Report No. 69
Particularly in respect of complaints of sexual and other offences, the question whether the statement was made spontaneously or whether it was merely the narrative of a past transaction comes up for consideration. A statement which does not explain the physical act, and is not spontaneous but is a mere narrative, is generally regarded as not covered by action 6, and it is for this reason that a statement by a ravished woman to her mother-in-law, or other relative, made some time after the alleged rape, is regarded as not forming part of the same transaction.1Whenever recollection comes in and whenever there is opportunity for reflection and explanation, then the statements cease to be part of the res gestae2. Such statement may, on the facts, amount to a complaint3 and thus be admissible under section 8.
1. Sreehary v. Emperor, AIR 1930 Cal 132 (133).
2. Raman v. Emperor, AIR 1921 Lah 258 (259).
3. Raman v. Emperor, AIR 1921 Lah 258.
7.32. Statements by witness.-
Somewhat on the same line of reasoning, statements made by witnesses which are not spontaneous are excluded from use under section 6. For example, in a trial under section 294 of the Indian Penal Code, for teasing a girl on the road and using obscene language toward1 hers, the prosecution relied solely on the testimony of a witness who had reached the spot after the incident and was told by the girl about the words used. This evidence was regarded, on the facts of the case, as outside the scope of sections 6 and 8, and inadmissible as hearsay.
1. Kashmira Singh v. State, AIR 1965 J&K 37 (38), para. 3.
7.33. How far statements admissible in proof of truth of the contents-Position in England.-
The question whether a statement falling within the general requirements of section 6 is admissible as evidence of the truth of those facts or allegations of which the statement consists, has been debated in England, and judicial pronouncements on the subject are conflicting. The case of R. v. Foster, Para. 7.27, supra, to which we have already made a reference, takes a wide view in the matter. The discussion in a judgment of the House of Lords1 would seem to support the view that the statements are evidence of the truth of the matter stated. The discussion in a judgment of the Privy Council2, on the other hand, suggests a narrower view on this point.
In that case, at the trial of the appellant on a charge of indecently assaulting a girl just under the age of four years, the trial judge held to be admissible evidence by the child's mother of a statement made to her by the child shortly after she had been assaulted (the child not being a witness at the trial), that "it was a coloured boy". The appellant was a white man aged 27 years. The judge also admitted certain statements (involving admissions or confessions) made by the appellant to police officers or made in their hearing.
The appellant, who was found guilty, appealed against his conviction on the grounds, inter alia, (1) that the evidence of the child's statement should have been held to be admissible either as evidence of identity or because the words of the child formed part of the res gestae, and (2) the statements to the police officers were not admissible because they had not been voluntarily made. It was conceded by the prosecution that unless the statements made to the police were admitted, there was no evidence on which the appellant could have been convicted.
It was held that the mother's evidence of what her child had said to her would have been hearsay evidence, and the child having neither given evidence nor said anything in the presence of the appellant, there was no basis on which her statement to her mother could be admitted. It was in this context that the Privy Council observed that even if the statement had been admitted as res gestae it could not furnish evidence of the truth of the matter stated.
1. R. v. Christie, 1914 AC 545 (553) (HL).
2. Sparks v. R., 1964 AC 964: (1964) 2 WLR 566 (575, 576) (PC).
7.34. In a recent judgment of the House of Lords,1 the statement, though admitted, was not tendered in proof of the truth of the matter stated, and hence the judgment is not conclusive on his point.
1. Ratten v. R., (1971) 3 WLR 930 (HL).
7.35. Statements sometimes part of res gestae even in England.-
It may, however, be stated that even in England, statements accompanying acts are sometimes treated as part of the res gestae-see R. v. Foster, supra. They could be conveniently styled as "verbal acts".1 In the Mersey Docks Board case,2 for example, A sued B for damages for negligently causing a fire on A's landing stage. One of B's workmen, as he was escaping from a manhole just after the fire occurred and near the place where it was first seen, said: 'Oh! my God. The stage is on fire. I did it. I am a ruined man"! This was held admissible as part of the res gestae, not as narrative but as conduct relevant to the issue.
Julius Stone3 has pointed out that the American view is that statements admissible as res gestae constitute an exception to the hearsay rule. Stone takes the three situations about which most of these problems revolve, namely-(i) statements as to bodily or mental feelings; (ii) spontaneous statements in the face of an emergency, and (iii) statements of intention. He says that all these are exceptions to the rule against hearsay.
1. Compare Bateman v. Bailey, (1794) 5 TR 512; Hyde v. Palmer, (1863) 32 LJQB 126; Bennison v. Cartwright, (1864) 33 LJQB 137.
2. Mensey Docks Board v. Liverpool Gas Co., (The Times August 23, 1875) (Facts taken from Phipson).
3. Julius Stone Res Gestae Resigitata, 55 LQR.
7.36. Position under the Evidence Act.-
For the purposes of the Indian Evidence Act, however, the controversy referred to above should not be material, because section 6 does not lay down any limitations as to the evidentiary use to which a statement admissible under this section can be put.
In a Calcutta case,1 the only evidence against the accused woman who was charged with having voluntarily caused grievous hurt to her daughter-in-law with a pair of tongs which had been heated, was a statement made in the presence of the accused by the person injured to a neighbour immediately after the infliction of the injuries. The accused did not deny the allegation (contained in this statement) that she had inflicted the injuries. It was held that this statement was admissible under section 6, as res gestae and also under illustration (g), section 8, as conduct influenced by a relevant fact (acquiescence in a charge).
In this case, the statement was made in the presence of the accused. But that aspect, it is suggested, was not material for the purpose of application of section 6. It was emphasised to show relevance under section.-the conduct of the accused by remaining silent. In fact, the High Court referred to the English case of R. v. Foster, (1934) 6 C&P 325, para. 7.27, supra, as in point, though the court took care to observe that English cases could be taken merely as illustrations and not as binding. It may be noted that in R. v. Foster, the accused was not present when the statement was made.
1. surot Dhobini (in re:), 1884 ILR 10 Cal 302 (304) (C.D. Field and R.C. Mitter, JJ.).
7.37. Aspect of spontaneity.-
In this connection, it should be pointed out that statements in the nature of spontaneous exclamations are really statements through which the transaction speaks. Although physically they come from the mouth, they really come from the heart. The will is subsidiary, the emotion paramount. They express the inner commotion of the soul. No doubt, such utterances or, for that matter, any other utterances-are not conclusive; but they render probable the existence of the fact asserted (which is the general test of relevance)1and, for that reason, it seems to be legitimate to regard them as admissible not only for proof of the factum of the statement, but also in proof of the truth of the contents. In a recent English case,2 Lord Wilberforce vividly described such statements as made under the 'pressure of the drama'.
1. See Chapter 4, supra.
2. Ratten v. R., (1971) 3 WLR 930 (HL).
7.38. This aspect of spontaneity could be illustrated. If a passenger in a car spontaneously makes the following utterance as to the defendant's car-"See. He has come over on the wrong side", it is more probable than not that the other car had come over to the wrong side. It is difficult to see what utility such utterances can have as evidence, if they are not to be utilised for the purpose of proving the truth of the matter stated.
7.39. Statements also falling under section 8.-
Incidentally, it may be stated that some of the later sections in the Act deal specially with statements which are discussed in English text-books under res gestae. Discussion in the under-mentioned1-5decisions show that the evidence covered by section 8 etc. is of the nature usually referred to as res gestae.
1. Particularly, section 8.
2. Yusufalli v. State, AIR 1968 SC 147 (149) (section 8).
3. 1879 ILR 3 Boni 17 (18) (Section 8).
4. 1951 All LJ 49 (50).
5. Chhotka v. State, AIR 1958 Cal 482 (487), para. 23.
7.40. No amendment suggested.-
We have considered it necessary to deal with the salient features of the section, in view of its importance. However, the discussion does not necessitate any amendment. Such difficulties as may be felt in practice are difficulties of the application of the section, which are not avoidable by any verbal improvements.