Res gestae, motive, conduct, identification, conspiracy and alibi (sections 4 to 9)

1. Section 4: facts forming part of the same transaction

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. This is the Indian form of the English doctrine of res gestae, "things done".

The test is proximity and spontaneity. The statement or act must be so bound up with the main event that it is part of it, not a later account of it. Illustration (a): whatever was said or done by the accused, the victim or bystanders at the beating, or so shortly before or after it as to form part of the transaction, is relevant. A transaction may be spread out, as in illustration (b) (an armed insurrection) or (d) (successive deliveries of goods), so long as the parts are linked by continuity of action and purpose.

• Sukhar v. State of Uttar Pradesh, 1999 INSC 451, (1999) 9 SCC 507. The injured man's statement, made to a witness who reached him immediately after the firing, that the accused had shot him, was admitted under old s.6. The Court said the statement must be contemporaneous with the act or so soon after it that there is no interval allowing fabrication.
• Gentela Vijayavardhan Rao v. State of Andhra Pradesh, 1996 INSC 954, (1996) 6 SCC 241. Statements of burnt passengers recorded by a magistrate some hours later, after the event was over, were not part of the transaction. There was a break in time, and the statements were narratives.
• Rattan Singh v. State of Himachal Pradesh, 1996 INSC 1467, (1997) 4 SCC 161. The deceased cried out that the accused was standing with a gun, and was shot immediately. The cry was admitted both as a dying declaration and, apart from it, as part of the same transaction.

2. Section 5: occasion, cause, effect, opportunity

Facts which are the occasion, cause or effect of a fact in issue, or which constitute the state of things under which it happened, or afforded an opportunity for it, are relevant. That B showed his money at a fair before he was robbed (occasion and opportunity), marks of a struggle at the scene (effect), and B's habits known to A which allowed poison to be given (opportunity) are the statutory illustrations.

3. Section 6: motive, preparation and conduct

Motive is what moves a person to act; preparation is arranging the means. Both are relevant under section 6(1). That A procured poison similar to that given to B (illustration (c)) is preparation. Motive is important in a case on circumstantial evidence, but where there is reliable direct evidence, absence of proved motive does not defeat the prosecution.

Conduct of a party or his agent, and of the victim of an offence, is relevant under section 6(2) if it influences or is influenced by a fact in issue, whether previous or subsequent. Absconding, destroying evidence, suborning witnesses and possession of the proceeds (illustrations (e), (i)) are typical. Two Explanations limit it:

• Explanation 1. "Conduct" does not include statements, unless they accompany and explain acts other than statements.
• Explanation 2. When conduct is relevant, a statement made to the person or in his presence which affects that conduct is relevant. "The police are coming to look for the person who robbed B", followed by A running away, is relevant (illustration (f)).

The prompt complaint of a rape or robbery victim is relevant as conduct (illustrations (j) and (k)); a bare statement without a complaint is not, though it may be a dying declaration under section 26(a) or a corroborating statement under section 160.

4. Section 7: explanatory facts and identification

Facts necessary to explain or introduce a fact in issue, which support or rebut an inference, which establish identity, fix time or place, or show the relation of parties, are relevant so far as necessary for that purpose.

The test identification parade is relevant under this section. Its purpose is to test the memory of a witness who did not know the accused before, and to give the investigation a direction. Section 54 BNSS (old s.54A CrPC) provides for identification of an arrested person.

• Malkhan Singh v. State of Madhya Pradesh, 2003 INSC 308, (2003) 5 SCC 746. Identification in a parade is not substantive evidence. The substantive evidence is the identification in court; the parade only corroborates it. Failure to hold a parade does not make the dock identification inadmissible, though it may affect its weight.
• Kanta Prashad v. Delhi Administration, 1958 INSC 4, AIR 1958 SC 350. Identification proceedings are relevant under old s.9 as corroboration.

A statement made by the identifying witness to the police officer conducting the parade is hit by section 181 BNSS, which is why parades are held before a magistrate.

5. Section 8: conspirators

Where there is reasonable ground to believe that two or more persons have conspired to commit an offence or actionable wrong, anything said, done or written by any of them in reference to their common intention, after that intention was first entertained by any of them, is relevant against each, both to prove the conspiracy and to show that a particular person was a party to it. It is an exception to the rule that one person's words do not bind another, based on the agency each conspirator has for the rest.

• Badri Rai v. State of Bihar, 1958 INSC 70, AIR 1958 SC 953. Once prima facie evidence of conspiracy exists, what one conspirator said in furtherance of it is evidence against the other.
• State (NCT of Delhi) v. Navjot Sandhu, 2005 INSC 333, (2005) 11 SCC 600 (Parliament attack case). The words "in reference to their common intention" are wider than the English "in furtherance of", but statements made after the conspiracy has ended, or after arrest, are outside the section. The Privy Council's limit in Mirza Akbar v. King-Emperor (1940) was followed.

6. Section 9: alibi and facts inconsistent with a fact in issue

Facts not otherwise relevant become relevant if they are inconsistent with a fact in issue, or make its existence highly probable or improbable. The plea of alibi ("elsewhere") rests on clause (1): illustration (a) says that A was at Ladakh on the day of a crime at Chennai is relevant.

The burden of proving an alibi lies on the accused (section 106, old s.103), and it must be proved with certainty so as to exclude the possibility of his presence at the scene: Binay Kumar Singh v. State of Bihar, 1996 INSC 1260, (1997) 1 SCC 283. But the overall burden stays on the prosecution; a failed alibi does not by itself prove guilt. Evidence of alibi should not be rejected merely because the witnesses are relatives: Dudh Nath Pandey v. State of U.P., 1981 INSC 27, (1981) 2 SCC 166.

7. Problems

(a) X is hit by a speeding vehicle and badly injured. Y deposes that he saw the vehicle speeding but not the accident, and that X told him about the accident. Is the statement relevant? (June 2025)

Issue. Whether X's account to Y is relevant as part of the same transaction under section 4, or is hearsay. Law. A statement is part of the transaction only if it is contemporaneous and spontaneous (Sukhar); a narrative after an interval is not (Gentela). Application. Y saw the speeding vehicle, so his own observation is direct evidence under section 55. If X spoke to Y at the spot, immediately after being hit and before there was time to reflect, the statement is part of the res gestae. If he spoke later, it is hearsay, unless X dies of the injuries, when it would become relevant under section 26(a). Conclusion. Relevant if immediate; otherwise not, X himself being the proper witness.

(b) A heard that C had been murdered, went to the spot and found C's body being carried by four persons, who told him that B had murdered C and run away. Is their statement part of the res gestae? (Law of Evidence, June 2025)

Conclusion. No. The murder was over before A was told of it; the four persons were reporting a past event to a newcomer. The statement is a narrative, not part of the transaction, and A's evidence of it is hearsay. The four persons must be called to say what they saw.

How this is examined

As essays: "Explain the relevancy of facts forming part of the same transaction" (Law of Evidence, Feb 2025). As notes: "Motive, preparation and conduct" (Jan 2026), "Test identification parade" and "Plea of alibi" (Feb 2025). The res gestae problems above recur almost every year. In every answer state the time-gap test and cite one case each way (Sukhar and Gentela).