DOCTRINE OF RES GESTE

SUBMITTED TO:

Mr. Jagdish Chandra

ASSISTANT PROFESSOR OF LAW

GUJARAT NATIONAL LAW UNIVERSITY, GANDHINAGAR

BY:

Manu Kharra & Abhishek Barwal

REG NO. 13A064, 13A004

BSC-LLB (H)

Table of Contents

INTRODUCTION –.........................................................................................................................................3

SECCTION 6 OF THE EVIDENCE ACT –...........................................................................................................4

TRANSACTION –...........................................................................................................................................8

BYSTANDERS –............................................................................................................................................10

TAPE RECORDER –......................................................................................................................................10

STATEMENT SHOWING MOTIVE AND INTENTION –...................................................................................11

CONTEMPORANITY AND SPONTANEITY –..................................................................................................13

CRITIQUE OF EXCITED UTTERANCE –..........................................................................................................14

185TH REPORT OF THE LAW COMMISSION OF INDIA –.............................................................................16

HEARSAY AND RES GESTAE –......................................................................................................................19

CONCLUSION –...........................................................................................................................................20

INTRODUCTION –Res gestae translates from Latin as “things done,” and from that translation springs its

conceptualization both as an independent hearsay exception and as a shorthand reference to

intrinsic evidence of a singular transaction or event.

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 any time 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 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

1 “Doctrine of Res Gestae”via http://engllb.blogspot.in/2013/01/doctrine-of-res-gestae_19.html

SECCTION 6 OF THE EVIDENCE ACT – Res Gestae 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 Sec.6, of the Indian Evidence Act, 1932 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.”

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. If any statement is made

under the stress of excitement than such statement form part of the same transaction and is

admissible before the court of law.

The strength of sec. 6 lies in its vagueness. 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.

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.”

It is to be noted that sections 7,8,15,32 52-55 and others of the Indian Evidence Act, 1932 also a

part of this rule.

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.

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 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 credibility5.

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 automatic and undersigned incidents of a

particular litigated act and are admissible when illustrative of such act.”6

According to Black’s Dictionary, res gestae meant “things done . . . things or things happened . . .

word spoken, thoughts expressed, and gestures made, all . . . so closely connected to occurrence

2 See Eleanor Swift, The Hearsay Rule at Work: Has it Been Abolished De Facto by Judicial Decision?, 76 Minn. L. Rev. 473, 475 (1992).3 Translation provided by Dr. Philip Pattenden, Dir. Of Studies in Classic, Peterhouse, Cambridge.4 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”).5 Barik Mita, Res Gestae, Accessed at http://www.legalserviceindia.com/article/l185-6 Vinodkumar Baderbhai Patel vs State of Gujarat, 1998 INDLAW GUJ 22

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.7 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 which are the automatic and

undersigned incidents of a particular litigated act, which may be separated from act by lapse of

time more or less appreciable, and which are admissible when illustrative of such act.”8

In Babulal vs. W.I.T Ltd.,9 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”10 Res Gestae has been

described as a term of protean importance and that there have been many definitions of the term.

No evidential problem is as shrouded in doubt and confusion11as 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.12 It would be little short of miraculous if one single

doctrine of Res Gestae would suffice for every situation.

There must be a main or principal fact or transaction; and only such declarations are admissible

which grow out of the principal transaction and serve to illustrate its character, and are

contemporary with, and derive some degree of credit from it. The main transaction is not

necessarily confined to a particular point of time, but may extend over a long or shorter period,

according to the nature and character of the transaction.13

Section 6 uses words like transaction, bystanders etc. It is important to understand the

implications of these words to know the scope of this section.

7 Black’s Law Dictionary 1305 (6th ed. 1990) (citing McClory vs Schneider, 51 S.W.2d 738, 741 (Tex. Civ. pp.1932)).8 Ibid.9 1956 INDLAW CAL 10510 Escorts Farms Ltd vs Commissioner  Kumaon Division 2004 INDLAW SC 115711 Julius Stone, Res Gesta Raegitata, Vol. 55 The Law Quarterly Review, p. 6612 31 A CJS 97813 Lund vs inhabitants &c. 9 Cush (Mass) 36, cited in Jones Ev s 358.

TRANSACTION – A transaction, as the term used in this section is defined by a single name, as a crime, a contract,

a wrong or any other subject of enquiry which may be in issue. It include both immediate cause

and effect of an act or event, and also its collection of relevant circumstances, the other necessary

antecedents of it occurrence, connected with it, at a reasonable distance of the time, pace and

cause and effect.14 A fine working test of deciding what transaction is; is proximity of time, unity

or proximity of place, continuity of actions, and community of purpose or design.15 But the key

test must be continuity of action and community of purpose.16 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 action17. The expression suggests not

necessarily proximity of time so much as continuity of action and purpose.18 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.19

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 cannot be made admissible under sec.6 of the Indian evidence act.

Statement made after some times may be admissible under S. 157 as corroborative evidence but

not under S. 6.20 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

14 R vs Ring A 1929 B 296.15 Banga Ch vs Annada 35 CLJ 52716 R vs Loclay17 Bandela Nagaraju vs State of A.P 1983 INDLAW AP 7518 Ganesh vs R, A 1931 P 52.19 Amritala vs R 42 C 957.20  Hari vs State of U.P 183 Cri LJ NOC 62(All)

transaction. The primary offence and the offence of destroying evidence of the primary offence

may in certain circumstances be parts of same transaction.21

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. 6.22 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.24Evidence

which is connected with the principal subject matters of the charges as parts of one and the same

transaction is relevant. 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. 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 as 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.25

Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts

in issue, or which constitute the state of things under which they happened, or which afforded an

opportunity for their occurrence or transaction, are relevant26.

21 Venkatesan vs State 1997 INDLAW MAD 10422 Krishnaram vs S, A 1964 As 5323 Shyam Nandan Singh vs State of Bihar 1991 INDLAW PAT 12.24 Venkatasubbiah vs R 48 M 640.25 Peoples vs Lane, 100 California 379.26  Annasuyamma vs. State of Karnataka, 2002 INDLAW KAR 99

BYSTANDERS – The term bystanders used in sec. 6 means all the person present at the time of incident. Where a

number of persons came to the spot immediately after a murder and was told by the eye witnesses

who the two culprits had been, their evidence is relevant. So, declaration must be substantially

contemporaneous with the fact in issue and must tend to illustrate ad explain it.

In Mahedra Pal vs. State27, the place where the murder took place was occupied by a number of

persons apart from the deceased and the eyewitnesses. Those persons who came immediately

after the murder and were 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 6.28

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. 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. 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. 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.

27 AIR 1955 All 32828 Nathuni Yadav vs State of Bihar 1996 INDLAW SC 1562

TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE –

The primary question which the judge must ask oneself is-can the possibility of concoction or

distortion is disregarded?

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 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.

Quite apart from 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.29

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,30 otherwise the statement is

inadmissible. A statement may be spontaneous even though made in response to questioning.31

STATEMENT SHOWING MOTIVE AND INTENTION –A person’s statement that he intends to do something in the future is not admissible as evidence

29  R vs Pennel30 R vs West, unreported, CA31 R vs Smartt 2004 EWCA Crim 2072, 26.

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 case32, a girl left home telling her mother that she was going to

visit Wainwright. In Thomson case33, a girl said that she intended to perform an abortion on

herself. Both statements were held to be inadmissible because the diclarent intention was not

directly relevant. The issue was, respectively, whether there was a meeting with Wainwright and

whether the pregnant girl performed the abortion herself. The statement of intention may or may

not been carried out, in either event they did not accompany and define the fact in issue34. but in

Buckley case35, it was held that the statement made by the police officer that he is going to meet

Buckley in course of his duty is admissible as there is a likelihood that a police officer who says

he has to meet someone in course of his duty will do just that, whereas the intentions asserted by

the girls in the above mention case may or may not have been carried out.

Evidence may be given of the statements which accompany conduct in order to define the motive

behind that conduct. Statements which are not contemporaneous with an act cannot define the

motive with which it was done because the declarant may change his mind between the

declaration and the act.

Sec. 8 deals with the relevancy of motive, preparation and conduct. It lays down that (1) a fact

which shows or constitutes a motive for any fact in issue or relevant fact is relevant; (2) a fact

which constitute or shows preparation for any fact in issue or relevant fact is relevant; (3)

previous or subsequent conduct of any party or of any agent to any party to any suit or

proceeding, in reference to such suit or proceedings, or in reference to any fact in issue or

relevant fact, are relevant provided such conduct influences or is influenced by any fact in issue

or relevant fact.

In determining the fact whether a man charged with an offence, committed it or not, it is

important to know whether previous to the act he made certain preparations to do the act.

32 1875 13 Cox CC 17133 1912 3 KB 19.34  Rosmund Reay, Textbook Evidence, 3rd ed, 2001, p.137.35 1873 13 Cox CC 293

CONTEMPORANITY AND SPONTANEITY –

The excited utterance exception admits hearsay statements made while the declarant was under

the stress or excitement of a particularly startling event, on the theory that such stress or

excitement precludes the kind of reflection necessary for the declarant to fabricate, and hence

renders such out-of-court statements sufficiently reliable. 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.”36

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.37 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.38

36 Carroll vs Guffey, 156 N.E.2d 267, 270 Ill. App. Ct. 195937 See John Henry Wigmore, Evidence in Trials at the Common Law p. 1362 (James H. Chadbourn ed., 1978).38 Ibid

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. [47]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.

Additionally, some psychological data indicate that, as a self-protective device, witnesses may

initially suppress unpleasant memories, which only emerge in later, calmer times. 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”39

Psychological studies reach inconsistent results on the issue of whether stress is a guarantor of the

truthfulness of a statement.40 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

39 C. Yuille & Judith L. Cutshall, A Case Study of Eyewitness Memory of a Crime, 71 J. Applied Psychol. 291, 299-300 (1986)40 Sven-Ake Christianson, Emotional Stress and Eyewitness Memory: A Critical Review, 112 Psychol. Bull. 284 (1992), p.286

traumatic events are poorly retained.” 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.

Although academics and psychologists may conflict on the true effect that traumatic events have

on perception and memory, Supreme courts have routinely admitted statements made at a wide

range of times after such events have occurred. These gaps in time are simply too great to meet

the original rationale of the excited utterance exception or the contemporaneousness requirement

of res gestae.

185TH REPORT OF THE LAW COMMISSION OF INDIA –

Law Commission in its report has observed that certain well settled principles in the Act, such as

the doctrine of Res Gestae, estoppel, res judicata etc. as enunciated in the Act were very well

playing the part and thus need not be interfered with.’It has further observed that –

Seeking to resolve the controversy under section 10 of the Act as to admission of evidence in

case of conspiracy, the Commission suggested important changes. A new section was proposed.

The 69th Report concluded that there was a significant difference in this regard between the

Indian position and the English law but because of the decision of Mirza Akbar vs. Emperor,

which was afterward confirmed by the Supreme Court in various cases. But in another ruling,

namely, Bhagwan Swaroop v. State of Maharashtra,, Subba Rao J as he then was, adhered to the

wider meaning of sec. 10 and observed that there were five conditions for the applicability of sec.

10, covered actions, declarations or writings by one co-conspirator “whether it was said, done or

written before he entered the conspiracy or after he left it”. It was held that the words were

“designedly used to give a wider scope”.

Looking to these recommendations it can be said that the commission accepted the rule but

wanted some improvements to be made.

In India, the first case in which question of admissibility of taperecorded conversation came for

consideration is Rupchand v. Mahabir Prasad41, The court in this case however rejected to treat

tape-recorded conversation as writing within the purview of section 3 (65) of the General Clauses

Act but allowed the same to be used under section 155(3) of the Evidence Act as prior statement

to shake the credit of witness. The Court held there is no rule of evidence, which prevents a party,

who is endeavoring to shake the credit of a witness by use of former incoherent statement, from

deposing that while he was engaged in conversation with the witness, a tape recorder was in

operation, or from producing the said tape recorder in support of the assertion that a certain

statement was made in his presence.

In S. Pratap Singh v. State of Punjab42, a five judges bench of Apex Court considered the

problem and evidently propounded that tape recorded talks are admissible in evidence and simple

fact that such type of evidence can be easily tampered which certainly could not be a ground to

discard such evidence as inadmissible or refuse to consider it, because there are few documents

and possibly no portion of evidence, which could not be tempered with. In this case the tape

41 AIR 1956 Punjab 173.42 AIR 1964 SC 72

record of the conversation was admitted in evidence to support the evidence of witnesses who

had stated that such a conversation has taken place.

The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra43, considered various aspects

of the matter relating to admissibility of tape recoded conversation. This was a case relating to an

offence under section 165-A of Indian Penal Code and at the occasion of the Investigating

Agency, the talk between accused, who wanted to bribe, and complainant was tape recorded. The

prosecution wanted to use this tape recorded conversation as evidence against accused and it was

argued that the same is hit by section 162 CrPC as well as article 20(3) of the constitution. In this

landmark judgment, the court emphatically laid down in unambiguous terms that the process of

tape recording offers an exact method of storing and afterward reproducing sounds. The imprint

on the magnetic tape is direct effect of the appropriate sounds. Like a photograph of a relevant

incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is

admissible under section 7 of the Indian Evidence Act. The Apex Court after examining the

entire issue in the light of various judgments laid down the following principles:

a) The contemporaneous conversation, which was tape recorded, constituted part of res-gestae

and is relevant and admissible under section 8 of the Indian Evidence Act.

b) The contemporaneous tape record of a relevant dialogue is a relevant fact and is admissible

under section 7 of the Indian Evidence Act.

The issue whether such evidence is primary and direct was dealt by the Apex Court in N. Sri

Rama Reddy v. V.V. Giri44, the court held that like any document the tape record itself was

primary and direct evidence admissible of what has been said and picked up by the receiver. This

was reiterated by the Apex Court in R.K. Malkani v. State of Maharashtra45. In this case the court

meant that when a court allows a tape recording to be played over it is acting on real evidence if

it treats the intonation of the words to be relevant and authentic. Referring to the scheme of law

as laid down in Rama Reddy’s case46 a three judges bench of the Supreme Court in the case of

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, propounded that the use of tape

recorded conversation was not restricted to purpose of corroboration and contradiction only, but

when accordingly proved by reasonable evidence of what was found recorded and of absence of

43 AIR 1968 SC14744 AIR 1971 SC 1162.45 AIR 1973 SC 15746 Supra

tampering, it could subject to the provisions of the Evidence Act, be used as substantive

evidence. Giving an illustration, the Court pointed out that when it was uncertain or in issue

whether a person’s dialogue on a particular occasion, contained a particular statement there could

be no more direct or better evidence of it than its tape recorded, assuming its legitimacy to be

duly established.

Transcript:

The importance of having a transcript of the tape-recorded dialogue cannot be under estimated

because the same guarantees that the recording was not tampered subsequently. In the case of

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Meht a the Supreme Court considered the

importance and use of such transcripts and expressed the view that transcript could be used to

explain what the transcriber has found recorded there at the time of transcription and the evidence

of the makers of the transcripts is surely corroborative because it goes to verify what the tape

record contained. The Supreme Court also made it clear that such transcripts can be used by a

witness to revive his memory under section 159 of the Evidence Act and their contents can be

brought on record by direct oral evidence in the way prescribed by section 160 of Evidence

Act.

HEARSAY AND RES GESTAE –

Hearsay is an out of court statement, made in court, to prove the truth of the matter asserted. In

other words, hearsay is evidence of a statement that was made other than by a witness while

confirming at the hearing in question and that is offered to prove the truth of the matter stated.

Hearsay evidence is the statement given by a person who has not himself observed the happening

of a transaction but has only heard of it from others. For example, where a person who has

witnessed an accident can give evidence about it. But his wife or any other person who heard of

the incidence from him cannot give evidence because such evidence constitute hearsay evidence.

This evidence can be allowed provided it form part of the transaction of the accident. Here, the

evidence is admissible as original evidence distinct from hearsay evidence as it forms a part of

the same transaction. Thus the doctrine of res gestae constitutes as one of the exception to the

rule of hearsay evidence is no evidence.

Section 6 is an exception to the general rule whereunder, hearsay evidence becomes admissible

but for the purpose of bringing such hearsay evidence within the ambit of sec 6 what is required

to be established is it must be almost contemporaneous with the acts and there should not be an

interval to allow any fabrication.

CONCLUSION –Generally evidence is brought under resgestae when it cannot be brought under any other section

of Indian evidence Act. The objective of law makers was to avoid injustice, where cases are

rejected 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 stretched 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 effect to the event is not

admissible under sec.6 of the evidence act. But courts have allowed certain statement which was

spoken after a long time gap from the incidence of the transaction, because there was satisfactory

proof that the victim was still under the anxiety of excitement and so whatever was said was as a

reaction to the event.

The power of sec. 6 lies in its vagueness. The word transaction used in this section is not

different. It varies from case to case. Each and every case in criminal law should be judged

according to its own merit. When it is established that the evidence forms part of the same

transaction it is admissible under sec. 6 but whether it is dependable or not is the discretion of the

Judge.

REFRRENCES –

1. Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2011

2. Monir, M. Law of Evidence. Delhi: Universal Law Publishing, 2006

3. Krishnamachari, V.Law of Evidence. Hyderabad: S.Georgia & Company, 2012

4. Lal, Batuk. The Law of Evidence. Allahabad: Central Law Agency, 2007

5. Myneni, S.R. The Law of Evidence. Asian Law House, 2008

        Internet Sources

o   http://remediallawdoctrines.blogspot.in/2011/12/res-gestae-principle-exception-to.html

o   http://hawaiiopinions.blogspot.in/2008/02/res-gestae-die-hard-doctrine.html

o   http://www.kostrolaw.com/NJFamilyIssues/2011/06/13/the-common-law-doctrine-of-res-gestae/

o   http://www.kostrolaw.com/NJFamilyIssues/2011/06/13/the-common-law-doctrine-of-res-gestae/

o   http://www.euppublishing.com/doi/abs/10.3366/elr.2007.11.3.379

o   http://www.legalserviceindia.com/article/l185-Res-Gestae.html

o   http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299111