History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.299
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.299
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When a witness is about⁵⁰⁶ to depose, he was, acc. to Bṛ. (S. B. E. 33 p. 302 v. 23), to put off his shoes and turban, raise his right hand (in order to draw the attention of the Court) and after touching gold, cowdung or *darbha* grass was to depose to the truth. Āp. Dh. S. II. 11. 29. 7. says⁵⁰⁷ that a witness should depose to the truth on an auspicious day in the morning in the presence of kindled fire and near (a jar of) water in the hall presided over by the king (or chief justice) and after being exhorted as regards both (viz. the results of truthfulness and falsehood) and when accepted by all (the court and parties) as a competent witness. Kauṭ. also (in III. 11) says that witnesses should be examined in the presence of brāhmaṇas, waterjar and fire. Manu (VIII. 79-80) provides that the judge should in a conciliatory manner exhort all witnesses assembled inside the court in the presence of the plaintiff and defendant as follows: 'whatever acts of these two (litigants) between themselves you know as regards this matter (in dispute), narrate them all truthfully, since you are the witnesses in this case'. Yāj. II. 73 also states that witnesses should be made to depose in the presence of the parties and Gaut. XIII. 13 and Kāt. (q. by Mit. on Yāj. II.
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73) prescribe that witnesses⁵⁰⁸ should face the east or north, are to be examined in the presence of the images of gods and brāhmaṇas in the first half of the day and should be exhorted to tell the truth by being bound with oaths. This examination in the public and after an oath went a long way in checking the tendency to depose falsely. The oath consisted of two parts, viz. (1) the requirement to tell the truth and (2) the exhortatory and imprecatory part. Both were administered by the presiding judge. Gaut. (XIII. 12-13) appears to prescribe that an oath (*śapatha*) was not to be administered to brāhmaṇa witness, but Manu VIII. 113 (= Nār. IV. 199) does not make this distinction. Gaut. (XIII. 14-23), Manu VIII. 81-86, 89-101, Viṣṇu Dh. S. VIII. 24-37, Nār. IV. 201-228 contain very long exhortations addressed by the judge to the witnesses relating to the importance and high worth of truth, stating how the conscience of a man pricks him, what rewards await the truthful witness here and in the next world and what sin and terrible torments in Hell are the lot of an untruthful witness, what evil befalls even the deceased ancestors of an untruthful witness and how he is liable to be punished by the king. They are too long to be cited here⁵⁰⁹. Shorter exhortations are found in Yāj. II. 73-75, Vas 16. 32-34, Baud. Dh. S. I. 10. 19. 9-12 (S. B. E. vol. XIV p. 203), Bṛ. (S. B. E. vol. 33 p. 301 verses 19-22), Kāt. 343. Nār. IV.
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200 provides 'let him (the judge) inspire them (the witnesses) with awe by (quoting) ancient texts, extolling the greatness of truth and denouncing falsehood'. Kaut. (III. 11), Manu VIII. 88 and 113 (=Nar. IV. 199), Viṣṇu Dh. S. VIII. 20-23 add further modes of speech and exhortations according to the *varṇa* of the witness: A brāhmaṇa witness is to be addressed by the judge as 'speak' and to be exhorted to swear by his veracity, a kṣatriya one was to be addressed as 'speak the truth' and to be sworn by the animal he rides and his weapons (which he is to touch), a vaiśya is to be sworn by his kine, grain and gold and a śūdra is to be sworn by (imprecating on his head) all grave sins. Manu VIII. 88 provides that a brāhmaṇa should be asked to depose with the word 'speak', while VIII. 113 states that a brāhmaṇa is to be made to swear by his truth. Some explain that the first rule applies to excellent brāhmaṇas and the second to inferior ones and rely on Gaut. (XIII. 12-13) who prescribes that an oath to speak the truth is not to be administered to brāhmaṇas but only to others. Vide Haradatta on Gaut. and Vivādacandra p. 127. Manu VIII. 102 (=Baud. Dh. S. I. 5. 95) is careful to point out that the exhortation is not to depend purely on the caste but that brāhmaṇas (and others) who tend kine, who engage in trade, who are craftsmen or actors, who are menial servants and usurers should be treated (by the judge) as śūdras⁵¹¹ (in the matter of taking oaths).
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Witnesses after they are assembled before the Court are to be ordinarily examined separately (vide Kāt. quoted in n. 508 above). But Gaut. XIII. 5 and Kāt. 394 provide⁵¹² that if a certain matter is seen by the witnesses as a body then they may be examined together. Manu VIII. 78 and Kāt. 392 prescribe that what the witnesses declare quite naturally (without hesitation and fear) should be taken down and that when the witnesses have declared (what they know) they should not be questioned again and again by the king (or judge). From the Smṛtis and the 9th Act of the Mṛcchakaṭika it appears that it was the chief judge or the judges who put questions and that there was no elaborate cross-examination and re-examination of witnesses as in England (which practice is followed in modern India). The only cross examination that appears to have been allowed was about the faults or grounds that made a person an incompetent witness. In this respect ancient Indian practice resembled modern judicial practice in some European⁵¹³ countries other than England. Witnesses were compelled to attend. Kauṭ. III. 11 states that witnesses who are not far removed by time or space should be produced by the parties themselves, but those who are far away or who are unwilling to stir shall be got summoned by order of the king⁵¹⁴. Manu VIII. 107, Yāj. II. 77, Br., Kāt. and Viṣṇu Dh. S. VIII.
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37 say that if a witness knowing all facts and not prevented from coming by disease or similar causes refuses to come as a witness he incurs the sin of false witness, has to pay the amount in dispute and ten per cent thereof as fine to the king. This is in accordance with the principle enforced in modern times that it is the duty of a citizen to appear before a court of justice when summoned. Kauṭ. (III. 1) provides for subsistence allowance to witnesses. It is not quite clear whether parties could be regarded under ancient Hindu Law as competent witnesses on their own behalf. Yāj. (II. 13-15) appears to suggest that parties could be regarded as witnesses in their own cause and held to be false from their demeanour as in the case of witnesses. Kauṭ. IV.⁵¹⁵ 8 and the 9th Act of the Mṛcchakaṭika show that the accused was questioned by the Court as to his movements about the time of the alleged offence and till his arrest. Śukra⁵¹⁶