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Res Gestae

Written by: Mita Barik - I am a 3rd year student of National Law University, Jodhpur, pursuing B.B.A.,LL.B (Hons)
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Res gestae (a Latin phrase meaning "things done") is an exception to the rule against Hearsay evidence. Res gestae is based on the belief that because certain statements are made naturally, spontaneously and without deliberation during the course of an event, they leave little room for misunderstanding / misinterpretation upon hearing by someone else (i.e. by the witness who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Statements which can be admitted into evidence as Res gestae fall into three headings:
1. Words or phrases which either form part of, or explain a physical act,
2. Exclamations which are so spontaneous as to belie concoction, and
3. Statements which are evidence as to someone's state of mind.
(In some jurisdictions the Res gestae exception has also been used to admit police sketches.)

The principle underlying S.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 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 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 is 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.

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.”

Principle
This section admits those facts the admissibility of which comes under the technical expression res gestae [i.e., the things done (including words spoken) in the course of a transaction], but such facts must ‘form part of the same transaction.’ If facts form part of the transaction which is the subject of enquiry, manifestly evidence of them ought not to be excluded. The question is whether they do form part or are too remote to be considered really part of the transaction before the Court. A transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime a contract, a wrong or any other subject of inquiry which may be in issue. Roughly, a transaction may be described as any physical act, or a series of connected physical acts, together with the words accompanying such act or acts. Every fact which is part of the same transaction as the fact in issue is deemed to be relevant to the fact in issue although it may not be actually in issue, and although if it were not part of the same transaction it might be excluded as hearsay.

Test For Res Gestae

In Article 3 of his Digest of the Law of Evidence, Sir James Stephen defines a “transaction” as; “a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong, or ant other subject of enquiry which may be in issue.”

Suppose A is tried for the murder of B by beating him with a club. Here the transaction is the crime of murder. That A beat B with a club, that A caused B’s death, that A had an intention of causing B’s death are all 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 words uttered by A at or about the time of beating, or words uttered by B or by persons standing by, at or about the time of beating, are not in issue. But they also form parts of the same transaction. No one beats another silently, nor would the person beaten be silent while he was being beaten, nor would persons standing by watch silently. The transaction includes all these utterances and, though not in issue, form part of the 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 S.5, or because such other part is relevant under S.6, and therefore, under S.5 evidence can be given of it. The question that arises is how to find out whether a fact forms part of the same transaction as the fact in issue.

The various tests suggested are as follows:
(a) If the fact in issue and the fact of which evidence is sought to be given stand in the relation of cause and effect or effect and cause, then they can be said to form part of the same transaction. This test however is useless because every event is the effect of innumerable effects. If all these causes and effects are to be treated as relevant and evidence is permitted to be given of all these facts, the whole purpose of restricting the evidence in a court of law to relevant facts would be lost. The time of the court will wasted in listening to evidence of remote causes and distant effects.

(b) Another test suggested is, 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 suggested is 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 equally useless, as merely substituting one vague phrase for another.

In the English Law system, we come across a phrase res gestae which is equivalent to the facts mentioned in Section 6. But, unfortunately, that phrase is not always used with that meaning.

We also find it used 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. The truth of the matter is that it is left to the presiding Judge, who, guided by previous decisions and his own experience, feels instinctively that there is the necessary connection, and treats the facts as relevant. One test, however, is accepted with respect to words uttered at the time of the happening of the fact in issue. That test is that the utterance must be spontaneous as well as contemporaneous with the fact in issue. If it is possible that it might have been thought out and therefore not spontaneous, then it will not be relevant evidence under this section.

Res Gestae- the subject matter of ss.6, 7, 8, and 9 and also of s.14 are treated in English and American books under the head of Res Gestae. It is necessary to have a clear idea of the term which is frequently found in all books on Evidence and is freely used in judgments. Acts, declarations and incidents accompanying or explaining he transaction or facts in issue or which themselves constitutes the facts or transaction in issue are considered as part of the Res Gestae and admitted as original evidence and not hearsay.

Thus the exclamations, statements and complaints of an injured party or the complaint of a raped woman immediately before, during or after the occurrence are relevant. These spontaneous declarations accompanying an act are sometimes called “verbal acts.”

The principle of law embodied in Sec.6 of the Evidence Act is usually known as the rule of res gestae recognized in English law. 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.

3.3) 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.

The following cases illustrate the rule in this section:
Abduction
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.

Adoption
In the majority of cases execution of a deed of adoption forms a part of the transaction of adoption itself and is relevant under S.6.

Felony
Generally speaking, it is not competent to a prosecution to prove a man guilty of one felony by proving him guilty of another unconnected felony, but where several felonies are connected together and form part of one entire transaction, the one is evidence to show the character of the other.

Illegal Gratification
Receipt of illegal gratification in the years 1877 and 1878 cannot be proved in order to establish that he received the three sums of money mentioned in the charges for which he was tried. The two sets of transactions are not so connected as would make them relevant to one another. S.6 cannot apply, because the payments of 1877 and 1878 are not so connected with the facts in issue in this case as to form part of the same transaction.

Murder and Dacoity
In the absence of any explanation, the presumption arises that any one who took part in a robbery also took part in the murder which constituted part of the same transaction. It has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder where murder and robbery form parts of one transaction.

Rape
In rape, indecent assault and cries or complaint to any one made during or immediately after occurrence, is admissible as part of the transaction. Such evidence is also admissible as conduct. The statement is admissible not as evidence of the truth of the charge, but as evidence of the credibility of the complainant. Where the raped girl made a statement to her mother after the rape when the culprit had gone away and the girl came home from the scene of occurrence, it is not admissible under S.6 as part of the transaction.

Statement of injured person, accused or by-stander
If a witness survives after making dying declaration his statement relevant and admissible as res gestae under S.6. Where a person cried out on receiving gun-shot injuries and two persons, who immediately reached the spot, were told by the victim that his nephew had fired at him, the court allowed this evidence as part of res gestae being spontaneously connected with the transaction.

Statement to police
If on A’s information a criminal proceeding is started against B and in the course of investigation into the case A makes a statement to the police, in a subsequent prosecution under Ss.192, 193 and 221 IPC, it is admissible as res gestae.

Unlawful assembly
Statements made by members of unlawful assembly of their determination to force their way through a police cordon are evidence of res gestae.

Other cases
Statements made by a testator at the registration of the will are admissible.

The author can be reached at: mitabarik@legalserviceindia.com / Print This Article

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