Section 6 IEA vs Section 4 BSA — Res Gestae: Facts Forming Part of the Same Transaction

In India, Section 4 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Section 6 of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. The res gestae rule survives: facts forming part of the same transaction are relevant. The connection may now be with "a fact in issue or a relevant fact", not only a fact in issue.

At a glance

Section 4 is a rule of relevancy, not an offence, so no First Schedule classification applies. The BSA commenced on 1 July 2024 under notification S.O. 849(E) dated 23 February 2024 (footnote 1 to Section 1 of the official BSA text).

What changed

• Expanded — the connecting fact: Section 6 IEA made relevant facts "so connected with a fact in issue as to form part of the same transaction". Section 4 BSA reads "so connected with a fact in issue or a relevant fact as to form part of the same transaction". On a reading of the text, a fact may now enter through its link with a relevant fact as well as with a fact in issue.
• Identical — the time-and-place clause: facts are relevant "whether they occurred at the same time and place or at different times and places".
• Identical — the heading: "Relevancy of facts forming part of same transaction".
• New — group heading: the Gazette places Section 4 under the group heading "Closely connected facts", which also covers Sections 5 to 14 in the BSA arrangement of sections. Chapter II of the IEA ("Of the relevancy of facts") had no such sub-heading before Section 6.
• Minor edit — Illustration (a): "by-standers" becomes "bystanders".
• Minor edit — Illustration (b): "gaols are broken open" becomes "jails are broken open". "Government of India" is unchanged in substance; in the IEA it carried a footnote recording its substitution for "Queen" by the Adaptation of Laws Order, 1950.
• Identical in substance — Illustrations (c) and (d): the libel-in-correspondence and successive-delivery examples are carried over word for word.

Statutory text (relevant extract)

Extract, Section 6 IEA (repealed from 1 July 2024):

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.

Extract, Section 4 BSA:

Facts which, though not in issue, are so connected with a fact in issue or a relevant fact 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.

Extract, Illustration (a) to Section 4 BSA:

A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

How it works — three questions

Section 3 BSA (formerly Section 5 IEA) allows evidence of facts in issue and of facts "hereinafter declared to be relevant, and of no others". Section 4 is the first of those declarations. A party relying on it has to answer three questions.

1. What is the fact in issue or relevant fact? Under Section 6 IEA the anchor had to be a fact in issue. Under Section 4 BSA it may also be a relevant fact.
2. Is the tendered fact connected with it? The connection must be close enough that the two "form part of the same transaction". The Act does not define "transaction"; the illustrations show its range.
3. Does it form part of the same transaction? Physical separation does not defeat this — the closing words admit facts that occurred "at different times and places".

The four illustrations show how wide or narrow a "transaction" can be:

• Illustration (a) — words and acts at the scene. In a trial for murder by beating, whatever was said or done by the accused, the victim or the bystanders "at the beating, or so shortly before or after it as to form part of the transaction" is relevant. In Sukhar (below), the Supreme Court quoted an earlier judgment of its own that relied on this illustration for proximity of time (report p. 320).
• Illustration (b) — a general transaction. Where A is accused of waging war by taking part in an armed insurrection, the destruction of property, attacks on troops and the breaking open of jails are relevant "as forming part of the general transaction, though A may not have been present at all of them".
• Illustration (c) — documents in a series. In a suit for libel contained in one letter of a correspondence, the other letters on the same subject that form part of the correspondence are relevant, though they do not contain the libel.
• Illustration (d) — a chain of events. Where the question is whether goods ordered from B were delivered to A through several intermediate persons, "Each delivery is a relevant fact."

Where Section 4 stops. Illustrations (b) to (d) show that a transaction can extend over time and place. For statements, the judgments below apply a stricter test: a statement is admitted as part of the transaction only if it was made at the time of the act or so soon after it that there was no opportunity to fabricate. A statement that falls outside Section 4 may still be relevant under another provision — for example Section 6 BSA (conduct, and statements accompanying and explaining acts), Section 26 BSA (statements of persons who are dead) or Section 160 BSA (former statements to corroborate a witness).

What this means in practice

For the prosecution

• A statement by the victim or an onlooker at or immediately after the incident is admissible through Section 4 only if the witness who heard it can place it in time. Lead evidence of the sequence — the act, the arrival of the witness, the words spoken — so that the court can see there was no interval for fabrication.
• The persons who heard such statements are witnesses in their own right. In Krishan Kumar Malik (below), the failure to examine the relatives whom the prosecutrix met soon after the occurrence was one of the reasons the conviction was set aside.
• Where the statement was recorded later — by a Magistrate, a police officer or a doctor — Section 4 will not carry it where there was an interval sufficient for fabrication (Gentela, below); look instead to Section 26 BSA (if the maker has died and the statement relates to the cause of death) or Section 160 BSA (to corroborate a maker who testifies).

For the defence

• Test the timing. Cross-examine on how long after the act the statement was made, where the witness was, and who else was present. Gentela and Sukhar (below) turn on the interval.
• Where the prosecution relies on what a deceased person said to relatives on earlier occasions, Bhairon Singh (below) holds that Section 6 IEA did not reach such statements; they stand or fall under Section 32 IEA (now Section 26 BSA).

For civil litigants

• Illustrations (c) and (d) are civil examples: the rest of a correspondence in a libel suit, and each step in a chain of deliveries. A party can tender the whole series when one document or delivery is in issue, provided the others form part of the same transaction.

On the new words. Because Section 4 BSA adds "or a relevant fact", a party may argue that a fact linked to an established relevant fact — not to a fact in issue itself — is admissible. That is a reading of the new text; no Supreme Court judgment applying the added words was found.

Judgments that still matter

Gentela Vijayavardhan Rao and Anr. v. State of Andhra Pradesh, [1996] Supp. 5 S.C.R. 273 (1996 INSC 954) — 28 August 1996. A Bench of Dr. A. S. Anand and K. T. Thomas JJ. (judgment by Thomas J.) heard an appeal against convictions and death sentences for setting fire to a bus, in which 23 passengers died. A judicial magistrate had recorded the statements of two injured passengers as dying declarations; both survived, and the High Court relied on the statements as res gestae under Section 6. The Supreme Court described Section 6 as "roughly speaking, an exception to the general rule that hearsay evidence is not admissible", resting on the "spontaneity and immediacy" of the statement, and held that "if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae" (report pp. 281–282). Because of the appreciable interval before the magistrate recorded the statements, the High Court was in error in treating them as res gestae; they could be used only to corroborate or contradict their makers under Section 157 of the Evidence Act (p. 282). The appeal was nevertheless dismissed and the death sentences confirmed on the other evidence (p. 285). The report shows no paragraph numbers.

Sukhar v. State of Uttar Pradesh, [1999] Supp. 3 S.C.R. 314 — 1 October 1999. A Bench of G. B. Pattanaik, M. Srinivasan and N. Santosh Hegde JJ. (judgment by Pattanaik J.) dealt with a conviction under Section 307 IPC resting on PW-2's evidence that the injured man told him, when PW-2 reached the spot on hearing an alarm, that his nephew had fired at him. The Court held that for hearsay to come within Section 6 "it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication" (p. 319), and that PW-2's evidence of what the injured said was admissible under Section 6 (p. 321). It then held that PW-2, who was inimical to the accused, could not be relied on without corroboration, since none of the more than 20 persons who had gathered was examined; it set aside the conviction and sentence and acquitted the appellant (pp. 321–322). Admissibility and reliability are separate questions. Our record gives no INSC number.

Bhairon Singh v. State of Madhya Pradesh, [2009] 9 S.C.R. 875 (2009 INSC 852) — 29 May 2009. D. K. Jain and R. M. Lodha JJ. (judgment by Lodha J.) considered a husband acquitted under Sections 304-B and 306 IPC, where the wife's death was accidental, but convicted under Section 498A on his brothers-in-law's evidence of what she had told them about ill-treatment (paras 2, 10). The Court held that evidence inadmissible under Section 32(1) (para 11). Answering the State's reliance on Section 6, it said that utterances "must be simultaneous with the incident or substantial contemporaneous", and that Section 6 was "not at all attracted" to those statements (para 16). The conviction under Section 498A was set aside (para 18).

Krishan Kumar Malik v. State of Haryana, [2011] 8 S.C.R. 774 (2011 INSC 437) — 4 July 2011. Dalveer Bhandari and Deepak Verma JJ. (judgment by Verma J.) allowed an appeal against a conviction for abduction and gang rape. Among other lapses, the prosecutrix had met her mother and sister soon after the occurrence, but neither was examined, although "they would have been Res Gestae witnesses" (paras 33, 36). The Court restated that statements "must have been made contemporaneously with the act or immediately thereafter" (para 35). The conviction was set aside and the appellant acquitted of all charges (para 48). The res gestae point was one of several grounds.

Section 4 BSA repeats the words "so connected with a fact in issue … as to form part of the same transaction", so on a reading of the text these judgments remain relevant to the new section. None of them construed the added words "or a relevant fact".

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". On a reading of that provision, a trial pending on 1 July 2024 applies Section 6 IEA, and one that began afterwards applies Section 4 BSA, including the added words. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 6 of the Evidence Act? Section 4 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 6 of the Indian Evidence Act, 1872 from 1 July 2024. It keeps the res gestae rule: facts which, though not in issue, are so connected as to form part of the same transaction are relevant, whether they occurred at the same or different times and places. The main change is that the connection may now be with a fact in issue or a relevant fact.

What has changed in Section 4 BSA compared with Section 6 IEA? Section 6 IEA covered facts connected with "a fact in issue"; Section 4 BSA covers facts connected with "a fact in issue or a relevant fact". The four illustrations are carried over with drafting changes: "by-standers" becomes "bystanders" and "gaols" becomes "jails". Section 4 also sits under a new group heading, "Closely connected facts".

What is res gestae? Res gestae is the name the Supreme Court has used for the rule in Section 6 of the Evidence Act, now Section 4 BSA. In Gentela Vijayavardhan Rao v. State of Andhra Pradesh, [1996] Supp. 5 S.C.R. 273, the Court described it as a rule under which a fact so connected with the fact in issue as to form part of the same transaction becomes relevant by itself, and as roughly an exception to the rule against hearsay.

How soon after the incident must a statement be made to be part of res gestae? In Sukhar v. State of Uttar Pradesh, [1999] Supp. 3 S.C.R. 314, the Supreme Court said the statement must be almost contemporaneous with the acts, made at the time or immediately after, with no interval that would allow fabrication. In Gentela Vijayavardhan Rao, it held that an interval, however slight, that was sufficient for fabrication takes the statement out of Section 6. Section 4 BSA repeats the "same transaction" words.

Can a statement made to a Magistrate by an injured victim who survives be res gestae? Not where there was an appreciable interval between the offence and the statement. In Gentela Vijayavardhan Rao v. State of Andhra Pradesh, the Supreme Court held that the High Court erred in treating statements recorded by a judicial magistrate from surviving burn victims as res gestae. It held that such statements could only be used to corroborate or contradict the maker under Section 157 of the Evidence Act, now Section 160 BSA.

Is a dead woman's earlier complaint of ill-treatment to her relatives res gestae? Not on the facts of Bhairon Singh v. State of Madhya Pradesh, [2009] 9 S.C.R. 875. The Supreme Court held that Section 6 was "not at all attracted" to what the deceased had told her brothers about her treatment during visits (para 16), and that the statements were also inadmissible under Section 32(1) because her death was accidental (para 11). The Section 498A IPC conviction was set aside (para 18).

Which law applies to a trial that was pending on 1 July 2024? Section 170(2) BSA provides that a trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as in force immediately before commencement. The BSA commenced on 1 July 2024 under S.O. 849(E), so Section 6 IEA continues to govern those matters.

Related

• Section 8 IEA vs Section 6 BSA — Motive, preparation and conduct
• Section 9 IEA vs Section 7 BSA — Explanatory and introductory facts
• Section 32 IEA vs Section 26 BSA — Dying declarations
• Sections 3-4 IEA vs Section 2 BSA — Definitions
• Offence before 1 July 2024 — which law applies
• Evidence Act to BSA — master mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 3, 4, 5, 6 and 170; arrangement of sections and commencement footnote to Section 1 (S.O. 849(E)) from the official text.
• Indian Evidence Act, 1872 (India Code text): Sections 5, 6, 7 and 8 with footnotes; headings of Sections 32 and 157.
• Judgments read in full text: Gentela Vijayavardhan Rao v. State of Andhra Pradesh (S_1996_5_273_285_EN.md); Sukhar v. State of Uttar Pradesh (S_1999_3_314_322_EN.md); Bhairon Singh v. State of Madhya Pradesh (2009_9_875_888_EN.md); Krishan Kumar Malik v. State of Haryana (2011_8_774_797_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.