- Tejas Chhura
Originating from the Latin phrase meaning 'things done’, the doctrine of res gestae has been a matter of great contention. An exception to the rule of hearsay, this doctrine allows for statements made during, or immediately before or after an event, to become admissible. While some scholars have praised the doctrine as a pathway to facilitate the pursuit of truth, others have called it a convenient obscurity.
Regardless of its merits, this doctrine has found widespread usage in the Indian context, with courts rooting it in Section 6 of the Indian Evidence Act. However, this paper aims to challenge the need to import such a doctrine in the Indian context. It begins by providing a brief background regarding the current position of law and then proceeds to argue that the manner in which Section 6 of the Act is drafted cannot accommodate for the same. It then analyses the need for such a doctrine in the Indian context and argues that the costs of allowing such a doctrine outweigh the potential benefits that it may provide.
The Courts Have Conflated the Principles of Relevancy and Admissibility
Indian courts have rooted the principle of res gestae in Section 6 of the Indian Evidence Act. However, it is submitted that doing so is incorrect as, it conflates the principle of relevancy and admissibility as present in the Indian Evidence Act.
James Stephen, in his book, "A Digest To the Law of Evidence", explains his intention behind codification and the manner in which the sections of the Indian Evidence Act was drafted. One of the more radical changes introduced was an attempt to distinguish between relevancy and admissibility. While relevancy relates to the facts that needs to be proved, admissibility relates to the nature of evidence that can be provided to prove that fact. However, despite this attempt at resolving potential issues that could arise out of mixing fact and evidence, judicial intervention has essentially negated any such distinction, and the reading in of res gestae into Section 6 is a prime example of this.
Section 6 begins with the word "facts" and outlines when certain facts can become relevant (when they are part of the same transaction). Res gestae, on the other hand, is an exception to the rule of hearsay which is at its core is a question of admissibility. Given the fact-evidence dichotomy that Stephen intended in the Act, i.e., a fact is what needs to be proved and evidence is the manner of proving the fact, it would be incorrect to bring a principle concerning admissibility under a section that merely makes facts relevant. This intention to not include res gestae in Section 6 can also be ascertained from the manner in which Stephen talks about the doctrine in Note V of the aforementioned book. Herein, there is an explicit attempt to avoid the importation of the doctrine owing to the confusion presented by the doctrine by introducing this distinction of relevancy and admissibility.
One could potentially attribute the historical importation of res gestae in Section 6 to the nature of the judges at the time that the Evidence Act was introduced. Historical accounts suggest that the judges themselves were unsure of the principles of the Act and often times being from common law jurisdictions themselves, relied on their own conceptions of evidence law. This effectively resulted in a system that closely resembles the common law approach to evidence law, which inadvertently brought in the doctrine of res gestae. However, times have changed, and it would be irresponsible to continue locate the doctrine of res gestae in Section 6. Instead, there is a need to either find some other port of entry, or remove the same entirely, a proposition that is elaborated on in a subsequent section of the paper.
Res Gestae: Safeguard Against Hearsay or Unnecessary Interjection
The principle of res gestae has often been criticized as a "convenient obscurity," with several jurists often saying that it is merely used to cover for ignorance and loose ideas. This Section aims to first analyse some prominent criticism to the rule of hearsay to analyse if the doctrine of res gestae resolves the concerns surrounding the same (A) and then follow this with an analysis of whether the presumption the principle is based upon is even true according to empirical studies (B).
A. The Doctrine of Res Gestae Does Not Address the Concerns Pertaining To the Rule of Hearsay
As res gestae is an exception to the rule of hearsay, it is essential to consider the challenges posed by the rule of hearsay itself. Professor Tribe in his work, Triangulating Hearsay, highlights the issue with the rule through the construction of what he terms as a testimonial triangle as shown below.
By allowing indirect evidence, the statement must be made (A), believed to be true (B), and then based on that statement, a conclusion is to be reached (C). However, when connecting each of these steps, there are several concerns that crop up, as highlighted [between A and B the question of sincerity and ambiguity arise, while from B to C, issues of perception or memory may creep in].
While it is true that most of these issues may persist even with direct oral testimony, what distinguishes the two situations are the safeguards present to oral testimony such as oath, demeanour, and cross-examination. Without access to any of these tools, there are very few methods of verifying the statements. However, even if these safeguards were to be given, the witness may simply state that that is what they heard, thus, rendering the above safeguards useless.
Hence, it is clear that evidence based on hearsay presents challenges and is rightfully barred in most jurisdictions. However, this begs the question, does the principle of res gestae resolve any of these issues? Even if one were to assume that an individual cannot fabricate any statements in the moment of the event, this merely resolves the issue of insincerity. The issues with ambiguity and those present in the right leg of the triangle continue to persist, especially in light of the numerous studies showing that the rational thinking abilities of humans decrease during traumatic or sudden events. Therefore, the concerns surrounding the admissibility of hearsay evidence, continues to persist, even in the case of statements made as part of the same transaction.
B. The Principle Is Based On Incorrect Presumptions
The principle of res gestae is primarily based upon a presumption of human behaviour, namely, that individuals would be unable to fabricate any statement made during or immediately after the event. This is primarily what the Courts in cases such as Gentela Rao seem to be concerned with.
However, it is contended that when a person is unable to fabricate a lie due to the traumatic or surprising situation, it is not the ability to fabricate a lie that is lost but rather the ability to think rationally and logically that fails. This is concerning because it is likely that the statements made by the individuals who would fall within res gestae would be a result of some other factors rather than an accurate account of what they might have seen. This proposition is supported by numerous research studies that aimed to analyse if traumatic experiences or stress have an effect on the judgmental processes. A study published in the Journal of Applied Social Psychology, found that during traumatic or surprising events, not only do people's ability to effectively differentiate and integrate new information decrease, but the emphasis they give towards negative evidence also rises sharply. Another such study also arrived at a similar conclusion. They concluded that humans could not comprehend and process new information effectively during or shortly after a traumatic event. As a result, they tend to link what they observe and believe to their past experiences and beliefs. While only two studies have been cited here, there are numerous other studies conducted by leading international institutions and peer reviewed journals in the field of psychology that arrive at the same conclusion.
This is highly problematic as it strikes at the very core of the doctrine and makes any strict application of the principle necessarily arbitrary. There are 2 potential situations that could arise:
a. If the time period is long enough to allow for fabrication: the statement must not be admitted as stand-alone evidence as it could unfairly prejudice the accused.
b. If the time period is short enough not to allow for fabrication: the statement should be disallowed because it was made in a compromised state of mind with limited logical and cognitive functioning.
The principle of res gestae always has and will always be a topic of contention even though it appears to have cemented itself into Indian evidence law. This paper aimed to challenge this presumption. It began by explaining the relevancy-admissibility distinction and why it is necessary to consider the same in any reading of the Indian Evidence Act. It then explored the potential reading the doctrine into section 6 of the Indian Evidence Act and suggested that allowing for such a concept to be present would collapse the relevancy-admissibility distinction which James Stephen regarded as the core to the Act. The paper then explored some criticisms of the doctrine. It looked at empirical research to argue that the costs of importing the doctrine into Indian jurisprudence would significantly outweigh the benefits. Therefore, it concludes that the importation and usage of res gestae should be seriously reconsidered in Indian jurisprudence.