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RES GESTAE
♣ Sharda
INTRODUCTION
S. 5 of Indian Evidence Act lays down that evidence may be given of fact in issue and relevant fact described under S. 6 to S.55. 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 principal of law embodied in S.6 is usually known as the rule of res gestae. The rules formulated in s. 6 is expounded and illustrated in S. 7, 8, 9 and14. 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, but when it is res gestae it can be admissible in a court of law and may be reliable evidence. This section is used by the 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 anytime for concoction. So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter.
Res gestae includes facts which form part of same transaction. So, it is pertinent to examine what is a transaction, when does it start and when does it ends. 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 the modern hearsay definition altogether, such as circumstantial evidence of 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 state of mind, and statements made to physicians^1.
♣ Author is a 3rd^ year student of Chanakya National Law University, Patna. (^1) See Eleanor Swift, The Hearsay Rule at Work: Has it Been Abolished De Facto by Judicial Decision?, 76 Minn. L. Rev. 473, 475 (1992).
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This article tries to analyze the question as res gestae is a part of transaction. So, it is pertinent to examine what is transaction and when it starts and when can one say that a transaction has ended.
MEANING OF RES-GESTAE
Res gestae has no exact English translation. A literal translation means “something deliberately undertaken or done”.^2
Few areas of the common law of hearsay are in greater dispute than the doctrine of res gestae.^3 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.” 4
Res gestae has been defined as “Things done, 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 automic and undersigned incidents of a particular litigated act and are admissible when illustrative of such act.”^5
According to Black’s Dictionary, res gestae meant “things done... things or things happened... words spoken, thoughts expressed, and gestures made, all... so closely connected to occurrence or event in both time and substance as to be a part of the happening... .[That is, the] whole of the transaction under investigation and every part of it.... “^6 .In other words, res gestae meant nothing more than the modern words “same transaction or occurrence” and had something to do with relevancy. Res gestae also encompassed “those circumstances
(^2) Translation provided by Dr. Philip Pattenden, Dir. Of Studies in Classic, Peterhouse, Cambridge. (^3) 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”). (^4) Id. (^5) Vinodkumar Baderbhai Patel vs State of Gujarat, 1998 INDLAW GUJ 22 (^6) Black’s Law Dictionary 1305 (6th ed. 1990) (citing McClory vs Schneider, 51 S.W.2d 738, 741 (Tex. Civ. App. 1932)).
or design.^14 But the main test must be continuity of action and community of purpose.^15 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^16. The expression suggests not necessarily proximity of time so much as continuity of action and purpose.^17
Buying a pen from the shop is also a transaction. It ends the moment the buyer hands the money to the shopkeeper and the shopkeeper hands the pen to the buyer. But certain transaction like murder extends over a longer period of time. When can a transaction be said to end and when it begins; depends on the fact and circumstances of each case.
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 fact are relevant only when they are connected by proximity of time, unity or proximity of place, continuity of action and community of purpose or design.^18
For instance, a person is lying on the side of the road. He is injured and is shouting for help. A passer by comes by listening his shout and then he is told that ‘Mr. X tried killing him’. Can this statement be admissible as forming part of same transaction? (Instance I). In the same situation, if the passer by comes to the victim voluntarily and then asks the victim and comes to know that Mr. X tried killing him. Can this statement be admissible as forming part of same transaction (Instance II)?
There is difference between both the situations. In first instance, the transaction was still continuing. The victim was under the stress of excitement and the statement made by him was a reaction to the main act i.e. murder. In the second instance, the statement made by the person was a response to the question asked by the person. It may be said that the transaction ended as there was an intervention by a third person, the passer by asked a question as to what happened and the response was not a reaction to the situation but a response to his question. If any statement is a reaction to the situation than it forms part of the same transaction but if it is a response to the question, the transaction ends with the intervention of a third party and such acts or admissible can not be made admissible under sec.6 of the Indian evidence act.
(^14) Banga Ch vs Annada 35 CLJ 527 (^15) R vs Loclay (^16) Bandela Nagaraju vs State of A.P 1983 INDLAW AP 75 (^17) Ganesh vs R, A 1931 P 52. (^18) Amritala vs R 42 C 957.
Statement made after some times may be admissible under S. 157 as corroborative evidence but not under S. 6.^19 Two fact occurring at the same time and place may have no connection between them; and yet two facts separated by a vast distance of time and lace may be part of the same transaction. The primary offence and the offence of destroying evidence of the primary offence may in certain circumstances be parts of same transaction.^20
To form a particular statement as a part of the same transaction, utterance must be simultaneous with the incident or soon after it so as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction in question. Where the accused made a statement to the deceased’s brother relating to the motive and commission of the offence after half an hour of the incident, it cannot be said that there was a long interval so as to give an opportunity for any fabrication and therefore, it was admissible under s. 6.^21 Statement by a victim shortly after he sustained injuries that the accused inflicted them is admissible under S.6.^22 Transaction also ends with a time gap. If there is a long time gap, it can be said that the response of the victim is concocted or it is influenced by his/her personal feelings.
Whatever is said by the informant in the F.I.R or to other witness after the occurrence forms part of the same transaction?^23 When the offence under trail is filing false complaint; what happened at the subsequent police investigation of the complaint forms no part of the res gesate.^24
Evidence which is connected with the principal subject matters of the charges as parts of one and the same transaction is relevant.^25 Two distinct offences may be so inseparable 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.^26 Evidence as to other offences by the accused would be relevant and admissible if there is a nexus between the offence charged and the other offences or the two acts form part of the same transaction so a to fall within S.6. An entirely separate and disconnected offence is not admissible merely because it occurred at or about the same time as the res gestae of the offence on Trail.^27
(^19) Rameshwar vs S AIR 195 C 54. (^20) Hari vs State of U.P 183 Cri LJ NOC 62(All) (^21) Venkatesan vs State 1997 INDLAW MAD 104 (^22) Krishnaram vs S, A 1964 As 53. (^23) Shyam Nandan Singh vs State of Bihar 1991 INDLAW PAT 12 (^24) Venkatasubbiah vs R 48 M 640. (^25) R vs Vajiram, 16 B 414, p. 430-31. (^26) Peoples vs Marble 38 Mich 117. (^27) Peoples vs Lane, 100 California 379.
informed by the eye-witnesses as to who the two accused has been, their deposition was judged to fall within the ambit of Section 6. Where on hearing sounds of gunshots from the house of the victim, his neighbours run to the spot within minutes and he told them the names of the assailants who had shot at him and his wife, his statement to them was relevant under this section 6.^31
TAPE RECORDER : A contemporaneous tape record of a relevant conversation is a relevant fact and is
admissible under section 7 but such evidence must be received with caution.^32 Where the tape recorded conversation carried music before and after the recorded conversation and the same could not be explained the court said that the only plausible explanation was that the tape was tampered.^33 A contemporaneous tape recorded of a relevant conversation is a relevant fact and is admissible under section 7. The manner and mode of its proof and its use in a trial is a matter of detail. It can be used for the purpose of confronting a witness with his earlier tape recorded statements. It can be used for the purpose of confronting a witness with his earlier tape recorded statements. It may also be legitimately used for the purpose of shaking the credit of a witness.^34 For the use an earlier tape recorded statement, the identification of the taped voices is a crucial and matter and indeed such proper identification is a sine-qua-non for the use of the earlier tape recording. Where the voice is denied by the alleged maker thereof, a comparison of the same becomes inevitable and proper identification of the voices must be proved by a competent witness. The recording of the voice of a witness for the purpose of a comparison with and identification of his earlier recorded voice can therefore, be allowed by the court and such comparison is neither expressly nor impliedly prohibited under any statue.^35
TEST FOR ADMISSIO OF EVIDE CE U DER RES-GESTAE
The primary question which the judge must ask oneself is-can the possibility of concoction or distortion is disregarded?^36 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 such a situation the judge would be entitled to conclude that the involvement or the
(^30) Mahendra Pal vs State AIR 1955 All 328 (^31) Nathuni Yadav vs State of Bihar 1996 INDLAW SC 1562 (^32) Yusufalli vs The state, (1967) 70 Bom LR 76 (SC) (^33) State of Maharashtra vs. Ramdas Shankar Kurlekar, 1998 INDLAW MUM 8322 (^34) Dial Singh Narain Singh vs. Rajapal Jagan Nath AIR 1969 P&H 350 (^35) Nirmala vs. Ashu Ram, 2000 Cri LJ 2001 (^36) R vs Andrews 1987 A.C 281, H.L
pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
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.^37
Quite apart fro the time factor, there may be special feature in case, which relate to the possibility of concoction or distortion.
As to the possibility of report on the facts narrated in the statement if only the ordinary fallibility of human recollection is relied on, this goes to 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 foe 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.^39
STATEMENT SHOWING MOTIVE AND INTENTION
A person’s statement that he intends to do something in the future is not admissible as evidence that he did that thing. What someone says, where his intention is in issue, is very different matter to investigating what someone says he is going to do in order to decide whether he carried out his stated intention. In Wainwright
(^37) R vs Pennel (^38) R vs West, unreported, CA. (^39) R vs Smartt 2004 EWCA Crim 2072, 26.
reliable^44. The state of excitement can continue to exist after the exciting fact has ended. The declaration therefore may be admissible even though subsequent to the occurrence, providing it is near enough in time to allow the assumption that the exciting influence continues. Statements made by the observers of events may be admissible as part of the res gestae if they were a spontaneous consequence of the event.
As courts and commentators explained “Where a remark is made spontaneously and concurrently with an affray, collision or the like, it carries with it inherently a degree of credibility and will be admissible because of its spontaneous nature.”^45
Debate over the admissibility of excited utterances centers on the timing between the statement and the cause of the excitement. Over the course of two centuries, the excited utterance doctrine has evolved from the concept of res gestae, requiring simultaneity between the underlying event and the descriptive statement, to virtually abandoning a temporal requirement between the event and the statement.
This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.^46 The witness’ state of nervous tension was of utmost importance in Wigmore’s analysis. According to Wigmore, this “immediate and uncontrolled domination of the senses” lasts for a “brief period.” During this short time, neither thoughts of “self-interest” nor other “reasoned reflection” arise. Therefore, the utterance is “particularly trustworthy” and may be admitted despite its hearsay character. Wigmore even hinted that such evidence is superior to in-court testimony because of its spontaneity and closeness to the event.^47
CRITIQUE OF EXCITED UTTERANCE
Despite its intuitive appeal, Wigmore’s notion that a person would not have time to think up a lie before making an excited utterance in response to a startling event is not borne out by psychological research. The time required to craft a lie is slight--sometimes only a matter of seconds.^48 It was asserted that the difference in reaction time between deceptive and sincere responses is negligible. The excited utterance exception, which
(^44) R vs Christie, 1914 AC 545; R vs Thompson 1912 3 KB 19; R vs Osborne 1905 1 KB 55; Phip 8th Ed, p.60. (^45) Carroll vs Guffey, 156 N.E.2d 267, 270 Ill. App. Ct. 1959 (^46) See John Henry Wigmore, Evidence in Trials at the Common Law p. 1362 (James H. Chadbourn ed., 1978). (^47) Id (^48) See Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence, 28 Column. L. Rev. 432, 437 (1928)
tolerates more than a thirty-minute gap between the event and the utterance, allows more than sufficient time for planning a false report. Psychological studies support this observation and indicate that the difference between the time of cognition and the time when the declarant may begin to fabricate is so small that it is often impossible to measure without instruments^49.
Additionally, some psychological data indicate that, as a self-protective device, witnesses may initially suppress unpleasant memories, which only emerge in later, calmer times.^50 It was noted hear that the central features of unpleasant events may be better remembered than neutral events, but such enhanced memory will occur after a lapse of time. Such data argue directly against application of the excited utterance exception, because the witness’ ability to recall will not be at its best so near in time to the traumatic event.
Professor Wigmore’s description of stress as the guarantor of truthfulness may not be well-founded. First, neither the duration of the declarant’s stress nor a lapse in time between the event and the statement may determine whether a person can fabricate a remark.^51 Moreover, some have argued that stress naturally leads to confusion and can result in an inaccurate recollection of events.^52 noting that in a recent review of literature relating memory to stress, ten studies “concluded that arousal caused by an event either had no effect on subsequent recall or increased accuracy” while eleven other studies “demonstrated a negative effect of event arousal on memory”^53.
Psychological studies reach inconsistent results on the issue of whether stress is a guarantor of the truthfulness of a statement.^54 Whereas real-life studies concerning traumatic events tend to show that these events are well preserved in memory, many simulation studies claim to show that traumatic events are poorly retained.”^55 Further, if an observer does not accurately remember the events due to stress, he is likely to draw “inferences to fill in memory gaps,” increasing the likelihood of “reporting non facts.” Finally, the role an individual plays in a traumatic situation may also influence his or her memory.
(^49) Id at p. 437. (^50) See Sven-Ake Christianson, Emotional Stress and Eyewitness Memory: A Critical Review, 112 Psychol. Bull. 284, 290-94 (1992) (^51) See Stanley A. Goldman, Distorted Vision: Spontaneous Exclamations as a “Firmly Rooted” Exception to the Hearsay Rule, 23 Loy. L.A. L. Rev. 453, 460 (1990) (arguing that “the hearsay statement would have to be spoken virtually simultaneously with the described event for even the slightest assurance of increased reliability”). (^52) See Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence, 28 Colum. L. Rev. 432 p. 439, (1928)). (^53) John C. Yuille & Judith L. Cutshall, A Case Study of Eyewitness Memory of a Crime, 71 J. Applied Psychol. 291, 299-300 (1986) (^54) Sven-Ake Christianson, Emotional Stress and Eyewitness Memory: A Critical Review, 112 Psychol. Bull. 284 (1992), p. (^55) Id.
that which came under their observation.^62 If there is an interval, however light, which allows of fabrication, it is not part of res gestae, though it may be admissible under S. 157.^63
Where a witness in describing the offence 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 occurrence which took a year is not res gestae.^64
Thus the principal of admissibility of declarations accompanying acts can be summarized as;^65
- 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 contempororaneous 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 different person, e.g., the declarations of the victim, assailant and by standers. In conspiracy, riot the declarations of all concerned in the common object are admissible.
- Though admissible to explain or corroborate, or to understand the significance of the act, declaration are 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.” 66 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.^67 In order for the statement itself to be “the product of impulse, not
(^62) Bhaskaran vs State of Kerala 1985 INDLAW KER 31. (^63) Kaneshwar vs R ALJ 149. (^64) Khijiruddin vs R, 53 C 373. (^65) Sarkar p. (^66) See 6 Wigmore, supra note 55, 1748, at 199 (^67) Ohio vs Roberts, 448 U.S. 56, 57 (1980).
reflection,” the courts have historically required a lack of time between the statement and the event. 68 Because an excited utterance contains an inherent guarantee of truthfulness and reliability, courts and commentators have not required that the statement be necessary to proving the case to justify its admission.^69
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 be admitted under S. 6 as a hearsay exception being part of Res Gestae? In the absence of finding as to whether the information 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.^70 In State of Andhra Pradesh vs Gentela Vijayavardhan Rao^71 the appreciable interval between the act of carnage and magistrate’s recording the statement the statement recorded by the magistrate was found inadmissible under res gestae.
In Bishna vs State of West Bengal^72 , 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
(^68) See Puleio vs Vose, 830 F.2d 1197, 1206-07 (1st Cir. 1987) (holding in part that the admission of an excited utterance did not violate defendant’s right to confrontation under the Sixth Amendment); Puleio, 474 N.E.2d at 1081 (same). (^69) See Puleio, 474 N.E.2d at 1079-80. (^70) Vasa Chandrasekhar Raov. Ponna Satyanarayana vs Ponna Satyanarayana 2000 INDLAW SC 326 (^71) 1996 INDLAW SC 2361 (^72) AIR 2006 SC 302 at p. 309 para 27
CONCLUSION
Usually evidence is brought under res gestae when it can not 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”. 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.
