Res Gestae Under Bharatiya Sakshya Adhiniyam, 2023: Re-Examining Hearsay Exception In Digital Age

Res Gestae is a Latin phrase meaning “things done” or “things transacted”. It refers to the facts, statements, or acts so closely connected with the main event that they form part of the same transaction.

The doctrine of Res Gestae provides one of the most important exceptions to the hearsay rule by allowing courts to use spontaneous or contemporaneous statements linked to the same transaction.

In the modern digital age, the application of this doctrine has become increasingly complex. Courts are now called upon to determine whether the electronic communications (text messages, live streams, distress calls, CCTV footage, or social media postings) fall within the scope of the “same transaction”. While such communications might seem spontaneous, their admissibility is based on authenticity and integrity, as well as compliance with legal statutes. It is in this context of an evolving technological landscape that this doctrine needs to be re-examined carefully in light of the Bharatiya Sakshya Adhiniyam, 2023. (hereinafter referred to as the BSA).

Statutory Recognition Under the BSA, 2023

The doctrine of Res Gestae is embodied in Section 4 of the BSA, 2023, corresponding to Section 6 of the Indian Evidence Act, 1872. Section 4 of the BSA, 2023 provides:

"Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."

For a fact to qualify as part of the Res Gestae, it is not necessary that it must be one of the facts directly in issue, but it must be so closely connected with the main event that it may be treated as forming part of the same transaction.

The expression “same transaction” has not been defined in the Adhiniyam. Sir James Stephen defined a transaction as “a group of facts so connected together as to be referred to by a single name such as a crime, contract, or wrong or any other subject of enquiry, which may be in issue”.

The Test of Spontaneity

Spontaneity is an essential requirement of Res Gestae. Spontaneous statements made immediately, without any opportunity for invention or distortion, form the core of this doctrine. In Gentela Vijayavardhan Rao v. State of A.P. (1996 INSC 954), the Supreme Court held that,

“it is necessary that such fact or statement must be a part of the same transaction. In other words, such a statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient for fabrication then the statement is not part of res gestae.”

Res Gestae excludes statements that are merely narratives of past events because they arise from memory, reflection and deliberation, not from immediate perception. Only those statements which occur along with the act, or are made so proximate in time and circumstances that they cannot be separated from the event itself, fall within its scope.

The Digital Age Challenge

While the doctrine of Res Gestae is an important exception to the hearsay rule, courts are faced with practical difficulties in applying this doctrine in the context of digital evidence. Unlike oral evidence, the digital communications leave behind electronic footprints which require technical validation, metadata examination and proof of reliability.

Courts now deal with situations where real-time text messages, distress calls, CCTV recordings or social-media posts are presented as part of the “same transaction”. Although such digital statements may be spontaneous, their admissibility ultimately depends on proving integrity, authorship and unbroken chain of custody that are requirements much greater than those for oral statements.

In Anvar P.V. v. P.K. Basheer & Ors. (2014 INSC 645), the Supreme Court held that for the admissibility of the electronic records, it is mandatory that they be certified under Section 65-B of the Indian Evidence Act (now Section 63 of the BSA). It declared that such records are inadmissible without this certificate, thus overruling the earlier decision in State (NCT of Delhi) v. Navjot Sandhu (2005 INSC 333), Consequently, even if an electronic communication is spontaneous and contemporaneous to qualify as Res Gestae, it cannot be considered as evidence unless the mandatory statutory requirements for certification are satisfied.

Similarly, in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke (2015 INSC 48), the Supreme Court emphasized in para 16, “Source and authenticity are the two important factors for the electronic evidence as held by this Court in Anvar P.V. v. P.K. Basheer and others.” This principle equally applies when electronic communications are relied upon as evidence in courts.

This position was clearly reaffirmed by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020 INSC 453), wherein the Court made it clear that the requirement of certificate under Section 65-B is mandatory and it cannot be dispensed with, except in limited cases, where the original electronic device itself is produced before the court.

Recalibrating the Doctrine in a Technological Era

The doctrine of Res Gestae continues to play an important role in evidence law by recognizing statements forming part of the same transaction. Nevertheless, it needs to be recalibrated in terms of its application in the digital era.

Judges are now required to examine not only the spontaneity of the statement but also the reliability of the medium through which it was conveyed. Unlike oral statements made in the heat of the moment, digital communications are subject to modification, manipulation and delay in transmission. Messages, calls and even videos may only be considered part of the same transaction once the court is satisfied as to their authenticity, integrity and compliance with the statutory safeguards.

Thus, in the digital age, Res Gestae cannot operate in isolation; it must be applied in harmony with the procedural requirements of electronic evidence.

Author is a law student at Central University of Kashmir. Views are personal.