VII. Witnesses
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The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com
p. 299
VII. WITNESSES.
1. 1 A subscribing witness, one caused to be written, a secret witness, one who has been reminded, a member of the family, a messenger, a spontaneous witness, an indirect witness, a stranger who has accidentally witnessed the deed,
2. 2 The king, a chief judge, and the (people of the) village: thus have the twelve kinds of witnesses been declared. I am going to declare precisely in order their respective characteristics.
3. 3 He is called a subscribing witness who enters in a deed his own as well as his father's caste, name, and so forth, and his place of residence.
4. He is termed one caused to be written, who has been distinctly entered in the deed, together with the details of the agreement, by the plaintiff when writing a contract of loan or another (contract).
5. He is called a secret witness who is made to listen to the speeches of the debtor, standing concealed behind a wall, (and relates them) just as they were spoken, (when the debtor tries to deny them.)
6. 6 He is called one reminded who, after having been appointed and invited to be present at a transaction concerning a loan, deposit, purchase, or the like, is repeatedly reminded of it.
7. He is designed as a family witness who is appointed by both parties to witness a deed of partition, gift, or sale, being connected and on good
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terms with both parties, and acquainted with (the rules of) duty.
8. He is denominated a messenger who is a respectable man, esteemed and appointed by both parties, and has come near to listen to the speeches of the plaintiff and defendant.
9. 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.
10. That witness who communicates what he has heard to another man, at a time when he is about to go abroad, or lying on his deathbed, should be considered as an indirect witness.
11. 11 He also is called an indirect witness who repeats, from his own hearing or from hearsay, the previous statements of actual witnesses.
12. 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.
13. The king in person having heard the speeches of plaintiff and defendant, may act as witness if both should quarrel with one another.
14. If after the decision of a suit a fresh trial should take place, the chief judge, together with the assessors, may act as a witness there, but not in any other case.
15. The (people of the) village may no doubt give testimony, even without a special appointment, as to what has been anywhere spoiled or damaged in the boundary line.
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16. 16 There should be nine, seven, five, four, or three witnesses; or two only, if they are learned Brahmans, are proper (to be examined); but let him never examine a single witness.
17. Of subscribing and secret witnesses, there should be two (of each sort); of spontaneous, reminded, family witnesses, and indirect witnesses, there should be three, four, or five (of each sort).
18. A single witness even may furnish valid proof, if he is a messenger, an accountant, one who has accidentally witnessed the transaction, or a king, or chief judge.
19. 19 (A witness) should be exhorted by judges acquainted with law, by speeches extolling veracity and denouncing falsehood.
20. Whatever religious merit has been acquired by thee from the time of thy birth to the time of thy death, all that will be lost by thy telling a falsehood.
21. An iniquitous judge, a false witness, and the slayer of a Brahman are pronounced to be criminal in an equal degree; nor is a killer of an embryo or a destroyer of wealth considered as a greater sinner than they are.
22. Knowing this, a witness should give evidence according to truth.
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23. 23 After putting off his shoes and his turban, he should stretch out his right hand, and declare the truth, after taking in his hands gold, cow-dung, or blades of sacred grass.
24. 24 When witnesses summoned (in a suit) are faulty, the opponent may expose them. But a litigant trying to cast a blemish on faultless witnesses is liable to pay a fine to the same amount (as the property in dispute).
25. 25 Whatever faults there may be in a document or in witnesses, they should be exposed at the time of the trial; those cannot be used as valid objections which are declared afterwards.
26. 26 He whose documents or witnesses are objected to in a suit, cannot gain his cause till he has removed the objections raised against it.
27. 27 I will now state, according to the rules of science, which men may be appointed as witnesses, and which others should be avoided as being low wretches.
28. Those may be witnesses who are in the habit of performing religious ceremonies taught in the Vedas and Smritis, free from covetousness and malice, of respectable parentage, irreproachable, and zealous in performing austerities, practising liberality, and exhibiting sympathy (with all living creatures).
29. 29 The mother's father, the father's brother, the
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wife's brother and maternal uncle, a brother, a friend, and a son-in-law are inadmissible witnesses in all disputes.
30. 30 Persons addicted to adultery or to drinking, gamblers, those who calumniate everybody, the insane, the suffering, violent persons, and unbelievers cannot act as witnesses.
31. 31 If a witness being summoned does not make his appearance, without being ill, he should be made to pay the debt and a fine, after the lapse of three fortnights.
32. 32 Where the contents of the plaint have been fully corroborated by the witnesses, it is (valid) testimony; in every other case (the plaintiff) will not succeed with his claim.
33. 33 When nothing less (than what has been declared in the plaint) is stated with regard to place, time, age, caste, number, matter, and quantity, the cause should be considered to have been proved.
34. 34 Let him preserve, even by telling a lie, a Brahman who has once sinned through error and is in peril of his life and oppressed by rogues or other (enemies).
35. 35 In a conflict between witnesses, (the testimony of) the majority should be received; when the number is equal (on both sides, the testimony of)
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the more virtuous ones; when the virtuous (witnesses) are divided, (the testimony of) those specially eminent for the performance of acts of religion; when they are divided, (the testimony of) those endowed with a superior memory.
Footnotes
299:1 VII, 1, 2 a. May. p. 23.
299:2 2 b-15. Vîram. pp. 544, 545.
299:3 I read gâtinâmâdi, with Smritikandrikâ.
299:6 I read krayâdike, with Smritikandrikâ.
300:11 The reading bhâshatâm in the Vîramitrodaya is a misprint for bhâshate.
301:16 16-18. May. p. 23. The 'accountant' is a species of 'messenger.' Vîramitrodaya. Regarding the 'witness who has accidentally witnessed the transaction,' see VII, 12.
301:19 19-22. Tod. satyaprasamsâvakanair anritasyâpavâdanaih | sabhyaih sa bodhanîyas tu dharmasâstrapravedibhih || â ganmatas kâ maranât sukritam yadupârgitam | tat sarvam nâsam âyâti anritasyâbhisamsanât || kûtasabhyah kûtasâkshî brahmahâ ka samâh smritâh | bhrûnahâ vittahâ kaishâm nâdhikah samudâhritah || evam viditvâ tat sâkshî yathâbhûtam vadet tatah ||
302:24 May. p. 25. I read arthî, for arthe, with Vîram.
302:27 Smritik. prashtavyâh sâkshino ye tu vargyâs kaiva narâdhamah | tân aham kathayishyâmi sâmpratam sâstrakoditân || srautasmârtakriyâyuktâ lobhadveshavivargitâh | kulînâh sâkshinoऽnindyâs tapodânadayânvitâh ||
303:31 Smritik. âhûto yas tu nâgakkhet sâkshî rogavivargitah | rinam damam ka dâpyah syât tripakshât paratas tu sah ||
303:32 Smritik. yatrâseshâh pratigñârthâh sâkshibhih prativarnitâh | sâkshyam syâd anyathâ tu tam sâdhyârtham na samâpnuyât ||
303:34 Smritik. sakrit pramâdâparâdhivipram vyâpadi pîditam | satâdibhir vadhyamânam rakshed uktvânritâny api ||
303:35 Tod. sâkshidvaidhe prabhûtâs tu grâhyâh sâmye gunâdhikâh | gunidvaidhe kriyâyuktâs tatsâmye smritimattarâh ||
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