By: Hiranya Gupta

INTRODUCTION

Historically, res gestae encompassed both actions and words closely connected to an event in time and circumstance that helped explain how the event unfolded. Over time, however, the term came to denote a specific hearsay exception for spontaneous statements concerning the offence, particularly perpetrator identity, as clarified in R v Andrews. This piece adopts that narrower meaning, reflecting the dominant line of judicial reasoning in India. This doctrine functions as a recognised exception to the hearsay rule when statements are offered for their truth.

As established in Ratten v R, statements are admissible as res gestae if made in spontaneous circumstances where possibility of fabrication can be ruled out (“spontaneity test”). Indian courts adopted this test while grounding it in Section 6 of the Indian Evidence Act (hereinafter ‘IEA’), now Section 4 of Bharatiya Sakshya Adhiniyam (hereinafter ‘BSA’), which addresses facts connected to the event in issue.

This piece proceeds in three parts. First, it demonstrates that Indian courts have applied the doctrine unevenly by confusing hearsay with conduct, misapplying the spontaneity test, introducing extraneous admissibility factors, and admitting evidence while bypassing the statutory requirement of establishing relevancy. Second, it defends the continued relevance of res gestae as a narrow hearsay exception, particularly in cases involving private and traumatic crimes where early statements are often crucial. Finally, drawing from precedents, statutes and comparative jurisprudence, it proposes a narrowed codification that would restore doctrinal clarity.

MISINTERPRETATION AND MISAPPLICATION OF THE RES GESTAE DOCTRINE

The rule against hearsay bars admissibility of hearsay statements unless they fall within carved-out exceptions. This is because hearsay cannot be tested by cross-examination, reducing its probative value. Res gestae is a well-recognized exception permitting admission of out-of-court statements when witnesses rely on them for truth.

The first landmark test emerged in R v Bedingfield, establishing the contemporaneity test —only statements made during the event could be admitted. This narrow test was rejected in R v Ratten, which established the now-dominant spontaneity test. The court held that statements made in emotionally overwhelming circumstances where possibility of concoction can be disregarded may be admitted even after the event concludes. What mattered was whether the declarant remained under the event’s stress or influence, not whether the statement was made during the act. The underlying rationale was that a person is unlikely to fabricate lies when they are  gripped by a startling event. The older idea that the statement must be part of the transaction was also rejected for being uncertain.

R v Andrews refined this test with further propositions centred on ruling out possibility of fabrication. Courts must consider whether the event was sufficiently startling to dominate the speaker’s thoughts and whether the utterance was instinctive, that is, made while the event remained “operative” in mind. Special factors like past malice may weigh against spontaneity, but truth doubts like poor lighting or intoxication affect weight, not admissibility.

In India, res gestae has been judicially read into §6 of IEA. This section makes relevant facts not in issue but connected with a fact in issue forming part of the same transaction. Notably, this provision establishes relevancy, not admissibility while res gestae permits direct admission of statements.

The test to identify res gestae followed in India involves twin requirements recognised in GV Rao. First, a statement must form part of the same transaction. Second, it must spontaneous be enough to exclude the possibility of fabrication following Ratten. It must be noted that the judiciary never acknowledged that Ratten discarded the transaction test, nor adopted Ratten’s guidance on proving the speaker’s connection to the event such as through tone or relied on Andrews.

Doctrinal Problems and Twin Requirements

Courts have invoked the doctrine under §6 in both statement and conduct cases. In cases like Vijay Saini and Basanti, courts have admitted conduct like accused absconding or accused giving false explanations as part of res gestae evidence. While such conduct falls under §6, they do not constitute res gestae which is an exception to hearsay. Spontaneous utterances asserting facts and relied upon for truth raise hearsay issues, whereas actions like fleeing do not. Courts are invoking res gestae exception for non-hearsay facts.

§6 can be used to prove relevance of facts including acts like fleeing. By invoking res gestae in such instances, courts conflate the doctrine and §6. Acts are directly admitted under res gestae exception guise when §6 only provides relevancy. Further, courts have relied solely on proximity in time and space between witness and concerned act (e.g. fleeing immediately) under spontaneity test guise, which is inapplicable to such conduct.

Three implications arise in this context. First, non-hearsay conduct is admitted as res gestae exception providing direct admissibility despite not concerning hearsay. Rather, it should fall under §6’s ambit of relevancy. Second, court confuses the spontaneity test by misapplying it in wrong contexts. Third, courts entirely skip assessing whether concerned facts were part of the same transaction and hence relevant, as required under §6. When the court finds the conduct “immediate” or “proximate,” it sometimes treats that as sufficient, without engaging with whether it forms part of the same transaction.

Significantly, this last implication extends to most res gestae cases involving spontaneous utterances in India. Landmark cases such as Krishan Kumar Malik and GV Rao reflect this trend. While claiming to apply the res gestae doctrine, judgments omit mentioning that events and statements are part of same transaction, let alone analysing it. Instead, courts often rely solely on spontaneity test bypassing statutory requirements and twin requirements. Statements are admitted directly without establishing relevance under §6, provided courts are satisfied that no possibility of concoction exists.

Confusing Surrounding Application

Notably, the evidentiary value of res gestae statements under §6 remains unsettled. While GV Rao treated such statements as substantive evidence, a larger bench in Badruddin Rukonddim, treated them only as corroborative evidence. Confusion persists as lower courts rely on GV Rao while simultaneously treating the statements as merely corroborative evidence

The spontaneity test itself is applied unevenly. In Krishan Kumar Malik, the Court, emphasising temporal proximity, treated the prosecutrix’s disclosures to her family soon after the occurrence as potentially valuable res gestae evidence. In contrast, in Abu Jalal Miah, the victim’s statement to her father, made several hours after the incident, was admitted because she had earlier disclosed the incident to her stepmother, the father was absent during the day, and the stepmother was unable to take decisions in his absence. Thus, the court relied not on temporal proximity but on circumstances explaining the delay in disclosure. In both cases, however, the courts did not directly address whether the event remained operative in the victim’s mind such that the possibility of fabrication could be disregarded. Thus, although both decisions invoke the spontaneity test, courts do not always engage with the inquiry underlying it.

Abul Jalal Miah decision also demonstrates influence of external factors beyond twin requirements. Similarly, courts have considered factors like past inimical relationships between witness and accused at admissibility stages, as in Sukhar, although these concerns, following Andrews, relate to weight, not admissibility.

This analysis demonstrates inconsistency surrounding the doctrine. Courts sometimes admit conduct as res gestae despite not being hearsay statements. They skip same transaction requirements, relying solely on spontaneity test. The spontaneity test is applied unevenly as courts permit additional factors to influence admissibility, departing from GV’s twin requirements. Even properly admitted facts face uncertainty regarding probative value

REFORMING AND CODIFYING RES GESTAE

The identified problems do not reveal a flaw in the idea of res gestae itself but in its adoption and application. Significantly, many res gestae cases involve rape, child sexual abuse, or domestic violence which are situations where the victim’s first utterance is often the only available account. Thus, retaining the hearsay exception of spontaneous utterances is necessary.

However, a cohesive framework under §6 (§4 BSA) remains absent. While Indian courts acknowledged that earlier understanding of res gestae in UK and US encompassing all utterances and acts can be found spread over sections 6, 7, 8, 9 and 14 of IEA, the meaning of res gestae has evolved. Existing provisions such as §8 IEA do not permit such statements to be admitted for the truth of what they say as they deal with relevancy. Thus, narrow codification limited to res gestae as spontaneous utterances can restore doctrinal clarity and provide coherent framework.

A res gestae statement should be admissible only if three prongs are satisfied:

First, statements must be made under the influence of a startling or traumatic event, where the speaker’s mind was dominated by experience and possibility of fabrication. This codifies the spontaneity test, aligning with codified exceptions in UK and USA. The Court must assess the nature of the event and its effect on the declarant’s psychological state to consider possibility of concoction, rather than solely relying on temporal proximity alone.

Second, courts must be satisfied that statements bear objective markers of spontaneity. They must not merely sound spontaneous but emerge in conditions supporting its reliability. As clarified in Ratten, statements cannot establish their own admissibility. Courts must rely on independent circumstantial assurance, such as the declarant’s tone, physical state, or corroborating context.  This prevents the self-validating hearsay problem which refers to the idea that an excited tone alone can lift a statement into admissibility.

Third, statements must form part of the same transaction as facts in issue. Sircar defines a transaction as “a continuum of events so connected by cause, time, or purpose that they form a whole.” This standard ensures the statement is legally relevant by requiring that it completes, explains, or forms part of the incident itself. This connection may be shown by proximity in time or place, continuity of action, or unity of purpose. Statements must be factually inseparable from the events in question, not merely made at same place or time. For example, a victim saying “I was wearing revealing clothes” moments after assault passes spontaneity test but does not clarify or complete the event of assault which is the fact in issue. Admitting such remarks risks importing prejudicial narratives about clothing or character into the trial, especially in sexual assault cases.

The first two prongs assess reliability, while the third ensures legal relevance. Together, they clarify a doctrine that courts have misinterpreted and misapplied. Codifying this framework as a limited exception outside §4 of BSA would clarify its role, while §4 would continue to govern other connected non-hearsay facts as its illustrations show.

CONCLUSION

Res gestae remains a necessary hearsay exception. However, its application in courts has led to inconsistent and unprincipled outcomes. This piece proposes a separate, codified exception for res gestae grounded in a clear three-pronged test. While §4 of BSA remains important for other connected facts, it must not be used to admit hearsay. Courts must apply the proposed test rigorously to ensure principled admissibility.

(Hiranya Gupta is a fourth-year B.A. LL.B. (Hons.) student at National Law School of India University, Bengaluru. The author may be contacted via mail at hiranya.gupta@nls.ac.in.)