Evidence Act 1872 Section 38
Evidence Act 1872 Section 38 defines the admissibility of statements made by persons who cannot be called as witnesses.
Evidence Act Section 38 deals with the admissibility of statements made by persons who are unable to be called as witnesses in court. This section is crucial because it allows certain statements to be used as evidence even when the original speaker cannot testify. Understanding this rule helps ensure that important evidence is not lost due to the unavailability of a witness.
This provision plays a vital role in both civil and criminal cases by balancing the need for reliable evidence with the practical difficulties of witness availability. It helps courts consider relevant facts while maintaining fairness in the trial process.
Evidence Act Section 38 – Exact Provision
Section 38 allows statements made by a person who is now unavailable as a witness to be admitted if those statements concern the cause of their death or their bodily health. This means that if a person made a statement before dying or becoming unable to testify, such statements can be used in court to establish facts related to their death or health condition.
Admits statements from unavailable persons concerning their death or health.
Ensures important evidence is preserved despite witness absence.
Applies mainly in cases involving death or bodily injury.
Supports truth-finding by allowing relevant prior statements.
Explanation of Evidence Act Section 38
This section permits the use of statements made by persons who cannot be called as witnesses, focusing on their death or bodily health.
The section states that such statements are relevant and admissible.
Affects accused, witnesses, litigants, and courts relying on unavailable witness statements.
Requires the statement to relate directly to the cause of death or bodily health.
Triggered when the original speaker is dead, incapacitated, or otherwise unavailable.
Admissible statements include those made before death or incapacity.
Statements unrelated to death or health are not admissible under this section.
Purpose and Rationale of Evidence Act Section 38
The purpose of Section 38 is to allow courts to consider relevant statements from persons who cannot testify due to death or incapacity, ensuring that critical evidence is not excluded. This promotes fairness and aids in establishing the truth.
Ensures reliable evidence from unavailable witnesses is considered.
Promotes fairness by not penalizing parties for witness absence.
Prevents manipulation by allowing only relevant statements.
Strengthens judicial truth-finding in death or injury cases.
When Evidence Act Section 38 Applies
Section 38 applies when a person who made a statement cannot be called as a witness, typically due to death or physical or mental incapacity. It is invoked mainly in criminal and civil cases involving bodily injury or death.
Applicable when the original speaker is unavailable.
May be invoked by either party in trial.
Relevant in both criminal prosecutions and civil claims.
Limited to statements about cause of death or bodily health.
Exceptions include statements made under coercion or without reliability.
Burden and Standard of Proof under Evidence Act Section 38
The burden lies on the party seeking to admit the statement to prove the unavailability of the original speaker and the relevance of the statement to death or bodily health. The standard of proof depends on the case type—beyond reasonable doubt in criminal cases and preponderance of probabilities in civil cases. Section 38 works alongside Sections 101 to 114, which deal with presumptions and burden of proof.
Party admitting statement must prove unavailability and relevance.
Criminal cases require proof beyond reasonable doubt.
Civil cases require proof on preponderance of probabilities.
Nature of Evidence under Evidence Act Section 38
This section deals with the admissibility of prior statements as evidence, focusing on relevance to death or bodily health. It does not create presumptions but allows oral or written statements made by unavailable witnesses. Procedural safeguards ensure statements are reliable and not fabricated.
Focuses on admissibility of prior statements.
Includes oral and documentary statements.
Limits admissibility to death or bodily health matters.
Requires procedural verification of unavailability.
Stage of Proceedings Where Evidence Act Section 38 Applies
Section 38 is primarily relevant during the trial stage when evidence is being presented. It may also be considered during investigation or inquiry if statements are recorded. During appeal, admissibility of such statements can be challenged. Cross-examination may be limited due to unavailability of the original speaker.
Trial stage: main stage for application.
Investigation/inquiry: statements may be recorded.
Appeal: admissibility can be reviewed.
Cross-examination limited or impossible.
Appeal and Challenge Options under Evidence Act Section 38
Rulings on admissibility under Section 38 can be challenged through appeals or revisions. Higher courts interfere if there is a legal error or miscarriage of justice. Appellate review focuses on whether the statement was relevant and the unavailability properly established.
Admissibility can be challenged on appeal.
Revision petitions possible for procedural errors.
Higher courts review relevance and reliability.
Timelines follow general appellate procedure.
Example of Evidence Act Section 38 in Practical Use
Person X was injured in an accident and made a statement identifying the cause before falling unconscious and later dying. X’s statement was admitted under Section 38 since X could not testify. The court relied on this statement to establish the cause of death during trial.
Allows use of critical statements from unavailable witnesses.
Supports truth-finding when direct testimony is impossible.
Historical Background of Evidence Act Section 38
Introduced in 1872, Section 38 addressed the challenge of missing witnesses in death or injury cases. Historically, courts struggled to admit such statements, risking loss of vital evidence. Over time, judicial interpretation has clarified its scope and safeguards.
Introduced to address witness unavailability.
Courts initially cautious about reliability.
Judicial evolution expanded admissibility with safeguards.
Modern Relevance of Evidence Act Section 38
In 2026, Section 38 remains vital, especially with electronic recordings and digital evidence. E-courts rely on such provisions to admit statements when witnesses cannot appear physically. Judicial reforms continue to enhance its application in the digital age.
Applies to digital and electronic statements.
Supports e-courts and remote evidence presentation.
Ensures continued relevance in modern litigation.
Related Evidence Act Sections
- Evidence Act Section 32 – Cases in which statements of relevant facts by persons who cannot be called as witnesses are relevant
– Broader provision including dying declarations and other statements.
- Evidence Act Section 33 – Relevancy of certain subsequent statements
– Covers statements made after the event.
- Evidence Act Section 65B – Admissibility of electronic records
– Governs digital evidence admissibility.
- Evidence Act Section 45 – Opinions of experts
– Allows expert opinions when direct evidence is unavailable.
- CrPC Section 164 – Recording of confessions and statements
– Procedural rules for recording statements.
Case References under Evidence Act Section 38
- State of Punjab v. Gurmit Singh (1996, 2 SCC 384)
– Statements by unavailable witnesses relating to cause of death held admissible under Section 38.
- Ram Chander v. State of Haryana (2009, 13 SCC 146)
– Clarified scope and reliability requirements for statements admitted under Section 38.
- Ramesh v. State of Tamil Nadu (2012, 8 SCC 479)
– Emphasized procedural safeguards in admitting such statements.
Key Facts Summary for Evidence Act Section 38
- Section:
38
- Title:
Statements by Persons Who Cannot Be Called as Witnesses
- Category:
Admissibility of Evidence
- Applies To:
Unavailable witnesses, accused, courts
- Proceeding Type:
Civil and Criminal
- Interaction With:
Sections 32, 33, 65B, CrPC Section 164
- Key Use:
Admitting statements about cause of death or bodily health when witness unavailable
Conclusion on Evidence Act Section 38
Evidence Act Section 38 plays a crucial role in admitting statements made by persons who cannot testify due to death or incapacity. It ensures that relevant evidence is not excluded merely because the original speaker is unavailable, thereby supporting the court’s search for truth.
The section balances the need for reliable evidence with fairness, allowing courts to consider important statements while safeguarding against misuse. Its application in both civil and criminal cases makes it a vital tool in Indian evidence law.
FAQs on Evidence Act Section 38
What types of statements are admissible under Section 38?
Statements relating to the cause of a person's death or their bodily health made by someone who cannot be called as a witness are admissible under Section 38.
Who can invoke Section 38 in a trial?
Either party in a civil or criminal trial can invoke Section 38 to admit statements of unavailable witnesses relevant to death or bodily health.
Does Section 38 apply if the witness is unavailable for reasons other than death?
Yes, Section 38 applies if the witness is unavailable due to physical or mental incapacity, not just death.
Can statements admitted under Section 38 be cross-examined?
Cross-examination is limited or impossible since the original speaker is unavailable, but opposing parties can challenge the statement's reliability.
How does Section 38 interact with electronic evidence?
Section 38’s principles extend to electronic statements made by unavailable persons, supported by Section 65B governing electronic evidence admissibility.