National Law Institute University Bhopal

(Session 2010-11)

Law of Evidence

A
Project On

Res Gestae

Submitted to:

Submitted by:

Dr.Sanjay Yadav

Abhay Raj Singh Chauhan

Professor of Evidence

Third Year
2008 B.A.LL.B. 04

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Table of Contents

Introduction

02

Principle of Res Gestae

04

Test for Res Gestae

04

Admissibility

07

Conclusion

10

Bibliography

12

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Introduction
Res gestae (a Latin phrase meaning "things done") 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.

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(In some jurisdictions the Res gestae exception has also been used to admit police
sketches.)
The principle underlying S.6, 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 worlds 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 worlds 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.
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.
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Principle
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.
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Test For Res Gestae

In Article 3 of his Digest of the Law of Evidence, Sir James Stephen defines a
transaction as; 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 ant other subject of enquiry which may
be in issue.
Suppose A is tried for the murder of B by beating him with a club. Here the transaction is
the crime of murder. That A beat B with a club, that A caused Bs death, that A had an
intention of causing Bs death are all in issue and form parts of the same transaction,
and evidence can always be given of such facts in issue under Section 5. But the words
uttered by A at or about the time of beating, or words uttered by B or by persons
standing by, at or about the time of beating, are not in issue. But they also form parts of
the same transaction. No one beats another silently, nor would the person beaten be
silent while he was being beaten, nor would persons standing by watch silently. The
transaction includes all these utterances and, though not in issue, form part of the
transaction of murder, which is the subject of enquiry, and therefore are relevant under
this section.
The section provides that if a part of the transaction is a fact in issue, then evidence
can be given of every other part of the transaction either because such other part is
also in issue and therefore evidence of it is permissible under S.5, or because such
other part is relevant under S.6, and therefore, under S.5 evidence can be given of
it. The question that arises is how to find out whether a fact forms part of the same
transaction as the fact in issue. The various tests suggested are as follows:
(a) If the fact in issue and the fact of which evidence is sought to be given stand in
the relation of cause and effect or effect and cause, then they can be said to form
part of the same transaction. This test however is useless because every event is
the effect of innumerable effects. If all these causes and effects are to be treated as
relevant and evidence is permitted to be given of all these facts, the whole purpose

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of restricting the evidence in a court of law to relevant facts would be lost. The time
of the court will wasted in listening to evidence of remote causes and distant effects.
(b) Another test suggested is, facts connected by proximity of time and place would
come under the section. No doubt facts happening at about the same time and place
can be treated as closely connected and therefore relevant under the section. But
this is not enough, because the section itself contemplates the possibility of facts
happening at different times and places, being connected with the fact in issue, so
as to form part of the same transaction.
(c) A third test suggested is that there should be a continuity of purpose and action
running through the fact in issue and the fact of which evidence is sought to be
given. This, it is submitted, is equally useless, as merely substituting one vague
phrase for another.
In the English Law system, we come across a phrase res gestae which is equivalent to
the facts mentioned in Section 6. But, unfortunately, that phrase is not always used with
that meaning. We also find it used in the following senses: (i) as equivalent to the fact in
issue, (ii) as equivalent to the details of the fact in issue, and (iii) the fact in issue and
surrounding circumstances. This being so, it is the general opinion of all authorities on
the law of evidence that this phrase should be avoided completely. While there is so
much ambiguity in the meaning of the phrase, to look for a test for facts which are res
gestae, would be looking for the proverbial needle. The truth of the matter is that it is left
to the presiding Judge, who, guided by previous decisions and his own experience,
feels instinctively that there is the necessary connection, and treats the facts as
relevant. One test, however, is accepted with respect to words uttered at the time of the
happening of the fact in issue. That test is that the utterance must be spontaneous as
well as contemporaneous with the fact in issue. If it is possible that it might have been
thought out and therefore not spontaneous, then it will not be relevant evidence under
this section.

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Res Gestae- the subject matter of ss.6, 7, 8, and 9 and also of s.14 are treated in
English and American books under the head of Res Gestae. It is necessary to have
a clear idea of the term which is frequently found in all books on Evidence and is
freely used in judgments. Acts, declarations and incidents accompanying or
explaining he transaction or facts in issue or which themselves constitutes the facts
or transaction in issue are considered as part of the Res Gestae and admitted as
original evidence and not hearsay. Thus the exclamations, statements and
complaints of an injured party or the complaint of a raped woman immediately
before, during or after the occurrence are relevant. These spontaneous declarations
accompanying an act are sometimes called verbal acts.
The principle of law embodied in Sec.6 of the Evidence Act is usually known as the rule
of res gestae recognized in English law. The essence of the doctrine is that a fact which,
though not in issue, is so connected with the fact in issue as to form part of the same
transaction becomes relevant by itself. This rule is, roughly speaking an exception to
the general rule that hearsay evidence is not admissible. The rationale in making certain
statement on fact admissible under S.6 of the Evidence Act is on account of the
spontaneity and immediately 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.

Admissibility Depends On Continuity Of The Transaction

It will appear from what is said above that the declarations or acts are not admissible
unless they form part of the transaction in controversy, i.e, they must be substantially
contemporaneous with the fact in issue must tend to illustrate and explain it. The
admissibility of the declaration or act as part of the transaction depends on continuity of
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action as also proximity of time and community of purpose. The following cases
illustrate the rule in this section:

Abduction
In a trial for abduction, a witness stated that he had seen three women, who were
sleeping in the same bari as the complainant and his wife, searching something
at dusk. The women were not examined and when the witness was asked what
reply one of these gave, the judge rightly excluded the evidence. The alleged
search that evening cannot be treated as part of the same transaction as the
abduction at night; so S.6 cannot make it admissible and as the women were
neither parties to the case nor agents, S.8 is of no help. S.9 is equally
inapplicable.

Adoption
In the majority of cases execution of a deed of adoption forms a part of the
transaction of adoption itself and is relevant under S.6.

Felony
Generally speaking, it is not competent to a prosecution to prove a man guilty of
one felony by proving him guilty of another unconnected felony, but where
several felonies are connected together and form part of one entire transaction,
the one is evidence to show the character of the other.

Illegal Gratification
Receipt of illegal gratification in the years 1877 and 1878 cannot be proved in
order to establish that he received the three sums of money mentioned in the
charges for which he was tried. The two sets of transactions are not so
connected as would make them relevant to one another. S.6 cannot apply,
because the payments of 1877 and 1878 are not so connected with the facts in
issue in this case as to form part of the same transaction.

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Murder and Dacoity

In the absence of any explanation, the presumption arises that any one who took
part in a robbery also took part in the murder which constituted part of the same
transaction. It has been held that recent and unexplained possession of the
stolen property while it would be presumptive evidence against a prisoner on the
charge of robbery would similarly be evidence against him on the charge of
murder where murder and robbery form parts of one transaction.

Rape
In rape, indecent assault and cries or complaint to any one made during or
immediately after occurrence, is admissible as part of the transaction. Such
evidence is also admissible as conduct. The statement is admissible not as
evidence of the truth of the charge, but as evidence of the credibility of the
complainant. Where the raped girl made a statement to her mother after the rape
when the culprit had gone away and the girl came home from the scene of
occurrence, it is not admissible under S.6 as part of the transaction.

Statement of injured person, accused or by-stander

If a witness survives after making dying declaration his statement relevant and
admissible as res gestae under S.6. Where a person cried out on receiving gunshot injuries and two persons, who immediately reached the spot, were told by
the victim that his nephew had fired at him, the court allowed this evidence as
part of res gestae being spontaneously connected with the transaction.

Statement to police
If on As information a criminal proceeding is started against B and in the course
of investigation into the case A makes a statement to the police, in a subsequent
prosecution under Ss.192, 193 and 221 IPC, it is admissible as res gestae.

Unlawful assembly
Statements made by members of unlawful assembly of their determination to
force their way through a police cordon are evidence of res gestae.
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Other cases
Statements made by a testator at the registration of the will are admissible.

Conclusion
The common law principle of Res Gestae has attracted much judicial and academic
criticism.
There is a general perception that the term [Res Gestae] tends to generate more
confusion than assistance. S Odgers, Uniform Evidence Law (2006) 7th Edition,
Lawbook Co, at 404. Such criticism of the principle is not a contemporary phenomenon.
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As far back as 1939, Professor Julius Stone described Res Gestae as a lurking place of
a motley crowd of conceptions in mutual chaos and reciprocating chaos, commenting
that no evidential problem is so shrouded in doubt and confusion. J Stone, Res Gesta
Reagitata (1939) 50 Law Quarterly Review 66 at 67. He argued that the term Res
Gestae had been used too loosely to cover a series of distinct conceptions, each of
which warranted its own rules of operation.
There has also been significant judicial criticism, as far back as the 1930s. In Homes v
Newton [1931] 2 Ch 112 at 121 Lord Tomlin commented:
What is meant by saying that a document or act is admissible because it is part
of the Res Gestae has never so far as I am aware been explained in a
satisfactory manner. I suspect it of being a phrase adopted to provide a
respectable legal cloak for a variety of cases to which no formula of precision can
be applied. Homes v Newton [1931] 2 Ch 112 at 121. See also, A Keane, The
Modern Law of Evidence (2008) Oxford University Press, at 352; Lundy v
Attorney General [1996] JLR 193 at 203; F Davidson, Res Gestae in the Law of
Evidence (2007) 11Edinburgh Law Reveiw 379, at 379.
Similarly, in Ratten v The Queen, Res Gestae was described by the Privy Council as
being an opaque or at least imprecise Latin phrase which like many. is often used to
cover situations insufficiently analysed in clear English terms. Ratten v The
Queen [1971] 3 All ER 801 at 806.
The problems with practical application were highlighted by Brennan J in Pollitt v
R (1992) 108 ALR 1 who emphasised that [t]he classification of evidence according to
this distinction, though clear enough in principle, is frequently obscure in practice. Pollitt
v R (1992) 108 ALR 1 at 12.
The subsequent cases under the Evidence Act suggest that the problems continue
unabated.

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Bibliography

Law of Evidence, S.K.Sarkar & Ejaz Ahmad; 14th Edition: Ashoka Law House.
Law of Evidence, Ratanlal & Dhirajlal; 22nd Enlarged Edition: Wadhwa.
www.manupatra.com
www.wikipedia.com

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