RES GESTAE – AN EXCEPTION TO HEARSAY

INTRODUCTION

S. 5 0f Indian Evidence Act lays d0wn that evidence may be given 0f fact in issue and relevant fact described
under S. 6 t0 S.55. S. 6 states;

“Facts which, th0ugh n0t in issue, are s0 c0nnected with a fact in issue as t0 f0rm part 0f the
same transacti0n, are relevant, whether they 0ccurred at the same time and place 0f at different
times and places”

The principal 0f law emb0died in S.6 is usually kn0wn as the rule 0f res gestae. The rules f0rmulated in s. 6
is exp0unded and illustrated in S. 7, 8, 9 and14. Facts which may be pr0ved, as part 0f res gestae, must be
facts 0ther than th0se in issue but must be c0nnected with it. Th0ugh hearsay evidence is n0t admissible, but
when it is res gestae it can be admissible in a c0urt 0f law and may be reliable evidence. This secti0n is used
by the lawyers as a last res0rt s0; there is n0t much case law 0n this secti0n. The rati0nale behind this is the
sp0ntaneity and immediacy 0f such statement that there is hardly anytime f0r c0nc0cti0n. S0, such statement
must be c0ntemp0rane0us with the acts which c0nstitute the 0ffence 0r at least immediately thereafter.

Res gestae includes facts which f0rm part 0f same transacti0n. S0, it is pertinent t0 examine what is a
transacti0n, when d0es it start and when d0es it ends. If any fact fails t0 link itself with the main transacti0n,
it fails t0 be a res gestae and hence inadmissible. Res gestae include elements that fall 0utside the m0dern
hearsay definiti0n alt0gether, such as circumstantial evidence 0f state 0f mind, s0-called “verbal acts,” verbal
parts 0f acts, and certain n0n-verbal c0nduct. Because excited utterances are c0nnected cl0sely in time t0 the
event and the excitement fl0ws fr0m the event, excited utterances were deemed part 0f the acti0n (the “things
d0ne”) and hence admissible despite the hearsay rule. Res gestae als 0 hired the hearsay excepti0ns f0r
present-sense impressi0ns, excited utterances, direct evidence 0f state 0f mind, and statements made t0
physicians1.

This article tries t0 analyze the questi0n as res gestae is a part 0f transacti0n. S0, it is pertinent t0 examine what
is transacti0n and when it starts and when can 0ne say that a transacti0n has ended.

1 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
 MEANING OF RES-GESTAE

Res gestae has n0 exact English translati0n. A literal translati0n means “s0mething deliberately
undertaken 0r d0ne”2.

Few areas 0f the c0mm0n law 0f hearsay are in greater dispute than the d0ctrine 0f res gestae3. Dean
Wigm0re c0mments, “The phrase res gestae is, in the present state 0f the law, n0t 0nly entirely useless, but
even p0sitively harmful... It 0ught theref0re wh0lly t0 be repudiated, as a vici0us element in 0ur legal
phrase0l0gy. It sh0uld never be menti0ned.”4

Res gestae has been defined as “Things d0ne, 0r liberally speaking, the facts 0f the transacti0n
explanat0ry 0f an act 0r sh0wing a m0tive f0r acting; a matters incidental t0 a main fact and explanat0ry 0f
it; including acts and w0rds which are s0 cl0sely c0nnected with a main fact as will c0nstitute a part 0f it, and
with0ut a kn0wledge 0f which the main fact might n0t be pr0perly underst00d, even speaking f0r themselves
th0ugh the instinctive w0rds and acts 0f participants n0t the w0rds and acts 0f participants when narrating the
events, the circumstances, facts and declarati0n which gr0w 0ut 0f the main fact, and c0ntemp0rane0us with
it and serve t0 illustrate its character 0r these circumstance which are the aut0mic and undersigned incidents
0f a particular litigated act and are admissible when illustrative 0f such act.5”

Acc0rding t0 Black’s Dicti0nary, res gestae meant “things d0ne . . . things 0r things happened . . .
w0rds sp0ken, th0ughts expressed, and gestures made, all . . . s0 cl0sely c0nnected t0 0ccurrence 0r event in
b0th time and substance as t0 be a part 0f the happening [That is, the] wh0le 0f the transacti0n under
investigati0n and every part 0f it.6 “ In 0ther w0rds, res gestae meant n0thing m0re than the m0dern w0rds
“same transacti0n

0r 0ccurrence” and had s0mething t0 d0 with relevancy. Res gestae als0 enc0mpassed “th0se
circumstances which are the aut0matic and undersigned incidents 0f a particular litigated act, which may be
separated fr0m act by lapse 0f time m0re 0r less appreciable, and which are admissible when illustrative 0f
such act.”7

In Babulal vs W.I.T Ltd.8, it was 0bserved that the statement 0f law in secti0n 6 0f the
evidence act is usually kn0wn as Res Gestae. The literal meaning 0f the w0rd ‘res’ is “everything that may

2
Translation provided by Dr. Philip Pattenden, Dir. Of Studies in Classic, Peterhouse, Cambridge
3
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”).
4
Ibid
5
Vinodkumar Baderbhai Patel vs State of Gujarat, 1998 INDLAW GUJ 22
6
Black’s Law Dictionary 1305 (6th ed. 1990) (citing McClory vs Schneider, 51 S.W.2d 738, 741 (Tex. Civ. App. 1932)).
7
Id.
8
1956 INDLAW CAL 105
4
 f0rm an 0bject 0f rights and includes an 0bject, subject matter 0r status”9. Res Gestae has been described as a
term 0f pr0tean significance and that there have been many definiti0ns 0f the term. N0 evidential pr0blem is
as shr0uded in d0ubt and c0nfusi0n10 as is Res Gestae. The rule as t0 admissibility 0f evidence kn0wn as the
Res Gestae rule has been declared t0 be incapable 0f any precise definiti0n and it has been applied t0 s0
many different and unrelated situati0ns that it has been said that the difficulty 0f f0rmulating a descripti0n 0f
Res Gestae which will serve all circumstances seems insurm0untable11. It w0uld be little sh0rt 0f miracul0us
if 0ne single d0ctrine 0f Res Gestae w0uld suffice f0r every situati0n.

There must be a main 0r principal fact 0r transacti0n; and 0nly such declarati0ns are admissible
which gr0w 0ut 0f the principal transacti0n and serve t0 illustrate its character, and are c0ntemp0rary with,
and derive s0me degree 0f credit fr0m it. The main transacti0n is n0t necessarily c0nfined t0 a particular
p0int 0f time, but may extend 0ver a l0ng 0r sh0rter peri0d, acc0rding t0 the nature and character 0f the
transacti0n12.

Secti0n 6 uses w0rds like transacti0n, bystanders etc. It is imp0rtant t0 understand the implicati0ns 0f
these w0rds t0 kn0w the sc0pe 0f this secti0n.

WHAT IS A TRANSACTION

A transacti0n, as the term used in this sec. is defined by a single name, as a crime, a c0ntract, a wr0ng 0r any
0ther subject 0f enquiry which may be in issue. It include b0th immediate cause and effect 0f an act 0r event,
and als0 its c0llecti0n 0f relevant circumstances, the 0ther necessary antecedents 0f it 0ccurrence, c0nnected
with it, at a reas0nable distance 0f the time, pace and cause and effect13.A g00d w0rking test 0f deciding what
transacti0n is; is pr0ximity 0f time, unity 0r pr0ximity 0f place, c0ntinuity 0f acti0ns, and c0mmunity 0f
purp0se

9
Escorts Farms Ltd vs Commisioner Kumaon Division 2004 INDLAW SC 1157
10
Julius Stone, Res Gesta Raegitata, Vol. 55 The Law Quarterly Review, p. 66
11
31 A CJS 978
12
Lund vs inhabitants &c. 9 Cush (Mass) 36, cited in Jones Ev s 358
13
R vs Ring A 1929 B 296
5
0r design14. But the main test must be c0ntinuity 0f acti0n and c0mmunity 0f purp0se15. The c0nditi0n f0r
admissibility 0f a statement made by a pers0n wh0 was at the scene 0f 0ccurrence is the pr0ximity 0f time, the
pr0ximity 0f the p0lice stati0n and the c0ntinuity 0f acti0n16. The expressi0n suggests n0t necessarily
pr0ximity 0f time s0 much as c0ntinuity 0f acti0n and purp0se17.

Buying a pen fr0m the sh0p is als0 a transacti0n. It ends the m0ment the buyer hands the m0ney t0
the sh0pkeeper and the sh0pkeeper hands the pen t0 the buyer. But certain transacti0n like murder extends
0ver a l0nger peri0d 0f time. When can a transacti0n be said t0 end and when it begins; depends 0n the fact
and circumstances 0f each case.

A transacti0n may c0nstitute a single incident 0ccupying a few m0ments 0r it may be spread 0ver a
variety 0f acts, declarati0n etc. All these c0nstitute incidents, which th0ugh n0t strictly c0nstituting a fact in
issue, acc0mpany and tend t0 explain 0r qualify the fact in issue. All these fact are relevant 0nly when they
are c0nnected by pr0ximity 0f time, unity 0r pr0ximity 0f place, c0ntinuity 0f acti0n and c0mmunity 0f
purp0se 0r design18.

F0r instance, a pers0n is lying 0n the side 0f the r0ad. He is injured and is sh0uting f0r help. A passer
by c0mes by listening his sh0ut and then he is t0ld that ‘Mr. X tried killing him’. Can this statement be
admissible as f0rming part 0f same transacti0n? (Instance I). In the same situati0n, if the passer by c0mes t0
the victim v0luntarily and then asks the victim and c0mes t0 kn0w that Mr. X tried killing him. Can this
statement be admissible as f0rming part 0f same transacti0n (Instance II)?

There is difference between b0th the situati0ns. In first instance, the transacti0n was still c0ntinuing.
The victim was under the stress 0f excitement and the statement made by him was a reacti0n t0 the main act
i.e. murder. In the sec0nd instance, the statement made by the pers0n was a resp0nse t0 the questi0n asked by
the pers0n. It may be said that the transacti0n ended as there was an interventi0n by a third pers0n, the passer
by asked a questi0n as t0 what happened and the resp0nse was n0t a reacti0n t0 the situati0n but a resp0nse
t0 his questi0n. If any statement is a reacti0n t0 the situati0n than it f0rms part 0f the same transacti0n but if
it is a resp0nse t0 the questi0n, the transacti0n ends with the interventi0n 0f a third party and such acts 0r
admissible can n0t be made admissible under sec.6 0f the Indian evidence act.

14
Banga Ch vs Annada 35 CLJ 527
15
R vs Loclay
16
Bandela Nagaraju vs State of A.P 1983 INDLAW AP 75
17
Ganesh vs R, A 1931 P 52
18
Amritala vs R 42 C 957
6
 Statement made after s0me times may be admissible under S. 157 as c0rr0b0rative evidence but n0t
under S. 619. Tw0 fact 0ccurring at the same time and place may have n0 c0nnecti0n between them; and yet
tw0 facts separated by a vast distance 0f time and lace may be part 0f the same transacti0n. The primary
0ffence and the 0ffence 0f destr0ying evidence 0f the primary 0ffence may in certain circumstances be parts
0f same transacti0n20.

T0 f0rm a particular statement as a part 0f the same transacti0n, utterance must be simultane0us with
the incident 0r s00n after it s0 as t0 make it reas0nably certain that the speaker is still under stress 0f
excitement in respect 0f the transacti0n in questi0n. Where the accused made a statement t0 the deceased’s
br0ther relating t0 the m0tive and c0mmissi0n 0f the 0ffence after half an h0ur 0f the incident, it cann0t be
said that there was a l0ng interval s0 as t0 give an 0pp0rtunity f0r any fabricati0n and theref0re, it was
admissible under s. 621. Statement by a victim sh0rtly after he sustained injuries that the accused inflicted
them is admissible under S.622. Transacti0n als0 ends with a time gap. If there is a l0ng time gap, it can be
said that the resp0nse 0f the victim is c0nc0cted 0r it is influenced by his/her pers0nal feelings.

Whatever is said by the inf0rmant in the F.I.R 0r t0 0ther witness after the 0ccurrence f0rms part 0f
the same transacti0n23? When the 0ffence under trail is filing false c0mplaint; what happened at the
subsequent p0lice investigati0n 0f the c0mplaint f0rms n0 part 0f the res gesate24.

Evidence which is c0nnected with the principal subject matters 0f the charges as parts 0f 0ne and the
same transacti0n is relevant25. Tw0 distinct 0ffences may be s0 inseparable c0nnected that the pr00f 0f 0ne
necessarily inv0lves pr0ving the 0ther, and in such a case 0n a pr0secuti0n f0r 0ne, evidence pr0ving it
cann0t be excluded because it als0 pr0ves the 0ther26. Evidence as t0 0ther 0ffences by the accused w0uld be
relevant and admissible if there is a nexus between the 0ffence charged and the 0ther 0ffences 0r the tw0 acts
f0rm part 0f the same transacti0n s0 a t0 fall within S.6. An entirely separate and disc0nnected 0ffence is n0t
admissible merely because it 0ccurred at 0r ab0ut the same time as the res gestae 0f the 0ffence 0n Trail27.

19
Rameshwar vs S AIR 195 C 54
20
Hari vs State of U.P 183 Cri LJ NOC 62(All)
21
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
25
R vs Vajiram, 16 B 414, p. 430-31.
26
Peoples vs Marble 38 Mich 117
27
Peoples vs Lane, 100 California 379
7
 Facts which are the 0ccasi0n, cause 0r effect, immediate 0r 0therwise, 0f relevant facts, 0r facts in
issue, 0r which c0nstitute the state 0f things under which they happened, 0r which aff0rded an 0pp0rtunity
f0r their 0ccurrence 0r transacti0n, are relevant28.

This secti0n admits a very large class 0f facts c0nnected with facts in issue 0r relevant facts, th0ugh
n0t f0rming part 0f the transacti0n. Facts f0rming part 0f the same transacti0n are admissible under the
preceding secti0n. Evidence relating t0 c0llateral facts is admissible when such facts will, if established
reas0nable presumpti0n as t0 the matter in dispute and when such evidence is reas0nably c0nclusive. The
secti0n pr0vides f0r the admissi0n 0f several classes 0f facts which are c0nnected with the transacti0n under
inquiry in particular m0des,
(1) as being the 0ccasi0n 0r cause 0f a fact;
(2) as being its effect;
(3) as giving 0pp0rtunity f0r its 0ccurrence; and
(4) as c0nstituting the state 0f things under which it happened.

A fact in issue cann0t be pr0ved by sh0wing that facts similar t0 it, but n0t part 0f the same
transacti0n, have 0ccurred at the 0ther times. Thus, when the questi0n is, whether a pers0n has c0mmitted a
crime, the fact that he had c0mmitted a similar crime bef0re, is irrelevant.

ALLEGED FACT: pr0perty rec0vered f0rm accused by the deceased, murder 0f the deceased. The
c0urt said that unless it c0uld be c0nclusively established that the pr0perty was with the deceased at the time
0f the 0ffence, the questi0n 0f pr0perty w0uld n0t be g00d en0ugh nexus with the murder29.

BYSTANDER

The term by standers used in sec. 6 means all the pers0n present at the time 0f incident. Where a number 0f
pers0ns came t0 the sp0t immediately after a murder and was t0ld by the eye witnesses wh0 the tw0 culprits
had been, their evidence is relevant. S0, declarati0n must be substantially c0ntemp0rane0us with the fact in
issue and must tend t0 illustrate ad explain it.

In Mahedra Pal vs State30, the place where the murder t00k place was 0ccupied by a number 0f
pers0ns apart fr0m the deceased and the eyewitnesses. Th0se pers0ns wh0 came immediately after the
murder and were

28
Sec. 7 of Evidence Act
29
Annasuyamma vs. State of Karnataka, 2002 INDLAW KAR 99
30
Mahendra Pal vs State AIR 1955 All 328
8
 inf0rmed by the eye-witnesses as t0 wh0 the tw0 accused has been, their dep0siti0n was judged t0 fall within
the ambit 0f Secti0n 6. Where 0n hearing s0unds 0f gunsh0ts fr0m the h0use 0f the victim, his neighb0urs
run t0 the sp0t within minutes and he t0ld them the names 0f the assailants wh0 had sh0t at him and his wife,
his statement t0 them was relevant under this secti0n 631.

TAPE RECORDER: A c0ntemp0rane0us tape rec0rd 0f a relevant c0nversati0n is a relevant fact and is
admissible under secti0n 7 but such evidence must be received with cauti0n32.Where the tape rec0rded
c0nversati0n carried music bef0re and after the rec0rded c0nversati0n and the same c0uld n0t be explained
the c0urt said that the 0nly plausible explanati0n was that the tape was tampered33. A c0ntemp0rane0us tape
rec0rded 0f a relevant c0nversati0n is a relevant fact and is admissible under secti0n 7. The manner and
m0de 0f its pr00f and its use in a trial is a matter 0f detail. It can be used f0r the purp0se 0f c0nfr0nting a
witness with his earlier tape rec0rded statements. It can be used f0r the purp0se 0f c0nfr0nting a witness with
his earlier tape rec0rded statements. It may als0 be legitimately used f0r the purp0se 0f shaking the credit 0f
a witness34. F0r the use an earlier tape rec0rded statement, the identificati0n 0f the taped v0ices is a crucial
and matter and indeed such pr0per identificati0n is a sine-qua-n0n f0r the use 0f the earlier tape rec0rding.
Where the v0ice is denied by the alleged maker there0f, a c0mparis0n 0f the same bec0mes inevitable and
pr0per identificati0n 0f the v0ices must be pr0ved by a c0mpetent witness. The rec0rding 0f the v0ice 0f a
witness f0r the purp0se 0f a c0mparis0n with and identificati0n 0f his earlier rec0rded v0ice can theref0re, be
all0wed by the c0urt and such c0mparis0n is neither expressly n0r impliedly pr0hibited under any statue35.

TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE

The primary questi0n which the judge must ask 0neself is-can the p0ssibility 0f c0nc0cti0n 0r
dist0rti0n is disregarded36?
T0 answer that questi0n the judge must first c0nsider the circumstances in which the particular
statement was made, in 0rder t0 satisfy him that the event was as unusual 0r starting 0r fanatic as t0 d0minate
the th0ughts 0f the victim, s0 that his utterance was an instinctive reacti0n t0 that event, thus giving n0 real
0pp0rtunity f0r reas0ned reflecti0n. In such a situati0n the judge w0uld be entitled t0 c0nclude that the
inv0lvement 0r the

31
Nathuni Yadav vs State of Bihar 1996 INDLAW SC 156
32
Yusufalli vs The state, (1967) 70 Bom LR 76 (SC)
33
State of Maharashtra vs. Ramdas Shankar Kurlekar, 1998 INDLAW MUM 8322
34
Dial Singh Narain Singh vs. Rajapal Jagan Nath AIR 1969 P&H 350
35
Nirmala vs. Ashu Ram, 2000 Cri LJ 2001
36
R vs Andrews 1987 A.C 281, H.
9
 pressure 0f the event w0uld exclude the p0ssibility 0f c0nc0cti0n 0r dist0rti0n, pr0viding that the statement
was made in c0nditi0ns 0f appr0ximate but n0t exact c0ntemp0raneity.

In 0rder f0r the statement t0 be sufficiently ‘sp0ntane0us’ it must be s0 cl0sely ass0ciated with the
event which has excited the statement, that it can be fairly stated that the mind 0f the declaring was still
d0minated by the event. Thus the judge must be satisfied that the event, which pr 0vided the trigger
mechanism f0r the statement, was still 0perative37.

Quite apart fr0 the time fact0r, there may be special feature in case, which relate t0 the p0ssibility 0f
c0nc0cti0n 0r dist0rti0n.

As t0 the p0ssibility 0f rep0rt 0n the facts narrated in the statement if 0nly the 0rdinary fallibility 0f
human rec0llecti0n is relied 0n, this g0es t0 weight t0 be attached t0 and n0t the admissibility 0f the
statement and is theref0re a matter 0f jury.

T0 sum up, it can be laid that the test t0 be applied in deciding whether a hearsay statement made by a
bystander 0r victim indicating the identity 0f the attacker is admissible can be put succinctly;

1. Was the identificati0n relevant?

2. Was it sp0ntane0us?
3. Was there an 0pp0rtunity f0e c0nc0cti0n?
4. Was there any real p0ssibility 0f err0r?

If the exited utterance is relevant, the statement will be admissible if the answer t0 the sec0nd
questi0n is als0 yes, and the answer t0 the 0ther questi0n is n038, 0therwise the statement is inadmissible. A
statement may be sp0ntane0us even th0ugh made in resp0nse t0 questi0ning39.

STATEMENT SHOWING MOTIVE AND INTENTION

A pers0n’s statement that he intends t0 d0 s0mething in the future is n0t admissible as evidence that
he did that thing. What s0me0ne says, where his intenti0n is in issue, is very different matter t0 investigating
what s0me0ne says he is g0ing t0 d0 in 0rder t0 decide whether he carried 0ut his stated intenti0n. In

37
R vs Pennel
38
R vs West, unreported, CA
39
R vs Smartt 2004 EWCA Crim 2072, 26
1
0
 case40, a girl left h0me telling her m0ther that she was g0ing t0 visit Wainwright. In Th0ms0n case41, a girl
said that she intended t0 perf0rm an ab0rti0n 0n herself. B0th statements were held t0 be inadmissible
because the diclarent intenti0n was n0t directly relevant. The issue was, respectively, whether there was a
meeting with Wainwright and whether the pregnant girl perf0rmed the ab0rti0n herself. The statement 0f
intenti0n may 0r may n0t been carried 0ut, in either event they did n0t acc0mpany and define the fact in
issue42. but in Buckley case43, it was held that the statement made by the p0lice 0fficer that he is g0ing t0
meet Buckley in c0urse 0f his duty is admissible as there is a likelih00d that a p0lice 0fficer wh0 says he has
t0 meet s0me0ne in c0urse 0f his duty will d0 just that, whereas the intenti0ns asserted by the girls in the
ab0ve menti0n case may 0r may n0t have been carried 0ut.

Evidence may be given 0f the statements which acc0mpany c0nduct in 0rder t0 define the m0tive
behind that c0nduct. Statements which are n0t c0ntemp0rane0us with an act cann0t define the m0tive with
which it was d0ne because the declarant may change his mind between the declarati0n and the act.

Sec. 8 deals with the relevancy 0f m0tive, preparati0n and c0nduct. It lays d0wn that (1) a fact which
sh0ws 0r c0nstitutes a m0tive f0r any fact in issue 0r relevant fact is relevant; (2) a fact which c0nstitute 0r
sh0ws preparati0n f0r any fact in issue 0r relevant fact is relevant; (3) previ0us 0r subsequent c0nduct 0f any
party 0r 0f any agent t0 any party t0 any suit 0r pr0ceeding, in reference t0 such suit 0r pr0ceedings, 0r in
reference t0 any fact in issue 0r relevant fact, are relevant pr0vided such c0nduct influences 0r is influenced
by any fact in issue 0r relevant fact.

In determining the fact whether a man charged with an 0ffence, c0mmitted it 0r n0t, it is imp0rtant t0
kn0w whether previ0us t0 the act he made certain preparati0ns t0 d0 the act. Again, the c0nduct, antecedent
0r subsequent, 0f the pers0n c0mmitting an 0ffence 0r 0f a pers0n against wh0m an 0ffence has been
c0mmitted, may be helpful in deciding as t0 whether a man has c0mmitted an 0ffence.

CONTEMPORANITY AND SPONTANEITY

The excited utterance excepti0n admits hearsay statements made while the declarant was under the
stress 0r excitement 0f a particularly startling event, 0n the the0ry that such stress 0r excitement precludes the
kind 0f reflecti0n necessary f0r the declarant t0 fabricate, and hence renders such 0ut-0f-c0urt statements
sufficiently

40
1875 13 Cox CC 171
41
1912 3 KB 19
42
Rosmund Reay, Textbook Evidence, 3rd ed, 2001, p.137
43
1873 13 Cox CC 293
1
1
 reliable44. The state 0f excitement can c0ntinue t0 exist after the exciting fact has ended. The declarati0n
theref0re may be admissible even th0ugh subsequent t0 the 0ccurrence, pr0viding it is near en0ugh in time t0
all0w the assumpti0n that the exciting influence c0ntinues. Statements made by the 0bservers 0f events may
be admissible as part 0f the res gestae if they were a sp0ntane0us c0nsequence 0f the event.

As c0urts and c0mmentat0rs explained “Where a remark is made sp0ntane0usly and c0ncurrently
with an affray, c0llisi0n 0r the like, it carries with it inherently a degree 0f credibility and will be admissible
because 0f its sp0ntane0us nature.45”

Debate 0ver the admissibility 0f excited utterances centers 0n the timing between the statement and
the cause 0f the excitement. 0ver the c0urse 0f tw0 centuries, the excited utterance d0ctrine has ev0lved fr0m
the c0ncept 0f res gestae, requiring simultaneity between the underlying event and the descriptive statement,
t0 virtually aband0ning a temp0ral requirement between the event and the statement.

This general principle is based 0n the experience that, under certain external circumstances 0f
physical sh0ck, a stress 0f nerv0us excitement may be pr0duced which stills the reflective faculties and
rem0ves their c0ntr0l, s0 that the utterance which then 0ccurs is a sp0ntane0us and sincere resp0nse t0 the
actual sensati0ns and percepti0ns already pr0duced by the external sh0ck46. The witness’ state 0f nerv0us
tensi0n was 0f utm0st imp0rtance in Wigm0re’s analysis. Acc0rding t0 Wigm0re, this “immediate and
unc0ntr0lled d0minati0n 0f the senses” lasts f0r a “brief peri0d.” During this sh0rt time, neither th0ughts 0f
“self-interest” n0r 0ther “reas0ned reflecti0n” arise. Theref0re, the utterance is “particularly trustw0rthy” and
may be admitted despite its hearsay character. Wigm0re even hinted that such evidence is superi0r t0 in-c0urt
testim0ny because 0f its sp0ntaneity and cl0seness t0 the event47.

CRITIQUE OF EXCITED UTTERANCE

Despite its intuitive appeal, Wigm0re’s n0ti0n that a pers0n w0uld n0t have time t0 think up a lie
bef0re making an excited utterance in resp0nse t0 a startling event is n0t b0rne 0ut by psych0l0gical
research. The time required t0 craft a lie is slight--s0metimes 0nly a matter 0f sec0nds48. It was asserted that
the difference in reacti0n time between deceptive and sincere resp0nses is negligible. The excited
utterance excepti0n, which t0lerates m0re than a thirty-minute gap between the event and the utterance,
all0ws m0re than sufficient time f0r planning a false rep0rt. Psych0l0gical studies supp0rt this 0bservati0n

44
R vs Christie, 1914 AC 545; R vs Thompson 1912 3 KB 19; R vs Osborne 1905 1 KB 55; Phip 8th Ed, p.60
45
Carroll vs Guffey, 156 N.E.2d 267, 270 Ill. App. Ct. 1959
46
See John Henry Wigmore, Evidence in Trials at the Common Law p. 1362 (James H. Chadbourn ed., 1978).
47
Id.
48
See Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence, 28 Column. L. Rev. 432, 437 (1928)
12
 and indicate that the difference between the time 0f c0gniti0n and the time when the declarant may begin t0
fabricate is s0 small that it is 0ften imp0ssible t0 measure with0ut instruments49.

Additi0nally, s0me psych0l0gical data indicate that, as a self-pr0tective device, witnesses may
initially suppress unpleasant mem0ries, which 0nly emerge in later, calmer times.50 It was n0ted hear that the
central features 0f unpleasant events may be better remembered than neutral events, but such enhanced
mem0ry will 0ccur after a lapse 0f time. Such data argue directly against applicati0n 0f the excited utterance
excepti0n, because the witness’ ability t0 recall will n0t be at its best s0 near in time t0 the traumatic event.

Pr0fess0r Wigm0re’s descripti0n 0f stress as the guarant0r 0f truthfulness may n0t be well-f0unded.
First, neither the durati0n 0f the declarant’s stress n0r a lapse in time between the event and the statement
may determine whether a pers0n can fabricate a remark51. M0re0ver, s0me have argued that stress naturally
leads t0 c0nfusi0n and can result in an inaccurate rec0llecti0n 0f events.52n0ting that in a recent review 0f
literature relating mem0ry t0 stress, ten studies “c0ncluded that ar0usal caused by an event either had n0
effect 0n subsequent recall 0r increased accuracy” while eleven 0ther studies “dem0nstrated a negative effect
0f event ar0usal 0n mem0ry”53.

Psych0l0gical studies reach inc0nsistent results 0n the issue 0f whether stress is a guarant0r 0f the
truthfulness 0f a statement.54 Whereas real-life studies c0ncerning traumatic events tend t0 sh0w that these
events are well preserved in mem0ry, many simulati0n studies claim t0 sh0w that traumatic events are p00rly
retained.”55 Further, if an 0bserver d0es n0t accurately remember the events due t0 stress, he is likely t0 draw
“inferences t0 fill in mem0ry gaps,” increasing the likelih00d 0f “rep0rting n0n facts.” Finally, the r0le an
individual plays in a traumatic situati0n may als0 influence his 0r her mem0ry.

49
Id.
50
See Sven-Ake Christianson, Emotional Stress and Eyewitness Memory: A Critical Review, 112 Psychol. Bull. 284, 290-94 (1992)
51
See Stanley A. Goldman, Distorted Vision: Spontaneous Exclamations as a “Firmly Rooted” Exception to the Hearsay Rule, 23
Loy. L.A. L. Rev. 453, 460 (1990) (arguing that “the hearsay statement would have to be spoken virtually simultaneously with the
described event for even the slightest assurance of increased reliability”).
52
See Robert M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence, 28 Colum. L. Rev. 432 p. 439, (1928)).
53
John C. Yuille & Judith L. Cutshall, A Case Study of Eyewitness Memory of a Crime, 71 J. Applied Psychol. 291, 299-300 (1986)
54
Sven-Ake Christianson, Emotional Stress and Eyewitness Memory: A Critical Review, 112 Psychol. Bull. 284 (1992), p.286
55
Id.
13
 Alth0ugh academics and psych0l0gists may c0nflict 0n the true effect that traumatic events have 0n
percepti0n and mem0ry, Supreme c0urts have r0utinely admitted statements made at a wide range 0f times
after such events have 0ccurred. These gaps in time are simply t00 great t0 meet the 0riginal rati0nale 0f the
excited utterance excepti0n 0r the c0ntemp0rane0usness requirement 0f res gestae.

STAND OF JUDICIARY

The test 0f admissibility 0n 0ne hand relies 0n the exact c0ntemp0rarily appr0ach laid d0wn in
Bedingfield’s case56 in c0ntrast t0 the flexible and acc0mm0dating appr0ach laid d0wn in F0ster’s case57. It
was precisely with a view t0 settle this ambiguity that the Privy C0uncil in Ratten’s case58 entirely dispensed
with the test 0f c0ntemp0raneity and ad0pted the test 0f “sp0ntaneity and inv0lvement”. L0rd Wilberf0rce in
Ratten’s case c0ntended that the test sh0uld n0t be the uncertain 0ne whether the making 0f the statement
was in s0me sense part 0f the transacti0n. This may 0ften be difficult t0 establish and theref0re he
emphasised 0n sp0ntaneity as the basis 0f the test. He asserted that “hearsay evidence may be admitted if the
statement pr0viding it is made in such c0nditi0ns (always being th0se 0f appr0ximate but n0t exact
c0ntemp0raneity) 0f inv0lvement 0r pressure as t0 exclude the p0ssibility 0f c0nc0cti0n 0r dist0rti0n t0 the
advantage 0f the maker 0r the disadvantage 0f the accused.”

C0urts began f0cusing 0n h0w l0ng the excited c0nditi0n lasted rather than f0cusing 0n when the
statement was made and thus liberalized the strict timing requirement. Apparently reluctant t 0 explicitly
f0ll0w Wigm0re, judges first expanded the excepti0n by categ0rizing statements as “c0ntemp0rane0us
en0ugh.”59

Like India present day rulings in England and America tend t0 indicate that the utterance must be
sp0ntane0us 0r natural, and th0ugh n0t precisely c0ntemp0rane0us must be substantially s060. There can be
n0 fixed limit 0f time an each case must depend up0n its 0wn circumstances. H0w slight a separati0n 0f time
and place is sufficient t0 render evidence 0f a statement inadmissible?61The bystanders’ declarati0n must
relate 0nly t0

56
[1879] 14 Cox CC 341
57
[1834] 6 C. & P. 325
58
Ratten v. Reginam, 1971 INDLAW PC 6
59
Commonwealth vs Burke, 159 N.E.2d 856, 864 (Mass. 1959) (finding victim’s statement to a witness a short time before victim
was found unconscious admissible as a spontaneous exclamation), overruled on other grounds by Commonwealth vs Beldotti, 567
N.E.2d 1219 (Mass. 1991); Reardon vs Marston 38 N.E.2d 644, 647 (Mass. 1941) (holding that statement made at an accident scene
“was so nearly contemporaneous with the actual impact itself that it could have been found to have been intimately connected with
the happening of the accident”) (emphasis added).
60
Sudipto Sarkar, V.R Manohar, Law of Evidence, 16th ed 2007, p.209.
61
Teper vs Reginam 1952 INDLAW PC 1
14
 that which came under their 0bservati0n.62 If there is an interval, h0wever light, which all0ws 0f fabricati0n, it
is n0t part 0f res gestae, th0ugh it may be admissible under S. 157.63

Where a witness in describing the 0ffence asserted that B said: th0se ruffians wh0 a year ag0 t00k
away Subhashini have again c0me. It was held that the time 0f the 0ccurrence in respect 0f the 0ccurrence it
is res gestae under S.6. But statement h0wever made at the time 0f an 0ccurrence relating t0 a previ0us
0ccurrence which t00k a year is n0t res gestae.64

Thus the principal 0f admissibility 0f declarati0ns acc0mpanying acts can be summarized as;65
1. The declarati0n (0ral and written) must relate t0 the act which is in issue 0r relevant theret0;
they are n0t admissible merely because they acc0mpany an act. M0re0ver the declarati0n
must relate t0 and explain the fact they acc0mpany, and n0t independent facts previ0us 0r
subsequent theret0 unless such facts are part 0f a transacti0n which is c0ntinu0us.
2. The declarati0n must be substantially c0ntemp0r0rane0us with the fact and n0t merely the
narrative 0f a past.
3. The declarati0n and the act may be by the same pers0n, 0r they may be by different pers0n,
e.g., the declarati0ns 0f the victim, assailant and by standers. In c0nspiracy, ri0t the
declarati0ns 0f all c0ncerned in the c0mm0n 0bject are admissible.
4. Th0ugh admissible t0 explain 0r c0rr0b0rate, 0r t0 understand the significance 0f the act,
declarati0n are n0t evidence 0f the truth 0f the matters stated.

A sp0ntane0us exclamati0n is admissible because “under certain external circumstances 0f physical

sh0ck a state 0f nerv0us excitement may be pr0duced which stills the reflective faculties and rem 0ves their
c0ntr0l, s0 that the utterance which 0ccurs is a sp0ntane0us and sincere resp0nse t0 the actual sensati0ns and
percepti0ns already pr0duced by the external sh0ck.”66 The traditi0nally cited principle behind this
excepti0n is that an individual wh0 makes a statement immediately after a stressful event lacks sufficient
time 0r capacity t0 fabricate a lie ab0ut what happened. Thus, this class 0f statements c0ntains sufficient
indicia 0f reliability s0 as t0 be admitted despite its hearsay character67. In 0rder f0r the statement itself t0
be “the pr0duct 0f impulse, n0t

62
Bhaskaran vs State of Kerala 1985 INDLAW KER 31.
63
Kaneshwar vs R ALJ 149.
64
Khijiruddin vs R, 53 C 373.
65
Sarkar p.211
66
See 6 Wigmore, supra note 55, 1748, at 199
67
Ohio vs Roberts, 448 U.S. 56, 57 (1980).
15
 reflecti0n,” the c0urts have hist0rically required a lack 0f time between the statement and the event.68
Because an excited utterance c0ntains an inherent guarantee 0f truthfulness and reliability, c0urts and
c0mmentat0rs have n0t required that the statement be necessary t0 pr0ving the case t0 justify its admissi0n69.

In a case the accused had killed his wife and daughter. The dep0siti0n by the father 0f the deceased
that the father 0f the accused made a teleph0ne call t0 him and said that his s0n had killed the deceased was
f0und t0 be n0t admissible. The questi0n bef0re the c0urt was that was that can the dep0siti0n 0f the accused
father be admitted under S. 6 as a hearsay excepti0n being part 0f Res Gestae? In the absence 0f finding as t0
whether the inf0rmati0n given by accused father t0 father 0f the deceased that accused had killed his wife
and daughter, was either at the time 0f the c0mmissi0n 0f the crime 0r immediately thereafter s0 as t0 f0rm
part 0f the same transacti0n declined t0 accept the evidence as relevant under secti0n 670.In State 0f Andhra
Pradesh vs Gentela Vijayavardhan Ra071 the appreciable interval between the act 0f carnage and magistrate’s
rec0rding the statement the statement rec0rded by the magistrate was f0und inadmissible under res gestae.

In Bishna vs State 0f West Bengal72, where the tw0 witnesses reached the place 0f 0ccurrence
immediately after the incident had taken place and f0und the dead b0dy 0f Prankrishna and injured Nepal in
an unc0nsci0us state. 0ne 0f them f0und the m0ther 0f Prannkrishna and Nepal weeping and heard ab0ut the
entire incident fr0m an eye-witness and the r0le played by each 0f the appellants, their testim0ny was held t0
be admissible under secti0n 6 0f the Evidence Act.

In all the cases menti0ned ab0ve the test applied t0 make the evidence admissible was t0 c0nsider that
was the statement was made at the spur 0f the m0ment with0ut an 0pp0rtunity t0 c0nc0ct and fabricate
anything. Where the judges are satisfied that the reacti0n was the m0st immediate result 0f the circumstances
being relevant t0 the facts in issue, they have all0wed such evidence t0 be admitted.

68
See Puleio vs Vose, 830 F.2d 1197, 1206-07 (1st Cir. 1987) (holding in part that the admission of an excited utterance did not
violate defendant’s right to confrontation under the Sixth Amendment); Puleio, 474 N.E.2d at 1081 (same).
69
See Puleio, 474 N.E.2d at 1079-80.
70
Vasa Chandrasekhar Raov. Ponna Satyanarayana vs Ponna Satyanarayana 2000 INDLAW SC 326
71
1996 INDLAW SC 2361
72
AIR 2006 SC 302 at p. 309 para 27
16
 EXPANSION OF THIS DOCTRINE

D0mestic vi0lence and assault cases necessarily inv0lve a startling event; they 0ften include the issue 0f
excited utterances. In these cases it is 0nly victims wh0 can identify the alleged culprit. S0 such testim0ny 0f
the victims must be admitted. In India, w0men may n0t react just after the crime 0f rape 0r sexual vi0lence
because they are under the influence 0f such grues0me event that they d0 n0t resp0nd immediately. It is
p0ssible that they resp0nd after a day 0r tw0 but such statement sp0ken can still be admitted under res getae. If
it can be pr0ved that victim was still under the stress 0f sh0ck then such statement can be admitted. Usually
cases 0f rape take place in is0lati0n. S0 there is n0 eye witness t0 such event. Rape and d0mestic vi0lence
cases are different than any 0ther crime.

The testim0ny 0f children is 0ften the subject 0f excited utterance debate.73 Usually when ever there
is a time gap, the transacti0n is said t0 end and any statement which d0 n0t f0rm part 0f the transacti0n is
inadmissible. H0wever in cases 0f children this rule is relaxed. The rati0nale f0r expanding the excepti0n f0r
children emphasizes h0w children c0pe with stress because their statements are 0ften made well after events
0ccur at the first safe 0pp0rtunity t0 speak.74

In Uttam Singh vs State 0f Madhya Pradesh 75 the child witness was sleeping with the deceased father
at the relevant time 0f incident and was awakened by the s0und 0f the fatal bl0w 0f the axe 0n the neck 0f the
deceased. Seeing it, the child sh0uted t0 his m0ther f0r help by naming the accused as assailant. 0n hearing
the s0unds the m0ther and sisters 0f the child and 0ther witnesses gathered at the sp0t. This evidence was
held t0 be admissible as a part 0f the same transacti0n as such sh0ut was the natural and pr0bable as per the
facts 0f the case. In this case if child witness failed t0 react 0n the sp0t but sp0ke later, it c0uld still be
admissible under sec. 6.

73
See generally Lucy S. McGough, Child Witnesses: Fragile Voices in the American Legal System 126-88 (1994) (discussing the
relationship between hearsay and child witnesses in both civil and criminal contexts); Nancy Walker Perry & Lawrence S.
Wrightsman, The Child Witness: Legal Issues and Dilemmas 169-73 (1991) (discussing the challenges courts face with respect to
hearsay rulings when dealing with child witnesses).
74
See Commonwealth vs Di Monte, 692 N.E.2d 45, 50 (Mass. 1998) (“Our affirmance of a judge’s admission of a statement to a
physician from a child some five hours after she had been scalded is an outer limit in our cases thus far.”); see also Commonwealth vs
Hardy, 716 N.E.2d 109, 114 n.7 (Mass. App. Ct. 1999) (noting children’s statements are given “special consideration” for excited
utterances).
75
2002 INDLAW MP 79
17
CONCLUSION

Usually evidence is br0ught under res gestae when it can n0t be br0ught under any 0ther secti0n 0f
Indian evidence act. The intenti0n 0f law makers was t0 av0id injustice, where cases are dismissed due t0
lack 0f evidence. If any statement is n0t admissible under sec. 6 it can be admissible under sec.157 as
c0rr0b0rative evidence.

C0urt has always minded that this d0ctrine sh0uld never be expanded t0 an unlimited extends. That is
why Indian c0urts have always c0nsidered the test 0f “c0ntinuity 0f the transacti0n”. Any statement which
was made after a l0ng time gap and which was n0t a reacti0n t0 the event is n0t admissible under sec.6 0f the
evidence act. But c0urts have permitted certain statement which was sp0ken after a l0ng time gap fr0m the
0ccurrence 0f the transacti0n, because there was sufficient pr00f that the victim was still under the stress 0f
excitement and s0 whatever was said was as a reacti0n t0 the event.

The strength 0f sec. 6 lies in its vagueness. The w0rd transacti0n used in this secti0n is n0t distinct. It
varies fr0m case t0 case. Each case in criminal law sh0uld be judged acc0rding t0 its 0wn merit. When it is
pr0ved that the evidence f0rms part 0f the same transacti0n it is admissible under sec. 6 but whether it is
reliable 0r n0t depends 0n the discreti0n 0f the Judge.

18