DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,

SABBAWARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

LAW OF EVIDENCE IN ANCIENT INDIA

SUBJECT

HISTORY

NAME OF THE FACULTY

Dr. VISWACHANDRANATH MADASU

NAME: ANANYA PANICKER

ROLL NUMBER: 19LLB122

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SEMESTER: 1ST

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 ACKNOWLEDGEMENT

I would like to thank Dr. Vishwachandra Nath Madasu Sir for giving me an opportunity for
deeply studying about Ancient India. This project is a result of dedicated effort. It gives me
immense pleasure to prepare this project report on “LAW OF EVIDENCE IN ANCIENT
INDIA”.

My deepest thanks to our lecturer Madasu sir, the guide of the project
for guiding and correcting various documents with attention and care. I thank him for
consultative help and constructive suggestion in this project. I would also like to thank my
parents and colleagues who have helped me in making this project a successful one.

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CONTENTS:
1. Cover Page
2. Grammarly Report
3. Acknowledgement
4. Project Summary
5. Objective of Study
6. Significance of Benefit of study
7. Historical Background
8. Scope of the study
9. Literature Review
10. Research Methodology
11. Hypothesis
12. Body of the project
13. Outcomes of the project
14. Conclusions and Suggestions

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CONTENTS UNDER THE BODY OF THE PROJECT:
1. JUDICIAL SYSTEM OF ANCIENT INDIA
2. WORKING OF THE COURT
3. CLSSIFICATION OF EVIDENCE
4. REQUISITES OF A WRITTEN DOCUMENT
5. RECORDING OF STATEMENTS
6. WITNESS
- QUALIFICATION
- DISQUALIFICATION
- DEPOSITION
- UNAPPOINTED WITNESS
7. RELATIVE VALUE OF EVIDENCE
8. SPECIAL RULES OF EVIDENCE REGARDING EASEMENTS
9. JUDGEMENT

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OBJECTIVE OF THE STUDY:
Herein the researcher through this project is studying the Law of Evidence in Ancient India and
the efficiency of the law and comparing it to the present law of evidence in our country.

SCOPE OF THE STUDY:

The researcher limits the scope of the study till the law of evidence in the Hindu period.

SIGNIFICANCE OF THE STUDY:

This research helps us to know more about the legal system of Ancient India and its
implementation as compared to the current laws in our country.

REVIEW OF THE LITERATURE:

The researcher has taken information from various books, articles, journals and case laws.

RESEARCH METHODOLOGY:
This is a doctrinal research, which is based on the materials collected from different journals,
books, etc.

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BODY OF THE PROJECT:
INTRODUCTION
Sacred law (Dharma), evidence (vyavahara), history(charitra), and edicts of kings (Rajasena) are
the four legs of law, of these four in order: the later is superior to the previously mentioned.
Dharma is eternal truth holding its sway over the world; Vyavahara, evidence, is in witness:
Charitra, history, is to be found in the tradition (sangraha) , of the people: and the order of the
kings is what is called sasana ( legislations).
The law of Evidence, encompasses the rules and legal principles that govern the proof of facts in
a legal proceeding. These rules determine what evidence must or must not be considered by the
trier of fact in reaching its decision.
The Smriti texts, while dealing with the rules of procedure which had to be adopted by courts in
the trials of cases, also laid down detailed rules regarding the admissibility of evidence. The law
of evidence thus formed a part of the law of procedure required to be followed by the courts in
this regard. According to these rules, after the court examined the plaintiff and the defendant and
recorded their respective declarations affirming the statements made in the plaint and the written
statement, and arrived at a decision regarding the burden of proof, it had to proceed to record
evidence. To regulate and provide for the admissibility or inadmissibility of evidence adduced by
the parties and to regulate their evidentiary value, the Smriti texts laid down specific rules of
evidence and these provisions constituted the law of evidence.
It is submitted that in ancient India Sasita was the court which the king presided. It was the
highest court in any kingdom in ancient India. It was situated in the royal palace at the capital
city. The king (Rajah), the Chief Justice (Pradvivaka) and the judges (Sabhyas) were the judicial
officers of the court. The King was invested with the power of passing final decrees. The Chief
Justice had to give his final opinion in the cases, and the duty of the judges was to investigate the
merits of each case.
It is presented that in old India Sasita was the court which the ruler managed. It was the most
elevated court in any kingdom in antiquated India. It was arranged in the illustrious royal
residence at the capital city. The lord (Rajah), the Chief Justice (Pradvivaka) and the judges
(Sabhyas) were the legal officials of the court. The King was contributed with the intensity of
passing last announcements. The Chief Justice needed to give his last feeling in the cases, and
the obligation of the judges was to explore the benefits of each case.

The courts in antiquated India were not bound by any specialized methodology for doing equity
to distressed people. The essential thought was maintaining dharma. In the wake of documenting
the plaint, the request was to be given to the contrary party to answer the charges. There were
very much set guidelines identifying with affirmation, disavowal, admission, evasion and res-
judicata.

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  A BRIEF INTRODUCTION TO THE JUDICIAL SYSTEM OF ANCIENT INDIA

India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted
pedigree. Indian jurisprudence was found on the rule of law; that arbitrary power was unknown
to Indian political theory and jurisprudence and the king’s right to govern was subject to the
fulfillment of duties the breach of which resulted in the forfeiture of kingship; that the judges
were independent and subject only to the law; that ancient India had the highest standard of any
nation of antiquity, as regards the ability, learning, integrity, impartiality and independence of
the judiciary.

RULE OF LAW IN ANCIENT INDIA

In the Mahabharata, it was laid down “A king who after having sworn that he shall protect his
subjects fails to protects them shall be executed like a mad dog”. The people should execute a
king who does not protect them, but deprives them of their property and who takes no advice or
guidance from any one. Such a king is not a king but a misfortune.
These provisions indicate that sovereignty was based on an implied social compact and if the
king violated the traditional pact, he forfeited his kingship.

TYPES OF COURTS
Kautilya mentions two types of courts:
1. Civil Court: Dealt with disputes involving contracts, inheritance, labour, marriages,
dowry, deposits, benefits.
2. Criminal Court: Protection of articians and merchants, detecting criminals by means
of spies, arresting the suspicious or real culprits, post mortem examinations, discipline in
various state departments, punishment for mutilation, capital punishment, miscellaneous
offences.

HIERARCHY OF COURTS
According to Brihaspati Smritis, there was a hierarchy of courts in ancient India beginning
with the family courts and ending with the king. The lowest was the family arbitrator. The
next higher court was of the judge; the next of the Chief Justice who was called
Praadivivaka, or Adhyaksha; and at the top was the king’s court.
The jurisdiction of each was determined by the importance of the dispute, the minor
disputes being decided by the lowest court and the most important by the king. The decision
of each higher court superseded that of the court below.

DIFFERENT KINDS OF LAWS

Justice was administered in accordance with rules which fell under one or other of the following
four heads, namely:
 Sacred law (dharma)
 Secular law (vyavahara)
 Custom (charitas) and
 Royal commands (rajasasana)

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Dharma Shastra established the sacrosanct law and common law relied on proof. Exclusively
was chosen by the assessment of the individuals and regal orders comprised the authoritative
law. Of the divisions of laws, Manu and practically all law-providers consider traditions as the
fundamental rule in the organization of equity and state that questions ought to be chosen by the
traditions of nations and areas; of standings; of societies and of families.
IMPORTANCE OF JURY:
Pleaders rarely figure in ancient Indian judicial system. Sukra refers to the practice of appointing
recognized agents in the law courts to defend a case when a party was himself unable to do so
owing to his preoccupation or ignorance of the law. Such agents were known as Niyogins and
they were expected to guard the interests of their parties very carefully. Their fee varied from six
to half percent, according to the value of the property. If they colluded with the other party, they
were punished by the state.

Indeed, even the king and the central equity couldn't start the trail of a case in the event that they
are not helped by a board of three, five or seven members of the jury called sabhyas. They were
relied upon to be fair-minded and valiant. A hearer keeping quietness has been censured. They
were to express their opinion regardless of whether it was contrary to that of the ruler. They were
to limit a ruler going off to some faraway place or giving an off-base choice. Various popular
law specialists keep up that the ruler or judge is to be guided by the decision of the jury and just
when the legal hearers couldn't go to a positive choice, the lord practiced his benefit to choose
the case as indicated by his own view. These sabhyas were normally Brahmins as they were
knowledgeable in Dharma shastras. Be that as it may, learning of sacrosanct law was a bit much
when the case (the gathering to the question) concerned the debates among the cultivators,
vendors and timberland tenants. Dharma Shastra authors themselves suggested that the cases
ought to be attempted with the assistance of the legal hearers chose from the standings or the
callings of the gatherings themselves.

Fines, imprisonment, banishment, mutilation and death sentence were the punishment in vogue.
Fines were most common and punishment often differed with the caste of the accused. The jail
department was under the charge of an official called Sannidhata and the jailor was called
Bandhanagaradhyaksha. Male and female prisoners were kept in separate wards.

WORKING OF THE COURT:

.
The preliminary was led by the courts with the assistance of witnesses and records cited on the
side of the case. Gatherings needed to themselves produce observers. The King ought not
postpone in looking at the observers. The King should himself inspect the observers who were
available and ought to consider alongside the individuals from the court the announcements
made by them. Witnesses should give their affidavit inside the lobby of equity (Dharmanikarana)
and not anyplace else. The observers should give their proof within the sight of the offended
party or the litigant by and large and never despite their good faith. Prior to giving the proof, the
observer ought to be directed pledge in the wake of removing his shoes and his turban and he
should loosen up his correct hand and announce reality, taking in his grasp, gold, cow - manure
or a couple of sacrosanct grass (kusha), by and large. The most elevated discipline for example
the death penalty was given for the offense of giving false proof. The judge should scrutinize

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each witness independently. The expressions of the observers when free from issues ought to be
brought down as described by them normally and it should be recognized as important for
picking the genuine continuing. The Smritis were the dharma sastras. Among them, the Manu
Smriti was composed somewhere close to 200 BC and 100 AD. It was a milestone throughout
the entire existence of Hindu Law. Beside Manu, Yajnavalkya, Narada and Katyayana (who
ordered his Smriti somewhere close to fourth or fifth century AD) had managed the law of proof
in their Smritis.

As indicated by Manu, after the gatherings have presented their plaint and answer, proof must be
introduced under the watchful eye of the court. Systematizing Manu's standard regarding the
matter, Yajnavalkya first referenced three sorts of confirmation, to be specific, records, witnesses
and assets, and he includes that ordeal is another sort of proof without any of these. With regards
to the law of obligation, Yajanavalkya discloses the law identifying with archives and witnesses.

Narada rehash the three sorts of confirmation determined by Yajnavalkya, to be specific,

reports, witnesses and ownership. As respects observers, Narada enhanced and clarifies the
perspectives on Manu and separated them into eleven classes. Narada arranged confirmation
under two expansive headings, specifically, human and perfect, the previous including narrative
and oral proof, and the last mentioned, trial by balance and the rest.

Katyayana followed Brihaspati and Narada explained the formula of the four ‘feet’ (i.e. the
stages) of legal proceedings namely purvapaksha (plaint), uttara (reply), pratyakalita
(deliberation as to burden of proof), and kriyapada (adducing of proof). When both the parties
have submitted their evidence, the court was required to deliberate and deliver its judgement.

CLASSIFICATION OF EVIDENCE (PRAMANA)

The pramana that may be adduced by a party for proving the case put forward by him is of two
kinds:
1) Human evidence viz., documents, witnesses and possession or, in other words, oral and
documentary evidence and possessory evidence established by oral or documentary
evidence.
2) The divine evidence or the proof of his case by a party by undergoing an ordeal.

These two modes of evidence, viz., documentary and oral, are well known. The other mode of
proof by which a party could prove his pleas was by undergoing one of the various types of
ordeals. This method of proof was on vogue in all ancient societies, as well as India. It was
called Divya (divine) mode of proof. Having recognized these three means of proof, the Smritis
made specific provisions for regulating the adducing of evidence as also the order of preference
between them.

1. Written Evidence: The written Evidence (likhita) was of two kinds: Royal and Popular.
The seven popular likhitas were about Partitions (bhaga), gifts (dana), sales (kraya),
acceptance (vikraya), receipts (Adana), samvada and debts (ma).1 The Bhagpatra or the

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SNS., IV.5. 343-44

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 document of partition was valid if it had the witnesses and the approval of the heirs.
Otherwise even if made by father it was good as not done by none.2

REQUISITES OF A WRITTEN DOCUMENT

There should be clear mention of time, year, month, fortnight, tithi period of the day,
province, district, place, caste, size, age, the objects, the evidences, the goods, the number,
one’s own name, and the king’s name, residence, names of the other party, names of
ancestors, griefs ( or injuries sustained), the collector or the giver, the signs of mercy etc. The
documents which did not produce all these factors Hina, or poor and was, not valid. The
documents which were disorderly in which the facts had been mentioned without any order
or which mentioned the facts in reverse order or which were unintelligible or which were
useless and which were written after the expiration of the period of transaction, which were
not valid, as well as those which were not written by senseless people, females or under
duress.3 In vyavaharas or lawsuits people get lawsuits if documents were made on good
papers, attested with good witnesses and accompanied with possession.4

RECORDING OF STATEMENTS

The clerk should note down the statement of the plaintiff in the character and language which
were prevalent.5 The clerk who wrote anything different from what had been actually said by
the plaintiff and defendant should be chastised by the king boldly as a thief.6 The councilors
should not speak or accept what has been thus wrongly written.7 The king should punish like
thieves those persons who extort written statements for anybody.8

WITNESS
The person other than the parties concerned and who is aware of the facts of the case is a
witness. The witness is of various classes: one who has seen or who has heard of it. He can be
false or true.9 The person by whom the facts can be seen or heard in the presence of the plaintiff
and defendant might be a witness if he is uniform in his statements.

QUALIFICATION OF WITNESS

2
Ibid., 346-47
3
Ibid., 359-61
4
Ibid.,362-63
5
Ibid.,119
6
Ibid., 120-21
7
Ibid., 122
8
Ibid., 123
9
Ibid., 364-65

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The person whose intelligence, memory and ears do not prove defective even after a long time,
deserves to be a good and reliable witness. The man whose truthfulness has been tested, deserves
to be a witness. Even a single person who is virtuous, is adequate when approved by both parties.
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Persons should be witness according to caste and race.11 Normally house-holders, not the
dependants, wise persons, those were not abroad, and young persons should be made witnesses.
Female should be appointed as witnesses in the cases involving female interests. Witnesses,
however need not be discriminated in the following cases- violence, abuse, theft, assault, and
kidnapping.12

EXCEPTION: Trustworthy householders and citizens of the country belonging to any caste may
be examined as witnesses by the parties of a suit. (yaj. II 69, Nar. I, 154 and Kaut. III 11 are
similar.) In all cases of violence, theft, adultery, defamation, and assault, he (the king) must not
examine the competence of the witnesses strictly.

RULES REGARDING MINIMUM NUMBER OF WITNESSES

Vishnu p. 49-5: Dharmakosa p. 245:
A single person is no witness.
This rule specifies that parties should not be allowed to prove their cases by examining one
witness only. However, as to how many witnesses should be examined, the rules in the various
smritis were not uniform. Manu VIII 60 provided that should at least be three witnesses. Br. p.
300 V 16, though provided for examining more witnesses, the substance of the rule was that no
case could be proved by the testimony of a single witness.

EXCEPTION:
a) Yaj. II 72-1:
With the consent of both parties, a single witness may be treated as sufficient to decide a case.

b) Kat. 353:
If in the presence of only one person a transaction was entered into, or only one person was
aware of the transaction, evidence of one such individual is admissible and sufficient.

c) Br. p. 301-18 (Sm. Ch. p. 175):

A single witness may furnish valid proof if he is a messenger or an accountant, or one who has
accidentally witnessed the transaction, or if he is the king or the principal judge.13

In view of this rule, a woman or a person belonging to any caste is competent witness if such a
person was the only one who had witnessed the transaction.

The rule that a case shall not be decided on the testimony of a single witness, together with the
exceptions provided, indicates that in all cases where it was reasonable to expect that there must
have been more than one witness, if the facts pleaded were true, such cases should not be
decided on the basis of the evidence of a single witness.

10
SNS., IV. 5. 371
11
Ibid., 372
12
Ibid., 375-76
13
Gharpure p. 140

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The rule insisting on a minimum of two witnesses, incorporated in ancient Indian law of
evidence, is similar to the rule called Unus Nullus (one witness is no witness) which was in
existence in several European countries.14 Under the English law no such rule was prescribed.
However, there were two exceptions, (i) to prove a charge of perjury, and (ii) to prove a charge
of treason, a minimum of two witnesses were insisted.15 This rule was relied on in this case of
Balagangadhar Tilak.

It may be said that the ancient Indian law relating to competence of witnesses as well as
disqualification of witnesses was very wide and could create practical difficulties. However, the
distinction made as between civil and criminal cases regarding competence of witnesses as also
the exceptions provided helped to overcome such difficulties.

DISQUALIFICATION OF WITNESS
The child, because of his ignorance, the women, because of her temperament, the forgerer
because of his sinful habits, the relatives because of their natural affection, the enemies because
of their rivalry, the person who belongs to an inferior caste or race, because of his vanity, the
cheat because of his cupidity and the servants because of greeds and bribes , these people are not
to be witnesses.16 Those with whom one has money transactions, with whom one has
matrimonial relations and those with whom one has educational relations should not be
witnesses. If someone is prejudiced from srenis (communities) or vargas (groups) of men has not
to be taken, because men like him are all enemies. The King, mechanics, actors, persons engaged
in religious ceremonies, students of the Vedas or one who has renounced the world, should not
be called upon to give evidence as witnesses.

Medhatithi, Kulluka and all other commentators are unanimous that this rule has been
incorporated since these persons, having regard to the regard to the nature of their business or
involvement in their own work or studies, were not to be distributed, and not because they were
incompetent to speak as witnesses.

Having laid down rules regarding qualifications and disqualifications for a witness to be eligible,
rules regarding raising objections to the competence of a witness were also laid down. The
objection had to be laid down. The objection had to be raised in writing before the examination
of witness, and if the disqualification was not admitted, it had to be proved by the party raising it.
These provisions correspond to Sec. 148 and 153 of the Indian Evidence Act which provide for
asking questions in order to shake the credibility of a witness.

DEPOSITION OF WITNESS
The king should not loose no time in talking with the witnesses and should make them give the
evidence in the presence of both the plaintiff and the defendant. He should never do it in their
absence. The witness, who when summoned, does not bear witness is punishable. A person

14
Best on evidence 11th edition 1922, p.515 paragraph 597
15
Ibid pp. 520- 527 paragraphs 603 and 615
16
Ibid., 377-80

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present in the court must depose truly as to what has been truly seen or heard, when asked, even
though he may not have been cited as a witness. The witness should say what he has known
independently at different times. This has been the eternal practice. One should accept the
evidence of witness which are given spontaneously and not through force. After the evidence has
been once given by the witness, he should not be repeatedly crossed.
Gautama stated the law regarding witnesses as follows:
 “It is only specially qualified persons who may be presumed to speak the truth, who are
competent witnesses.
 The witnesses should be trustworthy persons who know the facts.
 The witnesses should be examined by the king or the judge and they should answer
questions only when asked.
 The practice of naming witnesses by a party in his pleading was in vogue.
 No question of qualification of witnesses can be raised in case of hurt.
 Swearing of witnesses was prescribed by some authorities.

The well-known rule of sound evidence, namely, that eyewitnesses were to be preferred to
informers was well established from Vedic times. It was in the absence of eyewitnesses that by
necessity some weight had to be given to hearsay evidence.

There are eleven types of witnesses. Out of these, five are called Krita (appointed) and the other
six, ‘Akrita’ (not appointed). Asahaya explains various types of witnesses.

(A) The appointed (krita) witnesses belong to the following categories:

(i) Likhita is the one who has attested a document, and Lekhita is one whose name is
referred to in a document as having been present at the time of the transaction.
(ii) Goodha (secret witness) is the one who was asked by one of the parties to remain
concealed at the time of a transaction and to hear as to what the parties say.
(iii)Uttara (indirect witness) is one who has heard from another appointed witness before
the latter’s death or going abroad.
(iv) Smarita (reminded witness) is one who, though not referred to in the document, or has
not attested, was present at the time of the transaction having been invited to be
present and has been repeatedly reminded about the facts relating to the transaction.

While the general rule was that only direct oral evidence was admissible, Kat.360 and
Vishnu VIII-12 provided as an exception to which reference is already made. Uttara is
one who comes under such an exception.

UNAPPOINTED WITNESSES:
Unappointed witnesses are: (i) the villager, (ii) a judge, (iii) a king, (iv) person
acquainted with the affairs of the parties concerned, (v) one deputed by a claimant, and
(vi) a member of the family.

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 Asahaya explains this rule as follows:
“The village or the co-villagers shall be witnesses in a transaction which has taken place
within the village. The testimony of the judge shall be heard in regard to a cause tried in
a court of justice. The king shall be witness concerning an action which has taken place
in his presence. These, and one acquainted with the circumstances of both the parties, the
agent of the claimant and the members of a family in a lawsuit concerning the family, are
the six kinds of witnesses not appointed”.

The rule and the explanation show that the villages who were conversant with the facts
relating to a litigant which had taken place in a village were declared as competent
witnesses. Even as a body, a village group could give evidence.

RELATIVE VALUE OF EVIDENCE

If the written documents are missing, the cases should be investigated with the help of evidence
by possession and witnesses. If the documents as well as witnesses might not be available the
possession should be verified in cases of disputes related to land. And if possession evidences
fail, the documentary evidences and witnesses should be examined.17 The king should never
investigate cases with only one kind of evidence. He should examine other evidence to
corroborate it.18 It was because the cheats can easily produce duplicates of the documents by
forging them. Hence on the strengths of the documents of the documents alone no point could be
absolutely ascertained. Similarly, on the strength on the witnesses alone no cases can be settled
because of their personal consideration, affection, greed, fear, anger and other motives.

The law of evidence was well-developed but suffered being a cast- ridden concept. Both
Yajnavalkya and Katyayana prescribed three kinds of evidence, namely documents (likhita),
witnesses (Sakshi) and possession (bhukti). Other means of proof consisted of reasoning (yukti)
and ordeals (divyas). The main evidence comprised of either documents or oral testimony of
witnesses. It was evidence in the form of Sakshi which had drawn the attention of ancient
law-givers.

II. DOCUMENTARY EVIDENCE (LEKHYA)

As early as Vasistha, documentary evidence had come into vogue, though apparently it was
considered of less importance than the testimony of witnesses. But in all later smritis documents
had acquired great importance.

Vishnu speaks of three kinds of documents, namely, Rajasaksika, Sasaksika and Asaksika.
Rajasaksika was a document executed in the king’s court by the king’s clerk (Kayastha) and
attested by the hand of the presiding officer. Sasaksika was purely private being scribed by
anyone, but attested in their own hands by witnesses. Asaksika is a document which was
admissible being written entirely in the hands of the party himself. Unless a document came

17
Sukranitishastra, IV., 417-19
18
Ibid., 420-21

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under any one of these three categories, it was not admissible.

Brihaspati speaks of various kinds of documents which were classified into three distinct
classes: i) Rajalekhya; ii) Svayamkrita; and iii) Svahastalikhita.

The ancient law givers were aware of the weakness of the documentary evidence as against
possible forgery. They have evolved elaborate rules to ensure the genuineness of the documents.
A document was considered as vitiated it was written by children, dependents, lunatics, women
or persons under fear. There were also rules for testing the genuineness of a document by
comparison of handwriting in question, particularly in case where the executant is dead.
Yajnavalkya illustrated elaborate requirements of written documents in his description of the
contents of a written contract between the debtor and the creditor. He says that such a contract, if
written by another hand, must state the names of the parties (along with their caste and gotra -
names and the names of their fathers), and it must also mention, the witnesses as well as details
about the year, the month, the day, etc. Afterwards, it had to be signed successively by the
debtor, the witnesses, and the writer in a specified form. A writing in one’s own hand, though
unattested by witnesses, is still valid, except when it was caused by force or fraud. The forgery
documents led to the necessity of proof of documents by oral testimony or divya.

WHEN DOCUMENTARY EVIDENCE ALONE IS ADMISSIBLE

Kat. 225:
Conventions of associations of traders or guilds should be established only by documentary
evidence and not by witnesses or ordeals.
a) Documentary evidence excluded oral evidence and ordeals. Therefore, neither oral nor
ordeal means of proof could be permitted as against documents (similar to Sec. 92 of the
Indian Evidence Act)
b) Oral evidence was to be preferred to ordeals. Therefore, a party could not offer to prove
his case by ordeals in preference to witnesses.
c) As regards conventions of associations and guilds, they could be proved only by
producing Sthitipatra (documents recording the conventions).

III. POSSESSION (BHUKTI)

In the disputes of the landed property, possession as evidence, apparently of right and title was
mentioned by Vasistha along with documents and witnesses. However, Gautama does not refer
to possession as evidence. He recognized the title by prescription.

IV. ORDEALS (DIVYA)

The trial was conducted by the ancient courts with the help of witnesses and documents adduced
in support of claim. When the parties to a litigation were unable to provide their case by means
of oral or documentary evidence, the courts could allow the parties concerned to prove their
case through divine tests or ordeals. It was the belief in ancient times that truth could be found
out by applying Divya or divine tests. The ordeals method emanated from the superstitious belief
of the people in ancient times about the consequences of person undergoing an ordeal would
meet with in accordance with the truth or falsehood of his case. A detailed account of ordeals, as
they existed in ancient India, is given in Agni Purana. It points out that only in cases of high

16
treason of very serious offences, trial by ordeal was used. In other petty matters, it was sufficient
to prove the truth by taking oath.

Yajnavalkya mentioned five kinds of ordeals in place of the three referred to by Manu. These
include; i) ordeals by balance, ii) by fire; iii) by water; iv) by poison; and v) by sacred libation.
Narada increased Yajnavalkya’s five classes of ordeals to seven by adding the rice ordeal and
the ordeal of a hot piece of gold.

Some important types of ordeal are:

1. ORDEAL BY BALANCE
wooden balance had to be prepared out of the wood of a sacred tree (such as khadira,
oudumbara). Chanting the Vedic mantras, a large balance was set up on which the accused
(sodhya) was weighed against weights placed in the other pan. Then the sodhya was to get down
from the pan. After the prescribed general procedure was followed such as telling by the judge
about the consequences of telling truth and tieing the written subject matter on forehead, he had
been placed once again in the vacant pan. He was required to sit there in for five palas or
vinadis. If, on this occasion, the pan went up beyond the original marks, he was found innocent,
if it went below the mark, he was guilty.

2. ORDEAL OF FIRE

In the process of fire in ordeal, a piece of flat ground had to be treated with cow dung. Keeping
fire centre, nine circles each of 16 angulas (inches) diameter and situated 16 angulas apart had to
be drawn on the ground. A person to be tested (sodhya) had seven asvatha leaves placed on
hishands with some rice and curd put thereon. Following the general rules, and after the sodhya
had invoked the fire God, a red-hot iron ball weighing about 20 palas (equal to 66 tolas) had to
be placed in his palms. With the hot ball in hand, the accused had to walk seven steps across the
circles placed round the fire and then throw it out. If his hands were not burnt or badly seared, he
was found innocent. In other alternative test, the accused was required to pick with his hand a
coin out of a pot of boiling liquid or to lick with his tongue a red hot plough-share. If it did not
burn he was deemed innocent. Similarly, an accused was required to walk through or stand in
fire for some specific time. If it was accomplished without any harm to the accused, he was held
innocent.

III. ORDEAL BY WATER

The ordeal of water had to be performed after observing all the general formalities including
invoking the deities. In this process the sodhya was to dive under water taking hold of the knees
of a person standing in the water besides him while another man shot three arrows at a target
of a hundred and fifty cubits away. A man who stood near the target was required to pick up the
arrows one after the other. If the sodhya could keep himself completely inversed under water
during all this time he was innocent. If they found him floating, he was declared guilty.

Another method required the accused person to drink the water used in bathing the idol. He was
considered innocent if within the next fourteen days he had no harmful effects.

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IV. ORDEAL BY POISON

In the process of ordeal by poison, the sodhya was administered for a specified number of days,
some kind of poison, in small quantities, extracted from specified plants and mixed with ghee
after some rituals. If the poison has any adverse effect on the body of sodhya, he was declared
guilty, if not, he was declared not guilty

V. ORDEAL BY LOT
.
In the ordeal of lot, a white image of Dharma and a black image of Adharma were prepared.
They were placed on a piece of cloth of plantain leaf over a lump of cow – dung and the whole
thing was put in an earthern pot. After observing the general formalities and worshipping the
images, the sodhya was asked to put his hand in the pot and pick up one of the images without
looking at them. If he got the white image of Dharma, he was to be declared innocent. If he got
the black image of Adharma he was declared guilty.

VI. ORDEAL OF FOUNTAIN-CHEESE

Ktesias states that there was a fountain from which water coagulates like cheese and if this water
is mixed with ordinary water and given to the accused person to drink, he becomes delirious and
confesses his misdeeds.

VII. ORDEAL BY KOSA

The sodhya had to worship deities such as Rudra and Aditya and then these images were to be
immersed in water. He had to perform all other general formalities. Thereafter, there was a
period of waiting of two weeks. If during that period no calamity befell on the sodhya or any of
his close relatives, he was to be declared not guilty.

Besides the above ordeals there were other types of ‘ordeals like the ordeal of Tandula (rice
grains), ordeal of Taptaniasha (heated piece of gold), ordeal of Phala (Ploughshare) and so on.

FACTS PLEADED TO BE PROVED WITH RELEVANT FACTS BY THE

CONCERNED PARTY

The rule laid down by the Smritis was that the plaintiff or the defendant who asserted the
existence of facts should adduce evidence to prove word by word the facts in issue.

Br. p. 294-3 (p. 45.3.S)

The plaintiff shall prove his dedication and the defendant, his special plea. Victory in a previous
trial shall be proved by the document recording that victory.

Nar. Pp. 30-31, 27-31; Dharmakosa p. 217-221:

(i) What the claimant has fully declared in the plaint, that he must substantiate by adducing
evidence at the third stage of the trial.

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 (ii) Where the defendant, in reply to the plaint, has taken a special plea, it becomes
incumbent on him to prove his assertion and he is in the position of a claimant.

The above rules specifically state that the plaintiff should prove his case by adducing evidence.
According, to the procedure, the first stage of a case was of receiving plaint and recording the
statement of plaintiff verifying its contents. The second stage was the recording of a written
statement. The third stage was the recording of evidence. Hence the rule states that evidence
should be adduced at the third stage. In all cases where a defendant took a special plea
(pratyavaskandana) he was required to adduce evidence in support of the special plea. The plea
of res judicata (purvanyaya) had to be proved by adducing the document of victory (jayapatra)
i.e. judgement in a previous case. The above rule equally applied to a criminal case. All the
allegation of facts was required to be proved by the complainant of the State and the accused was
to prove only any special plea taken by him.

PROVING OF CHARGE BY CIRCUMSTANTIAL EVIDENCE

There are six circumstances the existence of which, if proved, the guilt may be held to have been
proved without direct witnesses.
These circumstances are:
(i) The charge of the offence of incendiary by proof of the fact that he was caught with a
firebrand near the sense of occurrence.
(ii) The charge of murder by proof of the fact that he was found near the murdered person
with the weapon.
(iii)The charge of adultery by the fact that the accused was caught or seen when he was
playing with the hair of another man’s wife.
(iv) The charge of destroying embankment by the proof of the fact that the accused was found
with a hatchet near the scene of occurrence.
(v) The charge of cutting trees by the proof of the fact that the accused was found with an
axe near the scene of occurrence.
(vi) The charge of theft by proof of the fact that he was caught together with the stolen
property.

CAUTION REGARDING ACCEPTING CIRCUMSTANTIAL EVIDENCE

Narada, however, cautions the judges against recording a finding in a hurry on the basis of
circumstantial evidence.

(i) Narada p. 16-42 (Sm. Ch. P. 221)

One who has not committed theft or robbery may be charged with that offence. An actual
thief or robber on the other hand may be acquittal of the charge. Mandavya (an ascetic who
was innocent) was tried and declared to be guilty.19

(ii) Narada p. 86-176; Sm. Ch. P.56:

Someone might create circumstance with reference to a person, through hatred, to injure him.
Therefore, it is necessary to resort to careful reasoning in order to get at reliable facts.20

19
Gharpure p.176
20
Gharpure p. 45

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 By the above rule, Narada cautions the judges to proceed with great circumspection while
convicting a person of any offence or come to a conclusion on the basis of circumstantial
evidence.

(iii) Br.p. 284-12 (Sm. Ch. p. 283):

A decision should not be arrived at by merely relying on the words of a text because if
someone judges come to a conclusion without applying careful reasoning, there would be
miscarriage of justice.

The rule of caution incorporated by narada and Br. regarding arriving at a conclusion on the
basis of circumstantial evidence holds good even to this day as the same is the view of
eminent modern jurists.

In the drama Mrichchakatika, there is a condemnation of conclusions drawn by the judges

about the guilt on the basis of mere circumstantial evidence, as innocent Charudatta had been
found guilty of murder of a woman by name Vasantsena who was only missing but not
killed. The author Sudraka demonstrates by this how a judicial procedure stands vitiated.

COMPARABLE PROVISIONS IN THE INDIAN EVIDENCE ACT:

Section 5 of the Indian Evidence Act provides that evidence may be adduced to prove the
fact in issue as well as relevant facts. Sections 6 to 10 give many instances of relevant facts
which may be proved, with several illustrations. These illustrations are similar to those given
by Sankhalikhita and others referred to above. Subsequent conduct and circumstances which
are consistent with the probability of the charged person having committed the offence are all
relevant facts the proof of which may be sufficiently to hold that the charge is established.
Sec.114 of the Evidence Act authorities the court to presume the existence of any fact which
it thinks likely to have happened, regard being had to the common course of natural events,
human conduct and private business in relation to the facts of the particular case.

SPECIAL RULES OF EVIDENCE REGARDING EASEMENTS

Kat. 226:
Proof of enjoyment is weightier, in the case of right to the use of doors or pathways, as well as
also in the case of water courses and the like, than written document or witnesses.

The effect of this rule is that in the case of easementary rights, the proof of actual use prevails
over any documentary or oral evidence. Therefore, if the factum of a continuous user of doors,
pathways or water courses was established by any evidence, whether oral or documentary, any
other evidence (oral or documentary) to the effect that he had no such right was of no avail, and
the user’s right would prevail. This verse is relied on by the Bombay High Court in a detailed
case.21

21
Lalubhai v. Bai Amrit, I.L.R, 2 Bom. P. 229 at 312.

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There are a few more rules which cannot be considered as rules of evidence, but are intended to
serve as guidelines to courts in the matter of preference to be given to different kinds of evidence
in certain rather difficult cases.

(i) In the case of disputes about breach of promise relating to master and servant,
purchase and sale, gambling, betting, or prize fighting, evidence by means of
witnesses is the proper mode of proof (Kat. 227-228)
(ii) In the case of Sahasa (heinous offence) or causing physical injury or abuse and
defamation, and all offences springing from use of force, witnesses or, in the absence
of witnesses, ordeals should be adopted as the means of proof (Kat. 229)
(iii) In the case of persons guilty of heinous crimes committed secretly, the same has to be
proved by means of ordeals or reasoning and observing the demeanor of the accused.
(Kat. 2230-231)
(iv) In disputes relating to debts, document or witnesses or inference drawn from
substantial evidence should be the means of proof and the divine means should be
adopted as a last resort. (Kat. 233).

COMPARABLE PROVISIONS OF INDIAN EVIDENCE ACT:

1) Sections 91 to 100 of chapter VI deal with the exclusion of oral evidence as against
documentary evidence. The rule propounded by the Smritis ( vides Items 6-2 and 8) was
also to the same effect.
2) Section 64 requires that documents must be proved by primary evidence except in the
cases provided in the act.
3) Section 60 provides that oral evidence must be direct, i.e., if it refers to a fact that could
be seen, it must be the evidence of a witness who says, ‘I saw it’; or if it refers to a fact
which could be heard, if it refers to a fact that could be perceived by any other sense or in
any other manner, it must be the evidence of a witness who says, ‘I perceived it’ (by that
sense or in that manner).
4) Section 63 states that oral accounts of the contents of a document given by a person who
has himself seen it, is a piece of secondary evidence is admissible in respect of the
contents of a document.
5) Section 73 provides that for purposes of proving the signature or handwriting of a person
when disputed, his admitted signature and handwriting could be compared and used for
establishing their genuineness.

DECISION OR VERDICT OR JUDGEMENT

After all the evidences were recorded, witnesses were taken and documents were thoroughly
were checked up, the judgement was finally delivered. The six kinds of Nimaya or decision
through pramanas or evidences of witnesses, documents, reasons, usages, oaths, special order of
the king, and the admission by the plaintiff. Where there was no document, no possession, no
witness, and no application of ordeals, the king was at liberty to deliver his verdict. In cases
which were impossible to decide finally and which were of a doubtful character, or those relating
to boundaries etc., the king, as the supreme lord, was at liberty to deliver the judgement. The

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king was expected to give to the victorious party the Jayapatra after it had been carefully
analyzed by the officers and accepted by the other parties.

BIBLIOGRAPHY

1. LAW AND EVIDENCE IN ANCIENT INDIA, UNIVERSAL PUBLICATIONS, (2015)

PRINT
2. ANCIENT INDIA, S. CHAND BY: V.D. MAHAJAN (2017) REPRINT
3. KING, GOVERNANCE AND LAW IN ANCIENT INDIA BY, PATRICK OLIVELLE
(2013).

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