relevant facts is lost. The
precious time of the court will be rendered in vain in listening to evidence of remote
causes and distant effects.
2. The second test suggests that facts connected by proximity of time and place would
come under the section. No doubt facts happening at about the same time and place
can be treated as closely connected and therefore relevant under the section. But this
is not enough, because the section itself contemplates the possibility of facts
happening at different times and places, being connected with the fact in issue, so as
to form part of the same transaction.
3. A third test suggests that there should be a continuity of purpose and action running
through the fact in issue and the fact of which evidence is sought to be given. This, it
is submitted, is considered equally unworthy as it merely substitutes one vague phrase
for another.
F.I.R. when res gestae
If a witness present at the scene of occurrence sees the whole occurrence from
beginning to end, makes cry about the offence being committed when people from
vicinity reach, he tells the story of occurrence and then after some time goes to police
station and makes first information report, the making of the report is part of the
transaction and so it amounts to res gestae. The fact that some time has elapsed
between the occurrence and report is immaterial14.
12
Ram Das v. State, 1972 Cr LJ 57
Pratap Singh v. State of M.P., 1971 Cr LJ 172
14 Shyam Nandan Singh v. State of Bihar, 1991 Cr.L.J. 3350
13
Criticism
Even when the development of the term Res Gestae was in its infancy, there was sign
that it was not altogether regarded with favor. It became popular because of its
convenient obscurity. Wigmore has also been highly critical of the use of the phrase
Res Gestae. He has written that it is "not only entirely useless, but even positively
harmful."' The phrase is useless because "every rule of Evidence to which it has ever
been applied exists as a part of some other well-established principle and can be
explained in the terms of that principle. The phrase is harmful because by its
ambiguity it invites the confusion of one rule with another and thus creates
uncertainty as to the limitations of both. Thus, Wigmore concluded that the "Res
Gestae, "should never be mentioned.
Conclusion
Usually evidence is brought under Res Gestae when it cannot be brought under any
section of the Indian Evidence Act. The intention of the law makers was to avoid
injustice, where cases are dismissed due to lack of evidence. Courts have always been
conscious that this doctrine should never be expanded to an unlimited extent. 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. This doctrine is
more complex and vague, this forms the loophole.
The ambiguity of this doctrine is highly criticized. Therefore we can see that what
originally started meant only acts done (actus) to form Res Gestae, now covers all acts
done or statements made during the happening of the crime, at the same time or same
place of the crime or different times at different places, is said to be forming a part of
the same transaction and thereby admissible by virtue of doctrine of Res Gestae. 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.”