History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.311

v4.c63.311

IV. 5. 184 defines sākṣī in such a way as to exclude the litigant himself. Ordinarily witnesses were examined in the open court in the presence of the parties and never behind their back, but Kāt. (387–389) prescribes that in the case of immovable property oral evidence may be taken on the property itself and in some cases even elsewhere than these two (viz. the Court and immovable property), that is, in the case of the death of living beings witnesses may be made to depose before the corpse (of the animal killed) or, in the absence of the body, before⁵¹⁷ some mark (such as the horn of an animal). Bṛ. and Manu VIII. 25 state that the truth of the statements of witnesses should be examined by marking their tone, their change of colour, their eyes, their gestures, and their demeanour⁵¹⁸. Texts like Śaṅkha-Likhita (q. by V. P. p. 124), Nār. IV. 193–196, Viṣṇu Dh. S. VIII. 18, Yāj. II. 13–15 and Kāt. 386 point out the actions and appearances of a party or witness that deposes falsely, viz. he appears restless, changes his place (i. e. moves from one spot to another), licks the corners of his lips, his forehead perspires, his face loses colour, he frequently coughs and heaves frequent sighs, he scratches the ground with his feet (toes), waves his hands and garment, his mouth becomes dry and his voice falters, he speaks incoherently, talks too much though not asked and does not reply straight to the questions asked and avoids meeting the eyes of the questioner. Such a witness may be looked upon as untrue and the king or judge should bring him under discipline (so that he will be afraid to lie). Merely on seeing these signs a witness was not to be punished or entirely disbelieved, since these signs raise only a probability of untruthfulness (as remarked by Mit. on Yāj. II. 15 and V. P. p. 124).