Vol. 12 · pages 611–615

590 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Illustration— (a) (b) 1. Ordinarily the evidence of similar acts is not relevant because if a person has done one act, it does not follow that he must have done the particular act in question. 16. § Proof is allowed of facts showing the existence of a course of business according to which it naturally would have been one, if the question is a particular act was done or not. Illus.—(a) (b). This shows probability. Question is whether a particular letter reached A or not ? The letter was posted and was not returned through the Dead Letter Office may be proved. 13. § EVIDENCE OF TRANSACTION AND INSTANCES IN PROOF OF RIGHTS AND CUSTOMS. 1. Scope of the word Right. (A) There are three kinds of rights. Private—e.g. a private right of way. General—A Right common to any considerable class of persons. E.G. the right of villagers of a particular village to use the water of a particular well. Sec. 48 Illus. Public—This is not defined in the Act. Every public right in the sense of the previous definition of general right is a general one though (according to the distinction drawn by the English Law) every general right is not a public right. The section applies to all rights whether they are Private, General, or Public by reason of the word any. (B) Does the section apply to all kinds of rights ? This question arises because of the absence of the word every. There was once a conflict of decisions on this question. One view was that included all rights. The other view was that it included only incorporeal rights. The view now held seems to be that the term includes all rights.

591LAW OF EVIDENCE 2. Scope of the word custom. A custom is not limited to ancient custom but includes customs and usages. Usage would include what people are now or recently in habit of doing in a particular place. It may be that the particular habit is of a very recent origin or it may be existed for a very long time. If it is one which is ordinarily practised there is usage. B. Custom may be (i) Private custom—Family custom, (ii) General Custom-—Custom common to a considerable class of people and may be (a) local (b) caste or class (c) Trade customs or usages. (iii) Public—Not defined. C. The Section applies to all customs and to all usages. 3. The evidence to be given is to be evidence of a transaction or of instances in which the right or custom arose. A. Meaning of transaction and instance (1) Transaction—some business or dealing carried on between two or more persons. (2) Instance—Case occuring—individual acting in a particular way. B. Proof is not restricted to previous transactions in cases between the parties to the proceedings. The use of the word any shows that it need not be between the parties to the litigation. It may be between strangers or it may be between a party to the litigation and a stranger. C. The word transaction and instance has given a deal of trouble and the question has been raised whether it includes a judgement decree and the litigation in which they were pronounced not being between the same parties (and not being of a public nature), as evidence of a transaction or instance. The question was considered in the leading case Gajju Lull vs. Fatteh Lal. 6 Cal. 171.

592 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES III. Facts which are consistent with facts in issue or with relevant facts or which makes a fact in issue or of a relevant fact highly probable. 1. The Section is no doubt expressed in terms so wide and so extensive that any fact which can by a chain of ratiocination be brought into connection with another so as to have a bearing upon a fact in issue or a relevant issue may possibly be held to be admissible. 2. That such an extensive meaning was not intended by the legislature is clear from the word ‘highly’. The words ‘highly probable’ point out that the connection between the facts in issue and the fact sought to be proved must be so mediate as to render the co-existence of the highly probable.— 6 Cal. 665 (662). 3. To render a collateral fact admissible under this section, it must (a) be established by reasonably conclusive evidence and (b) when established afford a reasonable presumption or inference as to the matter in dispute.—6 Bom. L. R. 983. 4. The terms of this section though very wide must be read subject to other sections of the Act. Illus— 1. Ramanujan vs. King Emperor. 58 Mad. 523 F. B. Ramanujan was charged for having murdered Seethammal. Facts given at p. 526. There was no eye-witness to the murder. The prosecution tendered evidence of the following facts : 1. That Seethammal when she left her husband joined the prisoner taking with her some jewels and some silver vessels. 2. That Seethammal and the accused lived together at various addresses. 3. They were last seen in 24 Peddunaicken Street on the 11th January. 4. On the morning of the 12th, when the milk woman went, the room was locked. 5. That on or about the 13th he pledged certain ornaments belonged to Seethammal.

593LAW OF EVIDENCE 6. That he purchased a mattress like the one in which the dead body was wrapped. 2. Long continued absence of demand to prove the payment of an alleged debt. 3. The resemblance of a child to the Defendant to prove paternity in a maintenance case. 11 (2) § Facts which are inconsistent with facts in issue or relevant facts or which make them highly improbable. Illustrations. 1. In an action for money lent, the poverty of the alleged lender is relevant as being inconsistent with the making of the loan. 2. That a witness or the accused was at another place is relevant as inconsistent with his alleged presence at the scene of the offence. 3. In a case involving the determination of the question whether the thumb impression is that of A or not. Evidence may be given of his thumb impression on another document if their dissimilarity makes the story of his thumb impression improbable. 52-55. § Proof of facts relating to character. 1. The rules regarding evidence of character fall into two classes. I Those which relate to the character of witnesses. II Those which relate to the character of parties. Character of witnesses. 1. The character of a witness is always material as affecting his credit. The credibility of a witness is always in issue. For as witnesses are the media through which the Court is to come to its conclusion on the matters submitted to it, it is always most material and important to ascertain whether such media are trustworthy and as a test of this, questions, among others, touching character are allowed to be put to witnesses in the case—Sections 145-153. § Character of a Party. 1. In respect of the character of a party, distinctions must be drawn between Cases where the character of the party is in issue and Cases where it is not in issue.

594 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Where the character of the party is in issue, there, proof of facts relating to character is allowed irrespective of the question whether the proceedings are civil or criminal. Sec. 52. Illus.— (i) In a Civil Suit the issue is “whether the governess was competent, ladylike and good tempered while in her employer’s service” witnesses can be allowed to assert or to deny her general competency, good manners and temper. (ii) In a Criminal prosecution for conspiracy to carry on the business of common cheats witnesses can be allowed to assert or to deny the general character of the accused. When such general character of a party is not in issue, proof of character is not permitted by Law. Sec. 52. There are two exceptions to this rule under which evidence of character is allowed even the character is not in issue. (i) In Civil proceedings, proof of facts relating to character is allowed if they affect amount of damages. Sec. 55. (ii) In Criminal Cases. (i) Proof of facts showing accused is of good character is always allowed. Sec. 53. (ii) Proof of facts showing accused is of bad character is not allowed except in the following case : Where accused has given evidence that he has a good character. Reasons why this difference is made between civil and criminal proceedings is obvious. (1) Bad character only creates prejudice against the accussed. It does not prove the case against the accused. It is irrelevant unless the accused makes it a matter of issue by giving evidence of his good character, then of course evidence of bad character may be given. (2) Good character strengthens the innocence of the accused and ought on humanitarian grounds to be permitted.