Vol. 12 · pages 676–680

655LAW OF EVIDENCE would be favourable to his side, or even put a false gloss upon the whole. Exceptions to the Rule. Leading questions are permissible in Examination-in-Chief in the following cases :— (i) Where the matters are merely introductory, such as a name, occupation of a witness. (ii) Identification of persons or thing. (iii) About matters which are not in dispute. (iv) When a question from its very nature cannot be put except in a leading form. (v) To contradict evidence already given by a witness on the other side. E. G.—If the Plaintiff has sworn that the defendant said, “The goods need not all be equal to sample”, the Defendant can and should be asked, “Did you ever say to the Plaintiff that the Goods need not all be equal to sample or any other words to that effect ?” (vi) Where the witness is hostile. Difference between a hostile and a witness who is unfavourable. A Witness should always state what happened according to his own personal recollection, and not according to what he has since been told. Suppose the witness cannot recall the facts and his memory fails, what is to be done ? There are two ways open : (1) To assist the memory of a witness by leading questions. (2) To permit him to refresh his memory by permitting him to refer to any writing which is a record of the fact. Examples of writings used to refresh memory are— (i) Entries in diaries. Entries in call books. Entries in account-books. Entries in Railway time-tables. A witness may refresh his memory by referring to any writing or document made by himself. But he may also refresh his memory from documents made by other persons under his immediate observation.

656 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The only condition is that the document must have been made at the time when the transaction was fresh in his mind or was read by him, if made by another person, at the time when the transaction was fresh in his memory and knew it to be correct. A copy may be used if the original cannot be produced for reasons which satisfy the Court for its non-production. Refreshing memory by inspecting a writing or document does not make it documentary evidence. So that a document which could be inadmissible in evidence for want of stamp would be admissible for refreshing memory. There is a difference between referring to a writing for refreshing memory and using a document for corroboration. A document which could not be used for corroboration can be used for refreshing. Example : USE OF POLICE DIARIES In connection with a document used for refreshing memory, it must be ascertained whether a memorandum does assist the memory or not. The law, therefore, requires that such writing shall be produced and shown to the adverse party, if he requires it and he may cross-examine the witness thereupon, if he so desires. 8 Cal. 739 (745). The grounds upon which the opposite party is permitted to inspect are threefold ; (i) to secure the full benefit of the witness’s recollection as to facts; (ii) to check the use of improper documents and (iii) to compare his oral testimony with his written word. Can the adverse party compel the witness to refresh his memory by referring to the writing. It may be very advantageous to an accused person that Police Officer should state a certain fact. The Police Officer does not recall fact and would not refresh his memory by reference to his diary. (8 Cal. 154), (8 Cal. 739) Says he cannot be compelled. A. 1. R, (1924) Pat. 829, Says he can be compelled.

657LAW OF EVIDENCE § On the Limitations on the Examination of a witness 1. The subject-matter to be considered under this head relates to the questions a witness is bound or is not bound to answer. 2. The general rule is that a witness must answer all questions put to him. Section 132. Section 132 puts the matter negatively. 3. This rule is subject to two qualifications: (i) Certain questions a witness cannot be compelled to answer. (ii) Certain questions a witness is not to be empowered to answer. 4. Sections which deal with questions which cannot be compelled to answer are : 121, 122, 124, 125, 129. 5. Sections which deal with questions which a witness is not empowered to answer are : 123, 126, 127, 128.

658 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES DISCHARGE OF THE BURDEN OF PROOF 1. Effect of Evidence may be : (i) To prove a fact. (ii) To disprove a fact. (iii) To fail to prove and therefore disprove. 2. Burden of Proof is discharged when : (i) The fact required to be proved is proved. (ii) The fact required to be disproved is disproved. 3. Burden of proof is not discharged when the Party on whom the Burden lies fails to prove or disprove as the case may be. 4. When can a fact be said to be proved or disproved ? And when can it be said to be not proved. The answer to this question is given in section 3. NOTE.— Two things must be noted. (i) Proof does not mean rigid mathematical demonstration. (ii) Moral conviction is not proof. Proof means Evidence. But such evidence as would induce a reasonable man to come to some conclusion. (1911) I. K. B. 988 (995). 31 Bom. L.R. 516. The question of proof is one of probability and not of certainty. Discharge of Burden of Proof and Quantum of Evidence (I) Under the English Law corroboration is necessary in certain cases: (1) High Treason—Two witnesses. (2) Perjury— (3) Breach of Promise— (4) Bastard—Mother’s testimony must be corroborated. (II) Under the Indian Law the rule is absolute. The Court may act on the testimony of a single witness even though uncorroborated. Exception. zz