Res Gestae under Section 6 of Indian Evidence Act,1872

“Walking on the edges of the footpath, you hear a screeching voice of a woman, turn to the left and exclaim in shock “oh my god, someone help” when you witness her being robbed off by a gang of four men. Will your statement be admissible in the eyes of law?”

Facts, not a part of the main issue, which are supplementary and is so connected to the issue that it forms part of the same transaction is called res gestae. These facts ought to be contemporaneous in nature so as to be admissible by the court under Section 6 of the Indian Evidence Act. In layman’s terms, the facts which surround the fact in issue and have happened immediately before or after the ‘act’ has been done are admissible under this doctrine. If any of the facts are remotely connected to the main act, they wouldn’t be admissible in a court of law.

Definition of res gestae

Res Gestae has been derived from Latin words meaning ‘’things done’’. It is mainly an exception to the hearsay rule of evidence which refers to ‘’an assertion other than one made by a person while giving oral evidence is inadmissible’’.

As per the stated words of the Indian Evidence Act, under section 6, 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 or at different times and places. This comes under the ambit of res gestae.

Evolution of doctrine of res gestae

The doctrine of Res gestae doesn’t have a precise definition. It has been interpreted and applied in diverse ways and it has been said that the difficulty of formulating a description of Res Gestae, which will serve all circumstances seem unsurmountable.[1] It was the Romans who put light on the concept of res gestae which meant acts that are done.[2] In the case of Thompson v Trevanion, Lord Holton may have used this exception before the phrase ’res gesture’ has come to light.[3]It was in the middle of the 1800s that this exception has been firmly established.

In Babulal v W.I.T Ltd[4], it was discerned that the statement of law in section 6 of the Indian Evidence Act is usually known as Res Gestae. There is a diverse range of opinions when it comes to the understanding of res gestae, where, for some, it is seen as an advantage to complicated cases, while for others, this exception is denigrating and vague.

Lord Normand, in the case of Teper v R., described that res gestae could be admissible on two propositions, that the human declaration is both a fact as well a means of communication and the act should be so closely in sync with words in such manner that the significance of the action couldn’t be understood without the correlative words.[5]

In the case of Ratten v R.[6], the privy council took the exception of hearsay, where a telephone communication on the telephone took place 5 minutes before the woman was shot at the accused’s home, where she hysterically yelped “Get me the police, please”. The privy council held the evidence admissible, as it was part of the same transaction.

Dean Wigmore commented “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.[7]

Nature and scope of Section 6 of the Indian Evidence Act,1872

As mentioned in Section 6, the facts must form a part of the same transaction, but what is meant by transaction in legal terms?

Transaction: it is defined as a crime, contract, error or any other subject of enquiry that may be in question by a single name, which includes both the 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. To resolve what forms a transaction, the following points need to be taken into consideration:

• Unity or proximity of the place
• Proximity of time
• Continuity of actions
• Community of purpose

Mainly it is the test of continuity of actions and community of purpose that make it admissible in nature. If the human declaration is spontaneous but detached from the concerned issue, it wouldn’t be admissible.

The transaction can confine a singular act or a series of acts, which may be done at a different place, or at a different time, but it must be concurrent with the act. In the above-mentioned case of Ratten v R, the victim dialled on the telephone 5 minutes prior to the shooting, however, that act was related to the act of shooting that followed after 5 minutes. Her mental and physical expressions showed the continuity of actions and declared the fear that she had against the accused for murdering her. All of these constitute instances, which supplement, explain or qualify the fact and issues raised in the court of law.  However, these facts would only be relevant if they can be in sync with the proximity of time, continuity of actions and community of purpose.

Contemporaneous act: In the case of Kailash Chandrakar and another Versus State of Madhya Pradesh[8], the rationale was to form a particular declaration as a part of the same transaction or of the same incident or just contemporary to the incident so as to make reasonably certain that the speaker is still under the stress of excitement in respect of the transaction are facts to be considered.

Such acts and statements can come under the doctrine of res gestae that are contemporaneous in nature, meaning, must be simultaneous or spontaneously done, during or immediately, before or after the act, but not after the act is over. Here the value of time is of significance. Res Gestae supports not only actual facts of the transaction and circumstantial evidence surrounding it but also the matters immediately preceding to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence, as explained by J.McKnight, State v. Fouquette.

Even the statements declared by a person to a third party soon after the incident, with not much difference in time are similar to contemporaneous utterances and are admissible as evidence under this principle through the deposition of the one who heard the utterance.[9]

It was also held that requirement of section 6 is that the statement or act must have been contemporaneous with the act or immediately after it and not at such space of time so as to make it a narrative of past events or to allow time for fabrication.[10]

 Relevance of evidence:

Any evidence, which is relating to the main issue raised, is deemed to be relevant unless proven otherwise. Distinct offences may be linked so much that one offence is proof that the other offence followed right after it.

Other conjoining offences by the accused would be pertinent and admissible if there is a relation between the offence charged and the other offences or whether the two acts form part of the same transaction to fall within Section 6. If the offences are so distinct, that they can barely form part of the same transaction, wouldn’t be relevant evidence and would be inadmissible.

 Relevance of facts:

Facts, preceding or succeeding the fact in issue, which constitute the state of circumstances under which they have occurred, or which provided an opportunity for their occurrence or transaction, are relevant. Facts, forming part of the same transaction will be admissible under the previous section.

Evidence to corroborate where such facts have occurred, where reasonable presumption to the disputed matter has been established and where such evidence is reasonably conclusive can be admissible.

Showing similar facts, which aren’t even forming part of the same transaction, can’t be a relevant fact. When some facts are alleged, they need to be proven with enough nexus with the offence to held admissible.

This section provides categories of facts which are connected with the transaction under inquiry in particular modes, which are as follows:

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

Test for admissibility of evidence under res gestae

There are a few questions that the judge of the respective of court needs to take heed of, for making such evidence admissible under the res gestae doctrine. They also need to comprehend certain circumstances, whether they were so sudden, surprising or startling to affect the immediate thoughts and actions of the victim, that his/her declaration was an instinctive response to that circumstances.

For the supplementary evidence to be contemporaneous, it has to be adduced that the consciousness of the declaring party has been immediately dominated by the event. Therefore, it has to be closely associated with the main event.

Put it in brief, the test to be applied in deciding whether a hearsay statement made by a third party or the victim indicating the identity of the attacker is admissible can be framed on the basis of these aspects:[11]

1. Relevancy of identification
2. The spontaneity of the declaration
3. Possible opportunity for the concoction
4. The real possibility of error

Landmark judgements relating to the doctrine of res gestae under Section 6, the Indian Evidence Act,1872

The following judgements help to filter out the res gestae from such facts that actually have concurrence with the main issue and determine whether these statements have occurred in the spur of the moment or fabricated or narrated in a later period, to be admissible or not

• Vasa Chandrasekhar Rao vs. Ponna Satyanarayan and Ors[12]

In this case, the offender had killed his wife and daughter. The deposition was made by the father of the accused that who made a phone call to the accused and said over the call that his son had killed the deceased. The contention raised before the court was, whether this statement of the accused’s father can be recognised under the doctrine of res gestae. Unable to determine the time of the phone call, where this same information was relayed, and whether it was done simultaneously with the commission of the crime or immediately after, this evidence was held inadmissible under the said principle.

• Gentela Vijayavardhan Rao and Ors vs. State of Andhra Pradesh[13]

Here, the considerable interval between the act of carnage and the recording by the magistrate of the statement, made the evidence inadmissible.

• Bishna and Ors vs. State of West Bengal[14]

In this case, two witnesses arrived at the place of occurrence right after the incident has taken place and found the body of the deceased named Prankrishna and injured Nepal in an unconscious state. One of the witnesses heard the mother of Prankrishna and Nepal sobbing and heard the entire scenario from an eyewitness and the role played by each of the appellants. However, their testimony was inadmissible as it was recognised under the doctrine of hearsay evidence.

 Expansion of the doctrine of res gestae

Courts have gradually increased the ambit of the section, extending to cases like domestic violence, child witness, etc.

Often, cases of domestic violence, and sexual and physical assault involve some form of startling event, also including the issue of excited utterances, wherein most victims can only identify the alleged offender. So many testimonies ought to be admitted.

In cases of rape or sexual offences, women are generally under trauma for having been victimised in a gruesome way, so they might take a day or two to get over the trauma and respond. these responses must be taken into the ambit of res gestae as well. If proven that the victim was in a state of shock, then such a statement can be admitted. It is difficult to find eyewitnesses for rape as these cases happen in isolation.

An excited utterance is generally observed in the testimonies given by children. In the case of children, the spontaneity of the declaration is given relief. the rationale behind this is that children take time to cope with stress and their statements are made well after events occur at the first safe opportunity to speak.

In the case of Uttam Singh v State of Madhya Pradesh, the child of the deceased witnessed the death of his father, when the offender hit the deceased with an axe by his neck and yelled in fear calling his mother for help. Even though the child couldn’t give the statement on the spot, later his statement was held admissible under section 6.

Exception to hearsay

A killed B, where C was the sole eye witness. C shared this news with D. If D testified whatever C saw in the court, it would be held inadmissible because he wasn’t part of the event nor did form part of the same transaction. He just heard it from C and said it. This is called hearsay evidence and is held inadmissible.

It’s admissible when a person testifies about what he or she has seen or heard if it’s relevant to the issue. However, it’s not admissible if the truth of the statement needs to be weighed down. Hearsay isn’t the best evidence because of the following reasons i.e., the witness isn’t available for cross-examination; he isn’t put on oath or affirmation; it carries an inherent danger of unreliability through repetition of facts stated in the chain of communication and possibility of fabrication.[15]

Res gestae is an exception to this doctrine because it includes the element of contemporaneity and forms part of the same transaction.

Conclusion

It is now evident that the involvement of the speaker in the pressure of the drama or the concatenation of events leading up to the crisis needs to be established. As long as the statement isn’t made by the mere narration of a detached prior event to show the disengagement of the speaker from the main issue, it can be made admissible.[16]

The statements, either oral or written, must be made with concurrence to the main issue and not merely accompany the act. They must be descriptive about the immediacy of the statements relating to the occurrence of such incidents. Besides, they can’t be independent facts or subsequent facts after the act is over.

The declaration may be made by the same person, party to the offence, or any third party. Due to the vague nature of the doctrine, the courts have taken up the “test of continuity of transaction”. Even if certain statements haven’t been uttered spontaneously, and had a gap of time from the occurrence of the incident, they can be rendered admissible if it’s proved that the speaker was in a state of shock or excitement during the incident.

[1] 31 A CJS 978.

[2] Diva Rai, Doctrine of Res Gestae, IPLEADERS, (29 May,2019) https://blog.ipleaders.in/doctrine-of-res-gestae/.

[3] Khan, Aamir, Doctrine of Res Gestae, Concept and Scope (April 17, 2015). Available at SSRN: https://ssrn.com/abstract=2595574 or http://dx.doi.org/10.2139/ssrn.2595574.

[4] 1956 INDLAW CAL 105.

[5] (1952) A.C. 480, 496.

[6] MANU/AUSH/0028/1974.

[7] Jibin Mathew George, Doctrine of Res-Gestae, ACADEMIKE, (16 December, 2014) https://www.lawctopus.com/academike/doctrine-of-res-gestae/.

[8] 2014 (135) AIC 553, CHHATTISGARH HIGH COURT.

[9] Gurdev Singh, Balwinder Kumar, Angrej Singh, Bachittar Singh Versus UOI & Ors. 2014(2) SLR 675.

[10] Chhotka v. State, AIR 1958 Calcutta 482.

[11] Shrivastav N, Doctrine of Res Gestae, LEGAL SERVICES INDIA, http://www.legalservicesindia.com/article/2501/Doctrine-of-Res-Gestae.html.

[12] MANU/SC/0394/2000.

[13] MANU/SC/0719/1996.

[14] MANU/SC/1913/2005.

[15] Hanishi K Thanawalla, Development and liberalisation of Hearsay Doctrine, 38 JILI (1996) 229.

[16] Jean Campbell, Res Gestae and Hearsay Evidence,35, TMLR, pp.540-543, 543 (1972).

Author Details: Ruparekha Jena [Student; KIIT School of Law, KIIT University]