THEORY OF RELEVANCY

§ Sir James Fitzjames Stephen (at the time of introduction to 1st edition):- A fact is relevant to another fact

when the existence of the one can be shown to be the cause, or one of the effects; of the existence of the
other or when the existence of the one, either alone or together with other facts, render the existence of the
other highly probable or improbable, according to the common course of events .

§ Sir James Fitzjames Stephen (later editions):- The word ‘relevant’ means that any two facts to which it

is applied are so related to each other that according to the common course of events, one either taken by
itself or in connection with other facts proves or renders probable the past, present or future existence or
non-existence of the other.
Ø Note:- At first Stephen was disposed to confine relevance to cases in which the existence of one fact was rendered

highly probable or improbable by reason of the existence of another but, in his subsequent thoughts on the matter,
he was content to reduce it merely to probability.
§ Sidney Lovell Phipson:- The legal admissibility of the facts is for the most part determined by their
logical relevancy to the issue or that connection between the two, which in, the ordinary course of events
renders the latter probable from the existence of the former.

Ø Note:- He points out that logical relevancy and admissibility do not always coincide since sometimes

logically relevant facts are rejected for reason of policy or otherwise and on other occasions, logically
irrelevant facts are admitted in evidence because of some rule of law which authorises their
admission.

Logical Relevancy and Legal Relevancy

§ Relevancy has been said by the framers of the Act, to mean the connection of events as cause and effect.
This theory, as was admitted afterwards, ‘was expressed too widely in certain parts, and not widely
enough in other.

§ Legal relevancy, which is essential to admissible evidence, requires a higher standard of evidentiary force.
It includes logical relevancy, and for reason of particular convenience, demands a close connection
§ All evidence must be logically relevant i.e. absolutely essential. The fact, however, that it is logically
relevant does not ensure admissibility; it must also be legally relevant: a fact which 'in connection with
other facts renders probable the existence of fact in issue, may still be rejected, if in the opinion of the
judge and under the circumstances of the case it be considered essentially misleading or remote.
Relevancy and Admissibility
§ The golden rule of admissibility is that all evidence which is relevant is admissible and that which is
irrelevant is inadmissible. However, Stephen quite explicitly and deliberately incorporated that under
Indian Evidence Act, 1872, under certain circumstances, though the evidence is irrelevant, it can be made
admissible, and relevant evidence also can be made inadmissible.

§ According to Lord Simon of Glaisdale:- Evidence is relevant if it is logically probative or disprobative of

some matter which requires proof. Logical probativeness does not of itself express the element of
expedience which is so significant of its operation in law. It is sufficient to say that relevant evidence, i.e.,
logically probate or disprobative evidence is evidence which makes the matter which requires proof more
or less probable.
§ The tendency, however, of modern jurisprudence is to admit most evidence, logically relevant. Logical
relevancy may not, thus, be assumed to be the sole test of admissibility; relevancy and admissibility are
not co-extensive and interchangeable terms. Public policy, considerations of fairness, the particular
necessity for reaching speedy decisions, these and similar reasons constantly cause the necessary rejection
of much evidence, entirely relevant.

§ All admissible evidence is relevant, but all relevant evidence is not admissible. The question of relevancy
strictly so called presents as a rule, little difficulty.

§ Any educated person, whether lay or legal, can say whether a circumstance has probative force, which is
the meaning of relevancy. This is an affair of logic and not of law. It is otherwise with the question of
admissibility, which must be determined according to rules of law. A fact may be relevant, but it may be
excluded on grounds of policy as already noted.

§ A communication to a legal adviser may be in the highest degree relevant, but other considerations
exclude its reception as a privileged communication. Again, a fact may relevant but the proof of it may be
such as is not allowed as in the case of the 'hearsay' rule.
 Meaning of Relevancy

§ The word 'relevancy' seems to mean having of some probative force. In the title of this part, it appears to
denote admissibility. However, the considerations mentioned go merely to the theory of relevancy and to
the construction of definitions given in the Act as based on that theory.

§ For practical purposes, one fact is relevant to another and admissible, when the one is connected with the
other in any of the ways referred to in the provisions of Indian Evidence Act, 1872 relating to the
relevancy of facts.

Definition of Relevancy

§ Relevancy in the sense in which it is used by the framers of the Act, is fully defined in Section 6-11, both
inclusive. These sections enumerate specifically the different instances of the connection between cause
and effect which occur most frequently in judicial proceedings.
§ They are designedly worded very widely, and in such a way as to overlap each other. Thus, a motive for a
fact in issue (Section 8 Indian Evidence Act, 1872 ) is part of its cause (Section 7 Indian Evidence Act,
1872 ); subsequent conduct influenced by it (Section 8) is part of its effect (Section 7). Facts relevant under
Section 11 would, in most cases, be relevant under other sections.

Acts and Representations of third Persons when Relevant

§ Not only may the acts and words of a party himself, if relevant, be given in evidence, but when the party is,
by the substantive law, rendered liable, civilly or criminally, for the acts, contracts or representations of
third persons, and such facts are material, they may generally be given in evidence for or against him, as if
they were his own.

§ The particular relationship rendering such evidence receivable must be proved, prime facie at least, to the
satisfaction of the court and cannot, except as against themselves, be established by the declarations of
such third persons.
§ The rule above stated, which is one rather of substantive law than of evidence, is based on the identity of
interest between the parties. The following are the principal relationships of this kind.

ü In civil cases, the acts, contracts and representations of the agent bind the principal when they have

been expressly or impliedly authorised, or subsequently ratified, by him.

ü There is implied authority to conduct the principal's business in the usual way what is necessary for

that purpose being determined by the nature of the business and the practice of those engaged in such
business. If the act be within the scope of the agent's authority, it will bind the principal though done
against his express instructions, or fraudulently and for the agent's sole benefit, or maliciously, or
negligently.

ü In criminal cases, a party is not, in general, criminally responsible for the acts and declaration of his
agents and servants unless they have been expressly directed, or assented to, by him. In general, the
principal will not be criminally liable, if the agent is not acting within the scope of his authority.
ü But there are certain well recognised exceptions to this rule, one of the exceptions is, that where a

statute prohibits an act or enforces a duty in such words as to make the prohibition or the duty
absolute, the master will be liable, if the act is, in fact, done by his servant. To ascertain, whether a
particular statute has that effect or not, regard must be had to the object of the statute, the words
used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it
would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.

ü The liability of partners for the acts of their co-partners is established on the ground of agency, each

partner being the agent of the firm for the purposes of the business of the firm.

ü A company is liable for the acts and representations of its directors, or other lawful agents which are

within the scope of their real or apparent authority, even though such acts may be fraudulent. A
company is not liable for acts done ultra vires.
 Ø English and Indian Law

§ The principle of Indian Evidence Act, 1872 differs from the English law in that it defines the evidence
which may be given, so that, in order to produce any particular evidence, it must be shown to be admissible
under some section of Indian Evidence Act, 1872; whereas the principle of the English law is to assume
that everything is admissible subject to two main exceptions:-

a) that the best evidence that is available must be tendered and that best evidence only must be
tendered;
b) that hearsay evidence is not admissible.

§ Working on these main principles, the law is chiefly concerned with exceptions to these general rules. The
first of these English rules is nowhere expressly laid down in the Act, but it can be inferred by the exclusion
of secondary evidence, by the exclusion of statement of persons not called as witnesses except in special
cases, and by the presumption which is to be drawn from the absence of material witnesses or documents.
The rule excluding hearsay evidence is dealt with in Sections 32 and 33 Indian Evidence Act, 1872 .
 Importance of Provisions

§ The following sections have been considered to be the most important, as all will admit, they are the most
original part of the Act as they affirm what facts may be proved, whereas the English law assumes this to be
known and merely declares negatively that certain facts shall not be proved.

§ In the opinion of many others, the English law proceeds upon sounder and more practical grounds. While
importance is claimed for these sections in that they are said to make the whole body of law to which they
belong, easily Intelligible, yet, such importance cannot, owing to the provisions of Section 165 and Section
167, cause an undue weight to be attached to their strict applications, when a failure to so strictly apply
them has not been the cause of an improper admission or rejection of evidence in Indian courts has no
effect at all unless the court thinks that the evidence improperly dealt with either turned, or ought to have
turned, the scale.

§ A judge, moreover, if he doubts the relevancy of a fact suggested, can, if he thinks it will lead to anything
relevant, ask about it himself.
 Scope of the Chapter
§ The rules in the following sections declare relevant:-

ü all facts in issue (Section 5);

ü all facts which are relevant to the issue (Section 5), which:
Ø form part of the same transaction (Section 6);
Ø are the immediate occasion, cause, or effect of facts in issue (Section 7);

Ø show motive, preparation or conduct affected by a fact in issue (Section 8);

Ø are necessary to be known in order to introduce or explain relevant facts (Section 9);

Ø are done or said by a conspirator in furtherance of a common design (Section 10);

Ø are either inconsistent with any fact in issue; or inconsistent with it except upon a supposition
which should be proved by the other side; or render its existence or non-existence morally certain
(Section 11);

Ø affect the amount of damages, in cases where damages are claimed (Section 12);
 Ø show the origin or existence of a disputed right or custom (Section 13):

Ø show the existence of a relevant state of mind and body (Section 14);

Ø show the existence of a series of which a relevant fact forms a part (Section 15); or

Ø show (in certain cases) the existence of a given course of business (Section 16);

ü admissions and confessions (Sections 17 to 31);

ü statements by persons who cannot be called as witnesses (Sections 32 to 33);

ü statements made under special circumstances (Sections 34 to 39);

ü judgments in other cases (Sections 40 to 44);

ü opinion (Sections 45 to 51); and

ü character (Sections 52 to 55).

 SECTION 5:- EVIDENCE MAY BE GIVEN OF FACTS IN ISSUE
AND RELEVANT FACTS
Ø Scope

§ This section declares that in a suit or judicial proceeding, evidence may be given of the existence or non-
existence of:

a) facts in issue; and

b) of such other collateral facts as are declared to be relevant in the following sections.

§ The expression "facts in issue' is defined in Section 3 of Indian Evidence Act, 1872. The facts 'declared
to be relevant' are facts which, though they do not directly tend to prove or disprove a fact in issue, are so
connected with facts in issue, that they indirectly and presumptively tend to prove or disprove facts in
issue.
 Ø show the origin or existence of a disputed right or custom (Section 13):

Ø show the existence of a relevant state of mind and body (Section 14);

Ø show the existence of a series of which a relevant fact forms a part (Section 15); or

Ø show (in certain cases) the existence of a given course of business (Section 16);

ü admissions and confessions (Sections 17 to 31);

ü statements by persons who cannot be called as witnesses (Sections 32 to 33);

ü statements made under special circumstances (Sections 34 to 39);

ü judgments in other cases (Sections 40 to 44);

ü opinion (Sections 45 to 51); and

ü character (Sections 52 to 55).

 Principle

§ The reception in evidence of facts, other than those mentioned in the section, tends to distract the
attention of the tribunal and to waste its time.

§ Frutra probatur quod probatum non relevant.:- It is vain to prove that which if proved would not aid
the matter in question . This law of evidence is framed with a view to a trial at nisi prius and a
proceeding at nisi prius ought to be restrained within practical limits

And of No Others

§ Section 5 excludes everything which is not covered by the purview of other Sections which follow in the
statute. All evidence tendered must, therefore, be shown to be admissible under this or some other of the
following sections, or the provisions of some other statute, saved by Section 2 [repealed by the
Repealing Act, 1938 (1 of 1938), Section 2 and Sch.], or enacted subsequent to Indian Evidence Act,
1872.
§ Any fact, intended to be established, has to be, in accordance with the scheme of the Act, found to be
relevant under a provision contained in the Act, before it can be allowed to be proved. Any argument
based on possibility can have no effect.

§ The court must, therefore, ignore any other consideration, and confine itself strictly to the provisions of
the Act and come to a conclusion as to the relevancy of a fact on the interpretation of the relevant
provisions of the Act, regardless of the fact whether the conclusion at which one ultimately arrives is in
accordance with what is generally characterised to be a common sense view of things.

§ It is not open to any judge to exercise a dispensing power and admit evidence not admissible by the
statute, because to him, it appears that the irregular evidence would throw light upon the issue.
Conversely, he cannot, on the ground of public policy, exclude evidence legally admissible under this
Act. Nor can he exclude such evidence on the ground that it is not admissible under the English law.
§ The words “and of no others” in the Section, in conjunction with the language of other portions of the
Act, further tend to show that the court should, of itself and irrespective of the parties, take objection to
evidence tendered before it which is not admissible under the provisions of Indian Evidence Act, 1872.

§ This section must be read as subject to the restriction of Pt II as to proof, and Pt III as to the production of
evidence. Thus, the terms of a contract between the parties might be relevant, but oral evidence of it will
be excluded, if those terms have been reduced to writing.

§ Though a document may not be legal evidence of a fact within the provisions of Indian Evidence Act,
1872, it may yet be a document, which the parties by their contract have made proof of that fact.

Relevancy not Affected by the Provisions of Code of Criminal Procedure 1973

§ The Indian Evidence Act, 1872 is a special law dealing with the subject of evidence, including the
admissibility of evidence. Hence, no rule about the relevancy of evidence in the Act is affected by any
provision of the CrPC 1973.
§ For the provisions of the law relating to CPC 1908, O VII, Rule 14 to 18, O XIII, 1 to 3 and 10 and O XLI,
Rule 27, CPC 1908, may be referred to.
Admissibility

§ The question of admissibility of evidence is a question of law to be decided by the judge,. Where a judge
is in doubt as to the admissibility of a particular piece of evidence, he should declare in favour of
admissibility, rather than of non admissibility. As a general rule, evidence should never be shut out..

§ Under the Evidence Act, admissibility is the rule, and exclusion is the exception, and circumstances which
under other system might operate to exclude are, under the Act, to be taken into consideration only in
judging of the value to be allowed to evidence when admitted.

§ The object of a trial in every case is to ascertain the truth in respect of the charge made. For this purpose, it
is necessary that the court should be in a position to estimate, at its true worth, the evidence given by each
witness, and nothing, that is calculated to assist it in doing so, ought to be excluded, unless, for reasons of
public policy, the law expressly requires its exclusion.
§ The judge's apprehension of possible danger in admitting certain evidence cannot create a rule for
excluding it.

§ No objection to admissibility of evidence could be entertained by the Supreme Court, when it had not been
taken either before the arbitrator or before the high court in an appeal against the award.

§ If evidence is relevant, it is admissible and the court is not concerned with how the evidence was gathered
In a case appealable to a higher tribunal, the court ought not to reject evidence essential to the case of
either party, if it can possibly admit it, at any rate where the court has doubt upon the matter (of
admissibility) and its decision is open to appeal, it is better to admit than to exclude document

§ Even if the judge holds the evidence to be inadmissible, it is safest for him to contemplate its being
regarded as admissible and express his view as to its weight.

§ In criminal cases, the court should lean always in favour of the accused and exclude all evidence tendered
by the prosecution, which is of doubtful or remote relevance.
§ To avoid prejudice to the accused, the court has a discretion to hear argument as to the admissibility of
evidence in the absence of the jury. But, if the admissibility of the evidence depends upon facts, not
affecting the merits, for which proof is needed, then such proof, e.g., as to a witness being able to
understand the obligation of an oath, must be given in the presence of the jury.

§ Whether the court does or does not consider evidence, given on another occasion and between other
parties, appropriate and valuable for the decision of the case which is before it, is not of itself a reason
for the admission or rejection of suc evidence.

§ The court is bound to try the matter between the parties, who are before it. Upon such evidence as those
parties in their discretion produce for the purpose and at the time when the evidence is tendered to
decide whether it is legally admissible.
 Admissibility and Probative Value of Document- Distinction

§ The admissibility of a document is one thing and its probative value quite another, these two aspects
cannot be combined. A document may be admissible and yet may not carry any conviction and the weight
of its probative value may be nil.

§ Even if a document may be admissible as an ancient one, it cannot carry the same weight or probative
value as a document which is prepared either under a statute, ordinance or an Act, which requires certain
conditions to be filled.
Object for Which Evidence is Tendered and Purposes for Which it is Admissible

§ Where certain decisions of the Privy Council were referred to, in which it was said that with regard to the
admissibility of evidence in the native courts in India, no strict rule can be prescribed.

§ Lord Tenternd CJ: In deciding the question whether certain evidence be admissible or not, it is necessary
to look at the object for which it is produced, and the point it is intended to establish; for it may be
admissible for one purpose and not another.
§ Evidence properly admitted, may be treated as evidence for all purposes. Thus, the evidence of a
witness given at the preliminary inquiry may, at the trial, be treated as evidence in the case for all
purposes, subject to the provisions of Indian Evidence Act, 1872.

Evidence Partly Admissible and Partly Inadmissible

§ If inadmissible evidence is so mixed up with admissible evidence as to make it impossible to separate

one from the other, the whole of the evidence has to be rejected. But this result will not follow, if the
admissible material is quite independent of the inadmissible material.

§ Where a document consists of two separate parts, one of which admissible and the other inadmissible,
the document cannot be rejected as a whole. Though, no doubt, when portions of a statement are
admitted, the person affected thereby may demand that the statement should be admitted and considered
in its entirety, yet the principle that portions of a statement or confession may be admitted and others
excluded is recognised in the Indian Evidence Act, 1872 itself.
§ No uniform rule regarding human behaviour can be prescribed, expected or insisted. The sense of
observation differs from man to man.

Admissibility in Civil and Criminal Cases

v General

§ In civil and criminal cases, there is no difference in the rules as to the admissibility of evidence, though
there may be difference in their application; and it may be that a piece of evidence admissible in either
class of cases may not be sufficient in a criminal case, that is, without further evidence.

§ It is held to be the duty of the appellate court to see that this judicial discretion is exercised in a proper
manner. The moment a witness commences giving evidence which is inadmissible, be should be stopped
by the court.

§ It is not safe to rely on a subsequent exhortation to the jury to reject the hearsay evidence and to decide on
the legal evidence alone.
§ If the courts themselves be passive in this respect, the utility of the law of evidence may be seriously
impaired. If evidence is irrelevant and inadmissible, omission to take objection to its reception does not
render it admissible. It is the duty of the court to exclude all irrelevant evidence, even if no objection is
taken to its admissibility by the parties.

§ Procedure as to admission and rejection of documents in civil cases is dealt with in the undermentioned
order of the Code. The judge is to decide as to the admissibility of evidence, and may ask in what
manner any evidence which is tendered, is relevant. He is bound to try a collateral issue when the
reception of evidence depends on a preliminary question of fact.

§ More often, the expressions 'relevancy and admissibility are used as synonyms, but their legal
implications are distinct and different for more often than not, facts which are relevant, may not be
admissible.
§ Example:- Communication made by spouses during marriage or between an advocate and his client,
though relevant, are t not admissible; so also facts, which are admissible may not be relevant, or
questions permitted to be put in cross-examination to test the veracity or impeach the credit of witnesses,
though not relevant, are admissible. The probative value of the evidence is the weight to be given to it,
which has to be judged, having regard to the facts and circumstances of each case.

§ Though the prosecution has to prove the case against the accused in the manner stated by it and that any
act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of
the accused.

v Varying Decisions as to Admissibility

§ An interlocutory order by the court, holding that certain evidence is admissible, can legally by varied by it,
though in practice, it is not often done. But a judge, who has refused to accept certain evidence in the first
instance, has no jurisdiction to take it again into consideration, unless some explanation or reason can be
given for it.
 Objections by Parties
§ An objection to the reception of secondary evidence is properly mad in the court of first instance. For, if it
is made at the time when the evidence is tendered, it may be in the power of the party tendering the
evidence, to obviate the objection, if a valid one.
§ It has been held that where a valid objection is taken to the admissibility are entries in records of right of
plaintiff.
Reliability of Evidence
§ The testimony of interested witnesses is perfectly believable and the court is quite competent to place
pertinent reliance, if and only if, it renders confidence in the mind of the judge. Such testimony cannot be
brushed aside, simply because it is the testimony of interested persons.
§ The credibility of a witness is not affected by the fact that he was not summoned but requested or asked to
give evidence by the party which produced him. He cannot be regarded as untruthful for that reason.
§ A trap witness is not an accomplice, but a partisan witness. The law settled by a series of decisions of the
Supreme Court is that as regards the evidence of a partisan witness, the conviction of an accused person
can be solely based on that evidence, if the court is satisfied that the evidence is reliable. But the court
may in appropriate cases look for corroboration.
 SECTION 6. RELEVANCY OF FACTS FORMING PART OF SAME TRANSACTION

ØPrinciple

§ In catena of cases, the Supreme Court has, time and again reiterated that Section 6, Indian Evidence Act,
1872, takes within its fold the age-old common law principle res gestae.

vWhat is res gestae?

§ The actual expression 'res gestae' is probably best ignored, save for the amusement it has afforded the
writers and judges.

§ It is a piece of grammatical nonsense, in that if the phrase is to be employed at all, it should certainly
appear, not in its plural form, but in the singular pars res gestae.

§ It has been unkindly but aptly demystified by Lord Wilberforce, who said that the expression 'res gestae,
like many Latin phrases, is often used to cover situations insufficiently analysed in clear English terms.
§ Res gestae, it has been said, is a phrase adopted to provide a respectable legal cloak for a variety of cases
to which no formula of precision can be applied.
§ The words shall themselves simply mean a transaction. Under the inclusionary common law doctrine of
res gestae, a fact or a statement of fact or opinion, which, is so closely associated in time, place and
circumstances with some act or event, which is in issue, that it can be said to form a part of the same
transaction as the act or event in issue, is itself admissible in evidence.
§ The justification given for the reception of such evidence is the light that it shelds upon the act or event
in issue, in its absence, the transaction in question may not be fully or truly understood and may even
appear to be meaningless, inexplicable or unintelligible.

§ Evidence of both facts and statements may be received as part of the res gestae.

§ But, it is equally necessary to understand that the principle of res gestae, historically speaking, secured
judicial approval in the realm of common law as an exception to hearsay evidence.
§ Therefore, clear understanding as to what constitutes hearsay evidence is fundamental. At the outset,

it is necessary to know that hearsay evidence is inadmissible, as a result, cannot be adduced before
the court proceedings, except as provided under specific exceptions.

§ The rule against hearsay originated in century old judicial awareness that the admission of hearsay

evidence involves two serious dangers.

i. The first is that the repetition of any statement involves the inherent danger of error or
distortion, which increases in proportion to the number of repetitions and the complexity of the
statement.

ii. The second is that it is virtually impossible to engage in effective cross-examination of a

witness, who is testifying about a hearsay statement, because the witness did not perceive the
events in question.
§ Peter Murphy: Evidence from any witness which consists of what another person stated (whether
verbally, in writing, or by any other method of assertion such as a gesture) on any prior occasion, is
inadmissible, if its only relevant purpose is to prove that any fact so stated by that person on that prior
occasion is true.

§ Such a statement may, however, be admitted for any relevant purpose other than proving the truth of facts
stated in.

ØScope

§ The rule against the admission of hearsay is fundamental. It is not the best evidence and it is not delivered
on oath.

§ The truthfulness and accuracy of the perosn whose words are spoken to by another witness cannot be
tested by cross examination, and the light which his demeanour would throw on his testimony is lost.

§ Nevertheless, the rule admits of certain carefully safeguard and limited exceptions, one of which is that
§ This exception appears to rest ultimately to two propositions, that human utterance is both a fact and a
means of communication, and that human beings may be so interwoven with words that the significance
of the action cannot be understood without the correlative words and the dissociation of the words from
the action would impede the discovery of truth.

§ But the judicial application of these two propositions, which do not always combine harmoniously, have
never been precisely formulated as a general principle.

§ Their lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the
considerable number of cases cited in the argument.

§ Hearsay evidence of statements made by persons who are not available to give evidence at trial, ought
generally to be admissible, where the circumstances under which the statements were made, satisfy the
criteria of necessity and reliability set out, and subject to the residual discretion of the trial judge, to
exclude the evidence when its probative value slight and undue prejudice might result to the accused.
§ Properly cautioned by the trial judge, juries are perfectly capable of determining what weight ought to be
attached to such evidence, and of drawing reasonable inferences there from.

§ The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of
exceptions, such as admissions, dying declarations, declarations against interest and spontaneous
declarations.

§ While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved
unduly inflexible in dealing with new situations, and new needs in the law.

§ This has resulted in courts in recent years on occasion, adopting a more flexible approach, rooted in the
principle and the policy, underlying the hearsay rule, rather than the strictures of traditional exceptions.
There are two general requirements: necessity and reliability.

§ Section 6 enacts the law which is usually laid down in England in these terms, namely, that acts,
declarations and incidents, which constitute or accompany and explain the fact or transaction in issue, are
admissible for or against either party as forming parts of the res gestae.
§ It renders relevant facts, which form part of the same transaction as the fact in issue.

§ Even hearsay statements are admissible under this section, if they are part of the transaction and not
merely uttered in the course of the transaction.

§ This section permits proof of collateral statement of subsidiary ones, which, are so connected with the
facts in issue as to form part of a single or the same transaction.

§ They are admissible, though hearsay, because, in such cases, it is the act that creates the hearsay, and not
vice versa.

§ John Henry Wigmore: The theory of the Hearsay rule is that, when a human utterance is offered as
evidence of the truth of the fact asserted in it, the credit of the assertion becomes the basis of our
inference, and therefore, the assertion can be received only when made upon the stand, subject to the test
of cross-examination.
§ If, therefore, an extra-judicial utterance is offered, not as an assertion to evidence of the matter asserted,
but without reference to the truth of the matter asserted, the hearsay rule does not apply.

§ The utterance is then merely not obnoxious to that rule.

§ It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is
in no way due to the Hearsay rule.

ØRes Gestae

v History of the Doctrine

§ Few phrases in the law of evidence are more persistent than the Latin phrase res gestae. Its original
meaning seems to have been quite untechnical, importing 'a fact", a transaction", "an event.

§ The plural sometimes indicated not so much the plural of the English equivalent facts, transactions, as the
details or particulars of which a single fact or transaction might be composed
§ The use of the plural form led to confusion and gave rise to at least four conflicting conceptions

ü one which applies the term res gestae to the main fact in relation to constituent details;

ü one which applies it to the details of such fact merely;

ü one which applies it to the surrounding circumstances of some central fact, called in contradistinction,

to the 'principal fact'; and

ü one which applies it to the total whole composed of both 'principal fact" and *surrounding

circumstances.

ü Not infrequently, indeed two or more of these meanings are confounded in the same definition. That is

how an ambiguous phrase is apparent from the numerous attempts to define it, a few of which are
given below as they are given in Chamberlayne's Trial Evidence.
§ The circumstances surrounding the principal fact, and statement accompanying the act, which explain it are
to be proved, and are reasonably necessary to its proper understanding. Words and declarations
accompanying an act, the nature, object, motives of which are the subject of inquiry, declarations, which
are part of the same fact itself are admissible.

§ Earl of Halsbury (more comprehensive definition): Facts which form part of the res gestae, and are
consequently provable as act relevant to the issue, include acts, declarations and incidents, which
themselves constitute, or accompany and explain the facts or transactions in issue.

§ There is a distinction to be made between the bare facts issue, and the issue of circumstances and facts
which surround them.

§ These surrounding circumstances have sometimes been spoken of as res gestae, but it is more accurate and
satisfactory to limit that expression to those items of evidence relating to contemporaneous or almost
contemporaneous statements, which are admitted under the doctrine of res gestae, although they are otherwise
inadmissible.
 v Conflicting Views in England and America

§ In England, the phrase has been given a restricted meaning, to the effect that facts which constitute the res
gestae must be such as are so connected with the main transaction or fact under investigation as to
constitute a part of if; and it has been declared that the expression so connected with the transaction
indicates that the words must accompany the act in such a way as to be identical with it.

§ The American view goes much further and covers all relevant facts necessary to the specific proof of the
principal fact. The English view is succinctly summed up in Dr Kenny's Outlines of Criminal Law,
seventeenth edn.:-

ü It is unfortunate that owing to the lack of a clear formulation of the nature of hearsay, and of the principles

which govern its exclusion, there has arisen a confusion of that topic with what is fundamentally a different
one, namely, the law relating to that which has for a long time been called res gestae, two Latin words,
which are mostly used without any attempt to explain precisely what their meaning is.
ü The Latin words may be translated simply as the events which happened, and for legal purposes, they

are a term of art restricted to events which happened in the affair, which is now being considered by
the the court.

ü It is obvious that, in and during the continuance of any factual situation, which has been selected for

the consideration of a court of law in a trial (i.e, a fact 'in issue'), there are an infinite number of other
events or facts which existed, contemporaneously with this alleged fact in issue which has to be
proved.

ü Only a few of these will be found to help to establish the existence or non-existence of the fact in

issue, and the rules as to relevance adequately restrict the admissible evidence to these few.

ü Res gestae, therefore, comprises all relevant facts or events which are either in issue, or which

though not themselves in issue, yet accompany some fact which is in issue, so as to constitute
circumstantial evidence, which goes to explain or establish that fact.
§ It may be well at this point to warn that if spoken words are themselves a fact in issue, then they are
admissible whatever their character.

Ø Res gestae comprise every sort of relevant evidence or fact associated with the fact in issue:

unhappily, both in the books and in the judgments, the expression res gestae is seldom used except
when there is a dispute as to the admissibility of the evidence purporting state the words spoken by
some other person than the present witness; then because of the failure to grasp clearly what are the
basic principles of exclusion or admission, there has been engendered an erroneous proposition to the
effect that if the words are part of the res gestae, they are admissible and therefore, are an exception
to the rule against hearsay.
Ø The American view is set out in the following passage from Underhill's Criminal Evidence,

fifth edn. vol. 1, p 664 and following (s 266):

ü Res gestae is from the Latin meaning “things done", and includes the circumstances, facts

and declarations incidental to the main fact or transaction, necessary to illustrate its
character, and also includes acts, words and declarations which are so closely connected
therewith as to constitute a part of the transaction.

ü The expression, 'res gestae as applied to a crime, means the complete criminal transaction

from its beginning or starting point in the act of the accused until the end is reached.

ü What in any case constitutes the res gestae of a crime depends wholly on the character of the

crime and the circumstances of the case.

§ The rule of res gestae, under which it is said that all facts which are a part of the res gestae are admissible, is a rule
determining the relevancy and not the character or probative force of the evidence.

§ If the court determines that the fact offered is a part of the res gestae, it will be accepted, because as it is said, that fact
is then relevant. Relevancy is always a judicial question to be determined according to the issue which is to be tried.

§ Taking the main facts which are embraced in the commission of any crime and which are essential to be proved, it will
be found, in most instances, that they are connected with others which are not essential to be proved, but which tend
more or less to prove those facts which are to be proved.

§ Every occurrence. which is the result of human agency is more or less implicated and involved with other occurrences.

§ One event is the cause or the result of another, or two or more events or incidents may be collaterally connected or
related Circumstances constituting a criminal transaction which is being investigated by the jury, and which are so
interwoven with other circumstances and with the principal facts which are at issue that they cannot be very well
separated from the principal facts without depriving the jury of proof which is necessary for it to have in order to reach
a direct conclusion on the evidence, may be regarded as res gestae.
§ These facts include declarations which grow out of the main fact, shed light upon it and which are
unpremeditated, spontaneous, and made at a time so near, either prior or subsequent to the main act, as
to exclude the idea of deliberation or fabrication.

§ A statement made as part of res gestae does not narrate a past event, but it is the event, speaking through
the person and, therefore, is not exclude as hearsay, and precludes the idea of design. These rules is
applicable to alll facts which are relevant, explanatory, or illustrative of, or which characterise the act.

§ In view of these three concepts of the res gestae rule, namely:

ü the spontaneous concept;

ü the relevant statement concept; and

ü the relevant evidence concept,

§ It is difficult to define the exact scope of the res gestae rule

 v Criticised According to Prof Wigmore:

§ The phrase 'res gestae has long been not only entirely useless, but even positively harmful. It is useless
because every rule of evidence to which it has ever been applied exists as a part of some other well-
established principle and can be explained in the terms of that principle.

§ It is harmful, because, by its ambiguity, it invites the confusion of one rule with another and thus creates
uncertainty as to the limitation of both. It ought therefore, wholly to be repudiated, as a vicious element in
our legal phraseology.

§ No rule of evidence can be created or applied by the mere muttering of a shibboleth.

§ In Phillip's Treatise on Evidence (published in 1814)

ü Hearsay is often admitted in evidence as part of the 'res gestae. But in the 4th edn. 1819, he struck out

the phrase and substituted for it the English word 'transaction. The framers of the Indian Evidence Act
have also scrupulously avoided the use of the phrase in this Act
§ The principle of res gestae is an exception to the hearsay rule. Manifestly, facts which may be proved as
part of res gestae, must be facts other than those in issue.

v Its Place in the Law of Evidence

§ In dealing with such a vague and uncertain concept, the first problem to be tackled is to discover what
exactly is meant by res gestae and what is its place in the law of evidence.

§ Some judges have used the phrase as a convenient ground for the admission of evidence, for which they
could find no other basis of its admissibility.

§ So recklessly has the phrase been used by the advocate in adversity that Lord Blackburn once
sarcastically remarked: “If you wish to tender inadmissible evidence, say it is part of the 'res gestae. But,
it is submitted, that if all the cases which the term is improperly applied are marked off and res gestae is
confined to its proper sphere, then a formula of greater or less precision will be found to exist.
 v Cases in which the Term has been Improperly Applied

§ The phrase has been frequently referred to as the basis for the admission of declarations as to physical
and mental feelings. Greenleaf, and Taylor are of opinion that such declarations are original evidence
and have no connection either with the hearsay rule of the res gestae doctrine.

§ Thayer and Phipson, take the view that they are admissible as part of the res gestae. But, as pointed out
by Wigmore, Morgan," Wills, and Powell, these statements are offered to prove the truth of the matters
contained in them and are, therefore, admitted only by virtue of a special exception to the hearsay rules.

§ complaints in case of rape are sometimes regarded as being an application of the res gestae doctrine and
are dealt with under that head, but the rule as to admissibility of these complaints is an exceptional rule
outside both the res gestae doctrine and the rule against hearsay;

§ In agency cases, the doctrine of res gestae is sometimes invoked for the admissibility of the agents'
declarations against the principal. Wills," for example, adopts this treatment.
§ But when the substantive law of agency makes one person responsible for the declarations of the latter, they
are admissible against the former, only where his own declarations would be admissible against him." The res
gestae doctrine is not in point;

§ Declarations of co-conspirators:" By a rule of substantive law, the acts of all the conspirators, in furtherance of
their common purposes, are regarded as parts of the facts in issue against each conspirator; in the same way,
and subject to the same limit, their declarations are admissible against each other to the extent they would be
admissible against the actual declarant." In such a case, the use of the phrase 'res gestae' is unnecessary and
confusing;

§ completeness-similar facts: Professor Stone claims that the term is unobjectionable and eminently suitable,
when correlated with the principle of completeness. But, the principle of completeness-the necessity of having
a complete picture may be an explanation of why res gestae declarations are received, but we are still left in
the position of having to define the limits of "the picture. Most of the cases cited by Professor Stone as to the
general principle of completeness, in no way depends upon the res gestae doctrine for its reception;
§ Facts in issue: In his chapter on res gestae, Phipson declares," that facts, admissible under that doctrine fall into
two classes:

i. constituent facts; and

ii. accompanying facts.

§ An examination of the former reveals that what the learned author includes under constituent facts are simply
facts in issue and facts relevant to them.

§ There is obviously not only no necessity for using a shadowy phrase like 'res gestae' to cover the admission of
this kind of evidence, but also every reason for not doing so.

§ For example, in an action for breach of contract, the testimony of a witness as to statements he had heard
which constituted the offer or acceptance or revocation is admissible under the issue. Similarly is the case,
with the words of an alleged slander in an action for defamation.

§ Therefore, it only makes for uncertainty to talk about res gestae in such cases;
§ statements relevant to issue: Lastly, the res gestae phrase is occasionally used in connection with cases in which
the statements are really admitted as being relevant to the existence or non-existence of a material fact.

§ For example, if, in a case of a disputed will, the issue is as to the testator's competency and a witness testifies
that he had heard the testator say that he was Napoleon, that statement is admissible to prove the testator's
mental condition and the rest gestae doctrine is quite inapplicable,

v Proper Res Gestae

§ The fields of evidence in which res gestae has no place having been thus marked off, there remains only
one set of circumstances in which the phrase is commonly used to justify admission of evidence, and that
is in connection with what Phipson calls 'accompanying facts."

§ They are utterances constituting a verbal part of an act (or shortly the verbal act doctrine) and which may
be simply called declarations accompanying acts. It is with respect to these declarations that the term res
gestae has its proper and the only application.
§ Here too, it must be noted that it s not all declarations which accompany particular kinds of acts that are
admissible. The act which the statement accompanies, must be either a fact in issue or a fact relevant to a fact
in issue.

v Declarations: Conditions of Admissibility

§ As to the declarations, they must conform to the following conditions:

ü The words must explain 'or qualify for example, the act of handing over or receiving money can be

construed either as a loan, a gift or a repayment. The words which accompany the act will be admissible
under the res gestae doctrine, if they tend to show which it was,

ü The statement must have been made contemporaneously with the acts, i.e., made either during, or

immediately before or after, its occurrence, but not at such an interval from it as to allow of fabrication, or
to reduce them to mere narrative of a past event.
§ It is sometimes said that the statements must have been made by the person who did the act which the
statements accompany." But this limitation cannot be taken as invariable, for the exclamations of mere
bystanders may sometimes be both relevant and admissible." In Stephen's Digest, art. 9, it is said that
statements accompanying an act are limited to those made by or to the party doing the act', but this
article should probably be read with art. 3.

v Documentary Declarations

§ It is immaterial whether declarations accompanying and explaining an act are oral or written. The
hearsay rule is said to apply not only to assertions made orally, but to those made in writing or in
conflict.

§ Never so far as we know, has it been held to apply to this comparatively modern form of evidence,
namely, the sketch made by the police officer to accord with the witness's recollection of a suspect's
physical characteristics and mode of dress and the even more modern photo fit compiled from an
§ Both are manifestations of the secing eye, translations of vision onto paper through the medium of a
police officer's skill of drawing and composing. which a witness does not possess. The police officer is
merely doing what the witness could do if he possessed the requisite skill.

§ When drawing or composing, he is akin to a camera, without, of course, being able to match in clarity
the photograph of a person or scene which the camera automatically produces. There is no doubt that a
photograph taken, for example, of a suspect during the commission of an offence is admissible.