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DOCTRINE OF RES GESTAE
(CONCEPT AND SCOPE)
Art. 19 of
Qanun-e-Shahadat Order, 1984 deals with the concept of RES GESTAE. S.6 of
Evidence Act, 1872 is the corresponding section on the subject.
Art. 19 of
Qanun-e-Shahadat Order, 1984 describes the rule as under:
19. Relevancy
of fact forming part of same transaction.‑‑Fact which though
not in issue are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or
at different times and places.
This Exception
had its earliest illustration in Lord Holt’s ruling in Thompson v.
Trevanion, in 1693; so that the doctrine may be said to have been
recognized before the phrase ‘res gestae’ came into use. Nevertheless, the
development of this doctrine did not begin until after Aveson v.
Kinnaird, in 1805, when the phrase in question had begun to be freely used
in connection with it; and only since the middle of the 1800s has it been
possible to say that this Exception was firmly established.[3]
This principle
is based on the experience that, under certain external circumstances of
physical shock, a stress of nervous excitement may be produced which stills the
reflective faculties and removes their control, so that the utterance which
then occurs is a spontaneous and sincere response to the actual sensations and
perceptions already produced by the external shock. Since this
utterance is made under the immediate and uncontrolled domination of the
sensed, and during the brief period when considerations of self-interest could
not have been brought fully to bear by reasoned reflection, the utterance may
be taken as particularly trustworthy (or, at least, as lacking the usual
grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s
belief as to the facts just observed by him; and may therefore be received as
testimony to those facts.[4]
In Babulal
vs W.I.T Ltd.[5] it was observed that the
statement of law in section 6 of the Evidence Act is usually known
as Res Gestae. The literal meaning of the word “res” is “everything that may
form an object of rights and includes an object, subject matter or status.”[6] Res
Gestae has been described as a term of protean significance and that there have
been many definitions of the term. No evidential problem is as shrouded in
doubt and confusion[7] as is Res Gestae. The rule as to
admissibility of evidence known as the Res Gestae rule has been declared to be
incapable of any precise definition and it has been applied to so many
different and unrelated situations that it has been said that the difficulty of
formulating a description of Res Gestae which will serve all circumstances
seems insurmountable.[8] In America an
attempted definition of res gestae is that it consists of the ‘circumstances,
facts and declarations’ which grow out of the main fact, are contemporaneous
with it, and serve to illustrate its character.[9]
The principle
has been explained by LORD NORMAND in Teper v. Reginam, 1952,
2 All ER 447, 449 : 1952 AC 480:-
“Nevertheless
the rule (Hearsay) admits of certain carefully safe-guarded and limited
exceptions, one of which is that the words may be proved when they form part of
the res gestae……….. It appears to rest ultimately on two propositions---that
human utterance is both a fact and a means of communication, and that human
action may be so interwoven with words that the significance of the action
cannot be understood without the correlative words and the dissociation of the
words from the action would impede the discovery of truth.”[10]
In Prem
Chand Versus State (NCT of Delhi), it was held that the principle of
law embodied in this section enunciates the rule that declarations which are
contemporaneous or almost contemporaneous with the transaction in issue i.e.
the interval between two being so short and there being no opportunity for
fabrication, such a declaration would be admissible as res gestae.[11]
In
understanding the nature of the res gestae exception to hearsay and the manner
in which it must be construed in individual cases by the Judiciary, it is
important to rely repeatedly on the underlying consideration that is often
overlooked – the reliability of the statement.[12]
The res gestae
embraces not only the actual facts of the transaction and the circumstances
surrounding it, but the matters immediately antecedent to and having a direct
causal connection with it, as well as acts immediately following it and so
closely connected with it as to form in reality a part of the occurrence.” J.
McKnight, State v. Fouquette, 221 P.2d 404, 416-417
(Nev. 1950).[13]
The rationale
in making certain statement on fact admissible under Section 6 of the Evidence
Act is on account of the spontaneity and immediacy of such statement or fact in
relation to the fact in issue. But, it is necessary that such fact or statement
must be part of the same transaction. In other words, such statement must have
been made contemporaneous with the acts which constitute the offence or atleast
immediately thereafter. But, if there was an interval, however slight it may
be, which was sufficient enough for fabrication then the statement is not part
of res gestae.[14]
Contemporaneous
utterances have been described in Gurdev Singh, Balwinder Kumar, Angrej
Singh, Bachittar Singh Versus UOI & Ors. 2014(2) SLR 675, that Statements
made by a person to a third person soon after an incident, but with no gap of
time are akin to contemporaneous utterances and are admissible as res gestae
evidence through the deposition of the one who heard the utterance. Statements
made after some gap which cease to be res gestae are hearsay evidence and thus
inadmissible as per the law of evidence.
In Chhotka
v. State, AIR 1958 Calcutta 482[15] it was held that the
requirement of Section 6 is that the statement must have been made
contemporaneously with the act or immediately after it and not at such an
interval of time as to make it a narrative of past events or to allow time for
fabrication.
A more flexible
understanding of res gestae as an exception to the hearsay rule was formulated
by the Judicial Committee in 1952. Carefully carving out this exception,
it seemed easy enough to characterise statements as falling within the res
gestae on the basis of two fundamental principles. First, the proposition that
human utterances are facts just as actions are, and secondly, ‘that human
action may be so interwoven with words that the significance of the action
cannot be understood without the correlative words, and the dissociation of the
words from the action would impede the discovery of truth.’ In this case,
the statement of a bystander was rejected on the grounds that it was highly
prejudicial to the accused and that there was no other evidence supporting the
culpability of the accused. Though the res gestae exception was broadly
construed, the statement was excluded in this case for these reasons.[16]
One of the
leading decisions in relation to the res gestae exception is that of the Privy
Council in Ratten v. The Queen, which dealt with the admissibility
of the statement of a telephone operator who received a call from the deceased
minutes before she was allegedly murdered by her husband. The Council
characterised the statement as original evidence of ‘verbal facts’, as opposed
to hearsay evidence, as the object of admitting the statement was not to
establish the truth of the statement made, but merely to establish the fact
that it was made. The following observation was made:
“Words spoken
are facts just as much as any other action by a human being. If the speaking of
the words is a relevant fact, a witness may give evidence that they were
spoken. A question of hearsay only arises when the words spoken are relied on
"testimonially," i.e., as establishing some fact narrated by the
words.”[17]
Following the
decision of the Privy Council in Ratten’s Case, the law on this point was
consolidated decisively in the celebrated case of R v. Andrews. Lord
Ackner of the House of Lords exhaustively dealt with this exception, moving
away from the simple question of whether the statement was a fact to be
admitted as original evidence, to the more complex one of whether the truth of
the statement relayed could be admissible as an exception to the hearsay rule,
and by what justification. This issue was of considerable significance as
the statement of the victim was one which, if admitted, would disclose the
identities of his assailants. The House of Lords found itself compelled to
effectively demarcate the boundaries of the exception in response to the question
posed by the Defence: ‘If such hearsay is so admissible, how wide can the
material events go before becoming inadmissible?’[18]
Ultimately,
Lord Ackner identified certain criteria to be considered by a Trial Court judge
in determining whether hearsay statements shall be admissible for the purpose
of establishing the truth of the facts asserted by them. The chief
consideration was whether there was a possibility of concoction or distortion.
Other rules framed stemmed from this pivotal test, and included a consideration
of the circumstances in which the statement was made and a flexible
determination of whether it was sufficiently spontaneous. Most
importantly, in disregarding time as the primary factor justifying the res
gestae exception, Lord Ackner recognised that concoction and distortion can be
determined regardless of whether the statement was formally part of the
transaction.[19]
Evidence in
criminal cases is still required to comply with Common Law standards that have
been incorporated into statutory provisions operating today. Although it
was impossible to envisage any settled, universally acceptable test to adjudge
whether hearsay be admissible on the basis of the principle of res gestae, the
Courts in England have made a laudable attempt to identify the nature
of this exception.[20]
The test for
applying the rule of res gestae is that the statement should be spontaneous and
should form part of the same transaction ruling out any possibility of
concoction.[21]
The
declarations are admitted when they appear to have been made under the
immediate influence of some principal transaction, relevant to the issue, and
are so connected with it as to characterize or explain it. It should appear
that they were made without premeditation or artifice, and without a view to
the consequences; that they are the spontaneous utterances, natural result of
the act they characterize or elucidate.[22] The declaration must be calculated
to unfold the nature and quality of the facts which they are intended to
explain; they must so harmonise with those facts as to form one transaction.
There must be a transaction of which they are considered a part; they must be
concomitant with the principal act, and so connected with it as to be regarded
as the result and consequence of co-existing motives.[23]
Declarations
that do not satisfy this test are rejected as hearsay. Res gestae is an
ambiguous and elastic expression and as Phipson says “led to confusion and gave
rise to at least four conflicting conceptions, e.g. (i) one which applies the
term res gestae to the main fact in relation to its constitutent details; (ii)
one which applies it to the details of such fact merely; (iii) one which
applies it to the ‘surrounding circumstances’ of some central fact, called, in
contradistinction, the principal fact; and (iv) one which applies it to the
total whole composed of both principal fact and surrounding circumstances.[24]
In Kailash
Chandrakar and another Versus State of Madhya Pradesh (Now Chhattisgarh),[25] it
was held that to form a particular statement as a part of the same transaction
or of the same incident or just contemporary to the incident so as to make it
reasonably certain that the speaker is still under stress of excitement in
respect of the transaction are facts to be considered. The principle is that it
should be so intimately connected with the fact in issue as to be a spontaneous
utterance inspired by the excitement of the occasion or a spontaneous reaction
thereof and there being no opportunity for deliberately fabricating the
statement. In other words, the statement which is a part of res gestae does not
narrate a past event, but it is the event itself speaking through a person thus
excluding the possibility of any design behind it.[26]
Despite its
intuitive appeal, Wigmore’s notion that a person would not have time
to think up a lie before making an excited utterance in response to a startling
event is not borne out by psychological research. The time required to craft a
lie is slight--sometimes only a matter of seconds.[27] It was asserted that the difference
in reaction time between deceptive and sincere responses is negligible. The
excited utterance exception, which tolerates more than a thirty-minute gap
between the event and the utterance, allows more than sufficient time for
planning a false report. Psychological studies support this observation and
indicate that the difference between the time of cognition and the time when
the declarant may begin to fabricate is so small that it is often impossible to
measure without instruments.[28]
The testimony
of children is often the subject of excited utterance debate.[29] Usually whenever there is a time
gap, the transaction is said to end and any statement which do not form part of
the transaction is inadmissible. However in cases of children this rule is
relaxed. The rationale for expanding the exception for children emphasizes how
children cope with stress because their statements are often made well after
events occur at the first safe opportunity to speak.[30]In Uttam Singh vs State
of Madhya Pradesh[31] 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 washeld 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 reacton the spot but spoke
later, it could still be admissible under sec. 6.
The res gestae
doctrine has often been criticised. According to PROFESSOR STONE, “no
evidential problem is so shrouded in doubt and confusion.”[32] It was the opinion of PROFESSOR
WIGMORE[33] that the rule is not only useless
but also harmful. It is useless because every part of it is covered by some
other rule, for example, declarations as to the state of mind or health. It is
harmful because it causes confusion about the limitations of the other rules.
The precise limits of res gestae are themselves not easy to define. Facts
differ so that no fixed principle can be laid down as to the matters that will
form parts of a transaction.
To conclude, we
can say that some of the cases bearing upon this topic exhibit diversity of the
opinion, but the following points appear to have been fairly settled:-
1) The
declarations (oral or written) must relate to the act which is in issue or
relevant thereto; they are not admissible merely because they accompany an act.
Moreover the declarations must relate to and explain the fact they accompany,
and not independent facts previous or subsequent thereto [Agassiz v.
London Tramways Co.] unless such facts are part of a transaction which
is continuous.
2) The declarations must be substantially contemporaneous with the
fact and not merely the narrative of a past. [Thompson v. Trevanion; R
v. Christie; Teper v. R, 1952, 2 All ER 447].
3) The
declaration and the act may be by the same person, or they may be by different
persons, e.g, the declarations of the victim, assailant and by-standers.[34]
[1]. SAMEEULLAH KHAN versus
THE STATE and another (2000 P Cr. L J
769 Peshawar).
[2]. Wigmore J. H.
(1940), WIGMORE ON EVIDENCE, Vol.VI, 3rd Edn. LITTLE, BROWN
AND COMPANY, pp1764-1768.
[3]. Wigmore J. H.
(1940), WIGMORE ON EVIDENCE, Vol.VI, 3rd Edn. LITTLE, BROWN
AND COMPANY, p.1768.
[4]. Wigmore J. H.
(1940), WIGMORE ON EVIDENCE, Vol.VI, 3rd Edn. LITTLE, BROWN
AND COMPANY, p.1747. see also Accord: 1916, Perry v.
Haritos, 100 Conn. 476, 124 Atl. 44 (Wheeler, C.J., quote the above
text with approval).
[5]. 1956
INDLAW CAL 105.
[6]. Escorts Farms Ltd vs
Commissioner Kumaon Division 2004 INDLAW SC 1157.
[7]. Julius Stone, Res Gesta
Raegitata, Vol. 55 The Law Quarterly Review, p. 66.
[8]. 31 A CJS 978.
[9]. Pinney v jones, 1894, 42
Am SR 209.
[10]. Sarkar S.C., (2014)
S.6, SARKAR LAW OF EVIDENCE, vol.I, 18th Edn., LexisNexis, p.288.
[11]. 2014(5) AD(Delhi) 352.
[12]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php (Accessed on 07/01/2015).
[13]. http://www.law.cornell.edu/wex/quotation/%5Bfield_short_title-raw%5D_229 (Accessed on 07/01/2015).
[14]. Sarkar S.C., (2014)
S.6, SARKAR LAW OF EVIDENCE, vol.I, 18th Edn., LexisNexis, p.286.
[15]. See also Pratapsingh and
another Versus State of M.P. (1971 CriLJ 172).
[16]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php (Accessed on 07/01/2015).
[17]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php(Accessed
on 07/01/2015).
[18]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php(Accessed
on 07/01/2015).
[19]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php(Accessed on 07/01/2015).
[20]. http://www.lawteacher.net/common-law/essays/the-doctrine-of-res-gestae-law-essays.php (Accessed on 07/01/2015).
[21]. Javed Alam v. Sate of
Chhattisgarh, (2009) 6 SCC 450(455)
[22]. Jones Ev Civil, s.344: see
Noor Md v Imtiaz, A 1940 O 130.
[23]. Jones, s.348 citing People
v. Vernon, 35 Cal 49 and other American cases.
[24]. Sarkar S.C., (2014)
S.6, SARKAR LAW OF EVIDENCE, vol.I, 18th Edn., LexisNexis, p.287.
[25]. 2014(135) AIC
553, CHHATTISGARH HIGH COURT.
[27]. See Robert M. Hutchins &
Donald Slesinger, Some Observations on the Law of Evidence, 28 Column. L. Rev.
432, 437 (1928)
[28]. See Robert M. Hutchins &
Donald Slesinger, Some Observations on the Law of Evidence, 28 Column. L.
Rev. 437 (1928)
[29]. See generally Lucy S. McGough,
Child Witnesses: Fragile Voices in the American Legal System 126-88 (1994)
(discussing the relationship between hearsay and child witnesses in both civil
and criminal contexts); 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).
[30]. See Commonwealth vs Di Monte,
692 N.E.2d 45, 50 (Mass. 1998) (“Our affirmance of a judge’s admission of a
statement to a physician from a child some five hours after she had been
scalded is an outer limit in our cases thus far.”); see also Commonwealth vs
Hardy, 716 N.E.2d 109, 114 n.7 (Mass. App. Ct. 1999) (noting children’s
statements are given “special consideration” for excited utterances).
[31]. 2002 INDLAW MP 79
[32]. Dr. AVTAR SINGH, (2009), Chap.
2, RELEVANCY OF FACTS, PRINCIPLES OF THE LAW OF EVIDENCE, 9TH Edn. CENTERAL LAW
PUBLICATOINS, Fane Road, Lahore, pp.47-48
[33]. Wigmore J. H. (1940), WIGMORE
ON EVIDENCE, Vol.VI, 3rd Edn. LITTLE, BROWN AND COMPANY, p.1767 (see
also Dr. AVTAR SINGH, (2009), Chap. 2, RELEVANCY OF FACTS, PRINCIPLES OF THE
LAW OF EVIDENCE, 9TH Edn. CENTERAL LAW PUBLICATOINS, Fane
Road, Lahore, pp.47-48).
[34]. Sarkar S.C., (2014)
S.6, SARKAR LAW OF EVIDENCE, vol.I, 18th Edn., LexisNexis,
pp.293-294.
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