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VERSE 8.69

Section XII (A) - Evidence

अनुभावी तु यः कश्चित् कुर्यात् साक्ष्यं विवादिनाम् ।
अन्तर्वेश्मन्यरण्ये वा शरीरस्यापि चात्यये ॥६९॥

anubhāvī tu yaḥ kaścit kuryāt sākṣyaṃ vivādinām |
antarveśmanyaraṇye vā śarīrasyāpi cātyaye ||69||

In the case of anything done in the interior of a house, or in a forest, or in the case of injury to the body, — any person who may be cognisant of the facts may give evidence on behalf of the parties to the suit. — (69)

Medhātithi’s commentary (manubhāṣya):

‘In the interior of a house,’ — any sudden act that may be committed, in the shape of defamation or assault or incest or theft or other crimes; — in the forest — if any of the said crimes are committed; — or when the body is hurt by robbers or by other similar persons, and property is robbed; — or when some one has stood security for a debt, but there are no witnesses to it; or even though there were any, they could not wait till the time of the trial; — or when the debt is repaid in private; — in all such cases, any person ‘who may be cognisant of the facts’ — who may have witnessed the transaction in question, — there being no restriction as to caste, or of similarity of standing and the like.

The phrase ‘in the interior of a house’ stands lor a secluded place in general; so that uninhabited temples and such places also become included. The mention of the ‘forest’ also indicates the same thing.

Others have explained the clause ‘śarīrasyāpi vātyaye’ to mean ‘when the entire structure of the case is going to fall through, any man can be cited as a witness’; i.e., when a case having been instituted is going to fall through, and there is no chance Of its being re-instituted, then there should be no restriction as to the caste, or sex, or age, or rank or relationship and the like. This is what is further explained in the following verse. — (69)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 671), which adds that ‘anubhāvi’ means an eye-witness, one who has actually seen the occurrence; — in Smṛtitattva (II, p. 214); — in Smṛticandrikā (Vyavahāra, p. 181), which explains’ ‘anubhāvi’ as ‘one conversant with the facts of the case’; — in Kṛtyakalpataru (3a), which explains ‘anubhāvi’ as ‘one who has had anubhāva, experience’; — and in ‘Vīramitrodaya (Vyavahāra, 51a), which has the same explanation of ‘anubhāvi.’

Comparative notes by various authors:

Vaśiṣṭha (16.29). — ‘Men of any caste may give evidence regarding men of any caste.’

Yājñavalkya (2.69). — (See under 68.)

VERSE 8.70

Section XII (A) - Evidence

स्त्रियाऽप्यसम्भावे कार्यं बालेन स्थविरेण वा ।
शिष्येण बन्धुना वाऽपि दासेन भृतकेन वा ॥७०॥

striyā'pyasambhāve kāryaṃ bālena sthavireṇa vā |
śiṣyeṇa bandhunā vā'pi dāsena bhṛtakena vā ||70||

In the event of (proper witnesses) not forthcoming, evidence may be given by a woman, by a minor, by an aged person, by a pupil, by a relative, by a slave, or by a servant. — (70)

Medhātithi’s commentary (manubhāṣya):

The mention of ‘woman’ thus permits departure from the rule laying down the sex of the witness; that of ‘minor’ and ‘aged person’ that prescribing his age; and that of ‘pupil’ makes an exception in favour of relations in general; — this being mentioned only by way of illustration, indicating the admissibility of persons similarly circumstanced; hence the restrictions regarding caste or position also are not to be strictly observed. But dear friends, or enemies or persons of proved dishonesty.are not admissible in any case; nor any one in whom there is suspicion of the presence of motives for telling a lie, or those who have been found to be unreliable. Those however who have been found to be only slightly unreliable, but otherwise endowed with superior qualifications, may, in some cases, serve as witnesses. On this point we have the following assertion — ‘There may be one man among a thousand who would not tell a lie, under the influence of friendship or enmity or some other interested motive.’

In the event of other witnesses not forthcoming, even a woman ‘may give evidence,’ — this clause being construed from the preceding verse.

‘Pupil’ — indicates tutorial and sacerdotal relationship in general.

‘Relative’ — this term makes an exception in favour of what cannot be avoided; the sense being that even though the man may bear some relationship to the parties, if he is not very nearly related, he may be admitted. Hence the cousin, the uncle, the brother-in-law and such other near relatives should not he made witnesses, the name ‘relative’ being, in ordinary usage, applicable to these persons.

‘Slave’ — indicates the relation of ownership in general; that is why the master, the teacher and the priest are not to be made witnesses in any kind of suit. The term ‘slave’ stands for the born slave and ‘servant’ for one who serves on wages.

“The minor and others have been excluded on the ground of incapacity, — they are incapable of realising what is evidence, because of their mind being fickle and undeveloped; so that any exception in their favour, oven in connection with emergencies, cannot he right. For certainly even in an emergency they do not acquire the right capacity. In fact, such an exception would he similar to the case where a man having said ‘fresh rice shall not he cooked,’ adds ‘but if there is no fire it shall be cooked?’

There is no force in this objection; as it is in view of these considerations that we have the next verse. — (70)

Explanatory notes by Ganganath Jha:

This rule refers to the cases contemplated in the preceding verse (Govindarāja and Kullūka), — ‘to the last of these cases only’ (Nārāyaṇa).

This verse is quoted in Aparārka (p. 671), which adds that the women and others mentioned here to be admissible as witnesses should be understood to be only such as are free from the disqualifications of being prejudiced or wickedly inclined and so forth.

It is quoted in Smṛtitattva (II, p. 214); — in Parāśaramādhava (Vyavahāra, p. 70); — in Smṛticandrikā (Vyavahāra, p. 181); — and in Kṛtyakalpataru (32a).

Comparative notes by various authors:

(verses 8.70-72)

Kātyāyana (Aparārka, pp. 670-671). — ‘In cases of disobedience of the royal edict, of adultery, of violent crimes, of theft and of assaults, — one should not be particular regarding the admissibility of witnesses. In the case of occurrences within a house, or at night, or outside the village, if a suit is brought forward, the King shall not be very particular regarding the admissibility of witnesses.’

Uśanas (Aparārka, pp. 670-671). — ‘A slave, a blind man, a deaf man, women, children, very aged persons and others, — if they are not connected with the parties — may he witnesses in the case of crimes of violence. All those persons who have been declared to he incompetent witnesses may he admitted as witnesses according to the gravity of the case. But even so a child, or a single person, or a woman, or forger, or a relative or an enemy should not be admitted; as they would he found to depose falsely; the child would do it through ignorance, the woman through inherent untruthfulness, the forger by reason of his being a habitual wrong-doer, the relations through their affection, and the enemy as a means of revenge.’

Gautama (13.9). — ‘There can be no objection against any witness in a case of criminal hurt.’

Viṣṇu (8.6). — ‘In cases of theft, of violence, abuse and assault, and of adultery, the competence of witnesses should not be examined too strictly.’

Yājñavalkya (2.72). — ‘All persons may be witnesses in cases of adultery, of theft, of assault and of violent crimes.’

Nārada (1.189). — ‘In cases of heinous crime, or robbery, or adultery, or one of the two kinds of assault, he should not enquire too strictly into the character of the witnesses.’

Nārada (1.188). — ‘Slaves, impostors and other incompetent witnesses enunciated shall nevertheless be witnesses in suits of especially grave character.’

VERSE 8.71

Section XII (A) - Evidence

बालवृद्धातुराणां च साक्ष्येषु वदतां मृषा ।
जानीयादस्थिरां वाचमुत्सिक्तमनसां तथा ॥७१॥

bālavṛddhāturāṇāṃ ca sākṣyeṣu vadatāṃ mṛṣā |
jānīyādasthirāṃ vācamutsiktamanasāṃ tathā ||71||

In the event of minors, aged and diseased persons deposing falsely in their evidence, the Judge should make up his mind regarding the speech being irregular; so also in the case of men with disordered minds. — (71)

Medhātithi’s commentary (manubhāṣya):

The meaning of this is as follows: —

The present verse is not meant to admit such minors and others as are either in absolute bondage or with disordered minds, — and hence entirely inadmissible. If it did so, it would be laying down something wholly new. The persons indicated by this as admissible are, in fact, those who are capable of understanding things, but whose minds are not quite steady. And what is meant is that the words of such persons should be fully examined with the help of reasonings, and they should be admitted as reliable only if it is found that they speak coherently and are not tainted with any suspicious signs of corruption. This is what is meant by the words — In the event of their deposing falsely the judge should make up his mind regarding the speech being irregular. That is to say, the falsity of the deposition should be deduced from its irregularity; — this ‘irregularity’ consisting in the incoherence of the statements and the absence of explicitness and clear utterance.

All this is meant to indicate the condition of the minor and other persons; the meaning being that those who have been reduced, either by age or by disease, to a condition in which desiring to say one thing they utter something quite different, and that also indistinctly, should not be made witnesses. This ground for inadmissibility as witness can always be ascertained by direct perception; the other grounds, — such as the presence of love or hatred or avarice and so forth, — can be found out only by investigation; as has been already declared.

‘So also in the cate of men with disordered minds,’ — i.e., those who are inherently of unsound mind. — (71)

Explanatory notes by Ganganath Jha:

Nandana is misrepresented by Hopkins.

This verse is quoted in Smṛticandrikā (Vyavahāra, p. 196), which explains ‘Utsiktamanasām’ as ‘impatient’; — and in Kṛtyakalpataru (32b).

Comparative notes by various authors:

(verses 8.70-72)

See Comparative notes for Verse 8.70.

VERSE 8.72

Section XII (A) - Evidence

साहसेषु च सर्वेषु स्तेयसङ्ग्रहणेषु च ।
वाग्दण्डयोश्च पारुष्ये न परीक्षेत साक्षिणः ॥७२॥

sāhaseṣu ca sarveṣu steyasaṅgrahaṇeṣu ca |
vāgdaṇḍayośca pāruṣye na parīkṣeta sākṣiṇaḥ ||72||

In all cases of violence, of theft and adultery, and of assault, verbal and corporeal, — he shall not investigate the character of the witnesses. — (72)

Medhātithi’s commentary (manubhāṣya):

‘Sāhasa,’ ‘violence’; — ‘taha’ means ‘force’; and what is done by force is ‘sāhasa,’ ‘violence’; whenever an improper act is done by a man, either on the strength of his being the king’s favourite, or of his having a large following, or of his own bodily strength, or of the help of some powerful person, — it is called ‘sāhasa,’ ‘violence.’ e.g., the tearing of cloths, the burning by fire, the cutting of the hands, and so forth.

The rest are all well known.

In such oases the character of the witnesses need not be investigated; — this precludes the investigation that has been laid down above, under verse 60, et seq.; that investigation, on the other hand, which bears upon doubt regarding the man’s reliability, on account of the presence of love, hatred, avarice and the like, — that must be done. The placing of this limitation upon what is laid down in the text is justified by the consideration that the present treatise is known to have a visible source, in the person of a personal author; as has been explained before. — (72)

Explanatory notes by Ganganath Jha:

This verse is quoted in Kṛtyakalpataru (32a); — and in Vīramitrodaya (Vyavahāra, 50b).

Comparative notes by various authors:

(verses 8.70-72)

See Comparative notes for Verse 8.70.

VERSE 8.73

Section XII (A) - Evidence

बहुत्वं परिगृह्णीयात् साक्षिद्वैधे नराधिपः ।
समेषु तु गुणोत्कृष्टान् गुणिद्वैधे द्विजोत्तमान् ॥७३॥

bahutvaṃ parigṛhṇīyāt sākṣidvaidhe narādhipaḥ |
sameṣu tu guṇotkṛṣṭān guṇidvaidhe dvijottamān ||73||

On a conflict among witnesses, the king shall accept the majority; in the case of equality (of number) those possessed of superior qualifications; and in the case of conflict between equally qualified witnesses, the best among the twice-born. — (73)

Medhātithi’s commentary (manubhāṣya):

In a dispute over the possession of land, eg., when several witnesses have been cited in proof of possession, if some depose to possession by the plaintiff, while others to that of the defendant, — then the king shall accept the statement of the majority.

When the number on both sides are equal, he shall Accept the statement of those ‘possessed of superior qualifications,’ — i.e., of a larger number of qualities, or of a single quality, but in a very large degree, very much to the benefit of mankind.

When there is a conflict between two equally qualified witnesses, preference has to be given to the higher caste.

Lastly, when both sets are equal in all respects, then recourse should he had to ordeals, or some other similar means of discrimination.

‘Accept the majority’ — i.e., accept as true the statement of the majority.

‘Conflict’ — making contradictory statements. — (73)

Explanatory notes by Ganganath Jha:

‘Dvijottamān’ — Brāhmaṇas’ (Govindarāja and Nārāyaṇa; — ‘righteous Brāhmaṇas’ (Kullūka and Raghavānanda).

This verse is quoted in Smṛticandrikā (Vyavahāra, p. 211); — and in Kṛtyakalpataru (32a).

Comparative notes by various authors:

Viṣṇu (8.39). — ‘If there is contradictory evidence, let the King decide by the majority of witnesses; if there is equality in number, by superiority in virtue; if there is parity in virtue, by the evidence of the best among the twice-born.’

Yājñavalkya (2.78, 80). — ‘When there is contradiction, the evidence of the majority should be accepted; when the number of witnesses is equal on both sides, then the evidence of those better qualified should he accepted; when there is contradiction among witnesses equally qualified, the evidence of those should be accepted who are possessed of the best qualifications. Even after the witnesses have deposed, if other witnesses, either better qualified or in larger numbers, come forward to depose to the contrary, the former witnesses should be rejected as false.’

Nārada (1.229). — ‘When there is conflicting evidence, the majority of witnesses decides the matter. If the number of witnesses is equal on both sides, the testimony of those should be accepted as correct whose veracity is not liable to suspicion. If the number of such witnesses is equal on both sides, the testimony of those should be accepted who are possessed of a superior memory.’

Bṛhaspati (7.35). — ‘In a conflict among witnesses, the testimony of the majority should be accepted; when the number is equal on both sides, the testimony of the more virtuous ones; when the virtuous witnesses are divided, the testimony of those specially eminent for the performance of righteous acts; whenever those are divided, the testimony of those endowed with superior memory.’

VERSE 8.74

Section XII (A) - Evidence

समक्षदर्शनात् साक्ष्यं श्रवणाच्चैव सिध्यति ।
तत्र सत्यं ब्रुवन् साक्षी धर्मार्थाभ्यां न हीयते ॥७४॥

samakṣadarśanāt sākṣyaṃ śravaṇāccaiva sidhyati |
tatra satyaṃ bruvan sākṣī dharmārthābhyāṃ na hīyate ||74||

Evidence based upon what is directly seen and is heard is admissible; and a witness, telling the truth in such cases, does not fall off from spiritual merit or worldly prosperity. — (74)

Medhātithi’s commentary (manubhāṣya):

“It has already been said (under 69) that evidence may be given by any person who may be ‘cognisant of the facts of the case’; why then should any inadmissibility be suspected, in view of which it is now said that evidence on the basis of what is seen and heard is admissible?”

Our answer is as follows: — It has been said that the witness shall be warned by the person who he is going to file his suit, saying — ‘you shall be my witness’; so that people might think that if a person has not been so warned, he shall be inadmissible; it is in view of this that the present declaration has been made. The meaning is that if a person happens to be close by when a certain transaction is being gone through and is cognisant of the facts, he is admissible as a witness, even though ho may not have been warned by the parties, saying ‘you will please bear in mind this transaction between us.’

The term ‘directly’ has to be construed with ‘what, is seen’ as also with ‘what is heard’; so that if some one bears of a fact from one person, and from the former some one else hears it, then the person who has heard of it at second hand is not admissible as a witness; as it is only on hearsay, and not on the basis of any direct source of knowledge, that the man would know that ‘this man has committed such and such a crime,’ or that ‘he owes such and such a sum to that man.’

‘What is directly seen’ — means direct knowledge of the facts of the case, bearing upon loan-transactions, assaults and so forth; i.e., when these occurrences are actually wen with the eye; or ‘directly heard’ in the case of verbal assaults, — such as ‘I shall take away your wife,’ and so forth, — and such admissions by the debtor as that ‘I have borrowed such and such a sum from that man,’ and so forth.

Though the root ‘dṛśi,’ ‘to see,’ denotes all forms of apprehension (and as such includes auditory perception also), yet ‘what is heard’ has been mentioned separately for the purpose of filling up the metro. All that is meant is that ‘a person who has a right knowledge of the facts is admissible as a witness’; and the phrase ‘what is seen’ is meant to stand for all valid kinds of knowledge; so that what is known by inference is also regarded as ‘known’; similarly also all trustworthy Revelation, which is an authoritative means of knowledge in regard to imperceptible things also.

The second half of the verse is merely re-iterative, the telling of truth having been already enjoined before, and the fact of the liar losing both spiritual merit and worldly prosperity being already known from other sources of know ledge. — (74)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vyavahāratattva (p. 26); — in Kṛtyakalpataru (27a), which says that ‘samakṣadarśana’ and ‘śravaṇa’ stand for all forms of valid knowledge, hence the meaning is that that man is a witness who possesses a right knowledge of the subject-matter of the enquiry; — and in Vīramitrodaya (Vyavahāra, 44b).

Comparative notes by various authors:

Bodhāyana (1.19.7). — ‘In order to gain the good opinion of men, a witness shall give evidence in accordance with what he has seen or heard.’

Viṣṇu (8.13-14). — ‘The evidence of witnesses is of two kinds — what was seen and what was heard. Witnesses are free from blame if they give true evidence.’

Nārada (1.148). — ‘He should he considered as a witness who has witnessed a deed with his own ears or eyes; with his ears, if he has heard another man speaking; with his eyes, if he has seen something himself.’

Bṛhaspati (7.8-13). — ‘That witness is denominated a messenger who is a respectable man, esteemed and appointed by both parties, and has come near them to listen to the speeches of the plaintiff and the defendant. He is a spontaneous witness who declares that he has witnessed the transaction, after having approached the court of his own accord, while a cause is being heard. That witness who communicates to another man what he has heard, at a time when he is about to go abroad, or is lying on his death-bed, should he considered as an indirect witness. He also is called an indirect witness who repeats, from his own hearing or from hearsay, the previous statements of actual witnesses. He is called a secret witness to whom an affair has been entrusted or communicated by both parties, or who happens to witness the transaction. The King himself, having heard the statements of both the Plaintiff and the Defendant, may act as a witness.’

VERSE 8.75

Section XII (A) - Evidence

साक्षी दृष्टश्रुतादन्यद् विब्रुवन्नार्यसंसदि ।
अवाङ्नरकमभ्येति प्रेत्य स्वर्गाच्च हीयते ॥७५॥

sākṣī dṛṣṭaśrutādanyad vibruvannāryasaṃsadi |
avāṅnarakamabhyeti pretya svargācca hīyate ||75||

A witness asserting, in an assembly of noble men, anything apart from what he has seen and heard, falls downwards into hell after death and becomes shut out from heaven. — (75)

Medhātithi’s commentary (manubhāṣya):

The present verse describes the results accruing to the witness who deposes falsely.

The term ‘seen and heard’ is synonymous with ‘apprehended,’ as has been already explained; ‘apart from this’ is what is not apprehended, or known to him; — if he asserts any such thing, ‘in an assembly of noble men,’ — in the court consisting of honourable persons, — he ‘falls downwards’ — headlong — ‘into hell’ — to a place where he undergoes punishments at the hands of the god Yama; — ‘after death’ — ‘and becomes shut out from heaven,’ — i.e., falls down. That is, even though he may have committed deeds entitling him to go to heaven, yet he becomes shut out from it, by virtue of the more serious nature of the sin of perjury. It is not that the ‘Karma’ calculated to carry him to heaven is destroyed by this sin; since every act is conducive to the fulfilment of its own reward (and does not interfere with that of others), with the sole exception of the Expiatory Rites (which have no results of their own, and only tend to nullify those of the corresponding sinful acts). — (75)

Explanatory notes by Ganganath Jha:

‘Saṃsadi’ — ‘In the Court’ (Medhātithi); — ‘in an assembly of Brāhmaṇas’ (Govindarāja).

‘Svargāt hīyate’ — ‘Falls off from heaven which he may have earned by meritorious acts’ (Medhātithi, Govindarāja, Kullūka and Nandana); — ‘even after passing through hell, he cannot get into heaven’ (Nārāyaṇa).

This verse is quoted in Smṛticandrikā (Vyavahāra, p. 200); — and in Kṛtyakalpataru (38a).

Comparative notes by various authors:

Gautama (13.7). — ‘Heaven is the reward of witnesses, if they speak the truth; in the contrary case, hell.’

Baudhāyana (1.19.14-15). — ‘If the witness rightly recollects the facts of the case, he will receive commendation from the most eminent men; — in the contrary case, he will fall into hell.’

Āpastamba (2.29.9-10) — ‘If he tells an untruth, hell will he his punishment after death; — if he speaks the truth, his reward will be heaven and the approbation of all beings.’

Viṣṇu (8.14). — ‘Witnesses are free from blame, if they give true evidence.’

VERSE 8.76

Section XII (A) - Evidence

यत्रानिबद्धोऽपीक्षेत शृणुयाद् वाऽपि किं चन ।
पृष्टस्तत्रापि तद् ब्रूयाद् यथादृष्टं यथाश्रुतम् ॥७६॥

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