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DOCTRINE OF RES GESTE

SUBMITTED TO:

Mr. Aditya Kumar

ASSISTANT PROFESSOR OF LAW

SYMBIOSIS LAW SCHOOL,NOIDA

BY:

Achlesh Chandra Mishra

PRN- 14010223001; Group-‘A’

BA.LL.B(HONS)
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CERTIFICATE
The Project entitled “Doctrine of Res Gestae” submitted to the Symbiosis Law School, NOIDA
for Law of Evidence as part of internal assessment is based on my original work carried out under
the guidance of Mr. Aditya Kumar from December to May. The research work has not been
submitted elsewhere for award of any degree. The material borrowed from other sources and
incorporated in the thesis has been duly acknowledged. I understand that I myself could be held
responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date: 25.02.2018
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ACKNOWLEDGEMENT
I would like to thank my father and my professor for the constant support while doing the project.
The project has taught me the aspect of res gestae as its getting complex with the advancement.
Further I have also done research on the Evidence in Criminal System thus further enhancing my
knowledge. I hope to do more interesting research projects like this in the future.
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Table of Contents
INTRODUCTION – .................................................................................................... 5
SECCTION 6 OF THE EVIDENCE ACT – ...................................................................... 6
TRANSACTION – ...................................................................................................... 8
BYSTANDERS – ...................................................................................................... 10
TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE – .................................. 10
185TH REPORT OF THE LAW COMMISSION OF INDIA – ......................................... 11
HEARSAY AND RES GESTAE –................................................................................. 13
CONCLUSION – ...................................................................................................... 14
REFRENCES ............................................................................................................ 15
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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
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physicians.1

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.
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.

1
“Doctrine of Res Gestae”via http://engllb.blogspot.in/2013/01/doctrine-of-res-gestae_19.html
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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.
In Babulal vs. W.I.T Ltd.,2 it was observed that the statement of law in section 6 of the evidence
act is usually known as Res Gestae. The literal meaning of the word ‘res’ is “everything that may
form an object of rights and includes an object, subject matter or status”3 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 confusionas 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.4 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 facts 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.5

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

2
1956 INDLAW CAL 105
3
Escorts Farms Ltd vs Commissioner Kumaon Division 2004 INDLAW SC 1157
4
31 A CJS 978
5
Lund vs inhabitants &c. 9 Cush (Mass) 36, cited in Batuk lal Ev s 358.
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implications of these words to know the scope of this section.

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.6 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.7 But the key
test must be continuity of action and community of purpose.8 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 action9. The expression suggests not
necessarily proximity of time so much as continuity of action and purpose.10 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.11

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

6
R vs Ring A 1929 B 296.
7
Banga Ch vs Annada 35 CLJ 527
8
R vs Loclay
9
Bandela Nagaraju vs State of A.P 1983 INDLAW AP 75
10
Ganesh vs R, A 1931 P 52.
11
Amritala vs R 42 C 957.
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not under S. 6.12 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.13

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. 6.14 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?15 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.16Evidence
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.17

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

12
Hari vs State of U.P 183 Cri LJ NOC 62(All)
13
Venkatesan vs State 1997 INDLAW MAD 104
14
Krishnaram vs S, A 1964 As 53
15
Shyam Nandan Singh vs State of Bihar 1991 INDLAW PAT 12.
16
Venkatasubbiah vs R 48 M 640.
17
Peoples vs Lane, 100 California 379.
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opportunity for their occurrence or transaction, are relevant18.

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. State19, 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 6.20

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

18
Annasuyamma vs. State of Karnataka, 2002 INDLAW KAR 99
19
AIR 1955 All 328
20
Nathuni Yadav vs State of Bihar 1996 INDLAW SC 1562
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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.21

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,22 otherwise the statement is
inadmissible. A statement may be spontaneous even though made in response to questioning.23

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 tape recorded conversation came for
consideration is Rupchand v. Mahabir Prasad24, The court in this case however rejected to treat

21
R vs Pennel
22
R vs West, unreported, CA
23
R vs Smartt 2004 EWCA Crim 2072, 26.
24
AIR 1956 Punjab 173.
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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.
The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra25, 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. Giri26, 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 Maharashtra27. 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

25
AIR 1968 SC147
26
AIR 1971 SC 1162.
27
AIR 1973 SC 157
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as laid down in Rama Reddy’s case28 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
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.

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.

28
Supra
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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.
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REFRENCES –

Books Statues

1. Arora Vibha,Law of Evidence, Delhi: Universal Law Publishing, 2016

2. Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2016
3. Monir, M. Law of Evidence. Delhi: Universal Law Publishing, 2006
4. Lal, Batuk. The Law of Evidence. Allahabad: Central Law Agency, 2007

Articles
1. Shreya Prakash, ‘Interpretation of Section 6 of the Indian Evidence Act (2017) 1 SCC J-
21
2. Evidence -- Res Gastae -- Hearsay Rule --Spontaneous Exclamations, Law Journal, vol. 6,
no. 1 (1939), 82-88. Available at- http://hdl.handle.net/1811/72420

Reports
1. 185TH REPORT OF THE LAW COMMISSION OF INDIA.
Internet Sources
1. https://www.lawctopus.com/academike/doctrine-of-res-gestae/
2. http://remediallawdoctrines.blogspot.in/2015/16/res-gestae-principle-exception-to.html
3. http://hawaiiopinions.blogspot.in/2008/02/res-gestae-die-hard-doctrine.html
4. http://www.kostrolaw.com/NJFamilyIssues/2014/06/13/the-common-law-doctrine-of-res-
gestae/
5. http://www.kostrolaw.com/NJFamilyIssues/2014/06/13/the-common-law-doctrine-of-res-
gestae/
6. http://www.euppublishing.com/doi/abs/10.3366/elr.2010.11.3.379
7. http://www.legalserviceindia.com/article/l185-Res-Gestae.html
8. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299111