Rattans v.

R
A project submitted in partial fulfilment of the course Evidence Law, Semester – IV
during the Academic Year 2017 – 18.

Submitted by

Sonu Shubham, 1651

BBA.LLB

Submitted to

Dr. P. K. V. Sita Rama Rao

April 2018

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
 ACKNOWLEDGMENT

I am feeling highly elated to work on under the guidance of my Evidence law faculty.
I am very grateful to him for the exemplary guidance. His assignment of such a
relevant topic made me work towards knowing the subject with a great interest and
enthusiasm.
I would like to enlighten my readers through this topic and I hope I have tried my best
to bring more luminosity to this topic. I am overwhelmed in all humbleness and
gratefulness to acknowledge from the bottom of my heart to all those who have helped
me to put these ideas, well above the level of simplicity and into something concrete
effectively and moreover on time.
I also want to thank all my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant material regarding to my topic available to me at
the time of my busy research work and gave me assistance.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank the
library staff for working long hours to facilitate us with required materials going a
long way in quenching our thirst for education. I would also like to extend my
gratitude to my parents and all those unseen hands who helped me out at every stage
of my project.

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 CONTENTS
ACKNOWLEDGMENT..................................................................................................................................2
OBJECT OF THE STUDY:............................................................................................................................4
HYPOTHESIS:.................................................................................................................................................4
RESEARCH METHODOLOGY:...................................................................................................................4
SOURCES OF DATA:.....................................................................................................................................4
SCOPE OF THE STUDY:...............................................................................................................................4
INTRODUCTION:...........................................................................................................................................5
THE QUEEN VS. LEITH MCDONALD RATTEN......................................................................................6
FACTS IN ISSUE:........................................................................................................................................6
TRIAL AND APPEALS...............................................................................................................................8
RATIO...........................................................................................................................................................8
CASE REVIEW............................................................................................................................................9
SECTION 6 OF EVIDENCE ACT...............................................................................................................12
WHAT IS A TRANSACTION...................................................................................................................15
BYSTANDER.............................................................................................................................................16
TAPE RECORDER....................................................................................................................................16
TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE.........................................................17
STATEMENT SHOWING MOTIVE AND INTENTION......................................................................18
CONTEMPORANITY AND SPONTANEITY........................................................................................19
MORE ENGLISH CASES WHERE THIS CASE WAS CITED...............................................................20
CONCLUSION...............................................................................................................................................21
BIBLIOGRAPHY..........................................................................................................................................22

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OBJECT OF THE STUDY:

The researcher has undertaken this research to find

 Facts of the case

 Judgement analysis
 Ratio behind the rule

HYPOTHESIS:

The researcher assumes that in case of Ratten’s, the provisions given or propounded by the judges
lacked several minor details because of which the theory could be misused.

RESEARCH METHODOLOGY:

The researcher would like to follow doctrinal method for this research. The researcher will gather
data from both the primary and secondary sources.

SOURCES OF DATA:

Primary sources Secondary sources

Legislative provisions Books

Case laws Newspapers

Magazines

Websites

SCOPE OF THE STUDY:

The research will provide a stepping stone for further research. It will also be useful to the society as
the readers will come to know that how the provision is being used today, sometimes to protect and
sometimes to harass.

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INTRODUCTION:

The researcher will start making this project report by explaining the facts and judgement of the case.
Further with making an analysis of provisions laid down by the judges the researcher will explain the
rule laid down under this case and the ratio behind the rule. Also, the researcher will continue with
mentioning the provisions given inside Indian Evidence Act, specifically under section- 6. Also
mentioning what kind of evidences can be admitted under this rule. And at the end the researcher
will end the project with explaining the rule of Res Gestae and how it is incorporated under the
Indian Evidence Act and with this conclude the project report. Res gestae translates from Latin as
“things done,” and from that translation springs its conceptualization both as an independent hearsay
exception and as a shorthand reference to intrinsic evidence of a singular transaction or event. S. 5 of
Indian Evidence Act lays down that evidence may be given of fact in issue and relevant fact
described under S. 6 to S.55. S. 6 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 of at different times and places” The principal of law embodied in S.6 is usually
known as the rule of res gestae. The rules formulated in s. 6 is expounded and illustrated in S. 7, 8, 9
and14. Facts which may be proved, as part of res gestae, must be facts other than those in issue but
must relate to 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 so; there is not much case law on this section. The rationale behind this is the spontaneity
and immediacy of such statement that there is hardly any time for concoction. So, such statement
must be contemporaneous with the acts which constitute the offence or at least immediately
thereafter.

Res gestae includes facts which form part of same transaction. So, it is pertinent to examine what is
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. 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.1
1
“Doctrine of Res Gestae” via http://engllb.blogspot.in/2013/01/doctrine-of-res-gestae_19.html

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 THE QUEEN VS. LEITH MCDONALD RATTEN

FACTS IN ISSUE:

The applicant, Leith McDonald Ratten, is seeking leave to appeal against his conviction for murder.
He was tried at Shepparton before his Honor the Chief Justice and a jury in a hearing which took
place between August 10 and August 20, 1970. the person killed was his wife, Beverley Joan Ratten.
The death took place on 7 May 1970 at their home at 59 Mitchell Street, Echuca. Her death was
caused by the discharge of a shotgun, which was at the time in the hands of the applicant. The fatal
incident took place in the kitchen of the house about 1.15 o'clock in the afternoon. No one else was
present except the applicant and the deceased. The crown case was that the applicant had deliberately
fired the gun at his wife with intent to kill her. The defense case was that the gun had accidently
discharged during its barrel being cleaned by the applicant.
 
It was further found that in 1964 the applicant and his wife and their young family were living in
Echuca. They became friendly with another married couple, Mr. and Mrs. Kemp, who also lived in
the town and had a young family. The two husbands were both interested in shooting. Later the
Kemps moved to Barmah out of Echuca, but the friendship continued. In March or April 1969 an
adulterous connection commenced between the applicant and Mrs. Kemp, and it continued until the
fatality. It reached a stage where the two parties were discussing leaving their respective spouses and
going off to live together. It had expressed itself spouses and going off to live together. It had
expressed itself in acts of intercourse up to the day before the shooting. It is unnecessary for
immediate purposes to go further into the conduct associated with this matter.
 
The applicant had for many years interested in and was the owner of the game weapons. About 1967
he acquired the shotgun involved in the fatality. It was an old double-barreled side by side shotgun.
In March or April 1970, because of a discussion between Kemp and the applicant, this gun was taken
by kemp to a gunsmith in Shepparton either for sale or repair (it was not clear which) and in late
March or early April it was returned to the applicant. It had not been repaired. It had some looseness
in the locking mechanism, and the resistance of the safety catch could be overcome by putting
sufficient pressure on the trigger. When it was returned, the gun was in an unloaded condition. The
applicant kept it thereafter on a bench in his garage at his home. The garage also provided shelter for
a canoe used in the applicant's shooting expeditions. Loose cartridges for ready use were kept in a
plastic container on the floor of the canoe. From the time the gun came back from the gunsmith until
the day of the fatality, the gun was not removed from the applicant or anyone else as to how it came
to be loaded. At some time on the fatal day the gun was brought into the kitchen of the house by the
applicant. At the time of its discharge it was loaded in both barrels. After the fatality the cartridge in
the right-hand barrel was still there and was found to have misfired. The cartridge in the left-hand
barrel had been fired and had caused the wound which killed the wife.
 

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Consideration of the evidence bearing on the cause of the gun discharging and, on the position, and
attitude of the wife at the time may be put aside for the time being and attention directed to certain
events or about the time of the shooting, which featured in the evidence. The time at which these
happenings took place are of importance.
At 1:09 p.m. a telephone connection was made from Melbourne to the house in Echuca at the
instance of the applicant's father. During the 2.9 minutes of the call between the father and the
applicant lasted the father heard the wife's voice in the background. Everything appeared to him to be
normal. Shortly afterwards a telephone operator in the Echuca Telephone Exchange, Janet Lucille
Flowers, took a call from the house. She says the time was then about 1:15 p.m. Her account was that
a woman's voice, at first calm and then punctuated by sobs and becoming hysterical, and finishing in
a yell, said to her - "get me the police, please", and later added - "59 Mitchell Street". As the
telephone connected with the police station the caller hung up. This call to the exchange was later
claimed by the applicant to have been made by him, but his version was that the shooting had
happened, and that it was an ambulance he had asked the exchange to get, not the police. According
to Miss Flowers, as the caller had hung up police had answered the phone, and after referring to her
superior officer, she had then told the police they were wanted at 59 Mitchell Street. She notified that
the time given by the exchange clock was 1:20 p.m. Because of the message to the police station
which was confirmed by another witness to have taken place about 1:20 p.m. And as the result of the
immediate dispatch of a police van to the house, a telephone call was made from the police station to
the number from which the call to the exchange had come. According to Miss Flowers she saw this
call being made through exchange mechanism about two minutes after her own call to the police.
Constable Bickerton, who made this last call to the house number, described how a voice answered
the call, saying, immediately, before any enquiry could be made - "help me, help me, for god's sake
come quick, for god's sake come quick". In answer to an enquiry from the police, the address given
as 59 Mitchell Street. The voice was described by the constable Bickerton as urgent, hysterical, very
quickly spoken and with a high inflexion. The applicant has said it was his voice and no challenge
were made at the trial to the contention that it was he who answered the 'phone'. Within three
minutes or so from the receipt of the first call at the police station the police had covered the journey
of a mile or a mile and a half and had arrived at the house and were there directed by the applicant to
the kitchen, where the wife was lying dead on the floor. The gun was on the floor of a small den
adjoining the kitchen.

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TRIAL AND APPEALS

Ratten was committed to trial for murder and the hearing took place in August 1970 in the nearby
town of Shepparton, Victoria. Despite the assertions of Ratten's defense counsel that the shooting
was accidental and evidence against him was circumstantial, the jury found Ratten guilty and he was
sentenced to death. This was later commuted to 25 years' prison.
Following the case, Ratten's lawyers undertook four separate appeals on various grounds, one of
which involved the exhumation of Beverley Ratten's body in 1973. All four appeals were dismissed.
Despite the failure of his appeals there was considerable doubt about Ratten's conviction, many
believing he was found guilty for the questionable morality of his marital infidelity rather than
concrete evidence. His case was widely discussed among the legal fraternity while his cause was
taken up by many notable lawyers and politicians, such as Don Chipp.
Don Chipp said that in 1971 Henry Winneke had told him the convicted murderer Leith Ratten was
innocent. In 1981 when Ratten had yet to be released, Chipp said Winneke denied the conversation
had taken place. Later, a member of the Supreme Court at the time of Ratten's trial, told Tom
Molomby Winneke had wanted to remove the jury from the trial. Such a move would require a belief
that the evidence would not support a guilty verdict.
Ratten served his sentence, was a model prisoner and was released in 1983. He worked as a surveyor
in Queensland. However, in 1981 he had been advised he would likely be released and was given
time on release to find a job, which he did. Then he heard via the radio that he would not be released.
Politicians making the decision had allegedly been pressured by the police force. Further
examination of the unfired cartridge was undertaken, and he was released soon after.

RATIO

Ratio (Victoria) Evidence had been admitted under the res gestae rule, that a woman making a
telephone call was in a hysterical state. Held: It was properly used. Where a statement is made either
by the victim of an attack or by a bystander, which is itself hearsay, but indicates directly or
indirectly the identity of the attacker, the admissibility of that statement is dependent on whether it
was made as part of the res gestae (all facts so connected with a fact in issue as to introduce it,
explain its nature, or form in connection with it one continuous transaction). The two difficulties
with such evidence are that it may be concocted, and the exactness of the words may not be sure. The
possibility of concoction is the real test of admissibility. Lord Wilberforce said: ‘Words spoken are
facts just as much as any other action by a human being. If the speaking of the words is a relevant
fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the
words spoken are relied on ‘testimonials,’ i.e. as establishing some fact narrated by the words.
Authority is hardly needed for this proposition. ‘and ‘It is difficult to imagine a case where there is
no evidence at all of connection between statement and principal event other than the statement
itself, but whether this is sufficiently shown must be a matter for the trial judge.’

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CASE REVIEW

The rules against hearsay is one of the oldest, most complex and most confusing of the exclusionary
rules of evidence1. Lord Reid has said that “is difficult to make any general statement about the law
of hearsay which is entirely accurate2.’’ one of the reasons is that its definition, and the ambit of
exception to it, are both unclear. Section 114 criminal justice act 2003 3 in England deal with
applications of the rule governing the admissibility of res gestae. Taylor defines “res gestae’’ as
including everything that may be considered “an incident of the event under consideration 4’’. This
phrase was familiar in classical Latin literature. Its meaning was quite unthecnical translating,
simply as “a fact’’ “a transaction’’ “an event’’. The plural form, res gestae indicated the details or
of which a transaction might be composed5. Applied to the law of Evidence it implies that when the
circumstances of events are in issue in a trial, evidence relating to any part of that event is relevant
and generally admissible. A fact may be relevant to a fact in issue, because it throws light on it by
reason of proximity in time, place, or circumstances 6.
However, English law has taken more liberal approach in recent years to evidence of this kind. In
LEITH McDonald RATTEN V THE QUEEN7 (Privy council) on appeal from the supreme court of
the state of Victoria., is one of the best examples, related the scope of the res gestae principle. So, I
expected to review this case related the scope of the res gestae principle. Lord Reid, Lord Hodson,
Lord Wilberforce Lord Diplock, and Lord Cross of chaste were judgers of this case. In Ratten v.
Queen the fact in this case were that accused has been charged with the murder of his wife. The
evidence in question was testimony from a telephonist who received a phone call from the Ratten’s
residence, opened the speak key and after saying “NUMBER PLEASE’’ hard the high-pitched
reply “GET ME THE POLICE PLEASE’’ then the words “59, MITCHELL STREET”. but before
she the connection to the police station, the call hung up. This was crucially important evidence in
the case. Because the evidence established that the shooting, from which the wife died almost
immediately, must have taken place in their home between 1.12 p.m. and 1.20 pm. Since the
telephonist was convinced the speaker was a woman, apparently in a state of fear. Ratten claimed
that he accidently shot his wife and that it was he who telephoned, asking for ambulance.
The appellant’s explanation, which he consistently maintained from his very first contact with the
police, was that an old shotgun had accidently discharged while he was cleaning it. This explanation,
however, was undermined by his inability to explain how the shotgun came to be loaded, and why,
as an experienced hunter, he had not checked to see if the gun was loaded. On these facts, the judicial
committee of privy council held that there was a prima facie case against the appellant. So,
privy council held that the telephonist evidence was admissible and appeal dismissed.
The scope of the res gestae principal was applied by the judicial committee of the privy council in
Ratten v Queen’s case. Lord Wilberforce said that in the context of the law of evidence, the term
may be used in at least three different ways.8
1. When a situation of fact is being considered, the question may arise, when does the situation
begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of
the gun or the insertion of the knife without knowing in a broader sense, what was happening.

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2. The evidence may be concerned with spoken words are then themselves the res gestae part of
the res gestae.
3. A hearsay statement is made either by victim of an assault or by a stander indicating directly or
indirectly the identity of the attacker. The admissibility of the statement is then said to depend on
whether it was made as part of the res gestae.

He further said that , “ Evidence would have been admissible as part of the res gestae
because not only was there a close association in place and time between the statement and
the shooting, but also the way in which the statement came to be made, in a call for the
police and the tone of voice used showed intrinsically that the statement was being forced
from the wife over whelming pressure of contemporary events,’’9 so, the privy council held
that the telephonist evidence was not hearsay and was properly admitted because of its
relevance to the issues. The privy council did however consider the fact that the evidence, in a way,
did contain a hearsay element, namely that the words as used by the wife did involve assertion of
the truth fact that she was being attacked by her husband.
In, Ratten V Queen case can evaluate res gestae concept very well. Because, until recently, the courts
took a strict approach as to when the event was continuing and when it had terminated. In the leading
R V Bedingfield the accused was charged with murder, his defense was that the deceased emerged
wounded from the room in which the accused had been, she stated “OH. DEAR AUNT, SEE WHAT
HARRY HAS DONE TO ME’’ she immediately died. This statement was excluded by Cookman
CJ on the basis that it was after the fact, and therefore, didn’t constitute part of the res gets. This
approach was followed by the supreme court of Canada in Gilbert V. The King, and also the Privy
Council has addressed itself as well as to the question of res gestae in Tepper V The king
.Finally , Ratten V Queen , the judicial committee altered the approach to res gestae, or as it
now termed “ Spontaneous exclamations ’’ , from the determination of whether the statement
constituted part of the trans action or event to the question of the risk of concoction or
fabrication of evidence by the defense.
Discuss the legal body of this case, this is an appeal case and dismissed the appeal. But, not
overruled any other judgments. Because, this case imitation a more liberal approach. So, it’s very
important reportable, case in England.
Indicate the contribution of this case to develop the related hearsay against rule. After the judgment
of this case was applied in lot of other judgments not only England but also other jurisdictions. In
R V Andrew10 the house of lords, following Ratten case upheld the admission of information given
by a man grievous wounded to two police officer. In Canada, Ratten has been referred to with
approval in two criminal cases’ V Mulligan 11 Mr. Justice O’Driscoll of the Ontario High court
admitted the statement, “Billy Stabbed me’’, on the basis that it constituted a dying declaration as
well as based on Ratten. In R V Barlow, and Garlow12 also Ratten has been referred. In Leong
Hong Kong Kheer and Tan Gong Wai V Public Prosecutor 13 and R V Haynes (2011) case where
the principles in Ratten’s case were adopted.

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Some writers mentioned their books about Ratten V Queen Case related res gestae concept. E.R.S.R.
Kumaraswamy in his text book on “The Law of Evidence ’’ , asserted that “ The scope of the res
gestae principle was considered by the judicial committee of the privy council in Ratten v
Queen ’’ 14 Cross in his text book on ‘ Evidence ’ indicate the Ratten case related the res
gestae concept and also , Peter Murphy in his text book on “ A Practical Approach to Evidence
’’ asserted that theory and development of the rule against hearsay related Ratten case. Not
only that, Melbourne University law journal, UNSW Law journal, Bond Law Review, Osgood Hall
Law journal mentioned the Ratten V Queen case related res gestaeing concept.
In my final opinion, I like to discuss merits and demerits about this judgment from my view. Discuss
the merits about this judgment, many years have passed since the Ever-shed Committee on Supreme
Court Practice and Procedure16 declared that desirable reforms in the hearsay rule could be achieved
'by a liberal interpretation of the rule of evidence known as res gestae'. In Ratten v. R. the Judicial
Committee accepted that invitation, seizing the opportunity to undertake a complete restatement of
the doctrine of res gestae. This readiness to deal with res gestates, on the assumption that the
evidence was hearsay, is indicative of the reform-oriented approach of the whole judgment. Indicate
the demerits about this judgment related res gestating concept. In this judgment Lord Wilberforce
said that, “the first is that there may be uncertainty as to the word exact used because of their
transmission through the evidence of another person than the speaker. The second is because of the
risk of concoction of false evidence by persons who have been victims of assault or accident.” So, I
thanked judges always must their attention facts in issue very carefully. If so, can get a good decision
related res gestating concept cases.

However, this judgment is very important and new liberal approach judgment.

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 SECTION 6 OF EVIDENCE ACT

Res Gestae is an exception to the rule against Hearsay evidence. Res Gestae is based on the belief
that because certain statements are made naturally, spontaneously and without deliberation during an
event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else
(i.e. by the witness who will later repeat the statement to the court) and thus the courts believe that
such statements carry a high degree of credibility.

Statements which can be admitted into evidence as Res Gestae fall into three

headings-

1. Words or phrases which either form part of, or explain a physical act,

2. Exclamations which are so spontaneous as to belie concoction, and

3. Statements which are evidence as to someone's state of mind.

(In some jurisdictions the Res Gestae exception has also been used to admit police sketches.)

The principle underlying Sec.6, of the Indian Evidence Act, 1932 the following is sometimes termed
as Res Gestae. This phrase means simply a transaction, “thing done”, “the subject matter”, “Res
Gestae” of any case properly consists of that portion of actual world’s happenings out of the right or
liability, complained or asserted in the proceeding, necessarily, arises. Apparently, the phrase is well
established in the Law of Evidence. It is necessary therefore, to understand what it really means.
That has been used in two senses. In the restricted sense it means world’s happening out of which the
right or liability in question arises. In wider sense it covers all the probative facts by which Res
Gestae are reproduced to the tribunal where the direct evidence of witness or perception by the court
is unattainable. In restricted meaning Res Gestae imports the conception of action by some person
producing the effects for which the liability is sought to be enforced in action. To be clear, in the
restricted sense “facts which constitute the Res Gestae must be such as so connected with the very
transaction or fact under investigation as to constitute a part of it.”

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. If any statement is made under the stress of excitement than such
statement form part of the same transaction and is admissible before the court of law.

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The strength of sec. 6 lies in its vagueness. 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 sec. 6 but whether it is reliable or not depends on the discretion of the Judge.

Whatever act or series of acts constitute, or in point of time immediately accompany and terminate
in. The principal act charged as an offence against

the accused from its inception to its consummation and whatever may be said by either of the parties
during the continuance of the transaction, with reference to it, including herein what may be said by
the suffering party, though in absence of the accused during the continuance of the action or the
latter, form part of the principal transaction and may be given in evidence as part of Res Gestae of it.
While, on the other hand, statements made by the complaining party, after all action on the part of
wrong-doer has ceased and some time has elapsed do not form part of Res Gestae and should be
excluded.

Section 6 of the Indian Evidence Act, 1872 states that,

“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.”

It is to be noted that sections 7,8,15,32 52-55 and others of the Indian

Evidence Act, 1932 also a part of this rule.

This section admits those facts the admissibility of which comes under the technical expression Res
Gestae [i.e., the things done (including words spoken) during a transaction], but such facts must
‘form part of the same transaction.’ If facts form part of the transaction which is the subject of
enquiry, manifestly evidence of them ought not to be excluded. The question is whether they do form
part or are too remote to be considered really part of the transaction before the Court. A transaction is
a group of facts so connected 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.

Res gestae has no exact English translation. A literal translation means “something deliberately
undertaken or done”2

Res gestae is an exception to the rule against Hearsay evidence. Res gestae is based on the belief
that because certain statements are made naturally, spontaneously and without deliberation while an
2
See Eleanor Swift, The Hearsay Rule at Work: Has it Been Abolished De Facto by Judicial Decision, 76 Minn. L.
Rev. 473, 475 (1992).

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event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else
(i.e. by the witness who will later repeat the statement to the court) and thus the courts believe that
such statements carry a high degree of credibility3.

Res gestae has been defined as “Things done, or liberally speaking, the facts of the transaction
explanatory of an act or showing a motive for acting; a matters incidental to a main fact and
explanatory of it; including acts and words which are so closely connected with a main fact as will
constitute a part of it, and without a knowledge of which the main fact might not be properly
understood, even speaking for themselves though the instinctive words and acts of participants not
the words and acts of participants when narrating the events, the circumstances, facts and declaration
which grow out of the main fact, and contemporaneous with it and serve to illustrate its character or
these circumstance which are the automatic and undersigned incidents of a particular litigated act and
are admissible when illustrative of such act.”4

According to Black’s Dictionary, res gestae meant “things done . . . things or things happened . . .
word spoken, thoughts expressed, and gestures made, all . . . so closely connected to occurrence or
event in both time and substance as to be a part of the happening. . .. [That is, the] whole of the
transaction under investigation and every part of it. . .. “ 5 .In other words, res gestae meant nothing
more than the modern words “same transaction or occurrence” and had something to do with
relevancy. Res gestae also encompassed “those circumstances which are the automatic and
undersigned incidents of a particular litigated act, which may be separated from act by lapse of time
appreciable, and which are admissible when illustrative of such act.”6

Section 6 uses words like transaction, bystanders etc. It is important to understand the implications of
these words to know the scope of this section.

3
Barik Mita, Res Gestae, Accessed at http://www.legalserviceindia.com/article/l185-
4
Vinodkumar Baderbhai Patel vs State of Gujarat, 1998 INDLAW GUJ 22
5
Black’s Law Dictionary 1305 (6th ed. 1990) (citing McClory vs Schneider, 51 S.W.2d 738, 741 (Tex. Civ. pp.1932)).
6
Ibid.

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WHAT IS A TRANSACTION

A transaction, as the term used in this sec. 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.7 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. 8But the main test
must be continuity of action and community of purpose. 9 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 action10. The expression suggests not necessarily
proximity of time so much as continuity of action and purpose.11 Buying a pen from the shop is also
a transaction. It ends the moment the buyer hands the money to the shopkeeper and the shopkeeper
hands the pen to the buyer. But certain transaction like murder extends over a longer period. When
can a transaction be said to end and when it begins; depends on the fact and circumstances of each
case.

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 facts 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.12

The section provides for the admission of several classes of facts which relate to the transaction
under inquiry modes,

(1) as being the occasion or cause of a fact;

(2) as being its effect;

(3) as giving opportunity for its occurrence; and

(4) as constituting the state of things under which it happened.

7
R vs Ring A 1929 B 296.
8
Banga Ch vs Annada 35 CLJ 527
9
R vs Loclay
10
Bandela Nagaraju vs State of A.P 1983 INDLAW AP 75
11
Ganesh vs R, A 1931 P 52.
12
Amritala vs R 42 C 957.

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BYSTANDER

The term by standers used in sec. 6 means all the person present at the time of incident. Where
several persons came to the spot immediately after a murder and was told by the eye witnesses who
the two culprits had been, their evidence is relevant. So, declaration must be substantially
contemporaneous with the fact in issue and must tend to illustrate ad explain it.

In Mahedra Pal vs. State13, the place where the murder took place was occupied by several 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 have been, their
deposition was judged to fall within the ambit of Section 6. Where on hearing sounds of gunshots
from the house of the victim, his neighbors run 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 under
this section 6.14

TAPE RECORDER

A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under
section 7 but such evidence must be received with caution. Where the tape-recorded conversation
carried music before and after the recorded conversation and the same could not be explained the
court said that the only plausible explanation was that the tape was tampered. A contemporaneous
tape recorded of a relevant conversation is a relevant fact and is admissible under section 7. The
manner and mode of its proof and its use in a trial is a matter of detail. It can be used for confronting
a witness with his earlier tape-recorded statements. It can be used for confronting a witness with his
earlier tape-recorded statements. It may also be legitimately used for shaking the credit of a witness.
For the use an earlier tape-recorded statement, the identification of the taped voices is a crucial and
matter and indeed such proper identification is a sine-qua-non-for the use of the earlier tape
recording. Where the voice is denied by the alleged maker thereof, a comparison of the same
becomes inevitable and proper identification of the voices must be proved by a competent witness.
The recording of the voice of a witness for a comparison with and identification of his earlier
recorded voice can therefore, be allowed by the court and such comparison is neither expressly nor
impliedly prohibited under any statue.
13
AIR 1955 All 328
14
Nathuni Yadav vs State of Bihar 1996 INDLAW SC 1562

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TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE

The primary question which the judge must ask oneself is-can the possibility of concoction or
distortion is disregarded?

To answer that question the judge must first consider the circumstances in which the statement was
made, 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.

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.

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.15

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
16
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.17

15
 R vs Pennel
16
R vs West, unreported, CA
17
R vs Smartt 2004 EWCA Crim 2072, 26.

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STATEMENT SHOWING MOTIVE AND INTENTION

A person’s statement that he intends to do something in the future is not admissible as evidence that
he did that thing. What someone says, where his intention is in issue, is very different matter to
investigating what someone says he is going to do to decide whether he carried out his stated
intention. In Wainwright case18, a girl left home telling her mother that she was going to visit
Wainwright. In Thomson case19, a girl said that she intended to perform an abortion on herself. Both
statements were held to be inadmissible because the declarant intention was not directly relevant.
The issue was, respectively, whether there was a meeting with Wainwright and whether the pregnant
girl performed the abortion herself. The statement of intention may or may not been carried out, in
either event they did not accompany and define the fact in issue 20. but in Buckley case21, it was held
that the statement made by the police officer that he is going to meet Buckley in course of his duty is
admissible as there is a likelihood that a police officer who says he has to meet someone in course of
his duty will do just that, whereas the intentions asserted by the girls in the above mention case may
or may not have been carried out.

Evidence may be given of the statements which accompany conduct to define the motive behind that
conduct. Statements which are not contemporaneous with an act cannot define the motive with which
it was done because the declarant may change his mind between the declaration and the act.

Sec. 8 deals with the relevancy of motive, preparation and conduct. It lays down that (1) a fact which
shows or constitutes a motive for any fact in issue or relevant fact is relevant; (2) a fact which
constitute or shows preparation for any fact in issue or relevant fact is relevant; (3) previous or
subsequent conduct of any party or of any agent to any party to any suit or proceeding, in reference
to such suit or proceedings, or in reference to any fact in issue or relevant fact, are relevant provided
such conduct influences or is influenced by any fact in issue or relevant fact.

In determining the fact whether a man charged with an offence, committed it or not, it is important to
know whether before the act he made certain preparations to do the act. Again, the conduct,
antecedent or subsequent, of the person committing an offence or of a person against whom an
offence has been committed, may be helpful in deciding as to whether a man has committed an
offence.

18
1875 13 Cox CC 171
19
1912 3 KB 19.
20
 Rosmund Reay, Textbook Evidence, 3rd ed, 2001, p.137.
21
1873 13 Cox CC 293

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CONTEMPORANITY AND SPONTANEITY

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 after 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.”22

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.23 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.24

22
Carroll vs Guffey, 156 N.E.2d 267, 270 Ill. App. Ct. 1959
23
See John Henry Wigmore, Evidence in Trials at the Common Law p. 1362 (James H. Chadbourn ed.,
1978).
24
Ibid

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MORE ENGLISH CASES WHERE THIS CASE WAS CITED

 Cited – Regina v Giles (http://swarb.co.uk/regina-v-giles-cacd-13-mar-1997/) CACD (Bailii

(http://www.bailii.org/ew/cases/EWCA/Crim/1997/731.html), [1997] EWCA Crim 731) The
case involved an assault. The crown sought to introduce as evidence a statement made by the
defendant’s brother at the scene under the res gestae rule. Held: The circumstances were such
as to allow admission of the evidence under the tests.
 Cited – Regina v Andrews (http://swarb.co.uk/regina-v-andrews-hl-1987/) HL ([1987] 1 AC
281, (1987) 84 Cr App R 382, [1987] 2 WLR 413, [1987] 1 All ER 513) The court should
deprecate any attempt to use the res gestae doctrine as a device to avoid calling a witness if
he or she were available. The court laid down six tests for the admission of evidence under
the res gestae rule. Lord Ackner said:
 Cited – Bradford and Bingley Plc v Rashid (http://swarb.co.uk/bradford-and-bingley-plc-v-
rashid-hl-12jul-2006/) HL (Bailii (http://www.bailii.org/uk/cases/UKHL/2006/37.html),
[2006] UKHL 37, Times 14-Jul06, [2006] 1 WLR 2066, [2006] 4 All ER 705, [2006] 29 EG
132, [2006] 2 All ER (Comm) 951) The House was asked whether a letter sent during
without prejudice negotiations which acknowledged a debt was admissible to restart the
limitation period. An advice center, acting for the borrower had written, in answer to a claim
by the lender for.
 Cited – Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972)
(http://swarb.co.uk/regina-v-w-reference-under-section-36-of-the-criminal-justice-act-1972-
cacd-8-may2003/) CACD (Bailii
(http://www.bailii.org/ew/cases/EWCA/Crim/2003/1286.html), [2003] EWCA Crim 1286,
[2003] Crim LR 547, [2003] 2 Cr App R 29) The allegation was of a serious assault on the
defendant’s wife. The prosecution considered she would not be a reliable witness and did not
call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There.


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 CONCLUSION

In conclusion of this project the hypothesis that the researcher had assumes in the begging of this
project stand disproved, because the privy council has very clearly shown the connection of timings
and facts of this case. The intention of law makers was to avoid injustice, where cases are dismissed
due to lack of evidence. Many at times it happens that, even though the judges and the jury know that
the accused person is the killer but due to lack of evidence cannot really execute and sentence. This
case was of a similar nature and was very controversial, but the judges here acted very judiciously
and propounded the rule of Res Gestae and made evidences which are generally inadmissible,
admissible. It is because of this case that usually evidence is brought under res gestae when it cannot
be brought under any other section of Indian evidence Act.
Court has always minded that this doctrine should never be expanded to an unlimited extends. That
is why Indian 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 sec.6 of the evidence act. 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 sec. 6 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 sec. 6
but whether it is reliable or not depends on the discretion of the Judge. If any statement is not
admissible under sec. 6 it can be admissible under sec.157 as corroborative evidence.
This judgment of the Judicial Committee of the Privy Council is note- worthy for the significant
attempts at reform contained within it. The clear rationalization and extension of the res gestae
doctrine is to be commended, as is the lead given towards the more rational assessment of the
probative value of evidence. But both initiatives are undermined by the Judicial Committee's refusal
to investigate the unexplored 'periphery of hearsay'. This case has been regarded as significant
because of its clear restatement of the res gestae doctrine: most of the commentators seem to have
overlooked the fundamental criticism that 'far greater uncertainty is likely to be produced by doubts
concerning what a rule is than by doubts concerning the number of exceptions to it.

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BIBLIOGRAPHY

 BOOKS:
1. Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2011
2. Monir, M. Law of Evidence. Delhi: Universal Law Publishing, 2006
3. Krishnamachari, V. Law of Evidence. Hyderabad: S. Georgia & Company,
2012
4. Lal, Batuk. The Law of Evidence. Allahabad: Central Law Agency, 2007
5. Myneni, S.R. The Law of Evidence. Asian Law House, 2008

 INTERNET SOURCES:

1. http://remediallawdoctrines.blogspot.in/2011/12/res-gestae-principle-exception-to.html
2. http://hawaiiopinions.blogspot.in/2008/02/res-gestae-die-hard-doctrine.html
 

3. http://www.kostrolaw.com/NJFamilyIssues/2011/06/13/the-common-law-doctrine-of-res-
gestae/
4. http://www.kostrolaw.com/NJFamilyIssues/2011/06/13/the-common-law-doctrine-of-res-
gestae/
5. http://www.euppublishing.com/doi/abs/10.3366/elr.2007.11.3.379
6. http://www.legalserviceindia.com/article/l185-Res-Gestae.html
7. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299111

 STATUTES:

1. Indian Evidence Act of 1872

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