Evidence

Law of evidence Doctrine of res gestae

SUBMITTED TO: Dr.sita rama rao FACULTY OF law of evidence

SUBMITTED BY: Preeti ranjana ROLL NO: 776, 4th semester(2012-2017)

AIMS AND OBJECTIVES: To present detailed study of doctrine of res gestae and its applicablity in Indian Legal System. RESEARCH METHODOLOGY:  Doctrinal or Non-Empirical Research: A Doctrinal Research means a research that has been carried out on legal propositions by way of analyzing the existing statutory provisions and cases by applying the reasoning power. This research work includes various Legal Reports and Legal Documents which are included in this research work. The Researcher has done Library Research.

SOURCES OF DATA: Secondary Sources: 1. Books 2. Internet Sites.

ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our teacher, Dr. Sita Rama Rao for his valuable suggestions towards the making of this project. Further to that, I would also like to express my gratitude towards our seniors who were a lot of help for the completion of this project. The contributions made by my classmates and friends are, definitely, worth mentioning. I would like to express my gratitude towards the library staff for their help also. Last, but far from the least, I would express my gratitude towards the Almighty for obvious reasons.

Contents 1.

Introduction

2. Section 6 of evidence act 3. Test for admission of evidence under doctrine 4. Conclusion

INTRODUCTION Res gestae translates from Latin as “things done,” and from that translation springs its conceptualization both as an independent hearsay exception and as a shorthand reference to intrinsic evidence of a singular transaction or event. S. 5 of Indian Evidence Act lays down that evidence may be given of fact in issue and relevant fact described under S. 6 to S.55. S. 6 states; “Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place of at different times and places” The principal of law embodied in S.6 is usually known as the rule of res gestae. The rules formulated in s. 6 is expounded and illustrated in S. 7, 8, 9 and14. Facts which may be proved, as part of res gestae, must be facts other than those in issue but must be connected with it. Though hearsay evidence is not admissible, but when it is res gestae it can be admissible in a court of law and may be reliable evidence. This section is used by the lawyers as a last resort so; there is not much case law on this section. The rationale behind this is the spontaneity and immediacy of such statement that there is hardly any time for concoction. So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. Res gestae includes facts which form part of same transaction. So, it is pertinent to examine what is transaction, when does it start and when does it ends. If any fact fails to link itself with the main transaction, it fails to be a res gestae and hence inadmissible. Res gestae include elements that fall outside the modern hearsay definition altogether, such as circumstantial evidence of state of mind, so-called “verbal acts,” verbal parts of acts, and certain non-verbal conduct. Because excited utterances are connected closely in time to the event and the excitement flows from the event, excited utterances were deemed part of the action (the “things done”) and hence admissible despite the hearsay rule. Res gestae also hired the hearsay exceptions for presentsense impressions, excited utterances, direct evidence of state of mind, and statements made to physicians.1

1

“Doctrine of Res Gestae”via http://engllb.blogspot.in/2013/01/doctrine-of-res-gestae_19.html

Section 6 of evidence act Res Gestae is an exception to the rule against Hearsay evidence. Res Gestae is based on the belief that because certain statements are made naturally, spontaneously and without deliberation during the course of an event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else (i.e. by the witness who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Statements which can be admitted into evidence as Res Gestae fall into three headings1. 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. (In some jurisdictions the Res Gestae exception has also been used to admit police sketches.) The principle underlying Sec.6, of the Indian Evidence Act, 1932 the following is sometimes termed as Res Gestae. This phrase means simply a transaction, “thing done”, “the subject matter”, “Res Gestae” of any case properly consists of that portion of actual world‟s happenings out of the right or liability, complained or asserted in the proceeding, necessarily, arises. Apparently the phrase is well established in the Law of Evidence. It is necessary therefore, to understand what it really means. That has been used in two senses. In the restricted sense it means world‟s happening out of which the right or liability in question arises. In wider sense it covers all the probative facts by which Res Gestae are reproduced to the tribunal where the direct evidence of witness or perception by the court is unattainable. In restricted meaning Res Gestae imports the conception of action by some person producing the effects for which the liability is sought to be enforced in action. To be clear, in the restricted sense “facts which constitute the Res Gestae must be such as so connected with the very transaction or fact under investigation as to constitute a part of it.” Res Gestae includes facts which form part of same transaction. So, it is pertinent to examine what is a transaction, when does it start and when does it ends. If any fact fails to link itself with the main transaction, it fails to be a Res Gestae and hence inadmissible. If any statement is made under the stress of excitement than such statement form part of the same transaction and is admissible before the court of law. The strength of sec. 6 lies in its vagueness. Each case in criminal law should be judged according to its own merit. When it is proved that the evidence forms part of the same transaction it is admissible under sec. 6 but whether it is reliable or not depends on the discretion of the Judge. Whatever act or series of acts constitute, or in point of time immediately accompany and terminate in. The principal act charged as an offence against the accused from its inception to its consummation and whatever may be said by either of the parties during the continuance of the transaction, with reference to it, including herein what may be said by the suffering party, though in absence of the accused during the continuance of the

action or the latter, form part of the principal transaction and may be given in evidence as part of Res Gestae of it. While, on the other hand, statements made by the complaining party, after all action on the part of wrong-doer has ceased and some time has elapsed do not form part of Res Gestae and should be excluded. 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.” It is to be noted that sections 7,8,15,32 52-55 and others of the Indian Evidence Act, 1932 also a part of this rule. 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. 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 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

2

See Eleanor Swift, The Hearsay Rule at Work: Has it Been Abolished De Facto by Judicial Decision?, 76 Minn. L. Rev. 473, 475 (1992). 3 Translation provided by Dr. Philip Pattenden, Dir. Of Studies in Classic, Peterhouse, Cambridge. 4 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”).

thus the courts believe that such statements carry a high degree of credibility5.

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 automatic and undersigned incidents of a particular litigated act and are admissible when illustrative of such act.”6

According to Black‟s Dictionary, res gestae meant “things done . . . things or things happened . . . word 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. . . . “7 .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 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.”8

In Babulal vs. W.I.T Ltd.,9 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”10Res 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 confusion11as 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.12 It would be little short of miraculous if one single 5

Barik Mita, Res Gestae, Accessed at http://www.legalserviceindia.com/article/l185Vinodkumar Baderbhai Patel vs State of Gujarat, 1998 INDLAW GUJ 22 7 Black’s Law Dictionary 1305 (6th ed. 1990) (citing McClory vs Schneider, 51 S.W.2d 738, 741 (Tex. Civ. pp.1932)). 8 Ibid. 9 1956 INDLAW CAL 105 10 Escorts Farms Ltd vs Commissioner Kumaon Division 2004 INDLAW SC 1157 11 Julius Stone, Res Gesta Raegitata, Vol. 55 The Law Quarterly Review, p. 66 6

12

31 A CJS 978

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.13 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.14 A good working test of deciding what transaction is; is proximity of time, unity or proximity of place, continuity of actions, and community of purpose or design.15But the main test must be continuity of action and community of purpose.16 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 action17. The expression suggests not necessarily proximity of time so much as continuity of action and purpose.18 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.19 For instance, a person is lying on the side of the road. He is injured and is shouting for help. A 13

Lund vs inhabitants &c. 9 Cush (Mass) 36, cited in Jones Ev s 358. R vs Ring A 1929 B 296. 15 Banga Ch vs Annada 35 CLJ 527 16 R vs Loclay 17 Bandela Nagaraju vs State of A.P 1983 INDLAW AP 75 18 Ganesh vs R, A 1931 P 52. 19 Amritala vs R 42 C 957. 14

passerby 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 passerby 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 cannot be made admissible under sec.6 of the Indian evidence act. Statement made after some times may be admissible under S. 157 as corroborative evidence but not under S. 6.20 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.21 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. 6.22 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.24Evidence which is connected with the principal subject matters of the charges as parts of one and the same transaction is relevant. Two distinct offences may be so inseparable connected that the proof of 20

Hari vs State of U.P 183 Cri LJ NOC 62(All) 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. 21

one necessarily involves proving the other, and in such a case on a prosecution for one, evidence proving it cannot be excluded because it also proves the other. Evidence as to other offences by the accused would be relevant and admissible if there is a nexus between the offence charged and the other offences or the two acts form part of the same transaction so as to fall within S.6. An entirely separate and disconnected offence is not admissible merely because it occurred at or about the same time as the res gestae of the offence on Trail.25 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 relevant26. 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 from 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.

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 25 26

Peoples vs Lane, 100 California 379. Annasuyamma vs. State of Karnataka, 2002 INDLAW KAR 99

substantially contemporaneous with the fact in issue and must tend to illustrate ad explain it. In Mahedra Pal vs. State27, the place where the murder took place was occupied by a number of persons apart from the deceased and the eyewitnesses. Those persons who came immediately after the murder and were informed by the eye-witnesses as to who the two accused has been, their deposition was judged to fall within the ambit of Section 6. Where on hearing sounds of gunshots from the house of the victim, his neighbours run to the spot within minutes and he told them the names of the assailants who had shot at him and his wife, his statement to them was relevant under this section 6.28

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. 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. 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. 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.

27 28

AIR 1955 All 328 Nathuni Yadav vs State of Bihar 1996 INDLAW SC 1562

TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE

The primary question which the judge must ask oneself is-can the possibility of concoction or distortion is disregarded? To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy him that the event was as unusual or starting or fanatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. In order for the statement to be sufficiently „spontaneous‟ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declaring was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. Quite apart from the time factor, there may be special feature in case, which relate to the possibility of concoction or distortion. As to the possibility of report on the facts narrated in the statement if only the ordinary fallibility of human recollection is relied on, this goes to weight to be attached to and not the admissibility of the statement and is therefore a matter of jury.29 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; ·

Was the identification relevant?

·

Was it spontaneous?

·

Was there an opportunity for concoction?

·

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, 30otherwise the statement is

29 30

R vs Pennel R vs West, unreported, CA

inadmissible. A statement may be spontaneous even though made in response to questioning.31 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 case32, a girl left home telling her mother that she was going to visit Wainwright. In Thomson case33, a girl said that she intended to perform an abortion on herself. Both statements were held to be inadmissible because the diclarent 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 issue34. but in Buckley case35, 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. CONTEMPORANITY AND SPONTANEITY 31

R vs Smartt 2004 EWCA Crim 2072, 26. 1875 13 Cox CC 171 33 1912 3 KB 19. 34 Rosmund Reay, Textbook Evidence, 3rd ed, 2001, p.137. 35 1873 13 Cox CC 293 32

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 reliable. 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.”36 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.37 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.38

CRITIQUE OF EXCITED UTTERANCE 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. [47]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 thirty36

Carroll vs Guffey, 156 N.E.2d 267, 270 Ill. App. Ct. 1959 See John Henry Wigmore, Evidence in Trials at the Common Law p. 1362 (James H. Chadbourn ed., 1978). 38 Ibid 37

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. Additionally, some psychological data indicate that, as a self-protective device, witnesses may initially suppress unpleasant memories, which only emerge in later, calmer times. It was noted hear that the central features of unpleasant events may be better remembered than neutral events, but such enhanced memory will occur after a lapse of time. Such data argue directly against application of the excited utterance exception, because the witness‟ ability to recall will not be at its best so near in time to the traumatic event. Professor Wigmore‟s description of stress as the guarantor of truthfulness may not be wellfounded. First, neither the duration of the declarant‟s stress nor a lapse in time between the event and the statement may determine whether a person can fabricate a remark.51 Moreover, some have argued that stress naturally leads to confusion and can result in an inaccurate recollection of events.52 noting that in a recent review of literature relating memory to stress, ten studies “concluded that arousal caused by an event either had no effect on subsequent recall or increased accuracy” while eleven other studies “demonstrated a negative effect of event arousal on memory”39 Psychological studies reach inconsistent results on the issue of whether stress is a guarantor of the truthfulness of a statement.40 Whereas real-life studies concerning traumatic events tend to show that these events are well preserved in memory, many simulation studies claim to show that traumatic events are poorly retained.” Further, if an observer does not accurately remember the events due to stress, he is likely to draw “inferences to fill in memory gaps,” increasing the likelihood of “reporting non facts.” Finally, the role an individual plays in a traumatic situation may also influence his or her memory. Although academics and psychologists may conflict on the true effect that traumatic events have on perception and memory, Supreme courts have routinely admitted statements made at a wide range of times after such events have occurred. These gaps in time are simply too great to meet the original rationale of the excited utterance exception or the contemporaneousness requirement of res gestae.

STAND OF JUDICIARY

39

C. Yuille & Judith L. Cutshall, A Case Study of Eyewitness Memory of a Crime, 71 J. Applied Psychol. 291, 299-300 (1986) 40

Sven-Ake Christianson, Emotional Stress and Eyewitness Memory: A Critical Review, 112 Psychol. Bull. 284 (1992), p.286

The test of admissibility on one hand relies on the exact contemporarily approach laid down in Bedingfield‟s case 41in contrast to the flexible and accommodating approach laid down in Foster‟s case42. It was precisely with a view to settle this ambiguity that the Privy Council in Ratten‟s case43entirely 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 emphasized 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.” 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 so.44There 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? The bystanders‟ declaration must relate only to that which came under their observation. 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. 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.45

Thus the principal of admissibility of declarations accompanying acts can be summarized as; 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 41

[1879] 14 Cox CC 341

42

57 [1834] 6 C. & P. 325

43

Ratten v. Reginam, 1971 INDLAW PC 6

44

Sudipto Sarkar, V.R Manohar, Law of Evidence, 16th ed 2007, p.209.

45

Khijiruddin vs R, 53 C 373.

thereto unless such facts are part of a transaction which is continuous. · The declaration must be substantially contempororaneous with the fact and not merely the narrative of a past. · 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. · 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.” 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. In order for the statement itself to be “the product of impulse, not reflection,” the courts have historically required a lack of time between the statement and the event. 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.46 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 6.47In State of Andhra Pradesh vs. Gentel Vijayavardhan Rao 48the appreciable interval between the act of carnage and magistrate‟s recording the statement recorded by the magistrate was found inadmissible under res gestae.

46

See Puleio, 474 N.E.2d at 1079-80.

47

Vasa Chandrasekhar Raov. Ponna Satyanarayana vs Ponna Satyanarayana 2000 INDLAW SC 326 1996 INDLAW SC 2361

48

In Bishna vs. State of West Bengal,49where 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. 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 any 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 B‟s death, that A had an intention of causing B‟s 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 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.

49

AIR 2006 SC 302 at p. 309 para 27

(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. 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. 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 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. 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 gun-shot 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 A‟s 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. Other cases : Statements made by a testator at the registration of the will are admissible. The Delhi High in Sunny v. State50 made a very important declatio which is as followsThe principle of law embodied in Section 6 of the Indian Evidence Act, 1872 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' that it 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 or fact admissible under Section 6 of the Indian Evidence Act, 1872 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 a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter.

50

2009 INDLAW Del. 3268

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. See Gentela Vijayavardhan Rao vs. State of Andhra Pradesh.51 In the decision reported as Sukhar vs. State of Uttar Pradesh 34 Section 6 of the Indian Evidence Act, 1872 was discussed as under:"Section 6 of the Indian Evidence Act, 1872 is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of Res Gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Indian Evidence Act, 1872 reads thus: "Under the present Exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the existing fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued."" The principles relatable to the rule of Res Gestae are four in number:"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 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. 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. In conspiracy, riot and 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, declarations are not evidence of the truth of the matters stated." It is thus very important, while applying Section 6 of the Indian Evidence Act, 1872, that by virtue of Section 6 of the Indian Evidence Act, 1872 declarations cannot be equated as evidence of the truth of the matters stated. 185th Report of the Law Commission of India—

51

AIR 1999 SC 3883

Law Commission in its report has observed that „(N) ..that certain well settled principles in the Act, such as the doctrine of Res Gestae, estoppel, res judicata etc. as enunciated in the Act were very well playing the part and thus need not be interfered with.‟It has further observed that – „D) Seeking to resolve the controversy under section 10 of the Act as to admission of evidence in case of conspiracy, the Commission suggested important changes. A new section was proposed. The 69th Report concluded that there was a significant difference in this regard between the Indian position and the English law but because of the decision of Mirza Akbar vs. Emperor, which was subsequently affirmed by the Supreme Court in various cases. But in another judgment, namely, Bhagwan Swaroop v. State of Maharashtra,, Subba Rao J as he then was, adhered to the wider meaning of sec. 10 and observed that there were five conditions for the applicability of sec. 10, of which one viz., item (iv), covered actions, declarations or writings by one co-conspirator “whether it was said, done or written before he entered the conspiracy or after he left it”. It was held that the words were “designedly used to give a wider scope”. Looking to these recommendations it can be said that the commission accepted the rule but wanted some improvements to be made. In India, the earliest case in which issue of admissibility of taperecorded conversation came for consideration is Rupchand v. Mahabir Prasad52, The court in this case though declined to treat tape-recorded conversation as writing within the meaning of section 3 (65) of the General Clauses Act but allowed the same to be used under section 155(3) of the Evidence Act as previous statement to shake the credit of witness. The Court held there is no rule of evidence, which prevents a party, who is endeavoring to shake the credit of a witness by use of former inconsistent statement, from deposing that while he was engaged in conversation with the witness, a tape recorder was in operation, or from producing the said tape recorder in support of the assertion that a certain statement was made in his presence. In S. Pratap Singh v. State of Punjab53, a five judges bench of Apex Court considered the issue and clearly propounded that tape recorded that tape recorded talks are admissible in evidence and simple fact that such type of evidence can be easily tampered which certainly could not be a ground to reject such evidence as inadmissible or refuse to consider it, because there are few documents and possibly no piece of evidence, which could not be tempered with. In this case the tape record of the conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation has taken place. The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra54, considered various aspects of the issue relating to admissibility of tape recoded conversation. This was a case relating to an offence under section 165-A of Indian Penal Code and at the instance of the Investigating Agency, the conversation between accused, who wanted to bribe, and complainant 52 53

54

AIR 1956 Punjab 173. AIR 1964 SC 72

AIR 1968 SC147

was tape recorded. The prosecution wanted to use this tape recorded conversation as evidence against accused and it was argued that the same is hit by section 162 CrPC as well as article 20(3) of the constitution. In this landmark decision, the court emphatically laid down in unequivocal terms that the process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles: a) The contemporaneous dialogue, which was tape recorded, formed part of res-gestae and is relevant and admissible under section 8 of the Indian Evidence Act. b) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. The point whether such evidence is primary and direct was dealt with by the Apex Court in N. Sri Rama Reddy v. V.V. Giri55, the court held that like any document the tape record itself was primary and direct evidence admissible of what has been said and picked up by the receiver. This view was reiterated by the Apex Court in R.K. Malkani v. State of Maharashtra,56. In this case the court ordained that when a court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. Referring to the proposition of law as laid down in Rama Reddy‟s case (Supra), a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, it could subject to the provisions of the Evidence Act, be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person‟s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established. Transcript: The importance of having a transcript of the tape-recorded conversation cannot be under estimated because the same ensures that the recording was not tampered subsequently. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Meht a the Apex Court considered the value and use of such transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm 55

AIR 1971 SC 1162.

56

AIR 1973 SC 157

what the tape record contained. The Apex Court also made it clear that such transcripts can be used by a witness to refresh his memory under section 159 of the Evidence Act and their contents can be brought on record by direct oral evidence in the manner prescribed by section 160 of Evidence Act. EXPANSION OF THIS DOCTRINE The excited utterance exception is often applied in murder cases, which obviously contain the requisite underlying shocking event. 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. 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. In Uttam Singh vs. State of Madhya Pradesh57the 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.

Hearsay and Res Gestae Hearsay is an out of court statement, made in court, to prove the truth of the matter asserted. In other words, hearsay is evidence of a statement that was made other than by a witness while 57

2002 INDLAW MP 79

testifying at the hearing in question and that is offered to prove the truth of the matter stated.58 Hearsay evidence is the statement deposed by a person who has not himself witnessed the happening of a transaction but has only heard of it from others. For example, where a person who has witnessed an accident can give evidence about it. But his wife or any other person who heard of the incidence from him cannot give evidence because such evidence amount to hearsay evidence. This evidence can be permitted provided it from part of the transaction of the accident. Here, the evidence is admissible as original evidence distinct from hearsay evidence since it forms a part of the same transaction. Thus the doctrine of res gestae constitutes as one of the exception to the rule of hearsay evidence is no evidence. Section 6 is an exception to the general rule whereunder, hearsay evidence becomes admissible but for the purpose of bringing such hearsay evidence within the ambit of sec6 what is required to be established is it must be almost contemporaneous with the acts and there should not be an interval to allow any fabrication.

58

“Res Gestate”, findlaw via http://criminal.findlaw.com/criminal-procedure/hearsayevidence.html#sthash.9E4AO093.dpuf accessed on 18.4.14

Conclusion Usually evidence is brought under res gestae when it cannot 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.

BIBLIOGRAPHY BOOKS: 1. Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2011 2. Monir, M. Law of Evidence. Delhi: Universal Law Publishing, 2006 3. Krishnamachari, V.Law of Evidence. Hyderabad: S.Georgia & Company, 2012 4. Lal, Batuk. The Law of Evidence. Allahabad: Central Law Agency, 2007 5. Myneni, S.R. The Law of Evidence. Asian Law House, 2008  o o o o o o o

Internet Sources http://remediallawdoctrines.blogspot.in/2011/12/res-gestae-principle-exception-to.html http://hawaiiopinions.blogspot.in/2008/02/res-gestae-die-hard-doctrine.html http://www.kostrolaw.com/NJFamilyIssues/2011/06/13/the-common-law-doctrine-of-res-gestae/ http://www.kostrolaw.com/NJFamilyIssues/2011/06/13/the-common-law-doctrine-of-res-gestae/ http://www.euppublishing.com/doi/abs/10.3366/elr.2007.11.3.379 http://www.legalserviceindia.com/article/l185-Res-Gestae.html http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299111