History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.288

v4.c63.288

Nār. (IV. 157-172) states that incompetent witnesses fall into five classes: (1) some⁴⁹⁸ like learned brāhmaṇas, 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 (p. 214) points out that śrotriyas and others cannot be appointed as witnesses, but they may be what is called *akṛta* 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 advisable 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 untruthfulness in them; (3) witnesses are rendered incompetent on the ground of contradiction (*bheda*), when the statement of witnesses 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 *sūcī* (i. e. a spy) in the *śāstras* (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 *mṛtāntara*); 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)? *Mṛtāntara* 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.