History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.294

v4.c63.294

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. adds⁵⁰² 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. Vyāsa⁵⁰³ 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 witnesses 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 Kāt. adds⁵⁰⁴ 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 the first amercement. Bṛ. further states⁵⁰⁵ that the defendant may point out the defects, if they exist, in the witnesses cited 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; otherwise he should not succeed in his suit.