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The Minor Law Books (SBE33), by Julius Jolly, [1889], at

12. Incompetent Witnesses.

* 157. The incompetent witnesses, too, have in this law-book been declared by the learned to be of five sorts: under a text of law, and on account of depravity, of contradiction, of uncalled-for deposition, and of intervening decease.

* 158. 158 Learned Brahmans, devotees, aged persons, and ascetics, are those incapacitated under a text of law; there is no (special) reason given for it.

* 159. Thieves, robbers, dangerous characters,

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gamblers, assassins, are incompetent on account of their depravity; there is no truth to be found in them.

160. If the statements of witnesses, who have all been summoned by the king for the decision of the same cause, do not agree, they are rendered incompetent by contradiction.

* 161. He who, without having been appointed to be a witness, comes of his own accord to make a deposition, is termed a spy in the law-books; he is unworthy to bear testimony.

* 162. 162 Where can (any person) bear testimony if the claimant is no longer in existence, whose claim should have been heard? Such a person is an incompetent witness by reason of intervening decease.

* 163. 163 If two persons quarrel with one another,

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and if both have witnesses, the witnesses of that party shall be heard which was the first to go to law.

* 164. 164 If the claimant should be cast at the trial, his cause proving as the weaker one of the two, it is fit that the witnesses of the defendant should be heard.

* 165. 165 No one should converse in secret with a witness summoned by his adversary, neither should he try to estrange him from the cause of his opponent by other means. A party resorting to such practices as these is cast.

166. 166 If a witness dies or goes abroad after having been appointed, those who have heard his deposition may give evidence; for indirect proof (through a second-hand statement) makes evidence (as well as direct proof).

* 167. 167 Even after a great lapse of time (the deposition of) a subscribing witness retains its validity;

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if a man can write, he should write (his name) himself; if he cannot (write himself), he should cause it to be written by another man.

* 168. (The deposition of) a witness who has been reminded (of the transaction) remains valid in this world up to the eighth year, that of a casual witness remains valid up to the fifth year.

* 169. (The deposition of) a secret witness remains valid up to the third year; (the deposition of) an indirect witness is declared to remain valid for one year only.

* 170. 170 Or no definite period is fixed for judging a witness; for those acquainted with law have declared that testimony depends upon memory.

* 171. A witness whose understanding, memory, and hearing have never been deranged, may give evidence even after a very considerable lapse of time.


82:158 The reason why the persons referred to in this paragraph are excluded seems to lie in their entire renunciation of earthly interests, which renders them unfit to appear in a court of justice. See Manu VIII, 65. where 'one dead to the world' is mentioned among the incompetent witnesses, and other parallel passages.

83:162 Supposing a man were to claim a certain sum from another and to name a witness, whom he states to have witnessed the transaction. If the soi-disant creditor should die, it would be impossible to ascertain whether the statement of the witness is true or false. Therefore such a witness must not be admitted by reason of intervening decease. A.

83:163 A claimant declares, 'This bull, which you have got, is mine. He was stolen by thieves, who took seven cows along with him. if they are found among your property, they may be known by a red mark on the forehead, or by their white feet, or by other signs. . . . I am able to adduce four witnesses who will declare them to be mine.' The opponent replies, 'Pragâpati (the Creator) has created many two-legged and four-legged beings closely resembling one another. If a superficial likeness is to be considered as evidence, I might take another man's wife into my house, because she has eyebrows, ears, a nose, eyes, a tongue, hand, and feet like my wife. This bull is born and bred in my own house. I am able to adduce four witnesses from the village in which he is being kept; their statements will establish the fact that he belongs to me.' In a dispute of this sort the witnesses of him who was the first to bring the suit into court will decide the suit. A. Yâgñavalkya II, 17; Vishnu VIII, 10.

84:164 Where the plaint is rejected and the defence acknowledged as correct, the witnesses of the defendant have to be examined. A. Yâgñavalkya II, 17; Vishnu VIII, 11.

84:165 That man who holds secret conversations with a witness produced by his opponent, or who tries to intimidate him by threats, abuse, and the like, or to bribe him, loses his suit. A.

84:166 If a witness dies or goes abroad, indirect witnesses, i.e. those who have heard him speak of the matter, on his deathbed, or when he was about to start, either in answer to questions of the plaintiff, or of his own accord, shall be examined. A. Vishnu VIII, II.

84:167 What follows here is intended to show how long the statements of each of the five appointed witnesses mentioned in par. 150 retain their validity. A subscribing witness may give valid evidence after the lapse of a very long period even. Such a witness should subscribe his name with his own hand, at the time when the document is being executed, as e.g. 'I, Devadatta, have witnessed this transaction.' If he is unable to write, he should cause another person to write in his own name. The document will make evidence, whenever the occasion arises. A.

85:170 170, 171. Under this rule, the validity of any testimony is declared independent of length of time, and to depend on the competence of the witness alone. A.

Next: 13. Six Cases Where Witnesses are Unnecessary