व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

38 VYAVAHĀRAMAYŪKHA [ B. II s. 15-16
[ M. p. 27 l. 35-p. 28 l. 20
even in the absence of both (the litigants) This rule holds good in
(disputes about) quadrupeds, bipeds and immoveable property In all dis-
putes about articles that are weighed (like gold) or that are counted or
measured (the judge) may require the witnesses to depose even in the
absence (of the subject matter of dispute) [but not in other cases
Tayorapi vinā kvacit—this means even in the absence of them both i e
of the plaintiff and the defendant¹ but in the presence of the subject of dis-
pute in some cases i e in the case of quadrupeds and the like, taulyam
means gold and the like that are capable of being weighed, gaṇimam
means coins and the like that can be counted out, meyam means rice
wheat and the like which can be measured abhāvepi means even in the
absence of the subject matter of suit, kriyākāraṇe means in judicial pro-
ceedings The same authority (Kātyāyana) says that in disputes relating
to homicide the deposition of witnesses should be taken in the presence of
(an image or temple of) Śiva:
In the case of the killing of living beings, (the judge) should make the
witnesses depose in the presence of Śiva when no trace (or remnant) of
the death is left, otherwise (i e. when traces exist) a witness should
not be made to depose thus (i e. in the temple of Śiva)²
*Tat means the deposition of a witness. It should be taken (in the
presence of Śiva) in the absence of any marks of the homicide, anyathā
(otherwise) means when there are marks of the killing The same
author (Kātyāyana) says
The king should not cause procrastination in recording the deposition of
witnesses. Great sin, viz failure in performing ones duty results from
procrastination
Nārada (p 91 v 169) says
Having summoned the witnesses and having bound them firmly by
oaths, (the judge) should separately question all the witnesses whose
character (conduct) is well-known and who are familiar with the matter
in dispute.

1. Vīr explains this as Nīlakaṇṭha does. But the Smṛticandrikā and Parāśara-
   mādhavīya explain differently viz. even apart from the two places (evidence may be
   taken) The two places where witnesses may depose are the court and in the case of
   immoveables near the property itself. Evidence in the case of homicide may be taken at
   the place of crime.
2. This is a somewhat difficult verse Some digests read in the presence of the dead
   body (śava for Śiva). This latter seems to be a better reading. Nīlakaṇṭha's way of
   taking tat as referring to deposition and connecting atīte with etakārya is far-fetched.
   He had to resort to it as he read Śiva-sannidhau Vide notes to V M. p 75 for details.
   42 (text)