Evidence Final Draft.docx

Dr. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW ACADEMIC SESSION: 2016 – 2017

RES GESTAE EXCEPTION HEARSAY RULE Submitted to:

Submitted by:

Dr. K.A Pandey

Lokesh Nigam

Asst. Professor (Law)

B.A.LL.B.(Hons.)

RMLNLU

Vth semester Roll No. 74

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CONTENTS:  SCOPE AND LIMITATIONS  POSITION OF ‘RES GESTAE’ AT COMMON LAW  ‘RES GESTAE’ IN INDIA  A DUBIOUS DOCTRINE COMPARED  CONCLUSION  BIBLIOGRAPHY

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RESEARCH METHODOLOGY AIMS AND OBJECTIVES: Through this paper the researcher aims understanding the concept of res gestae as it exists under the law of evidence. The researcher proposes to do this by looking at both the English and the Indian laws on this subject. The object of this paper is also to see to what extent res gestae exists in Indian Law and whether or not Section 6 of the Indian Evidence Act, 1872 represents it in whole. And in the light of this compare the two enactments under the Common Law and Indian law respectively. The researcher has used secondary sources in order to obtain sufficient data for this project, namely, books, articles and the internet.

RESEARCH QUESTIONS: 

How is the concept of resgestae important to the law of evidence? What does it constitute?

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What position does this doctrine hold in Indian Law and in the Common Law system respectively?

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How the element of contemporaneity under res gestae construed is and how much weightage can it be given?

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How useful is this doctrine? Is it almost redundant under the English Law system?

INTRODUCTION This paper invites itself to an age old issue that has gathered sufficient confusion both in its land of origin and abroad and thus now requires a delicate understanding in the backdrop of the Indian Evidence Act, 1872. This issue is that of the res gestae exception to the hearsay rule. In essence, as summed up by Murphy, res gestae indicates that there are many facts or events of which accompanying and contemporaneous statements are an integral part, and if such fact or event were to be narrated sans reference to these statements, it would be ambiguous and misleading. As a result, it has been found necessary that despite the fact that these statements would actually amount to hearsay and therefore be inadmissible, an exception be carved out so that they may actually be taken into consideration by judge and jury. The origins of the res gestae principle appear to be ambiguous, as is evident from the debate between Phipson and Sibley in the early part of the last century. In a series of articles in the Law Quarterly Review of 1903 and 1904, the two brought out the initial points of issue regarding the doctrine, and these continue to be the focus of much discussion. However, it seems by all accounts that the earliest mention of the doctrine was actually in its singular form – res gesta – in Horne Tooke’s trial where the counsel for the prosecution, in referring to a certain letter, sought for it to be accepted by the court “as part of the res gestaPhipson would have preferred for only the singular form to be retained, as, according to him, the interpretation of the plural form led to the doctrine not being restricted to the transaction involving the main fact alone, but also to the ‘surrounding circumstances’ of any central fact. It would seem that this distinction had weighed with Sir James Stephen when the Indian Act was enacted three decades earlier. The veiled adoption of this principle, without expressly alluding to the disputed phrase, is found mainly in Section 6 of the Act, while additionally, Sections 7,8,9 and 14 remind us of the doctrine as recognized at common law. Departing partially from the strict rule of contemporaneity, Section 6 states that those facts, though not in issue, being so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. This makes it clear that it is imperative that as far as the sub-continent is concerned, the fact forms a part of the same transaction as the fact in issue.

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In the background of these original distinctions, this paper aims to analyse the position of res gestae in the United Kingdom and in India, and to understand the evolution of the principle, comparing and contrasting the two legal regimes.

CHAPTERIZATION: 

Chapter 1: this chapter deals with the concept of res gestae as it exists in the English common law system.

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Chapter 2: in this chapter the researcher has looked into the position of res gestae under the Indian Evidence Act. And in order to make this concept clearer a number of case facts have been used to corroborate the issues in question.

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Chapter 3: the differences between the two laws as regards res gestae.

CHAPTER ONE: POSITION OF ‘RES GESTAE’ AT COMMON LAW Res Gestae is a term whose precise doctrinal significance at common law has remained unclear, and there have been repeated calls for deleting the phrase from legal nomenclature. This is mainly because the term itself is not definitive and thus tells us nothing about the rules of evidence concerning matters that form part of the transaction.The rationale of this hearsay exception is that such statements may have great probative value in establishing or understanding the events in question, and that the emotional involvement of the speaker in the event provides a guarantee of sincerity. The res gestae principle can be admitted under four accepted categories of common law. These are: (1) Spontaneous exclamations, (2) Contemporaneous statements of physical sensation, (3) Statements accompanying and explaining an act, and (4) Statements as to the declarant’s state of mind or emotion. Spontaneous statements: ‘the excited utterance’ rule: The criteria for the admissibility of such statements were established by the leading cases of Ratten v. R1and R v. Andrews2In Rattan’s case, the appellant was charged with the murder of his wife with a shotgun wound. The prosecution sought to introduce the evidence of the (1972) A.C. 378 (1987) All ER 513

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individual who had telephoned the residence on receipt of a report that an ambulance had been called to the residence. There was some doubt as to the time of this call and the appellant’s account of what had occurred immediately after the shooting. While stating that it was impossible to lay down a precise rule as to the nature of proof required, the appeal was dismissed on the ground that this evidence was exempted from the rule against hearsay and was therefore admissible as evidence of a fact relevant to the issue. The fact that the deceased woman had made an agitated call a few minutes prior to her death suggested that res gestae as an exception to the rule against hearsay would definitely apply. The proper test laid down in this case was whether the statement was so clearly made in circumstances of spontaneity and involvement in the event that the possibility of concoction or fabrication would be disregarded Where the speaker has had time for reflection on the event so as to be able to concoct or construct his account of it, the statement should be disregarded. Here, the Privy Council speaking through Lord Wilberforce captured the essence of the exception of hearsay stating: “hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or disadvantage of the accused.” The importance of the twin tests of proximity and contemporaneity were further emphasised inAndrews case where the statement of the victim of a stabbing as to the identity of his two assailants was deemed admissible as it was spontaneous with no scope for concoction. Here the House of Lords also overruled the unfortunate decision in R v. Bedingfield3 where the statement of the victim indicating the identity her assailant was not admitted by Cockburn CJ only because the criminal act charged with had ceased. Following Lord Wilberforce, the dictum in Bedingfield could no longer be good law and would extend to include occasions where the act had been completed. Contemporaneous statements of physical sensation: Under the second principle res gestae admits statements in which a person asserts his contemporaneous physical sensations, such as sickness or pain. Now these statements must be 3

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(1879) 14 Cox CC 341

“confined to contemporaneous symptoms” and nothing in the nature of a narrative is admissible as to who caused them, or how they were caused. This idea was first stated in the case of Aveson v. Lord Kinnaird where the issue was whether the plaintiff’s wife was in good health at the time of taking out a life insurance policy. It was held that the evidence of a friend who had visited the wife around that time and heard her making statements about her ill health over the last ten days was admissible. This shows that since health and bodily sensations are very often not transient events, but extend over a period of time, thus the rule of contemporaneity cannot be very strict. The fact that a little latitude must be allowed has also been accepted in the case of R v. Black4where it was stated that “contemporaneous cannot be confined to feelings experienced at the actual moment while the patient is speaking. It must include such a statement as ‘yesterday I had a pain after meals’”. It can be seen from the above that at least as far as the physical state is concerned the position in the U.K. has shown a departure from the strict and narrow interpretation of contemporaneity. Statements accompanying and explaining relevant facts: Where the doing of an act is a fact in issue, then a statement by the actor which accompanies and explains the act is admissible as evidence of what is stated. Such statements must be so intertwined with the act to become part of res gestae. These must be contemporaneous with the act and made by a person performing the relevant act 5. Also, the act must be independently relevant. Thus in the case of R v. Kearley6.it was seen that hearsay evidence by police officers receiving calls at an alleged drug dealer’s house, of requests for drugs, were not admissible on the ground that the telephone calls were not independently relevant. This principle is substantially what is exemplified in S.6 of the Indian Evidence Act. The common law tradition has been followed in India and a substantial catena of Indian case law have applied the principles of the United Kingdom. The following chapter will deal with this aspect in detail.

(1922) 16 Cr App Rep 118 Howe v. Malkin, (1878) 40 LT 196 6 (1992) 2 All ER 345. 4 5

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Declarations of state of mind: The rationale behind this is that no better evidence of a person’s past state of mind is available than the person’s own statements at the time, and such statements may be the only evidence if there are no other actions from which inferences can be drawn. Though it seems clear that such statements amount to hearsay (either an assertion-based or a declarant-based definition), yet questions of intention, knowledge, emotion, belief and opinion, can all be proved in this manner. The important fact that must be kept in mind in such an instance is that only where the state of mind of the declarant is of “direct and immediate” relevance that such statements could be admissible. In R v. Blastland7 the accused was charged with the murder of a young boy with whom he admitted to having homosexual relations early on the evening of the boy’s death, though he denied any role in the murder. He claimed that another known homosexual was lurking nearby and had an opportunity to commit the offence. The accused wished to adduce evidence of this third party having made statements indicating his knowledge of the murder before it became public. The House of Lords held this evidence inadmissible because there would be a number of innocent explanations for the acquisition of that knowledge. The above brings out the most controversial aspect of the res gestae exception. If the third party had made a statement of confession, that would also be inadmissible as it would amount to hearsay. It would have been safe for their lordships to have allowed the above evidence to be admitted and then left it to the prosecution to adduce the alternative innocent explanations and thereby point the jury towards disregarding any aspersion against the third party. It is clear that while the above four categories seem to exhaustively encompass the doctrine of res gestae in the United Kingdom, and that spontaneity and contemporaneity are important aspects of the same, it may not be imperative that they are integral parts of the same transaction out of which the fact in issue arises. This is, however, the position of the statute in India. A detailed analysis follows in the next chapter.

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[1985] 2 All ER 1095

CHAPTER TWO: ‘RES GESTAE’ IN INDIA Sir James Stephen is often referred to as the founder of the Indian Evidence Act, and as a result, the Act contains a number of similarities with common law while at the same time standing as a unique enactment. The idea of res gestae in Indian law appears to be narrower because this term does not find mention in the statute but has been interpreted under Section 6 of the Act. There has also been some interpretation of the principle under other sections of the Act, which will be discussed below. Section 6 reads as follows: S.6. Relevancy of facts forming part of same transaction Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself. (d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

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The section describes the way in which facts though not in issue are so related to each other so as to form part of the same transaction or the principal act.[27] This basically means that all things done or words spoken in the course of a transaction, and though not forming a part of the fact in issue, would be enough to be corroborative factors to the relevant facts. Ingredients of Section 6: In a slight contrast to the traditional notions of res gestae discussed above, the ingredients of Section 6 are as follows: 1. The facts must be connected with the fact in issue. 2. The facts must form a part of the same transaction. 3. It is not important that the facts occurred at the same time and place or at different times or places. The one factor that makes itself evident in the background of the position at common law is that contemporaneity is not an integral aspect of the principle enunciated in Section 6, which immediately places it at odds with Lord Wilberforce’s famous enunciation. Transaction: Transaction has been defined as “a group of facts so connected together as to be referred to by a single name, as a crime, contract, a wrong or any other subject of enquiry which may be in issue.” A transaction consists both of physical acts and the words accompanying such physical acts, whether spoken by the person doing such acts, the person to whom they were done or by any other person. Such words are admissible in evidence as parts of transaction. The first illustration to the provision gives us a better understanding of this issue. A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or shortly before or after it thus causing the circumstances to be so intertwined with each other by proximity of time and space will be admissible as it forms part of the same transaction. This was directly applied in a case where the accused was recognized by the deceased who shouted that the accused was standing before her with a gun just before the fatal shots were fired at her8. However what must also be noted in this section is that the remarks made by persons other than the eye-witnesses will be hearsay because they have only picked up the news from

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

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others. Therefore expressions like ‘by-standers’ can only mean persons who are present at the time of the occurrence and not those who gather on the spot after the event. Sections 220 and 298 of the Code of Criminal Procedure, 1973 use the term ‘same transaction’. While dealing with the expression it was held that it includes immediate cause and effect of an act or an event and is so connected with all the relevant circumstances, like reasonable distance of time and space. The expression denotes two facts occurring at the same time and place, though they may not have any connection between them, but may be parts of the same transaction. Cunningham is of the view that this provision in dealing with circumstantial and indirect evidence merely lays down what is illustrated and explained in Sections 7,8 and 9, and hence, the judge must decide in view of the circumstances of each case. In a simple case, the transaction lies within the narrow limits of time, while in other cases it may be spread over a long period. It forms part of relevant facts: Facts which may be proved as part of res gestae, must be facts other than those in issues. These facts must form part of that very transaction and be thus connected with the facts in issue.9 Contemporaneous facts: A glance at illustration (i) to the section would suggest that it is necessary that the statement must have been made contemporaneous with the acts which constitute the offence. However, an examination of the main provision makes it clear that ‘contemporaneity’ is not an imperative as far as Section 6 is concerned, but would be so only in instances that fall within the compass of Illustration (i). In fact, on the contrary, the section makes it clear that the facts would be relevant even if they occurred at different times and places. Generally, the rule in India seems to be that if the statement is made to any authority who is competent to investigate the fact, it is admissible irrespective of a long lapse of time, but if it is made to a person not having that authority, it should be closer to the time of occurrence, though a gap of a few days, depending on the circumstances of the case would not make it inadmissible. However, a clear departure from the above is found in GentelaVijayavardanRao v. State of A.P10, where the two appellants were tried for setting on fire a bus in which 23 passengers were killed and many others injured. The judicial magistrate recorded the statements of the victims ThakkarDass v. State of H.P., 1992 Cal LJ 2415. (1996) 6 SCC 241

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and these were sought to be admitted by the prosecution. It was held that as there was some appreciable interval between the acts of incendiarism and the statements being recorded, these statements could not acquire legitimacy under S.6. Clearly, the maker of this statement was not dying at the time and thus the evidence could not be admitted as a dying declaration either. The important fact that must be noted in this case is that the Indian courts hastily followed the English judgments of R v. Lillyman11 as far as the interval of time was concerned, and Teper v. R12 as regards the general ambit of the res gestae exception. The court made it clear that this “correct legal position stated above needed no further elucidation.” Inexplicably, the apex court seems to have taken the ambit of res gestae at common law and the scope of Section 6 as synonymous, and therefore applied the test of contemporaneity, wholly disregarding the latter part of the explicit provision. By obvious contrast, the High Court of Calcutta had occasion to deal with a case where the injured narrated the incident to prosecution witnesses when the knife was stuck on his back. Without once averring to the doubtful test of ‘contemporaneity’, the Court held that as the statements were proximate to the offence and similar to Illustration (i), the testimony of the prosecution witnesses based on the said narration could not be termed as hearsay but as part of res gestae under Section 613 In ShyamNandan Singh v. State of Bihar14, it was held that whatever is said by the informant in the First Information Report or to other witnesses after the occurrence would form part of the same transaction and hence be admissible. Other Provisions As stated above, Sections 7,8,9 and 14 of the Act extend Section 6 and thereby also form a part of res gestae. While Section 14 is equivalent to the English categories of statements directed at the physical or mental state of a person, Sections 7,8 and 9 make relevant those facts that are evidence of the cause, effect, motive, conduct, occurrence and presence of the fact in issue. Overwhelming numbers of Indian authorities have restricted their understanding of res gestae to Section 6, and even the Supreme Court has only occasionally applied the doctrine while construing Section 8 of the Act. In Basanti v.State of H.P 15, the conduct of the accused of falsely (1896) 2 QB 167. (1952) 2 All ER 447 13 RabindraNathMoorty Naidu v. State of W.B., 1996 Cri LJ 2928 14 1991 Cr LJ 3350 15 (1987) 3 SCC 227. 11 12

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telling the villagers that the deceased had gone away from the village and not returned was held to be admissible under Section 8 as part of the res gestae. Again in Ganeshlal v. State of Maharashtra16, which involved the burning of a bride, the FIR was lodged by a person stating that he had received the information from the accused himself. It was held that this admission was clearly res gestae under Section 8 as it also conveyed the indifferent and hard-hearted conduct of the appellant. The above discussion would suggest that there is some variance between the concept of res gestae as originally enunciated and developed in the United Kingdom, and that which is interpreted in the context of the Indian Evidence Act. It is possible to conclude that it is wholly erroneous and unnecessary to ever use that doctrine in the Indian context, but now that such a tradition has come into existence, the following chapter will make a comparative analysis of the same. CHAPTER THREE: A DUBIOUS DOCTRINE COMPARED While recalling the interpretations given to the doctrine of res gestae in the earlier part of this paper, it would be advisable to keep the following remark by Lord Tomlin in mind: “What is meant by saying that a document or act is admissible because it is part of the res gestae has never so far as I am aware been explained in a satisfactory manner. I suspect it of being a phrase adopted to provide a respectable cloak for a variety of cases to which no formula of precision can be applied.”17 Contemporaneity? It is this ambiguous doctrine that the Indian courts have zealously attempted to adopt and interpret although it had the luxury of a well drafted statute at its disposal which made no use of these words. It cannot be denied that as a consequence, the scheme of relevancy of facts may have acquired a tinge that was not originally intended but clearly exists now. Probably the most prominent such influence is that of the test of contemporaneity being applied. As has been pointed out in the previous chapter, Section 6 makes no indication of such facts being contemporary or immediately proximate in time. This is also the case with Sections 7,8,9 and 14. Clear indications of the fact that the provisions do not insist on such contemporaneity are seen in

(1992) 3 SCC 106 Homes v. Newman, [1931] 2 Ch. 112,

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the Illustrations to the Sections themselves. To name but a few, Illustrations (b) and (c) to Section 6, (a) and (c) to Section 7, (f) and (g) to Section 8, (b) to Section 9 and (c), (e) and (j) to Section 14. Judge and Jury It must be remembered that one of the glaring differences in the courts system of the two countries is the fact that in the United Kingdom, a jury assesses the evidence on directions by the judge while in India, the judge himself decides the admissibility of the evidence in accordance with the strictest principles of law. One of the concessions allowed to the accused in the United Kingdom is that evidence of past acts or even convictions of a similar nature are not admissible, while in India, the illustrations to Section 14 make them relevant. This is because the judge is not expected to react as a layman does, and hence is presumed not to be influenced by the past offences of the defendant, while the jury would most likely be so influenced, and therefore, they are not afforded an opportunity to assess such evidence. As Sarathi observes, the judge decides the relevancy of the fact based on previous decisions and his own experiences, and as shown by Bedingfield’s case, there can be an honest difference of opinion. It is unfortunate however, that this judicial freedom had allowed a dictum to prevail for over a hundred years, during which many undeserving acquittals would have resulted. Proving of facts The fundamental principle of English law is that everything is admissible subject to the exceptions that (a) the best evidence available must be led, and (b) hearsay evidence is excluded (subject to exceptions). English law therefore declares negatively that certain facts shall not be proved, while Sections 6 to 11 of the Indian Evidence Act declare specifically what facts must be proved. This obviously makes the task of the prosecution much harder in India, and may be one of the reasons to explain the great variance in conviction rates in the two countries. Evidence of truth As a general rule, in England, statements which become admissible as part of the transaction is not, in general, evidence of the truth of the matter stated. However, under the Act, such statements may be treated as substantive evidence, i.e., as evidence of the truth of the matter stated, in as much as the section does not in any way limit their relevance to any particular purpose. 14

While remarks have been brought out on the comparative nature of the res gestae doctrine and its treatment, one would notice a few areas of similarity that deserve attention. Firstly, while the rules of evidence apply equally to civil and criminal cases, virtually every single case that has been the focus of this doctrine has been of a criminal nature, whether in England or in India. This probably has to do with the higher standard of proof in these cases, which invite substantial debate at each and every juncture while in civil cases, procedural and substantive issues merit equal discussion, rarely calling upon any novel innovation in the realm of evidence law. Secondly, the res gestae doctrine as an exception to the rule against hearsay finds close parallel with the other exception – that of the dying declaration, as laid down in Section 32(1) of the Act. Many instances in both countries have found the development of the res gestae doctrine owing much to cases where a statement made by a dying person could not properly be admitted except by way of being a part of the res gestae. In some cases, where death has not eventually resulted, the courts have held that the statement that was recorded would anyway be admissible via Section 6. The common law tradition is still very strong in India even today, and while there are areas which are clearly demarcated permitting the application of English law, it is clear from the express provisions of the Indian Evidence Act that the doctrine of res gestae ought not to find any place in Indian law. This is especially important when even English law has been attempting to rid itself of this confusing and clearly very distinct doctrine.

CONCLUSION: Thus so far we have seen how the doctrine of res gestae has been applied in both Indian and English law. However this concept as observed by many commentators is a very confusing one. Most of all the issue of ‘contemporaneity’ has been difficult to accommodate and often the courts have been very vague about this. As we have discussed previously, this element has been wrongly followed in Indian law, following Bedingfield’s case.

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Bedingfield wrongly followed.

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Res gestae even redundant in England – Ormerod

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Julius Stone conclusion

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Doctrine to be rid from both systems – very misleading.

BIBLIOGRAPHY . BOOKS: 1. V.R.Manohar, Sarkar’s Law of Evidence, Wadhwa and Company, Nagpur, 15th edn, (2000). 2. Ratanlal&Dhirajlal:The Law of Evidence, Wadhwa and Company, Nagpur, 20th edn, (2000). 3. Vepa.P.Sarathi, Law of Evidence, Eastern Book Company, Lucknow, (1989).

E-SOURCES: www.mightylaws.com www.legalserviceindia.com

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