RES GESTAE:

The term ‘Res Gestae’ has been derived from Latin words meaning “things done’’- ‘it refers to spontaneous facts or statements that are so closely connected to an event or transaction that they form part of it and cannot be separated from it without losing meaning’.

Halsbury defines ‘Res Gestae’ as “Facts which form part of the res gestae and are consequently provable as facts relevant to the issue; include acts, declarations and incidents which themselves constitute or accompany and explain the facts or transaction in issue”.

According to Taylor, Res Gestae is a fact, transaction or an event in continuity with the main transaction. It will include everything which can be considered to be fairly connected with the main event.

There has to be a continuity of the transaction and in order to be Res Gestae, there has to be an automatic and spontaneous connection between fact under question and fact in issue.

Evolution of Doctrine of Res Gestae

Res Gestae was originally used by Romans which means ‘acts done or actus’. English and American writers have described res gestae as facts that are naturally or automatically part of the same event or incident. These are actions or statements that essentially "speak for themselves" because they’re closely linked to the main event. Because of this close connection, they become relevant in understanding what actually happened. Even surrounding circumstances can be considered part of res gestae, meaning they’re treated as original evidence of the incident. This includes not just actions, but also statements made or gestures shown during the event itself - all of which are seen as part of the whole transaction.

Expansion of the Doctrine of Res Gestae:

Over time, courts have broadened the scope of the res gestae doctrine, especially in sensitive cases like domestic violence, child testimony, and sexual assault.

In many instances of domestic abuse or physical and sexual assault, the events involve sudden, traumatic situations. Victims often react instinctively, with what are known as "excited utterances"- spontaneous statements made in the heat of the moment. These utterances can be crucial, especially when the victim can only identify the attacker but struggles to provide a full account. Courts have recognized that such immediate reactions should be considered as valid and admissible evidence.

For example, in rape or sexual offence cases, victims—often women—may experience severe trauma. It's not uncommon for them to take a day or more to process what happened before they’re able to speak about it. If it can be shown that the victim was still in a state of shock when they made a statement, that response should be treated as part of res gestae. This is important because such crimes often happen in isolation, with no eyewitnesses present, making the victim’s immediate reaction critical to the case.

The concept of "excited utterance" is also particularly relevant when it comes to children. Courts have acknowledged that children process traumatic events differently- they often need time to feel safe enough to speak. As a result, even if a child’s statement is made sometime after the incident, it can still be accepted under res gestae, provided it's spontaneous and tied directly to the event.

A good example is the case of Uttam Singh v. State of Madhya Pradesh (2002). In this case, a child witnessed the murder of his father, who was attacked with an axe. The child, in a state of fear, cried out for help to his mother. Although the child didn’t immediately give a formal statement, the court accepted his later testimony under Section 6 of the Indian Evidence Act, recognizing it as part of res gestae due to the traumatic circumstances.

Doctrine of Res Gestae as an exception to Hearsay Rule:

Res gestae is an exception to the hearsay rule because it involves statements or actions that happen at the same time as the main event, making them part of the same transaction. Their immediacy and connection to the event give them a level of reliability that courts recognize.

In case where:

• The statement or act is made spontaneously; or
• It is contemporaneous with the event; or
• It is made without time to fabricate; or
• It illustrates or explains the event itself.

For example:

A killed B, and C was the only eyewitness. Later, C told D what had happened. If D goes to court and testifies about what C saw, that testimony wouldn’t be allowed. That’s because D didn’t actually witness the event- he only heard about it from someone else. This type of second-hand information is called hearsay, and it’s generally not admissible in court.

A person’s testimony is admissible in court when they speak about something they personally saw or heard, and it's directly relevant to the case. However, if the truth of what they’re saying depends on someone else’s words or actions—especially when that other person isn’t in court—then it becomes hearsay and is usually not allowed.

Hearsay is considered weak or unreliable for several reasons:

• • The original speaker or witness isn’t available for cross-examination.
• • The statement wasn’t made under oath.
• • There's a real risk that the message was misunderstood, changed, or even fabricated as it was passed along from one person to another.

Because of these risks, courts generally don’t accept hearsay as strong evidence—unless it falls under specific exceptions like res gestae.

• “Res gestae and the Hearsay Rule are the two intimately connected concepts. Hearsay evidence means the statement of a person who has not seen the happening of the transaction, but has heard of it from others. The general rule is that hearsay evidence is not admissible in proof of a fact which has been stated by a third person.”

Therefore, English Law treats res gestae as a narrow exception to hearsay, with strict conditions. Indian Law (under Bharatiya Sakshya Adhiniyam, 2023) adopts a broader, context-focused approach, enabling the court to see the entire chain of events as one unit.

Case- Ratten v. Queen

The caller, a woman, giving her address in distress requested the telephone operator to connect to police, but call could not be completed as it ended suddenly. When the police came to her house, she was found dead. Her husband was prosecuted. The call by that woman and whatever she said was held to be ‘Res gestae’.

Scope and Applicability of Res Gestae in Indian Law

The admissibility of facts under res gestae is conditional upon their immediate or proximate connection to the main fact in issue. Courts have consistently emphasized the importance of spontaneity and contemporaneity in applying Section 4 of the Bharatiya Sakshya Adhiniyam. For instance:

In case of Bhagwan Swarup v. State of Maharashtra, (1965) 3 SCR 368, the Supreme Court reiterated that the key factor is whether the act or statement was made under the influence of the main event, without the influence of deliberation or afterthought.

The doctrine of res gestae, now codified under Section 4 of the Bharatiya Sakshya Adhiniyam, 2023, continues to play a vital role in broadening “what can be accepted as evidence in Indian courts?”.

By allowing spontaneous actions and statements that are closely linked to a particular incident, the law helps ensure a more complete and trustworthy process of uncovering the truth.

That said, applying this doctrine isn’t straightforward- it demands careful consideration by judges to strike the right balance between admitting relevant facts and avoiding hearsay. As technology and society evolve, courts must keep updating and refining these standards to make sure the pursuit of justice remains both fair and effective.

Challenges in Application of Doctrine of Res Gestae:

While Res Gestae serves as an important exception to the hearsay rule, its application is not without challenges. The courts often struggle with determining the boundaries of spontaneity, particularly in cases where there is a delay between the main event and the act or statement in question. Furthermore, in an era of increasing technological complexity, ensuring the authenticity and contemporaneity of digital evidence presents new evidentiary hurdles.

In State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, the admissibility of electronic records was questioned, with the court emphasizing the importance of securing a proper certificate under Section 65B of the Indian Evidence Act (Section 63 BSA). This illustrates the growing need for corroborative evidence when admitting digital or electronic data under the res gestae principle.

Can F.I.R. be covered under the Doctrine of Res Gestae?

FIR can be covered under the doctrine of res gestae if it forms part of the same transaction and is registered immediately following the incident without any lapse of time, ensuring its spontaneity and credibility.

The FIR must be made immediately after the incident, without any significant delay. It should be spontaneous and directly connected to the event, leaving no time for the person reporting it to fabricate or manipulate the facts.

For example, in case of Sawal Das v. State of Bihar (1974), the Supreme Court accepted an FIR lodged by a neighbour who heard the victim's cries. Since it was made as part of the continuing sequence of events, it was treated as part of the same transaction under res gestae.

However, the Court clarified that not all FIRs would automatically qualify under res gestae- only those that are spontaneous, contemporaneous, and closely connected to the event without time for fabrication.

SECTION 4:

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 bystanders 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 goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, thought. 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.

Purpose of Section 4: is to ensure that the court considers every fact that is closely connected with the central event in question — even if it's not directly in dispute. It recognizes the legal principle of "res gestae", where events closely linked in time, place, or circumstance can help establish the truth of a case.

Section 4 of Bharatiya Sakshya Adhiniyam, 2023 constitutes of:

• Existence of a Fact in Issue or Relevant Fact: There must be a main fact under consideration- a "fact in issue" like whether a crime was committed, or a contract was broken.

• Another fact is so connected with it: A second fact (not directly in issue) should be closely related to the fact in issue — not just random or unrelated.

• That both facts form part of the Same Transaction: The connected fact and the fact in issue must belong to one continuing series of events- they should be linked in such a way that they cannot be separated logically or legally. This is based on the doctrine of “res gestae”, which includes spontaneous events that are part of the incident.

• Time and Place may vary: Even if the connected facts happened at different times or locations, they can still be considered part of the same transaction if they are linked by continuity of action or purpose.

• Such connected facts are Relevant: When these criteria are met, such facts are not just interesting — they are legally admissible in court as evidence.

Same Transaction:

The term ‘same transaction’ used in the section 4 BSA is not defined in the act however the same is used to constitute a single act. That single act may be any crime, contract or wrong etc. The act possibly has been committed on different places or at different times.

Sir James Stephen defines, “a transaction is a group of facts so connected together as to be referred to by a single name such as a crime, contract or wrong or any other subject of enquiry, which may be in issue”.

For example:

A is accused of the murder of B. The statements and actions made by A, B, or others during the killing are relevant, even if not themselves part of the murder, because they form part of the same transaction.

CASE LAWS RELATED TO SECTION- 4:

• In Najmunisha v. State of Gujarat, (2024): Supreme Court held that the idea to search the house of Accused No. 4 appeared to be an afterthought, given the admitted delay of 40–45 minutes between receiving the secret information and conducting the search. The Court ruled that the search was not a continuation of the initial action based on the tip-off, and therefore could not be considered part of the same transaction.

• Arvind Kumar vs State (NCT of Delhi) (2023) SC: The Supreme Court of India has held that statements made in connection with a criminal act are relevant for applying the Doctrine of Res Gestae, as incorporated in Section 6 of the Indian Evidence Act, 1872 (Section 4 of BSA, 2023). The Court emphasized that, in order to fix responsibility for the crime, the Theory of the Crime must first be clearly established. Hence, the statement of the prosecution witness must support and be consistent with the facts leading up to the alleged criminal act. For the Doctrine of Res Gestae to be invoked as a rule under the law of evidence, the theory of the crime must align with normal human behaviour and conduct.

It was held that the Doctrine of Res Gestae is an exception to the hearsay rule, which generally deems hearsay evidence inadmissible. Under this doctrine, a spontaneous declaration made by a person immediately after an incident—before they have had the chance to fabricate or distort the facts- is considered reliable and admissible in court.

• In Sukhar v. State of U.P. (2000) case, the Supreme Court observed “the principle of law embodied in Section 6 of Evidence Act (S. 4 BSA) is usually known as `Res Gestae.’ The essence of the doctrine is that a fact which though not in issue, is so connected with fact in issue as to form part of same transaction becomes relevant itself. This Rule is roughly speaking in exception to the general Rule that hearsay evidence is not admissible, rationale in making certain statements or facts admissible under Section 6 IEA (Section 4 BSA), is on account of the spontaneity and immediacy of such statement or fact in relation to fact in issue. But it is necessary that such statement or fact must form part of same transaction.”

• In Gentela Rao v. State of Andhra Pradesh (1996) case, where the appellants were accused of setting a bus on fire, resulting in the death of 23 people and injuries to several others, the statements of the victims were recorded by a Judicial Magistrate. These statements were presented as evidence under Section 6 (Section 4 BSA), claiming they were part of the res gestae. the Apex Court held that there was some appreciable interval between the acts of incendiarism indulged in by the miscreants and the judicial magistrate recording statements of the victim. That interval, therefore, blocks the statement from acquiring legitimacy under section 6 of the IEA (Section 4 BSA).

The Apex court held that “such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae”.

• R. M. Malkani vs State of Maharashtra (1973) SC: This case is based on relevancy of tape-recorded conversations. One of the issues in this case was whether the tape-recorded conversations were relevant under IEA, 1872 [now Bharatiya Sakshya Adhiniyam, 2023]. The SC held that the evidence of the tape-recorded conversations is highly reliable if the accuracy of the record is proved beyond doubts. The SC gave following guidelines to be considered before admitting such evidence:

• a. The conversation in question is relevant to the matter in issue.
• b. There is identification of voice.
• c. The accuracy of the tape-recorded conversations is proved by eliminating the possibility of erasing the tape record.

The burden of proof lies upon the prosecution to prove that the evidence is tampered with.

SECTION- 5

Relevancy of Facts which are occasion, cause or effect of Facts in issue or relevant facts

Section 5: states-

Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

Illustrations:

• a. The question is, whether A robbed B. The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.
• b. The question is, whether A murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.
• c. The question is, whether A poisoned B. The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are the relevant facts.

Section 5 of the Bharatiya Sakshya Adhiniyam, allows the court to consider facts that set the stage for the main event or transaction. These facts may not be directly in dispute but are relevant because they provide context or background that helps in understanding the main facts.

Nature and Scope of Section 5:

Section 5 expands the scope of the Act by allowing the admission of facts that are indirectly connected to a fact in issue. It focuses on the cause-and-effect relationship in a legal setting and plays a key role in either supporting or challenging the facts in question through circumstantial evidence.

Section 5 covers the facts that “indirectly help the court understand how, why, or in what circumstances” a fact in issue occurred.

Purpose of Section 5:

This section ensures that the court has a complete understanding of the circumstances surrounding the facts in issue. By allowing the consideration of facts that set the stage for the main event, the court can make a more informed judgment.

Section 5 comprises of the following ingredients:

i. There must be a fact in issue or a relevant fact

ii. The other fact must be the:

• o Occasion, or
• o Cause, or
• o Effect (immediate or otherwise) of the fact in issue or relevant fact, or

iii. the fact must relate to the “state of things” in which the main fact occurred; or

iv. the fact must afford an opportunity for the occurrence of the fact in issue or relevant fact.

Section 5 of the Bharatiya Sakshya Adhiniyam, 2023 declares the following facts to be relevant-

This section, provides for the relevancy of the following kinds of facts:

• - Facts constituting the “Occasion”
• - Facts which show the “Cause”
• - The “effects” of the principal facts;
• - Facts which provide the “opportunity” for the happening of the principal fact, and
• - Facts which constitute the “state of things” under which the principal facts happened.

Explanation:

i. Occasion:

Under the Bharatiya Sakshya Adhiniyam, 2023, the concept of “occasion” is not explicitly defined, but various provisions of the Act recognize the significance of the circumstances or events surrounding a particular incident. The occasion or opportunity helps the offender in commission of an offence.

Example:

• A is accused of B’s murder, and A denies any such act. C saw A with B on the day of the murder. Here, the question of whether A had committed murder or not is a “fact in issue” and the fact that C saw A on the day of murder with B will be the “relevant fact”. This information creates occasion or circumstances for the crime. Hence, the fact that C saw A on the day of murder with B is admissible under Section 5.

In case of R v. Richardson, where a person was charged with the rape and murder of a girl, the fact that the girl was alone in her cottage at the time of her murder is relevant because it provided the occasion in which the crime happened.

ii. Cause:

“Cause” explains as to why a particular act was done. It helps the Court to connect a person with the act. The act in question must have been done by the person who had the cause for it.

The term ‘cause’ means the reason for which an incident takes place. It is well established that there is always a reason behind the happening of any event. Thus, the fact constituting the cause is capable to establish the link.

The case of R v. Richardson, is the leading case on this point. In this case, an unmarried girl was pregnant, has been murdered. Thus, pregnancy of that girl by a person may be the cause behind murder & the probability is that the murder is committed by that person by whom she got pregnant.

In Indian Airlines v. Madhuri Chaudhari (AIR 1965) case, the Calcutta High Court- held that the report of an enquiry commission relating to an air crash is relevant under section 7 IEA (S. 5 BSA) as establishment the “cause” of the accident.

iii. Effect:

An effect is the ultimate result of an act being done. It is well established that every incident leaves behind it any effect or any marks. Such effect is capable to explain the commission of offence or happening of incident or nature of incident or identity of offender.

The concept of cause and effect will bring within the reach of this Section a lot of facts that are relatable to each other on the basis of logic and induction.

Example:

• A dead body is found on railway track; it can be inferred that the death of the person took place due to running over the person by the train. If no blood stains are seen nearby, then we can infer that the person was killed somewhere else and his body is thrown on the railway track to create misleading

In case of R v. Richardson, a young girl was killed in her cottage, the prints of the footsteps showed that they were those of a person who must have worn shoes, the soles of which had been newly mended and which had iron knobs or nail in them. This was one of the “effects” of facts in issue.

iv. Opportunity:

“Opportunity” refers to the circumstances that made it possible for a person to commit a crime or perform a relevant act. It does not prove that the person did it, but it supports the possibility that they could have done it.

Section 5 makes “facts which afforded an opportunity for the occurrence or transaction” relevant. This means that even if a fact does not prove the act itself, if it shows that the person had the chance to do it, it becomes admissible in evidence.

In case of R. v. Donellan, the deceased suffered from a trifling ailment, for which he occasionally took a laxative draught. The draught was usually served by his mother. The accused knew all this and also the time at which it was usually served. He accordingly replaced the bottled with a bottle containing the poison. The mother innocently administered poison to her son of which he died. The fact of the accused’s knowledge the deceased’s habit was held to be relevant as it afforded an “opportunity” to the accused.

v. State of thing:

State of things are the surrounding circumstances under which a certain act took place, for instance the health of the deceased, the relationship of the parties, etc. Such facts are relevant because they capable to explain the happening of principle facts. State of relation between the parties, state of health of deceased & his habit are good example.

In case of Ratten v. Queen (1971), the accused was prosecuted for shooting down his wife and he took the defence of accident, the fact that the accused was unhappy with his wife and was carrying on an affair with another woman was held to be relevant as it constituted the state of things in which the principal fact, namely, the shooting down, happened.

Conceptual analysis of Section 5 and Last Seen Theory:

The “Last seen theory” is a rule of circumstantial evidence. It posits that:

• ‘Where a person was last seen alive in the company of the accused, and the time gap between that sighting and the discovery of the person dead is narrow, a presumption arises under Section 106 of the Bharatiya Sakshya Adhiniyam (burden of proving facts especially within knowledge) that the accused must explain the circumstances leading to the death’.

The Last seen theory, though a principle of circumstantial inference, finds its statutory relevance under Section 5 of the Bharatiya Sakshya Adhiniyam, 2023, which permits the admission of facts that afford an opportunity, constitute the state of things, or form the occasion or cause of the transaction in question. Hence, the last seen circumstance is not merely a factual observation but a legally relevant fact under Section 5, when part of the chain of circumstances pointing toward guilt.

In the following manner the evidentiary support of Last seen theory through Section 5 can be demarcated:

• • Fact affords opportunity: If A was last seen with B before B’s death, that affords an opportunity for A to commit the crime.
• • State of things: Circumstances like A and B being alone, in a remote area, or A behaving suspiciously form the state of things relevant under Section 5.
• • Cause or occasion: A possible fight or motive just before the disappearance/death adds context as the cause of the incident.

CASE LAWS RELATED TO SECTION- 5:

• Deepak Chandrakant Patil vs State of Maharashtra (2006) SC:

The court observed in this case that the theory of “last seen theory” is one where two persons seen together alive and after an interval of time, one of them is found alive and other is dead. If the period between the two is short, presumption as to the person alive being the author of dead of the other can be drawn. Section 7 IEA [now Section 5 BSA], includes the doctrine of “last seen theory”. The bench observed that where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstances of last seen together and absence of explanation would provide an additional link which complete the chain.

• Anjan Kumar Sarma vs State of Assam (2017) SC:

In this case the prosecution is only relying on the last seen together theory. The court observed that the last seen together theory is a corroborative piece of evidence and conviction cannot be based solely upon it. It merely shows that the accused had to commit the crime, but it does not prove that the accused committed crime with certainty. In the absence of proof of other circumstances conviction cannot be made merely because the accused and the deceased were last seen together and there is absence of satisfactory explanation in this regard.

• Raj Kumar @Raju vs State (NCT of Delhi) (2017) SC:

The court observed that the foundation of theory is based on the principles of probability and cause and connection. An accused could not be convicted merely on the fact that at some point he was spotted with the victim. Though the ‘last seen’ theory is an important link in the chain of circumstances that would point to the guilt of the accused with some certainty. It is well settled that it is not prudent to base the conviction solely on the theory.