THE PRINCIPLE OF RES GESTAE AND ITS APPLIACTION IN EVIDENCE LAW

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This article was written by Kushan Gidwani, a student of Amity Law School, Noida.

INTRODUCTION

Section 6 of the Indian Evidence Act, 1872 states that, “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.”

Facts forming part of a transaction are described by English and American writers as being part of  res gestae, i.e, actions performed in the course of the same transaction.

Here, ‘transaction’ must be defined for further elucidation of the concept of Res gestae. According to the definition provided by Sir James Stephen, “a transaction is a group of facts so connected together as to be referred to by a single name such as a crime, contract or wrong or any other subject of enquiry, which may be in issue”[1]. Thus, it is to be a collection of facts that are interlinked to each other in such a way that they can be collectively termed as a crime, contract or wrong.

In Babulal v. W.I.T Ltd[2]. it was observed that the statement of law in section 6 of the evidence act is usually known as res gestae. Res Gestae has been referred to in the following explanation in a dual sense. In the restricted sense, it confers relation to every event that takes place, through which the right or liability in question arises. Whereas in the wider sense, it includes that complete collection of facts, which are tending or contributing proof of the transaction questioned in the case, to be reproduced before the tribunal where the purpose of achieving direct foundational evidence through witness or perception has failed. Taylor defines this expression as including everything that may be fairly considered as an incident of the event under consideration. Thus, res gestae are those circumstances which are the instinctive(automatic) and undersigned incidents of a particular act.[3]

Test For Res Gestae

Let us take for example A being tried for the murder of B by smashing him with a hockey stick. Here, assumed transaction is the heinous crime of murder. Three core events of this transaction to be duly noted are:

• A smashed B with a hockey stick,
• A caused B’s death, and
• A had an intention of causing B’s death.

All abovementioned events are in issue and form parts of the same transaction, and evidence can always be given of such facts in issue under Section 5. But the phrases spoken by A at or about the time of smashing, or words uttered by B or by the bystanders, at or about the time of beating, will not be in issue as far as this case is to be considered under section 5. But when the same case is considered under section 6, all these events of utterance form parts of the same transaction of murder, which is the subject of enquiry, and therefore are relevant under this section.

The section provides that if a part of the transaction is a fact in issue, then evidence can be given of every other part of the transaction either because such other part is also in issue and therefore evidence of it is permissible under Section 5, or because such other part is relevant under Section 6, and therefore, under Section 5, evidence of the same transaction can be given. The question that now arises is: “what is the procedure or way of artful thinking for finding out the fact that forms part of the same transaction as the fact in issue?”

The various tests suggested are as follows:

• 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.

• 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.

(c) 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.

In the English Law system, the phrase Res Gestae which is come across as equivalent to the facts mentioned in Section 6. But, unfortunately, that phrase is not always used with that meaning.

We also find its use in the following senses:

(i) as equivalent to the fact in issue,

(ii) as equivalent to the details of the fact in issue, and

(iii) the fact in issue and surrounding circumstances.

This being so, it is the general opinion of all authorities on the law of evidence that this phrase should be avoided completely. While there is so much ambiguity in the meaning of the phrase, to look for a test for facts which are res gestae, would be looking for the proverbial needle. But at the same time, such ambiguity allows for the most possible ways interpretation of the facts in issue and the facts to be taken as evidence under this rule of Res Gestae. These interpretations also help in finding out the truth of the matter which otherwise wouldn’t have been found, had there been no ambiguity and, thus, restricted the amount of possibilities.

The truth of the matter is that it is left to the presiding Judge, who, guided by precedents and his valuable experience, to decide whether there is a necessary connection between the fact in issue and the facts to be given in evidence, and treats those facts as relevant.

One test, however, is accepted with respect to words uttered at the time of the transaction taking place. That test is that the utterance must be spontaneous as well as contemporaneous with the fact in issue. If it so seems that those words might be thought out at the time of proceeding and therefore were not spontaneous at the time of the conduct of transaction, then it will not be considered as ‘relevant evidence’ under this section.

In this case[4], the accused was charged for murdering. The deceased was giving gold and money to the accused for teaching him which golden treasures from underneath the land can be taken out. As the purpose could not be served, the deceased went to the accused’s residence to take back the gold and money given to him when the accused administered poison to him. The dead body was found lying near a village tank. The body was identified by deceased’s wife. The case for murder was based on circumstantial evidence as there was no direct evidence. The most important incriminating evidence on which the prosecution relied was given by one Prosecution Witness 6 (P.W. 6). He stated that when he was taking his hired cart from his village to Partabur, on returning he was passing through the village of the accused. There he found a cart standing at the door of the accused on the road, blocking his way. And so he asked a person standing by that cart to shift it a little. That person asked P.W. 6 to take his cart sideway as “a dead body was loaded on the cart”. It was the same dead body of the deceased which was later discarded near the village tank by this cart. Thus, it was argued whether this statement by the bystander could be taken as relevant to the fact in issue and that if it could form part of the same transaction, i.e. the murder of the deceased. The court found it to be inadmissible. It held that illustration ‘a’ of the Section 6 indicated that the spontaneous statement of a bystander who “sees the commission of murder” is admissible for it to form part of the same transaction which is murder. Thus, there was no indication that the person who made the statement had actually witnessed the murder or that no substantial time had elapsed between the occurrence of transaction and the statement.

For this statement to be admissible, it needs to be proven as to come under one of the conditions that need to be fulfilled for the previously mentioned test to succeed. The conditions are as follows:

1. The statement must be a statement of fact and not of opinion
2. The statement must have been made by a participant or witness of the transaction
3. The statement made by the bystander is admissible, is he was present at the scene of offence
4. The statement must explain, elucidate or characterise the incident in the same manner

The essence of the doctrine is that a 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 on fact admissible under S.6 of the Evidence Act is on account of the spontaneity and immediately 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.

Admissibility Depends on Continuity of The Transaction

It will appear from what is said above that the declarations or acts are not admissible unless they form part of the transaction in controversy, i.e, they must be substantially contemporaneous with the fact in issue must tend to illustrate and explain it. The admissibility of the declaration or act as part of the transaction depends on continuity of action as also proximity of time and community of purpose.

An illustration could be:

In a trial for abduction, a witness stated that he had seen three women, who were sleeping in the same bari as the complainant and his wife, searching something at dusk. The women were not examined and when the witness was asked what reply one of these gave, the judge rightly excluded the evidence. The alleged search that evening cannot be treated as part of the same transaction as the abduction at night; so S.6 cannot make it admissible and as the women were neither parties to the case nor agents, S.8 is of no help. S.9 is equally inapplicable.[5]

PSHYCOLOGICAL ACTS FORMING PART OF THE TRANSACTION

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 should be contemporaneous in order to be admissible as res gestae. Interval should not be made as to give time and opportunity for fabrication and connection and they should not amount to a mere narrative of past occurrence.

In R vs Bedingfield[6], a woman with her throat cut came out of the room and suddenly said to the witness “Aunt, see what Bedingfield has done to me”. This statement was held not to be admissible as res gestae because the statement was made after the incident was over.

In Rutten vs Regina[7] the caller, a woman in distress, requested the telephone operator to connect to the police but the call could not be completed as it ended suddenly. The call by the woman and whatever she said was held to be res gestae.

RES GESTAE AS AN EXCEPTION TO HEARSAY

Res Gestae is an excepton to the principle that hearsay evidence is no evidence. Res Gestae being admissible as an exception to the hearsay rule can be stated as being a hearsay statement, relating to an extraordinary evidence or condition, that was made while the witness was still under the effect and stress of excitement caused by that event or condition. The reasoning provided behind such statement is that the witness while providing such exceptional hearsay statement lacks reflective capacity due to the event being so startling, and is only able to speak the truth.

In a case[8] the accused was charged with manslaughter for causing the demise of a person by driving his car over him. A witness saw the vehicle zooming at high speed, but unfortunately did not see the accident. On hearing cries of the victim, he reached the spot only to hear the victim make a statement to the witness just before taking leave to kingdom come. The statement was held to be admissible. 

Criticism of res gestae

The precise limits of res gestae are themselves not easy to define. Facts dffer s greatly that  no fixed principle can be laid down as to the matters that will form parts of a transaction. Because of its confusing nature, the term res gestae has not been included in the Indian Evidence Act. It is left to the judges to find necessary connection and treat a fact as relevant.

CONCLUSION

Usually evidence is brought under res gestae when it cannot be brought under any other section of 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”.

The strength of sec. 6 lies in its vagueness. Each case varies from the other based on the admissibility of facts. Each case in criminal law is judged according to its own merit. The question  wheher such vagueness is reliable while delivering justice is quite a debatable one.

[1] Extracted from Article 3 of the Digest of Law of Evidence by Sir James Stephen

[2] AIR 1957 Cal 709

[3] Lal Batuk, The Law of Evidence

[4] Hadu Samanta vs. State of Orissa  AIR 1951 Orissa 53

[5]Ram Das Chhedi vs The State

[6] (1695) 6 Skin 402.

[7] (1971) 1 WLR 801(PC)

[8] R.V. Foster (1834) 6C &C 325;172 ER 1261