History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.260

v4.c63.260

The word *sākṣin* occurs in the Śvetāśvataropaniṣad⁴⁷⁶ (VI. 11) where it is applied to the one immanent Spirit of the universe as All-seeing. Pāṇini⁴⁷⁷ V. 2. 91 explains the word *sākṣin* as meaning 'one who has directly seen'. Gaut.⁴⁷⁸ XIII. 1, Kauṭ. III. 11, Nār. IV. 147 state that when two persons litigate and there is a doubt or discrepancy between the two the determination of the truth in the dispute is due to witnesses. Manu VIII. 74, Sabhāparva⁴⁷⁹ 68.84, Nār. IV. 148, Viṣṇu Dh. S. 8. 13, Kāt. 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) says⁴⁸⁰ that hearsay evidence occurs when a person who hears from another that has himself heard something from another comes 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 words 'you are the witness to this transaction'), he is a proper witness when asked as to any matter in dispute that he has himself seen or heard. The only exception to hearsay evidence allowed by the Viṣṇu Dh. S. VIII. 12 is that⁴⁸¹ when a person that is appointed 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 examine the witnesses that are present (in court) and should consider along with the *sabhyas* 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 prescribes⁴⁸² 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 cause⁴⁸³. 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. Bṛ. (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 brāhmaṇas⁴⁸⁴. Viṣṇu Dh. S. VIII. 5 and Bṛ. (S. B. E. vol. 33 p. 301 v. 16) emphasize that a single witness alone cannot be examined for deciding a matter⁴⁸⁵.