The Doctrine of Res Gestae: A Critical Analysis

I. Introduction

Res gestae is a law on which courts have agreed uniformly but the application of this law varies leading to conflicting decisions and dissenting opinions. Res gestae and Hearsay rule of evidence are closely related to each other and are covered under the Indian Evidence Act, 1872.² Res gestae is the exception and Hearsay evidence is the rule, Hearsay evidence means the evidence given by a person who was not directly involved in the transaction but has heard about it from people who were involved directly in the happening of the transaction. One of the fundamental rules of evidence law is that Hearsay evidence is not admissible in proving a fact in the court of law as it is evidence given by a third person.³ This rule however has an exception to it known as the principle of res gestae. The rationale behind the doctrine of res gestae is the spontaneity of the statements made by the third party that must be simultaneous with the happenings in the transaction or immediately thereafter; if there is any interval regardless how slight it is, it will be considered as sufficient time to fabricate the facts and will not be covered under the doctrine of res gestae. The evidence must be given only of the facts in issue and the facts relevant to the facts in issue is provided under section 5⁴ of the act. Relevant facts are not defined under the evidence act but it provides a way to differentiate a relevant fact under section 3 of the act.⁵ The section provides: “one fact is treated as relevant when that fact is connected with another fact in any of the ways referred to for relevancy of facts.”⁶ The Evidence Act provides that one fact will be deemed to be relevant to another in the circumstances provided from section 5 to 55⁷ which are:

1. Res gestae

2. Conduct

3. Motive

4. Occasion

5. Cause or effect

6. Admission and confession

7. Conspiracy

8. Dying declaration

9. Evidence relating to character

The idea of the doctrine of res gestae has come up from the belief that certain evidence which are otherwise irrelevant may be admitted as an evidence due to the circumstances in which the statements were given. The doctrine of res gestae is generally used to admit a potentially inadmissible piece of evidence in order to provide context to an event.⁸ Hence, one of the important requirements for the applicability of the doctrine is that the said act or statement must not exist in complete 'factual isolation'.⁹

II. Origin of res gestae

Res Gestae' is a Latin term which can roughly be translated to 'things done'.¹⁰ The doctrine of res gestae came into view in the year 1693 in the case of Thompson v. Trevanion¹¹ where it was held that declarations accompanying an act are receivable in explanation thereof.¹² In the case of Ambrose v. Clendon,¹³ in the year 1736 evidence was again made admissible if it was naturally associated with the facts in issue. In Home Tooke’s trial, the doctrine was yet again in discussion for high treason trials.¹⁴ The doctrine was then used in the case of Hoare v. Allen.¹⁵ The major development of this doctrine began after Aveson v. Lord Kinnaird, in 1805.¹⁶ The exception to the rule of Hearsay evidence was firmly established in the infamous decision of Cockburn C.J. in R v. Bedingfield.¹⁷ This decision was later overruled in the case of Ratten v. R¹⁸ wherein it was stated that a res gestae statement may even be made immediately after the transaction.

III. Res gestae under indian law

All the cases that come before the court of law have some facts that have been made of certain acts and omissions. These acts and omissions connect with the nature of the transaction and its happenings, also tells the court about the quality of thr happenings in the transaction. The evidence is admitted accordingly.¹⁹ To state a fact may be difficult to comprehend if it takes place in isolation without reference to previous time places or surrounding situations. Other facts or circumstances may be so closely connected with the fact in issue as to be, in reality, part and parcel of the same transaction.²⁰ Under section 5²¹ of the Indian Evidence Act, 1872, evidence is admissible when it is related to the facts in issue or given of the facts in issue itself and no others. The term res gestae has been analyzed under section 6²² of tha act. Indian Evidence Act, 1872 was enacted before the decision in R v. Bedingfield.²³ The relevance of facts are determined under section 6 with the fact in issue which is a part of the happenings in the same transaction regardless whether they occurred at the same time and place.²⁴ The circuit to determine the relevancy of the facts flows from knowing whether the fact is a part of the same happenings that took place in the transaction. Relevancy has been described in section 6 to 11 and according to Sir James Stephen sections 6 to 11 “are by far the most important and original part of the Act as they affirm positively what facts may be proved, whereas the ²⁵English law assumes this to be known, and merely declares negatively that certain facts shall not be proved.”

IV. Judicial observations of res gestae in india

The courts in India have interpreted the doctrine of res gestae as only those statements given as evidence which are made simultaneously with the happenings in the transaction of the event or immediately after it, it excludes the interval of time sufficient for fabrication of these facts.

1. Rattan vs. State of H. P.²⁶

In this case the deceased housewife was shot dead at night in her sleep by a gun. The perpetrator was a retired army man who was charged with murder. When the appelant fired at the deceased the screams of the deceased were heard by the family members as well as by the woman who later died. The woman stated that she was shot by the appalent. The statement given by her was held admissible by the court as a part of the same transaction because the statement was the natural outcome of the incident.

2. Basanti vs. State of H.P.²⁷

In this case the appellant was seven years younger to her husband and was having an extra-marital affair with her servant. The now deceased husband knew about the affair and wanted to dissolve the marriage by divorce on the other hand the wife did not want to file for a divorce and wanted things to continue as they were. One day things got out of hand and the appellant and the servant conspired to murder the husband, they killed the husband by striking blows on his neck. An FIR was lodged by the relatives of the missing husband, the wife lied to the police by saying that her husband is out of station and will return back after 4-5 days. The body was recovered along with the appellant’s cloth. The Hon’ble Supreme Court held that the conduct of the appellant of misleading the villagers and the relatives is admissible as a part of the same transaction.

3. Rattan vs. Queen²⁸

This is an English case in which a lady called the police headquarters wanting to talk to a police officer, before she could be connected to a police officer the call was disconnected. The police traced to the place from where the phone call came and reached to the lady’s address only to find her dead. The lady’s husband said that he mistakenly fired at his wife and she died. The court convicted the husband for his wife’s murder and also held that the phone call made by the lady was admissible as it was a happening of the same transaction.

4. R vs. Foster²⁹

In this case, two people were walking on a road and they saw a car rushing at a very high speed at some distance from them, after sometime they heard a man screaming and they rushed to the place only to find a man severely injured. The injured man told the two people about the car’s number plate who hit him and he died after sometime. In the trial the court held that the deceased’s statement is admissible as evidence as it is the part of the same transaction.

5. R. vs. Bedingfiled³⁰

In this case, the doctrine of res gestae was not accepted by Justice Cookburn. A girl was living with her friend named Herry, Herry one day cut the throat of his friend, the girl ran to Herry’s aunt to show her what Herry had done is a case opposite from the above mentioned cases. In this case the doctrine of res gestae was not accepted by the court of law by saying that any statement made at the time of the transaction would have been admissible but any statement made after the incident was inadmissible and hence the statement made by the girl was inadmissible.

6. Babulal Choukhani v. Western India Theatres Ltd. And others³¹

In this case it was observed that the statement of provision of 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.”

7. Gentela Vijayavardhan Rao and another v. State of Andhra Pradesh³²

In this case there was a pretty big interval between the acts of arson and the judicial magistrate recording the statements of the victim. This interval therefore rules out the chance of the statement given by the victim to be admissible under the doctrine of res gestae as the Supreme Court of India held that the statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter, there was an interval in this case which was sufficient enough for fabrication and therefore it cannot be covered under the doctrine of res gestae.

8. State of Andhra Pradesh v. Panna Satyanarayan³³

In this case the accused killed his wife and daughter, the father of the deceased daughter stated that the father of the accused called him on the telephone and told him that his son had killed his daughter and his granddaughter. It was unknown if the information given by the accused’s father was at the time of the commission of the crime or immediately after the commission of the crime to form a part of the transaction or not. Hence the statement was admissible under section 6 of the Act.

9. Sukhar v. State of Uttar Pradesh³⁴

In this case the witness stated that upon hearing a gunshot he rushed to the scene of occurrence and he found a person lying on the ground severely injured who told him about the accused who shot him. The Supreme Court of India held the statement as an admissible evidence under section 6 as it was forming a part of the same transaction.

10. Bishna alias Bhiswadeb Mahato & Others v. State of West Bengal³⁵

The two witnesses rushed to the place of occurrence of the crime immediately after the incident took place. They found 3 victims, one lying dead, another lying unconsciously and the third victim who was the mother of the deceased who was also injured. The Injured and other witnesses told them about the entire incident in detail. It was held that the evidence given by these two witnesses hold a corroboratory value to the evidence produced by the prosecution and also corroborates with the allegations made in the FIR and hence it was covered under the doctrine of res gestae.

V. Test for applicability of res gestae

The most important aspect of doctrine of res gestae and the most important factor for a statement to be covered under the doctrine is that it should be a part of the same transaction. There are certain requirements for the facts to be a part of the same transaction which are as follows:

a. The facts must be with very close proximity of time with the transaction leaving no space for fabrication or concussion.

b. They must have either occured at the same place or places which are very close to each other.

c. There must be continuity in action and there must be a ‘community of purpose’

These requirements were established in the case of Atta Mohamad Khan vs. Crown³⁶ where The High Court of Lahore held that these requirements are essential for admitting the facts as a part of the same transaction. The term same transaction is not defined in the act however it literally means constitution of a single act this single act may be any crime, contract or wrong etc. The court of law can provide relief to a person only when he/she is able to establish a chain of all the facts to form an entire transaction.

Can F.I.R. be covered under the doctrine of Res Gestae?

One of the most important questions that have risen in the court of law when it comes to the doctrine of res gestae is whether an FIR can be treated as a part of the same transaction. This was finally answered in the case of Sawal Das vs. State of Bihar³⁷ in which the accused had a strained relationship with his wife and one day he and his parents entered the wife’s room, after sometime her scream and the words “save me” were heard by their neighbour who then immediately lodged an FIR. The police reached at the crime scene and found that the wife was burned to death by her husband secretly. In this case the court held that the FIR lodged by the neighbour was held admissible as it was forming the same transaction. However, the court also opined that FIR may have a corroboratory value in other cases and may be relevant but will not be admissible in all the cases and in the cases where there is a delay in lodging of the FIR leaving space for fabrication of the facts, the FIR will not be admissible.

When both Hearsay Evidence and Direct Evidence are Available

The doctrine of res gestae covers hearsay evidence and hence it is an exception to hearsay evidence. Hearsay evidence is mostly required in the cases where direct evidence is not available. However, there are cases where both direct and hearsay evidence are available and the question which arose was which evidence is more relevant in these types of cases. This question was resolved by the Hon’ble Supreme Court of India in the case J. D. Jain v/s Management of State Bank of India and Another³⁸ In this case the appellant was the cashier of state bank of India, he filed a withdrawal form of Rs. 500/- for Mr. Dinesh who wanted to withdraw Rs. 500/- from his account. After a few days, Mr. Dinesh went to the bank for a passbook entry and found out that it was showing a withdrawal of Rs. 1 500/- instead of Rs. 500/-. He filed a lawsuit and was not given an opportunity to even show the bank receipt of Rs. 500/- Mr. Dinesh approached the High Court through an appeal who decided the case in his favour, the appellant filed a special leave petition in the Hon’ble Supreme Court stating that the witness who gave evidence in his favour must also be kept in mind. The Hon’ble Supreme Court stated that when there is an availability of Direct Evidence (the receipt issued by the bank), the hearsay evidence holds no value in front of it and cannot be taken into consideration. The appellant was held liable.

VI. The scope of the doctrine of res gestae

Whenever there has been any problem or any questions relating to the interpretation of a law, the judiciary has always played an important role in resolving the issue. The doctrine of res gestae was meant to be applied on cases involving murder initially but as time passed the court applied this doctrine in other offences as well like offences relating to women and children like rape and domestic violence, matrimonial offences and many other offences.

In the case if Uttam Singh v The State of MP³⁹, the evidence given by a child was covered under section 6 of the act, in this case the child saw the accused killing his father with an axe and called his mother and sister for help and this evidence provided by the child as a statement was held admissible as it was forming a part of the same transaction.

In the case of Shyam Nandan Singh v. State of Bihar⁴⁰ the victim and his mother were stopped from harvesting their crops and when the victim tried to seek help his throat was cut by the accused. The mother told about the incident to the people who gathered and also lodged an FIR in the nearby police station. Before the mother could testify in court she passed away and the defense council tried to argue that the FIR lodged by the mother just holds corroborative value only and does not hold any substantial evidentiary value. The court however after considering all the facts came to a conclusion that the FIR is a relevant fact in this case and can be covered under section 6 of the Indian Evidence Act, 1872 but it also stated that under the general rule FIR is only supposed to be used as a corroborative evidence and therefore the court acquitted the accused.

VII. Conclusion

The rule of res gestae is used as the last resort and it ensures that no criminal walks freely due to the lack of evidence against them and so it was included in the Indian Evidence Act, 1872. Res gestae is considered to be vague and obscure and it has been criticised highly for it but every coin has two sides and so does the vagueness of this doctrine, the vagueness of this doctrine leaves a space for interpretation of the law by the courts and that is why it differs from case-to-case basis. The doctrine has been expanded widely in various directions after every single judicial decision. The legislative rationale behind this law is to provide justice for all and particularly in the cases where there is a lack of evidence. The application of this doctrine also has its own limitations as examining the circumstantial and hearsay evidence that should form a chain of events is a very hard task to do. The gap of time discards the entire statement and rules out its possibility to come under the doctrine of res gestae. Therefore, this section must be interpreted in a way where maximum justice can be provided to people particularly in the cases where there is an acute shortage of evidence.

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VIII. References

• Indian Evidence Act, 1872 available at: https://legislative.gov.in/sites/default/files/A1872-01.pdf
• HEARSAY RULE AND DOCTRINE OF RES GESTAE – AN ANALYTICAL STUDY WITH REFERENCE TO INDIAN EVIDENCE ACT, 1872 by Dr. Caesar Roy
• Nature and Scope of Doctrine of Res gestae: An Analytical Study by Dr. Vinod Kumar
• THOMPSON V. TREVANION 1693 Skin L.R. 402
• Black's Law Dictionary. 8th Ed. p. 1335.
• Ambrose v. Clendon Rep. Temp. Hardw. 267; Home Tooke’s trial 25 Howells State trials, 444 (1794); Hoare v. Allen H.T. 1801 N.P. 3 Esp. 276 .
• https://www.legalbites.in/doctrine-of-res-gestae/
• LawTeacher, The Doctrine of Res Gestae (November 2013) Available from: https://www.lawteacher.net/free-law-essays/common-law/the-doctrine-of-res-gestae-lawessays.php?vref=1
• The Treason Trials, 1794 by Alan Wharam
• HOARE v. ALLEN, 2 U.S. 102 (1789)
• Aveson v. Lord Kinnaird, (1805) 6 East 188
• Bedingfield, 14 Cox. Crim. Cas. at 342–43.
• Ratten v The Queen [1971] 3 All ER 801 at 806
• Dr. Singh Avtar (2010). Principles of the Law of Evidence (p. 42). Allahabad : Central Law Publications
• Sarkar S. (2007). Law of Evidence, 16th Edition (p. 203). Nagpur: Wadhwa and Company
• Rattan vs. State of H. P. AIR 1996, SC
• Basanti vs. State of H.P AIR 1987, SC, 1572
• Rattan vs. Queen 1972] A.C. 378, [1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18, [1971] 3 WLR 930
• R vs. Foster English Case, 1834.
• R. vs. Bedingfiled English Case, 1879.
• Babulal Choukhani v. Western India Theatres Ltd. And others AIR 1957 Cal 709
• Gentela Vijayavardhan Rao and another v. State of Andhra Pradesh AIR 1996 SC 2791
• State of Andhra Pradesh v. Panna Satyanarayan AIR 2000 SC 2138
• Sukhar v. State of Uttar Pradesh AIR 1999 SC 3883
• Bishna alias Bhiswadeb Mahato & Others v. State of West Bengal AIR 2006 SC 302
• Atta Mohamad Khan vs. Crown Cr. A., 1950, Lahore High Court
• Sawal Das vs. State of Bihar AIR 1974, SCR (3) 778
• J. D. Jain v/s Management of State Bank of India and Another AIR 1982, SC, 673
• Uttam Singh v The State of MP AIR 2002, M.P. High Court, 79
• Shyam Nandan Singh v. State of Bihar 1991 CRI LJ 3350.

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