INTRODUCTION

This paper invites itself to an age old issue that has gathered sufficient
confusion both in its land of origin and abroad and thus now requires a
delicate understanding in the backdrop of the Indian Evidence Act,
18721. This issue is that of the res gestae exception to the hearsay rule.
In essence, as summed up by Murphy 2, res gestae indicates that there are
many facts or events of which accompanying and contemporaneous
statements are an integral part, and if such fact or event were to be
narrated sans reference to these statements, it would be ambiguous and
misleading. As a result, it has been found necessary that despite the fact
that these statements would actually amount to hearsay and therefore be
inadmissible, an exception be carved out so that they may actually be
taken into consideration by judge and jury.
The origins of the res gestae principle appear to be ambiguous, as is
evident from the debate between Phipson and Sibley in the early part of
the last century. In a series of articles in the Law Quarterly Review of
1903 and 1904, the two brought out the initial points of issue regarding
the doctrine, and these continue to be the focus of much discussion.
However, it seems by all accounts that the earliest mention of the
doctrine was actually in its singular form res gesta in Horne Tookes
trial 3 where the counsel for the prosecution, in referring to a certain
letter, sought for it to be accepted by the court as part of the res gesta.
Phipson would have preferred for only the singular form to be retained,
1

Hereinafter the Act.

Peter Murphy, Murphy on Evidence, Blackstone Press Ltd, London,

(1995)
2

as, according to him, the interpretation of the plural form led to the
doctrine not being restricted to the transaction involving the main fact
alone, but also to the surrounding circumstances of any central fact.[6]
It would seem that this distinction had weighed with Sir James Stephen
when the Indian Act was enacted three decades earlier.
The veiled adoption of this principle, without expressly alluding to the
disputed phrase, is found mainly in Section 6 of the Act, while
additionally, Sections 7,8,9 and 14 remind us of the doctrine as
recognized at common law. Departing partially from the strict rule of
contemporaneity, Section 6 states that those facts, though not in issue,
being so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and
place or at different times and places. This makes it clear that it is
imperative that as far as the sub-continent is concerned, the fact forms a
part of the same transaction as the fact in issue.
In the background of these original distinctions, this paper aims to
analyse the position of res gestae in the United Kingdom and in India,
and to understand the evolution of the principle, comparing and
contrasting the two legal regimes.
The object of this paper is also to see to what extent res gestae exists in
Indian Law and whether or not Section 6 of the Indian Evidence
Act,1872 represents it in whole. And in the light of this compare the two
enactments under the Common Law and Indian law respectively.

25 How.St.Tr.440 (1794) cf. Sidney L. Phipson, The Doctrine of

Res Gestae in the Law of Evidence, 19 LQR 435 (1903) at p.436
3

POSITION OF RES GESTAE AT COMMON

LAW
Res Gestae is a term whose precise doctrinal significance at common
law has remained unclear, and there have been repeated calls for deleting
the phrase from legal nomenclature4. This is mainly because the term
itself is not definitive and thus tells us nothing about the rules of
evidence concerning matters that form part of the transaction. The
rationale of this hearsay exception is that such statements may have
great probative value in establishing or understanding the events in
question, and that the emotional involvement of the speaker in the event
provides a guarantee of sincerity.
The res gestae principle can be admitted under four accepted categories
of common law. These are: (1) Spontaneous exclamations, (2)
Contemporaneous statements of physical sensation, (3) Statements
accompanying and explaining an act, and (4) Statements as to the
declarants state of mind or emotion.5
Spontaneous statements: the excited utterance rule:

M.Monir, Principles and Digest of the Law of Evidence, University

Book Agency, 12th edn, (1999)
4

David Ormerod, Redundant Res Gestae? Criminal Law

Review, 1998, at 302.
5

The criteria for the admissibility of such statements were established by

the leading cases of Ratten v. R6and R v. Andrews7. In Rattens case, the
appellant was charged with the murder of his wife with a shotgun
wound. The prosecution sought to introduce the evidence of the
individual who had telephoned the residence on receipt of a report that
an ambulance had been called to the residence. There was some doubt as
to the time of this call and the appellants account of what had occurred
immediately after the shooting. While stating that it was impossible to
lay down a precise rule as to the nature of proof required, the appeal was
dismissed on the ground that this evidence was exempted from the rule
against hearsay and was therefore admissible as evidence of a fact
relevant to the issue. The fact that the deceased woman had made an
agitated call a few minutes prior to her death suggested that res gestae as
an exception to the rule against hearsay would definitely apply. The
proper test laid down in this case was whether the statement was so
clearly made in circumstances of spontaneity and involvement in the
event that the possibility of concoction or fabrication would be
disregarded. Where the speaker has had time for reflection on the event
so as to be able to concoct or construct his account of it, the statement
should be disregarded.
Here, the Privy Council speaking through Lord Wilberforce captured the
essence of the exception of hearsay stating:
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
6
7

(1972) A.C. 378

(1987) All ER 513
4

possibility of concoction or distortion to the advantage of the maker or

disadvantage of the accused.
The importance of the twin tests of proximity and contemporaneity were
further emphasised in Andrews case where the statement of the victim of
a stabbing as to the identity of his two assailants was deemed admissible
as it was spontaneous with no scope for concoction. Here the House of
Lords also overruled the unfortunate decision in R v. Bedingfield 8 where
the statement of the victim indicating the identity her assailant was not
admitted by Cockburn CJ only because the criminal act charged with
had
ceased.
Following
Lord
Wilberforce,
the
dictum
in Bedingfield could no longer be good law and would extend to include
occasions where the act had been completed.
Contemporaneous statements of physical sensation:
Under the second principle res gestae admits statements in which a
person asserts his contemporaneous physical sensations, such as sickness
or pain. Now these statements must be confined to contemporaneous
symptoms and nothing in the nature of a narrative is admissible as to
who caused them, or how they were caused. This idea was first stated in
the case of Aveson v. Lord Kinnaird where the issue was whether the
plaintiffs wife was in good health at the time of taking out a life
insurance policy. It was held that the evidence of a friend who had
visited the wife around that time and heard her making statements about
her ill health over the last ten days was admissible. This shows that since
health and bodily sensations are very often not transient events, but
extend over a period of time, thus the rule of contemporaneity cannot be
very strict.
8

(1879) 14 Cox CC 341

5

The fact that a little latitude must be allowed has also been accepted in
the case of R v. Black9 where it was stated that contemporaneous cannot
be confined to feelings experienced at the actual moment while the
patient is speaking. It must include such a statement as yesterday I had
a pain after meals. It can be seen from the above that at least as far as
the physical state is concerned the position in the U.K. has shown a
departure from the strict and narrow interpretation of contemporaneity
Statements accompanying and explaining relevant facts:
Where the doing of an act is a fact in issue, then a statement by the actor
which accompanies and explains the act is admissible as evidence of
what is stated. Such statements must be so intertwined with the act to
become part of res gestae. These must be contemporaneous with the act
and made by a person performing the relevant act. 10 Also, the act must
be independently relevant. Thus in the case of R v. Kearley11 it was seen
that hearsay evidence by police officers receiving calls at an alleged
drug dealers house, of requests for drugs, were not admissible on the
ground that the telephone calls were not independently relevant.
This principle is substantially what is exemplified in S.6 of the Indian
Evidence Act. The common law tradition has been followed in India and
a substantial catena of Indian case law have applied the principles of the
United Kingdom. The following chapter will deal with this aspect in
detail.

(1922) 16 Cr App Rep 118,

10Howe
11

v. Malkin, (1878) 40 LT 196

(1992) 2 All ER 345

6

Declarations of state of mind:

The rationale behind this is that no better evidence of a persons past
state of mind is available than the persons own statements at the time,
and such statements may be the only evidence if there are no other
actions from which inferences can be drawn. Though it seems clear that
such statements amount to hearsay (either an assertion-based or a
declarant-based definition), yet questions of intention, knowledge,
emotion, belief and opinion, can all be proved in this manner.
The important fact that must be kept in mind in such an instance is that
only where the state of mind of the declarant is of direct and
immediate relevance that such statements could be admissible.
In R v. Blastland12 the accused was charged with the murder of a young
boy with whom he admitted to having homosexual relations early on the
evening of the boys death, though he denied any role in the murder. He
claimed that another known homosexual was lurking nearby and had an
opportunity to commit the offence. The accused wished to adduce
evidence of this third party having made statements indicating his
knowledge of the murder before it became public. The House of Lords
held this evidence inadmissible because there would be a number of
innocent explanations for the acquisition of that knowledge.
The above brings out the most controversial aspect of the res
gestae exception. If the third party had made a statement of confession,
that would also be inadmissible as it would amount to hearsay. It would
have been safe for their lordships to have allowed the above evidence to
be admitted and then left it to the prosecution to adduce the alternative

12

[1985] 2 All ER 1095

7

innocent explanations and thereby point the jury towards disregarding

any aspersion against the third party.
It is clear that while the above four categories seem to exhaustively
encompass the doctrine of res gestae in the United Kingdom, and that
spontaneity and contemporaneity are important aspects of the same, it
may not be imperative that they are integral parts of the same transaction
out of which the fact in issue arises. This is, however, the position of the
statute in India. A detailed analysis follows in the next chapter.

RES GESTAE IN INDIA

Sir James Stephen is often referred to as the founder of the Indian
Evidence Act, and as a result, the Act contains a number of similarities
with common law while at the same time standing as a unique
enactment. The idea of res gestae in Indian law appears to be narrower
because this term does not find mention in the statute but has been
interpreted under Section 6 of the Act. There has also been some
interpretation of the principle under other sections of the Act, which will
be discussed below.
Section 6 reads as follows:
S.6. Relevancy of facts forming part of same transaction
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.
Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said

or done by A or B or the by-standers at the beating, or so shortly before
or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the Government of India by
taking part in an armed insurrection in which property is destroyed,
troops are attacked and gaols are broken open. The occurrence of these
facts is relevant, as forming part of the general transaction, though A
may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a
correspondence. Letters between the parties relating to the subject out of
which the libel arose, and forming part of the correspondence in which it
is contained, are relevant facts, though they do not contain the libel
itself.
(d) The question is, whether certain goods ordered from B were
delivered to A. The goods were delivered to several intermediate persons
successively. Each delivery is a relevant fact.
The section describes the way in which facts though not in issue are so
related to each other so as to form part of the same transaction or the
principal act.13 This basically means that all things done or words spoken
in the course of a transaction, and though not forming a part of the fact
in issue, would be enough to be corroborative factors to the relevant
facts.
Ingredients of Section 6:

V.R.Manohar, Sarkars Law of Evidence, Wadhwa and Company,

Nagpur, 15th edn, (2000)
13

In a slight contrast to the traditional notions of res gestae discussed

above, the ingredients of Section 6 are as follows:
1. The facts must be connected with the fact in issue.
2. The facts must form a part of the same transaction.
3. It is not important that the facts occurred at the same time and
place or at different times or places. 14 The one factor that makes
itself evident in the background of the position at common law is
that contemporaneity is not an integral aspect of the principle
enunciated in Section 6, which immediately places it at odds with
Lord Wilberforces famous enunciation.
Transaction:
Transaction has been defined as a group of facts so connected together
as to be referred to by a single name, as a crime, contract, a wrong or
any other subject of enquiry which may be in issue. 15 A transaction
consists both of physical acts and the words accompanying such
physical acts, whether spoken by the person doing such acts, the person
to whom they were done or by any other person. Such words are
admissible in evidence as parts of transaction. The first illustration to the
provision gives us a better understanding of this issue. A is accused of
the murder of B by beating him. Whatever was said or done by A or B or
the bystanders at the beating, or shortly before or after it thus causing the
Y.V.Chandrachud and V.R.Manohar, Ratanlal & Dhirajlal:The Law of
Evidence, Wadhwa and Company, Nagpur, 20th edn, (2000)
14

Sir James Stephen, Digest of the Law of Evidence, cf.

Vepa.P.Sarathi, Law of Evidence, Eastern Book Company, Lucknow,
(1989
15

10

circumstances to be so intertwined with each other by proximity of time

and space will be admissible as it forms part of the same transaction.
This was directly applied in a case where the accused was recognized by
the deceased who shouted that the accused was standing before her with
a gun just before the fatal shots were fired at her.16However what must
also be noted in this section is that the remarks made by persons other
than the eye-witnesses will be hearsay because they have only picked up
the news from others. Therefore expressions like by-standers can only
mean persons who are present at the time of the occurrence and not
those who gather on the spot after the event. Sections 220 and 298 of the
Code of Criminal Procedure, 1973 use the term same transaction.
While dealing with the expression it was held that it includes immediate
cause and effect of an act or an event and is so connected with all the
relevant circumstances, like reasonable distance of time and space. The
expression denotes two facts occurring at the same time and place,
though they may not have any connection between them, but may be
parts of the same transaction.Cunningham is of the view that this
provision in dealing with circumstantial and indirect evidence merely
lays down what is illustrated and explained in Sections 7,8 and 9, and
hence, the judge must decide in view of the circumstances of each case.
In a simple case, the transaction lies within the narrow limits of time,
while in other cases it may be spread over a long period.
It forms part of relevant facts:
Facts which may be proved as part of res gestae, must be facts other than
those in issues. These facts must form part of that very transaction and
be thus connected with the facts in issue.17
16

Rattan Singh v. State of H.P., (1997) 4 SCC 161

17

Thakkar Dass v. State of H.P., 1992 Cal LJ 2415

11

Contemporaneous facts:
A glance at illustration (i) to the section would suggest that it is
necessary that the statement must have been made contemporaneous
with the acts which constitute the offence. However, an examination of
the main provision makes it clear that contemporaneity is not an
imperative as far as Section 6 is concerned, but would be so only in
instances that fall within the compass of Illustration (i). In fact, on the
contrary, the section makes it clear that the facts would be relevant even
if they occurred at different times and places. Generally, the rule in India
seems to be that if the statement is made to any authority who is
competent to investigate the fact, it is admissible irrespective of a long
lapse of time, but if it is made to a person not having that authority, it
should be closer to the time of occurrence, though a gap of a few days,
depending on the circumstances of the case would not make it
inadmissible.
However, a clear departure from the above is found in Gentela
Vijayavardan Rao v. State of A.P18, where the two appellants were tried
for setting on fire a bus in which 23 passengers were killed and many
others injured. The judicial magistrate recorded the statements of the
victims and these were sought to be admitted by the prosecution. It was
held that as there was some appreciable interval between the acts of
incendiarism and the statements being recorded, these statements could
not acquire legitimacy under S.6. Clearly, the maker of this statement
was not dying at the time and thus the evidence could not be admitted as
a dying declaration either.

18

(1996) 6 SCC 241

12

The important fact that must be noted in this case is that the Indian
courts hastily followed the English judgments of R v. Lillyman,19 as far
as the interval of time was concerned, and Teper v. R,20as regards the
general ambit of the res gestae exception. The court made it clear that
this correct legal position stated above needed no further elucidation.
Inexplicably, the apex court seems to have taken the ambit of res
gestae at common law and the scope of Section 6 as synonymous, and
therefore applied the test of contemporaneity, wholly disregarding the
latter part of the explicit provision.
By obvious contrast, the High Court of Calcutta had occasion to deal
with a case where the injured narrated the incident to prosecution
witnesses when the knife was stuck on his back. Without once averring
to the doubtful test of contemporaneity, the Court held that as the
statements were proximate to the offence and similar to Illustration (i),
the testimony of the prosecution witnesses based on the said narration
could not be termed as hearsay but as part of res gestae under Section
6.21 In Shyam Nandan Singh v. State of Bihar22, it was held that whatever
is said by the informant in the First Information Report or to other
witnesses after the occurrence would form part of the same transaction
and hence be admissible.
Other Provisions
19

(1896) 2 QB 167

20

(1952) 2 All ER 447

21

Rabindra Nath Moorty Naidu v. State of W.B., 1996 Cri LJ 2928

22

1991 Cr LJ 3350 cf. Supra n.27 at p.162.

13

As stated above, Sections 7,8,9 and 14 of the Act extend Section 6 and
thereby also form a part of res gestae. While Section 14 is equivalent to
the English categories of statements directed at the physical or mental
state of a person, Sections 7,8 and 9 make relevant those facts that are
evidence of the cause, effect, motive, conduct, occurrence and presence
of the fact in issue. Overwhelming numbers of Indian authorities have
restricted their understanding of res gestae to Section 6, and even the
Supreme Court has only occasionally applied the doctrine while
construing Section 8 of the Act. In Basanti v. State of H.P 23, the conduct
of the accused of falsely telling the villagers that the deceased had gone
away from the village and not returned was held to be admissible under
Section 8 as part of the res gestae. Again in Ganeshlal v. State of
Maharashtra24, which involved the burning of a bride, the FIR was
lodged by a person stating that he had received the information from the
accused himself. It was held that this admission was clearly res
gestae under Section 8 as it also conveyed the indifferent and hardhearted conduct of the appellant.
The above discussion would suggest that there is some variance between
the concept of res gestae as originally enunciated and developed in the
United Kingdom, and that which is interpreted in the context of the
Indian Evidence Act. It is possible to conclude that it is wholly
erroneous and unnecessary to ever use that doctrine in the Indian
context, but now that such a tradition has come into existence, the
following chapter will make a comparative analysis of the same.

A DUBIOUS DOCTRINE COMPARED

23

(1987) 3 SCC 227.

24 (1992)

3 SCC 106.
14

While recalling the interpretations given to the doctrine of res gestae in

the earlier part of this paper, it would be advisable to keep the following
remark by Lord Tomlin in mind:
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 cloak for a variety of cases to which no formula of precision
can be applied.25
Contemporaneity?
It is this ambiguous doctrine that the Indian courts have zealously
attempted to adopt and interpret although it had the luxury of a well
drafted statute at its disposal which made no use of these words. It
cannot be denied that as a consequence, the scheme of relevancy of facts
may have acquired a tinge that was not originally intended but clearly
exists now. Probably the most prominent such influence is that of the test
of contemporaneity being applied. As has been pointed out in the
previous chapter, Section 6 makes no indication of such facts being
contemporary or immediately proximate in time. This is also the case
with Sections 7,8,9 and 14. Clear indications of the fact that the
provisions do not insist on such contemporaneity are seen in the
Illustrations to the Sections themselves. To name but a few, Illustrations
(b) and (c) to Section 6, (a) and (c) to Section 7, (f) and (g) to Section 8,
(b) to Section 9 and (c), (e) and (j) to Section 14.
Judge and Jury

25

Homes v. Newman, [1931]

15

It must be remembered that one of the glaring differences in the courts

system of the two countries is the fact that in the United Kingdom, a jury
assesses the evidence on directions by the judge while in India, the judge
himself decides the admissibility of the evidence in accordance with the
strictest principles of law. One of the concessions allowed to the accused
in the United Kingdom is that evidence of past acts or even convictions
of a similar nature are not admissible, while in India, the illustrations to
Section 14 make them relevant. This is because the judge is not expected
to react as a layman does, and hence is presumed not to be influenced by
the past offences of the defendant, while the jury would most likely be
so influenced, and therefore, they are not afforded an opportunity to
assess such evidence.
As Sarathi observes, the judge decides the relevancy of the fact based on
previous decisions and his own experiences, and as shown
by Bedingfields case, there can be an honest difference of opinion.It is
unfortunate however, that this judicial freedom had allowed a dictum to
prevail for over a hundred years, during which many undeserving
acquittals would have resulted.
Proving of facts
The fundamental principle of English law is that everything is
admissible subject to the exceptions that (a) the best evidence available
must be led, and (b) hearsay evidence is excluded (subject to
exceptions). English law therefore declares negatively that certain facts
shall not be proved, while Sections 6 to 11 of the Indian Evidence Act
declare specifically what facts must be proved. This obviously makes the
task of the prosecution much harder in India, and may be one of the
reasons to explain the great variance in conviction rates in the two
countries.
16

Evidence of truth
As a general rule, in England, statements which become admissible as
part of the transaction are not, in general, evidence of the truth of the
matter stated. However, under the Act, such statements may be treated as
substantive evidence, i.e., as evidence of the truth of the matter stated, in
as much as the section does not in any way limit their relevance to any
particular purpose.
While remarks have been brought out on the comparative nature of
the res gestae doctrine and its treatment, one would notice a few areas of
similarity that deserve attention. Firstly, while the rules of evidence
apply equally to civil and criminal cases, virtually every single case that
has been the focus of this doctrine has been of a criminal nature, whether
in England or in India. This probably has to do with the higher standard
of proof in these cases, which invite substantial debate at each and every
juncture while in civil cases, procedural and substantive issues merit
equal discussion, rarely calling upon any novel innovation in the realm
of evidence law.
Secondly, the res gestae doctrine as an exception to the rule against
hearsay finds close parallel with the other exception that of the dying
declaration, as laid down in Section 32(1) of the Act. Many instances in
both countries have found the development of the res gestae doctrine
owing much to cases where a statement made by a dying person could
not properly be admitted except by way of being a part of the res gestae.
In some cases, where death has not eventually resulted, the courts have
held that the statement that was recorded would anyway be admissible
via Section 6.
The common law tradition is still very strong in India even today, and
while there are areas which are clearly demarcated permitting the
17

application of English law, it is clear from the express provisions of the

Indian Evidence Act that the doctrine of res gestae ought not to find any
place in Indian law. This is especially important when even English law
has been attempting to rid itself of this confusing and clearly very
distinct doctrine.

CONCLUSION
Thus so far we have seen how the doctrine of res gestae has been
applied in both Indian and English law. However this concept as
observed by many commentators is a very confusing one.
18

Most of all the issue of contemporaneity has been difficult to

accommodate and often the courts have been very vague about this. As
we have discussed previously, this element has been wrongly followed
in Indian law, following Bedingfields case.
Bedingfield wrongly followed.
Res gestae even redundant in England Ormerod
Julius Stone conclusion
Doctrine to be rid from both systems very misleading

BIBLIOGRAPHY
1. Peter Murphy, Murphy on Evidence, Blackstone Press Ltd, London, (1995).

19

2. V.R.Manohar, Sarkars Law of Evidence, Wadhwa and Company, Nagpur,

15th edn, (2000).
3. Ratanlal & Dhirajlal:The Law of Evidence, Wadhwa and Company, Nagpur,
20th edn, (2000).
4. Vepa.P.Sarathi, Law of Evidence, Eastern Book Company, Lucknow, (1989).

WEBIOGRAPHY
1.
2.
3.
4.

http://www.lawcom.govt.nz
http://www.lareau-legal.ca
http://www.lawcom.gov.uk
www.academia.edu

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