Res Gestae describe a common-law doctrine governing testimony and are an exception to the Hearsay rule laid down in Qanun-e-Shahadat Act 1984 Art: 19. It means expression of secondhand statements considered trustworthy for the purpose of admission as evidence in a lawsuit when repeated by a witness because they were made spontaneously and concurrently with an event.
Art: 19 states: Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
The term bystander used in the illustration of Art: 19 means all the persons present at the time of incident. Where a number of persons came to the spot immediately after a murder and was told by the eye witnesses who the culprit(s) had been, their evidence is relevant. So, declaration must be substantially contemporaneous with the fact in issue and must tend to illustrate and explain it.
In Mahedra Pal vs State, the place where the murder took place was occupied by a number of persons apart from the deceased and the eyewitnesses. Those persons who came immediately after the murder and were informed by the eye-witnesses as to who the two accused has been, their deposition was judged to fall within the ambit of Article 19 Qanun e Shahadat Order 1984 (S. 6 of Indian Evidence Act). Where on hearing sounds of gunshots from the house of the victim, his neighbors ran to the spot within minutes and he told them the names of the assailants who had shot at him and his wife, his statement to them was relevant.
Traditionally, two reasons have made hearsay inadmissible: Unfairness and Possible Inaccuracy. Allowing a witness to repeat hearsay does not provide the accused with an opportunity to question the speaker of the original statement, and the witness may have misunderstood or misinterpreted the statement. Thus, in a trial, counsel can object to a witness’s testimony as hearsay. Res gestae is based on the belief that because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they carry a high degree of credibility and leave little room for misunderstanding or misinterpretation. The doctrine held that such statements are more trustworthy than other secondhand statements and therefore should be admissible as evidence.
In the nineteenth century, the Americans borrowed the concept of res gestae from English law offering an exception to this rule. The America courts during the nineteenth century and much of the twentieth century applied the exception by following an assortment of common-law rules. With the introduction of the Federal Rules of Evidence, federal courts abolished res gestae as a common-law doctrine and replaced it with explicit exceptions to the ban on hearsay. Although the term is now infrequently used in America, the legacy of res gestae is an integral part of the modern framework of hearsay evidence.
As the common-law rule developed, it acquired a number of tests for determining admissibility. To be admissible, the statements must relate, explain, or characterize an event or transaction. They must be natural statements growing out of the event, as opposed to a narrative of a past, completed affair. Additionally, the statements must be spontaneous, evoked by the event itself, and not the result of premeditation.
Finally, the original speaker must have participated in the transaction or witnessed the event in question. Thus, for example, a witness might testify that during a bank robbery, she or he heard another person shout, “That person is robbing the bank!” and the statement could be admitted as an exception to the ban on hearsay.
The process of refining the concept began in the 1920s, when the influential lawyer and educator Edmund M. Morgan attacked its swayability and vagueness: “This troublesome expression owes its existence and persistence in our law of evidence to an inclination of judges and lawyers to avoid the toilsome exertion of exact analysis and precise thinking.”
In an attempt at clarification, Morgan developed seven categories for the exception. In the 1940s the Model Code of Evidence made further refinements, and by the 1970s the Federal Rules of Evidence had included elements of res gestae in Rule 803 as one of its many exceptions to the hearsay rule.
In Indian Evidence Act, the principal of law embodied in S. 6 (identical to Qanun-e-Shahadat Art 19) is usually known as the rule of res gestae and has been expounded and illustrated in S. 7, 8, 9 and 14 (Art:20, 21,22 & 27). Facts which may be proved, as part of res gestae, must be facts other than those in issue but must be connected with it. Though hearsay evidence is not admissible, but when it is res gestae it can be admissible in a court of law and may be reliable evidence. This section is used by the lawyers as a last resort. The rationale behind this is the spontaneity and immediacy of such statement that there is hardly anytime for concoction. So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter.
Res gestae include elements that fall outside the modern hearsay definition altogether, such as circumstantial evidence of state of mind, so-called verbal acts, verbal parts of acts, and certain non-verbal conduct. Because excited utterances are connected closely in time to the event and the excitement flows from the event, excited utterances were deemed part of the action (the things done) and hence admissible despite the hearsay rule. Res gestae also hired the hearsay exceptions for present-sense impressions, excited utterances, direct evidence of state of mind, and statements made to physicians. Since Res gestae includes facts which form part of same transaction. So, it is pertinent to examine what is a transaction, when does it start and when does it ends. If any fact fails to link itself with the main transaction, it fails to be a res gestae and hence inadmissible. There must be a main or principal fact or transaction; and only such declarations are admissible which grow out of the principal transaction and serve to illustrate its character, and are contemporary with, and derive some degree of credit from it. The main transaction is not necessarily confined to a particular point of time, but may extend over a long or shorter period, according to the nature and character of the transaction.
It has been held in case of PLD 1976 SC 291, that evidence admitted under this Article can only be used as a link in the chain of evidence and conviction cannot be recorded on it.
WHAT IS A TRANSACTION?
A transaction 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.
A transaction may constitute a single incident occupying a few moments or it may be spread over a variety of acts, declaration etc. All these constitute incidents, which though not strictly constituting a fact in issue, accompany and tend to explain or qualify the fact in issue. All these fact are relevant only when they are connected by proximity of time, unity or proximity of place, continuity of action and community of purpose or design. Buying a pen from the shop is also a transaction. It ends the moment the buyer hands the money over to the shopkeeper and the takes the delivery of pen from the shopkeeper. But certain transaction like murder extends over a longer period of time. When can a transaction be said to end and when it begins; depends on the fact and circumstances of each case.
For instance, a person is lying on the side of the road. He is injured and is shouting for help. A passer by comes by listening his shout and then he is told that Mr. X tried killing him. Can this statement be admissible as forming part of same transaction?
(Instance I). In the same situation, if the passer by comes to the victim voluntarily and then asks the victim and comes to know that Mr. X tried killing him. Can this statement be admissible as forming part of same transaction (Instance II)?
There is difference between both the situations. In first instance, the transaction was still continuing. The victim was under the stress of excitement and the statement made by him was a reaction to the main act i.e. murder. In the second instance, the statement made by the person was a response to the question asked by the person.
It may be said that the transaction ended as there was an intervention by a third person, the passer by asked a question as to what happened and the response was not a reaction to the situation but a response to his question. If any statement is a reaction to the situation than it forms part of the same transaction but if it is a response to the question, the transaction ends with the intervention of a third party and such acts or admissible can not be made admissible under Art: 19 of Qanun-e- Shahadat Order.
Statement made after some times may be admissible under Art: 153 as corroborative evidence but not under Art: 19. 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. 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.
The word same transaction occurs in Art:235 & Art:239 of Code of Criminal Procedure 1898 as well. It has been held in many cases that whether a series of facts are so connected together as form of the same transaction is purely a question of facts depending on proximity of time and place, continuity of action and unity of purpose and design. Hence a transaction is a group of facts so connected together as to be referred to by a single legal name as a crime, a contract, a wrong, or any other subject of inquiry which may be in issue.
Evidence which is connected with the principal subject matters of the charges as parts of one and the same transaction is relevant. Two distinct offences may be so inseparable connected that the proof of one necessarily involves proving the other, and in such a case on a prosecution for one, evidence proving it cannot be excluded because it also proves the other. Evidence as to other offences by the accused would be relevant and admissible if there is a nexus between the offence charged and the other offences or the two acts form part of the same transaction so a to fall within ART:19. An entirely separate and disconnected offence is not admissible merely because it occurred at or about the same time as the res gestae of the offence on Trial.
Test for Admission of Evidence under Res-Gestae:
The primary question which the judge must ask oneself is, could the possibility of concoction or distortion be disregarded? The circumstances that made victim’s utterance an instinctive reaction would be entitle 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 in 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 declarer was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. Quite apart from the time factor, there may be special feature in case, which relate to the possibility of concoction or distortion.
As to the possibility of report on the facts narrated in the statement if only the ordinary fallibility of human recollection is relied on, this goes to weight to be attached to and not the admissibility of the statement and is therefore a matter of jury.
To sum up, it can be laid that the test to be applied in deciding whether a hearsay statement made by a bystander or victim indicating the identity of the attacker is admissible can be put succinctly:
- Was the identification relevant?
- Was it spontaneous?
- Was there an opportunity for concoction?
- Was there any real possibility of error?
If the exited utterance is relevant, the statement will be admissible if the answer to the second question is also yes, and the answer to the other question is no, otherwise the statement is inadmissible. A statement may be spontaneous even though made in response to questioning.
Contemporaneousness and Spontaneity:
The excited utterance exception admits hearsay statements made while the declarer 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 declarer 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. Debate over the admissibility of excited utterances centers on the timing between the statement and the cause of the excitement. Over the course of two centuries, the excited utterance doctrine has evolved from the concept of res gestae, requiring simultaneity between the underlying event and the descriptive statement, to virtually abandoning a temporal requirement between the event and the statement.
This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. The witness state of nervous tension was of utmost importance in Wigmore’s analysis. According to Wigmore, this immediate and uncontrolled domination of the senses lasts for a brief period. During this short time, neither thoughts of self-interest nor other reasoned reflection arise. Therefore, the utterance is particularly trustworthy and may be admitted despite its hearsay character. Wigmore even hinted that such evidence is superior to in-court testimony because of its spontaneity and closeness to the event.
Conclusion:
Usually evidence is brought under res gestae when it can not be brought under any other section of QSO 1984. The intention of law makers was to avoid injustice, where cases are dismissed due to lack of evidence. If any statement is not admissible under Art: 19 it can be admissible under Art: 153 as corroborative evidence.
Court has always minded that this doctrine should never be expanded to an unlimited extends. That is why courts have always considered the test of continuity of the transaction. Any statement which was made after a long time gap and which was not a reaction to the event is not admissible under Art.19 of the Qanun-e-Shahadat.
But courts have permitted certain statement which was spoken after a long time gap from the occurrence of the transaction, because there was sufficient proof that the victim was still under the stress of excitement and so whatever was said was as a reaction to the event.
The strength of Art: 19 lies in its vagueness. The word transaction used in this section is not distinct. It varies from case to case. Each case in criminal law should be judged according to its own merit. When it is proved that the evidence forms part of the same transaction it is admissible under ART: 19 but whether it is reliable or not depends on the discretion of the Judge.
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