Vol. 12 · pages 566–570

545LAW OF EVIDENCE impossibility of the supposed event and even this would require an enormous mass of presumptive evidence. A negative averment must be distinguished from a contradiction of a positive averment, technically known as a “traverse”. Illustrations: Malicious Prosecution. In an action for Malicious Prosecutions the Plaintiff makes two main allegations.— (1) That the Defendant prosecuted him, (2) That the Defendant had no reasonable cause for the prosecution. The first being affirmative the second a negative averment. The burden of proof of both of them is on the Plaintiff. Negligence. The Defendant did not take reasonable and proper care. This is not a negative but a negative Averment 6. Two things must be noted with regard to the rule of evidence that the affirmative of a proposition must be proved 12 Mad. 526-15 Jur. 544-545. What is a traverse. 1. It is a matter which relates to the law of pleadings. Before Judge is asked to decide any question which is in controversy between litigants, it is in all cases desirable and in most cases necessary, that the matter to be submitted to them for decision should be clearly ascertained. The defendant is entitled to know what is it that the plaintiff alleges against him ; the plaintiff in his turn is entitled to know what defence will be raised in answer to his claim. The defendant may dispute every statement made by the plaintiff or he may admit or admit and allege other facts which put a different complexion on the case.

546 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES To put it technically a Defendant may either : (1) Admit (2) Deny (3) Deny and allege other facts. 2. When a defendant denies the allegation of the Plaintiff in the Plaint, he is said to traverse it. A traverse is the express contradiction of an allegation of fact in an opponent’s pleading. It is generally a contradiction in the very terms of the allegation. It is as a rule framed in the negative ; because the fact which it denies is as a rule alleged in the affirmative. These traverses of affirmative allegations must be distinguished from a negative allegation which is in truth a positive allegation. If a party asserts affirmatively, and it thereby becomes necessary to his case to prove that a certain state of facts does not exist, or that a particular thing is insufficient for a particular purpose, and such like—these although they resemble negatives,—are not negatives in reality : they are in truth possible averments, and the party who makes them is bound to prove them. Plaintiff may have to prove negative in order to prove his positive assertion. A negative averment if in truth it is a positive averment must be proved by the plaintiff. Sale and Mortgage-Adequacy of price. Price is not inadequate ? II. To remember that the affirmative and the negative of the issue mean the affirmative and negative of the issue in substance and not merely its affirmative and negative in form. Illustrations : (1) Moody and Robinson 464. Amos vs. Hughes. Fact alleged in the Plaint. That the defendant did not emboss the Calico in a workmanlike manner.

547LAW OF EVIDENCE Fact alleged in the Written Statement. The Defendant did emboss the Calico in a workmanlike manner. On whom is the burden ? If form alone was considered the burden would be on the Defendant. If substance was taken into account the burden must be on the Plaintiff. Although put in the negative he affirms that the workman embossed the Calico in an unworkman like manner. (2) 7 Carrington and Payne 612. Loward vs. Leggatt. Fact alleged by the Plaintiff. That the Defendant did not repair the premises as bound by the covenant Fact alleged by the Defendant. That the Defendant did repair. In form the burden is on the Defendant. In substance it is on the Plaintiff. The Burden of proving the issue in Criminal Trials 1. Section 101 is a general section and applies to both civil as well as criminal proceedings. Section 105 is another section which relates to the burden of proving an issue as distinguished from the burden of proving a fact but applies to criminal proceedings only. 2. To understand this section it is necessary to know the scheme of the Indian Penal Code. The Indian Penal Code defines various offences such as theft, murder, cheating etc. Some 400 in all. The task of framing definitions which would be exact, neither too wide, nor too narrow has been very difficult and with the best of efforts the authors of the Code have failed to frame exact definitions. They have however erred in making them too broad. Consequently they found it necessary to limit these definitions by enacting exceptions. Some of these exceptions are common to all the offences as defined by the Code. Other exceptions are specifically applicable to a particular offence. Illustration (1): (1) Whoever causes hurt . . . . . . . . . . . . . . 323 (2) Whoever steals . . . . . . . . . . . . . . . . . . 379 Whoever = Any person who does etc.,

548 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Any person = Any person of whatever age so that the definition as given in the section would make even a child 1 year old guilty. But the Penal Code recognises that a child below 7 has no mens rea = criminal mind which is the essence of the offence. To exempt children from the liability of an offence it would be necessary to say whoever above 7 years etc., in every section of the Indian Penal Code. (1) Whoever takes any property belonging to another from his possession without his consent—378. (2) Whoever wrongfully confines—342. (3) Whoever enters into or upon property in the possession of another—441. (4) Whoever assaults or uses criminal force—352. It is obvious that under these definitions a Bailiff who acted under the order of his superiors in levying the attachment would be guilty of theft /378 and criminal trespass /441. Similarly a police officer who arrested a person in the discharge of his duty would be guilty of assault /353 and wrongful confinement /342. That was not the intention of the framers of the Penal Code. It recognizes the necessity of exempting Public Servants from the penal consequences of their acts done in discharge of their duty. To exempt public servants from the scope of the definitions of offences it would be necessary to say in each one of these sections “Whoever not being a public servant in the discharge of his duty”. Instead of repeating these limiting words in so many different sections to which they are common the Penal Code has grouped them together in Chapter IV which is called General Exceptions and which cover sections 76 to 106. There are also limiting clauses which apply to some specific offence as defined in the Penal Code. Illus— Section 499. Defamation. Definition is so wide that there are ten Exceptions. The necessity of 9th Exception—protection of interest Such Exceptions are special Exceptions as distinguished from General Exceptions.

549LAW OF EVIDENCE Proviso— Illus Sec. 92 I . P. C. Question is who should prove that the case of the Accused falls within the Exception, General or Special. Exception or the Proviso as the case may be ? The prosecution who alleges that it does not or the Accused who alleges that it does ? The Answer is given in Section 105. The burden is on the Accused to prove. This is a departure from the previous law. Under it the burden was on the prosecution to prove that the case did not fall within the Exception, § Burden of Proving an Exception to a Civil Law — 1. There is no specific section in the Evidence Act which regulates the Burden of Proof in respect of an exception to a Civil Law. The rule is however the same as in Criminal Law. Namely that the Defendant must prove that his case falls under the Exception. Illus—15 Cal. 555 “The suit is governed by Section 37 of Bengal Act XI of 1859 (Revenue Sale Act)—and that section dealing separately with encumbrance and under tenures, lays down that the Auction purchaser shall be entitled to avoid all under tenures and to eject the holders of them with certain exceptions, and then goes on to set out the Exceptions. It appears to us that the presumption is in favour of the general proposition of law laying down that all under tenures are voidable, and that pleading a certain exception is bound to bring himself within it. That being so, it will be for the Defendant in this case to bring himself within the exception which he pleads.” § Burden of Proving an Exception a proviso/or a condition precedent in an Agreement. 1. Distinction between a Proviso and an Exception. A Proviso is properly speaking the statement of some thing extrinsic of the subject-matter of a covenant which by the terms of the covenant is to go in discharge of that covenant by way of defeasance. An Exception is a taking out of the covenant some part of the subject-matter of the covenant.