admissibility and section 6 - res gestae
Supreme Court of India
Pushpadevi M. Jatia vs M.L. Wadhavan, Addl. Secretary ... on 29 April, 1987
If evidence is relevant the Court is not concerned with the method by which it was obtained.
"The test to be applied. both in civil and in criminal cases, in considering whether evi- dence is admissible, is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained." The rule is however subject to an exception. The Judge has a discretion to exclude evidence procured. after the commencement of the alleged offence, which although technically admissible appears to the Judge to be unfair. The classical example of such a case is where the prejudicial effect of such evidence would be out of proportion to its evidential value.
Supreme Court of India
Ram Bihari Yadav vs State Of Bihar & Ors on 21 April, 1998
More often the expressions 'relevancy and admissibility' are used as synonyms but their legal implications are distinct and different for more often than not facts which are relevant are not admissible; so also facts which are admissible may not be relevant, for example, questions permitted to be put in cross-examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case. in this case, the thrust of the submission relates not to relevancy or admissibility but to the value to be given to Exh.2. A dying declaration made by a person who is dead as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of his death comes in question, is relevant under Section 32 of the Evidence Act and is also admissible in evidence. Though dying declaration is indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case.
RES GESTAE (THINGS DONE) -
Res Gestae has been described as a term of protean significance. 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. The principle 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” and Literal meaning of the word "Res Gestae" will be "things done" (it will include the words spoken).
DEFINITION OF TRANSACTION :-
A transaction, as the term used in this section 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. 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 But the main test must be continuity of action and community of purpose. 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 action . The expression suggests not necessarily proximity of time so much as continuity of action and purpose would suffice for every situation. Statement made after some times may be admissible under S. 157 as corroborative evidence but not under Section 6 . 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.
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 section . 6.
Statement by a victim shortly after he sustained injuries that the accused inflicted them is admissible under Section 6 .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.
In Rattan v. Reginam (A.K.A Rattan v. Queen) (1971) 3 All AR 801, their Lordships of the Privy Council had occasion to point out as to what would be hear-say, in similar circumstances. In that case the accused was charged with the murder of his wife. Her death bad been caused by a shotgun The accused's plea was that the discharge from the gun was accidental and it occurred when he was cleaning his gun in the kitchen of his house. When the police reached the house two shotguns and a rifile with cleaning materials were found. The accused was unable to explain a to how the conform which the shot was fired had come to be loaded. He stated that he immediately telephoned for an ambulance and shortly the police telephoned him, on which he had asked then to come immediately It was-established the at 1.09 p m. on the day in question the appellant's father had made a trunk cal1 to the appellant which lasted 2 9 minutes The conversation was perfectly normal and his father heard the voice of the deceased woman in the background making comments of a normal character At about 1.15 p m. a telephone call was made from the house; the telephonist at the local exchange who answered it, stated in evidence at the trial): I plugged into a number by Schuca 1494 (the appellant's number) and....I opened the speak key and I said to the person "Number please" and the reply I got was 'Get me the police please". I kept the speak key open as the person was in an hysterical state and I connected the call to Schuca 41 which is the police station. As I was connecting the call the person gave her address as 59 Mitchell Street.' The telephonist added that, as she was connecting 'he call to the police station, the caller hung up and she (the witness) then told the police that they were wanted at 59 Mitchell Street. At about 1.20 p m the police officer telephoned the appellant's house from the local police station and spoke to him. By this time the deceased had been shot. The shooting from which she had died almost immediately, had, there- fore taken place between 1.12 p.m. and 1.20 p.m. At the trial the prosecution sought to introduce the telephonist's evidence in order to rebut the appellant's account of what had occurred immediately after the shooting. Objection was taken to this evidence on the ground that it was hearse, and that it did not come within any of the recognised exceptions to the rule against hearsay, but the objection was overruled. Their Lordships of the Privy Council observed:
In determining whether evidence should be admitted of statements made at part of the 'res gestae' as an exception to the rule against hearsay evidence, the test to be applied should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction; the proper test is whether the statement was be clearly made in circumstances of spontaneity and involvement in the event that the possibility of concoction or fabrication by the maker of the statement can be disregarded; conversely, if the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able 10 to construct or adopt his account, it should be excluded; and the same is in principle true of statements made before the event
In that case their Lordships pointed out that the evidence of the telephonist was not a hearsay evidence and was admissible as a relevant fact i.e. as evidence that contrary to the appellant's account a call was made only some three to five minutes before the fatal shooting by a woman who could only have been the deceased; it was also relevant as possibly showing that the deceased woman was at the time in a state of emotion or fear.
TEST FOR ADMISSION OF EVIDECE UDER RES-GESTAE
The primary question which the judge must ask oneself is-can the possibility of embellishment or distortion be 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.
To sum up, 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 under section 6 can be put succinctly as :-
1. Was the identification relevant?
2. Was it spontaneous?
3. Was there an opportunity foe concoction?
4. 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, otherwise the statement is inadmissible. A statement may be spontaneous even though made in response to questioning.
CONTEMPORANITY AND SPONTANEITY AS INSISTED BY COURTS :-
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.
Thus the principal of admissibility of declarations accompanying acts can be summarized as :-
1. 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
thereto unless such facts are part of a transaction which is continuous.
2. The declaration 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 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.
4. 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.
TEST LAID DOWN BY APEX COURT:-
Supreme Court of India
Sukhar vs State Of Uttar Pradesh on 1 October, 1999
Section 6 of the Evidence Act 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 Wigmores Evidence Act 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 exciting 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.
Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus:
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 bystanders. In conspiracy, riot &c.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.
Apex Court in Gentela Vijayavardhan Rao and Another V. State of A.P. 1996 (6) SCC 241 considering the law embodied in Section 6 of the Evidence Act held thus: The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised 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 or fact admissible under Section 6 of the Evidence Act 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. 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.
In another judgment of Apex Court in Rattan Singh V. State of H.P. 1997 (4) SCC 161, this Court examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and held thus: . The statement can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration A to Section 6 makes it clear. It reads thus:
(a) 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 so shortly before or after it as to form part of the transaction, is a relevant fact.
Here the act of the assailant intruding into the courtyard during dead of the night, victims identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act.
In Uttam Singh vs State of Madhya Pradesh 2003 CriLJ 560 the 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. Such shouts being natural and probable in the facts of the case are admissible In evidence as a part of the same transaction as res gestae under Section 6 of the Evidence Act. Conduct of the witness is also relevant under Section 8 of the same Act. Such story was further supported by prompt FIR as well.
STATEMENT NOT HELD TO BE RES GESTAE :-
Supreme Court of India
Vasa Chandrasekhar Rao vs Ponna Satyanarayana & Anr. on 5 May, 2000
The circumstances relied upon by the trial judge were:
(a) The accused was suspecting the character of the deceased and was often beating the deceased.
(b) On the date of occurrence PWs 9 and 21 left the deceased Padmavati and her daughter with the accused in his house at 11 a.m. and left that place at 3 p.m.
(c) At about 6 p.m., a telephone call was received from PW1, the father of the accused by PW21, intimating him that the accused has killed his wife and daughter.
(d) On reaching the place of occurrence PW21 saw the dead bodies of the deceased persons as well as the knife lying nearby stained with blood.
(e) Evidence of the doctors, who conducted the autopsy over the dead body of the deceased indicate that both the deceased persons have several stab injuries on their persons and death was on account of the said stab injuries.
(f) The evidence of PW22 was to the effect that he saw the accused coining out of his house, wearing blood stained clothes and on being asked, the accused confessed that he has murdered his wife and daughter.
Court held :-"Of the aforesaid circumstances, the question arises whether the statement of PW21 that PW1 told him on telephone at 6 p.m. that his son has killed the deceased, could go in as evidence under Section 6 of the Evidence Act. PW1, not having supported the prosecution during trial, the aforesaid statement of PW 21 would be in the nature of an hearsay but Section 6 of the Evidence Act is an exception to the aforesaid hearsay rule and admits of certain carefully safeguarded and limited exceptions and makes the statement admissible when such statements are proved to form a part of the res gestae, to form a particular statement as a part of the same transaction or with the incident or soon thereafter, so as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction in question. In absence of a finding as to whether the information by PW1 to PW 21 that accused has killed the deceased was either of the time of commission of the crime or immediately thereafter, so as to form the same transaction, such utterances by PW1 cannot be considered as relevant under Section 6 of the Evidence Act. In this state of affairs, it may not be proper to accept that part of the statement of PW21 and the said circumstances cannot be held to have been established. But even excluding such circumstances, if all other circumstances enumerated above are taken into consideration, which must be held to-have been proved beyond reasonable doubt, the conclusion is irresistible that all these circumstances point towards the guilt of the accused and inconsistent with his innocence."
CASES OF ACADEMIC VALUE AND ILLUSTRATIONS : -
The rule of Res Gestae first finds mention in the year 1693 in Thompson v. Trevanion, where it was held that declarations accompanying an act are receivable in explanation thereof. In Thompson v. Trevanian [ reported in (1695) Skin Law Reporter pg. 402] - the deceased woman came running out of the house with a wound on her neck from which she was bleeding and cried out that her husband had caused the injury. This statement of the deceased wife was held to be relevant under doctrine of res gestae.
Badruddin v. State of Maharashtra [AIR 1981 SC 1223] the accused dragged the deceased from his house to Chowk area and began to beat him. An Eye Witness who was present when the beating began ran to the village police patel, while the beating was in progress and told him that the deceased was being beaten by the accused. The police Patel was allowed to give evidence of what the witness told him, it being a part of the transaction and being contemporaneous the event.
Shabir Ahmad Khan vs State Of J. And K. 1989 CriLJ 2486
In this case recovery of instrument of murder soon after commission of crime was held relevant under section 6 . Under Section 6 of the Evidence Act, 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. This Section admits these 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. A transaction may consist of a single incident occupying a few minutes or it may be spread over a variety of facts etc. Occupying a much longer time and occurring on different occasions or at different places. Where the transaction consists of different acts, in order that the chain of such acts may constitute the same transaction, they must be connected together by proximity of time, proximity or unity of place, continuity of action and continuity of purpose or design.
R v. Foster [(1834) 6 C & C p.325] the deceased was killed in an accident by a speeding vehicle. The witness had only seen the speeding vehicle towards the deceased and not the actual occurrence of accident, his view was blocked by another vehicle . Immediately after the accident the witness went to the deceased and the deceased explained to him the nature of the accident. He was allowed to give in evidence what was only derived knowledge as the judge held the testimony to be covered under the doctrine of res gestae.
R v. Beddingfield [(1879) 14 Cox C.C. 341] (IT IS SUBMITTED NOT TO RELY ON THIS JUDGMENT , AS IT DOES NOT ELUCIDATE THE CORRECT POSITION OF LAW)
Here, a woman with a slit throat came running out of the house. And exclaimed to her aunt, "O Aunt, see what Beddingfield has done to me. "
Lord Justice Cockburn held that the statement was not admissible, since it was something stated by her after it was all over. He said that it was not part of the transaction, that it was said after the transaction was all over, the transaction being the sliting of the throat. Although this decision has been effectively overruled and does not represented the correct law, it accurately illustrates the erstwhile principle used to define the Res Gestae exception, which often resulted in unjust consequences. The doctrine is very much judge centric.
In Pratapsingh v. State of Madhya Pradesh 1971 Cri LJ 172 (Madh Pra), Partapsingh and Janved were tried for having committed the murder of one Ram Charan. The accused suspected illicit relations between Mahan Devi (wife of Partapsinch and sister of Janved) and the deceased. Head Constable Sarfaraj Beg, who lived at a distance of about 400 yards from the house of Partapsingh, heard some noise at about 10 p.m. He went towards the house of Partapsingh near which a large crowd had collected On going inside the house, he found the dead body lying with fresh wound from a sword. When questioned, Mahan Devi stated to Sarfaraj Beg that her husband and brother had run away after committing the murder, Madtiya Pradesh High Court, on the above facts, held that Mahan Devi's statement made to Sarfaraj Beg was not admissible in evidence under Section 6 as part of res gestae because the statement did not appear to be spontaneous and, in any case, was made sometime after the incident in answer to a query. It was further held that a statement in order to be admissible as part of res gestae should not narrate a past event but it should pertain to the event itself.
Vinod v. State of Uttar Pradesh , 1994 Cr. LJ 2360 (All):-
Accused strangulated the victim after commission of rape on her . He was immediately apprehended by people while he was trying to run away , the accused begged for mercy and said that it was his first mistake . These statements were held to be relevant as the part of same transaction and also relevant under section 8 .
Radhey Shyam v. State of Uttar Pradesh 1993 Cr.LJ 3790 (ALL)
Wife was set ablaze by husband and she told her brother who was a witness to the occurrence , "Run away he has put fire to me" , it was held that these words were in the nature of forming part of the same transaction.
Sawal Das v. State of Bihar [1974 SC AIR 778] :-
Here a husband (along with his father and mother) was prosecute for the murder of his wife. There was evidence on record that deceased cried out for help and also screamed out that she was being killed by the accused persons. Furthermore , the children who were playing outside exclaimed that their mother was being killed. These statement of the deceased as well as of the children were held to be relevant as res gestae as they were contemporaneous with the event.
In Kashmira Singh v. State AIR 1965 J and K 37 : 1965 (1) Cri LJ 554, one girl Fatma Begum was going to the school when the accused was stated to have stopped his car and started teasing her and using obscene words. The prosecution neither proved the First Information Report nor examined the informant (Fatima Begum). The only evidence from which it sought support was the statement of one Hajee Ahad Dar who had deposed that when he reached the spot the girl had told him that the accused had used the obscene words towards her which annoyed her. The question which fell for determination was whether the testimony of Haji Ahad Dar was admissibly under Sections 6 and 8, Evidence Act. After adverting to the language of Section 6, the court was of the view that the Section pre-supposed the existence of a fact in issue in order to prove other facts connecting with it as corroborating piece of evidence being of the view that the fact in issue in that case was whether the accused had used insulting words against Fatima Begum and that there was no independent evidence to prove it, it was held that the evidence of Hajee Ahad Dar, who had admittedly not seen the actual occurrence, could not form part of res gestae so as to be admissible under Section 6, Evidence Act.
In Ram Das Cheedi v. State 1972 Cri LJ 57 (All) a minor married girl was abducted by the accused and others from the house of her father. The accused secured the ornaments which she was wearing on her person by dishonest inducement through convincing her that it would not be safe for her to be putting on ornaments as it was getting dark. She then handed over the ornaments to Ram Dass which he placed in a bag. Both of them went to the nearby railway station. In the meanwhile, her absence was discovered at her house by her brother and uncle who, on reaching the railway station found her sitting with the accused on a bench at the platform. On seeing them the accused fled along with the ornaments which were contained in the bag. She then told her brother and uncle the circumstances under which she handed over her ornaments to the accused and that he had run away with the said ornaments. On the above facts, it was held by a learned single Judge of the Allahabad High Court that her statement immediately after the occurrence was admissible as res gestae under Section 6, Evidence Act and further that it provided the necessary corroboration so as to lend assurance about the trustworthiness of her testimony on the question of exercise of dishonest inducement by the accused. It may be stated here that in Ram Das' case the accused was acquitted of the offence punishable under Sections 3637 366/379, I.P.C. on the finding that the girl, who had been deprived of her ornaments, was over 18 years of age and that she was a consenting party when she left the house of her father. All the same, the conviction of the accused under Section 420, I.P.C. was maintained and her statement to her brother and uncle immediately after the accused had taken to heels was found to be admissible and relevant as res gestae. Manifestly, the accused ran away with the ornaments when he saw her brother and uncle approaching and, therefore, what she stated to them at that very time was held to be part of the same transaction.
Himachal Pradesh High Court