THE FALLACY OF RES GESATE
INTRODUCTION
One of the most convoluted and intricate areas of criminal jurisprudence in India is the law on
evidence. Of the multiple doctrines and principles that constitute the law on evidence, res
gestae, also known as ‘excited utterances’, remains controversial in the existing legal parlance,
as it has been seen as incapable of a precise definition. Its application remains varied and
uneven. The Latin term literally translates into “things done” and refers to a statement or
declaration made in such close connection to a particular event that it would prove the existence
of the same. It includes facts which fall within the same transaction or series of events. As a
rule of law, hearsay evidence is inadmissible, however, res gestae is an exception and when
statements fall under res gestae, the court has allowed for their admission. The rationale behind
such a law is the immediacy and spontaneity of the words said, that there is almost no time for
any fabrication or concoction. The declaration must be contemporaneous and simultaneous to
the event which constitutes the offence. What falls under this principle is to be proved on a
case by case basis. The question would be whether the statements are proximate enough to
form a part of the same transaction or are too remote to fall under the same. Discussions in this
paper will focus on the concept of res gestae, its history and evolution. Furthermore, the paper
examines its application under the Indian Evidence Act and provides principled criticisms of
the same.
CONCEPT
The case of Vinodkumar Baderbhai Patel vs State of Gujarat1 gave an extensive definition for
res gestae – “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
1
Vinodkumar Baderbhai Patel vs State of Gujarat [1998] Gujarat High Court (Gujarat High Court).
declaration which grow out of the main fact, and contemporaneous with it and serve to
illustrate its character or these circumstance which are the automic and undersigned incidents
of a particular litigated act and are admissible when illustrative of such act.” For a better
understanding of what constitutes res gestae, it is imperative to understand what the word
‘transaction’ in Section 6 represents. Transaction can be seen to include a group of facts that
are closely connected to each other 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. It includes both
immediate cause and effect of an act or event, and also its collection of relevant circumstances,
the other necessary antecedents of its occurrence, connected with it, at a reasonable distance of
the time, pace and cause and effect. It may be described as a physical act, or a series of acts,
supplemented with the words said. Any and every fact which forms a part of the same
transaction which is under contention, is deemed be relevant to the facts in issue, even if such
fact isn’t actually in contention and if it weren’t a part of such transaction, would be seen as
mere hearsay evidence.2 A good working test of deciding what constitutes transaction is
proximity of time, unity or proximity of place, continuity of actions, and community of purpose
or design. But the main test must be continuity of action and community of purpose. 3 The
Indian law on res gestae, under Section 6, works within this defined framework of transaction
and the aforementioned conditions of what constitutes res gestae.
HISTORY
The exception of res gestae has its origins in the case of Thompson v. Trevanion4, in 1693,
where Lord Holt held that declarations accompanying an act are receivable in explanation
thereof. However, it was not until the 19th century, in 1805 in Aveson v. Lord Kinnaird5, when
the phrase was first used in its literal sense in connection with the rationale behind it. This
principle is based on the experience that, under certain external circumstances of physical
shock, a stress of nervous excitement may be produced which stills the reflective faculties and
removes their control, so that the utterance which then occurs is a spontaneous and sincere
response to the actual sensations and perceptions already produced by the external shock. Since
this utterance is made under the immediate and uncontrolled domination of the sensed, and
2
R v Ring A [1929] B 296
3
Ganesh v. R, A [1931] P 52
4
Thompson v. Trevanion [1693] Skin L.R. 402
5
Aveson v. Lord Kinnaird [1805] 6 East 188
during the brief period when considerations of self-interest could not have been brought fully
to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at
least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor
of the speaker’s belief as to the facts just observed by him; and may therefore be received as
testimony to those facts.6 The scope and applicability of the doctrine of res gestae gained
prominence in the 18th and 19th centuries. The controversial case of R v. Bedingfield7 held that
statements failing under res gestae cannot be made once the transaction is over. Cockburn C.J.
came to the conclusion that since the statement was made after the throat of the deceased had
been slit, it cannot be said to fall within the ambit of spontaneity and immediacy as required
under res gestae. Nonetheless, the case’s ruling was soon over turned in Ratten v. R8 where the
court held that statements made immediately after the transaction are included in res gestae.
The case attempted to reconcile opposing views of previous cases and contended that a test that
looks at whether the statement was part of the same transaction invites uncertainty. This could
be extremely difficult to establish and thus, the test must be based on spontaneity. Statements
made under conditions of pressure and stress would exclude the possibility of fabrication or
distortion. The liberal interpretation of the court’s decision led to a further widening of the
scope of doctrine of res gestae. The doctrine is extremely flexible and subjective in its
application and its definition, or lack thereof, has been a cause of worry due to the ambiguity.
INDIAN LAW
The evidentiary principle of res gestae is codified under Section 6 of the India Evidence Act
1872 (hereinafter IEA), which reads as - “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.”9 In understanding the nature of
the res gestae exception to hearsay and the manner in which it must be construed in individual
cases by the judiciary, it is important to rely repeatedly on the underlying consideration that is
often overlooked – the reliability of the statement.10 The exception of res gestae relies on the
fact that human acts are entwined with words and form a significant part of the act itself, which
6
John Henry Wigmore, WIGMORE ON EVIDENCE (3rd edn, LITTLE, BROWN AND COMPANY 1940).
7
R v. Bedingfield [1879] 14 Cox CC 341
8
Ratten v. R [1972] AC 378
9
Indian Evidence Act 1872.
10
Khan A, 'Doctrine Of Res Gestae, Concept And Scope' [2015] SSRN Electronic Journal
without such verbal utterances, could not be understood. The severance of the words form the
act would obstruct the discovery of truth. Indian courts have interpreted res gestae to include
those statements made contemporaneously with the event or immediately after it, but not ‘at
such interval of time’ as to allow fabrication.11 However, in the case of Bishna v. State of West
Bengal12, the witnesses reached the place of incidence immediately after the completion of the
crime, heard the entire account of turn of events from the deceased’s mother, and testified in
court which was accepted as valid under Section 6 res gestae. There a lack of coherence in the
application of the doctrine. The application is rather wavering, the judgements inconsistent,
that any attempt at reconciliation is rather difficult. The doctrine comes out as a risky rule of
evidence due its ambiguous and vague nature, consequently leading to confusion. Such
confusion leads to uncertainty as to the situations in which the principle can be applied.
Due to its intuitive appeal, which lies within the spontaneous nature of the principle, Indian
courts have further widened the scope and usage of res gestae. Initially, when the principle was
first formulated, its application was limited and restricted to cases of murder. However, over
the years, the courts have expanded its ambit to include cases of domestic abuse, assault, rape
and even child witnesses. Perhaps, at first, the expansion may seem like a boon. However, this
has only added to the already existing uncertainty. Cases of domestic abuse and assault involve
a scarring, frightening or rather disturbing event and hence, are often followed by spontaneous
or excited utterances. Since the victim can identify the assailant in such cases, courts tend to
accept and admit their testimonies as res gestae under Section 6. Cases of sexual assault and
rape often occur in isolated places, eliminating any eyewitnesses. The impact of the ghastly
and gruesome act may render the victim without a reaction and response. Therefore, courts
have allowed the statements of victims, as facts of the same transaction under Section 6, after
a day or two, if its proved that the victim was in fact still under duress and shock. Usually, if
there is an interval, the transaction is said to end, and statements or declarations made after
such transaction are inadmissible. In spite of this, cases where witnesses are children, the
judiciary has undertaken an even more liberal approach, allowing for a time gap. The
motivation for and the reasoning behind this is the difference in the way children and adults
cope with stress and shock. This exception has been expanded for children because they tend
to make statements after the transaction is over, for want of a safe opportunity and surrounding
11
Gentela Vijayavardhan Rao and another v State of Andhra Pradesh [1996] Supreme Court of India (Supreme
Court of India).
12
Bishna v State of West Bengal [2005] Supreme Court of India (Supreme Court of India)
to open up. Uttam Singh v. State of Madhya Pradesh13 is a case on this subject where the child
screamed the assailant’s name when he attacked the deceased father. The court held the
evidence admissible as res gestae and maintained that had the child not yelled or responded
immediately, but at a later stage, the same would have still been admissible under Section 6.
These cases highlight the inconsistency with which the principle is applied. The phrase res
gestae can be said to be harmful due to its ambiguous nature which invites confusion and thus,
creates uncertainty. Perhaps, the principle became popular due to its convenient obscurity.
CRITICISMS
Res gestae has been described as a term of protean significance and that there have been many
definitions of the term. No evidential problem is as shrouded in doubt and confusion as is res
gestae. The rule as to admissibility of evidence known as the res gestae rule has been declared
to be incapable of any precise definition and it has been applied to so many different and
unrelated situations, that it has been said that the difficulty of formulating a description of res
gestae which will serve all circumstances seems insurmountable.14 The hearsay rule is
excluded as a rule of evidence due to a concern of flawed or inaccurate judgements and the
subsequent impact. It is inadmissible as it is largely unreliable and more biased than probative.
Due to the exclusion of the concept of hearsay, exceptions to the same have developed such as
res gestae. This paper argues that the exception of res gestae should be removed or abolished
because of its rather arbitrary application, without any consideration for erroneous assumptions
underlying res gestae. The term ‘reliable’ or ‘honest’ can hardly be used to illustrate the
statements and declarations of the person under extreme levels of physical or emotional stress.
Proponents of res gestae believe that statements made immediately after the event possess a
higher degree of reliability since they are made in relation to the transaction and
instantaneously as opposed to non-transactional utterances which do not necessarily surround
the matter in question. Fabrication is minimal when the declaration is made with almost no
delay. These are based on a flawed assumption and belief that contemporaneity and spontaneity
add an element of reliability and authenticity. It is rather surprising to see that statements made
under shock or duress possess a higher degree of reliability. The case of Shiv Shanker vs. State
13
Uttam Singh v State of Madhya Pradesh [2002] Madhya Pradesh High Court (Madhya Pradesh High Court)
14
Julius Stone, 'Res Gesta Raegitata' 55 The Law Quarterly Review.
of Rajasthan15 allowed the statements of certain witnesses to fall under res gestae despite
contradictions in their testimonies. This questions the veracity of the statements and the court’s
judgement itself. Clearly, the doctrine’s application is highly varied and to some level,
problematic. The case ignored the ‘reliability’ aspect of the doctrine which was in fact negated
due to the contradictions. The principle is conveniently obscure, allowing for loopholes and
diverse interpretations as per the judge’s discretion.
The assumption of reliability is questionable and the fact that reliability allows for the inclusion
of the statements is a flaw in the exception. Notwithstanding the proximity between the incident
and the statement, there can be ample opportunity for a deliberate fabrication or even an
accidental incorrect statement. The only safeguard that exists to prevent such errors of
admission into evidence is the length of time between the perceived event and the statement.
According to McCormick, “while principle might seem to call for a limitation to exact
contemporaneity, some allowance must be made for the time needed for translating
observation into speech. Thus, the appropriate inquiry is whether sufficient time elapsed to
have permitted reflective thought.”16 The ‘sufficient time lapse’ argument allows for a
reflective thought which depicts the true response of the person, away from any stress or
malice. Judicial applications of res gestae have ignored the possibility that a traumatic event
may not only still reflective thought but may also hinder rational thought and cognitive
functioning.17 Courts tend to overlook the possible cognitive shortcomings brought out by a
stressful situation. The vast inconsistencies in the application have left people wondering as to
what testimony can be admitted or excluded. Lempert and Saltzburg agree with Wigmore's
belief that excitement may prevent self-serving statements; they argue, "excitement tends to
distort perception and may cloud memory. There is reason to believe that excited utterances
are, on balance, less reliable than much of the hearsay we refuse to admit. This may be
especially true when the declarant observes a startling, unfamiliar event.”18 Res gestae
utterances can hardly been seen as reliable. 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.19 What
15
Shiv Shanker vs. State of Rajasthan [2017] Rajasthan High Court (Rajasthan High Court)
16
Strong JK Broun, Mccormick On Evidence (4th edn, West Publishing Co 1992)
17
People v Miklejohn [1992]
18
Lempert RS Saltzburg, A MODERN APPROACH TO EVIDENCE (2nd edn, 1982)
19
Hutchins RD Slesinger, 'Some Observations On The Law Of Evidence. Memory' [1928] Harvard Law Review
<[Link]
rs%2F4545&utm_medium=PDF&utm_campaign=PDFCoverPages> accessed 27 October 2019
is required is for the scope of this exception to be defined precisely. The res gestae exceptions
derive from the fallacy that the mental effect of contemporaneity or excitement on a declarant
is an immediate heightening of perception and accurate recall, and an abatement of the
propensity to fabricate or misperceive an event. Modern scholars have almost universally
attacked these beliefs and the continued admission of res gestae casts doubt on judgments
which appear to rely heavily on such statements.20
20
Moorehead J, 'Compromising The Hearsay Rule: The Fallacy Of Res Gestae Reliability' [1995] Loyola of Los
Angeles Law Review
