History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.492
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.492
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A few remarks will be made on each of the several modes of punishment. The sentence of death was, acc. to Kām. XIV. 16, Śukra IV. 1. 93, to be avoided even in the gravest offences except for the offence of subverting the state.⁶³⁷ Viṣṇu Dh. S. V. 1 provides that all persons except brāhmaṇas guilty of the mahāpātakas may be sentenced to death. But Manu IX. 236 says that this extreme penalty was to be awarded only if they performed no prāyaścitta. Kauṭ. (IV. 11) prescribes death sentence for causing the death of any one with a sharp weapon. Vṛddha-Hārīta (VII. 190) prescribes it for incendiaries, poisoners, murderers, robbers, bad characters, rogues and those guilty of grave sins. The death sentence was carried out in various ways such as by giving poison or by trampling at the feet of an elephant, or by a sharp weapon (like a sword), by being burnt or drowned⁶³⁸. Impalement was a punishment prescribed by Manu IX. 276 for thieves guilty of housebreaking by night (after first cutting off their hands), by Yāj. II. 273 for those who made another a captive or stole horses and elephants or killed another by the use of force and by Vṛddha-Hārīta VII. 202 for the murderer of a brāhmaṇa or for one who killed a woman, a child or a cow. Death sentence by being trampled under the feet of an elephant continued up to the times of the Marathas. The Daśakumāracarita 4th Ucchvāsa shows that a thief could be trampled upon by an elephant by way of punishment.
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Vide 'Selections from Peshwa's Daftar' (edited by Mr. G. S. Sardesai) vol. 43 No. 143 p. 114 (dated 7-9-1775 A. D.), where out of seven dacoits of the *Berad* caste two were ordered to be trampled to death at the feet of an elephant⁶³⁹ and five were ordered to be simply beheaded. Death sentence is said by the Daṇḍaviveka (p. 20) to be simple *śuddha*), which is of two kinds, *avicitra* when the offender is beheaded (with a sword), and *citra* or *vicitra* (when the offender is impaled or burnt) and it is *miśra* (when his hands or feet or other limbs are cut off and then he is killed)⁶⁴⁰. Simple death is prescribed by Manu IX. 271 for those who abet thieves by giving them subsistence, instruments of house-breaking or asylum. If a man of a low caste had sexual intercourse with a woman of a higher caste (with or without her consent) or kidnapped a maiden he was to be sentenced to death (Manu VIII. 366, Yāj. II. 286-288, 294). Vas. XXI. 1-5 prescribed for a śūdra, vaiśya or kṣatriya guilty of adultery with a brāhmaṇa woman the horrible punishment of being burnt to death after being respectively covered with *vīraṇa* grass, with red *darbhas* and *śara* leaves respectively and similar punishment for a śūdra paramour of a kṣatriya or vaiśya woman and for a vaiśya paramour of a kṣatriya woman. The consenting woman (adulteress) was, acc. to Vas. XXI.
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1-3, to be shaved, to have her head anointed with clarified butter and to be paraded naked on an ass and left to die on the Great Journey, while, acc. to Gaut. XXIII. 14 and Manu VIII. 371, an adulteress, vain of her charms or the wealth of her parents, was to be openly devoured by dogs, if her paramour was a man of lower caste. Śaṅkha⁶⁴¹ prescribes this punishment (of being devoured by dogs) for a woman's paramour of a lower caste and for the erring woman death by burning. Vṛddha-Hārīta VII. 192 prescribes that in the case of a woman who is a confirmed adulteress, or who destroys her foetus, her husband should have her ears, nose and lips cut off and then she should be banished and verses 220-221 prescribe death by being burnt with grass (kaṭāgni) for those guilty of incest. These severe penalties for adultery were very much relaxed and softened by later smṛti writers as is shown in H. of Dh. vol. II. pp. 571-573. A man who made a breach in the embankment of a lake or tank (and thereby caused it to become dry) may be sentenced to death by drowning (Manu IX. 279) or a woman who was extremely wicked (such as one who killed her own child in the womb) or who murdered a man or who destroyed the embankments of a tank may have a stone tied round her neck and be drowned, provided she be not pregnant at the time of the sentence (Yāj. II. 278). Yāj. II. 279 (=Matsyapurāṇa 227.
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200) prescribes death by being gored by the horns of bulls (after the nose, lips, ears and hands are cut off) for a woman who is guilty of poisoning (the food or drink of another) or who is guilty of incendiarism or who kills her husband, elders or her own child (provided she is not pregnant)⁶⁴². Yāj. II. 282 provides death by being burnt with the fire of straw for those who set fire to growing crops, houses, forests, village, pastures and threshing floors or who approach the queen. Nār. (pāruṣya, verse 31) prescribes that one who strikes with a weapon the king, even though the latter be at fault, should be impaled and roasted in fire. These examples are enough to convey an idea of the crimes for which the sentence of death was provided in some of the ancient smṛtis. Manu VIII. 272, Nār. (pāruṣya 24), Viṣṇu Dh. S. V. 24 prescribe the pouring of boiling oil in the mouth and ears of a śūdra who through insolence tries to expound dharma to brāhmaṇas. Cutting off limbs as a punishment (particularly hands and feet or fingers) was common in the case of thieves, pickpockets and cut-purses (Manu IX. 276-277, Nār., pariśiṣṭa verse 32, Yāj. II. 274). Excision of the tongue was the sentence when a śūdra abused a brāhmaṇa or a kṣatriya by falsely charging him with some grave sin (Āp. Dh. S. II. 10. 27. 14, Manu VIII. 270, Nārada, pāruṣya 22), when a śūdra loudly repeated the Veda along with twice-born persons (Gaut. XII.
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4), when a person abused the king (Nār., pāruṣya 30), when a person repeatedly proclaimed what was disliked by the king or divulged the secret policy of the king (Yāj. II. 302). Excision of the male organ was prescribed for a śūdra who sexually approached a woman of the three higher varṇas (Gaut. XII. 2), for any one guilty of the rape of another's wife (Vṛddha-Hārīta VII. 201 and also confiscation of all property), for any one guilty of incest or intercourse with mother, mother's sister, paternal aunt, sister, the wife of an uncle, friend or pupil, daughter, daughter-in-law, teacher's wife, a woman come for refuge, the queen, an ascetic woman, a wet-nurse and any chaste woman or a woman of a higher varṇa (Nār., strīpuṁsayoga 73-75). The nose, the ears and the hands were cut off in the case of an offender guilty of selling false gold or forbidden flesh such as that of a dog (Yāj. II. 297). For branding, vide Gaut. XII. 44, Baud. Dh. S. I. 10. 19, Nār. (sāhasa 10), Manu XI. 237 (= Matsya 227. 16), Viṣṇu Dh. S. V. 3-7. The Daṇḍaviveka (p. 47) states that branding was to be resorted to if the proper penance was not performed and if the offence was intentional. Yāj. II. 202 provides branding for a gambler using false dice and (II. 294) for persons of the three higher *varṇas* having intercourse with a very low caste woman and Dakṣa VII. 33 prescribes it for an ascetic giving up his duties. The Rājatarangiṇī mentions (VI. 108-112) that king Yaśaskara (939-948 A.
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D.) of Kashmir branded on a brāhmaṇa's forehead the mark of dog's foot. Keśavapaṇḍita in his Daṇḍanīti-prakaraṇa (p. 6) quotes the author of the Vaijayantī (Nanda-paṇḍita) to the effect that the making of marks was to be effected with the juice of the marking nut in the case of brāhmaṇas and with a red-hot iron *śalākā* in the case of others. In England about a hundred years ago branding for desertion from the army was practised. Manu VIII. 370 prescribes the shaving of the head as a punishment for a woman who pollutes a maiden, Nār. (sāhasa 10) prescribes it for a brāhmaṇa who is not sentenced to death on account of his caste, Śaṅkha-Likhita (q. by Aparārka p. 807) for one who abuses officers, brāhmaṇas and elders. Megasthenes (Fragment XXVII. p. 72) notes 'If one is guilty of a very heinous offence the king orders his hair to be cropped, this being a punishment to the last degree infamous'. Imprisonment for life is prescribed by Viṣṇu V. 71 for striking out both eyes of a man and by Śukra IV. 1. 88 (for repeating an offence more than three times) For imprisonment with labour, vide Śukra IV. 1. 92 and 108-109. Flogging was prescribed⁶⁴³ by Vishnu Dh. S. V. 105 for a woman.