13 Witnesses

CHAPTER XIII

WITNESSES (saksinah).

The word saksin occurs in the Svetasvataropanisad 76 (VI. 11) wliere it is applied tu the une immanent Spirit of the uni. verse as All-seving. Panini 477 V. 2. 91 explains the word sākṣin as meaning one who has directly seen’. Gaut. 478 XIII. 1, Kant. III. 11, Nar. IV. 147 state that when two persons litigate and there is a doubt or discrepancy between the two the deter mination of the truth in the dispute is due to witnesses. Manu VIII. 74, Sabhaparva 479 68,84, Nar. IV. 148, Vishu Dh. S. 8. 13, Kat. 346 (q. in V. M. p. 317 and V. P. p. 106) provide that a (proper) witness is one who has himself either seen or heard or experienced the matter in dispute. This means that the evidence of a witness must be direct and should not be what is called hearsay, Medhātithi (on Manu VIII. 74) says 480 that hearsay evidence occurs when a person who hears from another that has himself heard soinething from another coines forward as a witness and that hearsay is no legal evidence. Manu VIII. 76 prescribes that even though a man may not have been expressly asked or appointed by the parties (in the word:4 ’ you are the witness to this transaction’), he is a proper witness when asked it to any matter in dispute that lie has himself seen or heard. The only exception to hearsay evidence ullowed by

+76. एको देवः सर्वभूतषु गूढः … साक्षी चता केवलो निर्गुणश्च ॥ श्वेताश्वतरोप मिषद VI. 11.

477. साक्षावष्टर संज्ञायाम् । पा. V. 2. 91.

478. विप्रतिपत्तौ साक्षिनिमित्ता सत्यम्यवस्था । गो. XIII. 1: असंप्रतिपत्तौ त साक्षिणः प्रमाणम् । कौटिल्य HI. 11.

__479. श्रुतदृष्टानुभूतार्थात् साक्षिम्यो व्यक्तिदर्शनम् । नारद IV. 147; अधिपत्यधिसा निष्पावनभूतं तु पनवेत् । तध्यायं साक्षिणो वाक्यमन्यथा न बृहस्पतिः ॥ कास्या, in ru, म. p. 106; समक्षदर्शनास्साक्षी श्रवणाचेति धारणात् । सभापर्व 68. 84; समक्षदर्शनासाक्षी श्रवणावा । विष्णुधर्मसूत्र 8. 13.

480. समक्षदर्शनासाक्षादनुभवाच्छ्रपणाच समक्षशब्दाशषङ्गः कर्तध्यः । यत् कुत्तधि देऊन श्रूयते तसोन्येन तत्परंपराभूत सेन परंपराभावी न साक्षी । मे. on मनु. 8. 74; पाला प्रोग्रेण वा येन विवादविषयः पूर्व प्रमितः स तत्र साक्षीत्यर्थः । … सेन यो विवाद विषयों पेन प्रमितः स स साक्षिस्नातोपि साक्षी भवतीति सिध्यति वरथा घेतनादानादिषु विदेषु लिखितादीमामसम्भवेन साक्ष्यभावप्रसः । मदनरत्न (m). Compare rपप्र. p. 109 for almost the same words.

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the Viṣṇu Dh. S. VIII. 12 is that 481 when a person that is appoin ted as a witness is dead or gone abroad, those who have heard what he said may give evidence. It has already been stated. (p. 297) that a king was not to delay the examination of witnesses, Kāt. (340-341 q. by Aparārka pp. 675,677, Sm, C. II. p.92, V. M. p. 331) prescribes that the king (or the chief judge) should himself examino the witnesses that are present (in court) and should consider along with the sahlyas the statements made by witnesses and that, where it is doubtful who the witnesses on a disputed matter are, time should be given for producing the witnesses in order to ascertain the proper means of proof but that where it is clear who the witnesses may be he should make the hearing of the case proceed at once. Kāt. (352) further prescribes 482 that when it is impossible to bring witnesses because they reside in a foreign country, evidence taken in writing before a man learned in the three Vedas and sent by him should be read in deciding the cause 483 Gaut. 13. 2, Manu VIII. 60, Yāj. II. 69, Nār. IV. 153 and others require that ordinarily there should be at least three witnesses in a cause. Br. (S. B. E. 33 p. 301 v. 16 ) says that there may be nine, seven, five, four or three witnesses, or two only if they are learned brāhmaṇas 18 Viṣṇu Dh. S. VIII. 5 and Bp. (S. B. E. vol. 33 p. 301 v. 16 ) emphasize that a single witness alone cannot be examined for deciding a matter 185.

481. J iet gā FTAT Tarvina Sat710TH ogus BY VIII. 12.

482. 3139431at na nagst affalfa (FESTSTATIE?) russia rechtaṛ a aqua 1 1891. q. by sa P. 667.

483. This corresponds to the modern rule of taking evidence on com mission as provided for in Order 26 rules 4 and 5 of the Indian Civil Pro. Code (of 1908).

484. मव सप्त पा स्युश्चत्वारस्य एव वा। उभी था श्रोत्रियो ख्यातो नै पुरछे ar 1 5. 4. by a. II. 76 (adds up fastuATERHOVE), 771. #T, III. 95, 19. 9. p. 112.

485. Vide Best on ‘Evidence’ (12th ed. of 1922) p. 315: ‘The Mosaic law in some cases and tbe Civilians and Canonists in all exacted the evidence of more than one witness, a doctrine adopted by most nations in Europe and by the ecclesiastical and some other tribunals ainong us’. Accor. ding to the Common Law of England and the Indian Evidence Act (I of 1872) sec. 134, no particular number of witaesses shall in any case be required for the proof of any fact. Best (ibid. p. 520) notices that in prosecutions for perjury the testimony of at least two witnesses is required by the Common Law of England (now confirmed by Statute) and that by Statute two witnesses at least are required in trials for treason. Vide Emperor v. Bal Ganga. dhar Tilak 6 Bom, L. R. 324 where the rule about two witnesses in convic. tions for perjury according to the Common Law of England was relied on.33%

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But Yaj. II. 72, Viṣṇu Dh. S. VIII. 9, Nār. IV. 192 state that one man alone may be a witness in a cause if he is endowed with the regular performance of his religious duties ( is possessed of the qualities stated in Viṣṇu Dh. S. VIII. 8) and is accepted as a witness by both sides. Vide Manu VIII. 77 also. Br. (S. B. E. vol. 33 p. 301 v. 18) allows a single witness to furnish valid proof if he is a dūtaka 486 (messenger), an accountant, one who has accidentally witnessed the transaction or if he is the king or the chief justice. Vyāsa says 487 that even a single person may be enough in a cause, especially in heinous offences called sāhasa, if he be one whose actions are pure, who knows the dharma and whose truthfulness has been well attested before. Kaut. (III. 11 ) says that a single witness (whether a man or a woman) may be enough in cases where the transaction in question was effected in secret (except the king and one performing austerities ), 488 Kāt. (353-355 q. hy V, M. pp. 319-320, Sm. C. II. 76, V, P. pp. 112-113 ) states that even a single person may be allowed to depose as a witness if he was taken in confidence at the time of making a deposit; so also a messenger sent by a litigant for borrowing an article (such as an ornament) or the manufacturer of an article may alone be sufficient to prove the identity of the article or when a matter has been decided by the king or chief judge, the scribe, the chief justice or any one of the sabhyas may alone prove the plea of res judicatu or the point as to what was said by the plaintiff or the defendant in a suit 189, Vide Br, (S. B. E. 33 p. 300 verses 13-14).

The qualifications of witnesses to be examined in a suit are stated in numerous places such as Gaut. XIII, 2, Kaut. III. 11, Manu VIIL 62-63, Vas. 16.28, Saṅkha-Likhita (q. in S. V, p. 138 ), Yāj. II. 68, Nār. IV. 153-154, Viṣṇu Dh. S. VIII. 8, Br. (S. B. E. vol. 33 p. 302 v. 28 ), Kāt. 347 (in Sm. C. II. p. 76 and

486. Br. (S. B. E. vol. 33 p. 300 v. 8) defines a dūtaka as one who is a respectable man esteemed and appointed by both parties and had come near to listen to the speeches of the parties,

487. gfrey VAST: Frei turar I FATTA FTW HITHIEU rasta A: | tam in fat. II. p. 76, 77 4. p. 112. ___488. रहस्यव्यवहारेब्वेका श्री पुरुष उपश्रोता उपद्रष्टा वा साक्षी स्याद्राजतापसवर्जम् ।

EFT III. 11. ___489, अर्थिप्रत्यधिनोर्वाक्यं यच्छ्रतं भूभृता स्वयम् । स एव तत्र साक्षी स्याद्विसंवाद

पोरपि।निर्णीत ग्यवहारे तु पुमायो यदा भवेत् । अध्यक्षः सभ्यसहितः साक्षी स्यात् तत्र put u 7. q. by B * p. 667, 7, 8. P. 108.

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V.P: p. 111). The principal qualifications are ; 4894 they should be born of a good family, should have lived hereditarily in the country, should be householders having a son or sons, should be well-to-do and men of character, should be trustworthy, should know dharma and act up to it, should not be covetous and should have been cited by the parties as witnesses. Some Smrti texts such as Kaut. III. 11, Manu VIII. 68 ( = Kāt. 351 and Vas. 16.30), Kāt. 348 provide 490 that ordinarily witnesses should be of the same varṇa or caste as the parties, that women should be witnesses in disputes between women, that men of the lowest castes (rentyajas) should be witnesses for litigants of those castes and that a litigant of a lower caste should not try to prove his case by citing witnesses of a higher caste or a brāhmana (unless the latter is an attesting witness on a deed ). But most (even including Gaut. and Manu ) give an option and say that persons of all castes (even sūdras) may be witnesses for all. Vide Gaut. XIII. 3, Manu VIII. 69, Yāj. II. 69, Nār. IV. 154, Vas. 16.29 (sarveșu saria eru vā). Nār. 1V. 155 and Kāt. (349-50 9. by Aparārka p. 666 and V. P. pp. 111-112) provide 491 that in disputes between members of groups such as those who wear peculiar symbols (indicative of their sect), śrenis (guilds), pūgas (associations), companies of traders and all others who work in groups and who are therefore called ruryns and in the case of slaves, bards, wrestlers, elephant riders, horse-trainers and soldiers the heads (called ursin) of these groups are the proper witnesses. Gaut. XI. 21 says that in disputes among members of classes of agriculturists, traders, cowherds, money

489 a. Eu fgtraitaat: FEAT GREAT tsi jaetaalwargreasaar स्मिन् । गौ. XIII. 2; प्रात्ययिकाः शुचयोऽनुमता या वयोवरायाः पक्षानुमतौ वा होणं

Ift. . 11; AT T HATa raha: OTT ÁT utorar: #294at: Sraut: racuy VIII, 8.; ATGT: araigar: 125 alasana: Sota FAN: Farva: gai: grur: #yariaa: Yakaraty Farmaya देषमासरा अप्रवासिनो युवामो लोभमोह विवर्जितारूयवरा नवसंख्याका न जात कूटता A U Fportant in #. f. p. 138

490. TEMA UTPOTETTIVISTAT

XIII. 4; Feat वादिना यार सरशैरेष भावयेत् । मोरकष्टश्चाधकष्टस्तु साक्षिभिर्भावयेत्सदा ॥ कात्या.q. by ग्य. प्र. p. 111, मदनरम (which reads नोरकृष्टं धावकृष्टस्तु, which seems to mean “a litigant of a higher caste should not be proved to be what he is alleged to be by the evidence of witnesses of lower castes’).

491. M : orgura ajonamartari I PEE FUTS are S T micut: 1 ĘTICANTAT KRYHTITUITI mean FFUMI 1991 affior WTUTINH T: Funity for any rerat: 1 Tr. q. by TTT p. 666. For

Por, ri, vide p. 280 and note 383 above and H. of Dh, vol, II. pp. 67-68.

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lendors and craftsmen (such as carpenters and washermen), the help of other members of the same calling may be taken as witnesses and arbitrators.

Long lists of persons who are generally to be regarded as incompetent to be witnesses are given in Kauṭ. III. 11, Manu VIII. 64-67, Udyogaparva 35. 44-47, Yāj. II. 70–71, Nar. IV. 177-187, Viṣṇu Dh. 8. VIII. 1-4, Br. (S. B. E. vol. 33 p. 303 vv. 29-30), Kāt. 360-364 (g. by Aparārka pp. 669-670, Sm. C. II. pp. 77-78, V. P. p. 119). Manu VIII. 118 states the general grounds why oral evidence tends to be false viz. covetousness, infatuation, fear, desire of pleasures, anger, friendship, igno rance, minority. As the list of incompetent witnesses in Nār. is the longest, 492 that alone is set out here: one who has mone tary 493 interest in the parties or the subject matter of the suit (such as a co-sharer, creditor and debtor of the parties); a

492. Vide appendix for the verses of Nārada. The commentaries and digests give various interpretations of some of the words. A few such are stated in the next note.

493. The Mit. explains ‘arthasambandhin’ as ‘vipratipadyamanārtha sambandhin’; while V. P. p. 117 explains as ‘creditor or debtor’ of a party,

· Aptāb. is defined by Kāt. 361 (quoted by Aparārka p. 669) as ’those wbo depend for livelihood on the subsistence given by a party to the suit or thoso who serve him or cause benefit to him or those who are his relatives, friends or servaats’. Sm. C. explains . cākrika’ as a bard, while V. P. (:p. 118) as oil-presser. The printed text of Nār, reads ‘asrāddha’ (who is not invited at a srāddha), while V, P, and others read ‘asraddha’; for vrātya (one whose upanayana has not been performed) vide H. of Dh. vol. II. p. 376 ; ‘prāg-drstadosa’ is explained by Asahāya as ‘one who suffers from a disease which is the effect of evil actions done in past lives’. Kāt. 362 (q. by Aparārka p. 669) explains ‘sanābhayah’ as sons of one’s mother’s sister or one’s full sister or one’s maternal uacle. The printed text reads.srānta’, while Sm. C. II. p. 78 reads ‘asanta’ (restless) and V. P. 117 reads ‘asrāata’ (one constantly engaged in work). Kulika is explained as ‘one appointed by the king to decide causes’ (by Kalpataru), while the Madanaratna says

he is the person in authority over a kula i, e. a group of brābmanas or the like’. Vide V. P. p. 119. Sm. C. II. p. 78 and V. P. p. 118 read ‘sūcaka’ (one appoiated by the king to find ont crime among the people) for ‘stavaka’ of the printed Nār.

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friend (or relative such as an uncle); associate (in undertak. ings); enemy; one who has already been held to have given false evidence; one charged with (or addioted to) sins; a slave ; one who is in the habit of finding the weak points of others (or harming others ); one who has no faith in religion; a very old man (above 80 years); a minor; a woman; an oil-presser; one intoxicated; a lunatic; one who is extremely inattentive; one distressed; a gambler; a village priest; one who undertakes long journeys (on the great roads); one who is a merchant engaged in sea voyages; an ascetic (who has renounced the world); one sick; one bereft of a limb; one who is the only witness; a brāhmaṇa learned in the Veda; one who does not perform the customary religious rites; an impotent person; an actor; an atheist; a vrātya; one who has abandoned his wife; one who has given up agnhotra (daily offerings into srauta or smārta fire); one that officiates as priest for persons who are not entitled to perform vedic sacrifices; one who is an associate in eating food from the same vessel in which food is cooked (i. e. who is in commensality with a party); a former enemy (aricara as one word); a spy; an agnate; a cognate (or born of the same womb); one whose evil doings in former lives are seen clearly; a public dancer ( śailūṣa, or one who makes his women actresses ); one who lives by (i. e. buys or sells) poison; a snake-catcher; one who is a poisoner, an incendiary, a mean person (kināśa, or parsimonious person); the son of a sūdra woman (from one of a higher caste); ono guilty of a minor sin ( upapātaka ); one fatigued; a desperado; one who has relinquished all attachments; a person who is penniless (through garnbling or other extravagance); a member of the lowest (un touchable) caste; one leading a bad life; a brahmacārin who has not yet returned from his teacher’s house; an idiot; an oil seller; a seller of roots; one possessed (by a ghost or demon); one hated by the king; a weather-prophet; an astrologer; one who proclaims to the public the sins of others; one who has sold himself (for money ): one who has a limb too little (e. g. having fqur fingers to the hand ); one who lives on the immora lity of his wife ; one who has bad nails: one with black teeth ; one who has betrayed his friend; a rogue; a seller of liquor ; a juggler; an avaricious man; a ferocious man; an opponent of a sropi (guild) or gana ( association); a butoher; a bide worker; a cripple; one excommunicated for a grave sin (like brahmapa-njurder); a forger (of documents or coins or weights &o.); one who employs locantations and druge for influencing

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others; one who is an apostate 494 from the order of ascetics (pratyavusita); a robber; a servant of the king; a brāhmaṇa who sells human beings, cattle, meat, bones, honey, milk, water or clarified butter; a member of the three higher castes who engages in usury; one who has given up the peculiar duties of his caste (or station); a kulika; a bard; one who is the servant of a low person; one who has quarrelled with his father; one who causes dissensions. Kaut. III. 11, Manu VIII. 65, Viṣṇu Dh. S. VIII. I and several others say that the king cannot be cited as a witness 495 ( except possibly to prove the plea of res judicata or to prove what transpired before him when a litigation was going on ).

The above is a formidable list of incompetent witnesses ; therefore, most Smrtis such as Gaut, XIII. 9, Kauṭ. III. 11, Manu VIII. 72, Yāj. II. 72, Nār. IV. 188-189, Viṣṇu Dh. S. III. 6, Uśanas (q. in Sm. C. II. p. 79), Kāt. 365-366 ( 9. in Sm. C. II. p. 79) expressly point out that strict examination of the character of witnegges should be entered upon in disputes about debts and

494, In Omichand v. Barker ( Willes 1737-1860 p. 538 ) where Willes (Lord Chief Justice) says (at p. 551) that in Popish times and for some little time afterwards till the Reformatiop was fully established there was a notion that ’even an alien friend especially if he were an infidel could not sue in a court of justice here’. That shows how non-Christians found it difficult to sue in England for their just rights a few centuries back. In the case cited above Lord Chief Justice Willes had to deliver an elaborate judg ment ia 1745 for holding that evidence taken in India according to the oaths administered to non-Christian witnesses could be read in a trial beld in England. So one need not laugh at Nār, who flourished at least about 1200 years before that date if he held an atheist or an apostate to be an incom peteot witness. It should be noted that ‘By the canon Law a jew is not admitted to give evidence against a Christian, especially if he be a clergyman;’ vide Taylor on Evidence (ed, of 1848, p. 655 note C.)

495. Vide Taylor’s ‘Law of Evidence’ (12th ed.) vol. II. p. 872.para 1381 about the sovereiga, giving evidence on oath ; his considered opinion’ being (after referring to the case of R. v. Mylius in which the defendant was prosecuted for a libel upoa king George V) ’that the sovereign if so pleased may be examined as a witness in any case, civil or criminal, but not without being sworn.’ The 194. F. p.100 says at 1971 apr: 16 TR TTT: साक्षिकमिषेधात् । तस्य कथं साक्षित्वमिति चेत् , उच्यते । व्यवहारदर्शमकालेऽवगतेव्वर्येषु तस्येह साक्षित्वमुच्यते, कालान्तरापेक्षया निषेधः । तथा च व्यासः । राज्ञा धर्मासमस्येन पाछुत तत्व निरखता। भाग्य: साक्षी भवेत्तत्र मुक्त्वा राजानमीश्वरम् । इति । हस्पतिः निर्णीत व्यवहारे a goaletter what segaFYTITN: Fraft Forevepruari. The ne. II. p. 80.and qu. #T. III. p. 103. have the verge of Ra F. HTUT :

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the like which are of a fixed nature (of a civil nature ), but that in complaints about all kinds of sāhasa ( heinous crime), in robbery, adultery or the two kinds of pārusya ( viz. defama tion and assault) there should be no (strict) inquiry into the character of witnesses (that is, all can be witnesses in such cases) and that even those like slaves and fault-finders who have been enumerated among incompetent witnesses can become witnesses in grave matters 4%. The idea is that in such cases the witnesses need not be strictly examined as to their possess ing the good qualities ordinarily required in witnesses. But this does not authorize the examination of such persons as lunatics or idiots as witnesses, because they have not the power to understand things. Manu VIII. 77 emphatically states that even a single male, if he is free from greed, may be (suffi cient as ) a witness, but not women of good character, even though they be many, since the feminine intellect is apt to be unsteady. But even Manu had to concede (VIII. 70) that a woman or a minor or a very old person or a pupil, relative, slave or a hired servant may be a ( competent) witness, if it is impossible to find another witness (in matters that occurred inside a house or in a forest or in crimes where life is lost). Kat. 367 (g. by Aparārka p. 671) says the same thing. Usanas497 (quoted in the Sm. C. II. p. 79, V. P. p. 120) provides that even a slave, a blind man, a deaf person, a leper, a woman, a minor, a very old man may be ( competent) witnesses in sāhasa, provided they are not interested in the matter of dispute (or are not related or partial to the parties). Nar. (IV. 190 191) gives it as his view that even when there is to be no strict inquiry into the character of witnesses in sāhasa, still a minor, a woman, a single person, one who forges deeds (or who is a

496. अणादिषु परीक्षेत साक्षिणः स्थिरकर्मसु । साहमास्ययिक क्षेत्र परीक्षा कुत्र चिस्मृताध्याघातेष वृपाज्ञाया: संग्रहे साहसेषु च । स्तेयपारुण्ययोश्चैव न परीक्षेत साक्षिणः

अन्तर्वेश्मनि रात्रौ च बहिर्गमाञ्च यद्भवेत्। एतेष्वेषाभियोगशेष परीक्षेत साक्षिणः ॥कारया. in अपरार्क P, 670-71, स्मृतिच. II. p. 79; पारुण्यस्तेषसंग्रहणेषु तु बैरिस्पालसहाय पर्जाः। को. III. 11. ____497. वासोऽन्धो अधिरः कुष्ठी श्रीबालस्धविरादयः । एतेप्यनभिसम्पन्धाः साहसे साक्षिणो मताः ॥ उशनस् प. by स्मृसिच. II. p. 79. साहस is of four kinds ‘मनुन्धमारणं चौर्य परदाराभिमर्शनम् । पारुण्यमुभयं चैव साहसं तु चतुर्विधम् ॥ q. by अपरार्क p. 670 (as from मद), परा. मा. III. p. 450 (as from वृह.), य. प्र. p. 120. यत्र पुमांसा पधिप्रत्यर्धिनी तत्र श्रीणां साक्ष्यं नास्ति यत्र त्रिया सह पुंसः कार्य श्रीणां चेतरतरं स्वल्पं सत्र भवस्येव त्रियः साक्षिण्यः । म चापं नियमः बीणा लिय एव सायं कुर्यु पुमांसः। केवलं पुषतिविषये व्यवहारे कचिदेव श्रीण साक्ष्यं यतोऽस्थिरत्वादिति हेतुरूपातः भवन्ति काचन चियोमपादिम्य इष सत्यवादिन्यः स्थिराजपक्ष मेधा on मा VIII. 68.

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cheat), a relative and an enemy cannot be witnesses in sāhasa, since a child through ignorance, a woman from her habit of untruthfulness, a forger (or cheat) because he is accustomed to doing evil deeds, a relative from affection and an enemy from the idea of taking revenge may speak falsely. There was no total disqualification of women as witnesses, since Manu quoted above allows them to be witnesses in disputes between women and in cases where it is not possible to have other witnesses. Medhā - tithi on Manu VIII. 68 holds that women are. disqualified as witnesses only where the plaintiff and defendant are both males but that where there is a litigation between a man and a woman or between women alone, a woman may be a competent witness. Ancient Hindu Law is not singular in its partial rejection of the testimony of women, Vide Best on Evidence (12th ed. of 1922) pp. 53-56 where it is shown how ancient Roman Law and the Medieval laws of several countries of Europe more or less excluded the testimony of women, how some States in the U.S.A. excluded the testimony of negroes and persons of coloured blood. By the Canon Law more credit was given to male than female witnesses ( Taylor on Evidence, ed. of 1848 p. 655,

noted).

Nar. (IV. 157-172) states that incompetent witnesses fall into five classes : (1) some t98 like learned brahmanas, very old men, ascetics, persons practising austerities are incompetent because ancient texts ( vacana) say so and there is no other (special) reason for their exclusion. The Vyavahāratattva

___498. असाक्ष्यपि हि शाळेऽस्मिन् दृष्टः पविधो सुधैः । वचनाहोपतो भेदारस्वय मुक्तिर्मतान्तरः ॥ भोत्रिया तापसा बद्धा ये व प्रवजिता नराः । असाक्षिणस्ते पचमामात्र हेतदाता स्नाः साहसिकावण्डाः कितवा वधकाश्च ये। असाक्षिणस्ते इष्टत्वानेषु सरपं न विद्यते ॥ राज्ञा परिगृहीतेषु साक्षिण्वकार्थनिश्चये। वचनं पत्र भियत ते स्युभेदादसाक्षिणः भनिधिस्त साक्षित्वे स्वयमेवैत्य यो वदेत् । सूचीयुक्तः स शामेषु न स साक्षित्वमर्हति ॥ पोर्थः श्रावयितव्यः स्यात्तस्मितसति चार्धिनि । कतइदत साक्षित्वमित्यसाक्षी मतान्तरः ॥ भारद IV. 157-162; compare नारद IV. 94 ‘सन्तोपि न प्रमाणं स्युदते धनिनि साक्षिणः भन्यत्र भाविताचस्मात्स्वयमासजमुत्युना . शंख q. by मिता. on या. II. 69 says ‘पित्रा विषदमानगुरुकुलबासिपरिवाजकवानप्रस्था निग्रन्याश्वासाक्षिणा’. This

may be one of the texts to which Nar. refers in the words असाक्षिणस्ते वचनात’,

• Therय. म. p. 115 explains तान्तर as सामाग्यतो य आषयोः कश्चिद् व्यवहारसम्प

बोस्ति पत्र त्या साक्षिणा भाग्पमित्येतावन्मात्रमुक्त विशिष्य च व्यवहारविषयो न तस्मै . भारिता भापयिताच नास्ति स पटोऽपि विशिष्य विषयाज्ञानादसाक्षीति यावत् । ‘. The

सातिय. I. p. 81 and स्पष.नि. p. 106 explain मृतान्तर differently : धनिनि ते ‘अनादि पदारें मनाता सन् स्वयमेधेस्य मृतपुत्रं निर्दिश्यामुग्यासी धारयति अहं

साक्षीति यो प्रीति असो मतान्तरनामा असाक्षी । मुमूर्षुणा पुत्र प्रति भाषिते तस्मिनसो साक्षीत्येभावितः पूर्व प्रति साक्षी भवस्येव । व्यव. नि. p. 106.

mt 1

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(p. 214 ) points out that śrotriyas and others cannot be appoint ed as witnesses, but they may be what is called akyta witnesses explained below (i. e. they may if they choose appear as witnesses in a cause ). They are not competent like the king, not because they are untrustworthy but because it is not advisa. ble to call them. They were privileged persons; (2) thieves, robbers, dangerous characters, gamblers, assasins are declared to be incompetent because there is the defect (doṣa) of untruth fulness in them; (3) witnesses are rendered incompetent on the ground of contradiction (bheda), when the statement of wit nesses who have been accepted by the king for determination of the same matter do not agree; (4) he who without having been appointed (by the parties to a transaction ) as a witness (to it) comes of his own accord to depose is termed a sūci (i. e. & spy) in the sāstras (and so was styled svayamukti by Nār. IV. 157) and is unworthy to be a witness; (5) a person is incompetent as a witness by reason of intervening death (i. e. he is mstāntara ); when can any person bear testimony if the creditor (or claimant) is no longer alive, whose claim should have been heard by him specifically (but was not heard in that way )? Mītāntara is a witness whom one or other of the parties informed in a general way that there was some dealing between the parties and who was asked to be a witness ( but was not told the details of the dealing ) and then subsequently the party died. In such a case the person told is not a good witness, as he cannot give the details. But Nār. (IV. 94 ) mentions an exception to this last rule viz. when a father while on the point of death tells his sons and the like these are the witnesses on such and such a matter,’ there even after the father’s death those witnesses would be competent though death intervenes.

Witnesses are divided by Nār. IV. 149 into two sorts ; (1) those appointed (kyta) by the parties and (2) those not appointed (akrta); the first being of five kinds and the last of six kinds. The first five ( acc. to Nār. IV. 150 ) are a subscrib ing witness (likhita), one who has been reminded (smārita ) 1. e. one who is called as a witness without there being a docu ment and who is present at a transaction and is again and again reminded of it by a party to it in order that the transaction may be effectively proved thereafter ( Kāt. 371 and 372 q. in Mit. on Yaj. II. 68 ), a casual witness i, e. one, who, while a transaction is being entered into, comes there by mere chance and is then asked to be a witness (yadrochabhijiā or yādṣcchika,

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acc. to Br. ), a secret witness i, e, one who is made to listen to the speech of the debtor while concealed behind a wall or soreen, an indirect (uttara )499 witness (i. e. one who learns from a witness who has seen or heard of a transaction when the latter is going to a distant country or is on the point of death ). The six akrta witnesses (acc. to Nār. IV. 151-152) are co-villagers (in disputes about boundaries), the chief judge, the king (before whom a suit was tried), one who is closely acquainted with the transaction of the parties (i.e, kūryamadhyagata, acc. to Bs.), one who is deputed by a party (for borrowing an ornament or for settling a transaction, called dutaka by Br. ), members of the family (kulya) in disputes among other members of the family (as regards partition &c.). Bṛ. mentions twelve kinds of witnesses that are practically the same as the eleven of Nār. except one which he adds viz. lekhita 500 (one whose name is caused to be written by a party in the presence of the witness when that party enters into some transaction in writing such as a loan with another). The only difference between ’likhita’ and ’lokhita’ seems to be that the first himself writes his own name as a witness on a document while the latter’s name is written as a witness by one party in the presence of the other and of the witness. Br. (S. B. E. vol. 33 p. 299 verses 4-15 q. by Aparārka pp. 666-667) defines at great length all the twelve and Kat. also defines most of them, but these defini tions are passed over as not very important. Viśvarūpa remarks that these nice distinctions among eleven kinds of witnesses are made only for the sake of exposition and for the benefit of simple people 507

499.49 Fri farsi agaf TUTETT 3774 Furaha rrugat Fhiaro . in puer P. 666; FITOTTATO I Fruergaft areal auf

TOTEUTC # FIEST PETET: # TEUT. q. by rhal, on ut. II. 68. Dr. Jolly’s rendering of Kāt, in S. B. E. 33 p. 80 n. is not correct. Vide my notes to OTTITATE PP. 66-67. The TETAP reads THT27i face TICHITATI muo;’ vide the TTHES VIII. 12 quoted in n. 481 wbich refers to a witness that is the same as 37. Compare sec, 32 of the Indian Evidence Act about verbal or written statements of a person who is dead or whose attendance cannot be procured except after unreasonable delay or expense,

500. suariyata y al on 999* PETÊ Simu: # VETEN TE. q. by *7. 8. p. 108. ST P. 667 reads Frui porta: Ti peur.

501. gearreteranfeui *** farsa Trgunv979

are on 41. II, 71.

Shaking the credit of a witness

341

Before a witness for a party begins to depose, it is the duty of the opposite party to point out the ground or grounds, if any, of the incompetence of the witness put forward for examination, Kāt. adds 502 that the latent defects of the witnesses of a party must be pointed out by the opposite party, but the patent defects will be considered by the members of the court at the time of giving their decision. Vyasa 503 states the defects of the witnesses of a party should be pointed out by the opponent in open court by putting them down in writing and the wit nesses should be called upon (by the judge) to refute them; if the witnesses admit (the faults pointed out) they do not deserve to be witnesses; if otherwise (if the faults are not admitted) they should be established by the opponent with evidence (other than those of other witnesses ); for if the defects of the witnesses of a party were allowed to be established by other witnesses to be cited by the opponent, there would result the fault of a never-ending series (anavasthā), since the first party would then try to show defects in the latter set of witnesses and this may have to be carried on ad infinitum.’ Bṛ. laid down that an opponent should not be allowed to point out the grounds of incompetency in witnesses after they have begun to depose and Kat. adds 504 that he (that party), who points out, after the witnesses have deposed to a matter, faults in them in whom he found none at first and who can not set out a proper reason (for his not proclaiming the faults at first) should be fined in

502. DATOTEY VE TT T T rateari tarat: F**tre pre pastara i Firar 9. by patrem p. 671, Fax. II. p. 83 which adds to foram

e. The 14. #. p. 39 says ‘TO: $# a

A rarat 41: . 503. Hier : #71764: Hią ster@ari qisia R mula val: organa u sfatuit F FTECERET a 974 i sraiskaur w a y91 प्रतिवादिना ॥ अन्यैस्तु साक्षिभिः साये दूषणे पूर्वसाक्षिणाम् । अमवस्था भवेदोषस्तेषाम car e 11 FUTA 4. by Fray. II. p. 83, *#. #. p. 38 (first two). The first two are ascribed to कात्या. by परा. मा. III. p. 106 and ग्पष. मि. pp 112-113. The fato on 9. II. 73 has the following lucid note’ outraat #THEO Honorogoro Tatrage a forofa: 1 retrag o arreta

Tu faiat * francofa TURUT I FIHETETT nrad # Sifa apavrat neret FITORTU TA: 1 sty #nare To Frient: , Compara sections 148 and 153 of the Indian Evidence Act about cross examination to shake the credit of a witness.

504. लेख्यदोषास्त ये केचिरसाक्षिणां चैव ये स्मना । पादकाले बतण्या पश्चादु नामदूषपेत् ॥ उसाक्षिणो यस्त दूषयेस्त्रागदूषितान् ।नव तस्कारण यात्माप्हयात् पूर्व FITFT 1 91. in feat. p. 83, 8. f. pp. 143-144. The first is ascribed to tena by T P. 672.342

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the first amercement. Br. further states sos that-the defendant may point out the defects, if they exist, in the witnesses oited by the plaintiff; but if he finds faults which do not exist in the witnesses, he should be punished with a fine equal to the amount claimed (in monetary disputes) or equal to that which is levied from a false witness. If the witness of a party is not able to refute the defect pointed out by the opponent, the party calling him should try to clear his witness of the fault; other wise he should not succeed in his suit.

When a witness is about 506 to depose, he was, acc, to Br. (S. B. E. 33 p. 302 v. 23), to put off his shoes and turban, raise his right hand (in order to draw the attention of the Court) and after touching gold, cowdung or darbha grass was to depose to the truth. Ap. Dh. S. II. 11. 29. 7. says 507 that a witness should depose to the truth on an auspicious day in the morning in the presence of kindled fire and near (a jar of) water in the hall presided over by the king (or chief justice) and after being exhorted as regards both (viz. the results of truthfulness and falsehood) and when accepted by all (the court and parties ) as a competent witness. Kaut. also (in III. 11 ) says that wit nesses should be examined in the presence of brāhmaṇas, water jar and fire. Manu (VIII. 79-80) provides that the judge should in a conciliatory manner exhort all witnesses assembled inside the court in the presence of the plaintiff and defen dant as follows: ‘whatever acts of these two (litigants) between themselves you know as regards this matter (in dispute ), narrate them all truthfully, since you are the witnesses in this case’. Yaj. II. 73 also states that witnesses should be made to depose in the presence of the parties and Gaut. XIII. 13 and Kāt. (q. by Mit. on Yaj. II, 73) prescribe that witnesses sos

505. Frontfūhaft Hill stay at i servei pri qor HEAT # o q. by Fit II. p. 83, 7. f. p. 143.

506. ferramarrofret grand

tourisgau FATOTO ** ga u TF ; Futurua: rept prout surua: F iftro…ureyra

*** , both q. by #. ff. p. 157, 99. AF. III. p. 112. The first is scribed to 16014 by 4. f. p. 116 (reads frognivitamat AT-: are ).

507. goure aracornstram creguemi Farera Furgha gari : * TUTE * Art. 4. II. 11. 29.7. … 508. Alferro Fiat goor far I TEFTFT gut पचिपचीन । आहूप साक्षिणः पुच्छेसिपम्य शपवैशम् । समस्तान विदिताचारान

r ia que Frar. 344-45’q. by far. on Tr. II. 73. The first is *VIII, 87 and the 2nd is WIC IV. 198,

f

II ]

Examination of witnesses

343

should face the east or north, are to be examined in the presence of the images of gods and brāhmaṇas in the first half of the day and should be exhorted to tell the truth by being bound with oaths. This examination in the public and after an oath went a long way in checking the tendency to depose falsely. The oath consisted of two parts, viz. (1) the requirement to tell the truth and (2) the exhortatory and imprecatory part. Both were administered by the presiding judge. Gaut. (XII. 12-13) appears to prescribe that an oath (sapatha) was not to be administered to brāhmaṇa witness, but Manu VIII. 113 ( Nār. IV. 199) does not make this distinction. Gaut. (XIII. 14-23), Manu VIII. 81-86, 89-101, Viṣṇu Dh. S. VIII. 24-37, Nar. IV. 201-228 contain very long exhortations addressed by the judge to the witnesses relating to the importance and high worth of truth, stating how the conscience of a man pricks him, what rewards await the truthful witness here and in the next world and what sin and terrible torments in Hell are the lot of an untruthful witness, what evil befalls even the deceased ancestors of an untruthful witness and how he is liable to be punished by the king. They are too long to be cited here 509, Shorter exhorta tions are found in Yaj. II. 73-75, Vas 16. 32-34, Baud. Dh. 8. I. 10. 19. 9-12 (8. B. E. vol. XIV p. 203), Bp. (8. B. E. vol. 33 p. 301 verses 19-22), Kāt. 343. Nār. IV. 200 provides ’let him (the judge ) inspire them (the witnesses ) with awe by (quoting ) ancient texts, extolling the greatness of truth and denouncing falsehood’. Kaut. (III. 11), Manu VIII. 88 and 113 (=Nar. IV. 199), Viṣṇu Dh. S. VIII. 20-23 add further modes of speech and exhortations according to the varṇa of the witness: A brahmana witness is to be addressed by the judge as ‘speak’ and to be exhorted to swear by his veracity, a ksatriya one was to be addressed as ‘speak the truth’ and to be sworn by the animal he rides and his weapons ( which he is to touch ), a vaisya ia to be sworn by his kine, grain and gold and a sūdra is to be sworn by (imprecating on his head) all grave sins. Manu VIII. 88 provides that a brāhmana should be asked to depose

509. Vide Appendix for Nārada’s verses.

510. The exhortation in the suite (III. 11) is somewhat different from Mapu’s wigro annet çetia T T AT turn, 478 रस्तः शत्रुपलं भिस्वार्थी गच्छरिति पूर्व जन्ममरणान्तरे पहा पुण्यफलं बाजा गोत, eru afar gengurni mgv4: rara para curgeau i NITI PRITUTA ‘. The text in Dr. Sham Shastri’s edition is rather corrupt

and not properly arranged,

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with the word ‘speak’, while VIII, 113 states that a brāhmana is to be made to swear by his truth. Some explain that the first rule applies to excellent brāhmaṇas and the second to inferior ones and rely on Gaut. (XII. 12-13 ) who prescribes that an oath to speak the truth is not to be administered to brahmanas but only to others. Vide Haradatta on Gaut. and Vivādacandra p. 127. Manu VIII. 102 (Baud. Dh. S. I. 5. 95 ) is careful to point out that the exhortation is not to depend purely on the caste but that brāhmaṇas (and others ) who tend kine, who engage in trade, who are craftsmen or actors, who are menial servants and usurers should be treated (by the judge) as sūdras 511 (in the matter of taking oaths). Witnesses after they are assembled before the Court are to be ordinarily examined separately (vide Kāt. quoted in n. 508 above). But Gaut. XIII. 5 and Kat, 394 provide 5'2 that if a certain matter is seen by the witnesses as a body then they may be examined together. Manu VIII. 78 and Kat. 392 prescribe that what the witnesses declare quite natu rally (without hesitation and fear) should be taken down and that when the witnesses have declared (what they know) they should not be questioned again and again by the king (or judge). From the Smrtis and the 9th Act of the Mșcchakaṭika it appears that

511. The Mit, on Yaj. II. 73 explains Manu VIII, 113 as follows: a brābmapa witness is to be sworn by being told that if he spoke untruth his truth will perish, a ksatriya that his vehicle and arms will be fruitless, a vaisya that his cattle, grain and gold will be lost and a sūdra that all sins will be his lot. Others explain differently. The Vyavahāratattva p. 215 says

MANTEATR Tegri TUTTATHUra Faria e uri. The i t on Tr. II. 74 says the same. Med hātithi on Manu VIII, 113 appears to hold that the exhortatory part is repeated by the witness. T HE 501 FATHEATRE #estety qu: ***: sicut # erTa TH pra सत्पादिमियन्धनोयं धोंपा मे मिष्फल: स्यादिति । … गोषीजकाशनानि वैश्यो हस्तेन Forretgarante peroratra garanti’. The Madanaratna says that brāhmanas following such avocations as rearing cattle should be made to take an oath like sūdras, narratiteriporta 1 ये व्यपेताः स्वकर्मभ्यः परपिण्डोपजीषिनः । हिजत्वमभिकाक्षन्ति ताश्च शुद्धवदाचरेत् ॥ Vas. III, 1 and Manu II, 168 provide that brāhmaṇas who have not studied the Veda, who do not expound it or do not keep the sacred fires be come equal to śūdras. The Indian Oaths Act (X of 1873) sec. 6 allows a witness who has an objection to taking an oath to make an affirmation,

512. FTAET TE TE TU T fo r hildi arry on gee n 97. q. in with p. 675. Vide ##. 4. p. 126 for two differeat read. ings and interpretations of n. XIII.5. V rotast og varmere tutte

mert nerei ga! TH: # 9. in 38947p. 675, Far, OR 9. II. 79 (without pame).

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Cross examination

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it was the chief judge or the judges who put questions and that there was no elaborate cross-examination and re-examina tion of witnesses as in England ( which practice is followed in modern India ). The only cross examination that appears to have been allowed was about the faults or grounds that made a person an incompetent witness. In this respect ancient Indian practice resembled modern judicial practice in some European513. countries other than England. Witnesses were compelled to attend. Kaut. III. 11 states that witnesses who are not far removed by time or space should be produced by the parties themselves, but those who are far away or who are unwilling to stir sball be got summoned by order of the king 514 Manu VII. 107, Yāj. II. 77, Br., Kāt. and Viṣṇu Dh. S. VIII. 37 say that if a witness knowing all facts and not prevented from coming by disease or similar causes refuses to come as a witness he incurs the sin of false witness, has to pay the amount in dispute and ten per cent thereof as fine to the king. This is in accor dance with the principle enforced in modern times that it is the duty of a citizen to appear before a court of justice when. summoned. Kaut. (III. 1) provides for subsistence allowance to witnesses. It is not quite clear whether parties could be regarded under ancient Hindu Law as competent witnesses on their own behalf. Yāj. (II. 13-15) appears to suggest that. parties could be regarded as witnesses in their own cause and held to be false from their demeanour as in the case of witnesses. Kaut. IV.515 8 and the 9th Act of the Mrochakatika show that the accused was questioned by the Court as to his movements about the time of the alleged offence and till his arrest. Sukra 516

513. Vide Stephens’ History of the Criminal Law of England’ (1883), vol. I. chap. XII, where on p. 431 he remarks .cross examination is a highly characteristic part of an English trial, whether civil or criminal, and hardly any of the contrasts between the English and continental systems strikes an English lawyer so forcibly as its absence in the continental system.’

FUIT Filtrar: furaha 1 TFUSHAFT FUTTATTET FIVTTH. II. 11 last verse; HTCAT VI tara cima i pot apa

FTTETTIFU # # . q. by tray. II p. 91, 97. #T. III p. 115; compare Order 16 rules 10-15 (of the Indian Civil Procedure Code) about the compollability of witnesses and tbe remedies against such as disobey a summons.

315. mar: theyra ei raat PHUTH MAT OTTIE Maguire REFU IV. 8.

.516. स्तर कार्यविज्ञानी पससाक्षी बनेका भुताच तवाकतो UT # *. IV. 5. 184.

348

( Vot:

IV: 5.-184 defines siksi in such a way as to exclude the litigant himself. Ordinarily witnesses were examined in the open court in the présence of the parties and never behind their back, but Kat. (387-389) prescribes that in the case of immovable property oral evidence may be taken on the property itself and in some cases even elsewhere than these two (viz. the Court and immovable property ), that is, in the case of the death of living beings witnesses may be made to depose before the corpse (of the animal killed ) or, in the absence of the body, before $17 some niark ( such as the horn of an animal). Bṛ, and Manu VIII. 25 state that the truth of the statements of witnesses should be examined by marking their tone, their change of colour, their eyes, their gestures, and their deineanour518 Texts like Saṅkha. Likhita (4. by V. P. p. 124 ), Nār. IV. 193-196, Vispu Dh. S. VIT, 18, Yaj. II. 13-15 and Kāt. 386 point out the actions and appearances of a party or witness that deposes falsely, viz. he appears restless, changes his place (i.e. Inoves from one spot to another), licks the corners of his lips, his forehead perspires, his face loses colour, he frequently coughs and heaves frequent sighs, he scratches the ground with his feet (tues ), waves his hands and garment, his mouth becomes dry and his voice falters, he speaks incoherently, talks too much though not asked and does not reply straight to the questions asked and avoids meeting the eyes of the questioner. Such a witness may be looked upon as untrue and the king or judge should bring him under discipline (so that he will be afraid to lie). Merely on seeing these signs a witness was not to be punished or entirely disbelieved, since these signs raise only a probability of untruthfulness ( as remarked by Mit. on Yāj. 11. 15 and V. P. pi 124).

517. ***a: Put THT AT ### FITTÀ: FRAGETI YAI 77 201419 Tift Tahiri Tuhi T ai vasara ya farurat पावध वस्त्राणिमा साक्ष्पं पादेयरिखपसंनिधो । तदभाव चिहस्थ नान्यथैव प्रवादयेत् ॥ *1791. q. by yae. II. p. 89, QTT. #1. III, pp. 112-113, 14. 4. p. 41, 14. #. p. 125. The reading man for fre is better, 1q, #. p. 124 quotes a long prose passage from fier about the demeanour of witnesses. The

faat. Da al. 11. 15 remarksgatan graniaHRIEUR generare i थाभाषिकनैमितिकधिकारपोविकरण शेयत्वात.’

518. FUNT: atitur: g: furopfgarera: 188. g. by frīar. II. p. 85. 14. X. p. 124 : On gammy #fun and forwar (MITT IV. 196). 18. . remarks ftatum ifrarauuT FATE frategu: t… pesu- na-fran. विवारपार संभावनामात्रेण वनस्पाग्यापरवादिति एकम् । (p. 124).. Vide also Arte on ur. II, 15 cited above.

III)

Conflict of orul evidence

347

those who are

hore disinterested

le meritorious

When there are many witnesses but they differ in their statements certain rules are laid down by Manu VIII. 73 (=Viṣṇu Dh. 8. VIII. 39), Yāj. II. 78, Nār. IV. 229, Bf. (8. B. E. vol. 38 p. 303 v. 35 ), Kāt. ( 408 ). They are briefly these : 519 The statement of the majority of witnesses should be accepted, but if they are equally divided then the statement of those who are more pure (in character or more disinterested ) should be accepted and if the meritorious are divided equally then those who are the best among them should be accepted as true. The Mit. on Yāj. II. 78 adds that if there is a conflict of testimony between the statements of a few but eminently qualified witnesses on the one hand and those of a larger number of ordinary witnesses, then the former should be accepted as Yāj. II. 7% requires i. e. it prefers quality to mere numbers. Kaut. III. 11 prescribes that when there is conflict in the oral evidence the decision should be according to the evidence of the inajority of witnesses or of those who are pure in character or of those who are approved of by both sides as good witnesses or a mean should be drawn from their statements. Nār. IV. 160 and Kāt. 359 state 520 that if one out of the (three) witnesses attesting a docu ment or out of (three ) witnesses that aro cited by a party deposes in a way contradictory to what is deposed to by the other twn, then all the three become incompetent witnesses on account of contradiction. This has been interpreted by the Vyavabāra. mitrkā (p. 326 ) to mean that where all witnesses are of equal status and there is a majority of only one favouring one side, then all the witnesses are incompetent and oral evidence is in that case futile for decision.

The important question is how much has to be proved by the party calling witnesses. Yāj. II. 79 (=Viṣṇu Dh. S. VIII. 38), Nār. II. 27 and Br. (q. by Sm. C. II. 91 ) state the general rule that that party whose averments are supported in their entirety as true by the witnesses becomes successful, while that litigant

*–

519. From TYMER MOT: Fitā Intrar: 1 gr murgitara

CP: * T. 2. by 14. #T. p. 325, TTI. AT. III. p. 116. The famio on ar, 11.76 explains • 1 gargiorat farfecerrar #QOTTAT: yaranaquiggra पपुवादिगुणसंपजास्तेषा पचने प्रायम् । यत्र तु गुणिमा कतिपये इतरेच बहवरतत्रापि एणिनामेव चर्म प्रायम् । उभयानमतः साक्षी भवत्येकोपि धर्मविदिति गुणातिशयस्य

TETE. __520. साक्षिणा लिखितामा निदिधाना गादिना तेषामेकोग्यधावादी भेदात

T: Egr, a. by worro p. 670, . #1. p. 325, P. AT. III. 116. e

348

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whose claim is declared by them to be false certainly loses $21. Nār. IV. 232 and 234, Kāt. 396, 398 lay down 52 the rule that in civil disputes that are of a non-urgent nature (like recovery of debts ), if witnesses depose to more or less ( than what is averred in the plaint), then the claim is not established in its entirety; where the witnesses depose to more or less ( than the claim affirmed by the party) the deposition of the witnesses should be considered as not taken down or it should be omitted (from consideration ) 523; the witnesses in such a case are not liable to fine; they may deserve to be fined if they do not depose ( to what they know). Similarly Nār. IV. 233 and Kat. 524 399 say. that where the depositions of witnesses are in conflict as to the place, the time, the property, the amount, the colour, the species (or caste ), the form (or shape ), the age ( as stated in the pleading of a party ), the depositions are to be regarded as good as not given at all. The rule amounts to this that any dis crepancy between the essential details or particulars of a claim

521. Ca NTU: Tw: afatetura: 1 #utaraqur & HIETTO * F ETTET #T. q. by STTT P. 678, Fras. II. p. 91, TTT AT. III. 114. .

522. मणाविषु विवादेषु स्थिरमापेषु निश्चितम् । अने पाप्यधिक चार्थे प्रोक्त साध्यं म सिध्यति । अनाधिकं तु यत्र स्यात् तस्साक्ष्यं तत्र वर्जयेत् । साक्षी सत्र न दण्डयः स्यादनुपन् Fra 1 ETETT. 396, 398 q. by 6. 41. p. 312 and 318, Harrek p. 678, F . II. p. 90, 99. 1. p. 68.

523. The maxim (in Yaj. II. 20) that on proof a part of a claim the whole may be held to be proved (vide above n 431) applies only where the opponent totally denies every item of the claim of the plaintiff. This is a presumption and the king or judge is not to be blamed for acting upon it in case of toraj donial, as said by Gaut. XI. 23 and 32 ’ Urut UTA

: 1 … HATTAT Tronment. This text of Yāj. is apparently in conflict with Kāt. 473 (q. by Mit. on Yāj. II: 20)‘in claims coataining several items, the creditor (or plaistiff) secures a decree for as much out of them as he is able to establish by means of witnesses’. These two verses are sought to be reconciled in various ways by the Mit. (on Yāj. II. 20), the Sm. C. II. pp. 120-121, Vyavabāra-mātṇkā pp.310-312 (where it criticizes the views of Yogloka), V.P., pp. 98-102. It is impossible for want of space to go into these interpretat ious. The Mit says that Kāt. 473 applies to a case where the son or the jiko being igaorant of the debis contracted by his father or the like says ‘I do not know’ i.e. pleads ignorance. In that case he does not deny (he is not Hihnava-vādin but only ajfūnin. The Vyavahāranirṇaya p. 68 ex plains Kāt. 473 in the same way and about 396 it adds that when he cites witacsses as supporting his entire claim and the witnesses depose only to a. part of it or to more than he avers then his claim fails in its entirety but in sāhasa, theft and adultery it is otherwise.

*** Not Rathfar ut for NI: * . Ia wyr P. 678 (reads fit for wt), a. IL p. 90. .:

DI)

Conflict of oral evidence and pleadings

made in the plaint (such as the time, place, number &c.) and the case made out in the depositions as to any of these: essential particulars will have the same consequence as tendering no oral evidence. This rule was not followed to the letter and besides other means of proof could be resorted to, as stated by the Mit., the Vivādacandra and others 525, Kaut. III. 11 526 states that when the witnesses depose to less than what is averted in the plaint, the plaintiff has to pay a fine (of a fifth part) on the excess and when they depose to more than the claim, the excess (held proved on the depositions ) may be taken by the king.

• In charges of adultery, heinous crimes (sāhasa ) and theft the whole of the matter that is alleged may be held proved, when witnesses depose to only a part of the matter 527 (says Kat. 397).

Nārada IV. 165 prescribes that a litigants28 should not secret ly approach a witness cited by his opponent, nor should he try to win him over (by bribes or threats) through another; if he does so, he would suffer the consequences of a losing party (hina)…

There were rules about the late production of evidence. It has been already shown how if a litigant adduces weak evidence, though strong evidence is available, he would not be allowed to rely on the latter after judgment is pronounced. It is said by Nār. I. 62 that when a lawsuit has proceeded far enough (lit, has been cleansed or thrashed out), evidence such as a

q

· 525. mare for at WW714) Aft aangalia quomattor for

AATE on T. II, 79; gana at goofing or a t Tarot ar interfiruh nopy89 HETTY Posarator faolo para पाति । प्रकृताविरोण्यधिकाभिधाने जय एव। प्रकृतविरोग्यधिकाभिधाने भएपेति । विधा

VI pp. 131-132.

526. साक्षिणश्वेदभियोगापून ब्युरतिरिक्तस्याभियोक्ता.बन्ध दद्यात् । अतिरिक्त वा fram ar USI III. 11.

527. TUPETIT maat Alat Thai HIT IT TANO

u e o 9. q. by fat. OQ T. II. 20, sagr p. 678, c. II. p. 90.

528. The fact that a party requested a witness to give false evidence is.. admissible evidence against such a party, it being an admission by conduct that the party has a bad case. Vide Cockburn C. J. in Moriarty v. London Chatham and Dover Ry. Co. L. R. 5 Q. B. p. 314 at p. 319. if you can show that a plaintiff has been suborning false testimony and bas endeavoured to have recourse to perjury, it is strong evidence that he knew perfectly well his Camac was an unrighteous one’. Vide illustration & to section 8 of the Indian Evidence Act.

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[ Vol.

document or witnesses, would then become useless, if that evidence had not been announced before 529 After a reply is filed by the defendant, the plaintiff has to give a list of his evidence i. e. documents or witnesses (Yaj. II. 7). The meaning briefly is as follows: If he does not do so, proceeds with the trial and does not call all necessary witnesses or produce all documents and the case is almost finished, but judgment is not pronounced, even then he would not be allowed to produce fresh evidence at that late stage. For if fresh evidence not previously disclosed were allowed to be given at that late stage, it would cause surprise to the defendant, who would then demand time for adducing evidence in rebuttal and then the plaintiff may again cite further evidence and this process is in danger of being carried on ad infinitum. If however witnesses were already cited but all were not examined (e. g. if ten witnesses were mentioned and only three examined) and the plaintiff found that the evidence of the few witnesses examined for him is contradictory or hostile, then he may be allowed to produce even at a late stage the remaining witnesses ( who may be seven i. e, double the number of those already examined or who may be more respectable or purer in character ). This proposition is contained in Yaj. II. 80 on which the Mitakṣarā remarks that even if witnesses are not mentioned in a list, but before judgment is pronounced other more reliable or respectable witnesses or double in number (and of the same status as ) of those examined are available, they should be examined by the court even at a late stage. The rule is that as long as witnesses are available resort to ordeals should not be had. Yāj. II. 80 also has given rise to various interpretations. Vide Mit. and Aparārka on Yaj. IL 80, Sm. C. II. p. 94, V. P. p. 130-134. The Mit. thinks that the verse applies where the plaintiff or the party on whom lies the burden of proving a positive proposition finds that the witnesses pro duced by him are hostile or contradictory and that in such a case he may be allowed to cite other more respectable or more numerous witnesses to prove his proposition and to show that the first set of witnesses is false, while Apararka holds that the verge says that when the party who has to prove his

529, far from ang app na para entre era guaranan # 1 # WTET I. 62. raforma does not mean foruta, but ifua (as , 9. p. 8 says ) lit. washed out, cleansed (carried far). For detailed explanation of this Vorso vido my notes to P. H. pp. 78-80. The Madabaratna introducos Nār, 1. 62 with the words. ‘we arranaguraTITUITRATA: CITET: 1’.

1:

Late production of witnesses

$51

case oites witnesses which the opponent feels are falso, tha opponent may produce more respectable or more numerous witnesses to depuse to the contrary and he would thus provo the first set to be false. Aparārka relies on Kāt. (408) for this proposition $30. It may be said that Aparārka’s interpretation appears more natural. V. P. (p. 134 ) accepts Kātyāyana, but Bays that the interpretation of the Mit. ( of Yaj. II. 80 ) is correct.’ Whatever view is accepted it leads to this that one set of witnesses not only may prove the truth of a party’s case but also establish that another set of that party’s witnesses are guilty of perjury.

Yaj. II. 82 provides that if a witness, having promised with other witnesses to depose to a state of things, denies at the time of his examination that he saw the matter in dispute, he should be fined eight times the amount that a defeated litigant would have to pay and a brāhmaṇa witness similarly guilty if unable to pay may be banished (or his house should be razed to the ground). Nār. IV. 197 says that such a person is worse than a false witness. Manu VIII. 107, Yāj. II. 76, and Kāt. ( 405 ) pres cribe that if a person who has witnessed a transaction does not depose (1. e. remains silent) about it, though not suffering from disease or some other calamity, he should be made (after waiting for three fortnights) to pay the amount of the debt or other matter in dispute and also one-tenth thereof as fine to the king.

After the witnesses have deposed the chief justice and sablıyas have to consider the depositions of witnesses ( as Kat. 340 provides ) $31, The Court has to find out which set of wit nesses are to be believed and what witnesses are perjured. Perjury entailed, according to dharmaśāstra works, both secular and other-worldly consequences. Ap. Dh. S. (II. 11.29. 8-9) states: ‘When a witness deposes falsely the king should fine him and, in addition, the witness incurs hell after death’ and Gaut. provides (XIII: 7 and 23), ‘a witness telling the truth goes to heaven, but falls into hell if he does the reverse and when he deposes falsely he is to be censured and fined’. Manu VUI. 118 states that witnesses depose falsely through covetousness,

• 530. *** A refuelitar E merat TT WITHOUT m ori hiru gatuar gur 13: FINIRETOT: TENT. 408 q. by mouef p. 679,

19; *.p: 935, far. II. 94, 14. 4. p. 134.

531.’ ‘#refa wifi vrut *: ad T. 340 q. by frut.. on TT. II, 80, p. 675, 19. 1, p. 331.352

I Vol

wrong Ideas, fear, friendship, sexual passion, wrath, ignorance and minority and prescribes (VII. 120-122) varying finos for. perjury arising from these several causes. Bļ. (S. B, E. vol. 33 p. 301 v. 21) regards 532 a corrupt judge, a perjured witness and the murderer of a brahmaṇa as equally sinful. Yaj. II. 81 and Kat. (407) prescribe 533 that the litigant who procures perjured evidence and the witnesses guilty of perjury should each be separately fined double the amount of the fine prescribed for defeat in various disputes and a brāhmana (guilty of doing the same) should be banished from the country 534 (but not fined). But when a person (of any of the three castes other than brāh mana) is frequently guilty of perjury he should be fined and given physical punishment (as cutting the tongue or death) and a similarly guilty brāhmaṇa should be fined and banished (or degraded by being carried naked through the streets or deprived of his house ). The Mit. on Yaj. II. 81 says that when Manu prescribes (VIII. 380) that a brāhmana guilty of a sin is not to be awarded death or corporal punishment and that he is to be banished with all his wealth, he refers to the brāhmaṇa being a first offender and not a confirmed one. Manu VIII. 108 says * where within seven days from deposing in a cause a (serious or painful) disease or fire or the death of a relative befalls a witness, he should be (being held as a false witness owing to these portentous happenings ) made to pay the debt in dispute to the opposite side and a fine to the king.’ The Sm. C. (II. p. 94) explains that this applies to a witness who is the only one on a disputed matter such as a messenger and the king or judge should wait for seven days to see whether any of these calamities befalls that witness and then hold him to be perjured. Kāt. (410) contains 535 a similar rule, but he states that the king should wait one, two or three weeks or up to 45 days according to the value of the matter in dispute and the caste of the deponent. Manu VIII 117 (=Viṣṇu Dh. S. VIII. 40) prescribes that in

..532. FF* FERIE TOUT FAT: FUT: I. q. by 14. H. p. 135. . . 53३. पेन कार्यस्थ लोभेन निर्विवाहमाक्षिणः। पहीता तस्य सर्वस्वं कुतिकि.

# FRUT. 407 g. by T p. 672, Fafag. II. p. 93.

$34, The Anre explains tuta in 9. II, 82 as follows ‘fiturari समीकरणग्रहमानिर्वासनलक्षणं विषपाहसारेण प्रग्यम् । इतरेषां स्वगुणपण.

I forgrenranno orore**TTI may “.’ Vide fare on gr. II. 81 for three meanings of fama.

535. ETT autoa Terrent rau riistamiento frame Irene a ranan T. 410 q. by F. R. p. 249.

When false evidence was not conriemned

353

perjures

the suit haddle should helished that,

set aside for the

whatever lawsuit it is established that witnesses perjured themselves, the judge should hear it again (from the beginning) or if the suit has ended he should set aside the decision and examine it again.

Gaut. 13. 24-25, Vas. 16. 36, Manu VIII. 104, Yāj. II. 83, Viṣṇu Dh. S. VII. 15 prescribe that a witness may depose falsely in a cause when, if he were to speak the truth, a person of the four yarnas is liable to suffer the sentence of death, Manu VIII. 105-106, Vāj. II. 83. Vispu Dh. S. VIII. 16 prescribe that as a penance for the falsehood a witness of the three higher castes may offer three oblations of boiled rice to the goddess of speech (Sarasvati) or he may offer into fire clarified butter with the mantras called Kūṣmānda (Vaj. S. XX. 14-16 or Tai A. X. 3-5), or with the three verses beginning with ‘yaddevā deyahedanam’ or with the verse sacred to Varupa (viz. Rg, I.. 24. 15, ‘uduttamam varupa’) or with three verses of which waters’ are the deity (Rg. X. 9.1-3. apo hi stha )’. Vispu Dh. S. VIII. 17 adds that a sūdra guilty of perjury in the above case may by way of expiation feed ten cows for one day. It is strange that the dharmaśāstra works should permit perjury to save a culprit from being sentenced to death. Probably popular sentiment of old standing allowing the speak ing of falsehood in certain cases was responsible for this. In the Mahābhārata frequent reference is made to the permission to speak untruth in ordinary life when one’s own life or another’s life is in imminent danger. Vide Santi 536 45. 35, 109. 19. It is stated in Santi 165. 30 that speaking falsely is not a sin in five cases viz. in jest, to women, at the time of (i.e. in bringing about) a marriage, for the preservation of great wealth and for one’s life. Vas. 16. 36 mentions those five occasions somewhat differently. Vide Manu VIII. 112 also for a similar rule. But bo old a sage as Gaut. ( 23. 29) implies that he disapproves of this sentiment 537, when he states, according to some falsehood entails no fault (i. e. no expiation need be performed) in (bringing about or breaking promises made at)

536. 2014rOTSER WITVATART AT TFT I ged sig en n turg

IFE 34. 25; + ÁO THE PERFECT * wig rau TEFTESI A TU TATT? narroquial Taala TT 165. 30; SEIT a potom

ETTI PORT Oahagi a rgar

E 16. 36. In ne 82. 16 we have the verse in eto, as ‘root tu r !

537. Fragmente videti ESERT 17. 23. 29.

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[Vol.

marriage, in sexual intercourse, in jest and in giving relief to one distressed’. Vide Gr. R. pp. 507-508 quoting Harita Dharmasūtra on the same subject and mentioning four kinds of falsehood such as that by a witness, that in transactions of sale&c.

Nār. (IV. 235-236 ) states that when through 538 the caren lessness of the creditor (who dies ) there is no document nor witness to prove a dabt and the defendant denies it, then one of three methods (of proof) may be resorted to, viz. codanā pratikūlam ( Cunning the debtor each time to repay ), yuldtilega (putting forth arguments) and sapathu (special oaths and ordeals)538. Kat. (233 q. by Sm. C. IL. p. 52 and Par. M. III. 91) has a similar verse. Yukti according to Nārada IV. 238 means $39 * the creditor should follow ( the debtor) by arguments and by himself remembering and by reminding the debtor of the time, the place, the relation (subsisting between the two)’. Others. interpret yukti differently, that is, it means ’logical reasoning Kāt. (214) defines 540 ‘yukti’ as ’the ascertainment or know ledge of a linya’ (i. e. a sign that leads on to an inference ).

538. प्रमादादनिनो यत्र न स्यालेसप न साक्षिणः । अर्थ चापहते वादी सत्रोक्तनिधिो विधिः ॥ चोदना प्रतिकालं च युक्तिले शस्तथैव च तृतीयः शपथः प्रोक्तस्तैरनं साधयेत् क्रमात् ।। भभीक्ष्णं चोप्रमानो यः प्रतिहम्पाल तद्वचः । विश्वतुः पञ्चकृत्यो वा परतोध सादापयेत् ॥ भारद IV. 235-237; आर्थनास्यधितो यस्तु विधात न प्रयोजयेत् । त्रिचतुःपञ्चकृत्यो वा परत स्तरणीभवेत् । कास्या. 386 q. by य. प्र. p. 168, which explains भारद as ‘चोदनाया धनदानादिविषयकोरणाया अप्रतिकालोऽप्रतिषेधः । सोषि यद्ययमस्य अणादिसम्बन्धी न स्याद्याश्यमान एन निराकुविनिराकरणावस्त्यस्यानेन सम्बन्ध इत्यापतिविधयाऽनु. मानविधया ऋणादिसम्बन्धं साधयन भवति प्रमाणम् ,

538a. The printed text of Nar, IV. 236 reads चोदना प्रतिकालं च as sepa rate words, The Sm. C. II, p. 52 explains that as meaning ‘pressing or urging the debtor three, four or five times in the presence of third persons without the debtor protesting against the demand’. The Madanaratna and V. P. p. 168 appear to read’ चोदनाप्रतिकालश्च (equal to चोदना+अप्रतिकाल) and interpret ‘if there is no denial or protest (by the debtor) when the cre ditor frequently demands the debt, then the court may presume that he is a debtor’. The Madanaratna explains ‘चोदनापतिकालः बहुकरयो धनं मे देहीति प्रेरणाया अप्रतिकाला अनिराकरणम्. '

539. चोदनापतियाते तु युक्तिलेशैस्समन्धियात् । देशकालार्थसम्बन्धपरिमाणक्रिया दिभिः ॥ नारद IV. 2383; स्मृति. I. p. 52 explains पुक्तिलेश as ‘अहमि.

देशे अमुस्मिन् काले अचमार्थसंपन्न पत्परिणमेत् तस्कर्मार्थपूर्ण ग्रहीतं स्वयेस्पादित वितीयोपायः।

540. लिङ्गोदेशस्त पुक्ति स्वाहिण्यानीव विषादयः । कारपा. (214) quoted by परा. मा. II.91, स्पषवारसार p. 43, ग्य. म. p. 167 which explains लिहारय निद स्वायम्पभिषारिण उल्काहत्तस्यादेः उद्देशो निक्षपातेन पाभिदतापमानमः

II)

Circumstantial evidence

355

It is stated by Bphaspati that anumāna ( inference 541 or pre sumption ), as a means of deciding a law suit, is of three kinde, but it is inferior to witnesses ( vide note 433 above). Vyāga (q. by Sm. C. II. p. 95) states that anumāna is the same as hetu and tarka. V. P: (p. 167) remarks that (long continued) possession and the frequent urging by the creditor both lead to the inference of title and the taking of a loan respectively and are therefore to be comprehended under yukli according to the definition of Kātyāyana. Yet by popular usage yukli is res tricted to presumptions arising from certain circumstances on the analogy of the maxim of ‘goballvarda’ explained below under steya’. Yukti therefore means circumstantial evidence from which an inference may be drawn about a fact in issue in a judical poceeding. Ap. Dh. 542 S. II. 11. 29. 6 says that in case of doubt (judges ) should decide from signs (i. e. by inference ) or divine proof ( ordeals). Vas. 19. 39 mentions the view of some sages that one who is found armed or wounded or in possession of thë booty (stolen ) may be declared to be ( the thief or offender). Manu IX. 270 (=Matsya 227.166 ) requires the just king not to condemn to death one accused of theft unless his guilt is proved as certain by proof that the accused had in his possession the articles stolen and tools for theft (for house-breaking). “An adulterer is proved 513 to be so by being caught in such acts as playing with the hair of another’s wife, an incendiary by being caught with a firebrand in his hand ( near the house set on fira), a murderer by being found ( near the murdered man) armed and a thief when caught with some of the articles stolen in his possession -Bay Saṅkba-Likhita 544

541. HORAT * Faut araha 4 by 077. . III. p. 87; साक्षिलेखपानुमानं तु मानुषी त्रिविधा क्रिया। घटाया धर्मजान्ता च देवी नवविधा स्मृता । वृहस्पति १. by स्मृतिच. II. p. 50, ध्यत्र. भि. p. 73 and मदनरत्न (ms) which latter remarks’ya gunfāsitSTAAFARETTE !!: 54. . D 73 quotes UFFTê as gigate a traw and explains gīmi: #BTE SCOATSET FRETET I मा कम शिलेख गदिकमायभिचारादनमापयति, अनुपपद्यमाना था कल्पयतीत्यनुमान द्विविधमिति मुक्तिरेचोक्ता .

542. Ele taia raiera i 314. t. II. 11. 29. 6.

543. ATTORISTA EDENIETTESITE 38Tyfirsīma: $anonica miqy Bfario: q u e q. by TT. AT. III. 119, feia. II. p 95. 1.4. p. 168.

544. Compare sec, 114 of the Indian Evidence Act which lays down how a court is to draw presumptions of fact from the common course of natural events in relation to the facts of the case before it, illustration (a) ’to which is the court may presume that a man who is in possession of stolen goods soon after the theft is either tbe thief or has received the goods know lag them to be stolen, unless he can account for bis possession’.

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Kaut. 545 IV. 12 and Yaj. II. 283 similarly say that adultery may be inferred from ( the man and woman) being caught in the act of dalliance with the hair or from the signe left (such as marks of nails or teeth on the lips, check &c.) after carnal enjoyment or from the admission of the woman concerned (or of both ). Nār. (IV. 172-175) declares that there are six kinds of disputes in which the indications (or circumstances) themselves serve as witnesses and lead to a conclusion without the testimony of witnesses viz. one found with a fire-brand in his hand (near the scene of arson ) may be inferred to be the incendiary, one armed 546 ( found near the scene of murder ) as the murderer, one caught dallying with the hair of another’s wife as an adulterer, one with a spade in his hand near a breached embankment as the person who caused the breach in it and one armed with an axe as the feller of a tree, a person guilty of an assault may be inferred to be go from visible signs (such as his club or sword being smeared with blood). But Nār. IV. 176 gives the warning that in such cases it is necessary to be careful in arriving at a conclusion, since a person in order to bring into trouble another whom he hates may create marks of injury on himself. Kāt. (337-338 ) further provides 557 that where one litigant proves as against his opponent (such as a debtor) either the offer of a bribe, or the effacing of the meang of recognition (such as effacing one’s signature on a document) or holding out tempta tions (to the witnesses or sabhyas ) or the concealment of his wealth (to avoid its being attached in execution of a decree ), there the original claim (such as a debt) may be presumed to be proved oven if he (the opponent) denies his liability.

545. stranti FETE I FITrg Itinerari TT: 77 HIETISIEF IV, 12.

546. Best on ‘Evidence’ (12th ed. 1922) sec. 294 cites as an illuss tration of circumstantial evidence the fact of one armed being regarded as the probable murderer in certain cases, Compare Wills on ‘Circumstantial evidence’ (7th ed. of 1937 English and Indian combined) p. 145 “Amongst the most forcible of presumptive indications may be mentioned all attempts to pollute or disturb the current of truth or justice, or to prevent a fair or impartial trial by codeavours to intimidate, subora, bribe or otherwise tamper with the prosecutor, or the witnesses or the officers of justice, or by the concealment, suppression, destruction, alteration of any article of real evidence’.

547. PTÁ SITT HEATHROT ritrat Turfowa पका । एषामन्यतमो यत्र धादिना भाषितो भवेत् । मूलक्रिया तु तन्त्र स्थान भावित पादित FAKTI 71. (337-338) q. by 10, #. p. 169, # p. 188 (only the first). which reads विचापमपमर.

HII

Dangers of circumstantial evidence

357

Judges often repeat from the Bench the words ’ witnesses may lie, but circumstances cannot’. But this 80-called maxim is often dangerous. Circumstantial evidence leads to conclusionis that are in several instances false. The ancient Hindu lawyers were quite aware of the dangers of drawing inferences from circumstantial evidence. Nārada’s warning has already been mentioned (p. 356). Kauṭ. 548 ( in IV. 8 ) remarks: ’even one not a thief may by chance be on the way by which thieves pass and one meeting thieves is seen to be apprehended as a thief because he is mixed up in dress, arms and articles carried with the thieves or is found near the articles stolen, just as Mandavya though not a thief declared himself to be a thief for fear of being subjected to torture; therefore (the king ) should punish one only after thorough examination’. Māndavya’s is a leading case on the danger of relying on purely circumstantial evidence. Bșhaspati 549 also remarks that’a decision should not be arrived at merely by relying on the words of texts ; for, if judges come to a conclusion without applying careful reasoning, loss of dharma results; a thief is held to be not a thief and a good man is held to be a wicked one in a judical proceeding ( not arrived at with proper reasoning). The sage Māndavya was held to be a thief on account of the decision being arrived at without proper reasoning *550.

The 9th Act of the Mṛcchakatika is a standing literary condemnation of conclusions about guilt drawn from circun stantial evidence and of how judicial procedure is vitiated (of vyavahāra-duṣtatā, as the author says in Act I).

Nār. IV. 289 provides that when even circumstantial evi dence and presumptions therefrom do not enable the court to arrive at a decision, the judge should press the litigant with

548. Sy guita airavif au HATTE

IOGAIAK रखमाणो दृष्टा, चोरभाण्डस्योपचासेन वा पथा हि माण्डया कर्मशभपादचोरशोरोमीति

TI FATAAHTOI TAURUTIFT IV. 8.

549. केवलं मानमाधिस्य र कर्तव्यो हि निर्णयः । युक्तिहीभविचारे हि धर्महानिः artigiaiseiti firmatura TEFTAT: I gf fra fuitor #TORTOR Tat 911 # .q. by ra. 9. pp. 13-14, TTT. AT. III. p. 39. The fila . II. p. 25 quotes a verse of 4 (I. 42)’ TIRUCTII VITR TratorTVITITI want wrot get #jurugt uta: 1’. Vide note 332 above for other refereoces to ATER. ‘. 550. Wills’ work Principles of circumstantial evidence (English and Indian ed. combined, 7th ed. pp. 39-48) contains a lucid exposition of the value and defects of purely circumstantial evidence.

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109-114, Nār. 17.247 when there whould decide by won Yaj.

kapathas (oaths and ordeals ) according to the place, time and strength of the litigant, such as fire, water, his spiritual merit and others. Manu VIII. 109 also says that when there are no witnesses the truth would have to be found out by sapathas. Divine proof is called daivikikriyā or samayakriya (Viṣṇu Dh. 8. IX. 1). Some writers make a distinction between sapathas ( special oaths) and ordeals ( divyas ), others (like Manu VIII.. 109-114, Nār. IV. 239 ) do not. For example, the Vivādacandra quotes Nār. IV. 247 when there is no witness in a dispute between litigants, there the judge should decide by means of ordeals 551 and various sapathas’. Acc. to the Mit. (on Yaj. II. 96 ) and S. V. (p. 106 ) both special oaths and ordeals are divine proof ( divya pramūna), but in disputes of small value sapathas ( oaths) were generally employed, while ordeals were resorted to only in serious disputes or crimes. The Mit.(on Yāj. II. 96), the V. May. p. 46 and V. P. (p. 170) state that ordeals are those that generally end in immediate decision of the dispute, while sap ithas take time for decision ( because after the oath the king has to wait for a week or more to see whether a calamity befalls the person taking the special oath). Vyasa -quoted by Sm. C. II. p. 96 employs the word sapathas for both

special oaths (taken as to one’s ‘satya’) and ordeals like balance. Saṅkha-Likhita state that divine proofs are the balance, eating poison, entering fire, holding & piece of (hot) iron, offering one’s merit acquired by sacrifices and charity and the king should make him undergo other sapathas 552 Bṛhaspati says that where documents or witnesses do not lead to a certain decision or wbere inference from circumstantial evidence also is confusing, there the matter is to be decided by divine proof 553.

Special oaths were taken not only in judicial proceedings, but also in ordinary dealings to clinch one’s assertion or to clear one’s character or reputation. Nār. (IV. 243-244) refers to

551. 1 1 o fun forures are propre at first INTE ATTÙY go frad: # WRĘ IV. 247 q. by fie p. 112 and pr. Tr. p. 106. Bratore:

Tūr: MTI FRUTTE: * in P . II. 96.

552. तत्र दिग्यं माम दुलाधारणं विषाशनमनिमवेशो लोहधारणमिष्टापूर्तमदाममन्यांश UUTET TON N 9. in 17. 47. III. p. 151, Faro II. p. 96, sunt p.694. The cur. नि. p. 140 reads पिचाशनमा प्रवेशो and टापूर्तापस्यपदान..

553. लिखिते साक्षिवादेपसबिग्निपत्र जापते । अद्यमानेच सम्मान सम विग्य

• . g. by . #T. p. 333, vor p. 629, fim p.. 111 (reads Wat as the last word).

III)

Ancient examples of oaths

359

the special oaths taken for clearing themselves by Vasistha when he was suspected to be a yātudhāna (a demon or sorcerer) and by the seven sages together with Indra, who (Bages) were suspected to have stolen lotus fibres (by each among them 554 ). Manu VIIL 110 also speaks of the sapatha taken by Vasiṣtha before Sudās, son of Pijavana ( when the sage was charged by Viśvāmitra with the offence of devouring his own hundred sons). Nārada (IV. 243) refers to Rg. VII. 104. 15-16 in the first of which Vasiṣtha made the imprecation, sss “May I die this very day if I am a yātudhūna or if I injured the life of a human being! May he who falsely addressed me as yātudhāna be deprived of his ten valiant sons’! Manu VIII. 110 also refers to the same hymn 555, Manu VIII. 113(=Nār. IV.199) referred to above (p. 343) states the various oaths to be taken or adıninistered to the parties according to their respective castes. Manu VIII. 114 further pro vides for special oaths for litigants by touching the heads of their sons and wives. That sapatha taken by satya was common in very ancient times appears from Pān. V. 4. 66 (satyād-aśapathe ).557 Nār. IV. 249 prescribes that in charges of grave offences ordeals may be resorted to and sapathas in matters of small moment. Nār. IV. 248 mentions’ truth, horses and arms, kine, grains and gold, the feet of (the images of) gods and the ancestors, acts of charity and good deeds ( suksta) are to be employed in sapathas as declared by Manu.’ Bṛhaspati 558 enumerates the special

554. In the Anusā sanaparva 95. 13-35 it is narrated that each of the seven sages suspected the others of the theft of lotus-fibres and that they cleared themselves by taking oaths. Todra is said to have taken an oath when he was the subject of suspicion in relation to Ahalyā. Vide Best on ‘Evidence’ (12th ed, of 1922 ) pp. 42-45 sections 56-59 for the employment of oaths in all ancient societies in courts 29 well as outside, for the foros and sanctions of oaths and for the arguments urged against their use,

555. Hur blir die Traurat EA Targac TEATT I BAUT #Terat भिर्षिया यो मा मोपं यातयामेस्याहH. VII. 104. 15. Theहदेवता (VI. 33-34) refers to the story thus: vacanta FU ***t « artrosi T: TRINICHT शपते विलपनि ॥ ते पुत्रशले तस्मिन् बसिडो खितस्तदा । रक्षोभूतेन शापातु सदा. सेनेति सुतिः

556. The story of king Kalmagapada cursed to be a demon by Sakti, eldest son of Vasiṣtha, who then devoured one hundred sons of Vasistha is narrated in Adiparva 176 (cr. ed. 166).

557. On Frerated, the main saya: PUPTSTRIATHT: 1 re पधेच ते सत्येन शापविणमिति । सस्था प्रतिषः । सस्माकरोति भाण्ड पणिक। Ha r i tretragat 1999 170 EUR Tror: 1

558. FRTUFnot ateri preparare quartiere Tiga : 1 T:

# Tila tau. II. p. 96, 4. ar III. p. 151.

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oaths mentioned by Manu and Nār. and adds that they are to be employed in small matters ( civil and, criminal). The Viṣṇu Dh. 8. (IX. 5-10) prescribes that when the litigant is a sūdra and the dispute relates to a matter worth less than one, two, three, four or five kronalas he should swear respectively by holding in his hand dūrvā grass, segame, silver, gold or earth taken from ploughed land, that (IX, 11-12 ) beyond that value various ordeals may be offered and that oaths with similar objects in the hands may be offered to vaisyas, ksatriyas and brāhmaṇas when the value of the subject matter is double, three times or four times of the value in the case of a sūdra. Manu VIII. 111 gives the admonition that a wise man should not make a false oath, because by so doing he incurs loss (of reputation) here and after death (by falling into Hell). Yāj. II. 236 prescribes a fine of 100 panas for one who takes an improper or profane oath 559

The benefit of doubt is to be given, according to modern ideas on the administration of justice, to the accused. This principle was put forward several centuries before Christ by Ap. Dh, S. II. 5. 11.2 ’the king should not punish when there is a doubt’ (about a man’s guilt 560 ).

5:59. The Mit. explains ! TAK AT MArrraient podo 560. * pode saia iur. 8. g. 11.’. 11. 2.

!