EVIDENCE LAW ASSIGNMENT 2019-20

JAMIA MILLIA ISLAMIA

RES GESTAE

Submitted by: Submitted To:

Qadir Javed Mr. Gaurav Gupta
4th Year

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CONTENTS

Sl. No. PARTICULARS PAGE NO.

1. Introduction 3

2. Meaning of Res Gestea 4-5

3. What is a Transaction 5-6

4. Bystander 6-7

5. Test for Admission of Evidence under Res Gestea 7-8

6. Statement Showing Motive and Intention 8-9

7. Contemporanity and Spontaneity 10

8. Stand of Judiciary 11-13

9. Expansion of this Doctrine 14

10. Conclusion 15

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INTRODUCTION

S. 5 of Indian Evidence Act lays down that evidence may be given of fact in issue and relevant fact described
under S. 6 to S.55. S. 6 states;

“Facts which, though not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place of at different times and
places”

The principal of law embodied in S.6 is usually known as the rule of res gestae. The rules formulated in s.
6 is expounded and illustrated in S. 7, 8, 9 and14. Facts which may be proved, as part of res gestae, must be facts
other than those in issue but must be connected with it. Though hearsay evidence is not admissible, but when it
is res gestae it can be admissible in a court of law and may be reliable evidence. This section is used by the
lawyers as a last resort so; there is not much case law on this section. The rationale behind this is the spontaneity
and immediacy of such statement that there is hardly anytime for concoction. So, such statement must be
contemporaneous with the acts which constitute the offence or at least immediately thereafter.

Res gestae includes facts which form part of same transaction. So, it is pertinent to examine what is a
transaction, when does it start and when does it ends. If any fact fails to link itself with the main transaction, it
fails to be a res gestae and hence inadmissible. Res gestae include elements that fall outside the modern hearsay
definition altogether, such as circumstantial evidence of state of mind, so-called “verbal acts,” verbal parts of
acts, and certain non-verbal conduct. Because excited utterances are connected closely in time to the event and
the excitement flows from the event, excited utterances were deemed part of the action (the “things done”) and
hence admissible despite the hearsay rule. This article tries to analyze the question as res gestae is a part of
transaction. So, it is pertinent to examine what is transaction and when it starts and when can one say that a
transaction has ended.1

1 See Eleanor Swift, The Hearsay Rule at Work: Has it Been Abolished De Facto by Judicial Decision?, 76 Minn. L.
Rev. 473, 475 (1992).

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MEANING OF RES-GESTAE

Res gestae has no exact English translation. A literal translation means “something deliberately
undertaken or done”.2

Few areas of the common law of hearsay are in greater dispute than the doctrine of res gestae. 3 Dean
Wigmore comments, “The phrase res gestae is, in the present state of the law, not only entirely useless, but even
positively harmful... It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. It
should never be mentioned.” 4

Res gestae has been defined as “Things done, or liberally speaking, the facts of the transaction
explanatory of an act or showing a motive for acting; a matters incidental to a main fact and explanatory of it;
including acts and words which are so closely connected with a main fact as will constitute a part of it, and
without a knowledge of which the main fact might not be properly understood, even speaking for themselves
though the instinctive words and acts of participants not the words and acts of participants when narrating the
events, the circumstances, facts and declaration which grow out of the main fact, and contemporaneous with it
and serve to illustrate its character or these circumstance which are the automic and undersigned incidents of a
particular litigated act and are admissible when illustrative of such act.”5

According to Black’s Dictionary, res gestae meant “things done . . . things or things happened . . . words
spoken, thoughts expressed, and gestures made, all . . . so closely connected to occurrence or event in both time
and substance as to be a part of the happening. . . .[That is, the] whole of the transaction under investigation and
every part of it. . . . “6 .In other words, res gestae meant nothing more than the modern words “same transaction
or occurrence” and had something to do with relevancy. Res gestae also encompassed “those circumstances

2 Translationprovided by Dr. Philip Pattenden, Dir. Of Studies in Classic, Peterhouse, Cambridge.

3 Edmund M. Morgan, Hearsay - What Is It?, 12 Wash. L. Rev. 1, 4 (1937) , p. 132 (describing phrase res gestae as
“inexact and indefinite in its scope”).
4 Id.
5 Vinodkumar Baderbhai Patel vs State of Gujarat, 1998 INDLAW GUJ 22
6 Black’s Law Dictionary 1305 (6th ed. 1990) (citing McClory vs Schneider, 51 S.W.2d 738, 741 (Tex. Civ. App. 1932)).

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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.”7

In Babulal vs W.I.T Ltd.,8 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”.9 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 confusion10 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.11 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.12

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.

WHAT IS A TRANSACTION?

A transaction, as the term used in this sec. 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. 13A good working test of deciding what
transaction is; is proximity of time, unity or proximity of place, continuity of actions, and community of purpose

7 Id.
8 1956 INDLAW CAL 105
9 Escorts Farms Ltd vs Commisioner Kumaon Division 2004 INDLAW SC 1157
10 Julius Stone, Res Gesta Raegitata, Vol. 55 The Law Quarterly Review, p. 66
11 31 A CJS 978
12Lund vs inhabitants &c. 9 Cush (Mass) 36, cited in Jones Ev s 358.
13R vs Ring A 1929 B 296.

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or design.14 But the main test must be continuity of action and community of purpose. 15 The condition for
admissibility of a statement made by a person who was at the scene of occurrence is the proximity of time, the
proximity of the police station and the continuity of action16. The expression suggests not necessarily proximity
of time so much as continuity of action and purpose.17

Buying a pen from the shop is also a transaction. It ends the moment the buyer hands the money to the
shopkeeper and the shopkeeper hands the pen to the buyer. But certain transaction like murder extends over a
longer period of time. When can a transaction be said to end and when it begins; depends on the fact and
circumstances of each case.

A transaction may constitute a single incident occupying a few moments or it may be spread over a
variety of acts, declaration etc. All these constitute incidents, which though not strictly constituting a fact in issue,
accompany and tend to explain or qualify the fact in issue. All these fact are relevant only when they are
connected by proximity of time, unity or proximity of place, continuity of action and community of purpose or
design.18

For instance, a person is lying on the side of the road. He is injured and is shouting for help. A passer by
comes by listening his shout and then he is told that ‘Mr. X tried killing him’. Can this statement be admissible as
forming part of same transaction? (Instance I). In the same situation, if the passer by comes to the victim
voluntarily and then asks the victim and comes to know that Mr. X tried killing him. Can this statement be
admissible as forming part of same transaction (Instance II)?

There is difference between both the situations. In first instance, the transaction was still continuing. The
victim was under the stress of excitement and the statement made by him was a reaction to the main act i.e.
murder. In the second instance, the statement made by the person was a response to the question asked by the
person. It may be said that the transaction ended as there was an intervention by a third person, the passer by
asked a question as to what happened and the response was not a reaction to the situation but a response to his
question. If any statement is a reaction to the situation than it forms part of the same transaction but if it is a
response to the question, the transaction ends with the intervention of a third party and such acts or admissible
can not be made admissible under sec.6 of the Indian evidence act.

14 Banga Ch vs Annada 35 CLJ 527

15 R vs Loclay
16 Bandela Nagaraju vs State of A.P 1983 INDLAW AP 75
17 Ganesh vs R, A 1931 P 52.
18 Amritala vs R 42 C 957.

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Statement made after some times may be admissible under S. 157 as corroborative evidence but not
under S. 6.19 Two fact occurring at the same time and place may have no connection between them; and yet two
facts separated by a vast distance of time and lace may be part of the same transaction. The primary offence and
the offence of destroying evidence of the primary offence may in certain circumstances be parts of same
transaction.20

To form a particular statement as a part of the same transaction, utterance must be simultaneous with the
incident or soon after it so as to make it reasonably certain that the speaker is still under stress of excitement in
respect of the transaction in question. Where the accused made a statement to the deceased’s brother relating to
the motive and commission of the offence after half an hour of the incident, it cannot be said that there was a
long interval so as to give an opportunity for any fabrication and therefore, it was admissible under s. 6. 21
Statement by a victim shortly after he sustained injuries that the accused inflicted them is admissible under S.6.22
Transaction also ends with a time gap. If there is a long time gap, it can be said that the response of the victim is
concocted or it is influenced by his/her personal feelings.

Whatever is said by the informant in the F.I.R or to other witness after the occurrence forms part of the
same transaction?23 When the offence under trail is filing false complaint; what happened at the subsequent
police investigation of the complaint forms no part of the res gesate.24

Evidence which is connected with the principal subject matters of the charges as parts of one and the
same transaction is relevant.25 Two distinct offences may be so inseparable connected that the proof of one
necessarily involves proving the other, and in such a case on a prosecution for one, evidence proving it cannot be
excluded because it also proves the other.26 Evidence as to other offences by the accused would be relevant and
admissible if there is a nexus between the offence charged and the other offences or the two acts form part of
the same transaction so a to fall within S.6. An entirely separate and disconnected offence is not admissible
merely because it occurred at or about the same time as the res gestae of the offence on Trail. 27

19 Rameshwar vs S AIR 195 C 54.

20 Hari vs State of U.P 183 Cri LJ NOC 62(All)
21 Venkatesan vs State 1997 INDLAW MAD 104
22 Krishnaram vs S, A 1964 As 53.
23 Shyam Nandan Singh vs State of Bihar 1991 INDLAW PAT 12
24 Venkatasubbiah vs R 48 M 640.
25 R vs Vajiram, 16 B 414, p. 430-31.
26 Peoples vs Marble 38 Mich 117.
27 Peoples vs Lane, 100 California 379.
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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 relevant28.

This section admits a very large class of facts connected with facts in issue or relevant facts, though not
forming part of the transaction. Facts forming part of the same transaction are admissible under the preceding
section. Evidence relating to collateral facts is admissible when such facts will, if established reasonable
presumption as to the matter in dispute and when such evidence is reasonably conclusive. The section provides
for the admission of several classes of facts which are connected with the transaction under inquiry in particular
modes,
(1) as being the occasion or cause of a fact;
(2) as being its effect;
(3) as giving opportunity for its occurrence; and
(4) as constituting the state of things under which it happened.

A fact in issue cannot be proved by showing that facts similar to it, but not part of the same transaction,
have occurred at the other times. Thus, when the question is, whether a person has committed a crime, the fact
that he had committed a similar crime before, is irrelevant.

ALLEGED FACT: property recovered form accused by the deceased, murder of the deceased. The court
said that unless it could be conclusively established that the property was with the deceased at the time of the
offence, the question of property would not be good enough nexus with the murder.29

BYSTANDER

The term by standers 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 State30, 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

28 Sec. 7 of Evidence Act.

29 Annasuyamma vs. State of Karnataka, 2002 INDLAW KAR 99
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informed by the eye-witnesses as to who the two accused has been, their deposition was judged to fall within the
ambit of Section 6. Where on hearing sounds of gunshots from the house of the victim, his neighbours run to
the spot within minutes and he told them the names of the assailants who had shot at him and his wife, his
statement to them was relevant under this section 6.31

TAPE RECORDER: A contemporaneous tape record of a relevant conversation is a relevant fact and is
admissible under section 7 but such evidence must be received with caution. 32 Where the tape recorded
conversation carried music before and after the recorded conversation and the same could not be explained the
court said that the only plausible explanation was that the tape was tampered. 33 A contemporaneous tape
recorded of a relevant conversation is a relevant fact and is admissible under section 7. The manner and mode of
its proof and its use in a trial is a matter of detail. It can be used for the purpose of confronting a witness with his
earlier tape recorded statements. It can be used for the purpose of confronting a witness with his earlier tape
recorded statements. It may also be legitimately used for the purpose of shaking the credit of a witness. 34 For the
use an earlier tape recorded statement, the identification of the taped voices is a crucial and matter and indeed
such proper identification is a sine-qua-non for the use of the earlier tape recording. Where the voice is denied by
the alleged maker thereof, a comparison of the same becomes inevitable and proper identification of the voices
must be proved by a competent witness. The recording of the voice of a witness for the purpose of a comparison
with and identification of his earlier recorded voice can therefore, be allowed by the court and such comparison
is neither expressly nor impliedly prohibited under any statue.35

TEST FOR 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?36
To answer that question the judge must first consider the circumstances in which the particular statement
was made, in order to satisfy him that the event was as unusual or starting or fanatic as to dominate the thoughts
of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for
reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the

30 Mahendra Pal vs State AIR 1955 All 328

31 Nathuni Yadav vs State of Bihar 1996 INDLAW SC 1562
32 Yusufalli vs The state, (1967) 70 Bom LR 76 (SC)
33 State of Maharashtra vs. Ramdas Shankar Kurlekar, 1998 INDLAW MUM 8322
34 Dial Singh Narain Singh vs. Rajapal Jagan Nath AIR 1969 P&H 350
35 Nirmala vs. Ashu Ram, 2000 Cri LJ 2001
36 R vs Andrews 1987 A.C 281, H.L

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pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was
made in conditions of approximate but not exact contemporaneity.

In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event
which has excited the statement, that it can be fairly stated that the mind of the declaring was still dominated by
the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the
statement, was still operative.37

Quite apart fro the time factor, there may be special feature in case, which relate to the possibility of
concoction or distortion.

As to the possibility of report on the facts narrated in the statement if only the ordinary fallibility of
human recollection is relied on, this goes to weight to be attached to and not the admissibility of the statement
and is therefore a matter of jury.

To sum up, it can be laid that the test to be applied in deciding whether a hearsay statement made by a
bystander or victim indicating the identity of the attacker is admissible can be put succinctly;

1. Was the identification relevant?

2. Was it spontaneous?
3. Was there an opportunity foe concoction?
4. Was there any real possibility of error?

If the exited utterance is relevant, the statement will be admissible if the answer to the second question is
also yes, and the answer to the other question is no,38 otherwise the statement is inadmissible. A statement may
be spontaneous even though made in response to questioning.39

STATEMENT SHOWING MOTIVE AND INTENTION

A person’s statement that he intends to do something in the future is not admissible as evidence that he
did that thing. What someone says, where his intention is in issue, is very different matter to investigating what
someone says he is going to do in order to decide whether he carried out his stated intention. In Wainwright

37 R vs Pennel
38 R vs West, unreported, CA.
39 R vs Smartt 2004 EWCA Crim 2072, 26.
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case40, a girl left home telling her mother that she was going to visit Wainwright. In Thomson case41, a girl said
that she intended to perform an abortion on herself. Both statements were held to be inadmissible because the
declarent 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 issue 42. but in Buckley
case43, 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. Again, the conduct, antecedent or
subsequent, of the person committing an offence or of a person against whom an offence has been committed,
may be helpful in deciding as to whether a man has committed an offence.

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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

reliable44. The state of excitement can continue to exist after the exciting fact has ended. The declaration
therefore may be admissible even though subsequent to the occurrence, providing it is near enough in time to
allow the assumption that the exciting influence continues. Statements made by the observers of events may be
admissible as part of the res gestae if they were a spontaneous consequence of the event.

As courts and commentators explained “Where a remark is made spontaneously and concurrently with an
affray, collision or the like, it carries with it inherently a degree of credibility and will be admissible because of its
spontaneous nature.”45
Debate over the admissibility of excited utterances centers on the timing between the statement and the
cause of the excitement. Over the course of two centuries, the excited utterance doctrine has evolved from the
concept of res gestae, requiring simultaneity between the underlying event and the descriptive statement, to
virtually abandoning a temporal requirement between the event and the statement.

This general principle is based on the experience that, under certain external circumstances of physical
shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their
control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations
and perceptions already produced by the external shock. 46 The witness’ state of nervous tension was of utmost
importance in Wigmore’s analysis. According to Wigmore, this “immediate and uncontrolled domination of the
senses” lasts for a “brief period.” During this short time, neither thoughts of “self-interest” nor other “reasoned
reflection” arise. Therefore, the utterance is “particularly trustworthy” and may be admitted despite its hearsay
character. Wigmore even hinted that such evidence is superior to in-court testimony because of its spontaneity
and closeness to the event.47

40 1875 13 Cox CC 171

41 1912 3 KB 19.
42 Rosmund Reay, Textbook Evidence, 3rd ed, 2001, p.137.
43 1873 13 Cox CC 293.
44 R vs Christie, 1914 AC 545; R vs Thompson 1912 3 KB 19; R vs Osborne 1905 1 KB 55; Phip 8th Ed, p.60.
45 Carroll vs Guffey, 156 N.E.2d 267, 270 Ill. App. Ct. 1959
46 See John Henry Wigmore, Evidence in Trials at the Common Law p. 1362 (James H. Chadbourn ed., 1978).
47 Id
48 See Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence, 28 Column. L. Rev.

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STAND OF JUDICIARY

The test of admissibility on one hand relies on the exact contemporarily approach laid down in
Bedingfield’s case56 in contrast to the flexible and accommodating approach laid down in Foster’s case57. It was
precisely with a view to settle this ambiguity that the Privy Council in Ratten’s case58 entirely dispensed with the
test of contemporaneity and adopted the test of “spontaneity and involvement”. Lord Wilberforce in Ratten’s
case contended that the test should not be the uncertain one whether the making of the statement was in some
sense part of the transaction. This may often be difficult to establish and therefore he emphasised on spontaneity
as the basis of the test. He asserted that “hearsay evidence may be admitted if the statement providing it is made
in such conditions (always being those of approximate but not exact contemporaneity) of involvement or
pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the
disadvantage of the accused.”

Courts began focusing on how long the excited condition lasted rather than focusing on when the
statement was made and thus liberalized the strict timing requirement. Apparently reluctant to explicitly follow
Wigmore, judges first expanded the exception by categorizing statements as “contemporaneous enough.” 59

Like India present day rulings in England and America tend to indicate that the utterance must be
spontaneous or natural, and though not precisely contemporaneous must be substantially so60. There can be no
fixed limit of time an each case must depend upon its own circumstances. How slight a separation of time and
place is sufficient to render evidence of a statement inadmissible?61The bystanders’ declaration must relate only to

56 [1879] 14 Cox CC 341

57 [1834] 6 C. & P. 325
58 Ratten v. Reginam, 1971 INDLAW PC 6
59 Commonwealth vs Burke, 159 N.E.2d 856, 864 (Mass. 1959) (finding victim’s statement to a witness a short time
before victim was found unconscious admissible as a spontaneous exclamation), overruled on other grounds by
Commonwealth vs Beldotti, 567 N.E.2d 1219 (Mass. 1991); Reardon vs Marston 38 N.E.2d 644, 647 (Mass. 1941)
(holding that statement made at an accident scene “was so nearly contemporaneous with the actual impact itself
that it could have been found to have been intimately connected with the happening of the accident”) (emphasis
added).
60 Sudipto Sarkar, V.R Manohar, Law of Evidence, 16th ed 2007, p.209.
61 Teper vs Reginam 1952 INDLAW PC 1.

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that which came under their observation.62 If there is an interval, however light, which allows of fabrication, it is
not part of res gestae, though it may be admissible under S. 157.63

Where a witness in describing the offence asserted that B said: those ruffians who a year ago took away
Subhashini have again come. It was held that the time of the occurrence in respect of the occurrence it is res
gestae under S.6. But statement however made at the time of an occurrence relating to a previous occurrence
which took a year is not res gestae.64

Thus the principal of admissibility of declarations accompanying acts can be summarized as; 65
1. The declaration (oral and written) must relate to the act which is in issue or relevant thereto; they
are not admissible merely because they accompany an act. Moreover the declaration must relate
to and explain the fact they accompany, and not independent facts previous or subsequent
thereto unless such facts are part of a transaction which is continuous.
2. The declaration must be substantially contempororaneous with the fact and not merely the
narrative of a past.
3. The declaration and the act may be by the same person, or they may be by different person, e.g.,
the declarations of the victim, assailant and by standers. In conspiracy, riot the declarations of all
concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act,
declaration are not evidence of the truth of the matters stated.

A spontaneous exclamation is admissible because “under certain external circumstances of physical shock
a state of nervous excitement may be produced which stills the reflective faculties and removes their control, so
that the utterance which occurs is a spontaneous and sincere response to the actual sensations and perceptions
already produced by the external shock.” 66
The traditionally cited principle behind this exception is that an
individual who makes a statement immediately after a stressful event lacks sufficient time or capacity to fabricate
a lie about what happened. Thus, this class of statements contains sufficient indicia of reliability so as to be
admitted despite its hearsay character.67 In order for the statement itself to be “the product of impulse, not

62 Bhaskaran vs State of Kerala 1985 INDLAW KER 31.

63 Kaneshwar vs R ALJ 149.
64 Khijiruddin vs R, 53 C 373.
65 Sarkar p.211
66 See 6 Wigmore, supra note 55, 1748, at 199
67 Ohio vs Roberts, 448 U.S. 56, 57 (1980).
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reflection,” the courts have historically required a lack of time between the statement and the event. 68 Because an
excited utterance contains an inherent guarantee of truthfulness and reliability, courts and commentators have
not required that the statement be necessary to proving the case to justify its admission.69

In a case the accused had killed his wife and daughter. The deposition by the father of the deceased that
the father of the accused made a telephone call to him and said that his son had killed the deceased was found to
be not admissible. The question before the court was that was that can the deposition of the accused father be
admitted under S. 6 as a hearsay exception being part of Res Gestae? In the absence of finding as to whether the
information given by accused father to father of the deceased that accused had killed his wife and daughter, was
either at the time of the commission of the crime or immediately thereafter so as to form part of the same
transaction declined to accept the evidence as relevant under section 6.70 In State of Andhra Pradesh vs Gentela
Vijayavardhan Rao71 the appreciable interval between the act of carnage and magistrate’s recording the statement
the statement recorded by the magistrate was found inadmissible under res gestae.

In Bishna vs State of West Bengal72, where the two witnesses reached the place of occurrence
immediately after the incident had taken place and found the dead body of Prankrishna and injured Nepal in an
unconscious state. One of them found the mother of Prannkrishna and Nepal weeping and heard about the
entire incident from an eye-witness and the role played by each of the appellants, their testimony was held to be
admissible under section 6 of the Evidence Act.

In all the cases mentioned above the test applied to make the evidence admissible was to consider that
was the statement was made at the spur of the moment without an opportunity to concoct and fabricate
anything. Where the judges are satisfied that the reaction was the most immediate result of the circumstances
being relevant to the facts in issue, they have allowed such evidence to be admitted.

68 See Puleio vs Vose, 830 F.2d 1197, 1206-07 (1st Cir. 1987) (holding in part that the admission of an excited
utterance did not violate defendant’s right to confrontation under the Sixth Amendment); Puleio, 474 N.E.2d at
1081 (same).
69 See Puleio, 474 N.E.2d at 1079-80.
70 Vasa Chandrasekhar Raov. Ponna Satyanarayana vs Ponna Satyanarayana 2000 INDLAW SC 326
71 1996 INDLAW SC 2361
72 AIR 2006 SC 302 at p. 309 para 27

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EXPANSION OF THIS DOCTRINE

The excited utterance exception is often applied in murder cases, which obviously contain the requisite
underlying shocking event.73 But courts have slowly broadened the scope of this section to cases like domestic
violence, child witness etc.
Domestic violence and assault cases necessarily involve a startling event; they often include the issue of
excited utterances. In these cases it is only victims who can identify the alleged culprit. So such testimony of the
victims must be admitted. In India, women may not react just after the crime of rape or sexual violence because
they are under the influence of such gruesome event that they do not respond immediately. It is possible that
they respond after a day or two but such statement spoken can still be admitted under res getae. If it can be
proved that victim was still under the stress of shock then such statement can be admitted. Usually cases of rape
take place in isolation. So there is no eye witness to such event. Rape and domestic violence cases are different
than any other crime.
The testimony of children is often the subject of excited utterance debate.74 Usually when ever 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.75
In Uttam Singh vs State of Madhya Pradesh 76 the child witness was sleeping with the deceased father at
the relevant time of incident and was awakened by the sound of the fatal blow of the axe on the neck of the
deceased. Seeing it, the child shouted to his mother for help by naming the accused as assailant. On hearing the
sounds the mother and sisters of the child and other witnesses gathered at the spot. This evidence was held to be
admissible as a part of the same transaction as such shout was the natural and probable as per the facts of the
case. In this case if child witness failed to react on the spot but spoke later, it could still be admissible under sec.

73 Commonwealth vs Arce, 690 N.E.2d 806, 807 (Mass. 1998) (declarant heard a shot from an adjacent room); Grant,
634 N.E.2d at 567 (declarant witnessed shooting and was herself shot in the arm).
74 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); Nancy Walker
Perry & Lawrence S. Wrightsman, The Child Witness: Legal Issues and Dilemmas 169-73 (1991) (discussing the
challenges courts face with respect to hearsay rulings when dealing with child witnesses).
75 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).
76 2002 INDLAW MP 79

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CONCLUSION

Usually evidence is brought under res gestae when it can not be brought under any
other section of Indian evidence act. The intention of law makers was to avoid injustice,
where cases are dismissed due to lack of evidence. If any statement is not admissible under
sec. 6 it can be admissible under sec.157 as corroborative evidence.

Court has always minded that this doctrine should never be expanded to an
unlimited extends. That is why Indian courts have always considered the test of “continuity
of the transaction”. Any statement which was made after a long time gap and which was not
a reaction to the event is not admissible under sec.6 of the evidence act. But courts have
permitted certain statement which was spoken after a long time gap from the occurrence of
the transaction, because there was sufficient proof that the victim was still under the stress
of excitement and so whatever was said was as a reaction to the event.

The strength of sec. 6 lies in its vagueness. The word transaction used in this
section is not distinct. It varies from case to case. Each case in criminal law should be
judged according to its own merit. When it is proved that the evidence forms part of the
same transaction it is admissible under sec. 6 but whether it is reliable or not depends on the
discretion of the Judge.

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