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Section 38 in The Indian Evidence Act, 1872

Relevancy of statements as to any law contained in law-books.—When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.

The law of British India calls for no proof as the courts are bound to take judicial note of it.This phase applies only when a court docket has to form an opinion as to law of any overseas country. In the Estate of VR. RM. S. Chockalingam Chettiar v. Commissioner of Income-tax[1] where the High Court held that the validity of a testamentary disposition in regard to immovable residences situated overseas turned into a question of fact and that finding could not be interfered with with the help of the High Court in a reference. It is relevant to factor out that under the English regulation, foreign regulation can be proved simplest by means of expert testimony and not by means of mere manufacturing of books containing foreign law as is permissible in India under section 38 of the Indian Evidence Act, 1872. Under that section courts can take judicial notice of a foreign statute contained in a book issued below the authority of the foreign Government.

The history of s38 of the Evidence Act

Section 38 of the Evidence Act was enacted in response to the difficulties arising with having a witness being classified as “hostile” at common law and to enact the cross examination of a party's own witness. The common law had been reflected in the Evidence Act 1898, the effect of which is discussed in Seminars on Evidence. The current s38 replaced that position and was intended to effect a significant change to that position.[2]

The common law position had been that a party needed to establish that a witness they had called was “unwilling to tell the whole truth” or had a demeanour “hostile” to the party calling the witness. By contrast s38 allows for an application to be made if the witness:

1.Is giving evidence that is “unfavourable to the party”; [3] not “making a genuine attempt to give evidence” with regards to a matter the witness “may reasonably be suspected of having knowledge”; [4] or

3.“has, at any time, made a prior inconsistent statement”.[5]

It has been accepted that the term “unfavourable” requires a lower threshold then the word “hostile” required at common law. Additionally, it has been held in R v Le [2001] NSWSC 174[6] that the word “unfavourable” in s38 should be given a broad meaning. The purpose of such a decision is to enable the Court to have all relevant evidence before it and ensure that a party is not called to maintain a forensic advantage. The duty of the prosecutor to ensure that the court has all relevant information before it is found in the NSW Bar rules (see rules 82, 86, and 88) as well as the judgment of R v Kneebone (1999)[7] 47 NSWLR 450.

Cases under section 38 of Evidence Act

Joshna Gouda Vs. Brundaban Gouda and anr.


In the present case the entry as per Ex.5/A was made on the basis of transfer certificate Ext.7 and that application made by Maheswar Gouda, cousin brother of petitioner's father. The trial court held that Maheswar Gouda, being the cousin brother of petitioner's father, had a special means of understanding the date of birth of the petitioner. Admittedly, said Maheswar Gouda has not been examined.

It was held in

Robins Vs. National Trust & Co. Ltd.

,[9] 1927 A.C. 515 To assert that a man whois alive was born requires no proof. The onus isn't on the person making an assertion, because it is self-evident that he had been born. But to say that he had been born on a particular date, if the date is material, requires proof; the onus is on the person making the assertion. Since the primary respondent did not discharge the burden upon him, the election petition must fail.

===== Emperor Vs. Kadhe Mal =====

.[10] section 38 - evidence--admissibility of statement made by a witness since deceased. The learned Sessions Judge commence his judgment against Kadhe Mal with the remark that the receipt under in question has already been found to be a forged document within the trial of Dobi Singh. He doesn not in fact mean to mention that this fact is conclusive against towards Kadhe Mal; but he has assumed that the evidence against Kadhe Mal is that the same as that against Debi Singh which an equivalent court must necessarily come to an equivalent finding within the two cases. Now Kishan Singh, whose signature appears on the receipt, had died before criminal proceedings were taken. The deposition which he made at the civil trial was admissible conspicuously against Debi Singh, but was not admissible against Kadhe Mal.

Evidence such as to justify affirmatively the finding that the receipt in question is a forged document. It may be that Kadhe Mal has been unduly fortunate in the circumstances of his trial, but the law requires him to be tried separately from the case of Debi Singh, and I cannot overlook the fact that the evidence against the two men is by no means the same. I accept the appeal of Kadhe Mal, set aside the conviction and sentence against him and direct that he be released.[11]

  2. DPP v Nair (2009) 170 ACTR 15
  3. S38 (1(a)) of the Act
  4. S38 (1(b)) of the Act
  5. S38 (1(c)) of the Act