DOCTRINE OF RES
GESTAE, CONCEPT
AND SCOPE
By:
AAMIR SHAHZAD KHAN
Civil Judge 1st Class/Magistrate Sec. 30
Kamalia
Res Gestae is a Latin
word which means “things done.” This is the rule of law of evidence and is an
exception to hearsay rule of evidence that hearsay evidence is not admissible. It is a
spontaneous declaration made by a person immediately after an event and before
the mind has an opportunity to conjure a false story. It represents an
exception to the hearsay rule. Res gestae is a concept which as a matter of
principle is employed in the English system of administration of criminal
justice under the name of "res gestae". In our system of
administration of justice, Article 19 of Qanun-e-Shahadat, 1984 corresponding
to section 6 of the Evidence Act of 1872, is an enacted provision of law under
which statement made immediately after the occurrence under the influence of
occurrence in order to characterize it and connecting
therewith would be admissible under this article as "res gestae"
evidence[1]. According to Wigmore,
a frequent application of the phrase has been to the Hearsay Exception for
spontaneous exclamations, i.e. statements made during or after an affray, a
collision, or the like, used to prove the facts asserted in the statement. [2]
Art. 19 of Qanun-e-Shahadat Order, 1984
deals with the concept of RES GESTAE. S.6 of Evidence Act, 1872 is the
corresponding section on the subject.
Art. 19 of Qanun-e-Shahadat Order, 1984
describes the rule as under:
19. Relevancy of fact forming
part of same transaction.‑‑Fact 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 Exception had its earliest
illustration in Lord Holt’s ruling in Thompson
v. Trevanion, in 1693; so that the doctrine may be said to have been
recognized before the phrase ‘res gestae’ came into use. Nevertheless, the
development of this doctrine did not begin until after Aveson v. Kinnaird, in 1805, when the phrase in question had begun
to be freely used in connection with it; and only since the middle of the 1800s
has it been possible to say that this Exception was firmly established.[3]
This 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. Since this
utterance is made under the immediate and uncontrolled domination of the
sensed, and during the brief period when considerations of self-interest could
not have been brought fully to bear by reasoned reflection, the utterance may
be taken as particularly trustworthy (or, at least, as lacking the usual
grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s
belief as to the facts just observed by him; and may therefore be received as
testimony to those facts.[4]
In Babulal vs W.I.T Ltd.[5] it was observed that the statement of law in
section 6 of the Evidence Act is usually
known as Res Gestae. The literal meaning of the word “res” is “everything that
may form an object of rights and includes an object, subject matter or status.”[6] Res Gestae has been described as a term of
protean significance and that there have been many definitions of the term. No evidential
problem is as shrouded in doubt and confusion[7] as is Res
Gestae. The rule as to admissibility of evidence known as the Res Gestae rule
has been declared to be incapable of any precise definition and it has been
applied to so many different and unrelated situations that it has been said
that the difficulty of formulating a description of Res Gestae which will serve
all circumstances seems insurmountable.[8] In
The principle has
been explained by LORD NORMAND in Teper
v. Reginam, 1952, 2 All ER 447, 449 : 1952 AC 480:-
“Nevertheless the rule (Hearsay) admits of certain
carefully safe-guarded and limited exceptions, one of which is that the words
may be proved when they form part of the res gestae……….. It appears to rest
ultimately on two propositions---that human utterance is both a fact and a
means of communication, and that human action may be so interwoven with words
that the significance of the action cannot be understood without the
correlative words and the dissociation of the words from the action would
impede the discovery of truth.”[10]
In Prem Chand Versus State (NCT of Delhi),
it was held that the principle of law embodied in this section enunciates the
rule that declarations which are contemporaneous or almost contemporaneous with
the transaction in issue i.e. the interval between two being so short and there
being no opportunity for fabrication, such a declaration would be admissible as
res gestae.[11]
In understanding
the nature of the res gestae exception to hearsay and the manner in which it
must be construed in individual cases by the Judiciary, it is important to rely
repeatedly on the underlying consideration that is often overlooked – the
reliability of the statement.[12]
The res gestae embraces
not only the actual facts of the transaction and the circumstances surrounding
it, but the matters immediately antecedent 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.” J. McKnight, State
v. Fouquette, 221 P.2d 404, 416-417 (
The rationale in making
certain statement on fact admissible under Section 6 of the Evidence Act is on
account of the spontaneity and immediacy 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.[14]
Contemporaneous
utterances have been described in Gurdev
Singh, Balwinder Kumar, Angrej Singh, Bachittar Singh Versus UOI & Ors.
2014(2) SLR 675, that Statements made by a person to a third person soon
after an incident, but with no gap of time are akin to contemporaneous
utterances and are admissible as res gestae evidence through the deposition of
the one who heard the utterance. Statements made after some gap which cease to
be res gestae are hearsay evidence and thus inadmissible as per the law of
evidence.
In Chhotka v. State, AIR 1958 Calcutta 482[15] it was held that 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 or to allow time for fabrication.
A more flexible understanding
of res gestae as an exception to the hearsay rule was formulated by the
Judicial Committee in 1952. Carefully carving out this exception, it
seemed easy enough to characterise statements as falling within the res gestae
on the basis of two fundamental principles. First, the proposition that human
utterances are facts just as actions are, and secondly, ‘that human action may
be so interwoven with words that the significance of the action cannot be
understood without the correlative words, and the dissociation of the words
from the action would impede the discovery of truth.’ In this case, the
statement of a bystander was rejected on the grounds that it was highly
prejudicial to the accused and that there was no other evidence supporting the
culpability of the accused. Though the res gestae exception was broadly
construed, the statement was excluded in this case for these reasons.[16]
One of the leading decisions in
relation to the res gestae exception is that of the Privy Council in Ratten v. The Queen, which dealt with
the admissibility of the statement of a telephone operator who received a call
from the deceased minutes before she was allegedly murdered by her
husband. The Council characterised the statement as original evidence of
‘verbal facts’, as opposed to hearsay evidence, as the object of admitting the
statement was not to establish the truth of the statement made, but merely to
establish the fact that it was made. The following observation was made:
“Words spoken are facts just as much as
any other action by a human being. If the speaking of the words is a relevant
fact, a witness may give evidence that they were spoken. A question of hearsay
only arises when the words spoken are relied on "testimonially,"
i.e., as establishing some fact narrated by the words.”[17]
Following the decision of the Privy
Council in Ratten’s Case, the law on this point was consolidated decisively in
the celebrated case of R v. Andrews. Lord
Ackner of the House of Lords exhaustively dealt with this exception, moving
away from the simple question of whether the statement was a fact to be
admitted as original evidence, to the more complex one of whether the truth of
the statement relayed could be admissible as an exception to the hearsay rule,
and by what justification. This issue was of considerable significance as
the statement of the victim was one which, if admitted, would disclose the
identities of his assailants. The House of Lords found itself compelled to
effectively demarcate the boundaries of the exception in response to the
question posed by the Defence: ‘If such hearsay is so admissible, how wide can
the material events go before becoming inadmissible?’[18]
Ultimately, Lord Ackner identified
certain criteria to be considered by a Trial Court judge in determining whether
hearsay statements shall be admissible for the purpose of establishing the
truth of the facts asserted by them. The chief consideration was whether
there was a possibility of concoction or distortion. Other rules framed stemmed
from this pivotal test, and included a consideration of the circumstances in
which the statement was made and a flexible determination of whether it was
sufficiently spontaneous. Most importantly, in disregarding time as the
primary factor justifying the res gestae exception, Lord Ackner recognised that
concoction and distortion can be determined regardless of whether the statement
was formally part of the transaction.[19]
Evidence in criminal cases is still required to comply with Common
Law standards that have been incorporated into statutory provisions operating
today. Although it was impossible to envisage any settled, universally
acceptable test to adjudge whether hearsay be admissible on the basis of the
principle of res gestae, the Courts in
The test for applying the rule of res
gestae is that the statement should be spontaneous and should form part of the
same transaction ruling out any possibility of concoction.[21]
The
declarations 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 characterize or explain it. It should appear
that they were made without premeditation or artifice, and without a view to
the consequences; that they are the spontaneous utterances, natural result of the
act they characterize or elucidate.[22]
The declaration must be calculated to unfold the nature and quality of the
facts which they are intended to explain; they must so harmonise with those
facts as to form one transaction. There must be a transaction of which they are
considered a part; they must be concomitant with the principal act, and so
connected with it as to be regarded as the result and consequence of
co-existing motives.[23]
Declarations
that do not satisfy this test are rejected as hearsay. Res gestae is an
ambiguous and elastic expression and as Phipson says “led to confusion and gave
rise to at least four conflicting conceptions, e.g. (i) one which applies the
term res gestae to the main fact in relation to its constitutent details; (ii)
one which applies it to the details of such fact merely; (iii) one which
applies it to the ‘surrounding circumstances’ of some central fact, called, in
contradistinction, the principal fact; and (iv) one which applies it to the
total whole composed of both principal fact and surrounding circumstances.[24]
In Kailash
Chandrakar and another Versus State of Madhya Pradesh (Now Chhattisgarh),[25]
it was held that to form a particular statement as a part of the same
transaction or of the same incident or just contemporary to the incident so as
to make it reasonably certain that the speaker is still under stress of
excitement in respect of the transaction are facts to be considered. The
principle is that it should be so intimately connected with the fact in issue
as to be a spontaneous utterance inspired by the excitement of the occasion or
a spontaneous reaction thereof and there being no opportunity for deliberately
fabricating the statement. In other words, the statement which is a part of res
gestae does not narrate a past event, but it is the event itself speaking
through a person thus excluding the possibility of any design behind it.[26]
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.[27] It was asserted
that the difference in reaction time between deceptive and sincere responses is
negligible. The excited utterance exception, which 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.[28]
The testimony of
children is often the subject of excited utterance debate.[29] Usually whenever
there is a time gap, the transaction is said to end and any statement which do
not form part of the transaction is inadmissible. However in cases of children
this rule is relaxed. The rationale for expanding the exception for children
emphasizes how children cope with stress because their statements are often
made well after events occur at the first safe opportunity to speak.[30]In Uttam Singh vs State of
The res gestae
doctrine has often been criticised. According to PROFESSOR STONE, “no
evidential problem is so shrouded in doubt and confusion.”[32] It was the
opinion of PROFESSOR WIGMORE[33] that the rule is
not only useless but also harmful. It is useless because every part of it is
covered by some other rule, for example, declarations as to the state of mind
or health. It is harmful because it causes confusion about the limitations of
the other rules. The precise limits of res gestae are themselves not easy to
define. Facts differ so that no fixed principle can be laid down as to the
matters that will form parts of a transaction.
To conclude, we
can say that some of the cases bearing upon this topic exhibit diversity of the
opinion, but the following points appear to have been fairly settled:-
1) The declarations (oral or 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 declarations must relate to and explain the
fact they accompany, and not independent facts previous or subsequent thereto [Agassiz v. London Tramways Co.] unless
such facts are part of a transaction which is continuous.
2)
The
declarations must be substantially contemporaneous with the fact and not merely
the narrative of a past. [Thompson v.
Trevanion; R v. Christie; Teper v. R, 1952, 2 All ER 447].
3) The declaration and the act may be by the same person, or
they may be by different persons, e.g, the declarations of the victim, assailant
and by-standers.[34]
[1]. SAMEEULLAH
KHAN versus THE STATE and another (2000 P Cr. L J 769
[2]. Wigmore J. H. (1940), WIGMORE ON EVIDENCE, Vol.VI, 3rd Edn.
LITTLE, BROWN AND COMPANY, pp1764-1768.
[3]. Wigmore J. H. (1940), WIGMORE ON EVIDENCE, Vol.VI, 3rd Edn.
LITTLE, BROWN AND COMPANY, p.1768.
[4]. Wigmore J. H. (1940), WIGMORE ON EVIDENCE, Vol.VI, 3rd Edn.
LITTLE, BROWN AND COMPANY, p.1747. see also Accord: 1916, Perry v. Haritos,
100
[5]. 1956 INDLAW
[6]. Escorts Farms Ltd vs Commissioner Kumaon
Division 2004 INDLAW SC 1157.
[7]. Julius Stone, Res Gesta Raegitata, Vol.
55 The Law Quarterly Review, p. 66.
[8]. 31 A CJS 978.
[9]. Pinney v jones, 1894, 42 Am SR 209.
[10].
[11]. 2014(5) AD(
[12]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php
(Accessed on 07/01/2015).
[13]. http://www.law.cornell.edu/wex/quotation/%5Bfield_short_title-raw%5D_229 (Accessed on 07/01/2015).
[14].
[15]. See also Pratapsingh and another Versus
State of M.P. (1971 CriLJ 172).
[16]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php
(Accessed on 07/01/2015).
[17]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php(Accessed
on 07/01/2015).
[18]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php(Accessed
on 07/01/2015).
[19]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php(Accessed
on 07/01/2015).
[20]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php
(Accessed on 07/01/2015).
[21]. Javed Alam v. Sate of Chhattisgarh, (2009)
6 SCC 450(455)
[22]. Jones Ev Civil, s.344: see Noor Md v
Imtiaz, A 1940 O 130.
[23]. Jones, s.348 citing People v.
[24].
[25]. 2014(135) AIC 553, CHHATTISGARH HIGH COURT.
[27]. See Robert M. Hutchins & Donald
Slesinger, Some Observations on the Law of Evidence, 28 Column. L. Rev. 432,
437 (1928)
[28]. See Robert M. Hutchins & Donald
Slesinger, Some Observations on the Law of Evidence, 28 Column. L. Rev. 437 (1928)
[29]. See generally Lucy S. McGough, Child
Witnesses: Fragile Voices in the American Legal System 126-88 (1994)
(discussing the relationship between hearsay and child witnesses in both civil
and criminal contexts);
[30]. See Commonwealth vs Di Monte, 692 N.E.2d
45, 50 (Mass. 1998) (“Our affirmance of a judge’s admission of a statement to a
physician from a child some five hours after she had been scalded is an outer
limit in our cases thus far.”); see also Commonwealth vs Hardy, 716 N.E.2d 109,
114 n.7 (Mass. App. Ct. 1999) (noting children’s statements are given “special
consideration” for excited utterances).
[31]. 2002 INDLAW MP 79
[32]. Dr. AVTAR SINGH, (2009), Chap. 2,
RELEVANCY OF FACTS, PRINCIPLES OF THE LAW OF EVIDENCE, 9TH Edn. CENTERAL LAW
PUBLICATOINS,
[33]. Wigmore J. H. (1940), WIGMORE ON EVIDENCE, Vol.VI, 3rd Edn. LITTLE, BROWN AND COMPANY,
p.1767 (see also Dr. AVTAR SINGH, (2009), Chap. 2, RELEVANCY OF FACTS,
PRINCIPLES OF THE LAW OF EVIDENCE, 9TH Edn. CENTERAL LAW PUBLICATOINS,
[34].