Rethinking Sukhar v. State of U.P.: How the Interpretation of Section 6 of Evidence Act Adopted a Thayerite Approach Rather than Stephen’s



The doctrine of res gestae has always remained one of the most confusing topics in the law of evidence. Stephen, the framer of “the Evidence Act, 18721” adopted a unique approach while dealing with this problem. His approach entails distinguishing between “facts” and “evidence”, and “relevance” and “admissibility”. However, the Indian courts never seem to have adopted this approach of Stephen, rather they remained highly influenced by the common law courts.

Sukhar v. State of U.P.2 is one such judgment wherein the Court neglected the approach of Stephen and resorted to the approach prevalent in common law courts to solve the case at hand. The brief facts of the case are that Sukhar, the accused who was arrested and charged for shooting his nephew, Nakkal owing to the previous enmity between them. There were two witnesses who helped the injured Nakkal and Nakkal told one of these witnesses that Sukhar shot him.3 The point of contention was that these witnesses did not see Sukhar as they arrived later at the scene, so whether this statement of Nakkal made to the witness, comes under Section 64? The Court resorted to some earlier precedents of the Court and treated the entire issue as the issue of admissibility of the witness's statement as to what Nakkal said to him.5 The Court treated Nakkal's statement as part of res gestae and hence admissible under Section 6.6

This paper analyses the judgment in Sukhar7. In the first section, I argue that the approach of reading res gestae into Section 6 is erroneous and against the scheme and intention of the Act. I will show how interpreting res gestae in Section 6 creates confusion and ambiguity rather than solving the problem. In the second section, I will analyse the influence of Thayer and other scholars on the Court's judgment. I will argue that the Court has actually adopted Thayer's way of analysis rather than Stephen's way. The Court's approach of ignorance of “relevance” and looking into “admissibility” seems to be influenced by Thayerite analysis of evidence. Finally, in the third section, I will look into the correct approach in line with Stephen's intention and scheme of the Evidence Act that the Court ought to have adopted in Sukhar8.

The reading of “res gestae” into Section 6

In Sukhar9, the Court clearly said that Section 6 of the Evidence Act is actually the doctrine of res gestae.10 It is submitted that this approach of the Court directly goes against the scheme of the Evidence Act. Stephen considered “relevancy” to be the first principle of evidence law.11 He laid down specific sections that dealt with “relevancy” in the Act. Only those facts that fall under those sections were considered relevant under Section 3 of the Evidence Act.12 Section 6 is one of those sections that come under the chapter of “relevancy”. Therefore, all those facts that satisfy the requirement of Section 6 are “relevant”. However, when the Court applied the doctrine of res gestae, they actually delved into matters of “admissibility” and “evidence”. Section 6 is not at all concerned with these concepts.

Stephen has a different scheme wherein the “relevancy” was applicable to “facts”13 while “admissibility” was applicable to “evidence”. His definition of “evidence” is limited to only direct “oral” and “documentary” evidence14 and admissibility applies to only those evidence15. On the other hand, “facts” entail a broader domain and if any fact comes within the definitions provided in the “relevancy” chapter and it is proved through admissible evidence then the Court can infer certain other facts from it.16 Therefore, this provides certain discretion to the Court. However, if the Court reads Section 6 as res gestae, then the Court will be bound to admit such facts as evidence and hence it reduces the discretion of the court.

Besides this, the doctrine of res gestae is considered to be one of the most confusing doctrines in the evidence law and the use of this doctrine has created several problems and confusions in other jurisdictions.17 The same confusion is created in India because of the use of this doctrine. The Court in UK In cases like R. v. Bedingfield and Ratten v. R. has formulated the tests of “spontaneity” and “contemporaneity” to limit the application of this doctrine.18 The Indian Courts in cases like Gentela Vijayavardhan Rao v. State of A.P.19 have also applied these tests; however, these tests limit the application of the section in terms of place and time which goes entirely against the language used in Section 6 [if we look at the Illustration (a) to the section].

Therefore, the Court in Sukhar20 has erred in reading res gestae into Section 6 as this created several ambiguities in the application of the section. This approach also goes against the scheme of the Act itself. Moreover, it creates unnecessary restrictions on the use of the section that is neither mentioned nor intended in the language of section.

The impact of Thayer and other scholars on the Court's reasoning

The Court's approach of giving prominence to principle of “admissibility” over “relevancy” is highly influenced by the theories of Thayer and other similar scholars. The reason for the Court's reading of res gestae in Section 6 is that they gave more importance to the principle of “admissibility” and completely misunderstood the principle of “relevancy”. This is the same approach adopted by Thayer and some other scholars.

Starting with Thayer, his theory considered “admissibility” to be the main principle of evidence law. According to him, “relevancy” is not the issue of law; rather it must be understood by logic.21 He says that there lies a “rule of exclusion” wherein only the logically relevant facts are allowed, and all other facts are rejected by the courts.22 However, this is merely a process of logic applied by the courts and there cannot be any law that can lay down any rule regulating this logic. Rather, the evidence law is majorly concerned with “admissibility” of these logically relevant facts.23 The evidence law lays down certain rules that actually exclude certain relevant (logically) facts because of public policy, etc.24 However, if there is any exception to such exclusionary rules then the evidence can become admissible.25

This is the main theory of Thayer and based on this, he criticises Stephen saying that wherever Stephen says “relevancy”, it appears to be only relevancy that is logical and not legal.26 Moreover, Stephen is highly unclear of his use of the word “relevancy”. Thayer also gives the example of “hearsay rule” saying that hearsay is always a relevant fact logically; however, it is not used in courts, because it is deemed inadmissible by the application of evidence law.27

This criticism of Stephen is also done by many other scholars like G.D. Nokes. Nokes makes a similar point and says that wherever the word “relevancy” is used by Stephen, it can be substituted with the word “admissibility”.28 As mentioned in the previous section, Stephen did have a well-defined theory of “relevancy” and he believed that it can solve many problems prevailing in other jurisdictions. Unfortunately, his rather unique theory was neither understood by these scholars nor by the Indian courts.

If we analyse the judgment in Sukhar29, it gives prominence to the principle of “admissibility.” The Court explains that how Section 6 is actually a part of exceptions to hearsay.30 Now, as per Thayer, hearsay is an exclusionary rule that restricts the use of certain logically relevant facts. The only way through which a fact can be admitted is that it has to fall within any exception to this exclusionary rule.31 The Court adopted an approach wherein Nakkal's statement is considered to be a relevant fact (logically) that is barred by the hearsay rule.32 It can become admissible only if it lies in any “exception” to the exclusionary rule of hearsay. The Court considered res gestae to be that exception and also cited Gentela Vijayavardhan Rao v. State of A.P.33 to elaborate on the reasons for admitting Nakkal's statement.34

Therefore, their reasoning of treating Section 6 as an “exception” to hearsay is consistent with the theory of Thayer rather than Stephen's. As per Stephen, there was no need to consider Section 6 as an exception to hearsay rather that section must have been considered as an independent section with its own self-defining boundaries for ascertaining “relevancy”.35

Secondly, it must be noticed that Thayer's theory treats the same logically relevant fact as evidence once it is admissible.36 In Stephen's analysis, there are two different types of inferences made, one is made from a “relevant” fact, and the other is made from “admissible” evidence.37 However, in Thayer's theory the same relevant fact gets admitted as evidence. The Court in Sukhar38 adopted a similar approach wherein the logically “relevant” fact i.e. Nakkal's statement was admitted as “evidence” after passing the test of “admissibility”.

Besides this, the Court in Sukhar39 also cites a paragraph from Wigmore's book on evidence.40 This fact itself shows the influence of Thayer. This is because Wigmore was a student of Thayer and there are some similarities between the theories of both these scholars.41 Wigmore's theory is based on establishing a distinction between “proof” and “admissibility”.42 He says that it is the latter that forms the part of evidence law. Therefore, even Wigmore's view of the evidence law is quite similar to Thayer because even he limits the function of evidence law in laying down certain exceptions to the admissibility of certain evidence. Similarly, even on the point of hearsay, Wigmore considered it to be inadmissible rather than irrelevant.43

Since, the basic foundation of Wigmore's theory is different and is inclined towards Thayer to an extent44; his entire analysis of evidence law is based on this foundation. Therefore, the Court was wrong in citing Wigmore's view on res gestae because his views were based on an entirely different understanding of the evidence law. It further proves how the Court has subconsciously accepted the Thayerite view.

It must also be noticed that the Thayer's way that Sukhar45 adopted also left a significant impact on the future decisions of the Supreme Court and the High Courts. For example, in cases like Bhairon Singh v. State of M.P.46 and State of M.P. v. Ramesh47 the Supreme Court reiterated the same analysis of Sukhar48 wherein the Court looked into the issues of admissibility, exceptions to hearsay and also treating same “relevant” fact as “admissible” evidence. These cases also cite the same reasoning of Sukhar49 to explain the reasons for admitting these statements in evidence. It is submitted that the erroneous approach of Sukhar50 of giving primacy to “admissibility” got completely embedded in the Indian courts' jurisprudence. Since the function of evidence law is considered to be “admissibility” and not relevancy; naturally, Section 6 was also made a section of admissibility in a certain way by the courts. The Courts even till the present time51 keep citing Sukhar52 and in this way have entirely replaced Stephen with Thayer.

What might have been a correct interpretation of Section 6

While interpreting Section 6 of the Evidence Act, the Court ought to have looked into the intention and structure of the Act.

One way in which the words of Section 6 could have been interpreted must be to do an “originalist” interpretation of Section 6. If we take the word “transaction” in Section 6, according to Stephen, “transaction” is actually a “group of facts” that is interconnected in such a way that they can be considered to be under a “single legal name”.53 Now, in this case, the “legal name” that can be given to all the facts that are connected to “fact-in-issue” is “attempt to murder”. The “attempt” was finished when Sukhar shot Nakkal and ran away. After this, the witnesses came and Nakkal gave his statement. This statement cannot be said to fall within the “legal name” of attempt to murder, since the attempt was already finished when Sukhar ran away and hence the statement of Nakkal cannot fall under “transaction” as defined by Stephen. It must be observed that Stephen's definition of the word “transaction” is relatively narrower when compared to the bare text of the Section itself. Therefore, it is submitted that in an “originalist” interpretation, Nakkal's statement cannot come under Section 6.

However, the case can also be looked at from another perspective. Let us say that the Court interpreted the word “transaction” differently and considered Nakkal's statement to be a part of the transaction and “relevant” under Section 6. This can be done by analysing the text of Section 6 with its illustrations.54 If the Court would have adopted this approach, even then, the fact of Nakkal's statement would become “relevant” only and then the Court would have to infer certain other facts from it. However, the inference that would have been drawn from Nakkal's statement that was made in the presence of witnesses who came after the crime was committed, would have been a very weak inference, and hence the Court could not have inferred anything substantial from it. Therefore, the conclusion of the Court would have remained same in both the abovementioned scenarios.

Therefore, the Court was free to interpret the word “transaction” in its own way because Stephen has not defined that word in his Act and the Court was not bound to do an originalist interpretation to interpret the word. Hence, the interpretation of the word “transaction” was not erroneous; however, the major error lies in misinterpreting the scheme of the Act. The words in Section 6 must have been interpreted within that scheme.


In this paper, I have analysed the Court's decision in Sukhar v. State of U.P.55 I have argued that the Court in Sukhar56 adopted a flawed approach of reading res gestae into Section 6 because res gestae is concerned with the admissibility of evidence while Section 6 with the relevancy of facts. In the second part, I looked into how the Court's judgment in Sukhar57 and all the subsequent judgments that follow Sukhar58, actually, follow Thayer's line of reasoning and not Stephen's line of reasoning. In addition, I also looked at the influence of the views of other scholars like Wigmore and G.D. Nokes on the Court's reasoning. Finally, in the third section I looked at what might have been the correct approach that the Court could have adopted.

Sukhar59 continues to remain authority even today, despite its flawed approach. It is high time that the courts recognise the problem in their approach that does not solve any confusion which Stephen intended. Rather the Courts before and after Sukhar60 continue to stick to the approach adopted by the common law courts and hence the confusions prevailing in other jurisdictions continues to prevail even in India.

†3rd year student BA LLB, NLSIU Bengaluru. Author can be reached at <>.

1. Evidence Act, 1872.

2. (1999) 9 SCC 507 (hereinafter referred to as “Sukhar”).

3. (1999) 9 SCC 507, para 2.

4. Evidence Act, 1872, S. 6.

5. Hereinafter this evidence of the witness's statement is referred to as Nakkal's statement since the witness was saying what Nakkal said to him.

6. (1999) 9 SCC 507, para 10.

7. (1999) 9 SCC 507.

8. (1999) 9 SCC 507.

9. (1999) 9 SCC 507.

10. (1999) 9 SCC 507, para 6.

11. James Fitzjames Stephen, Indian Evidence Act (1 of 1872): With an Introduction on the Principles of Judicial Evidence (Thacker, Spink and Company, 1872), p. 10.

12. Evidence Act, 1872, S. 3 (definition of “relevant”).

13. Evidence Act, 1872, Ch. II (this chapter restricts the application of “relevancy” only to “facts”).

14. Evidence Act, 1872, S. 3 (definition of “evidence”).

15. Stephen explicitly limits the scope of the word “evidence”, and he explains about “admissibility” of only these evidence across various parts of the Act. (For example, see, “Evidence Act,” Chs. IV-VI, X.)

16. James Fitzjames Stephen, Indian Evidence Act (1 of 1872): With an Introduction on the Principles of Judicial Evidence (Thacker, Spink and Company, 1872), p. 54.

17. J.D. Heydon, Cross on Evidence (10th Edn., 2015), p. 1408.

18. See R. v. Bedingfield, (1879) 14 Cox CC 341 (Norwich Winter Assizes, 1879), and Ratten v. R., 1972 AC 378 : (1971) 3 WLR 930.

19. (1996) 6 SCC 241.

20. (1999) 9 SCC 507.

21. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 265.

22. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 265.

23. This he calls the “rule of inclusion” in the sense that all the logically relevant facts are included and can be considered by the court unless they are excluded by law.

24. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 266.

25. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 265.

26. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898).

27. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 268.

28. G.D. Nokes, ”Codification of the Law of Evidence in the Common Law Jurisdictions”, (1956) 5(3) The International and Comparative Law Quarterly, pp. 347, 357.

29. (1999) 9 SCC 507.

30. (1999) 9 SCC 507, para 6.

31. James Bradley Thayer, Legal Essays (Boston Book Company, 1908) 266. (Thayer specifically mentions that res gestae actually comes into the exception to the exclusionary hearsay rule.)

32. If we apply logic, then Nakkal's statement is of course relevant because it directly deals with the fact-in-issue. The Court also applies a similar approach.

33. (1996) 6 SCC 241.

34. (1999) 9 SCC 507, para 8. (The Court explains the reason and rationale as to why such statements are admissible under res gestae despite lying within the exclusionary rule of hearsay; therefore, all steps in the Court's analysis were consistent with Thayer's theory.)

35. See, Queen Empress v. Abdullah, 1885 SCC OnLine All 55, (Mahmood, J.'s view).

36. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), pp. 263-266.

37. James Fitzjames Stephen, Indian Evidence Act (1 of 1872): With an Introduction on the Principles of Judicial Evidence (Thacker, Spink and Company, 1872), p. 38.

38. (1999) 9 SCC 507.

39. (1999) 9 SCC 507.

40. (1999) 9 SCC 507, para 6.

41. William Twining, Rethinking Evidence: Exploratory Essays (2nd Edn., Cambridge University Press, 2006), p. 205.

42. George Gordon Battle,” The Science of Judicial Proof by John Henry Wigmore: A Review”, (1938) 25(1) Virginia Law Review 120, 121.

43. Ho, Hock Lai, ”The Legal Concept of Evidence”, (Sep 2015).

<> accessed 30-8-2021.

44. William Twining, Rethinking Evidence: Exploratory Essays (2nd Edn., Cambridge University Press, 2006), p. 210.

45. (1999) 9 SCC 507.

46. (2009) 13 SCC 80.

47. (2011) 4 SCC 786.

48. (1999) 9 SCC 507.

49. (1999) 9 SCC 507.

50. (1999) 9 SCC 507.

51. See Ashraf v. State of Kerala, 2015 SCC OnLine Ker 39617; Johny v. State of Kerala, 2021 SCC OnLine Ker 2714.

52. (1999) 9 SCC 507.

53. James Fitzjames Stephen, A Digest of the Law of Evidence (5th Edn., MacMillan and Company, 1887), p. 4.

54. The Court could have said that since Nakkal's statement was made so shortly after the crime, it remains interconnected with the facts-in-issue and hence it forms part of the same transaction.

55. (1999) 9 SCC 507.

56. (1999) 9 SCC 507.

57. (1999) 9 SCC 507.

58. (1999) 9 SCC 507.

59. (1999) 9 SCC 507.

60. (1999) 9 SCC 507.

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