Vol. 12 · pages 561–565

540 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The basis of the definition of the same word under the Indian Penal Code is his authority to give the Judgement. The basis of the definition under the evidence is the power to take evidence. (ii) The definition of a Judge under the Criminal Procedure Code would not include a Magistrate. But the definition in the Indian Penal Code would include a Magistrate. (iii) The Evidence Act would not include Arbitrator either Judges or Magistrates. But the definition of ‘Judge’ in the Indian Penal Code would include Judges, Magistrates as well as Arbitrators. The conclusion is that the definition of the word Court in the Evidence Act is framed only for the purpose of the Act itself and should not be extended beyond its legitimate scope. § Proceedings to which the Evidence Act does not apply 1. The Act does not apply to :— (i) Judicial proceedings in or before a Court Martial convened under the Army Act or Air Force Act. (ii) Affidavits presented to any Court or officer. (iii) Proceedings before an Arbitrator. Proceedings before a Courts Martial 1. The Act does apply to the proceedings of a Courts Martial under the Indian Army Act i.e., it applies to Native Courts Martial. Act VIII of 1911. 2. The Act also applies to all proceedings before the Indian Marine Courts. Act XIV of 1887 s. 68. Act V of 1898. Act XVII of 1898. Act I of 1899. 3. The Act does not apply to the proceedings of a Court Martial convened under the British Army or Air Force Act. Questions relating to evidence are determined by Ax loci contractus, but by the law of the Country where the question arises,

541LAW OF EVIDENCE where the remedy is sought to be enforced and where the court sits to enforce it. The law of evidence which governs the proceedings before a court is the Ax fori . This provision of the Evidence Act is an exception to this general principle. II. Affidavits. 1. Ordinarily the evidenced witnesses shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge (Order 18 R. 1. Cl. P. C). 2. An Affidavit is a evidence contained in a statement or a declaration in writing on oath or affirmation before a person having authority to administer oath or affirmation. 3. Matters relating to affidavit are regulated by the Civil Procedure Code. 4. Affidavit is evidence not taken before the Court and not subjected to cross examination. 5. The safeguards for truth in affidavits are two : (i) Provisions for the production of the witness for cross Examination. (ii) Provisions of the Penal Law relating to giving of false evidence. III. Proceedings of the Arbitrator. He gives rough and ready justice and cannot be bound by the technicalities of the Law of Evidence. § Proper approach to the study of the Evidence Act. 1. The Indian Evidence Act divides the subject matter of evidence into three parts : Part I deals with Relevancy of facts—what facts can be proved. Part II deals with Proof. Part III deals with Production and Effect of Evidence— Burden of Proof.

542 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 2. This may be a logical order. It may be a scientific order. But this certainly does not appear to be a natural order, natural from the point of view of the litigant. 3. The rules of Procedure regulate the general conduct of litigation ; the rules of pleading help to ascertain for the guidance of parties and the Court, the material facts in issue in each particular case. Then arises the question of proof i.e. the Establishment of the facts in issue by proper legal means to the satisfaction of the Court. 4. The first question which faces the litigant is who must prove the issue ? The questions bow and by what sort of evidence he can prove them are secondary questions to him. We must therefore begin with Burden of Proof.

PART I BURDEN OF PROOF (1) What is meant by Burden of Proof. Description, letter, then definition : The judge or jury can decide a case only by considering the truth and value of the several facts alleged and proved by the parties and as the facts are unknown to both judge and jury. They must be established by evidence. The question at once arises, which party must adduce evidence ? The responsibility for adducing such evidence as will establish any allegation is called the “Burden of Proof”. 2. The subject-matter of the Burden of Proof as applied to judicial proceedings falls into two parts : 1. Burden of Proving an issue. 2. Burden of Proving a particular fact. THE NECESSITY FOR MAKING THIS DIVISION. 1. The Proof of an issue may involve the proof of many facts as they may involve the proof of only one fact. Illustration : 1. Issue is, Did A commit murder of B ? 2. Issue is, Is the signature on the document that of A ? Issue No. 2 involves the proof of one fact only. Issue No. 1 may involve the proof of many facts. e, g. Was A present ? Could C see him ? Is the bloodstained shirt his ? and so on. § Burden of Proving an issue. 3. The framing of an issue presupposes an assertion of the existence of a certain set of facts and circumstances by one party and the denial of them by the opposite party. There are

544 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES two ways by which the issue may be adjudicated upon (1) By proving that the circumstances alleged do not exist or (2) By proving that the circumstances alleged do exist. Question is which of the two modes of proving the issue to be adopted— the mode of proving the affirmative or the mode of proving the negative. 4. Where there are no reasons for holding : (a) that what is asserted is more probable than what is denied and (b) where the means of proof are equally accessible to both the parties then the rule is that the party which alleges the existence of the facts must prove that they exist. The burden is on him who states the affirmative of the proposition. He who denies need not prove that they do not exist This rule is laid down in Section 101. 5. Reasons why the law requires the affirmative to be proved instead of the negative. (1) The man who brings another before a judicial tribunal must rely on the strength of his own right and the clearness of his own proof, and not on the want of right or the weakness of proof in his adversary. Illus. Midland Rail Co. vs. Bromby —17 C B 372. Doe vs. Longfield—16 M & W 497. 17 C. B. 372 P. 380 (2) A simple negative by reason of its indefiniteness is difficult if not impossible of proof. A person asserts that a certain event took place, not saying when, where, or under what circumstances. How can a person disprove that, and convince others that at no time, at no place and under no circumstances has such a thing occurred. The utmost that could possibly be done in most instances would be to show the