Report No. 69
7.21. English authorities.-
So far as the English authorities are concerned, the admission of such statements has often been inadequately explained in the cases; quite often, res gestae is relied on. A brief but important discussion of the problem is to be found in the judgment of Dixon J. (as he then was) of the High Court of Australia in Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle, (1940) 64 Commonwealth LR 514 (531-532). There a question for the court was whether a statement made by a deceased person shortly after art accident was admissible.
The Court held it to be inadmissible. In the course of deciding this point, it was necessary to review some of the cases which Wigmore classifies under "spontaneous declaration". Dixon J. observed that the general tendency of English law was not to explain the cases in this way. While the cases provided some support for the view that spontaneous and unreflecting statements were more trustworthy, Dixon J. pointed out that the question which the courts normally asked in considering admissibility was whether the statement formed an integral part of a transaction.
7.22. Position under section.- Unity of action required.-
On this point i.e. on the question of contemporaneity-the section is specific. As we have already pointed out1, the section (last fifteen words) make it clear that the declaration need not be literally contemporaneous with the principal fact. Nor need it be made at the same place. The test, and the only test, is whether the declaration and the act form part of the same transaction.
Of course, this does not mean that the interval of time between the two can be immaterial. As is often pointed out, a few minutes can make a difference in deciding whether the two form part of the same transaction: but this aspect is not conclusive. One could make use of the classification, popularly attributed to Aristotle, of the three "dramatic unities", and say that section 6 does not place so much emphasis on unity of time and unity of place, as on 'unity of action'.
1. See supra.
7.23. Meaning of 'transaction' in section 6.-
This takes us to the meaning of the word 'transaction', in section 6. The word 'transaction' has not been defined in the Act, though it occurs at several places1 e.g. section 6, section 13 and section 32(1).
1. The List is not intended to be exhaustive.
7.24. Meaning of the word 'transaction' in section 13.-
As occurring in section 13, the word received judicial construction in the Calcutta High Court in a case where the question was whether a judgment is a transaction. According to R.C. Mitter J., the word 'transaction' in section 13 means 'that which is done1. A 'transaction', in its ordinary sense, is, according to Garth, C.J., one business or dealing which is carried on or transacted between two or more persons2. A 'transaction, as the derivation denotes, is something which has been concluded between persons by a cross or reciprocal action as it were, whereas the judgment of a court is something imposed by the authority of the tribunal3. This interpretation of section 13 is not, it seems, conclusive for interpreting the word 'transaction' in section 6.
1. Gujja Lal v. Fatteh Lal, 1879 ILR 6 Cal 171 (175) (FB) (per Mitter, J.).
2. Gujja Lal v. Fatteh La!, 1879 ILR 6 Cal 171 (186) (FB) (per Garth, C.f.)
3. Gujja Lal v. Fatteh Lal, 1879 ILR 6 Cal 171 (185) (FB) (per Jackson, J.)
7.25. Origin of the word 'transaction' in connection with res gestae.-
The principle that acts which are part of the same transaction as the fact in issue form part of the 'res gestae' can be traced at least to R. v. Ellis, (1826) 108 ER 406 (KB). The prisoner in that case was charged with stealing six shillings, marked money, from a till. Evidence was allowed of the taking not only of that amount, but also of other moneys taken during the same day. Bayley J. said:
"I think that it was in the discretion of the Judge to confine the prosecutor to the proof of one felony, or to allow him to give evidence of other acts, which were all part of one entire transaction, then the one is evidence to show the character of the other. Now all the evidence in this case tended to show that the prisoner was guilty of the felony charged in the indictment. It went to show the history of the till from the time when the marked money was put into it upto the time when it was found in the possession of the prisoner. I think, therefore, that the evidence was properly received." (Holroyd J. concurred).
Under the Code of Criminal Procedure,1 offences committed by several persons "in the course of the same transaction" can be tried together. With reference to this provision, the general consensus is that where the transaction consists of different acts, those acts, in order that the chain of such acts may constitute the same transaction, must be connected together by proximity of time, proximity or unity of place, continuity of action and community of purpose or design.2 But, it should be noted that under section 6 of the Evidence Act, statements, to be admissible as substantive evidence of the truth of the facts stated therein, must themselves be 'part of the transaction, and not merely uttered 'in the course of the transaction.3
1. Section 223(a), Code of Criminal Procedure, 1973.
2. See Amritlal Hazara v. Emperor, AIR 1916 Cal 188 (196).
3. Hadu v. State, AIR 1951 Ori 53 (58).
7.26. Areas of events dependent on circumstances.-
The area of events covered by the term 'res gestae' or by the term 'part of the transaction', depends on the circumstances of each case. Murphy J. said in Emperor v. Ring, AIR 1929 Bom 296 (303), that while all acts and events are linked together, and while, in reality, there is no independent act or event, yet, on the other hand, "there is a practical unity in men's actions which enables us to draw a mental circle round an act or event, or a series of them and to call it, for practical purposes, a single transaction, though theoretically this may not be a true description."
These observations wore made with reference to the Code of Criminal Procedure, but they are quoted here to illustrate how every case involving interpretation of the word 'transaction' in section 6 requires the court to draw 'mental circle'. The question to be considered is, where exactly the line should be drawn in each particular case. The answer must, to a large extent, depend on the facts of each case.
7.27. R. v. Foster.-
In the English case of R. v. Foster, (1834) 6 C&P 325, for instance, the accused was charged with man-slaughter by the dangerous driving of a carriage. A witness was allowed to narrate what the deceased said immediately after he had been run down, and the report makes it plain that the statement was received as evidence of the cause of the deceased's injuries.
The statement was not received as a dying declaration, because there was no evidence that the deceased was aware of his impending death; nor was there any question of the statement being made in the presence of the accused, in which case it might have been received on certain other principles. The statement was allowed to be proved as evidence of the truth , of its contents. With this case, the case of Bedingfield1 may be contrasted. In Bedingfield the utterance of the women was excluded, on the ground that the 'transaction was over'. The conclusion thus depends on the facts of each case.
1. R. v. Bedingfield, (para. 7.16, supra).
7.28. Stephen has offered a definition of 'transaction'. According to Stephen1- "For legal purposes a transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue." This definition is not, however, very helpful for understanding the scope of section 6, because the crucial question in each case is-Do the facts exhibit the required connection?
1. Stephen's Digest of Law of Evidence, Article 3, p. 4, cited in Chain Mahto v. Emperor, 11 CWN 266 (270).
7.29. Selected Indian cases-Statements by the accused.-
We shall now refer to selected Indian decisions which illustrate the application of the section. In a murder trial1, the question was whether the accused, who had some injuries on his body, had those injuries self-inflicted, the prosecution case being that he, the accused, had declared his decision to finish the deceased and then to finish himself.
A threat uttered by the accused on the morning of the day of occurrence (murder) that he would finish off the deceased and then finish off himself was held admissible on the ground that evidence as to the manner in which the injuries came to be sustained by the accused was closely connected with the offence of murder as to form part of the evidence of murder and part of the transaction. Even an explanation given by the accused himself spontaneously, right at the moment when the offence is alleged to have been committed, may become part of the same transaction within section 6.
1. Wasu Pillai v. State, AIR 1961 Born 114 (117) (Gokhale & Kotwal, B.).
7.30. Statements by the deceased.-
The same is the position regarding statements by the victims. In an Assam case1, injuries had been inflicted by the accused on the person of the deceased, resulting in a fracture of his ribs. Soon after the incident, the deceased was questioned as to the injuries, and he stated that it was the accused who had inflicted the injuries. This statement, having been made very shortly after the deceased sustained the injuries was held admissible under section 6 (besides section 32), in view of the fact that the doctor's evidence established that the injuries to the ribs were contributing factor to the death.
1 Krishna Ram v. State, AIR 1964 Assam 53 (54), para. 3.