DANDAVIVEKA
Gy

VARDHAMANA UPADHYAYA

Translated into English By
Dre BHABATOSH BHATTACHARYA

THE ASIATIC SOCIETY
1973

DANDAVIVEKA

(ENGLISH TRANSLATION )

BIBLIOT:'HECA INDICA—A COLLECTION OF ORIENTAL OW ORKS

DANDAVIVEKA
OF `
VARDHAMANA UPADHYAYA

Translated into English By
Dr BHABATOSH BHATTACHARYA

THE ASIATIC SOCIETY
19.73 _

Work Mumber—301

The Asiatic Society

First Published in 1973

Published by

Dr Sisir Kumar Mitra
General Secretary

The Asiatic Society

1 Park Street
Calcutta 16

Printed by

Shri Debdas Nath

Sadhana Press Private Ltd.

76 Bepin Bihari Ganguli Street
Calcutta 12

Price: 1२8. - 4008 |
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< {-1/42 7८८

ड ऽ (4

DEDICATED TO THE SACRED MEMORY OF
HIS LATE REVERED FATHER
MAHAMAHOPADHY AYA KAMALAKRSNA SMR TITIRTHA
( 1870-1934 )
WHO CRITICALLY EDITED THE DANDAVIVEKA
AND OTHER NIBANDHAS,
BY
THE HUMBLE SON, THE TRANSLATOR

PREFACE

The Dandaviveka (D.V.) of Vardhamana Upadhyaya of Mithila, who flouri-
shed in the latter half of the 15th century in the court of the King Bhairava
as his judge, was published on the collation of several Mss. in 1931 by the
late MM. Kamalakrsna Smytitirtha of Bhatpara, West Bengal, as Vol. LII
of the Gaekward’s Oriental Series with an Introduction and Index. It is a
unique mediaeval Sanskrit work on Hindu Criminal Law, produced by
a Sanskrit scholar, actually connected with administration of justice. So it
was utilized a few years later by the Patna High Court in a criminal case,
not covered by the provisions of the Indian Penal Code. It was later on
translated into Dutch by a Belgian Orientalist, Mr. Ludo Rocher, between
1950-52 and published in 1954. Mr. Rocher contacted the present writer
while engaged in the translation to explain to him in English some difficult
words and phrases, occurring in the Sanskrit text, as the editor, Smrtitirtha,
had then died, leaving the present writer as his eldest son. Rocher secured
a Doctorate of Ghent University and is now Chairman of Sanskrit studies
in the Pennsylvania University of U. S. A. He came to India in 1969 along
with his scholarly wife, Dr. Rosane Rocher and the present writer managed
to meet them in the premises of the Asiatic Society, Calcutta, on November
26, 1969. The present writer, who had engaged himself in preparing a full
English translation of the work from June, 1 969, and already secured the
permission of this Society for its publication in their Oriental Series, com-
pleted the work in’March, 1970, and handed over the press copy to them to
do the needful. The MS. was approved by the Council of the Society and
sent to the Sadhana Press of Calcutta a year later for being set up in types.
The present writer had in the meantime identified the numerous quotations
from a score of ancient published works and incorporated them within the
copy. The printed edition of D.V., though accomplished from several Mss.,
is highly corrupt and had to be corrected as far as possible in the translation
in the foot-notes to make the text sensible and readable. The Sadhana Press
has just now completed the printing of the text portion of this translation
with care and expedition in a very fine form on very good quality of paper.
Now that the amendment of the Indian Penal Code has been taken up by the
Ministry of Law, Government of India, the English translation of this mediae-
val Sanskrit work on the same subject may prove useful to the Ministry
for incorporation of its useful points.

Bhatpara | - BHABATOSH BHATTACHARYA _

West Bengal . | | व,

25th September. 1973 क ।

CONTENTS

Chapter

Introductory verses
Theory and practice of punishment
Punishment for Homicide
Punishment ल Theft
Punishment for Molestation of other men’s wives
Punishments for Abuse or Defamation
Punishments for Assault :
Punishments for Miscellaneous offences
(a) Subdivision of definition
(8) Classes of offences
(c) Detached offences
Sahasa |
Punishment for cutting trees
Titles of legal disputes
Punishments connected with judicial procedure
Punishment of assessors
Punishment for accusing honest witnesses
Punishment for procuring false witnesses
Punishment of false witnesses

_ * Punishment of non-deposing witness

Review of judgment and other connected matters
Concluding verses

BIBLIOGRAPHY AND ABBREVIATIONS

Dandaviveka (D. V.)}—edited by MM. Kamalakrsna Smrtitirtha, G.O.S
LI, 1931

Apastamba — Apastamba-dharma-sitra, Edited by Pandit Chinnaswami
Shastri and Pandit A. Ramnath Shastri, Chowkhamba Sanskrit Series,
Benares, 1932

Gautama — Gautama-dharmasiitra, Published by Anandagrama Press,
Poona, 1931. (2nd edition) क

Baudhayana — Baudhayana-dharmasitra, Chowkhamba Sanskrit Series,
Benares, 1934.

. Manu — Manusmrti—printed in the Bengali script with the commentaries of
Kullika Bhatta and Medhatithi and published by the Vasumati-
Sahitya-Mandira, Calcutta.

Yaj. (Yajnavalkya-smrti) with Mit. (Mitaksara), Edited by Janardan Shastri,
Bombay, 1882.

Vatsyayana’s Kamasitra, Edited by Pandit Paficanana Tarkaratna, Vanga-
vasi Press, Calcutta, 1927-

Kautilya’s Arthasastra, Edited by Pandit (MM. Dr) Shama Shastri, Mysore,
1908 ०

Vivada-ratnakara of Candesvara, edited by MM. Kamalakrsna Smrtitistha

B. t., 1931

Vivada-cintamani of Vacaspati Misra, Edited by Lakshmikanta Jha, Published
by Kshemraja Krishna Das, ९

Danasagara of Ballala Sen, edited by Dr. Bhabatosh Bhattacharya B.I., 1956.

Sri-Vasistha-dharmasastra, Edited by A.A. Fiihren, Bombay Sanskrit and
Prakrit Series, No. XXIII, 2nd edition, 1961.

Kamandakiya-niti-sara, Published by Kshemaraja Srikrishnadas, Bombay,
1952.

Visnusmrti — edited by Julius Jolly, Bibliotheca Indica, (B. I.), 1881 (Re-
printed in Chowkhamba Sanskrit Series, No. 95, Varanasi, 1962).

Naradasmrti — edited by the same, B. I., 1885-86, (Reprinted in the Bengali
Script with Bengali translation, Sanskrit College, Calcutta).

Brhaspatismrti — edited by Rangaswami Aiyangar, Vol. LXXXV, Gaek-
wad’s Oriental Series (G.O.S.)., Baroda.

Katyayana-smrti-siroddhaisa — by MM. P .V. Kanes, 1933. |

Katyaéyana supplement — by Rangaswami Aiyangar, Kane Festsschrift,
Poona, 1941.

Prayaseitta-viveka of Silapani—Edited inthe Bengali script and published |

` from Calcutta, 1907-8. |

INTRODUCTION

The Dandaviveka begins with ten introductory verses, describing in the
first nine the name of the author, Vardhamana Upadhyaya’s patron King,
Bhairava of Mithila (modern North Bihar) and elder brother, Gandaka Misra
and two other teachers, Sankara and (Vacaspati) Misras, at whose instance
and training, he has composed this manual of Criminal Law, collecting his
information from the earlier treatises on the subject and the concluding
tenth verse of this introductory portion sets out the names of the seven
chapters of this work, viz. (1) Theory and practice of punishment, (2) Murder,
(3) Theft, (4) Molestation of other men’s wives, (5) Abuse, (6) Assault and
(7) Miscellaneous offences

The first chapter on the theory: and practice of punishment comprises
69 pages and is divided into the following sections

(A) Vices following the non-punishment of the punishables,

(B) Merits of proper punishment,

(C) Requisites of the administration of criminal justice,

(D) Responsibilities of assessors,

(E) Enumeration of punishments,

‘(F) Gradation of fines,

(0) Subjectmatter of punishments,

(H) Variations of punishment due to the five causes, such as exemption
(general or special), extenuation, infliction according to prescription, aggra-
vation and consideration (including general rules, special methods, cumula-
tion and commutation). This variation is also dependent on the following
contingencies:

(a) The caste of the offender, (5) the thing involved in the offence, (€) the
quality (of that thing), (ध) the utility (of that thing), (e) the person, (concern-
ing whom the offence has been committed), (f) the age (of the offender),
(£) his pecuniary condition, (¢) his qualifications, (i) the place and €) the
time of the comriission of the offence and (£) the specific offence.

Section B of tuis introductory chapter, which deals with the merits of
punishment, contains two important matters, viz. (1) that an aggrieved person
‘may take the law into his own hands, when it is feared that injury to his
person or property may arise from the delay, occasioned in reporting the
matter to the king (Manu, VIII., 348-9) and (2) that the king is the only
authority to pronounce sentence of death on criminals (Y4j., I. 357 and
359). These two provisions are relating to the right of private defence and
the confirmation of the death sentence by the High Court, prevalent in
modern times,

| ( xii )
@

The corrupt readings of the printed text of D.V., have been corrected in
the footnotes of this translation, wherever possible but some palpable errors,
which still persist in section F of this chapter on gradation of fines, are noted
down below

(1) Raksgo’ lankarana, quoted on p. 26 of D.V., as a synonym of niska,
used in an earlier text, should be Vakso’ lankarana on the authority of lexi-
cons, explaining it as uro’ bhiisana, i.e. a (gold) necklace |

(2) Ropaka, quoted on p. 27 of D.V. from Visnugupta, should be riépaka,
which is the name of a well-known coin (made of silver). = =

(3) Candrikah and Dhanikah (p.27 of D.V.) should be in the singular number
as Candrikah and Dhanikah. The mention of DAdnikdah again on p.28 of D.V
as being made up of four Trika-s, should also be similarly corrected

The second chapter on Murder, consisting of ten pages only, though the
briefest one, is nevertheless not devoid of interest and inherent importance.
It contains an elaborate procedure of the method of detection of the murderer
and. a subdivision of the offence into those of man-slaughter and animal slau-
ghter. It further subdivides the offence of manslaughter into four classes, such
as Brahmana-murder, Ksatriya-murder etc. and contains a further division
of the offence of both types, i.e. man-slaughter and animal-slaughter into the
specific castes and pecuniary conditions of the offenders themselves, taking
into consideration presence and absence of intention and sudden and pre-
meditated types, the part played by the accomplices and offers of provocation
and implements used in the offence. The culpability of the offender, his
rank, confession of guilt with corsequent immunity from punishment or the
award of a lighter one

The third chapter on Theft is rather a big one, consisting of 74 pages. It
consists of the following topics: definition of theft, differentiation between
overt and overt thieves, general procedure of punishment and exhaustive
treatment of the above two kinds of criminals with many subdivisions of the
Crime, as is evident from the following chart:

(A) Overt | thieves

|
(a) ordinary shopkeepers (5) manufacturing traders,
` ` such as goldsmiths and
leather workers.

= © ees a AEE Os ee Oe ee 11 1 fe -

(1) Transactors of spu- (2) Acutal adulterants
rious, Under-weight and of such articles
adulterated articles

(i) Stationary (ii) nee

( xiii )

(B) न thieves

Ee CRS ee 1 (1 प) oy! 1 ए 1 ।

(a) K ees of . (6) Stealers of (c) Decietful sandal of other
human beings = quadrupeds men’s movables of three kinds,
such as the best, the middling

and the trivial.

‘Overt thieves’ also include quacks, cheats, bribed assessors, deceitful inter-
mediaries, false witnesses, ‘gamblers and prize-fighters, bogus astrologers,
cloth-damaging washermen, dishonest teachers, utterers of false mantras,
practitioners of occult practices and swindlers.

Best things, mentioned in ‘covert thieves’, are also of many kinds, viz.
weighed or counted, hence costly articles such as camphor, ricegrains, gold,
silver and similar other precious things as gems and jewels and costly cloths.
Theft of more than one hundred units of gold and costly jewels entails death-
sentence or mutilation of limbs. Theft of so-called trivial things such as
vegetables, fruits etc., the sale of which provides a person with his daily
bread, sometimes turns out to be the most heinous kind of theft and entails
corresponding punishment upon the thief. While forfeiting the entire proper-
ty of various kinds of covert thieves, the king should leave aside that much
which is absolutely necessary for the sustenance of the culprits with their
families but no such concession is to be made while forfeiting the implements,
used by a hole-digger into other men’s houses at night.

The following text of Gautama (II. 3.45), laid down in the topic of theft,
committed by a Brahmana, viz. ‘He (i.c. a Brahmana) (who commits such
crime) due to unemployment (ayrttau), is liable to perform penances (only)’,
purports that ‘failing to preserve his life by any other (lawful) means (and
consequently committing theft), a Brahmana should under no circumstances
be punished but should have to perform expiation (for his above sin)’. D. V.
has interpreted (on p. 152) the term avrttan, occurring in the above text,
as ‘dnyena prakarena jivananupapattan’ (1.e. finding it impossible to preserve
his life (jivana) by any other means) and so according to it (p. 153) the word
jivana here does not include jivikd, i.e. ‘means of livelihood’, which if included,
will lead to the wrong prescription of committing theft beirig permitted for
a Brahmana in economic distress, as made out by some digest-writers.

_ The fourth chapter on ‘Molestation of ather men’s wives’, consistsing of
42 pages only, is the most interesting of all the chapters. It first clearly
defines the: wogd paraddra as ‘other than one’s wife’ and includes within it
both married and unmarried women and then subdivides martied women
into chaste and unchaste ones, belonging to superior or inferior caste, rela-

( xiv )

= |
tion and stranger, secluded and ugsecluded, wives of impotent or similar
other persons and any other kinds of women. It includes both seduction
and sexual intercourse and describes prohibited, forcible and fraudulent
intercourse and incest. It contains specific sections on defilement and abduc-
tion of unmarried girls, cohabitation with unchaste women and with lower
animals and unnatural sexual intercourse. It incidentally prescribes punish-
ment of untruthful bridegroom and guardian of the bride, who takes back
an already betrothed girl and repayment of the incidental expenses, if incurred
by the bridegroom’s party but authorises the br&le’s party to take back an
already betrothed girl, in case a superior bridegroom turns up.

The fifth chapter on Abuse is highly argumentative. It first divides abuse
into three distinct categories, viz. cruel, indecent and severc. It then sub-
divides abusive utterences into those against one’s own castemen and against
members of superior or inferior caste-men, followed by prescriptions of sepa-
rate punishments of the several kinds of abuses.

The sixth chapter on Assault consists of 40 pages. Assault may be commit-
ted in three ways, viz. (1) by means of ashes etc., (2) clubs etc. and (3) by
means of weapons. It consists of threc parts, viz. the preparation, the com-
mencement and the subsequent result. The respective punishments are also
of three kinds, viz. light, medium and heavy. The light variety of abuse is
of two kinds, viz. mutually started and started by cither of the parties. The
assult. may be of four kinds in consideration of the movable and immovable
character of the creature or thing assaulted and of the biped or quadruped
character of the assaulted creature. The assaulter may also be good or bad
and a single person or a group of persons. The judge must alo arrange for
the repayment of the booty, if snatched away in the assault and subscquently
recovered, the repairing of the property of the assaulted person, payment
of the 106५1681 expenses of a scverely assaulted person and imposition in
some cascs of the double penalty and realisation of some amount of money
from the injurer to appease the wrath of the injured person. In cases, where
the injury, inflicted on an animal, cannot be healed up even by medicine and
diet, the offender shall have to pay its price or furnish a substitute animal to
the owner. Fathers and other superiors, if found instigating their sons ctc., are
to be held guilty but not otherwise. Owners of toothed and horned animals,
obstructing a public road, should, if not clearing it of those animals, where-
ever posssible, shall be fined with the first amercement, which shall be doubled
in cases where the passers-by have cried out more than once to remove the
animals from the path. But if the rider on a quadruped or carrier of a heavy
weight gives a shouted warning beforehand to the pedestrians, the former
will be absolved from criminal liability. There are ten exceptions, according

(xv )

®

to Manu, (VIII. 29-2) to the culpability, of a conveyance and its driver but
not of a palanquin-bearer unlike a chariot-drawing animal (p. 224). A person
with a raised dagger, a violator of another man’s wife’s chastity, a robber,
a poison-administerer, a killer by occult practices and a destroyer of another
man’s inherent strength are the six classes of assailants. But Brahmanas
in distress may take up arms for self preservation. There is no fault in killing
an assailant, except it or he be a cow or a Brahmana. One should not also
kill one’s preceptor, adviser, parents, teacher, Brahmanas, cows and all other
hermits. Moreover, kidnapping of another man’s wife 1s not in itself a cause
of miscegenation but becomes so, if followed by procreation of a child
in her.

Now begins the last and longest chapter on ‘Miscellaneous Offences’.
As the offences, committed by individuals, are too numerous to ८6 specified
within the six well-known categories of crimes, described above, so the re-
maining ones are designated as “Miscellaneous Offences’. The king may take
action suo moto in all these cases, which, not being complained against by
his subjects nor reported to him by his own men, are called nyrpasraya or
nrpasrita vyavaharas (or lawsuits, solely dependent on the king for detection
and subsequent action). This have been subdivided into four classes, prefaced
by an introductory section, viz. vyavasthd-varga, uddista, muktaka, vivada-
pada and vyavahdra-visaya, meaning respectively ‘subdivision of the proposed
fourfold classification’, ‘classes of offences’, ‘detached offences’ including
‘definition of and discussion about sahasa or rash crimes’, ‘recovery of lost
property’, “common pasture land’, ‘finding and division of a treasure-trove’
and. ‘instances*of conflict between Dharma-Sdstra and Arthasdstra’, included
within third section’, the topic of ‘sale without ownership’, being the sole sub-
ject-matter of the fourth section on vivada-pada and the very argumentative
and interesting last section on vyavahdra-visaya, including ‘arrest of the crimi-
nal’, ‘punishments of false witnesses and for accusing honest witndsses’, ‘punish-
ment of perjurers and evidence-withholding witnesses’, ‘review of judgment
and other connected judicial matters.’ Our author’s considered opinion is
that, based on Narada (Sahasa, V. 12b), which is to following effect:

An injury, done to a person with the use of force (sahas), is called a Sadhasa
but that, committed by the use of fraud only, is theft. Then follow such other
topics as ‘the usurpation of a childless widow’s property’, ‘transgression
of the rights and privileges of the higher castes by a Sidra’ and ‘punishment
for the cutting of trees, either having owners or ownerless’. |

It may be stated in conclusion that the following modern threefold theories
of punishment have been mostly followed in this mediaeval treatise on Hindu
Criminal Law, viz. (1) preventive or deterrent (2) retributive and (3) reforma-

( xvi )

tive. The first one, viz. preventive or deterrent theory, is manifest in death-
sentence, while banishment and mutilation of the offending organ of the cul-
prit, fine, forfeiture of property and exacting compensation are instances of the
retributive kind. Detention of the culprit in a jail or in a solitary cell for
correction and repentance of the wrongdoer are the two methods of refor-
ming and reclaiming him as a useful member of the society. The failure by
such methods to bring about a change in the behaviour of a pardened and
pre-destined criminal compelled the old lawgivers, just like their modern
counterparts, to take recourse to the drastic method of deterrent and retri-
butive ways of punishment. We gather from two texts of Manu (VIII. 348-9),
quoted in Section B (of Chapter I) on ‘merits of punishment’ that an aggrieved
person could in some cases exercise the right of private defence by taking
the law into his own hands, when it was feared that his cause might be injured
by the delay in reporting the matter to the king: We also learn from two
texts of Yaj. (I. 357 and 359) that the king is the sole pronouncer of death-
sentence on criminals and that in the absence of the express mention of the
Ksatriya king to do so, in a specific text, a reigning ruler of any other caste
may inflict that penalty. This provision compares favourably with the modern
principle of the confirmation of death sentences passed by a lower court,
by the High Court only

INTRODUCTORY VERSES

May the handful of water, in the evening adoration of Siva and Parvati,
protect (us)—the handful, carefully made by the hands on account of their
having begun to tremble and so, not standing in need of real water, having
already been filled up with drops of sweat and which, having been created
by the closing (of the right kand) by the left on the knowledge of their (coming)
use in prayers, assumed similarity with a conci.(1)

Let Hari in the form of a cowherd also protect us—Hari, who, while
roaming in the forest in company with Radhika and touching her for wiping
with his hand the spreading water of perspiration on her cheeks, at once
became dejected for his unsuccessful effort to do the same, on account of
the meeting of the consequently generated saftvika waters of both of them
and he having become invigorated on that account.(2)

He, who, though the best person in the Universe, having highly honoured
His calling in His manifestation as Krsna, protects, as a cowherd, the cows,
placed under His charge, by carrying a rod in His hand and having been
deSirous of various pleasures, binds the cows with requisite strings and
makes them graze again in other worlds.(3)

The highly powerful person (i.e. the king Bhairava, referred to in the
next verse), having divested Srikusena (of the command) of his entire army,
employs him as a Soldier of his own, carrying out his orders and treats
Kedararaya,*the very prototype of the king of Gauda (i.e. Bengal), as if he
were his own wife (i.e. highly subservient to him).(4)

If he, Sri Bhairava, the king of Mithila, who is an adept in the art of
curbing (the activities of) the wayward and highly deceitful persons, com-
passionately casts a single glance at this work of the author, Sri Vardhamana,
it would then have achieved its purpose.(5)

May my elder brother, Gandaka Misra and my two other teachers, Sai-
kara and Vacaspati (Misra), approve of this effort of mine to compress all
the previous nibandhas (on this subject) in this single volume.(6)

Let those, who are deliberate in thinking and have gone through various
nibandhas, purify this work by their blessings and let wicked persons laugh
at it. What of that ?(7)
` Not envying for its scent of merit nor becoming agitated for its connection
with faults, a wicked man, (completely) ignorant of the merits and defects
of a work, gets irritated, simply because it is the production of another

man.(8)

(8
2 DANDAVIVEKA

Where Mahdarnava, teeming with good qualities, is the minister, the king
himself is a scholar and (his) courtiers have not only subdued their pride
and composed Puranas but also continue to cultivate learning, who will
respect this work of mine, small-witted as Iam? Or, the subject, one under-
stands, is his treasure and one feels proud of it.(9)

General description (of the theory and practice) of punishment, followed

by its six causes, has been dealt with in this Dandaviveka in seven specific
chapters.(10) | |

CHAPTER |

THEORY AND PRACTICE OF PUNISHMENT

MANU (VII. 14-15, 17-18) says in his praise of punishment: God originally
created for that very purpose (i.e. for the protection of the people) danda
(i.e. punishment), his owr son, full of divine splendour, as the (veritable)
dharma (i.e. justice), the protector of all beings. It is out of fear of this
danda that all beings, moving and non-moving, conduce to the enjoyment
(of others) and do not swerve from the path of rectjtude. The king is danda
mcarnate, is the only male person (purugu), the leader and chastiser (of the
Subjects) and is known as the gurantor of the four stages of a man’s life
and of dharma (i.e. justice). Danda punishes all (erring) subjects and protects
all (»eace-loving) persons and remains awake, when everybody else is fast
asleep. Hence the wise call danda as dhurma (i.e. justice) itself.

D. V. adds by way of comment: Tadartham, 1.6. “for that very purpose’
means ‘for the purpose of’ protecting the subjects, which is the king’s duty’,
acfording to the (Vivada—) ratuakara (p. 652) and ‘for the king’, according
to Narayana, is also justified, as the context concerns the king. Dharma
(justice) means ‘dispenser of justice’, the equation of ‘justice’ with “dispenser
of justice’ having been made for glorification. Atmajam (i.e. his own son)
Brahma-tejomayam (i.e. full of divine splendour)—the phrase means ‘a son,
not made of the five elements but partaking of the splendour of the divine
golden (egg, the progenitor of Brahman, the creator)’. This praise is also
for glorification. [§varah (1.6. God) means ‘the creator of all beings’ and
Raja (i.e. king) is derived from prakrti-rafjana (0.6. pleasing the subjects
by making them happy). Purusak denotes that the king is the only male
person, others acting like wives abiding by his orders, according to the
commentary on Manu (by Kullika Bhatta). But according to the Ratnakara
(p. 652) it means ‘like the supreme Being, residing as he does in the hearts
of his subjects’. Netd (i.e. the leader) means ‘he who makes the subjects
achieve their respective ends of life’. Jagarti (i.e. remains awake) denotes
‘performs the work’ of a person, remaining awake, which is nothing but
dispelling the fear from thieves etc. (of the sleeping persons).’

A. VICES FOLLOWING THE NON-PUNISHMENT OF THE PUNISHABLES

Manu (VI. 20 and 2190) says: If the king does not diligently inflict punish-
ment on the punishable persons, the stronger men would injure the weaker

4 DANDAVIVEKA

&
ones, just like the fish, pierced with a rod and placed on fire and there would
exist no ownership over anything and the topsy-turvy condition (of the
society) (adharottaram) would prevail.

D.V. adds: The reading adopted here of the first half of the second
line (viz. Sle matsyan iva@paksyan) is that, adopted by Medhatithi and Govin-
daraja (two other commentators of Manusmrti and also by Kullika Bhatta).
But there is also a different reading viz. Sule matsydn ivdbhidyur (cf. another
different reading, referred to by Kullika, viz. sale matsyan ivahimsyur),
both the above readings meaning viz. ‘the stronger ones would always
inflict injuries on the weaker ones’, implying thereby mdtsya-nydya (i.e.
the maxim of the bigger fish swallowing up the smaller fish). In matters of
ownership also, no enjoyment of one’s separate property, according to one’s
own wishes, would be possible, owing to its invasion by more powerful
persons. The word adharottaram means ‘reversal of the positions of the
high and the low

The same authority (IX. 254) further says: The territory of the king, who
receives shares (amSamSam)' of the booty from the thieves (taskardd), be-
comes disturbed and the king himself is deprived of heaven (after his
death).

D. V. adds that the word taskardn (i.e. thieves) also includes “persons,
having Criminal intimacy with other men’s wives’, who are also causes of
disturbance (in a king’s territory).

The Kamandakiya (—nitisdra) (V. 82) says in this connection: There
are five sources of fear from human 0678514, (attending the collection of
revenue by a king), viz. from persons who have partially beund up their
hair (i.e. from hermits with matted hair)!¥, thicves, persons who are not the
king’s own subjects, the king’s favourites and due to the greed of the king.

D. V. adds that collection of revenue is implied here

Manu (VIII. 307) again says: The king, who realises revenue of both
kinds, viz. bali and kara and taxes (Sulka), receives presents (pratibhoga)
and exacts fines (danda) (from his subjects) without offering them protection
(in return of the. above), goes to hell immediately (after death)

D. V. explains the above technical words in the following manner: Bali

1 But Manu reads asdsamstakaran (i.e. without punishing the thieves) for amsdnisam
taskardd, read in D. V., which former reading appears to be’the better, as it not only reads
taskaran for taskardd, which former reading has been repeated in the just following com-
ment of D. V. but also balim (i.e. revenue) in the next foot of the above text
becomes meaningful =
12 DP. $. reads mdnusam while the printed Kam reads prajdndm i.e. of the subjects.

12 D. V. reado dmuktakesdt, while the printed Kam, reads dyuktakebhyah, which means -

‘from the king’s officers’, which is the appropriate reading here

| ह .
VICES OF NON-PUNISHMENT = 5

means ‘one-sixth portion of the agricultural produce such as rice’ and‘kara
is ‘what is received by the king every month from the villagers and towns-
men’. Sulka (or taxes) means ‘one-twelfth portion of the profit from traders
and other businessmen’. Pratibhoga consists of ‘the daily presents to the
king of fruits, flowers, vegetables etc.’ There is a different reading viz.
Pritibhogam?, for pratibhoga, which reading means ‘fruits etc., presented
out of love to the king for his enjoyment’.

The same authority (VIII. 304 and VII. 28-29%) continues saying: One-
sixth portion of the virtues of the subjects accrues to the king for his protec-
tion, afforded to them and a similar portion of their vices also goes to the
king, not protecting his subjects.

Danda is a very great power, not fit to be wielded by kings, not proficient
in Polity and destroys those kings, who deviate ffom the path of justice
along with his relations and friends. It then torments the fort, the territory,
the sages and the gods

D. V. adds: ‘The torment of the gods is caused by the depredations of
the wicked persons, resulting in the stoppage of oblations of ghee to the
gods, as there is the Vedic text viz. ‘Gods subsist on the gift of oblations
of ghee.*”

Manu (VIIL. 127a) says: Infliction of unjust punishments in this world
destroys both kinds of fame, viz yaSas and kirti.

D. V. adds: According to Kullika’s interpretation in his commentary
on Manu, yaSas is the fame of a person, while living and Kirti is the fame of a
person after his death, but according to Narayana (another commentator
-of Manu), the former consists in the knowledge of many persons, regarding
one’s merits and the latter is the spreading by many persons of those merits.

The same authority (VIII. 128 and IX. 249) further says: The king incurs
great infamy and goes to hell (after death) by punishing the unpunishables
(1.6. the innocent) and withholding punishment from the punishables (i.e.
the guilty). Vice equally accrues to the king in putting to death a person,
not to be so put to death and releasing a person, who is fit to be sentenced
to death and virtue is acquired by the king, who does otherwise (niyacchatah)
D. V. explains niyacchatah as ‘sentencing to death a person, fit to be so punish-
ed and restraining death sentence from a person, not to be put to
death.’ |

Katyaéyana ( #*.961 ) says: Kings and ministers specially incur sins —

* But Manu reads pratibhdgam and Kultuka has explained it as in D.V.

° D.V. amits the second and third feet of v. 29

* The printed text of D.V. omits havih in the above Vedic text, viz Aavij-praddna-
jivanddevd iti smarandt

6 DANDAVIVEKA

(enam) from the non-restraint of the vicious and infliction of punishment
on the humble (natdndm).i €. the inhocent.

D. V. adds: The word enam in the above text is a Vedic word, meaning
‘sin’ or it may mean ‘vice’, according to the context. It is also read ‘enah’,
which is a simpler variant. The word natadndm means ‘of the humble’, i.e.
‘of the unpunishables’.

Vasistha lays down: After withholding punishment (dardotsarge) (from
a guilty person), the king should fast for a day and a night taken
together and the (advising) priest for three copsecutive days and nights.
But after punishing an unpunishable person (a-dandane), the king should
fast for three days and nights and the priest should undergo the krcchra
penance.

D. V. adds the following comment: The word a-dandane has a variant as
a-dandya-dandane, which 1s also of the real import of the former reading,
as the word dandotsarge (in the first sentence) means ‘by withholding punish-
ment, as laid down in works on law’. So, the priest has to undergo fast for
three days and nights, or perform the Krechra penance in not advising or
wrongly advising (the king) respectively. The king and the courtiers also, as
implied by the particle ca (i.e. and), added after the word rdjd (i.e. the king)
(in the second sentence), should undergo® three consecutive days’ @nd
nights’ fast in case of punishing an innocent person.

Yaj (11. 307) also says on this point: If the king has realised a fine from
a person in contravention of the provisions of law (anydyena), he should
dedicate thirty times the amount realised to the god Varuna by a formal
resolve and himself make it over to 21812185. ^

D. V. adds: The author of the Mitaksara in his commentary on Y4j.
has explained the word anydyena as ‘out of greed etc.’ and added that
as the right of the previous owner of that amount of money is not extinguished
in case it has been illegally realised (as fine by the king), so the latter should
also give back the exact amount to the former, otherwise he would be guilty

of theft.
B. MERITS OF PROPER PUNISHMENT

Manu (VIL. 27a and 19a) says: Having inflicted proper punishments (on the
criminals), the king attains prosperity in the three aims of life (i.e. justice,
material benefit and desire). He (i.e. the king), who metes that (i.e. the puntsh-

ment) out with propriety, pleases all his subjects
Yaj. (1. 357 and 359) also says: The act of a king’s infliction of proper

punishment brings (to him) heaven (after death), fame and victory. The

5 D. V. wrongly reads ekardtram upavaso rajitah for trirdtram etc.

MERITS OF PUNISHMENT | 7

king, who punishes the punishables justifiably and puts those very criminals
to death, who deserve that (severest) punishment, gains the religious merit,
derivable (only) from the performance of sacrifices, followed by hundred
thousands of daksinds (i.e. priest’s fees, paid to Brahmanas).

D. V. adds by way of comment: The king has been specifically mentioned
in the above text as the pronouncer of the death sentence (on criminals).
Where there is no express mention (of the dispenser of death sentence)
in a text, the (Ksatriya) king or a reigning ruler of any other caste only is
advised to inflict the extreme penalty, as they are enjoined to protect their
subjects. Any member of the twice-born classes (or Brahmanas) is not
authorised to do so, as Baudhayana and Apastamba have prohibited in
the following texts a Brahmana’s taking up arms za A Brahmana 15 not to
take up arms even as an experiment (Baudh.); taking up arms and practising
vocal and instrumental music and dancing should not be resorted to by
persons other than those, employed by the king (for those very acts).
(Ap. 11.25.14}.

The author of the Mit. has made this comment on the above text of Y4aj.:

Where it is feared that injury to the cause might arise from the delay, occa-
Sioned in reporting the matter to the king, the aggrieved person may then
hifhself put thieves and similar other miscreants to death, on the authority
of the implied permission, evidently accorded by the following texts of Manu,
beginning with the words ‘‘Arms may be taken up by all menbers of the
twice-born classes (or Brahmanas).”’
_ This prescription of the Mit. applies to cases, where thieves etc. cannot
be otherwise festrained on the very spot (of the commission of the crime) or
cannot be traced after they have made good their escape, as the texts of
Manu and others concern themselves with those specific cases, where there
is no other alternative left (than to take the law into one’s own hands).

Manu (VIII. 348-9) says: All members of the twice-born classes (or
Brahmanas) may take up arms, in cases of obstruction offered (by violent
means) to the performance of religious duties (of the members of the twice-
born classes), revolution, raised in course of a foreign invasion, resulting in
the miscegenation of the twice-born and other castes, in self-defence, in
clashes over the pilfering of the portions of daksinds (or priest’s fees in
sacrifices) and for saving the lives of women and Brahmanas. In all the
above cases, a person may lawfully kill the assailants (having no other
alternative left open to him), without incurring any blame whatsoever.
Kullika Bhatta has said in his commentary on the above texts of Manu
that a manslaughter, committed in the above cases, should not be punished
as a rash act (or crime).

8 DANDAVIVEKA
। 1

Manu (VIII. 350-351a) has also laid down the following texts: An approa-
ching assailant, be he a teacher or a child, an old man or a very learned
Brahmana, should be indiscriminately put to death, as a slayer of an assailant
is guilty of no fault |

D. V. adds that the import of the above verses is that only when a person
is unable to save himself by taking recourse to flight, he may without any
consideration put to death any one of the classes of persons, specified above,
ready to kill him. When the visible purpose of a text is possible, it is im-
proper to find out its invisible purpose, if any. O@ the authority of the Vedic
text viz. ‘One should always protect oneself’, there is an imperative duty of
every person to protect himself, which duty is the visible necessity of laying
down the above texts (af Manu) and if that self-defence is effected otherwise
(than by taking the law into one’s own hands), then in that very case the
Slaughter of an assailant will have an invisible purpose. But Narayana (another
commentator of Manu) has interpreted the above texts in a different manner,
as follows: On the authority of a text of Gautama, “One should put to
death an assailant, engaged in the very act of killing oneself, not literally
but by causing mutilation of the latter’s limbs, with the solitary exceptions
of a Brahmana and a cow.” Though in the two excepted cases the
assailed person, causing death of a Brahmana or of a cow, does not
really incur the sin of Brahmana-murder or cow-slaughter, yet he has
been enjoined by the writers of smrti-nibandhas to perform a slight
penance

The author of the Mit. is also of the same opinion. Medhatithi and Govin-
daraja (two other commentators of Manu) have quoted the following
(anonymous) text in their respective commentaries: One should not kill
one’s Vedic teacher, parents, ordinary teacher, Brahmanas, cows and 911
hermits.

As killing any creature without exception, is prohibited, so this
further prohibition of doing so regarding teachers, parents etc. is intended to
emphasize the above general prohibition. If the words ‘gurum va’ (Le.
either a teacher or etc.) in the previously quoted text of Manu are taken as a
paraphrase of the Vedic text, enjoining self-defence, they may also be consi-
dered as an exception to the exception, embodied in the above anonymous
text, resulting in the permission of killing even one’s teacher, let alone other
persons

Or it may be taken for granted in conformity with the following (anony-
mous) text that “‘the statement of contradictory propositions simply stuiltfies
(hanti) one’s intended assertion and makes one reprehensible.”” We shall
explain in our Dvaitaviveka the employment of the verb hanti (literally

REQUISITES OF CRIMINAL JUSTICE 9

)
meaning ‘kills’) in the (figurative) sense of ‘stultification’, as has been evident-
ly done here.

Anigiras lays down: The king, the teacher (guru) and Yama (the god of
death) discharge their lawful duties by inflicting punishment (on vicious
persons). The author of the vices is also relieved of his (previous) vices
(द) and does not get entangled in (future) vices (कनद).

The word guru means ‘teacher’, the word 02041 'mplies “‘of vices, committed
previously and being the subject-matter of the punishment” and® (the word
papena denotes “in future, vices, for their non-commission out of fear of
similar punishment.”’)

It has been laid down: The killer of a cow should be compelled to perform
the (requisite) penance or pay the fine of first amercement.

.As the above text prescribes alternatives of penance and punishment,
so (the wise) have said that ‘vices vanish with punishments also’.

Kullika Bhatta also, while explaining the following text of Manu
(VIII. 18),५५ has thus opined that ‘punishments also have got the efficient
force of removing vices just like penances’: Persons, having committed vices
and having been subsequently punished by the king, become spotless and
go to heaven, just like good men, performing good acts.

So Yama (the god of death), while discharging the duties, imposed upon
him, performs them in accordance with the provisions of law.

So Narada has laid down: Persons, with their vices unexposed, if not
punished by their teachers or the king, are penalised by the rod of Yama
and (subsequently) attain the lowliest positions (in their future lives).

a
C. REQUISITES OF THE ADMINISTRATION OF CRIMINAL JUSTICE

Manu (VII. 30) says: It is by a pure (Sucind), truthful and talented (dhimata)
king only, having good assistants and making enquiries (into the actual facts
of the criminal cases, brought before him) according to law that criminal
justice can be properly administered.

D. V. says: The word धद means “by one, who is pure in monetary
transactions’ (i.e. by an unavaricious person) and the word dhimata means
‘by one, who knows the pros and cons of an act’.

Brhaspati (I. 87) says in the topic of law: The following are the ten limbs
(of the body, i.e. requisites) of a criminal trial: The king, the adhikrta (the
judge), the courtiers (i.e. the ministers, priests, Brahmanas and similar other

¢ The Sanskrit explanatory sentence, forming the text of the bracketed portion, has,
due to a copyist’s error, been taken out of its proper context and placed at the very end of
this section B. |

*2 cf. Vasistha—dharmasdstram (XIX 45) for the self-same text.

10 DANDAVIVEKA

persons), the Smrti (1.6. the lawbooks of Manu and others), the accountant
and the scribe, gold, fire, water and his (i.e. the king’s) men (i.e. the
constabulary). The portions within brackets are from the just following
comment of D. V., which adds that ‘Smrti’ also includes ‘works on
Polity’.

(Br. 1.84-85)— Of these (ten) limbs, the king constitutes the brain, the
judge the mouth, the courtiers the arms, the Smrti serves the purpose of
the hands, the accountant and the scribe those of the two thighs, gold
and fire are the two eyes,water is the heart and the king’s men are the
feet

(Br. 1.88b-90 and 60a)— The presiding judge is the spokesman, the
king is the punisher and the courtiers supervise the litigation, while the
आपृ lays down the judgment by way of decreeing (or allowing), the
case of the petitioner and pronouncing punishment on the defeated
party. Gold and fire are employed for administering oaths (to the contend-
ing parties) and water is used for thirsty and bewildered persons, while
the accountant (or the cashier) counts the money (involved in the suit
or realised as fine) and the scribe writes out the judgment. The king’s
own men bring (to the court) the defendant (or the accused person),
the courtiers and the. witnesses (of the suit) and keep under पला
vigilance both the plaintiff and the defendant (or the complainant and the
accused persons) until the suit is ready for hearing.

Katyayana (V.112) says: If owing to considerations of time and place,
it takes one or two days for the king’s messenger to bring the plaintiff (or
the defendant) (to the court), the latter is to provide means fo the former
(resting in his house)

Yaj. (1. 10b) lays down: Sureties (pratibhi) are to be taken from both
the parties, able to ascertain the truth of the case (Karya-nirnaye)

D. V. adds the following explanatory paragraph: Karya-nirnaye is really
nirnaya-karye, the reversal of the component parts of the above compounded
words having taken place on the analogy of the words like ahitagni. This
nirnaya-karye means ‘in the recovery of debts, as established by the litigation
(in a civil suit) and in the payment of fines, as ordered (in a criminal case).’
The word prati-bhii is derived from the prefix and root, prati and bhi
respectively and means ‘one, who exercises influence in the contended
matter or is like either party of the suit’ and is thus ‘a representative.’

Katyayana (V.117) again says: If no one is available to stand surety
in the petitioner’s suit, he (i.e. the petitioner) is to be kept at the end of the
day of the hearing of the suit under the custody of the king’s messenger
(in his own house), to whom he will have to pay his daily allowance.

REQUISITES OF CRIMINAL JUSTICE 11

Manu (VIII. 1—Ist line only”) holds: Intending to supervise litigation
along with Brahmanas, the king (pdrthivah) should first make obeisance
to the lords of the ten quarters and then begin his work. D. V. adds that
the word ‘parthivah’ means ‘lord of the prthivi (i.e. the earth)’ 1.6. a king,
who may even be other than a Ksatriya.

The Mahabharata lays down: A king, engrossed in pleasures and thus
failing in his duty of supervising litigation of the parties, come to him for
decision of their cases, suffers (afterwards) like (the king) Nrga

Yaj.° (1.12) opines: The king should supervise cases (brought to him by
the litigants for decision) along with learned Brahmanas (brahmanath
saha)

_The author of the Mit. thus comments on the phrase ‘brdhmanailt saha’:
The word brahmanath is a third case-ending plural Form (of the stem brah-
mana), thereby signifying that the Brahmanas are not prominent here, owing
to the grammatical rule viz. sahayukte apradhdane (i.e. the indeclinable saha,
following a word, denotes the subordinate position of the latter). So the
king is to be held guilty and not the Brahmanas for not supervising or illegally
supervising a litigation.

Katyayana (V.63) says on this point: When the king is not able to
supervise litigation owing to pressure of other work, he should appoint a
Brahmana, proficient in law (to do the same).

In the unavailability of such a Brahmana, the same authority (V.67)
continues: When such a learned Brahmana is not to be had, a similar
(i.e. scholarly) Ksatriya or a VaiSya, proficient in the sacred lore, is to be
employed (by the king) but never should a Sidra be engaged (in that work).

Manu (VIII. 21) also says: The kingdom of the king, where a Sidra
dispenses justice, dwindles away before his very eyes, like a cow in a
morass.

Vyasa also says: Not only the territory (of the king), who looks over
administration of justice along with Sidras, leaving aside the members of
the twice-born classes, becomes disturbed but also his army and treasury
are destroyed

Manu further says: The king’s courtiers should be evenly disposed towards
friends and foes (i.e. should be impartial)

Brhaspati (1. 82b) says: The king’s men should be trained to be truthful
and submissive to the courtiers.

7 But the printed Manu reads the second line otherwise, which purports that ‘the king
should humbly enter the hall of justice along with ministers also, who are conversant
with the (five-fold) secrets of state-craft’.

9 D.V. omits the name of Yaj, before the following quotation,

12 DANDAVIVEKA

K&tyayana says: The king’s men and the cashier and the scribe, appointed
by him (i.e. the king), should translate into action all the (executive) orders
of the courtiers.

Brhaspati (I. 65a) further says: The judge (prad-vivakak) or the (king’s)
Brahmana assistant should look over the king’s® work (of supervision of
litigation).

D. V. thus derives the word prad-vivakah: He, who puts questions to the
plaintiff and the defendant, is praf (derived from the root pracch, meaning
‘to ask’) and he, who discusses (vivinakti) the replies, given by them, in
consultation with the courtiers, or pronounces judgment after discussing
(vivicya) with them (both the words, vivinakti and vivicya having been derived
from the root vic, prefixed with vi), is a viva@kah and the same person, dis-
charging both the above duties, is known as a prdd-vivdka (= prat-+-vivaka),
presiding over a hall of justice (1.e. a judge).

Manu (VIII. 10a) says: He (i.e. the judge or the Brahmana assistant”),
assisted by three courtiers (i.e. assessors), should look over the supervision
of litigation work of the king.

Gautama (II.4 31) says: Truthfulness (i.e. impartiality) of a judge is the
highest of all the virtues.

Brhaspati (1.73, 92-94 and 75) lays down: The halls of justice (Karaga)
of the foresters, soldiers and merchants should be located respectively in
the forest, the army and the merchants’ assembly. The family (of the liti-
gants), the guild (of the artisans and traders), and the corporation (of the
Brahmanas or of other worldly-minded people, following various occupa-
tions), fully approved of by the king, should decide the casgs, concerning
their members but other than those, relating to rash acts, i.e. crimes.
The heads of these corporate bodies are known to be the arbiters of the
cases of their constituents. Any (judicial) matter, left undecided by the
family (of the litigants) should be taken up for adjudication by the guild
(of the parties involved) and any matter, falling outside the knowledge
of the guild, should be similarly taken up by the corporation (gana).
Any matter, not coming within the purview of the knowledge of the
corporation, should be finally decided by the assessors, appointed by the
king (niyuktakaih). The assessors are Superior (in power) to the family etc.
and the judge (adhyaksa) supersedes the assessors. Of the family, the
guild, the corporation, (the assessors), the judge (adhikrta) and the king,

° D.V. reads raja (i.e. the king), which has been emended here as rajiiah (i.e. the king’s)
for reasons of consistency with the just following Manu’s text.

10 The verse, just preceding this half verse of Manu, speaks of the appointment of a
learned Brahmana only but the context here supports the inclusion of the judge also in the
portion within breackets,

RESPONSIBILITIES OF ASSESSORS 13

the next ones are successively higher (in judicial authority) than’ the
preceding ones—this is the established ldw in this matter.

D. V. adds: The Kalpataru (i.e. the Krtya-kalpataru of Lakgmidhara
Bhatta) has explained the word Sreni (i.e. guild), occurring in the above
text, as ‘a group of traders and farmers, following the same occupation’.

-D. V. further says that the word sabhya (meaning ‘the assessor’) missing
almost at the end of the above text, should be supplied between gana (the
corporation) and adhikrta (the judge). When all the bodies, specified above,
are in a fix to decide a criminal case, the king should be the final decider. This
is the purport of the above entire text.

Both Brhaspati (I. 76) and Katyayana (V. 83) lay down: The king should
have the cases of the hermits and of the magicians and persons, practising
yoga, decided by those, proficient in the three superior Vedas (i.e. Rgveda,
Yajurveda and Samaveda) only and should not himself adjudicate them,
lest these persons may get enraged. |

Narada (III. 17) lays down: The finding in a piece of litigation, where all the
assessors pronounce a unanimous judgment, is known to be a virtuous
decision and it turns out to be a vicious one, if otherwise.

D. RESPONSIBILITIES OF ASSESSORS

The author of the Mit. is of opinion that assessors may have some fault,
common among the ordinary masses and some other fault, peculiar to them-
selves. The former kind of fault has been thus described by Manu (VIII. 13)
and Narada (III. 10): One should not enter a hall of justice (sabham va na
pravestavyam) (i.e. simply for the purpose of seeing it) and should always
utter truth (when questioned about), because a person becomes guilty by
keeping silent or saying untruth.

D. V. thus comments on the above text: Here the word sabham, which
is a noun, comes as the special word, satisfying the curiosity of the hearer
of the general word pravestavyam, which is a verb. Thus it has been said
(by Patafijali) in the chapter on grammatical fallacies in his Mahabhdsya
(which is a commentary on Panini) that though the learned aim at gram-
matically flawless expressions, such usages as the following are also current
(in the Sanskrit language): (1) The aphorism of Panini (2.4.1.) viz. dvigur
ekavacanam, [where dvigu (the name of a compound), which is a word in the
masculine gender, has been syntactically connected with ekavacanam (mean-
ing ‘singular number’), which is a word in the neuter gender], (2) The sentence
viz. Yathdyuktam artham partksitum, [where the masculine noun word
artha, (which ought to have been used in the first case-ending singular) has
been used in the second case-ending singular to serve the double purpose of

14 DANDAVIVEKA

its Being an object to the infinite verb pariksitum and in apposition with
the adjective word yathayuktam, which also ought to have been used in the
first case-ending singular of the masculine gender, the whole sentence
meaning ‘It is appropriate to enquire into the sense’.] and (3) The sentence viz.
Sakyam Svamamsdadibhirapi k sut pratihantum [where the word (८४८7, though an
object to the infinite verb pratihantum, has been used in the first case-ending
and not in the second case-ending, the whole sentence meaning ‘Hunger
may be satisfied even by partaking of such (uneatables) as dog’s flesh’. ]

But Kullika Bhatta has suggested the supply of the verb uddisya" (1.6.
aiming at) after sabham (the hall of justice). Medhitithi has, however, read
the portion as sabhad va na pravestavyad and thus avoided the grammatical
irregularity. The Mit. has also read it similarly.

Manu (शा. 18), Narada (III. 12), Harita and Baudhayana (I. 10.30) say:
(In case of a miscarriage of criminal justice,) a quarter of the (consequent)
Sin accrues to the criminal, another quarter to the witness, a third quarter
to the assessors (sabhdsadah) and the last quarter to the king.

D. V. adds: Kullika Bhatta (in his commentary on Manu) has qualified
the word sabhdsadah (i.e. assessors) by the adjectival phrase viz. ‘those,
who do not prevent the perversity of the judgment’. The author of the Mit.
says that ‘the aforesaid blemish accrues to the assessors, only when the gase
is wrongly decided with the approval of the king.’ ‘A quarter of the sin
accrues to the criminal’ is to be understood to convey the sense of ‘generating
a similar additional sin in the criminal himself (apart from the original sin,
already accrued to him),’ as a sin, committed by one person, Cannot be
transferred to another person’. Govindaraja, Narayana Sarvajfia (two other
commentators of Manu), the author of the Parijata, the Pradipa, the Dipika
and other digestwriters are of the same opinion. But Medhatithi says that
the above sentence is simply recommendatory (and not mandatory).

Kullika Bhatta has, however, said on this point: We have been told
(by the Vedic texts) that the sin of the criminal partially goes to the witness
and similar other persons and there is here no conflict with the contradictory
opinion, as such conflict is prevented by the Shastric authority. As the
determination of virtue and vice depends solely on the authority of the
Shastras, so it can be safely imagined that they (i.e. virtue and vice) can be
transferred to persons other than the original sinners and, moreover, the
Lord Badarayana has expressed his similar opinion.

D. V. says that the above argument is questionable, because, if it is

11 The printed commentary of Kullika, however, reads avagamya after sabhdm and adds
vyavahara-darsanartham, the two new words meaning ‘knowing’ and ‘for the purpose of
witnessing a litigation’ respectively.

RESPONSIBILITIES OF ASSESSORS | 15

P|

possible to interpret the Shastras otherwise, there is no warrant for
forging the above interpretation here, or else it will militate against various
other texts.

Manu (VIII. 19) [cf. Narada (III. 13) and Baudh (I. 10.30)] further says :
When a person, fit to be censured, is so done, the king is relieved of the
sin (which would have otherwise accrued to him), the assessors also are
freed from its evil effects and the sin goes to the sinner himself.

Narada (LI. 3) says: An assessor, advising (the judge) justly, becomes
neither despised (by the public) nor a sinner (in the eyes of God) and thus
acquits himself of his responsibility but he incurs both despise and sin, if he
does otherwise.

Brhaspati (I. 98) says : He, who, being devoid of ayarice or hatred, decides
a litigation in conformity with the legal prescription of the sacred books,
attains the religious merit of a sacrifice.

Narada, Yama and Kéatydyana lay down: A king should never
pronounce a judgment, which is in contravention of the. Sruti (i.e. the
Vedas) and the Smrti (like those of Manu and others) and is injurious to
the people and should order a retrial of a case, if so decided. Even if an
unjust (i.e. erroneous) judgment has been given by any other former king
out of ignorance, the latter king should again decide the case in accordance
with the prescribed canons of law

Katyayana (VV.74, 76-78) says: When the king has passed an unjust judg-
ment in a case between two contesting parties, the assessor should (imme-
diately) report the matter to him and fully restrain him (from giving effect to
that judgmerit). An assessor has got the duty of speaking out just and
meaningful words but if the king turns a deaf ear to them, the assessor
becomes absolved of the consequent guilt. But coming to learn that the mind
of the king has swerved from the path of rectitude, the assessor may say
some unpleasant words to him, whereby he incurs no sin whatsoever.
AssesSors should not, as a rule, wink at the conduct of the king, bent on
doing injustice. If they do so, they, along with the king, go with downcast
faces to hell (after their death).

D. V. adds that the above text exemplifies the latter kind of fault, peculiar
to(the appointed) assessors only. In the former kind of fault, the unappointed
assessors incur sin by maintaining silence or uttering improper words, while
in this latter kind the appointed assessors go to hell, even if they do not try
to dissuade the king, bent upon causing miscarriage of justice. When the
king does not desist from his wrong course of action inspite of the persuasion
of the assessors, the latter, even if uttering words, unpleasant to the king,
are not to be found fault with on that account. :

16 DANDAVIVEKA
ए. ENUMERATION OF PUNISHMENTS

Brhaspati (XXIX.2) says on this topic : Punishment is said to be fourfold,
viz. admonition, reproof, fine and corporal punishment (Vadha). It should
be meted out in consideration of the offending person, his pecuniary condi-
tion and the specific offence (Committed by him).

D. V. adds the following comment: Admonition means “rebuking a
person with the words : ‘Thou hast not acted properly’ etc.” Narayana
has said that it consists in the following statement only, ‘Cast him away’.
Reproof is nothing but “‘reproaching a person with the words viz. ‘Fie to thee,
villain, perpetrator of evil deeds!’.”” Fines may be of two kinds, viz. fixed
and fluctuating. The fixed kind of fines corresponds with the three kinds of
amercements, viz. first‘ medium and high. Where a proportionate increase
of fine is demanded by the repetition of an offence, the system of the fine
to be imposed on the offender is of the fluctuating kind, which Is generally
of two categories, viz. in terms of panas and in terms of mdsas, which will be
treated below in full. Corporal punishment is of three kinds, viz. torture,
mutilation of limbs and death-sentence. Torture also consists of four kinds,
viz. beating, restraint, putting into fetters and harassment. Beating is ‘whip-
ping’, restraint consists in ‘curbing a man’s activities by imprisonment and
So forth’ and putting into fetters is also intended for the (almost similar)
purpose of ‘obstructing the operation of his free will’. Harassment may be
effected in many ways, viz. shaving the head of the culprit, making him.
mount on an ass, imprinting his person with the words ‘thief’ etc., proclaim-
ing his specific offence with beat of drums, making him patrol the whole
city or town, so on and So forth

Mutilation of limbs 1s of fourteen kinds, as there are fourteen parts of the
body which can be mutilated

Brhaspati (XXIX. 4) has enumerated them in the following text : Hand,
leg, organ of generation, eye, tongue, ear, 7086, half-tongue, half-leg,*”
the thumb and the second finger taken together (samdamSa), forehead, upper
lip, anus and waist.

Manu (VIII. 125) also says on this point: (There are ten kinds of punish-
ment according to Manu VIII. 124). (The limbs to be mutilated are) the
genital organ, the belly, the tongue, hands, feet, eye, nose, ears and the entire
body (deha). Fines may also be imposed (on the criminal in some cases).

18-The very compound word of the text in this portion is jihvd-pddardha® and D. V.
argues in his. corresponding comment that the word ardha (meaning ‘half’), added to the
second part of the above dual compound, is to be construed with jihvd (tongue) also, as
it has been naturally done with pada (foot), otherwise the mention of jisvd only will
be a repetition of the same, occurring in an earlier portion of this text.

GRADATION OF FINES | | 17

D. V. adds that the dual number in the words ‘hands’, ‘feet’ and ‘ears’ is
not to be emphasized or it suggests two alternatives (i.e. either one hand or
both the hands etc.) and that the above list of ten kinds of punishment is not
exhaustive but only indicative of the minimum number (otherwise it would
be in conflict with the previous list of Brhaspati). The mention of deha
(i.e. the entire body) means the ‘sentence of death’, as Kullika Bhatta has
So interpreted it. This sentence of death is of two varieties, viz. pure and
mixed, of which the pure variety again is of two kinds, viz. simple and com-
plicated. The simple kind,can be effected by the stroke of a sword, while
the complicated kind by the use of various means, viz. making the criminal
ride on a Stake etc. The mixed kind of death sentence may be caused by
combining mutilation of limbs with other kinds of corporal punishment, as
considered necessary in particular cases

F. GRADATION OF FINES

Sankha-Likhita have laid down: The first amercement (prathamua-sdhasa)
ranges between 24 and 91 panas, the middle amercement (madhyama-sdhasa)
between two hundred and five hundred panas, while the highest amercement
lies between six hundred and a thousand panas. These three kinds of mone-
tafy punishments are to be inflicted in accordance with the gravity or other-
wise of the offence committed and in consideration of the pecuniary
condition of the offender.

D. V. adds: Thus in the following texts of Narada, Yaj. and others the
upper and the lower limits only of the fines, viz first, medium and highest
to be imposefl on the criminal, have been laid down. These fines are to be
exacted from the offender in considerations of his wealth and seriousness
or otherwise of the offence, committed by him. The prescription of the
monetary punishment will, however, be limited within the minimum and
the maximum, laid down in these texts.

Narada says: The first amercement (pirvah) will extend from 40
(catvadrim$d ऽ varah) to 96 (panas), the middle one lies between two hundred
and five hundred (panas) and the highest one will be between five hundred
and one thousand (panas).

D.V. adds that there is a variant viz. caturvimSda इ varah (meaning “not less
than 24’) of catvarimSd s varah in the above text.

Manu (आ. 138) and Visnu also lay down: Two hundred and fifty
panas constitute the first amercement, five (hundred panas) the middle
amercement, while one thousand (papas) make the highest amerce-
ment
Yaj. (I. 366) also says: One thousand and eighty (panas) constitute the

3 9

५ 2 /4

18 DANDAVIVEKA

highest amercement, the middle and the first amercements consist of the
successive halves of the just preceding ones.

Brhaspati VIII. 1la) says: One thousand Karsapanas make the punish-
ment of the highest amercement

D. V. adds in its comment that a kargsdpana 18 nothing but a pana, as
both the words are synonymous and that on the authority of the above
joint text of Manu and Visnu, the numbers such as twenty-four, spoken of
in all other texts, are to be construed with panas, understood. The author
of the Kalpataru and other digest-writers have alsq similarly interpreted the
texts 10 conformity with the above view of Manu and Visnu.

Manu (VIII. 131 & 134a) lays down the following explanation of the
technical terms, denoting weights (of coins etc.): I shall now describe in
full the technical terms regarding (weights of) copper, silver and gold, current
in the world for transactions of sale and purchase (for their application to
monetary punishments). The weight of six mustard seeds makes a medium
Yava, three of which make a XKrysgnala.

D. V. adds that as the gufijas, used to measure a Krgnala, weigh variously,
so a Krsnala or a gufja of the weight of three Yavas only is to be accepted
on the authority of the following text of the Agasti-prokta; A gufja consists
of three Yavas | 9

D. V. further says that this definition of a Krsnala holds good regarding
the measurement of both gold and silver.

The Agasti-prokta further lays down: A tandula is equal to the weight
of eight white (or light brown) mustard seeds. It is known as the Vaisnava
Yava., while others have called it godhiima. ®

Manu (VIII. 1340 & 1358) says: Five Krsnalakas (or Krgnalas) make a
masa and sixteen mdsas constitute (the minimum weight of) gold. Four
such weights of gold make a pala and ten such palas constitute a dharana.

Visnu lays down in his fourth chapter on magas: Twelve masas make one
aksaka and four added to the twelve 1.6. sixteen mdsas constitute one mea-
sure of gold | |

But the Abhidhana-Kosa says: 0102 begin to weigh from five 14605
and sixteen mdsas make an aksa or Karsa (which words. are nouns in the
masculine gender) and four such weights make a pala.

Other authorities have, however, said: Ten 12545, produced from rice after
moderate ripening in one’s field, are equal in weight with qa gold masa.
Sixteen such gold mdsas, each of which weighs as a collection of five gufjas,
constitute the weight of a (standard) gold (coin), which is tantamount to a
Karsa. Four such Kargsas make a pala, a hundred of which make a tuld.
Twenty such tulds make a bhara.

GRADATION OF FINES 19

3
` Candesvara has laid down in the ,Bala-bhisana: A Karsa is a quarter
of a pala and a tolaka is half of a Karsa. These are current in terms of mdsas,
a masa being similarly spoken of as ten €.

D. V. adds that this pala, which is equal in weight with eight tolukas, is
current among the physicians.

Yaj. (I. 363b) says: Pala is known to be the standard weight of four or
five gold coins. |

Manu (VIII. 1352, 1368 & 137) is of opinion: Two Krysnalas, weighed
together, make the weight of a silver mdsaka (i.e. mdsa), sixteen of which
constitute a silver dharana, or a (silver) puradna. Ten such dharanas (or
purdnas) make a silver Satamana and four gold coins of the standard weight
constitute a niska in legal tender. :

Yaj. (I. 364b and 365) also says: Two Krsnalas make a silver masa
and sixteen such silver ma@sas make a dharana, ten of which constitute a
(silver) Satamdna, equal in value to a gold pala, four of which are equal to a
niska in monetary transactions.

D. V. adds: The introduction of the word ‘gold’ in the section of silver,
measuring a niska, is meant for the description of the standard, relating to
gold, to be described below. Se it has been explained in the digest, called
the Maharnava that a niska is a silver coin, equal in value to four measures
of standard gold, which is the criterion of the evaluation of all other metallic
coins. Thus, the previously cited text of Manu (VIII. 137b), defining ‘niska
as four measures of gold’ is to be similarly interpreted with no prejudice
to the section of silver. So Manu has added the word ‘in legal tender’
(pramanataf).

Visnugupta (i.e. Arthasastra of Kautilya, cf 40.37) says in his section of
silver: Eighty-—eight white (or light brown) mustard seeds weigh equally
as a silver mdasaka (or mdsa). Sixteen such seeds make the weight of a
dharana or a niska and twenty such seeds constitute a silver pala, ten of
which latter make one dharanaka (dharana?).

The आ lays down: Five measures of standard gold are called a niska
and the wise men say that one hundred and eight measures of gold are also
known to be a niska.

But the Abhidhana-koga is of opinion: The word niska, which is of
masculine gender, means one hundred and eight measures of gold, a dinara,
a Karsa, a Raksasa, an ornament and a gold pala. |

Manu (VIII. 136b) has laid down: A Karsapana and a pana are to be known
as the two designations of copper Karsa.

‘The Ratnakara (p. 673) is also of the same opinion. But the (previously
quoted) Abhidhina-Koga further says: All Karga coins are algo designated

20 | | DANDAVIVEKA
@
- as Kargapanas and such of those coins as are made of copper are specially

known as pandas

Rabhasapala has defined “‘a Kakini as one-fourth part of a pana, of an uda-
mana and of a ganda’ but Rudra has defined the former as “equal to an
udamana but one-fourth part of a pana and a gandaka only.”

Brhaspati (VIII. 9b—10b) says: A coin, made of a copper Karsa, is known
as a pana of the Karsa type and coins of this weight are also known as can-
drikd, four of which make a dhdnika. Twelve such dhdnikas are equal in
monetary value of a gold coin, called dinara. ॥

Visnugupta has further said: A ropaka (1.e. a silver coin) is one-seventieth
of the value of a suvarna (i.e. a standard gold coin) and a dinara (which is
also a gold coin) is equal in value to twenty-eight ropakas

Katyayana (V. 493), as cited in the Caturvarga-cintamani, has laid down
A masa is known to be the one-twentieth part of a Karsdpana and a Kakini
is the one-fourth part of a masa as also of a pana.

Narada (cf. caura-pratisedha, vv. 58-60) says: A masa is defined as the
-one-twentieth part of a pana which is the one-sixteenth part of a Karsdpana
and a Kakini is the quarter of a masa as well as of a pana (panasya ca). We
have laid down these definitions of a Karsaépana and other coins, which are
current in the province of the Five Rivers (i.e. the modern Punjab) aldng
with the measure of a Karsdpana. This latter is also known as trikd (cf.
cdndrika above in the quot. from Brhaspati), four of which make a dhanika.
Twelve such dhanikds are equal in monetary value of a gold coin, called
dinara

D. V. thus comments on the above extract: The reafling palasya
for panasya in the Ratnakara (p. 7) in its topic of interest on debts
‘is a copyist’s error, inasmuch as the reading with a na (i.e. panasya)
is found in the Kalpataru, Kamadhenu, Krtyasara, Mitaksara and
Smrtisdra in their respective chapters on weights and measures (of Coins
etc.) and also because the mention of a pala, which is a gold mdsga, is
irrelevant in the topic of panas, Karsdpanas and similar other (coins of
baser metals)

Narada (caura V. 57) further lays down: The silver Karsapana is current
in the South and one, consisting of sixteen panas (copper coins) only, is
current in the East

D. V. adds: Thus a gold mdsa weighs five rattikas, while a silver masa
weighs two rattikas only. This latter kind of mdgsa is one-twentieth part
of a purdna coin, as laid down by Katyayana (cf. Manu, VIII..136a, above,
where it has been laid down that sixteen mdsgas (and not twenty) constitute
a purdna). A mdsa is the qne-twentieth part of a pana on the authority of the

GRADATION OF FINES 21

(just quoted) text of Narada (वषाव, v. 38) and on the authority of another
text of Narada (caura’ 55), to be cited below (p. 54 of D.V.), beginning with the
word viz. masdvarardhah., a maga is a quarter of a Karsapana, which is also
equal to another kind of mdsa, which constitutes four Kakinis only, accord-
ing to that very latter group of texts (caura® v. 56) of the same author, to be
cited below (p. 53 of D.V.). Another kind of masa, which is a silver one, is
known from the earliar quot. from Visnugupta in this section. So the general
(i.e. variable) nature of a Kssnala is justified.

Thus, owing to the varigus senses, applied to the word masa and other
words by the authorities (cited above), there arises confusion in their applica-
tion (as fine) in Criminal Law. So Katyayana (vv. 491-2) has laid down the
following prescription to avoid that confusion: Where one-fourth or a
half of an undescribed masa has been prescribed (in a text), it should be
interpreted as a gold mdsa. But where similar prescriptions occur with the
use of the word mdsaka (and not masa), the interpretation would be that it
refers to a silver masa (and not a gold masa). A Krsnala should be taken
to mean a gold or a silver coin, as specified in the text, laying down the
punishment.

D. V. adds that the above prescription is applicable, only where there is
no Special rule, laid down in the text concerned. For example, Manu (VIII.
393b) lays down in his topic on miscellaneous offences: A fine of a gold
masaka should be inflicted (on the above offender) in addition (to the pre-
viously prescribed punishment).

So though the fine of a (gold) mdsa is prescribed as punishment for the
owners of cattle, damaging (other people’s) crops, the fine of a silver mdsqa is
to be inflicted on the authority of the following express text, which Bhasyakara,
quoted in the Ratnakara (p. 233), has laid down: Ordinarily gold mdsas
are to be understood in cases of the mention of the word mdsa only in the
punishments (prescribed for several offences), but the penalty for the damag-
ing of crops by animals is to be fixed in terms of silver magas only.

But the Mit, has quoted the following text: (The owner of) a she-buffalo,
damaging other persons’ crops, should be fined eight mdsas.

D. V. adds the following lengthy comment: The word ‘mdsa’, used in the
above text, quoted in the Mit., is the twentieth part of a copper pana on the
authority of the previously quoted text of Narada viz. A mdsa is known to
be the twentieth part of a pana. In the special text viz. ‘A gold niska is to
be paid (by the offender) for this offence’, the word niska is to be interpreted
as real gold, consi.ting of four standard measures of the same metal. But
elsewhere (in the absence of such a special text) silver of the same quantity
will have to be exacted as fine—this prescription, as laid down by the author

22 DANDAVIVEKA

of the Maharnava, has already been quoted by us and may be followed here
also, as it does not come into conflict with other special texts and also on
account of the following prescription of Manu (VIII. 284b) in his chapter on
parusya (i.e. abuse and assoult): A fine of six niskas is to be imposed on a
person, who pierces through another person’s flesh (of the body, in course of
assaulting the latter)

A similar punishment, laid down by Brhaspati in the following portion
of his text viz. ‘The middle amercement (is to be fined) for piercing through
the flesh’, is also fo be construed in terms of gilver niskas, as the value of
the middle amercement comes up to the value of several niskas of silver only.
In all these cases, involving fines of masas, the prescription of punishment
is according to express texts.

In all other cases where there occurs a conflict between the inter-
pretations (of particular expressions) of the Smrtisastra (i.e. law-books)
and Abhidhdnasastra (i.e. lexicons), the authority of the interpretation,
offered by the former, is to be accepted, as it has got more intimate
connection with the expressions concerned than that, -possessed by
the latter. Even in those cases (where such authority of the law-books
is relied upon), the interpretations of the technical terms and expres-
sions are to be followed in consonance with those, laid down if the
particular provinces of the Smrtisadstra, which have got the most intimate
relation with the terms and expressions involved. In all other cases, the
interpretations of the lexicographical literature are to be acted upon, as
this literature is the settler of.controversies, regarding the true imports of
words, and also be cause the works of this particular lituratufe are recorders
of traditional learning. But in case of conflicts between (or among) several
lexicons, it appears that the punishments will vary in proportion to the
gravity of the offences committed, just like the gradation of monetary
punishments in direct proportion to the gravity of the wrongs done,
prescribed by Y4j. (I. 366) (see above in this section).

Katyadyana (V. 102 = V.490) says: The punishments, laid down (in law-
books), for several offences in specific numbers also, are to be construed
with panas (pandnadm grahanam tat syat) or their monetary values, which
the offenders will have to pay to the king.

D. V. adds. These panas are copper coins of the Karsa denomination and
the alternative payments of their monetary values are to be made, only when
such coins are not available. The Ratnakara has, however, read the third
foot of the above text(pandnarh grahanam tat syat) as yatrdparddhasya’, which
latter reading is questionable, as it, being as construed as a whole sentence
with the next following foot, makes out.no sense whatsoever,

SUBJECT-MATTER OF PUNISHMENTS 23

The measures of rice and other grains will be laid down in the topic " of
punishments for theft of rice etc.

Now is defined naigama and other (technical) terms, used in law-books.

The same authority (i.e. Katyaéyana) (W. 678-682) has laid down: The
citizens’ committee is called a naigama, the association of various persons,
belonging to the army, is designated as a vrata, while a traders’ guild is known
as a piiga. Those, who have renounced monasticism after having once taken
it up, are called pasandas, while a collection of Brahmanas is known as a
gana. The craftsmen are technically called ईद, An association of Jainas
or of Buddhists goes by the name of sangha. A group of Candalas and other
untouchables is called a gulma. Brhaspati has laid down that ganas, pdsandas,
pugas, vratas, Srenis and similar other groups of individuals are collectively
known as vargas.}®

D. V. adds: The word gulma in the above text means (a division of an
army, according to Laksmidhara in his Rajadharma, (-Kanda of the Krtya-
kalpataru). [ But this interpretation is not traceable in the printed edition
of the above work in the Gaekwad’s Oriental Series. ] There is, therefore,
no conflict between the definitions of both Katyayana and Laksmidhara,
as the infantry (of a division of an army) ordinarily consists of Candalas
and other untouchables. The word Sreni is an association of traders (vanik-
samihah) according to the (Vivdda)-ratnakara [But the printed Vivadaratna-
kara (8.1.) on p. 675 reads silpi-samithah (i.e. an association of craftsmen),
which reading is identical in import to that of the D.V., just quoted above.]

The same authority further says: The duties of the offspring of the four
varnas, raised im women of varnas, not their own (q-sajati) and hence termed
ajati (i.e. vatna-less), have been (mainly) laid down (in the above-quoted text).

G. SUBJECT-MATTER OF PUNISHMENTS

Narada (cf. sa@hasa V. 2) (quoted in the Sangraha or collection of quotations)
says : Murder, theft, molestation of women. other than one’s own wife,

18 Cf. Brhaspati’s text above on pp. 15-16 of D.V., where the names of sreni and gana
have been mentioned in another context.

Cf. also pp. 271 and 322 of D.V., where punishments, to be inflicted on the four varnas for
renouncing monasticism after having once taken it up, have been specified. It should be.
noted here that the former quotation from Narada (p.271)mentions punishments for the three
higher varnas only and the latter quotation from Kalydyana (on p.322) lays down the punish-
ment for a Sudra only, committing such offence. The penalty in the former text is exile
for Brahmanas and servitude for Ksatriyas and Vaisyas, while sentence cf death or any-.
other milder punishment in commutation of the extreme penalty has been. laid down in
the latter text. But curiously enough our author, unmindful of the latter text, has prescribed
the punishment of servitude for Sudras also, while interpreting the former text, on the
maxim of Kqueutika (i.e. it goes without, saying).

24 0^90^ भारा

two. kinds of severe acts (i.e. abuse and assault) and miscellaneous offences
are the six-fold subject-matter of punishments.

TD. V. adds the following note to the above text: All kinds of civil disputes
originate either from greed or from ignorance and so either of the parties
must be guilty of false assertion of right or concealment of facts, for which
offences they become liable to punishments, in civil cases also. That is 1ight.
(But the matter, discussed in the following pages, is not at all concermd
with such punishments, following incidentally from civil disputes.) The
present treatise is, however, concerned with crimes proper, which are those,
that are reported to the king by spies and in which offenders are hauled up
(before courts of justice) by the king’s men and then tried, not from any
private complaint. These crimes proper are murder and similar other offences
and not civil disputes ‘like recovery of debt. So it has been laid down (by
Narada, 2nd line=prakirnaka V. la): These (king’s) men should discharge
the king’s duties (as his representatives) in detecting (and bringing before
tribunals) offenders in case of commission of crimes, and of inequitable acts.
But there is an additional class of offences, to be described (below) in the
miscellaneous chapter, in which the king can act suo moto.

Recovery of debt and similar civil cases do not fall within the category of
crimes like murder and similar offences but become so, when involving waaton
denial of one’s liability and similar other lapses. But authors of murder etc.
are hauled before coutts of justice for the express purpose of ascertaining their
culpability and inflicting proper punishments upon them (in case their offences
are proved). But the parties to a civil transaction like recovery of debt etc.
are summoned for the establishment of the facts of the taking (of the debt)
etc. (by the defendant). Punishments may also be incidentally inflicted
upon the guilty party, if wanton denial of the liability etc. transpires in course
of the trial. All these crimes originate necessarily from evil intention and
are hence di: tinguished from such acts as are done out of error. Punishments
are inflicted upon the perpetrators of the former class of acts, as they create
commotion among the people.

So Manu (VIII. 386) says: The king, in whose territory neither a thief
nor one, criminally intimate with other persons’ wives, neither an abusive
person nor an assaulter nor any other criminal resides, reaches the world
of Indra (the lord of gods) (after his death).

D. V. points out that the above text has justifiably not included the names
of the plaintiffs of suits, involving recovery of debt etc. and then adds the
following further note to the previously qucted text of Narada: The word
manusya-maranam (i.e. man-slaughiter or murder) also implicitly includes
“slaughter of cows and similar other big animals”. The word para-dara

SUBJECT-MATTER OF PUNISHMENTS 25

(in the phrase viz. paradara-bhimarsanam, i.e. molestation of other men’s
wives) means ‘any woman (stri) other ‘than one’s own wife’, as violation
of the chastity of a maiden has also been made punishable. The word stri,
used 10 the above explanatory sentence, is also not restricted to human
females only but also includes cows and other female animals, as carnal inter-
course with the latter has also been penalised. Parusya (or severe act) is
nothing but a quarrel, which may be of two kinds, viz. abuse and assault,
respectively caused by uttering speech and inflicting physical injury. This
quarrel, consisting of the two above-mentioned kinds, is collectively of five
different categories (as is going to be shown just below)

Narada (vag. V. 7a) says in his chapter on abuse and assault: Five kinds
of both these offences also (etayor ubhayor dpi), taken together, have been
spoken of (by the law-givers)

Of these, the three kinds of abuse such as cruel utterance etc. will be des-
cribed below (p. 196 of D.V.). Assault is of two kinds viz. infliction of physical
injury and harassment. These two kinds have been thus described by the
same authority (vag. V. 4):

Infliction of injury on another person’sb ody by meansof hands, feet, weapons
and similar other things and harassment of other persons by throwing ashes
on his body (bhasmadibhis cabhighato) are called ‘assault’ (dandaparusya).

D. V. adds: The Mit. has, however, read bhasmadibhi§ copaghatah and
explained the expression as ‘touching (another person with ashes etc.) and
thus causing his mental agony.’ The word danda may also be derived as
daddyate anena [i.e. the thing by means of which physical injury is inflicted
(on another person)] and thus may mean ‘body’, by means of which parusya
or disfigurement (of another prson’s body) is effected, the whole compounded
word danda-pdrusya thus signifying ‘assault’. This offence is also of five
kinds, according to the Ratnakara (p. 273) and other authorities.

The same authority has further said: He, who of the quarrelling parties
forgives the other party, is not only exempted from punishment but also
becomes praiseworthy. Moreover, he, who begins the quarrel, deserves
heavier punishment and the opposite party in such cases becomes punishable
only when he indulges in various acts of enmify in the continuing quarrel.
When the particulars of the culpability of both the parties cannot, be defini-
tely ascertained, they should teceive equal punishments. When (2142183
and similar other members of the untouchable classes offend Brahmanas,
the latter should take the law into their own hands and punish the former.
In case of their inability to do so, the king should do so. But he should
only inflict upon them corporal punishment but should not impose fines.
These are the five kinds of criminal procedure in cases of assault.

4

26 DANDAVIVEKA

The above interpretation is correct, as these five kinds of consideration
apply equally to cases of abuse 9.10 assault, otherwise the phrase ‘efayor
ubhayor api’ (i.e. ‘also of these two’) (in the previously quoted text of Narada)
becomes useless. This has been expatiated upon by Narada himself, as he
has quoted further below (his above statement) verses, describing the above
five kinds, beginning with:

(1) Parusye sati samrambhat* (p. 215 of D.V.)

(2) Pirvam aksdarayed yah (p. 232)

(3) Dvayor dpannayos tulya (m) (p. 233)

(4) Parusya-dosacca tayor (p. 232) (where it is quoted as a text of Katya-

yana)

(5) Svapaka-sanda-candala® (p. 217) )

(6) Maryadatikrame’ (p. 217)

(7) Yam eva hi (p. 217)

and (8) Mala hyete (p. 217)

D. V. says that the above-mentioned verses will be explained later on in
their appropriate places. It then adds that it is for this reason that the Kama-
dhenu and Kalpataru, after having described the various subdivisions of the
offences of abuse and assault and quoted the half-verse of Narada, descrip-
tive of the divisions, beginning with vidhil (paftcavidhastiikta etayor ubhayor
api), by prefacing it with the phrase viz. atha vdg-danda-parusye naradah
(i.e. Thus says Narada in his section on abuse and assault), have finished
their statements with the citation of the above eight verses with their inter-
pretations. But ¢hese two authorities have not quoted the two verses (of
Narada), respectively beginning with ‘paragatresu’ 6.6. infliction of injury
on another person’s body) (p. 33 of D.V.) and ‘saksepam nisthuram (i.e
cruel utterance is admonition) (p. 196 af D.V.). Narada thus defines ‘mis-
cellaneous offences’ (prakirnakam): All those offences, not specified above,
shall be designated as ‘miscellaneous’. ॥

D. V. adds in conclusion that as the duties recommended and actions prohi-
bited are infinite in number, the performance of the former and avoidance
of the latter are also endless. This fact has necessarily made the list of
miscellaneous offences exhaustive.

continuous verses of Narada

H. VARIATIONS OF PUNISHMENT

The Vyavasthaupayika-varga-samgraha says: The caste (of the offender),
the thing (involved in the offence), the quantity (of that thing), the wtility
14 This quarter-verse. though printed corretctly on the latter page, has been misprinted
here (on p. 34) as ‘a-parusye sati sambhavat’.
18 But D. V. reads pasu for sanda on p. 217 and explains it as Kiiva (i.e. an impotent
person) and also adds that it has been read as sanda (i.e, a foolhardy person) in the Mit.

VARIATIONS OF PUNISHMENTS 27

(of that thing), the person, concerning wleom the offence has been committed
(parigrahah), the age (of the offender), power (i.e. pecuniary condition of
the offender), qualifications (of the offender), the place (of the commission
of the offence), the time (of such commission) and the specific offence are
the several factors (to be considered, while inflicting punishment).

D. V. adds by way of comment: ‘Parigraha’ is in relation to the king, gods,
Brahmanas and similar other respectable personages. “The age of the offender’
means ‘the childhood etc. of the arrested (and convicted) person’. ‘Power’
implies ‘the pecuniary condition and property of the culprit’. His ‘qualifica-
tions’ are also “relevant to the infliction of heavy or light punishment upon
him.” The ‘place’ is important for the consideration of the fact whether the
offence has been committed नना a village, in a fosest etc.” The ‘time’ is
relevant to finding out whether the offence has been perpetrated “‘in the daytime
or at night etc.”’ The ‘offence’ means ‘the specific offence (with which the
criminal has been charged)’. The specific offence may be of two kinds, viz.
the first offence and (ca) the repetition of the offence, which latter means
‘intentional repetition of the offence’. The addition of the particle ‘ca’
(i.e. and) implies pratyasatti (i.e. confession of the guilt by the guilty person
and similar other penitential actions). All the above-specified factors are
the general causes cf the heaviness o1 lightness of the punishments.

Considerations, due to the caste (of the culprit), are now being made:

Visnu has laid down: The punishment (kilvisa) (for an offence, committed)
by a (learned) Sudra is eight times (asfapddyam) (the value of the thing
stolen or) of that laid down in law and it increases twice successively for the
learned members of the successive higher varnas.

1). V. adds: The word ‘astapadyam’ means ‘multiplied by eight, i.e.
eight times’. The word kilvisa, (thcugh ordinarily meaning ‘sin’), here
implies ‘punishment’. Since the above aphcrism of Visnu ends with the
phrase viz. viduso S tikrame danda-bhiiyastvam [i.e. enhancement of punish-
ment (occurs) in cases of transgression (of the law) by a learned man],
which in its underlying import furnishes a cause, it is to be understood
that the punishment, (prescribed for an ordinary criminal in case of theft
etc.) becomes: eight times increased, even when committed by a learned
Sidra. | |
So Manu (VIII. 337-338) says: The punishment for a Sadra in a case of
theft is eight times (the value of the article stolen). It becomes increased
sixteen times, thirty-two times!® and sixty-four times in cases of a Vaisya,
a Ksatriya and a Brahmana offenders respectively. The punishment may

16 D, V. contains the misprint of dvd-virhéat 0.6. 22 times) for dvd-trinsat (Le, 32 times),

28 DANDAVIVEKA

go up to one hundred times or twice sixty-four times (1.6. one hundred and
twenty-eight times) in case of the theft having been committed by a Brah-
mana, who is (fully or partially) cognisant of the merit: and defects of his
actions.

D. V. thus comments on the above-quoted verses of Manu: Though
(Narayana) Sarvajna has (in his commentary of Manu) prescribed the above-
mentioned three kinds of punishments for a Brahmana, devoid of merit,
a Brahmana, with some merit and a highly meritorious Brahmana respec-
tively, yet the merit, spoken of in those cases, is*nothing but ‘knowledge’,
otherwise the above interpretation (of Sarvajna) comes into conflict with
the concluding epithet (of the original text) viz. tad-dosa-guna-vedinah,
(i.e. those, whe are cognisant of their merits and defects). Though lenient
punishments, being justified, have been accordingly laid down in the cases
of Brahmana and other superior caste offenders in comparison with that,
prescribed for a Sidra criminal, yet commission of an offence by a Brahmana
etc., who are (fully) ccgnirant of its condemned character, becomes an
occasion for the enhancement of their punishments. Even though such a
Cognition may sometimes vanish from the mind of an inferior caste person,
it does not do so in case of a member cf a superior caste. So the mention
of the word jati (i.e. caste) is justified in the discriminatory infliction of punish-
ment. The Ratnakara (cf. p. 240), which has read the concluding phrase
of the above text of Manu as tad-dosaguna-vidusah (thus reading ‘vidusah’
for ‘vedinah’, the former meaning ‘one who knows etc.’) has made the
above sense clearer. We have quoted the above two texts of Manu from the
original Manu-smrti,!? which have been rendered more explicit by a text
from another authority, which is of Katyayana (V. 485), which runs thus:
The punishments of a Vaisya, a Ksatriya and a Brahmana should be succes-
sively increased by two times than that of a Sidra in specific offences.

CONSIDERATION DUE TO THE THING ITSELF
Narada says: The punishment for theft of all cheap articles is five times the
price of the thing (stolen).
CONSIDERATION DUE TO QUANTITY

Manu (VIII. 320a) lays down: Corporal punishment (damah)*; should be
inflicted in case of stealing paddy in excess of ten kKumbhas.

17 But the printed edition of the Manusmrti reads tad-dosa-guna-vid-dhi sake which means
practically the same thing

48- But the printed Manusmrti reads Vadhah, which is also a variant in D.V

GENERAL EXEMPTION 29

Narada. (caura V. 27b) also says: Cogporal punishment is to be meted
out in cases of stealing all kinds of jewels numbering over one hundred.

CONSIDERATIONS OF UTILITY

Katyayana (V. 793) (cf. Manu VIII. 285, quoted on p. 229 of D.V.) says:
The underlying principle of punishments in proportion to their respective
utility is to be followed in cases of infliction of injuries on big trees.

The same principle is understood to be followed in the prescription of the
various kinds of punishments, specified below.

The Samgraha (i.e. an anonymous text) lays down: Variations of punish-
ment are composed of (i.e. due to) the following five components (i.e. causes):
Exemption, extenuation, infliction according to prascription, aggravation
and consideration (involving general rules, special methods, cumulation and
commutation).

Of the above five causes (of variations of punishment), the general exemp-
tion (from punishment) has thus been described by Apastamba (II. 27.21):
The teacher, a Vedic priest, a Brahmacarin, who has just completed his
Vedic studies and the king should (invariably) be exempted from capital
punishment (trdnam syur anyatra vadhyat).

D. V. adds: Here rdjd (i.e. the king) appears to be a king, other than
that of the territory in question. The teacher and others (enumerated in the
above list) should not also be put to death (even for their heinous crimes)
(dandyandm tranam syuh). But the Kalpataru has thus otherwise explained
the above aphorism: The phrase trdnam syuh means ‘should become saviours
(of other people of the state) and should never behave indecently’.

Manu (VIII. 312) says: The master should always forgive the aspersions
(Ksipatam) of the supplicants (Kadryinam) (i.e. plaintiffs and defendants)
towards him for the attainment of their own good and of the children, old
men and the distressed persons, doing (Kurvatam) the same.

D. V. comments on the above text in the following way: The word Kdryiném
means ‘of the plaintiffs and defendants’ and the word Ksipatam implies
‘casting aspersions (towards him), due to distress’, which aspersions may be
utterance of such statements of censure as ‘fie to this king, who is lazy or un-
grateful enough not to listen to the prayers of ours, who, though innocent,
are being tormented by others’. The word Kurvatam also conveys the same
idea. Thus, having been apprised of the accusations of the above-mentioned
distressed persons, the king must needs exert himself for the alleviation
of their distress. But if the accusations turn-out to be false, those, making
them, become the guilty persons
- व}. says in the topic of assault:; Non-punishment (of a criminal by

30 DANDAVIVEKA

¢
the king) may follow his (i.e, the criminal’s) taking leave of his
senses, drunkenness and similar other causes (moha-madadibhir-adan-
danam).—

D. V. adds: The word ddi in the above text includes ‘lunacy and other
states (of mental derangement)’.

The special exemption has thus been described by Katydyana (vv. 958
and 482): |

When a just committed crime has left traces of its commission, (the king)
should ask (the neighbouring people) about tha motive of its commission
and should thereafter inflict (prakalpeta) punishment on the alleged culprit
by weighing (or ascertaining) his guilt carefully. But if the crime appears to
have been committed gwing to fear of risk (prandtyaye) on the life (of the
alleged criminal), no punishment is to be meted out (on him). This is the
(established) law according to Bhrgu.

D. V. adds the following comment: The word prakalpeta (misprinted
in this comment portion as kalpeta only) includes within it the idea of a
causative verb (thus meaning ‘should cause to devise for infliction etc.’).
The word pranatyaye means ‘when loss of his life would have occurred, had
he not committed the crime’. So even though traces of the crime, existing
in the form of implements left or in any other form, conclusively prove theft
and other crimes, yet, if the motive of those crimes turns out to be the appre-
hended loss of the criminal’s own life, no culpability whatsoever then attaches
to its commission, for there is the permanent and hence untransgressable
injunction viz. “(One) should save oneself.’’ This very text also establishes
the non-generation of any sin (in such special cases). Even if such sin is generat-
ed, it may be cleared away by expiation and so no (additional) punishment
is to be inflicted in such cases. The prescribed judicial decision here is exemp-
tion from punishment. The whole of the above elucidation (by Katyadyana)
is in consonance with what has been laid down by Bhrgu (Bhyrguraha). The
following text of Gautama (II. 3.45), laid down in the topic of theft, commit-
ted by a Brahmana, viz. ‘He (i.e. a Brahmana), (who commits such crime)
due to unemployment, is liable to perform penances (only)’, points to the
same conclusion. The purport of the above text (of Gautama) 1s that ‘failing
to eke out his living by any other (lawful) means (and consequently com-
mitting theft), a Brahmana should under no circumstnces be punished but
should have to perform expiation (for his above sin)’. This principle is,
moreover, in accord with the slaying of one’s assailant. |

The followers of Vatsyayana have also read the following text in the topic
on ‘Sexual intercourse with other men’s wives’: (Sexual intercourse with
another man’s wife), which is an enemy of one’s life and fame and a friend

SPECIAL EXEMPTION 31

®
.of one’s sin only, may even be resorted ,to by a person on account of un-
avoidable circumstances and not due to lust.

Manu (VIII. 341) lays down immunity from punishment of ttavellers,
stealing a meagre quantity (of eatable vegetables), in the following
words

If a traveller of the twice-born (or Brahmana) class, whose resources
have dwindled away (in the meantime), takes away two pieces of sugarcane
or two radishes from others’ fields, he does not thereby render himself liable
to punishment

D. V. adds: Owing to the universal applicability of the equitable maxim
of self-presesvation, the word dvija (i.e. a member of a twice-born class)
also includes Ksatriyas and others

The Matsyapurana says on the same topic (i.e. of a way-farer dvija)
(A person), taking two pieces of cucumber and melon, similar number of
fruits and a very small amount of vegetables (belonging to others), does
not become reprehensible.

Manu further says: One handful only of peas, paddy, wheat, bailey,
and pulses such as mudga and masa, may be appropriated (for satisfying
their hunger) by persons on the roads (i.e. travellers), when not specifically
forbidden to do so

D. V. adds: By analogy of this text, in the absence of any express prohibi-
tion, no fault accrues to the appropriator of the eatables, mentioned in the
former text.

The same authority (XI. 16 and VIII. 339) continues: A person, not
having succeeded in securing his six meals (in three consecutive days), may
steal at the time of his seventh meal (on the fourth day of his starvation)
that quantity cf food only, which would feed him for a single day, even
from a person, who has debased himself (by his non-performance of charity
and similar other pious acts) Fruits and esculent roots of trees (vanaspatyam),
wood for performing sacrificial fire and grass for feeding cattle—(taking
these from others, free of charges and without theit permission) has been
declared by Manu as not amounting to theft.

Narayana has thus explained the latter text of Manu: “The word vanas-
‘patyam is derived from vanaspati, which means ‘trees generally’ and: hence
the former word, meaning pertaining to trees, implies only ‘pertaining to
those trees, which die after once delivering ripe fruits (Osadhis)’ and moreover,
these trees should necessarily be of forests (and not of private gardens of
individual owners), on the authority of the following text of Gautama
(II. 3.25)

One may collect grass and twigs for (feeding) cattle and lighting (sacrificial)

32 - DANDAVIVEKA

€
fire respectively and pluck flowers, and fruits of public (aparivrtdnam) trees,
as if those were one’s own property.

The above text contains the term aparivrta, which means ‘ownerless’
(i.e. public) and the term agnyartham included within the text, implies ‘for
sacrificial fire only’. Accordingly, trees, grass, wood etc., if collected by a
person even from the forest for the purpose of building one’s house without
the express permission of the king, will become the subject matter of theft.

2. ४. adds: So the taking of any quantity of the produce of trees (of private
or public ownership), other than those specified in the above text of the
Matsyapurana, is not permitted. Taking of paddy, pulses etc. only (specified
in Manu and of private ownership) is permitted -but not plantains (and
other fruits), (belonging to the gardens of private persons). It is also to be
noted here that a man, standing in need of grass etc., if either preserved
-by the king or expressly prohibited by him for being usurped by others,
must secure beforehand the royal permit for that purpose but not otherwise.

But the author of the Mit. has otherwise explained the last text of Manu
(VIL. 339) in the following manner: A dvija (i.e. a member of the twice-born
classes), when not otherwise able to collect grass and similar other things
for (feeding) cattle, (lighting) fire and (worshipping) gods, may appropriate
even privately owned grass, wood and flowers but he is not permitted to
collect fruits (from other persons’ garden), on the express prohibition to do
so, laid down by the previously quoted text of Gautama (II. 3.25).

D. V. then quotes the following anonymous text: “Any one, taking grass
or wood, flower or fruit (belonging to others) without securing the respec-
tive owner’s permission, deserves mutilation of his hand as%he punishment
(for his lapse).”

It then adds the following comment to it: The above text is to be under-
stood as referring to a person, other than a twice-born one or to cases of
non-emergency o1 to serve purposes other than (feeding) cattle etc.

Katyayana (V. 959) says: When offences by all persons (sarvesam) of good
conduct have been committed either under co-ercion (avasena) or through
— eftor (daivat), no punishment is to be devised (by the king or the judge).

D. V. adds: The word sarvesam (i.e. of all persons) includes Brahmanas
and others and svasya (i.e. of himself)is to be supplied after the word avasena
(i.e. being powerless), i.e. due to fear for being under the control of others.
The word daivaét means pramadat (i.e. through error).

The same authority (V.826) continues: When commodities are found to have
been stolen from another country by a foreigner (vaidesena) (who has come
to the country), (the king of the country) should confiscate the stolen articles
and turn the foreigner out, without inflicting any punishment upon him.

SPECIAL EXEMPTION 33

D. V. adds: According to Halayudha, the word vaidesena means desanta-
rdgatena (i.e. by one, who has come from a foreign countiy). The same
autherity has further said that though such punishment applies to an un-
usual case, yet it concerns all the castes equally

Narada (prakirnaka vv. 35-37, except the last three feet of V. 35 and the
first foot of V. 36) has thus described the cases of exemption from punish-
ment of Brahmanas generally: A Brahmana, who enjoys general immunity
from punishment (aparihdro) (for petty offences), should be allowed (priority
of) passage on a road and may with impunity (anivaritah) enter into another
man’s house for the sake of asking for alms. He shall not be considered
guilty of theft, even if he collects sacrificial wood, flowers, Kusa grass etc.
from places, owned by others (saparigrahdt). Even if he hails from an enemy
party (parebhyah) or converses with other men’s wives, he shall not be punish-
ed (anadhyak sah)

D. V. adds explanatory notes on some words in the above extract in the
following way: The word apariharo means ‘immunity from punishment
and the word anivaritah implies ‘if anybody obstructs him (while he is going
on a road) by express words, that person (and not the Brahmana) will be
held guilty’. The word saparigrahat means ‘from a privately owned place’,
taking sacrificial wood etc. from such a place by a Brahmana does not
amount to an offence. The words ‘anadhyaksah parebhyah’, taken together,
mean ‘Even if he comes from an enemy camp but without any express
evil intention, he is not to be punished.’

Sankha-likhita have also laid down: A Brahmana is entitled to priority
in collecting duel, water, wood, fire, grass, stones, flowers, fruits and leaves
(of trees), to enter (unobstructed) into (the abode) of a god or step down a
flight of steps (in any reservoir of water) or go into the room ofa house, to take
up arms (while proceeding) on a road or take his seat anywhere, to go unres-
trained along with a group of travellers, proceeding towards somewhere (pra-
srtesu) and to reside with dishonest persons, (cet) when considered necessary.
He is also entitled to collect grains of rice (from the fields), when eking out
his living by the callings of sila and uficha (i.e. gleaning ears of a corn more
than one at a time and doing so one at a time respectively) from grains and to
collect food for the day only (without keeping any future stocks). He is
not to be asked for paying the requisite fees for delivery (of ladies in his
family), the interest (on loans taken by him) or the requisite taxes for pursuing
agriculture’® or carrying on trade or the chargeable fare for crossing a river

19 Karsa, meaning ‘agriculure’, having been misprinted in the text as Kdrsa and then
compounded with dpana, meaning ‘shop or trade’, has become Kdrsdpana, which means
a certain coin. It should be Kargdpana

5

34 DANDAVIVEKA

¢€
(in a ferry-boat) and he is also not te: be harassed for the non-payment of the
above dues. He is privileged to converse with other men’s wives or pay a visit
to the ladies of the royal household and to transgress (the king’s orders)
owing to his having flown into rage.

D. V. adds the following commentary to the above—quoted lengthy extract
from Safkha-likhita: The words ‘fuel etc.’ refer to ‘those things, absolutely
necessary (for the performance of the Brahmana’s religious duties) and the
words ‘(abode of) a god’ and ‘flight of steps’ imply ‘a temple, owned by any
other person’ and ‘a similarly owned flight of steps’. ‘Entrance into the room
of a house’ refers to ‘such a room, owned by others’. ‘On the road’ is to be
construed as ‘when on the road, leading to another country’ and ‘taking
a seat anywhere’ implies “doing so without any valid reason’. Prasrtesu
anivaranam means ‘to go unrestrained etc.’ and ‘residing with dishonest
persons’ is to be understood as ‘doing so, due to necessity’. The particle
cet, used here, though ordinarily meaning ‘if’, is to be taken in the cumula-
tive sense, as such indeclinables have got various shades of meaning. The
phrase ‘from grains’ used after the words ‘sila’ and ‘ufleha’, means ‘from the
grains, left on the field after harvesting’.

Gautama (I. 8.4-13) has said on this point: If he (i.e. a Brahmana) is
possessed of profound learning, conversant with the (four) Vedas and their
(six) auxiliaries and familiar with vakovdkya (i.e. Vedic texts, containing
questions and answers), history and the puranic literature, practises them
just in conformity with their injunctions and follows callings, not repugnant
to them, having been sanctified by fortyeight sacraments, engages himself
in the performance of the three (recommended) actions, havifig been disci-
plined in the six kinds of good conduct, he is then to be exempted by the
king from the six kinds (of corporal and other punishments): death-sentence,
piercing of his person and any other (severe and humilating) punishment,
banishment (from the territory), (severe) censufe and excommunication.

D. V. thus comments on the above text: The opening clause in the above
text viz. ‘If he ... learning’ concerns itself with learned (Brahmanas) only
and not ordinary Brahmanas, and so the author of the Mit. has said about
another text of Gautama (II. 2.1) viz. rdj@ sarvasyeste brahmaria-varjam
(1.6. the king appropriates every other (heirless) person’s property, except
that of a Brahmana) is similarly recommendatory (and not mandatory).
‘The forty-eight sacraments’ are ‘garbhddhdna (i.e. impregnation) etc’.
‘The three (recommended) actions’ are ‘making of gifts, study and perfor-
mance of Vedic sacrifices’. ‘The six kinds of good conduct’ are ‘officiation
in other persons’ sacrifices, teaching and acceptance of gifts, over and above
the three. recommended actions; referred to above’. But Halayudha has

SPECIAL EXEMPTION 35

: ]
interpreted the word ‘trisu’ (i.e. in the three actions), occurring in the phrase
trisu karmasu abhiratah, as meaning ‘engaged in the performance of three-
fold actions, such as making of gifts (including study and Vedic sacrifices)’
or ‘discharging the three-fold duties, such as officiation in other persons’
sacrifices (including teaching and acceptance of gifts)’. He has also read the
phrase ‘safsu sadacaresu’ as ‘samacarigu’ and interpreted the whole
clause as meaning “disciplined in ways of life, recommended in the Smrtis
and also approved of by the sisfas (i.e. good men)’. The phrase ‘sadbhil
pariharyo’ [1.6. exampted from six kinds (of corporal and other punishments)]
means ‘not to be corrected (by the king) by the infliction of punishments,
both corporal and pecuniary, as the punishments of admonition and reproof
(which may be meted out to them in certain cases) have been prescribed for
them below’. The word aparihdryah (i.e. not to be excommunicated) is to
be interpreted as meaning ‘in spite of the general prohibition of interdining
with grave sinners, no such prohibition is to apply to them.’ In fact, the word
vadhadibhih (i.e. of corporal and other punishments) has been inserted by us
within the phrase sadbhih pariharyo (i.e. exempted from six kinds), having
read the latter with the words a-vadhyah etc., (i.e. not to be put to death),
just following it. The Parijata is of opinion that this exemption from punish-
ment of a highly learned Brahmana relates to grave sins, committed uninten-
tionally. This is right, as Katyayana ( p. 66 of D.V.), has laid down the punish
-ment of solitary confinement and similar other penalties for intentionally
committing these grave sims. But Manu?® (IX. 238a and 239) has laid down
the following exception (to the above general rule, enunciated by Gautama,
regarding le@rned and highly pious Brahmanas): (Those Brahmanas, who
intentionally indulge in the commission of grave sins) are to be excluded from
interdining (a-sambhojyah) and are neither to be offered officiating services
by priests in their sacrifices (a-samydydah), nor to be allowed to teach pupils
(a-sampadyah), nor also to bé permitted to marry (a-vivahinah), and are to be
shunned by their agnates and cognates, after having imprinted characteristic
figures on their persons and should neither be sympathised with (by the
‘good even when they fall sick with diseases) nor be saluted (by persons,
inferior to them in age or status). |

D. V. adds the following comment: The word a-sambhojyak means,
according to the Ratnakara (p. 641), ‘they should not be allowed to mix
with and partake of a community feast’. Narayana also, in his commentary
on Manu, has interpreted the above word to mean (‘they are) not fit to dine
together, being seated in a row’. But Kullika Bhatta has explained it as ‘those

* The printed text of D.V. has read the following quot. from Manu with its own comment,
just before the opinion of Parijata, given by us just above them.

36 DANDAVIVEKA

५ |
persons are not fit to be fed with rice etc.” The last two bracketed portions
in the English rendering of the text of Manu above are from D.V.’s
comment.

Manu (IX. 235-6) further says: A Brahmana-murderer, a drunkard, a
thief and a violator of chastity of one’s teacher’s wife are known as the
several kinds of grave sinners. For persons of these four kinds (caturndm
api), not performing expiatory penances, corporal or pecuniary punishments
as laid down in law, are to be devised

D. V. adds: The phrase caturndm api (i.e. of these four kinds) implies
that Ksatriyas and persons of the two other inferior castes only are to get
corporal punishment and not Brahmanas who will have to be past in prison
or to be imprinted with characteristic marks (to be described below) and
shall neither be put to death nor subjected to the punishment of mutilation
of their hands, which have been specifically prohibited by Brhaspati.

An anonymous. text says: The self-manifested (svdyambhuvah) Manu
has specified ten places (i.e. kinds) of (corporal) punishment, which will be
inflicted on the three inferior varnas, while the Brahmana offender will
remain unhurt.

Brhaspati (IX. 10) also says: A Brahmana, even if charged with a grave sin,
shall not be put to death but the king will punish him by sending him
to exile and by imprinting his person with characteristic marks and by
shaving (his head).

D. V. adds: The Ratnakara has however, interpreted the above
text to mean that there is an option between exile and imprinting on his
person. According to its interpretation, .the following text of’ Manu (VIII.
380) lays down an alternative punishment for the Brahmana offender:
(The king) should never pronounce sentence of death on a Brahmanga, even
if convicted of any of the (grave) sins but should simply turn him out of his
territory, with unhurt body and also with all his wealth taken away with him.
If such an interpretation is accepted, the text of Baudhayana, quoted just
below, cannot be reconciled and also the prescription of offering publicity
by imprinting on the offender’s person, laid down by Yama, also quoted
below, becomes more irreconcilable

Baudhayana (I. 10.18) has thus prescribed the procedure of imprinting
on the offender’s person: A Brahmana, convicted of destroying an embryo,
violating the chaslity of his teacher's wife, stealing gold or drinking, should
have the figures respectively of a head-less person, female organ, foot of a
dog and banner imprinted on his forehead with heated iron and should be
banished to the furthest end of his (i.e. the king’s) territory.

Narada (caura® VV. 44 and 45a) has also said: A murderer of a Brahmana,

SPECIAL EXEMPTION 37

violator of one’s teacher’s wife, a drunkard and a thief should have imprin-
ted on their foreheads the figures respectively of a headless person, female
organ, banner of liquor (liquor shop?) and foot of a dog and should have
the foreheads also filled with the bile of a peacock.

D. V. adds: The last variety of (additional) punishment should be inflicted
after having pierced it with a fanka (some sort of piercing instrument), the
form being popularly known as haritikd.

Yama lays down: The king should have made, according to law, on a
Brahmana, convicted of the above four heinous offences, the following
(four) kinds of punishments: Shaving the head, banishing from the territory,
making him mount on an ass and imprinting (characteristic figures) on
his forehead for publicising the offence ॐ

D. V. adds: So it appears that ‘imprinting figures for offering publicity
to the offence committed’ may be considered as an alternative for ‘making
the offender ride on an ass’. All these punishments are for intentional
commission of the grave sins and are to be meted out only when the sinner
does not perform expiatory rites.

Manu has said elsewhere (IX. 240-242): The king should not imprint cha-
racteristic figures, described above, on the foreheads (of the members) of the
three superior (pirve) varnas, going through expiatory rites but they should
be fined the highest amercement. But a Brahmana offender, having committed
the above offences in emergency, should be awarded the fine of the middle
amercement or should be exiled from the territory (vivdsyo va bhaved rastrat)
with his apparel and other valuables. But (itare) the members of the three
other varnas, having committed similar crimes unintentionally (akamatah),
should have their entire property forfeited (by the king) and should be exiled,
(pravasanam) only when they have done so intentionally.

D. V. adds the following comment: The commentary on Manu (i.e. that by
Kullika) has explained the word pirve (i.e. superior) in the above text as
‘Brahmanas, Ksatriyas and Vaisyas’ and has said that the word akamatah (1.e.
unintentionally), though added later in the above text, is to be construed with
the earlier portion of the text as well. According to D.V., owing to the men-
tion of the name of the Brahmana together with those of the Ksatriya and
Vaisya, a Brahmana, devoid of merit, is only implied. As the punishment of
the middle amercement has been prescribed in the text for a meritorious Brah-
mana, there occurs no contradiction in the above two statements. But the
punishment of exile applies to both the above cases. All the above prescrip-
tions of punishment for a Brahmana are for those Brahmanas only, who are
not exceptionally learned and the half-verse, beginning withthe words vivdsyo va
(i.e. or should be exiled), should be taken into consideration only when such

38 DANDAVIVEKA

Brahmana offenders do not agree to undergo expiation, the particle va
(i.e. or), added to the beginning of this half verse, laying down this alternative
punishment. As the punishments of exile and imprinting characteristic marks
have been laid down together (in a compound word viz. nirvasandnkane)
by Brhaspati (quoted earlier), so the latter form of punishment (i.e. imprin-
ting etc.) does not hold good in cases of unintentional commission (i.e. is
applicable to cases of wilful commission only) and consequently the earlier
form (i.e. exile) is only valid (for such unintentional commission) and is
thus equal in punitive character with and hence an alternative for the
fine of the middle amercement.

The same principle has been emphasized by Sankha-likhita thus: In
cases of commission of the grave sins: a Brahmana sinner (or offender)
should be awarded either transportation (from the territory) or imprinting
characteristic figures on his person or should purify himself by penances,
as a Brahmana is not to be bodily tortured (i.e. punished).

D. V. further adds the following by way of comment: The author of the
Ratnakara has, therefore, opined that there is exemption from physical
torture for a Brahmana, undergoing expiatory rites and that the word
itare (i.e. other varnas) (in the Manu’s text above) implies ‘members of the
three (lower) varnas, such as Ksatriyas’. The D.V. then goes on by sdying
that the forfeiture of property, laid down (in the concluding portion of the
text of Manu, cited above), along with the pecuniary punishment of the
highest amercement, spoken of above, is to be carried out, having regard
to the profession (i.e. the pecuniary condition) etc. of the culprit. According
to Kullika Bhatta in his commentary on Manu, the wofd pravdsanam,
used in the above-quoted text of the same author, means vadhah (i.e. physical
torture), as the lexicon, the Abhidhdna-Kosa, has given in the following text
several synonyms of that word: Pravasanam pardsanam nisudanam nihim-
sanam [i.e. the words viz. pravasanc, pordsana, nisiidana and nihimsana are
synonymous (meaning physical torture)]. But Narayana, another commen-
tator of Manu, has thus otherwise interpreted the above text of his author:
In cases of wilful commission of the above heinous crimes, the punishments of
exile, which has not been explained in the above text and of imprinting
characteristic figures are to be inflicted together and only in cases of the lesser
kind and preliminary stage of the offences but actual death sentence is to
be meted out in cases of their greater kind and final stage

D. V. continues by saying that a highly learned Brahmana, when commit-
ting such grave offences unintentionally, are to remain completely immune
from any sort of punishment. Meritorious Brahmanas, who are not,
however, highly learned, should get the punishment of the middle amerce-

EXTENUATION OF PUNISHMENT 39

,
ment and Brahmanas, devoid of merit, that of the highest amercement. But
both these classes should have to perform penances, otherwise they will be
turned out of the country. But when the highly learned Brahmanas commit
the above-mentioned offences intentionally, they shall have to perform
the penances, non-performance of which will entail banishment and the two
other classes of Brahmanas (i.e. the meritorious and the merit-less), com-
mitting the above offences wilfully, should have their persons imprinted
with characteristic figures and should also be banished. Ksatriyas and
others shall be put to death for wilful commission and should be awarded
in the opposite cases the punishments of imprinting etc., fines and banish-
ments. This is the (well-considered and final) opinion. Here the imposition
(by the king) of the fines upon the above (different kinds of grave sinners)
is simply as a method of punishment only, as the fines (so realised by the
king) have been prescribed to be disposed of.

So Manu (IX. 243) lays down: A pious king should never appropriate
(naddadita) the money (dhanam) of a gravesinner. If he does so out of greed, he
thereby becomes tainted with the very sin (committed by the sinner). Narayana
interprets the word dhanam (i.e. money) as ‘pecuniary punishment, 1.e. fine’.

D. V. adds: The phrase nddadita (i.e. should not appropriate) means
‘shoald not actually take it, even if realised (by the king) as fine from the
sinner’. What then will the king do with the money so realised?

Manu (IX. 244-245) has answered the above question thus: After having
dipped that money (realised as fine from a grave sinner), he should dedicate
it to the god Varuna (the god of water) or make it over to a Brahmana,
possessed of Itarning and good conduct (vrtta). Varuna is the god and
wielder of punishment (dandadharah) (even) over kings (rajflam), while a
Brahmana, proficient in the Vedas, is the lord of the entire world.

D. V. adds that Narayana has interpreted the word vrttam, occurring
in the above text as meaning’‘(good) conduct’, i.e. worship of the teacher
and similar other pious acts, specified by Manu. The word rdajfiam (i.e. of
kings) means ‘even of kings’ and the word dangadharah (i.e. wielder of punish-
ment) implies ‘as he (i.e. Varuna) is the punisher.’

Yama has laid down: After having realised money (as fine) from a degraded
person, the king should distribute it in the assembly (parsadi). D. V. adds
that the word parsadi means ‘in the assembly’, i.e. ‘(the king) should distribute
it among the courtiers’.

EXTENUATION OF PUNISHMENT

Katyayana (cf. V. 960a) lays down the following punishment for theft and
similar other offences, which consist of a series of acts: The punishments

40 DANDAVIVEKA

of the first and the middle amercements are to be inflicted (on the criminal)
¢

in the beginning (arambhe) and engagement (pravrtte) respectively for such

offences.

D. V. adds: The word drambhe in the above text means ‘the first action
in the entire series of actions, intended to culminate in the desired result’
and the ‘first amercement’ means ‘a quarter of the full punishment (prescribed
for the offence). The word pravyrtte implies ‘in many actions, done for
(but not culminating in) the desired result’ and the ‘middle amercement’
implies ‘half of the prescribed punishment.’ |

Vyasa has laid down: The punishment for having sexual intercourse
with a willing woman, come of her own accord (to a person) is half of that
laid down in case of procuring (or approaching) a woman, residing concealed
in her house

Such examples may be multiplied.

INFLICTION OF PUNISHMENT ACCORDING TO PRESCRIPTION

Katyayana (cf. V. 9600) says on this topic: The prescribed punishment
(for an offence) shall be inflicted on the criminal, who has committed it to
its fulness (parydpta)

D. V. adds: The word parydpta in the above text is an adjective derived
from the verbal noun paryapti, which means ‘the operation of all the criminal
actions, necessary for the successful commission of the intended crime’
and thus the former word means ‘a person, who has perpetrated all those
component actions

AGGAVATION (OR ENHANCEMENT) OF PUNISHMENT

Katyayana says: Rich men (if fined for their offences) will just pay the
amounts, imposed upon them as fines but will not desist from the commi-
ssion of the crimes and so there is no upper limit (nifcayah) to their fines
Hence the considered opinion (iti nifcayah) is that such penal measures are
to be adopted for these unrestricted sinners (avyaGhatah papah) as will render
them incapable of repeating those injurious acts

Gargiya-manavas have laid down the following special rule about punish-
ments: Gautama has said that a criminal may be leniently (Saithilyat) punish-
ed for his first (commission of the offence).

D. V. adds that Halayudha, after having first quoted the previous text
(of Katyayana) and read therein apohatah papah for avyahatah papah (and
then quoted the halfverse of the Gargiya-mdanavas), has thus added his own
explanation: .

AGGRAVATION OF PUNISHMENT 41

“The meaning of the above entire matter is: The punishments, prescribed
for specific offences, should not in all cases be meted out to the first offender
but this concession will apply only when it is understood that the infliction
of the punishment will restrain the criminal from the further commission of
the crime. Those criminals, who do not, however, desist from the repetition
of the crime even after the imposition of the lenient forms of punishments,
are to be drastically deterred (papanapohata) by the king, who will then
devise such appropriate punishments for them as will incapacitate them to
repeat the offences in future.”

D. V. then goes on by ‘saying that the explanation by the Ratnakara
of the word Saithilyat (occurring in the first half of the second text, quoted
above) as ‘owing to the comparative unascertainability of the offence, com-
mitted by the criminal, for which he is going to be punished’ is questionable,
first, as there is no question of punishment when the offence has not at all
been proved and so no further question of extenuation of punishment arises
and secondly, because there is no scope for entertaining difference of views,
according to the circumstances of specific cases

The real import of the latter quotation, according to D. V., 15 the
following:

The Gargiyu-mdnavah, i.e. the disciples of Garga, approve of the specific
punishments for specific offences, as laid down by Manu and other authorities.
But Gautama does not wish to abide strictly by their prescriptions. As the
visible effect of inflicting punishment is restraining a wicked person from
further commission of a crime, so it should be employed to such a degree
as will achievesthat purposc—this 1s the real import of the above prescriptive
texts. Manu and other authorities have, therefore, laid down different
kinds and degrees of punishment for the suppression of the criminal proper-
sity of different types of offenders. The following text of Brhaspati (XXIV. 11)
on the topic of sangraha (proctring of women?) is also of the same purport:

“The imposition of the first, middle and highest amercements as fines
- respectively on the three higher castes (or on the three types of criminals)
and of higher amount of fines on rich offenders should be decided upon.”
The text of Manu (VIII. 336a), viz. Karsadpanam bhaved dandyah [(when
any ordinary person) is to be fined a Karsdapana)} etc. contains the same
logic. The prescription of the alternative punishments of admonition,
harassment, besmearing (the person of the offender) with cowdung, making
him mount on an ass and of similar other privations for curbing the culprit’s
arrogance for abusing the judge, his teacher or a Brahmana, as laid down
by Sankha-likhita also emphasize the same principle, as enunciated above
by Katyayana

6

42 -DANDAVIVEKA

While commenting on the text of Yaj (Il. 26), beginning with the words
adhyadinam vihartaram [1.6. (the judge should cause) the stealer of pledged
articles etc.] the author of the Mit. has said: (The wise) have declared that
the word danda is derived from the root dam (i.e. to punish) and hence it
means ‘punishment’, i.e. ‘punishment of unruly persons’. So when the curbing
of the criminal propensity of a wrong-doer is not (completely) effected by
the imposition of the prescribed pecuniary punishment, he should be awarded
a higher punishment, while a poor person should be penalised with the imposi-
tion of a fine, fit enough to put him into difficulty (according to the reading
viz. yavata pidd, adopted by D.V.) or to curb his arrogance (according to
the reading viz. yavata darpopasamah, adopted by Mit.). So when a criminal,
even after paying the fine, prescribed for a particular offence, repeats the
commission of that offence, he should be again fined a higher amount.
But if it is foreseen in the very beginning of the trial that owing to the way-
wardness of the criminal, the fine, going to be imposed upon him, will not
be enough to restrain him from the further commission of the offence,
he should be fined in the very beginning as much amount as 15 considered
proper to restrain him. So, if the settled view is that the first offender will
be awarded the prescribed punishment and an old offender a punishment,
commensurate with the requirements of his correction, then, if the efirst
offender is unable even to pay the prescribed fine, he should be punished
leniently, which cannot be helped. If the alternative corporal punishment
of recompensing the pecuniary punishment by physical labour is inflicted in
such cases, then not only the poor but all persons, (irrespective of their econo-
mic status,) can do so (i.e. exonerate themselves by doing phycical labour).

Vyasa says: (The judge) should cause each of the wicked persons, jointly
(i.e. forming a criminal conspiracy) engaged in the commission of crimes
to pay twice the prescribed amounts of fines (Specified for separate offences).
Now will be laid down the maximum punishment for crimes, occasioned
by the necessity of imposing higher punishments, owing to the gravity of the
offences for their repeated commission, without, however, specifying “twice
the prescribed amounts’, (as has been down in the earlier text of Vyasa):

So Narada (caura® V. 55a) says: Punishments, laid down in terms of
Kakini and similar other terms, are known to be inflicted in terms of mdsas.
D. V. adds tha a (pecuniary) punishment, specified for an offence in terms
of Kakini, may be increased, if considered necessary, to the limit of a maga
and the same principle is to be followed in the following [portion of the
text of the above author (caura VV. 550 and 56)}, which runs thus:

(Similarly) Punishments, laid down in terms of a masa and a Karsdpana,
will have to be increased to a karsdpana and four Kargdpanas respectively.

AGGRAVATION OF PUNISHMENT 43

Punishments, consisting of two and thite palas, will be similarly enhanced
to eight and twelve ones.

Here a masa is to be understood from the mention of the term ‘Kdrsdpana’.

The following text of Sankha viz. ‘The pecuniary punishment (of a
criminal) may extend from a Kakin! to the forfeiture of his entire property’ —
is not in relation to the degree of repetition of the offences concerned but
it simply states the utmost limit only, as both Narada (caura V. 54a) and
Sankha have said elsewhere that ‘corporal punishments begin from imprison-
ment and end in sentence ef death’ (cf. p. 56 of D. V. below).

An anonymous authority has thus prescribed the following general upper-
most limit to all kinds of pecuniary punishments, specified and not specified :
‘All the prescribed pecuniary punishments, beginningswith a Karsdpana, may
be increased up to four times and all other penalties, not so specifically laid
down, may be similarly enhanced.’ All these punishments are, however, to be
inflicted before the first amercement’.

D. V. adds: The first amercement means “two hundred and fifty panas’’.
So for the offences, necessitating pecuniary punishments less than the above
amount of pands, the penalties may be increased up to their four times on
account of the gravity of the offences, caused by their repetition. But the
Ratnakara (p. 660) has laid down that no such enhancement of fines is to
be made in offences, punishable by the first and other amercements. The
cumulation of physical (and pecuniary) punishments is also not prohibited
in these latter cases, as the combined punishments of admonition, reproof,
fines etc. have been prescribed in the following anonymous text:

All the punishments are to be inflicted together on a perpetrator of
grave sins.

Manu (भा. 336) says: Where (yatra) an ordinary citizen is fined a
Karsdapana only, the king should be punished (tafra) in that very offence
with a fine of one thousand panas—this is the settled principle

D. V. adds the folowing long commentary to the above text. The above
prescription of the imposition of higher fines upon kings, ministers and
similar dignitaries on account of their possession of greater wealth (than
ordinary citizens) is justified. Narayana also concurs with this view. Here the
king should himself devise his own punishment and make over the money
(realised from himself) to Brahmanas or throw it away into water, as Kullika
has thus explained in his comment on this verse that ‘Manu himself has
said in another verse (IX. 245): Iso dandasya varunah 0.6. Varuna (the
watergod) is the presiding deity of punishments.]. So it appears that after
having discussed (the unacceptability of) the pecuniary punishment of grave-
sinners ((X, 243), a later statement of Manu (IX. 244), authorising the mak-

44 DANDAVIVEKA

ing over of the fines, thus realised from them, either to the god Varuna or
to Brahmanas, on the analogy of the accrual of the corresponding sin to the
king himself, in case he appropriates it, has already been described by us
at the end of the topic on exemption (from criminal liability). This prescrip-
tion for a king should not be interpreted as the negation of the very principle
of pronouncing his own punishment also, on account of the uncertainty
of the kinds of royal offences and the punishment having been laid down
in an earlier text (of Manu VIII. 336) and also owing to the insertion of the
phrase viz. tam dandam (i.e. that fine) in the prevéously described text of the
same author (IX. 244). So the interpretation by the Ratnakara (p. 660)
of the word rdjfiam (i.e. of kings) [in Manu (VIII. 336)] as meaning ‘avantara-
narapatinam’ (i.e. of kings of other territories) is justified, as ‘one cannot
punish one’s own self.’ Though Narayana has (in his commentary on Manu)
prefaced the above verse (VIII. 336) by saying that ‘In short, he (i.e. the king)
himself is also punishable’, yet the maxim of Kaumutika (i.e. it goes without
saying) is to be applied here, owing to the import of the words, constituting
the above text, which should be taken as “‘only emphasizing the punishability
of other (kings) 21850." (The reason for the above conclusion of ours is
that) the making over of a thing, equal in value of the punishment, passed
on a king, either to the god Varuna or to a Brahmana, is no punishment
at all, as it has nowhere been laid down to bea substitute for the actual
fine. On the contrary, it has been laid down in conclusion (by the same
authority IX. 246a) just below the above prescription that ‘where the king
shuns the practice of acquiring ‘wealth from the vicious persons, (men are
born after full period of gestation and become long-lived)’ (yatra varjayate
raja papakrdbhyo dhanaégamam)

Such being the settled conclusion, it may be asked, ‘How should the king,
who is the chief of the state, be made to desist from the commission of crimes
in his total exemption from punishments, as there is nobody to protest
against his conduct?’ The reply is, ‘(He should desist) from the fear of hell
(after his death), from undergoing the rigours of the performance of penances
or from the fear of censure (in this life) and of infamy (after death)’. If it is
said that “when the king goes on committing crimes, forgetting the fear of
hell, owing to the intensity of his addiction (to material pleasures), which
action on his part also amounts to his aversion to punishment, owing to the
(similar) absence of any one, protesting against it, what is then the remedy
left for the king’s actions”, (we reply that) the (ultimate) remedy (in such
cases) consists in the performance of the penances (by the king), (physically)
able to do so and 10 the gifts of cows etc. as their substitutes, when not so
(physically) fit. Those gifted (animals or) articles are to be made over to

ORDINARY METHOD 45

Brahmanas and other worthy recepients. *The opinion of Narayana, recorded
above, is to be thus interpreted. If it is again asked, “why should no pecuniary
punishments, which are weightier (in efficacy) than gift of cows etc., be
inflicted (on the king), when he is not physically fit to undergo penances?’’,
the reply is that though pecuniary punishments are undoubtedly weightier
than such gifts, yet punishment and penance have been laid down as alterna-
tive methods of correction of a criminal. If it 15 further said than substitutes
are substitutes only and not the real things, then the answer is that (if that
view was right) the prescription of the gift of cows would not have been laid
down. If it is persisted in saying that this is nothing but a sort of exemption
from punishment only, the reply is that punishments for all cases have neither
been prescribed nor are possible to be meted out, even when prescribed.
So in such cases let there be admonition and reproof, passed on him (i.e. on
the king) by the judge or by the royal priest. Having this in mind, both
Narayana and Halayudha have laid down that “the punishment on the king
should be administered by the courtiers.”

Katydyana (= Narada and Sankha?) has prescribed the following both
—ways limits of corporal punishment: Corporal punishments may extend
from imprisonment to death-sentence.

I. COSIDERATION OF THE METHODS OF INFLICTING PUNISHMENT

These methods include the ordinary and the extraordinary ones, the
cumulation of several punishments and their commutation and are thus
fourfold, as hgs been gathered from the authoritative texts.

I. THE ORDINARY METHOD OR RULES

The parents and similar other persons, except in actions of inflicting physical
injury to the king, are to be punished with admonition only for their offences,
wherein the recluses and similar other persons are to be administered reproof.

Manu (VIII. 335) says: If the father, teacher, friend, mother, wife, son and
priest do not discharge their legal duties, the king should not consider them
as unpunishables.

Yaj. lays down: The priest, performing Vedic sacrifices, the ordinary
priest, a minister, a son, marriage relations and friends, if found deviating
from the path of justice, are to be punished but those among them, who act
injuriously against the king, are to be banished from the territory

The punishment of the (former class) of erring persons has thus been laid
down by Brhaspati (IX. 17a): (The king) should punish the teachers, priests
and other venerable persons with admonition only

Katyayana, however, says: (The king) should impose the punishment

46 « ` DANDAVIVEKA

of admonition (vag-dandam) on the parents etc. (pitrddisu)?! and that of
reproof (dhik) on the ascetics.

D. V. adds: The word dhik means dhig-dandanam (i.e. the punishment
of reproof). Though the above classes of persons have been declared as un-
punishables (as will be seen just below), yet that immunity from punish-
ment is to be understood as relating to pecuniary and corporal punishments
only. So Sankha-likhita have said: The following classes of persons have
been declared as unpunishables:

Parents and persons, who have just completed their Vedic studies, priests
and persons, who are roving mendicants or who have retired to the forest,
those (who are superior in status to ordinary persons) by dint of their birth,
actions, learning, conduct, purity and performance of (daily) religious duties.
All these persons conduce to the religious welfare of the king. Women,
children, old men and hermits also (belong to the above list of unpunish-
ables). (The king) should suppress his wrath against them, (even if they do
wrongs).

D. V. adds: ‘Birth’ (jamma) means ‘belonging to a pure family’ and
‘actions’ (karma) implies ‘performance of agnihotra and similar other sacri-
fices’. ‘Learning’ (sruta) is ‘nothing but the knowledge of the Vedas and
their auxiliaries’, while ‘purity’ (Sauca) is ‘both external and internal’. Persons
if possessed of these attributes, are to be exempted from punishments,
inasmuch as they are ‘conducive to the religious welfare of the king by
doing good to him in the shape of helping him in his acquisition of one-sixth
of the religious merit (of their religious acts)’. The Ratnakara (p. 635)** has
said that the phrase stri-bala-vrddhdah (i.e. women, children and old men),
placed afterwards in the above text, should be construed as ‘not to be punish-
ed’ (apyandyatvam). The inclusion in the above text of the word tapasvinah
(i.e. hermits), which is an adjective, implies, on account of the maxim of
hetuman-nigada (i.e. a statement with a reason), ‘only when those persons,
such as parents etc., are practising austerities, they are immune from punish-

ent’. ‘Children and others,’ occurring in the phrase stri-bdla-vrddhah, has
been interpreted by Brhaspati to mean that they are to be admonished only.
But if women indulge in sexual intercourse with their sister’s sons’
(the latter will suffer the punishment of death after mutilation of their
private parts and) the former will suffer the same punishment (if they commit
the offence-intentionally), while the latter, committing such offence with

1 But the Ratnakara (p. 635) has read mitradisu (i.e. friends etc.) for pitradisu
#2 But the Ratnakara has in its interpretation added stryddindm apyabatdndm adand-.
yatvam uktam, i.e. adult women also are not to be punished,

ORDINARY METHOD 47

women of degraded castes, should have their ears cut off. The above prescrip-
tion seems to be in consonance with Yaj.’s dictum (cf. Yaj. ILf. 231 and 233),

Katyayana (V. 481) further says: No punishment is to be inflicted on an
offending teacher, parents and friends.”

Brhaspati ([X. 18) has said: Persons, born of the pratiloma form of marri-
age (i.e. marriage of a lower caste male with a higher caste female) and
those in the lowest ladder of the social scale (such as Candalas) are known
to be the dirt among human beings and as such, if they transgress a Brah-
mana, they are to be put to death but never to be fined”* (na datavyd damam
kvacit). °

D. V. adds that the word datavyah in the above text means ‘dapayitavydal’
(i.e. made to pay).*°

Katyayana (V. 783) again says:

No pecuniary punishment is to be inflicted on the untouchables, cheats,
slaves, mlecchas and persons, born of the pratiloma form of union, when
they are bent upon committing crimes (papakarindm) but they should be
harassed physically.

D. V. adds: The word pdpakarinah (which 15 the first case-ending plural
form of padpakdrinam, a sixth case-ending plural form, used in the above
text) means papa-karana-sital: (i.e. habitually bent upon committing crimes)
and the word pratilomya-prasitah (similarly the first case-ending plural
form of pratilomya-prasiitanam, used above) means hunters,?® story-tellers
and mdgadhas (?) etc. Other classes of persons of the same (despicable) -
type are to be dealt with in a following chapter on Abuse.

Vrddhamanu has laid down in the chapter on ‘thieves’: The wealth of
these persons, acquired as it is by foul means, is dirty and hence the king
should kill them but never punish them with fines.

D. V. adds that this text applies also to persons, born of pratiloma union
and there is nothing to withhold its applicability to such persons.
The author of the Mit. has said that it applies to cases of commission
of grave sins.

The same authority continues: Those, who are dependent on (paratantrah)
or under the service of (dasatvam samsthitah) others, are ‘designated as

23 The explanatory note, copied by D.V. from Ratnakara and appended by the former
after the previous text of Katyayana, has been so done by the latter after the-present text
of the same author on p. 635.

४५ But Ratnakara (p. 276) reads na datavya dhanam kvaeit in the body of its text and
‘damarh’ in the footnote as a variant.

35 Cf. Ratnakara, p. 276, which correctly reads pratilomydstathd for pratilomastathd, read
by D.V. in the beginning of this text.

36 Cf. loc. cit.

48 DANDAVIVEKA

destitutes (anathah), i.e. property-less and their proper punishment is
physical torture. |

D. V. adds: The word paratantrah applies to ‘wife, sons ettc.’ and the
word samsthitah means ‘have attained the status of’. The word anathah
means ‘destitutes’. Such destitute five kinds of slaves, born in their masters’
houses, have been spoken of in one place, while in another place, ten kinds
of another kind of slaves, (directly recruited and) kept in their masters’
houses from time to time, have been referred to. So there is no repetition
(or contradiction ?) (of the number of slaves) in the above two classifications.

Another anonymous text says: Harassment, imprisonment (or tying up
hands and feet with fetters) and physical torture (vidambanam)*’ are the proper
methods of punishing a slave and not imposition of fines on them.

The same authority (i.e. Vrddhamanu) further says: No other punishment
but harassment is to be meted out to children, old men, afflicted persons
and women. A virtuous king should impose fines upon a (guilty but rich)
woman but a guilty poor woman should be harassed only.

Manu (1X. 230) says: The king should punish women, children, lunatics,
old men, poor men and diseased persons (by striking) with creepers, barks
of trees, ropes and similar other things.

D. V. adds by way of comment: The ‘poor men’ in the above text ase to
be understood as ‘such poor men as are unable to work’. The implication
here is that the above classes of persons are not to be fined but chastised
with the above-mentioned things only. The above prescription is, however,
applicable to cases other than those, in which specific punishments have
been laid down. । ^

Sankha-likhita say on this topic: Painters and artisans, who are Sudras,
should, even when they have committed crimes (entailing upon them forfeiture
of their entire property), keep with themselves tools of their respective
industries. A virtuous king should not (alsG) confiscate the weights and
measures (tulad-mana-pratimadnani) of the traders, land, seeds, rice (for the
annual sustenance of the family), bullock-carts and implements of agriculture
of the cultivators, the beating instruments, such as drums, ornaments and
costumes of the dancers, house, bedding, ornaments and wearing apparel
of the prostitutes, the weapons of the soldiers and similar other paraphernalia
of all other kinds of businessmen.. Because persons, being deprived of
wealth, become vicious and unruly and their consequent sins are (necessarily)
shared by the king, who should, .therefore, neither impoverish them nor
deprive them of their business requisites. The reason is that their very pro-
fessions depend upon those requisites and they eke out their living, plying

“The word vidambanam has been muisprinted in DN. a8 vilambanam.

ORDINARY METHOD 49

those professions and their (consequent) residence in the king’s territory
adds to its prosperity

D. V. adds: The Kalpataru has read samutthdndni instead of tutd-mdana-
pratimanani in the above text and interpreted it as ‘things necessary for
Carrying on their trade

Narada (prakirnaka V. 11) also says: Even in a punishment, entailing
forfeiture of the entire property (of the criminals), the king is not entitled
to confiscate the implements, by means of which the artisans eke out their
living

D. V. adds that the implements, spoken above, are exclusive of those,
used by a thief for stealing

Yama, however, lays down (a special rule): Even when making forfeiture
of the entire property (of a criminal), the king should bear in mind the
maxim viz ‘(One should provide) sustenance to one’s dependents, which is a
bounden duty of the head of a family’ and leave aside one-fourth part of the
(criminal’s) property—this is the settled principle.

D. V. adds: The meaning of the above text is that ‘even when forfeiting
the entire property of a criminal, (the king) should leave aside one-fourth
part of it for the sustenance of the dependents of the convict’. Halayudha
has*also re-iterated the same principle by saying that ‘(the king) should
not appropriate one-fourth part (of the entire property of the condemned
person) out of compassion’. Though the above authority has introduced
the above text (of Yama) in the topic of the socially degraded persons,
yet it is applicable to other cases also on equitable principle

Brhaspati (AX VII. 6b) has laid down in the topic of gambling: In a case,
involving confiscation of the entire property, (the king) should not cause
the criminal to give up the entire portion (na sarvam)

D. V. adds that the words na saryvam (i.e. not the entire portion), as read
with the previously cited text of Yama, emphasize the prohibition of appro-
priating one-fourth portion (of the criminal’s property)

The same authority (i.e. Brhaspati) (XXIII.9 and XXVII. 9b) [or Brhaspati
in the Ist portion and Katyadyana in the 2nd portion, according to Ratnakara
(p. 370)] has further said. Sdhasa (i.e. a rash act or crime) is of five kinds, of
which murder is the most heinous one and perpetrators of that crime (tat-
karinah) should be positively put to death and should not be subjected to
the payment of fine or to any other corporal punishment. The author of a
murder (fat-kdri) should be awarded the capital punishment, after having
been physically tortured seriously

D.. V..interprets the word tat-karinah as ‘actual or direct murderers’ and
adds that the Ratnakara (©. 370) has also similarly explained the term

1

$ॐ0 DANDAVIVEKA

; | ¢
tatkari, occurring in the text (of Kaétyayana according to it). So if a person
causes another. person’s anger, resulting in the latter’s suicide by swallow-
ing poison etc. such punishment (by the sentence of death) is not to be
inflicted on the former.

The same authority (XXIII. 11) continues: A king, desirous of doing
good to his subjects, should not, on account of the prospects of gaining
friends or getting money or any other (covetable) thing, 1९८ loose (moktdvyah)
perpetrators of rash acts (sadhasikah), who strike terror in the hearts all the
people. ध

D. V. adds: The word moktavyah (i.e. ‘should not be let loose’) means
‘should be invariably put to death’. The above text is not a general one on
the topic of punishmegt, as it contains the provision of alluring circums-
tances, such as ‘on account of the prospects of getting money etc.’ The
above text has been cited, illustrating a special rule of punishment for a
special type of criminals. Such special rules may be mutiplied on account
of different causes of punishment.

So Kullika Bhatta has thus commented on the text of Manu (VILL. 125),
beginning with upastham udaram jihva (cited in full on 0. 21 of D.V.):

The punishments of mutilation of specific limbs or harassment (of the
criminal) should be resorted to in accordance with the comparétive
gravity or otherwise of the offences and prescribed fines are to be exacted
from them in lesser offences, while the sentence of death should be pro-
nounced on them, when they have committed grave sins (or most heinous
crimes).

®
11. THE EXTRA-ORDINARY METHOD

Manu (LX. 248) says: The king should put to death a member of the lowest
caste (avura-varnajam), intentionally thwarting (i.e. tormenting) (vadhamdnam)
Brahmanas and do so with the employment of special forms (1114100), con-
ducive to the physical agony of the culprit.

D. V. adds the following comment on the above text: The word vadhama-
nam means ‘tormenting’, avara-varnajam implies a Sidra and citraih means
“by thrusting a pale into the body and by adopting similar other forms of
punishment’. [cf. ‘Ratnakara (p. 660), which, though wrongly reading
vadhamdanastu for vadhamdnantu in the text-portion, explains it as ‘atipida-
yantam’ instead of ‘iti pidayantam’, read in D.V.] !

This aggravation of punishment from pecuniary to corporal, ending in
the death of the criminal, has been rendered necessary owing to the gravity
of the offence, committed by him. So, either on account of the gravity of the
offence or by force of the authority of the above text (of Manu), this extreme

COMMUTATION OF PUNISHMENTS 41

4

- penalty cannot be extenuated and the method of carrying out this penalty
on 8 Sidra for his tormenting a Brahmana has thus been definitely laid down.
But (Narayana) Sarvajna has explained the term citraih (of the above text)
as ‘of various kinds, involving the mutilation of the (culprit’s) hands,
feet etc’. Similar other forms of punishment may also be devised for such
offence.

Hit. CUMULATION OF PUNISHMENTS

Brhaspati (IX. 12-13) says: Admonition should be administered in petty
offences and reproof in the lowest crimes; fines should be imposed in the
medium and the highest crimes, while sedition is to be punished by tying
up (the criminal and throwing him into a prison). (A king), who is desirous
of securing his own welfare, may also order banishment or imprisonment
of the offender. All the above forms of punishment are to be employed
together against a perpetrator of grave sins (i.e. heinous crimes).

Manu (VIJIL. 129-130) also says: Admonition in the first instance, reproof
in the second, fines in the third and corporal punishment as the last resort
are to be successively inflicted (on criminals). If, however, a criminal cannot
be checked even by corporal punishments (short of the sentence of death)
then all the above (four) kinds (sarvam evaitat) are to be cumulatively applied
to those (incorrigible) criminals

D. V. adds: Corporal punishment means ‘mutilation of limbs’. But the
Kalpataru has interpreted it as ‘harassment’. (Narayana) Sarvajna has,
however, explained the phrase sarvam evaitat as ‘ten kinds of (corporal)
punishments, ‘previously described (by Manu VIII. 125), along with the
three kinds of admonition etc’.

Brhaspati (I. 91) further says: The (first) two punishments of admonition
and reproof are known to be within the powers of a Brahmana (vipra) but
(the next two punishments Such as) imposition of fines and infliction of
corporal punishment are to be administered by the king only.

D. V. adds: The word viprah in the above text means ‘a judge’. [Cf.
Ratnakara (p. 636) for almost the same interpretation.]

IV. COMMUTATION OF PUNISHMENTS .

Brhaspati (IX. 19) lays down: A man, sentenced to death, may have his
sentence commuted (by the judge) to the payment of a hundred gold coins, —
and one, sentenced to mutilation of limbs, to paying half the above amount,
while one, sentenced to the cutting off only of the thumb and the second
finger, taken together, may compound the above punishment to the payment
of half of the above half amount (i.e. one-fourth of one hundred gold coins).

52 | DANDAVIVEKA

8

Katyayana (४, 964) (almost similarly) says: One, convicted to death
sentence, (may requite his sentence) by the payment of one hundred gold
coins, while one, sentenced to mutilation of limbs, (may do so) by paying
half of the above amount. But one, sentenced to exile (vivdse), (may commute
his punishment) to the payment of twenty-five coins only.

D. V. adds: (Vacaspati) Misra (p. 157 of V.C.) has interpreted that only
a Brahmana offender, sentenced to death, may thus have his sentence com-
muted to the payment of a hundred gold coins. D. V. further adds that
there is a different reading viz. vinase for vivdse (in the above text), which
‘former also, meaning tad-deSavasasya vindse (i.e. in a punishment, involving
the extinction of the offender’s residence in that country), practically
means the same thing. according to the Ratnakara (p. 662).

The same author (i.e. Katyayana) (VV. 965-966) continues: For persons,
sprung from good families or engaged in the performance of proper religious
duties and meritorious persons but who are not well-off, if found guilty of
offences, entailing sentence of death, (the fine should follow) the above
proportions ; or they are to be deprived of their entire wealth and quickly
banished from the city (or territory), having due regard to the time and place
of.the commission of their cffences. But if they are entirely wanting in
wealth, they are to be tied up in a prison but should never be put to déath.
This special type of punishment is to be meted out, according to the
sacred lore, to the above-mentioned classes of persons, found guilty (of
the most heinous) offences (Cf. Ratnakara, p. 663).

_ Yaj. (I. 368) also says: (The king) should inflict punishment upon the
‘punishable, after having been informed of the (particular) offénce, the place
and time (of the commission of that offence) and physical strength, age,
occupation and financial condition of the offender.

Manu (VIII. 126) says: (The king) should impose penalty on the guilty
persons, after having definitely ascertained the criminal propensity of the
culprits, the place and time (of the commission of the particular cffences),
bodily strength (of the criminals) and the particular offences, (committed
by them). | |

D. V. adds: According to the Ratnakara (p. 663), the punishments,
spoken of (in the above text of Manu), relate to persons, incapable
of commuting their corporal punishments to the payment of fines, ranging
from a hundred gold coins but those criminals are to be deprived of their
entire property. |

Apastamba (II. 27.16-17) says on this topic: In cases of murder of indivi-
duals, theft (steye) and forcible seizure of (another man’s) land, (the king)
should forfeit the (entire) property (of the criminal) and put him to death

COMMUTATION OF PUNISHMENTS 53

tA

(vadhyah). But (tu).a Brahmana (criminal) (brahmanasya) should suffer
here the plucking out of his eyes (cakgurnirodhah)

D. V. adds: The Ratnakara (p. 329) has explained the words vadhyah,
caksur-niradhah and bradhamanasya, occurring in the above text, as ‘to be
harassed’ (tddyah), ‘plucking out of his eyes’ (caksur-utpafanam) and ‘of a
Brahmana of the most inferior type’ (adhamatamasya) respectively. (Vacas-
pati) Misra (p. 140 of V.C.), though interpreting the last word, brahamanasya,
almost similarly as ‘of a Brahmana of the inferior type’ (adhamasya), has
explained steyam as ‘theft of gold’ (suvarna-haranam)

D. V. adds: In fact, the word vadhyah (in the above text) means ‘to be
put to death’ (ghdtyah), which punishment applies to persons other than
Brahmanas, as is evident from the very word tu in the text itself and so the
meaning of the word Brahmana, used in the text, does not stand in need of
being qualified, as the Mit. says on this point:

“The eyes of the Brahmana (convict), while he is being expelled from the
city (or the territory), should be covered with a piece of cloth etc. and should
never be plucked out, otherwise the latter punishment comes into conflict
with the text of Manu (Brhaspati?) (p. 46 of D.V.) viz. ‘A Brahmana should
remain unhurt’ and with that of Gautama, (II. 3.43). viz. ‘No corporal
punishment (is to be inflicted) on a Brahmana’’. Thus, the punishment of a
_ Brahmana (offender) is banishment only for offences, which entail the penalty
of death on the criminals of the Ksatriya and two other inferior castes (i.e.
Vaisyas and Sidras). This prescription has been laid down in various other
(authoritative) texts and is also to be applied here. D.V. adds that thus
the propriety of the peculiar punishment of covering both the eyes of a
Brahmana convict lies in the fact that such a criminal, when leaving his
country, may get enraged by looking at it (with uncovered eyes.).

Katyayana (VV. 967-968) says: A Brahmana (viprah) culprit, fit to be
sentenced to death or to have his limbs mutilated (for his offence), should
be made to enter into a solitary cell, where, being imprisoned, he will not be
able to perform his (religious) duties-—this is the proper punishment for a
Brahmana, engaged in the performance of the holy religious acts (vrttas-
thasya). A perjurer Brahmana should be banished from the territory and a
Brahmana, (habitually) accepting improper gifts, should have his fault
proclaimed to the public, while‘a Brahmana, who has cut off the limbs of a
person, should also be restrained from the performance of his daily avoca-
tions by imprisonment
ˆ D. V. adds the following comment: The word vipra, meaning a Brahmana,
in the above text, means ‘one bent upon practising religious duties’, as
according to the Kalpataru, the epithet vrttasthasya (i.e. engaged in the

54 DANDAVIVEKA

@ 6
performance of the holy religious acts) (placed in the second line of the
above text), implies ‘other punishments for a wicked impious Brahmana’.
The proper punishment for a pious Brahmana consists, however, in restrain-
ing him from the performance of his religious acts. (Cf. Ratnakara, p. 663)

The same authority (Parts of VV. 823-4 and full V. 825) further says:
The school of Manu has definitely laid down that (pious Brahmana culprits)
shall be banished from the territory, if caught (red-handed) with booty
but when such Brahmana criminals are not so pious, whether caught with
booty or not, they should invariably suffer forfeiture of their entire property.
But if such impious Brahmanas are also poor but possessed of physical
strength, they should be tied up with fetters, made of iron, given insufficient
food and compelled tg do menial services for the king up till their death—
this is the view of Kausika.

D. V. adds: ‘Insufficient food’ in the above text means ‘just that quantity
of food, fit for their doing the menial services, spoken of’. The above text
applies to Brahmana offenders only, three classes of whom, described above,
shall have to be punished in three different ways, as specified above, accord-
ing to the Ratnakara (p. 330).

Yama has laid down on the topics of crimes generally and theft specially:
Corporal punishment has been prescribed nowhere for a Brahmana offender,
whom the king shall place within a guarded jail or cell (gupte bandhane)
and feed. Alternatively, the king may tie him up with strings and cause him
to do his menial services for a month or a half-month, after having carefully
considered the gravity of his offence. He may even compel him to perform
services, improper for a Brahmana (vikarmani), (if the circumstances of the
case sO require).

D. V. adds: According to the Ratnakara (p. 374), the word ‘guarded’
(gupte), [added to the word ‘jail or cell (bandhane)} , implies ‘fortified (rak site),
whence no absconding of the convict 15 possible’ and the word Vikarmani
(1.6, improper services) means ‘ucchista-marjanddini’ (i.e. cleansing the leav-
ings of other persons’ food).

Brhaspati (XXII. 26) says on this topic: A ‘Brahmana).thief, who is in the
habit of performing religious acts (vrtta) and is also engaged in Vedic
study, should not only be made to suffer a long-time imprisonment but
should have also to compensate to the owner (of the stolen article) for his
property, stolen (by him) and should additionally undergo expiatory rites.

Manu has thus defined the term ‘vrtta’ (used in the above text of
Brhaspati): Honouring the teacher, abhorrence of bad acts, purification (of
the mind and body), truthfulness, control of the sense-organs and perfor-
mance of altruistic acts—all these constitute vytta,

COMMUTATION OF PUNISHMENTS ` 55
छ

Katyayana (15 verse=V. 479) says:ePersons, cther than Brahmanas,
if found unable to pay the fines, imposed on them, should be compelled to
perform the king’s menial services and those among such offenders, who
are unable to do so, should be put in prison. So Ksatriyas, Vaisyas and
Sidras, unable to pay fines, should requite themselves by doing service
(Karmana) but a Brahmana offender in such cases shall be allowed to pay
the fine in instalments.

D. V. thus comments on the above text: The Ratnakara is of opinion
that the word Karmand (ig. by doing service) means, ‘as compensatory
for the payment of the fines, imposed on them but a Brahmana offender
in such cases shall not have to compensate for the payment of fines in that
fashion but should be allowed to pay them gradually. There is thus, according
to D. V., a host of contradictory texts on the topic of compelling a Brahmana
offender to do menial service and the settled conclusion, according to it,
is as follows:

A Brahmana offender, sentenced to pay fines, if found rich enough to do so,
shall undergo the penalty of the forfeiture of his property or of the payment
of panas, beginning with one thousand, according to the prescriptions,
laid down in different offences.2® But if it is found that a Brahmana offender
cannot pay the fines even by instalments, he shall then be forced to do
menial services (for the king). But even in such cases of inability of the
Brahmana offender, if he be possessed of good conduct and Vedic studies,
he should be bound up either with fetters or with ropes and kept in a solitary
jail and compelled to undergo expiatory rites for the purpose of his correction.
But if no such Gorrection occurs within a specified time, he should be banished
from the territory, as a text of Apastamba, to be quoted below, (on p. 260 of
D. V. in the beginning of the topic of miscellaneous offences), has laid down
that ‘ndsa i.e. destruction (of the offender’s residence in that territory) is (to be
ordered by the king) in cases of non-correction of the criminal (even after the
specified period of imprisonment, along with expiation)’. The punishment to be
inflicted on (poor and) ordinary Brahmanas, (not having good conduct and
Vedic study,) is that they shall be compelled to perform menial ‘services or
cleanse the leavings of other persons’ food, not appropriate for Brahmanas,
according to the degree of their degradation . If a Brahmana, either of
the superior or of the inferior type, sent to exile, returns to his home
territory uncorrected and indulges in bad acts as before, he should then

38 D.V. reads a vague sentence 2fter this viz. s@hasadikafica nirdhanendpi tena yathodayam
deyameva na tu karmana parigodhyam which may mean, ‘If such an offender is-not wealthy
ehough to do so, he should have to make payment of fines, beginning from the first amerce-
ment, as imposed upon him (by instalments and never requite them by labour).

~

.56 DANPAVIVEKA

८ c | a
(in that extreme case) be kept imprisoned either up till the end of his life
or so long as no correction occurs in his conduct.

So Brhaspati (LX. 25b-26) has laid down: If an alleged offender, completely
(1140) defeated (i.e. adjudged guilty) by witnesses, document, inferential
process (i.e. circumstantial evidence) or (va) ordeals, declines to pay the
fines (darnam), imposed upon him (deyam), he is to be banished from the city
(or the territory).

` 70. V. adds: The word jitai in the above text refers only to {€ person,
adjudged guilty”’ for purposes of justice. So witnesses, documents etc. are
only means of proof. The particle va, meaning ‘or’, implies ‘option of the
acceptability (by the judge) of any one of the above-mentioned means of
proof.’ The word dumgm means ‘the (pecuniary) punishment for the offence’
and the word deyam means ‘forming the subject-matter of the suit, i.e.
decreed or imposed upon the offender’. These eight kinds of prescription,
consisting of division and subdivision (of the several types of criminals with
separate financial conditions and mental attitudes), constitute what is
technically known as the dunda-matrkd, i.e. the measurement or gradation
ef punishments. This line of reasoning is to be followed throughout (in
criminal trials).

Here ends the first chapter of the Dandaviveka by Sri Vardhamana oft the
general description (of the theory and practice) of punishments.

CHAPTER If
PUNISHMENT FOR HOMICIDE (or murder etc.)

Yaj. (II. 280) has laid down the following procedure to find out an un-
known (i.e. absconding) murderer :

The sons and relations and the wives of the man, murdered by an unknown
person, the last being in liajson with other men, should be separately interro-
gated.

D. V. adds: The sons etc. of the murdered man are to be asked, with
whom he (the murdered man) had any quarrel (before,his death).

The same authority has also thus indicated the way of putting questions
to them: (The king’s men) should one by one ask the persons, residing in
the place of the murder, with what intent, whether acquisition of any woman,
wealth or any (new) profession, and with whom the deceased had left the
place.

Brhaspati (XXIII. 21 and 23) has said: The king should find the murderer
out by means of inference from the previous enmity of the deceased (with
any*person), when the dead body of the murdered man is found but the
murderer is not traceable. The royal officers should ask by means of concilia-
tion and other devices the next-door and almost next-door neighbours,
the friends, foes and relations of the murdered man (for that purpose).

Baudhayana (I. 10.19-28) has laid down the following manner of punish-
ments of the murderer after he has been traced out: Ksatriyas and others,
who have killed a Brahmana, should be put to death and should have also
their entire properties escheated to the crown. Butif such persons have killed
members of equal or inferior castes, they will be penalised appropriately
and in due consideration of their (physical and financial) capacity. (A
Brahmana), killing a Ksatriya, should offer a thousand cows to the king
(rajfak) for pacifying the enmity (vairaniryatanartham). In cases of killing a
Vaisya and a Sidra, (the Brahmana) should have to offer one hundred and
ten cows respectively. A bull should have to be so delivered in addition in
each of the above cases. Putting a woman or a cow to death has been equated
(by some former authorities) with the murder of a Sidra but the killer of a
menstruating woman (dtrey!), a milch cow or a bull shall have to undergo
the cdndradyana penance in addition to the prescribed punishment. Of these
(three special classes), the killing of a menstruating woman has been equated
with that of a Ksatriya. Putting the following animals to death is equal in
culpability with the murder of a Sidra: Swan, bhdsa, barhina, cakravaka,

8

58 | DANDAVIVEKA

C€ : : ह ।
141८, crow, owl, frog, mongoose, serpent, wag-tail, vabhru type of mongoose
and similar other lower animals (ddindm).

D. V. adds the following long commentary to the above text: The com-
mentary of Kapardin on the Apastamba-siitra says that “‘the phrase vaira-
niryatanartham means that ‘the person, who is killed by another person,
_ surely kills the latter (in the next life), to avoid which eventuality the latter
(i.e. the murderer) should undergo penances by doing which he (the murderer)
escapes death (in the next life) at the hands of the murdered person and the
_ mutual enmity is thus pacified’.”” So {€ import of the above interpretation
of the commentary on Apastamba is similar to that of the above text of
Baudhayana and is also in harmony with a text of USanas-sittra which lays
down that ‘(a person), after having killed an indifferent (i.e. unmindful of
his caste duties) Ksatriya, ‘becomes (automatically) purified’, though it
appears from the above text (of Baudhayana) that in that case also the
murderer has of course to undergo expiatory rites. Moreover, it is also
apparent from the insertion of the word rdjfiah (i.e. to the king) in the above
text that the delivery of the cows to him amounts to punishment, which
is in the form of (i.e. a substitute for} performance of the penances, like the
shaving of the head of a raped Brahmana woman, prescribed by the authori-
ties. So the above text has been quoted by the Kamadhenu in its sectiofis of
dharma and of the fourth portion of artha and also by the Kalpataru in its
Prayascittakanda and Vyavahara-Kanda sections.

The word dtreyi means ‘a menstruating woman’ on the authority of the
following text of Vasistha: A woman, who has just taken the purificatory
bath after her menses, is called an G@treyf, as she has then 0600106 a progeny
(i.e. a procreating woman), as it were, of the god Atri. So the word dtreyi
(literally) means ‘belonging to the gotra of Atri’. The Mit. has, however
quoted a text of Visnu, which is to the following effect: ‘Or concerning a
woman of the Atri gotra (i.e. lineage.)

The words nakula and vabhrunakula mean ‘a water mongoose’ and ‘a land
mongoose’ respectively. The portion of the above-cited text (of Bandhayana),
beginning with the words ‘manduka-nakula’, as quoted by us, is found in toto
in the Kalpataru, but the Kamadhenu ends the above text with the words
manduka-nakuladinadm’ (i.e. of manduka (i.e. frog), nakula (i.e. mongoose)
and others). The digest of Halayudha also reads similarly

The Ratnakara (cf. p. 371) reads tittirika® (i.e. partridge) instead of
Khaijariti ७.6. wag-tail) (read as Khafjarita in the text portion of the above
quotation):-but it explains it wrongly. Haléyudha has read pracdlaka for

` ® But Ratnakara reads ‘tailika’ on p. 371

PUNISHMENT KOR HOMICIDE | > - 59

valaka and explained it as ‘chameleon ’ (Krkaldsa). The word ddinam,
added at the end of the above text, implies ‘other lower animals’.

The final conclusions (arrived at by us), regarding the above text, are the
following: ` — `

(1) Ksatriyas, Vaisyas and Sidras, killing a Brahmana, shall have their
entire properties forfeited by the king, who shall then put them to death.

(2) When members of the above three castes murder a member of an
equal or a lower caste, such as a Kgatriya kills a Ksatriya, Vaisya or Sidra,
2 Vaisya puts a Vaisya or a Sidra to death and a Sadra murders a member of
his own caste, then the punishments to be inflicted upon them are according to
their (financial) capacity and appropriateness such as the highest and other
amercements or corporal punishments. This is the opinion of the Ratnakara
(p. 372). But Halayudha has inserted the words uttama-sahasddi-riipam Sarirarmn
va (i.e. the highest and otheramercementsor corporal punishment) only between
anuriupam (i.e. ‘appropriate’, in the second sentence) and Sidra (i.e. ‘in the
case of a Sidra’, in the third sentence) of the text of Baudhayana. “Here
Sarira (danda) (i.e. corporal punishment), as read by Halayudha, means
‘mutilation of limbs only’ and not ‘vadhah’ (i.e. death proper’), otherwise
the word vadhah would have been definitely used in the above reading of the
text (of Baudhayana).” This is one line of interpretation. Another line is
to the following effect:

As death also relates to the body, so the phrase Sariradanda (i.e. corporal
punishment) also includes death sentence, as the soul cannot be killed,
inasmuch as .Narada has said that ‘corporal punishments extend from
imprisonment to extinction of life’ and also because ‘mutilation of limbs’
appropriately relates to the limbs only, owing to the literal interpretation
of this phrase and the invariable connection of. the body with the limbs
and thirdly, on the authority of the text of Safkha-likhita, laying down
the following alternative punishments, viz. “Either corporal (punishment)
or mutilation of limbs should be meted out” and lastly, owing to the separate
inclusion of the body in the ten kinds of punishments, laid down in the
following text of Manu (VIII. 125) and the corresponding interpretation
of Kullika Bhatta of “the punishment of the body being death proper’:
The genital organs, belly, tongue, hands, feet, eyes, nose, ears, money and
the body. 3

So it appears (in spite of the above conflicting opinions) that (1) a person,
who kills a person of the same caste, is to be put to death, as that is equitable
and is also in consonance with the text of Apastamba viz. ‘Sentence of death
is the proper punishment for murder’; (2) In cases of killing persons, not
belonging to the murderer’s caste, such as the murder by a Brahmaya of

60 , DANDAVIVEKA

Ksatriyas and members of other (fower castes), the dedication of cows as
punishment, diminishing successively to one-tenths of the immediately
preceeding ones, is justified on the same equitable principle; (3) The pecuni-
ary punishments, ranging from the highest amercement in killing persons
of equal or immediately inferior castes to the middle amercement in murdering
men of very inferior castes (in comparison with that of the murderer), are
also similarly justified; (4) The mutilation of one hand only out of the two
hands (of the condemned criminal) and similar other corporal punishments,
meted out with discretion, are also justified for tne same reason, as the rule
of such discretionary punishments, laid down by the verb Kalpayet (i.e.
should devise), (occurring in the second sentence of the above text of Baudha-
yana), is thus verified (5) The option between imposition of fines and inflic-
tion of corporal punishments has been given (to the judge), having regard to
richness or poverty and to the presence or absence of intention (or know-
ledge) (of the culprit) or to any other reasonable factor; (6) The prescription
of punishments for offenders of the Ksatriya and other lower castes having
been given in the first sentence (of the above text), it necessarily follows that
the phrase viz. Ksatriya-vadhe (i.e. in case of killing a Ksatriya) should be
preceded by the phrase viz. Brahmana-Kartrke (i.e. by a Brahmana, under-
stood). All other portions of the above text are explicit. The above summing
up is also the view of the Ratnakara (p. 372). So it follows that the respective
punishments, which have been prescribed for the killing by Brahmanas
of a Ksatriya and a Sidra, are also to be respectively inflicted on them for
the murder of an @treyt (i.e. menstruating woman, just purifjed) and killing
of an ordinary cow,*°(the killing of a milch cow or a bull having been equated
in the text with the murder of an dGtreyi). If the cow or the bull, so killed,
belongs to another person, the killer has also to give to the owner a substitute
(of the killed animal) or pay to him its price.. This will be elaborated (by us)
in the chapter on danda-parusya (i.e. assault).

Manu (IX. 280b) says on this topic: (The king) should instantaneously
.(a-vicdrayan) put to death the stealers®! of elephants, horses and chariots.

D. V. adds that the word avicdrayan (1.6, instantaneously) means ‘not
making any delay in carrying out the punishment, when the fact of the com-
mission of the above offence has been established’. |

Brhaspati lays down the following special rule, concerning the persons,

DPD. $, omits govadhe ca (i.e. and (for the) killing of an ordinary cow’), which has
béen supplied by us

न Manu reads °hartrréca but D. V. reads° hantrréca (meaning ‘killers also’), which 18
inapplicable to the case of ‘chariots’ here, | |

PUNISHMENT FOR HOMICIDE 61
e ह, =,
dealing out the fatal blow (to another person) and not so dealing out respec-
tively, among several men, engaged in assaulting an individual:

When several persons, having flown into rage, start beating another
person, that very man of the group is to be singled out as ‘the murderer’,
who gives the mortal blow. Only that person should be punished as pres-
cribed (for murder) (Yathoktam), while the beginner and the assistant (i.e.
the aider and the abettor), who are also guilty, should receive half of the
prescribed punishment.

D. V. adds that the word yathoktam in the above text means ‘according
to the legal prescription for the particular class of the victim’.

Yaj. (II. 231) has thus prescribed the punishment of an instigator: He,
who instigates another person to commit a rash aet (or crime), should be
awarded twice the prescribed amount of punishment and he, who does so
(i.e. instigates) (Karayet) by stipulating that he will make payment of money
to the actual culprit for committing the offence, should get four times the
prescribed punishment.

D. ४. adds: The word Karayet means ‘by verbal suggestion’, according
to the Ratnakara (p. 374, footnote 2) according to which authority (p. 374)
the latter sentence means saying that ‘I shall pay you (such and such amount
of money) for committing this offence’, and thus encouraging him to do the
same, in which case four times the penalty, prescribed for the respective
castes,* is to be imposed.

The interpretation of the Kalpataru is also to the wame effect.

Katydyana (vv. 832-834) thus analogically includes several other classes
of persons within the above category (of aiders and abettors): The com-
mencer, the assistant, the adviser as to the method (of carrying out the
crime), the person providing asylum (to the real culprits), the supplier of
weapons, the provider of food (to the above miscreants), the instigator of
the scuffle (yuddhopadesakah), the inventor of the ways and means of
doing away with the victim (tad-vindsapravartakah), the winker (upeksa-
kari), the false accuser (ayuktasca dosa-vaktd), the approver (of the offence),
the capable non-prohibitor (aniseddhd Ksamo)—all these are involved in the
commission of the offence and should, therefore, be punished appropriately
and in conformity with their capacity (to pay the fines imposed or undergo
the corporal punishments inflicted upon them).

D. V. adds the following comment: The assistant is a person, who appar-
ently keeps himself aloof from (but really helps) the murder of a person

० TD. V. reads varnot-kargat, which has been translated here, but Ratndkara reads
anubandhotkarsat (i. 6. on account of higher criminality), which is the better reading.

62 । DANDAVIVEKA
€

। 9

by another person. The phrase fad-vindsa-pravartakah means ‘he, who
causes the death of a person by administering poison and similar other
(dangerous) things to him, there being no emergency of war’, according
to the Ratnakara (p. 374). But the Kalpataru interprets the phrase as ‘he,
who offers suggestions of the ways and means of murdering the victim.’
The word upeksa-kart implies ‘he, who, though incapable of forbidding
the assailant, does not ask for the help of others and thus acts against the
victim (paradvarapi nisedha-nanukulya-kart)}*. The phrase ayuktasea doga-
vakta means ‘he, who, though not summoned by the king, deposes against
the victim in vile words’. But another authority has interpreted the first
word of the above phrase viz. ayuktah separately as ‘not relevant regarding
the murderer’. Halayydha has, however, read ayuktasya for ayuktaséa,
connected it with the previous word upeksda-kari and interpreted it as
anyayyasya (1.e. of the unjust action). The newly formed phrase thus means,
according to him, ‘one, who, even though capable of stopping the commis-
sion of the offence, winks at the conduct of the wrong-doer (and does not
stop it)’.

Paithinasi has said: The actual murderer, the adviser (i.e. the instigator),
the supporter (sam-pratipddakah), the encourager, the assistant, the adviser
of methods (of committing the offence), the winker, though capable (of stop-
एटि the commission of the offence), the falsely deposing (witness) and the
approver—all these persons should be compelled to perform penances and
should also be punished appropriately and in conformity with their (physical
and financial) capacity

D. V. adds: Many other persons including those, who offer shelter to
_and thereby benefit the murderer, to be enumerated in the (following)
chapter on theft, may be cited here (as aiders and abettors of this offence of
murder)

Vyasa says: After having. definitely ascertained the murderer along with
his assistants (sa-sahdyam) and friends (sa-bandhavam), the king should put
all of them to death by various tormenting methods.

D.V. adds a lengthy note: The word sahdya (in the above compound word
sa-sahadyam) means ‘a person, very intimate with the culprit’ and the word
bandhava (in the above compound word sa-bandhavam) implies ‘those who,
though knowing (full well) the perpetrator of the crime as such, do not avoid
his company’, according to the Ratnakara (p. 377). A murder may thus be of
five kinds, (a) direct, (b) by offering advice, (c) by showing favour, (d) by

9 D. V. has read the phrase as° nlsedhd-nukalyakdri, which is wrong, meaning the
opposite

PUNISHMENT FOR HOMICIDE = 7 63 `

according permission and (€) by acting accidentally (and thus bringing
about the murder), which topic has been dealt by usin extenso in our Dvaita-
viveka with its divisions and sub-divisions. The heavier and lighter forms of
expiation of persons, showing favour (to the-murderer) or otherwise helping
him, have been discussed there, having regard to their future confession
of guilt or their relative aloofness from the actual offender and also in consi-
deration of the seriousness or lightness of the offence committed. For example,
2 person, showing favour and an adviser are to perform three-fourths and
half respectively of the penance, preseribed for the offence, while the penances
to be gone through by anaccorder of permission and an accidental committer
are a quarter and its half and a quarter only of the penance; laid down.
This having been settled for expiations, the respective punishments will also
follow the same rule in the absence of express texts, laid down for them,
inasmuch as both expiation and punishment produce the same salutary
and corrective effects (on the offender’s accomplices). So in both the above
forms (of correction) intimacy with or aloofness from (the actual offender)
of the latter class of persons is to be taken into account and the above-cited
text of Paithinasi has also given the advice of according equal position to
both the forms of correction. The author of the Mit. is of opinion that an
accidental killer (of a person) is to be awarded the punishment for rude
behaviour (GkroSana) and similar other lesser offences only and not that for
actual murder, as there is absence of pre-meditation (i.e. intention) on his
part (to commit the murder); and so when the assailant accidentally meets
death at the hands of another person, the latter is not to be punished (as a mur
derer). But when the rude behaviour (on the part of the accidental killer). is
justified, there is no consequent punishment even for that rude behaviour. =

Bhavadeva Bhatta has said: When a culprit, having been penalised with
admonition, fine or any form of corporal punishment, approrpiately applied
to him for his specific offence, commits suicide by tying a noose around his
neck, (the king or the judge) thereby incurs no fault whatsoever, as even
though punishments enrage criminals, there is no valid reason for withhold-
ing them, for, owing to the Shastric injunction viz. ‘One should not kill
anybody’, the agency of directly bringing about the death of a person is
only prohibited. There is also no authority (of the judge) to administer
on the accidental perpetrator of a crime a heavier punishment than admoni-
tion. Similarly, why should there be any prohibition (imposed on the judge)
to inflict punishment on a convict, even though such punishment may arouse
anger in him and indirectly result in his death (by committing suicide)? |

D. V. continues: Thus a person, acting in accordance with the evil advice
` 9 another person, only incurs the sin of transgression of legal injunction

64 | DANDAVIVEKA

but invites no punishment on himself. Like the heaven of a sculptor (sthapateh
svargah), such persons have no intention of committing the murder, as
acting under another man’s advice, such persons have placed themselves
in fiduciary relationship of the former (tat-putradi-sthaniyatvat) and their
free will has thereby become subordinate to that of another person, like a
horse, an elephant, a dog, a monkey and similar other beasts in the employ-
_ment of their masters. So these masters only are liable to punishment, e.g. a
father is to be punished for the delinquencies of the son, on the authority
of the text of Narada (cf. p. 223 of D.V.), quoted by us in the danda-mdatrka
(enumeration of punishments) section of the danda-parusya (assault) chapter.
So here also on equitable principle, the offerer of the evil advice and not
the person, acting under that advice, is to be punished. This principle has
been elucidated by us by quoting a text of Brhaspati in the steya-danda-
matrkd (enumeration of punishments for theft) section [p. 85 (Ist. quot.) of
D.V.] (of the chapter on theft)

Such having been established as the rule of awarding punishmens according
to the gravity of offences, the interpretation of the Ratnakara (p. 377) of
the word bandhava, occurring in the previously quoted text of Vyasa, begin-
ning with the words viz. jAdtvd tu ghatakam [i.e. after having (definitely)
ascertained the murderer etc.] is questionable. Non-desertion (of the Com- `
pany) of the perpetrator of a crime is no fault in itself, necessitating
death penalty on such a person, as one, not aware of the crime,
(committed by the actual offender), may keep company with the latter out
of affection. So those bandhavas (i.e. friends) only, who do not dissuade a
criminal from the commission of the crime but (on the contrary) being led
by a desire of partaking of the result of the crime (e.g. booty in a theft),
themselves become guilty by encouraging the criminal to commit the contem-
plated crime, come within the purview of the punishment, prescribed in the
above text of Vyasa by reason of their culpability, equal to that of the
criminal himself. Otherwise, the following interpretation of the Ratnakara
(p. 382) itself comes into conflict with the above interpetation of the same
authority

In the text of Yama, viz. ‘the murderers and the semi-murderers should
be punished in relation to their respective bodies (sva-Sarirena dandyah syuh)’,
the phrase sva-Sarirena dandydh implies ‘in consonance with their specific
offences’. |

Narada (rnddana vv. 245-6) says on this topic: He who, having committed
a reprehensible crime, confesses his guilt (pratydsattim bhajeta) i.e. himself
speaks out before an assembly, is to be awarded half the prescribed punish-
ment. But if the miscreant, having concealed his guilt, due to his wicked

PUNISHMENT FOR HOMICIDE | 65:
ड

nature, lives (i.e. gets scot-free), the menfbers of the assembly become guilty
and the culprit, (if afterwards detected), is accorded a severe punishment.

D. V. adds the following comment: The word pratyasattim means vinaya-
kartr-sannidhyam 0.6. approaching the administrators of justice), i.e. he,
who doing so, says (before the assembly) ‘I have committed such and such
crime’ and thereby does not conceal his crime, is to be punished lightly.
But he, who (does not do so and thereby) conceals his crime, gets heavier
punishment. This is the meaning of the above two texts (of Narada), accord-
ing to the Ratnakara (p. 375). But Haldyudha has interpreted the above
texts in the following manner:

He, who undergoes pratydsatti which means prayascitta (i.e. penance),
or himself reports to the assembly by saying ‘I am the author of such and
such crime. Please inflict the (proper) punishment upon me.’ gets half
of the prescribed punishment. But if he, who, by concealing his evil act,
gets immunity from punishment but the members of the assembly are
convinced of his crime by his outward signs and gestures, he is then to be
punished severely, even if he might have committed a lighter crime.

The above two interpretations practically mean the same thing and are
hence equally acceptable.

AS the Ratnakara (pp. 370-375) has quoted the texts, such as yal
sahasam karayati etc. (Yaj. 11. 231, D.V. p. 75 above) (i.e. he, who instigates
the commission of a crime) on the topic of the enumeration of the five kinds
of crimes and as the texts of Yaj. and Narada specifically mention crimes, so
in spite of the non-mention of crimes in the above-quoted text of Katyadyana,
due to the folldwing by the Ratnakara of both the texts (of Yaj. and Narada),
` the specific and special punishments, prescribed above, are also to be inflicted
in cases of theft and other crimes

Here ends the second chapter, entitled ‘Punishment for Murder’, of the
Dandaviveka by Sri Vardhamana

CHaptTer [11

PUNISHMENT FOR THEFT

Steya 1.6. theft means ‘unjustified taking of other men’s property’.

Manu (VIII. 332) has thus defined it: An act, done with force before the
very eyes of guards, is called sdhasa (i.e. rash act) and theft consists in an act
(i.e. taking of other men’s property) surreptitiqusly, either before the very
eyes of guards or not so (i.e. where there are no such guards).

D. V. adds the following comments: So the first kind 1s a sdhasa, as it,
consisting of taking of other men’s property, is committed by overpowering
the guards and the second kind is called ‘theft’, which consists of two sub-
divisions, viz. (1) theft, committed by defrauding the guards and (2) theft,
committed in the absence of guards. Both these latter kinds fall within the
category of ‘theft’, on the authority of the text of Katyayana, viz. Theft is
said to be committed by non-disclosure (of the malpractice, involved in it)
(apahnave). So the first kind of offenders (referred to in the very beginning
of this commentary), though really stealers of other men’s property, 15
termed a sdhasika (i.e. perpetrator of sdhasa), to be punished as “such
through the procedures of calling witnesses and undergoing ordeals. The
second kind (i.e. the first subdivision of the latter category) is called an overt
thief (prakdsa-taskarda), having committed the theft before the very eyes of
the guards (but without their knowledge). The third kind (1.e. the second sub-
division of the latter category) is known as a covert thief (a-prakdsa-taskara)
steal as they do the properties of sleeping, drunken, mad and afflicted persons
without their knowledge, having taken advantage of their (temporary or
permanent) absence of understanding. In the above-mentioned three kinds
of cases, the stolen property should be taken away from the thief or
sahasika and returned to the real owner, the offence proclaimed among
people and the offender should also be appropriately punished.

90 Brhaspati (XXII. 5) says: The king’s men should definitely ascertain
the thieves by means of their association (with similar other condemned
persons), the articles stolen (if realised later) and incriminating substances
(if traced out) and then have the stolen articles returned to the real owners
and get the offenders punished according to law.

D. V. adds: The above-mentioned factors of association etc. are only
for the consideration of the king’s men and are not individually conclusive
in themselves, as they may not exist together

Narada, therefore, says: (The king’s. men) should carefully examine

PUNISHMENT FOR THEFT — 67
ह #
whether the seized article has fallen om the ground from the hands of a
person (other than a thief) and afterwards unintentionally picked up from
the ground by another (innocent) person or has been thrown (on the road)
by a thief.

D. V. adds: So it is established that the conviction of a person as a thief
rests on visible as well as invisible means of proof.

Manu (IX. 262) further says: Having publicly proclaimed the specific
offences of the thieves, the king should punish them according to their
capacity (sdranusadraTah),*4 physical (for undergoing the rigours of punish-
ment) or financial (for paying the fines imposed).

D. V. adds: The punishment of persons, analogically described as thieves
by the sages, has been Jaid down here, as analogical deduction and actual
prescription amount to the same thing. There is, therefore, no return of the
booty to the real owner, which has been neither specifically nor analogically
laid down here.

Yaj. (II. 276) says: The person, who knowingly (janatah) offers food,
shelter, fire, water, advice, implements (of theft or murder) and expenses
(of travel) to a thief or a murderer, should be punished with the highest
amercement.

D. V. adds the following comments: Fire is intended for protecting the
criminal from cold and water for quenching his thirst. Advice relates to
telling (the criminal) the ways and means of committing (theft or murder).
The addition of the word jdnatak (i.e. knowingly) in the above text implies
that one, offering unknowingly all or either of the above things to the thief
or to the murderer, incurs no offence whatsoever (cf. Ratnakara, p. 337)

Manu (IX. 278) again says: The king should punish as thieves the follow-
ing classes of persons also: Those, who supply fire (to a thief) (agnidan),
offer him food, stealing implements or shelter or keep the stolen things in
their custody (mosgasya sannidhdatrrn).

D. V. adds: Narayana has explained the word agniddn (i.e. suppliers
of fire) as ‘for the purpose of setting fire to anybody’s house’. The Ratnakara
(p.337) has explained the words viz. mdgasya sannidhatrrn as meaning ‘creat-
ing circumstances, favourable to the intended stealing (apahdra)** of things’
but it has been interpreted by Kullika Bhatta in his commentary on Manu as
‘the keepers in their custody of the things, stolen by the thief’, as according
to him the word mosa, derived from the root mug, (i.e. to steal) means ‘a .

* Manu reads aparddhatah, which means ‘according to the requirements of the

specific offences’
* Supplied from the quotation in the Ratndkara. D. V. omits the word apahkdra

and simply reads the phrase as mosaslya-dravyd-nukilla®,

68 i DANDAVIVEKA

€ €

thing of a person, which is stolea by another, i.e. the stolen articles of
a thief’. Narayana has, however, interpreted it as ‘those, even though know-
ing that a person will set fire to a house or commit similar crimes, lead the
intending criminal to the place of the contemplated crime’. The Ratnakara
(p. 337) adds that “the above text is to be construed only to those cases,
where such persons do not have the ignorance (i.e. do possess the knowledge)
(of the impending disaster).”’

In continuation of the word hanyat (i.e. should kill), used in an earlier
text, Vigsnu (V. 16-17) lays down: Those, who provide thieves with shelter
and food, should be forcibly (put to death), except in cases of incapacity
_of the king (anyatra rajasakteh) to check them

D. V. adds: The idga, underlying the above text, is that when the king
1s powerless to suppress thieves, one, who offers food etc. to them for one’s
personal safety, commits no fault. (cf. Ratnakara, p. 338) But Halayudha
has read the above word rdjasakteh as rajasakteh and interpreted the whole
phrase (i.e anyatra rajasakteh) as ‘without any connection with (i.e. authori-
sation by) the king, 1.e. when a person does so under the express order of the
king for creating confidence in the thieves, he is not to be put to
death.’

D. V. continues by saying that there is here no actual guilt on the paft of
those, who offer food etc. to the thieves, but on the analogy of the offence of
theft, such actions only favour the commission of the above offence and
hence such punishments have been prescribed (as precautionary measures).
Let that be so. But variation of punishments has also to be made in
accordance with the gravity of the offence so committed (by offering such
assistance to the intending criminals) and the actual offence, on the logic,
propounded (by us) in the concluding portion of the previous chapter on
murder and also on the established principle of law. It is also not (ordi-
narily) proper to inflict the same punishment to the house-breaker and to
the offerer of food to such a criminal, where also heavier punishment may
have to be inflicted (on the offenders), only when they repeatedly commit
the offence, spoken of :

Narada (Sdhasa V. 19) says on this topic: Those persons, who are strong
enough to get the thieves being arrested, do not do so but on the contrary
(indirectly assist them) by offering food and shelter to them, when they
approach them, share the guilt of the latter equally.

Manu (IX. 272) also says: The king should punish as thieves the officers,
who have been placed in charge of protection (of the people) and the villagers,
(sdmantan) who have been specially advised (desitdn) (by him) to do so. but
who remain indifferent (madhyasthdn) to the inroads of the thieves,

PUNISHMENT FOR THEFT ५ 69
५ ®

D. V. adds: The word sdmantan, having been derived from samantat**
(meaning ‘near by’ or ‘surrounding’), means ‘villagers’, the word desitan®’
means ‘advised to protect’ and the word madhyasthan means ‘indi-
fferent’. ~

Katyayana says: Those, who instigate and order the thieves or offer
shelter to them and conceal them, are to be awarded the same punishment
as the thieves themselves.

D. V. adds: Such analogical instances are to be reckoned with in murder
also, as Yaj. (II. 276) contains the words caurasya hantur veti (i.e. of the
thief or of the murderer). The same authority (i.e. Katyayana) (V. 827)
adds in continuation of caurdnam (i.e. of the thieves): |

The purchasers and the donees of the booty of the thieves and their (i.e.
of the thieves) concealers are to be punished equally as the thieves them-
selves.

Manu (VIII. 340) says: The Brahmana, who receives (/ipsefa) wealth
(dhanam) from the hands of a thief (adattaddyinah, i.e. from an unlawful
receiver) even by officiating as a priest for or teaching (such a person), 15 as
bad as a thief (yatha stenas tathaiva sah).

D. V. adds: The verb lipseta (literally meaning ‘desires to receive’) 15
to Be considered as an archaie usage (arsa) like the word nididhydsana,
thus conveying no desiderative sense in spite of the addition of the desi:
derative suffix (san) to its root (viz. lab). The word dhanam (i.e. wealth)
indicates ‘such wealth as is known (by the Brahmana recepient) to be
others’ wealth (and not of the donor’s wealth).’ Here also, on the reasoning
of the concluding portion of the chapter on murder and also on the
insertion of the correlaties yathd and fatha in the text, there is an analogy
only of a thief on a purchaser or a donee of stolen property and there is
no actual theft. The analogy holds good in receiving punishments only
but does not apply to performing penances. So it is to be understood that
a-person, purchasing or receiving (as gift) gold, originally belonging to a
Brahmana owner, from the hands of a thief, does not run the risk of
becoming a grave sinner.

In the following text of Yaj. (II. 269) there is no allegation of theft here
but the aversion of the person, accused of theft, due to association etc.
(with the thief), to face trial really confirms his thievish character and so
disgorging by him of the property stolen is justified:

He, who, having been arrested on suspicion of theft, does not exonerate

9० Kullika interprets sdmantdn as simdanta-vdsinah, i.e. petsons, residing on the borders

of a village. 37 Manu reads coditdn, meaning the same thing. Ratnakara’s (p. 339)
reading and interpretation of the above two words are the same as those ot D,V. |

70 DANDAVIVEKA

+
himself, should be compelled to disgorge the stolen property (or its value).
and also be punished as a thief.

But if that establishment of the thieivsh character of such a person,
having been nullified, turns out to be a mistake, the king should then follow
the procedure, suggested by Katyadyana (V. 821) and laid down below:

If the article stolen is actually recovered later from a person other than
One, previously suspected of its theft, the king should cause his officers,
engaged in the detection of the thief, to make over twice the amount (already
extorted by them from the suspected person) to the latter.

Brhaspati (XVI. 9) says : The master (sv@m/) only is to be held guilty
(aparadhnuyat) (and not the servant) for an evil act (asubham karma), com-
mitted for the benefit of the master (tadartham) by the servant, employed by
him.

D. V. adds: The phrase asubham karma (i.e. an evil act) includes ‘theft
and similar other crimes’. The mention of the word svami(i.e. master) empha-
sizes the guilt of the master only and not of the servant. According to the
Kalpataru, the word aparddhnuyat means ‘becomes punishable’. This topic
is to be found (discussed in greater details) in the chapter on assault etc.
below. The servant’s immunity from punishment has only been indicated
here, though the servant would certainly incur sin, as has been elaborated
(by us) in the concluding portion of the chapter on murder above.

The same authority (i.e. Brhaspati) (XV. 13) has thus classified the servants:

The armed servant belongs to the highest class, the servant, carrying the
ploughshare (of the master) (i.e. the farmer, employed by him) 18 of the
middling type, while the load-carrying and the domestic (menial) servants
belong to the lowest category.

Yj. (II. 36) says: The wealth, stolen by a thief, should be made over by
the king to the residents of the locality (where the theft has been committed)
The king, not doing so, incurs the same sin as that (fasya yasya tat) incurred
by the thief himself (in stealing the wealth)

D. V. adds that according to the author of the Mit., the phrase fasya
yasya tat (occurring in the above text) means: ‘If the king recovers the
wealth from the thief and enjoys it himself, he then incurs the same sin,
as accrued to the thief on account of his stealing it’.

Katyayana (V. 816) says on this topic: (The king) should restore with
efforts the stolen article itself (svariipam), otherwise he shall have to pay
its price to the real owner (in case of his failing to recover it from the
thief). The. king, not doing so, becomes sinning.

_ The same authority (V. 817) continues: If the (real) thief has been arrested.
but no stolen article has been recovered from him, (the king) should ¢ither

PUNISHMENT FOR THEFT . 11
|
pay himself the real owner the price of the stolen article or hand over the
thief to him according to his (the king’s) discretion. |

D. V. adds that this discretion is to be so exercised that the thief really
makes over the price to the owner.

Apastamba (II. 26.4-8) lays down (the following special procedure),
in case the thief is not at all traced out: (The king) should post pure, truthful
and good persons in villages and towns for the protection of his subjects.
The men, employed by them, should also possess the same qualities. In
towns, the border areas with a radius (on all sides) of a yojana (i.e. about
nine miles) and in villages, such areas with a radius (on all sides) of a krosa
(i.e. a little over two miles) are to be protected (by them) from (the depreda-
tions of) the thieves. The above men are to compensate for whatever is
stolen from the above areas.

Katyayana (V. 813) says: In case of non-traceability of the thief, the
king should cause the thief-catchers (caura-grahdn) to pay the price of the
property, stolen from individual houses (to their respective owners) and
(in the absence of such thief-catchers) the guarding officers and the local head-
men (dik-paldn) should be compelled to do so.

D. V. adds: A thief-catcher (caura-graha) belongs to a particular class
of then, employed (by the king) to search for the thief in almost all places,
while a local headman (dik-pdla) is one, engaged (by the king) (to look over)
all the directions (of a particular locality), who, according to the Mit., is
known as the sthdna-pala (i.e. guard of the entire locality) and who, accord-
-Ing to the Ratnakara (p. 341), is popularly known as the desa-pati, discharging
the same function. The services of this latter class are to be requisitioned in
villages without regular watchmen.

Yaj. gives the following directions to be followed (by the king) for places
without any watchman or headman:

If the theft has been committed within the borders of a village or (va)
the foot-prints of the thief are seen to have left its borders, the village (i.e.
the headman or the residents of the village) (will have to pay singly or collec-
tively), or (athavd) when the theft has been committed within a group of
villages, situated kroSas (i.e. many miles) apart, the surrounding and adjacent
five or ten villages (are to compensate the owner of the property stolen)..

D. V. adds the following comments: The particle athavd (i.e. or), used
in the above text, implies option and so where there is a headman of the
village, he is to pay, on the authority of the following text of Katyayana
(V. 814a)

The headman (or superintendent) of the village is to be made to pay for
the article, stolen within the borders of a village

12 DANDAVIVEKA .

८ ^ ।

D. V. continues: In the absence of the headman, the village (gramah)
will have to pay, the word grama here implying ‘the residents of the village’,
just as the sentence viz. ‘the village (meaning ‘the villagers’) has fled’. This
prescription is to be followed only in cases, where the footprints of the thief
are found to have left the borders of the village but if such footprints are
seen to have entered another village, its headman or residents will then have
got to pay. But if the theft has been committed (in a house situated) in an
open space, more than two miles distant from the surrounding many villages
_and the footprints of the thief have been effaced,to some extent, due to the
traffic of pedestrians, then the surrounding, more or less, five or ten villages
shall have to pay (the value of) the stolen article, as made out (by its owner)
This procedure is to be followed in cases of unintentional murder also, on the
authority of the text of Yaj., beginning with the clause viz. gidtites
pahrté dosah [i.e. fault arises in killing (a person) or stealing (from a
person)]

Visnu (ILI. 66-67) says: (The king), having recovered a stolen property
(from the thief), should give the entire amount (sarvam eva) to the real owner,
irrespective of any caste. Not having so recovered, he should make good the
loss of the real owner from his own treasury (sva-kosdt).

D. V. adds: The phrase sarvam eva (i.e. the entire amount) implies ‘that
no king's share is to be retained by the king as in the finding of a treasure
trove. The word sva-kosat (i.e. from his own treasury) has been added here
in view of the maxim viz. “Sin accrues (to the king), who does not compensate
(the person, whose property has been stolen).’’ So not having succeeded in
making the other person (i.e. the thief) give it back, the king should himself
pay its price (to the real owner)

Vrddhamanu says on this point: If there arises any doubt about the quan-
tity of the thing stolen, the price of which is going to. be paid back to the
owner, the latter 1s to make (before the king) a solemn affirmation regarding
or prove [by friends (bandhubhil) (i.e. by friendly witnesses)] his claim to,
a specific quantity of the thing stolen.

D. V. adds: The word bandhubhih implies human proofs (such as witnesses
etc.), as an alternative to solemn affirmations i.e. oaths, (which are super-
human proofs)

Here ends the sub-chapter on the general procedure of dealing with (cases |
of) theft

PRAKASA-TASKARA—S (Overt thieves)

The merchant or business man, included within the category of overt thieves
(prakasa-taskara), is of two kinds, viz. (a) a shop-keeper, who buys articles

PRAKASA.. TASKARA-S , 73

(from others) and sells them (to o thers) and (6) a manufacturing trader,
such as a goldsmith and a leather-worker. The selling businessman is also
of two kinds, viz. (a) a transactor of spurious, under-weight or adulterated
articles and (5) an actual adulterant of articles. The former class of these
two belongs also to two categories viz. (@) not moving (i.e. stationary) (5)
moving (or peripatetic). So merchants, comprising all the above kinds,
constitute four classes.

Yaj. (II. 244) has laid down the following punishment of the stationary
(i.e. not moving) category, transacting in spurious and adulterated articles:
A trader, who steals from an intending purchaser, one-eighth portion (of an
article, sold by him), by (false) measures (mdnena) or balances (tulayd), is to
be fined two hundred (copper coins) and in cases of stealing more or less
than that amount, the fines will be correspondingly increased or decreased
than that, prescribed above.

D.V. adds that the word mana (i.e. a measure) is a prastha, a drona etc. and
that the word tuld (i.e. a balance) is used in weighing gold and similar other
articles, and that the above prescription also includes a pratimana (1.e. a
standard weight), as is evident from the following text of Katyayana
(V. $12).

A trader, practising (fraud upon his customers) by using balances, measures
(of corn) and measures of capacity that are imitations of true ones or not so,
is to get the (punishment of) the first amercement.

D. V. adds the following comments: A pratimdna (i.e. a measure of capacity
or weight) is kflown as a slab of stone, marked with the royal seal, for weighing
gold and other commodities. Fraud 1s implied in all the above kinds of tran-
sactions, as is evident from the use of the epithet viz. pratiripaka-lak sitaih
(i.e. as is evident from the imitation weights etc., used by the trader) in the
above-quoted text of Katydyana. The eighth portion is of the (real) weight
of the article sold. Katyayana’s prescription of the first amercement as
punishment (for stealing the eighth portion) and Sankha-likhita’s prescription
of greater and lesser punishments in sdhasas (1.6. crimes) are to be reconciled
by proportionately fining (the trader for his defrauding the customer) to the
extent of more or less than the eighth portion (of the real weight of the article

sold).

In the following text of Sahkha-likhita: “Corporal punishment or mutila-
tion of limbs is the proper penalty for using false balances, false measures
and false’ weights”, the corporal punishment consists in shaving (the
head of the culprit) and the mutilation is of the ears and similar other `
(less useful) limbs and the Ratnadkara (p. 296) says that the above

10

14 DANDAVIVEKA

€
option®’@ (vikalpa-vyavasthiti) (between corporal punishment and mutila-
tion) is to be exercised in consideration of the comparative seriousness or
otherwise of the offence committed. |

Though in the above text (of Sankha-likhita) the culpability of the writer
of a (forged) document and the preparer of a (false) horoscope (who is an
astrologer) has not been laid down (dose Snukte Spi)®*, as has been done
along with that of the users of (false) balances and measures in the following
text of Vy4sa, viz. ““By the use of a counterfeit balance or a false measure
or by forging a document or preparing a false horoscope”, the punishment
(of the fine) of two hundred (copper coins) is 16 be imposed in these two
cases also on equitable grounds, as the Ratnakara (p. 294) has first quoted
this text (of Vyasa) and then cited the above-quoted text of Yaj. =

While interpreting the following text of Manu (LX. 287):

“He, who sells for the same price the same kinds of commodities of superior
and inferior qualities or charges higher price for the same quantity and
quality of a sold commodity (from a customer in comparison with that,
charged by him from another customer), is to be fined the first or the middle
amercement,” the Ratnakara (p. 294) has said that the former punishment
(i.e. the first amercement) and the latter punishment (i.e. the middle amerce-
ment) apply to the above two kinds of cheating (customers). ति

But Halayudha has otherwise interpreted the above text (of Manu) in the
following manner

“While engaged in a transaction of exchanging commodities, one, who
exchanges his lower-valued article with another person's higher-valued one
or while engaged in a transaction of sale, one, who, knowing the purchasing
intention of a particular person, sells him a less valued commodity for an
exorbitant price, these two classes of persons are to be punished with the
fine of the first or middle amercement in consideration of the pecuniaty
condition (of the offender) (or of the value of tle commodities, thus exchang-
ed or sold).” (cf. Ratnakara, p. 294).

D. V. says that this®® latter interpretation (by Halayudha) contains an
option (for the king) to inflict the first or the middle amercement and thus
provides for unjust (because equal) punishments (for both the above classes
of offences). Such apparently unjust character of the punishments may be
justified, if we take into consideration the fact of the stolen character of the
article or exorbitant nature of the money (which is going to be exchanged

974 Vikalpa® has. been misprinted as vivalpa® in D. V.
88 Dose s 1141८ ऽ pi has also been misprinted as Dose § nukto pi in D.V
9० D—D. V. wrongly reads pirva-vydkhydne, which means ‘in the former interpretation

It should be uttara-vyakhyane

17२4८254 ^ 94२4-9 9 75

। ।
or charged as price). Otherwise, such punishments may only be attributed
to the fate of the criminal.

But Kullika Bhatta in his commentary on Manu has interpreted that the
option is to be exercised in the cases of the first and old offenders respectively.
Narayana (another commentator of Manu) has, however, said that ‘he,
who behaves in a crooked way (visamam) with the straight-forward (samaih)
persons, should be awarded the first amercement and he, who charges a
higher than usual price (of a thing from a customer), is to be fined the middle
amercement.’ |

Manu (IX. 291) again says: He, who sells spurious seeds and he, who
removes seeds sown (b/jot-krosta) from a field (and plants them elsewhere,
according to Halayudha) and he, who transgresses the established law and
customs (according to Medhatithi) (or breaks the boundary walls or pillars
of towns or villages, according to Kullika)—all these persons are to be
punished with death after mutilation of their limbs.

D. V. adds: The Ratnakara (p. 294) has interpreted bijot-krosfd as ‘one,
who steals the seeds sown (by another person) by digging them up’ and
Kullika Bhatta has explained the word as ‘one, who, having mixed some
good seeds with a greater quantity of bad seeds, sells the mixed quantity
8540 uniformly good seeds’. But Narayana has interpreted it as “one, who
effects improvements in the seeds at the time of their sprouting for getting a
higher price (by selling them).”” Misra (i.e. Vacaspati Misra) has, however,
explained the above word as ‘‘one, who forcibly carries away the entire
standing crops, sown by another man in his field (but not yet ripened).”’
These two types of criminals, (viz. the seller of spurious seeds and the stealer
or the adulterant of seeds or the thief. of standing unripe crops) should
be put to death after having effected mutilation of their hands, legs, ears,
nose etc ss

Yaj. (I. 250) says: If a person, after having collected various kinds of
merchandise, sells them it at improper (i.e. exorbitant) prices, he should
get the optional punishment of the highest amercement (according to the
discretion of the judge).

Manu (VIII. 399) lays down: The king should forfeit the entire sale-
proceeds of a person, who sells, out of greed, the (extremely valuable) articles,
known to be enjoyed by the king only and also those commodities, for-
bidden by him to be sold

D. V. adds: The former kind relates to those articles, which are pre-
eminently known to be fit for the king’s enjoyment only, such as elephants,

49D. $. wrongly reads “pérvam idam sotkrstam” for “sarvam idam sotkarsam, 88
correctly written in Kullika’s commentary on the above text,

76 DANDAVIVEKA
bd 6

horses etc. and gems, pearls etc? But (Kullika) in his commentary on
Manu has qualified these (forbidden) things as ‘indigenous’. This latter
kind concerns itself with rare qualities of rice and other cereals, the sale
of which outside the territory has been prohibited by the king. But the
merchants, who sell them out of greed to foreign countries and the former
class of merchants will have their entire sale-proceeds confiscated to the
crown.

Yaj. (II. 261b) also says on this point: The commodities, prohibited for
being sold and those, fit only for the king’s consumption, if sold (to ordinary
persons or outside the territory), will go to the king.

D. V. adds that the king shall forfeit (all these things), without paying
any prices whatsoever.(to the merchants). =

Sankha-likhita have laid down the following rule in. continuation of
the punishments, involving the (entire) body or the limbs (of the culprit):
(Such punishments are to be prescribed for persons) in selling forbidden
articles. |

D. V. adds: This (severe) prescription (of death sentence or mutilation
of limbs) can be reconciled by the special case of the merchants, having
already spent the sale-proceeds (of such articles). So, according to the
Ratnakara (p. 299), such (drastic) punishment may justifiably be inflicted
(on the offending trader) who has sold things, fit for the king’s use only, when
he is not able to disgorge the sale-proceeds (to the king).

Manu (VIII. 400) and Narada (cf. Sambhiiya® V. 13) have laid down the
following punishment for the moving (or peripatetic) category of traders:
If the trader avoids the: fixed places for paying the sales-tax or transacts
business in inappropriate hours or makes. false statements regarding
the number (or quantity) of his commodities, he should be made to
pay the penalty, amounting to eight times the prescribed sales-tax
(atyayam).

D. V. adds the following comments: If the trader goes by an unfrequented
path and thus avoids the octroi barriers, fixed by the king to collect the
sales-taxes on a river-bank,in a town, ona hill and similar other (prominent)
places, or transacts his business at night or makes false statements regarding
the number and quantity, i.e. gives a reduced number or amount, of his
commodities to avoid the (just) payment of his sales-tax, he is then to be fined
eight times the value of the transacted articles, according to the Ratnakara
(pp. 295-296). But (Narayana) Sarvajfia has thus otherwise explained the
above text: = |

It is apparent that eight times of the king’s due (as sales-tax) are to be
realised from him 4s fines, owing to the present context, concerning such tax

PRAKASA-TASKARA-S , 77

only and the word atyayam, used in the above text, therefore, means ‘what
is payable to the king as the sales-tax.’

Visnu (III. 31) says: (A trader), who avoids the sales-tax (i.e. octro!)
barriers, shall have his entire property forfeited (by the king).

D. V. adds that this punishment of the forfeiture of the entire property
should be inflicted only when the trader repeatedly avoids the sales-tax
offices and. there is, therefore, no conflict of this text (of.Visnu) (with the
previously quoted text of Manu and Narada).

The same authority i.e. Vigsnu (III. 29-30) further says about the amount
of sales-tax to be paid by a stationary or peripatetic trader, who has come
to such offices: (The king) should realise as his revenue one-tenth of the
profit, accruing from the sale of indigenous article$§ and one-twentieth of
the profit from imported ones.

Gautama (II. 1.27-29) has laid down the following special rule regarding

perishable articles in connection with the king’s dues: (He) shoud be always
alert in collecting one-sixtieth part (sasfih) of the esculent roots, flowers,
medicinal herbs, honey, meat, grass and fuel, as these things are perishables
{Ksana-dharmitvat).
70. V. adds: The word saszit means ‘sastitamabhigam’ (1.6, one-sixtieth
part) and the word Ksana-dharmitvat means ‘Ksana-vinasa-dharmitvat’ (1.6.
owing to their nature of perishing instantly), according to Halayudha. The
Ratnakara (p. 302) is also of the same opinion. The Kamadhenu has read it
more explicitly as ftat-ksana-dharmitvat, meaning the same thing. But
(Vacaspati) Mjsra has read sasthah for sastih and explained it as ‘one-sixth
portion is to be realised by the king as his due (from such traders)’.

Baudhayana (I. 10.13-15) has thus described the procedure of realising
the king’s dues as sales-taxes from articles, extracted from the sea after the
appropriation (by the king) of ghe best ones of the lot:

The sales-tax of marine articles (s@mudrah) after the appropriation of the
best ones (varam riipam) is at the rate of ten panas® (i.e. copper coins) in
articles, valued a hundred panas and the similar judicious principle
(dharmyam)* is to be followed in other things (collected from places other
than the sea), after having appropriated the most valued articles according
to their respective worth but without causing loss to the things themselves

(anupahatya).

५ D, V. wrongly reads °palam for® panam, as appears from its comment and also
supported by printed Baudh. reading °panam.

५° D. V. wrongly teads dharme for dharmyam, which seems to be the proper reading,
as D. V. itself has explained the word in its comment as dharmdt anapetam (i.e. not

deviating from justice), -

78 ° DANDAVIVEKA
। ।

D. V. adds: The word ऽक means ‘articles, extracted from the sea’
and the word varam riipam is ‘in connection with pearls etc’. Of all other
things, imported from outside territories and likely to fetch huge profits, the
best ones are to be appropriated (by the king), according to their intrinsic
worth. The word anupahatya implies ‘without causing loss to the commo-
dities of the trader.. But Halayudha has read apahatya for anupahatya and
explained it as ‘having realised.’

Vasistha (XIX. 37) has laid down the following exceptions to the collec-
tion of sales-tax: (The sages) have quoted the following verse of Manu as
examples (of non-realisation) of sales-tax: No sales-tax is to be realised
from an article, worth less than a Karsdpana (na bhima-karsapanam asti
Sulkam), from the profit, accrued from an industry, from the sale of infant
(animals, such as calves) (sifau), from an emissary (dite), from the col-
lected alms of a beggar, from the residues, (Krtdvasege) left in the coffers,
from a Srotriya or from a wanderer (or recluse) or from articles, being
brought for the performance of sacrifices.

D. V. adds the following long note: The word bhinna-karsapanam has
been formed (by means of a Bahuvrihi compound) from the sentence ‘dhinno
(meaning ‘nyiinah’, 1.6. less than) Karsdpano (milyam, i.e. price) yasya sah
and so the tax on such an article is similarly called. No tax is, therefore,
to be realised from an article, worth less than a Karsdpana. But Halayudha,
interpreting bhinna as milya (i.e. price), has explained the compounded
word as ‘the price, amounting to a ‘Karsdpana’. In fact, the plain meaning
of the above is that if the chargeable tax (on an article)is less thin a Karsapana,
no sales-tax is to be realised. But owing to the affixing of the first case-
ending to this word and of the seventh case-endings to all other words
(of this text), the word vikrayaparatayam (i.e. while selling an article) is to
be supplied to this first word for purposes “of grammatical construction to
help explanation. The word sisau means ‘in the sale of infant animals, such
as calves’ and the word dite implies ‘from an article, being conveyed by an
emissary to be offered as a present (to another king) or received by him as a
mark of respect elsewhere’. The word Krtdvasese denotes ‘from the residues,
left in the coffers of a satisfied merchant’. But Halayudha has said that no
sales-tax is to be charged from an infant, an industry, an emissary and from
merchants

Sankha-likhita have laid down: No tax (asulko) is to be realised from
citizens, belonging to all the castes, Brahmanas and non-Brahmanas alike,
in respect of articles, carried on their shoulders (i.e. of lesser value).

D. V. adds that the word asulkah means ‘no realisation of taxes’.

Narada (cf. prakirnaka V. 38) says in continuation (of the special privileges)

PRAKASA-TASKARA-S 79
@

of a Brahmana: (These are) crossing 2 ryver (by a ferry boat but) without
paying the requisite fare and alighting (from the boat) first (of all the passen-
gers) and non-payment of sales-tax (to the king) for commodities (panyegsu) `
(purchased by him), unless he plies business with them.

D. V. adds: There is a different reading of taresu for panyesu in which
case it means ‘in respect of clothes etc., carried across a river (by a ferry boat)’.

Yaj. (II. 240) has thus laid down the punishment of merchants, manu-
facturing counterfeit commodities: Those, who counterfeit or use counter-
feit 2711465 such as balances, royal documents (Sasdna), (weights) and
measures and minted coins (ndnaka), are to be punished with (the fine of)
the highest amercement.

D. V. adds: A balance has been described above. Nduakas are minted
coins, such as Karsdpana, Ssdtamdna, kafanka etc., 1.e. coins, made of gold
and marked with royal seals. According to the Mit., these include a niska
and other (gold) coins. He, who counterfeits (i.e. manufactures) these coins
or uses such coins, manufactured by others, as genuine ones, even though
knowing full well of their spurious character, are to be awarded the highest
amercement. Such counterfeiting may be made by manufacturing the coins,
weighing more or less than the (king-made) coins, current in the country or
mixing the basic gold (of the coins) with baser metals such as copper. All this
additional statement is partial paraphrase of what has been already said
above 11) the topic of selling forged or spurious articles.

Manu (VIII. 403) says: All the balances, weights and measures (of the
traders) are to be properly guarded and checked and re-checked every six
months. ®

D. V. adds that all this checking is to be done (by the king’s men), lest
they be made counterfeits in the meantime.

Good persons, devoid of avarice, shall be entrusted (by the king) with this
task (of checking the balance e&c.), as laid down by Sankha-likhita: The
place of registering and evaluating (genuine) balances, weights and measures,
appropriate to weigh and measure the various commodities of the country,
shall be under the direct supervision of trusted persons.

Yaj. (II. 241) says: The examiner of nanaka coins, who pronounces a
genuine coin as spurious or gives the verdict of genuineness to a spurious
one, shall be punished with the highest amercement.

D. V. adds: According to the Ratnakara (p. 297), this punishment (of
the highest amercement) is to be inflicted in cases, where there is a wrong
appraisal (by the royal officer), due to intention, in the absence of which the
Officer, so charged, will get a lighter punishment. Here it appears that though
absence of intention (ordinarily) exonerates such defaulting persons, yet

80 ८ DANDAVIVEKA

they are certainly guilty (to some extent), simply because of their volunteering
to do this work inspite of their incapacity (pariksana S samarthasya)* to do
so and punishment has been prescribed in consideration of this special fact.

Yaj. (LI. 249) further says: Though (royal officers), who in a body fix
tormenting wages for or prices of (commodities), produced by working
artisans and artists (Karu-Silpinam) by (arbitrarily) increasing or decreasing
them, are to be fined a thousand (copper coins).

D. V. adds: The ‘artisans’ (Karavas) means ‘clay-modellers, i.e. idol-
makers’ but according to the author of the Mit. it means ‘washermen etc’.
So those, who impose, out of greed for improper gains wages (or prices)
on the above classes of persons, which entail hardship (on those workers)

and those, who assembling together, increase or decrease the wages (or
prices), previously fixed by the king himself, should be so punished.

Manu (VIII. 402) has prescribed the following time as proper for fixing
the prices of (or wages for) the commodities: The king should himself
(pratyak sam) fix the prices of (or wages for) the (various) commodities after
the lapse of every five days or every fortnight.

D. V. adds: The fortnightly fixation (of prices etc.) is of articles, sold
in a long period and the fixation after every five days is for things, exposed
for ready sale, as the above two circumstances naturally require. But Kulliika
in his commentary on Manu explains the above text by saying that ‘the
system of fixation of prices at five days’ intervals is of things with fluctuating
prices and the fortnightly system applies to commodities with almost fixed
prices.’ D. V. continues by saying that the insertion of the word pratyaksam
(i.e. himself) has been made to emphasize the king’s duty (to do the same,
if he finds leisure), otherwise he should have it done by trusted officers,
which option has been laid down by the previously quoted text of Saikha-
likhita. @

The same authority (i.e. Manu VIL. 401) has also prescribed the procedure
of the above system in the following manner:

The king should authorise the transactions of sale and purchast« of all
kinds of grains (sarva-Sasyanam) after having taken into consideration

their import (4gamam) and export (nirgamam) charges, necessary deprecia-
tion (in value or quantity) (ksayab) incidental expenses (sthanam) and
_ profit (vrddhih), accruing from them.
D. V. adds: The word sasyam (in the above word sarvasasyanam) is either
illustrative or it denotes a plural number and so includes grains and other |

“D. V. has misprinted the above word as pariksaud-samarthasya, omitting the
avagraha S.

PRAKASA-TASKARA-S ४1
। 8
things such as kaddras. So there are fiye matters to be considered, (while
fixing prices of) commodities (exposed for sale).

Narada also says: Everything, fit to be sold or purchased, is a commodity,
which may be fit for either counting, weighing or measuring and may also
be tested by its action, beauty or brightness.

D. V..adds the following comments: Countable commodities are such as
betel-nuts, or conch-shells used as legal tender (Kapardaka), according to
Halayudha. Weighable substances include gold and similar other (metals).
Measurable things are grains of riceand other (cereals). Horses, she-buffaloes
and similar other beasts of burden are classified (as good or bad commodities)
by their actions, viz. carrying loads or giving milk. Prostitutes or female
slaves“ are also commodities, kept or purchased by reason of their personal
beauty. But according to Halayudha, commodities, purchased in considera-
tion of their beauty, are pictures, clothes etc. Pearls, gems and jewels are
bought for their inherent beauty, i.e. lustre (Sriyd diptya).

D. V. now contin::es explain'ng the previously quoted text of Manu
(VIII. 401) in the following words:

The word dgama means ‘entrance into a country of saleable commodities
from another country, situated far or near and easily accessible or inaccessi-
bles as the case may be. The word nirgama means ‘exit of the indigenous
produce of a country to another country in like manner’. The word
sthana implies ‘the incidental expens s of food (and carriage) of the persons,
(employed to bring to the country the commodity in question) for a long or
a short period’. Vrddhi and Ksaya consist in ‘the considerations of the profit
to be derived (by the trader) over the cost-price (of the commodity) and

the depreciation (in case of deferred sale) 0: lossto be suffered by him (from the
price on the instant sale of the commodity)’. So the king should take all
these factors into account and so order the transactions of sale and purchase
of commodities by the trad& and the customer respectively that none of
them derives any improper gain or suffers any undue loss.

Yj. (II. 252) has thus described the proper gains of a seller (of commo-
dities): An immediate (sadyah) seller of an indigenous commodity shall
charge five percent to its cost-price as profit and ten per cent to that of an
imported one.

D. V. adds: The person, who, after having purchased an indigenous com-
modity, worth one hundred paras from another village, sells it that very
day, shall charge five panas (over and above the co st-price). A similar seller

of an imported article of the same value shall realise as gain ten pavas only

८ D. V. reads panydiganddi, which means ‘prostitutes’ but notes a variant in the foot—
note viz panyam anganddi, meaning ‘female slaves.

14
१५

82 DANDAVIVEKA

। 4
and not more, otherwise he 80:11 ke punished . The addition of the word
sadyah in the above text emphasizes that this rule does not apply to cases of
belated sale.

The same authority (II. 252) further says: The sales are to be made every-
day on the prices, fixed by the king.

Gautama (cf. I. 1.35) has laid down a special rule on the king’s fixing
of the prices: M-rchants are not bound to sell their commodities below
cost-prices (arghdpacaye).

D. V. adds: The word arghapacaye means ‘below the cost-price’ (miilya-
pacaye)’. The idea is that a merchant, refusing to sell a commodity (under
such circumstances), is not to be punished on that account.

Brhaspati (XXII. 1 3), says: If a trader, after having surreptitiously adul-
terated a commodity by mixing old (undesirable) matter with new matter,
makes it look fresh, he should be compelled to pay twice the value of the
commodity, thus sold, as damages (to the purchaser) and the same amount
as fine (to the king). |

Yaj. (II. 303) says: A person, selling things, connected with parts of a
dead body (mytdnga-lagnam), is to be fined the middle amercement.

D. V. adds: The word mrtanga-lagnem in the above text means ‘clothes,
by putting on which the man died or with which the dead body was [वल
wrapped’, which, though of insignificant price, if sold (to another person)
at a higher price, shall entail (the fine of) the middle amercement upon the
seller.

The same authority (Ul. 245) further says: A person, who mixes spurious
(hinam) matters with medicines, oily substances, salt, perfumefy, ricegrains,
raw sugar and similar other things (° gud@disu), is to be fined sixteen paras.

D. V. adds the following comments:

The word adi (added to the word, enumerating the list of commodities)
implies ‘gum-raisin and spices also’. The word '‘ninam indicates ‘that (spurious
matter), which can be detected just on its being mixed with the commodity,
exposed for sale’. The prescription in (the above-quoted) text of Brhaspati
of payment (by the adulterating business-man) of double the price of the
commodity and its equivalent fine applies to cases, (detected) just after the
sale of that commodity and is thus not conflicting with the present text of
Yaj., according to the Ratnakara (p. 295). D. V. further adds that the fault
here lies (with the adulterant) up till the time of the sale of the adulterated
article, after which the question of luck arises in the case of the purchaser
(in having had the misfortune of buying it). If we take bad motive also into.
account (in those cases, detected after sale), the theory of. the application
of consequent punishment will be too much extended. So the proper way.

PUNISHMENT OF CONSUMERS’ ARTICLE-MANUFACTURERS >» 83.
छ

of interpreting the above text is to apply it to cases of small quantity of
adulteration only or to restrict its application to the substances, such as
medicines, specifically listed in the above text. Moreover, it has also to be
noted that even in these two kinds of cases, either the offences, so committed,
are in themselves comparatively trivial ones or the deterioration (of the
commodity) (caused by such adulteration) is small in quantity or
quality.

Now begins the topic of the punishment of manufucturers (of imitations
etc.) of consumers articles

Brhaspati (XXII. 17-18) says: Those who convert sma!!-priced artic es
into high-priced ones by effect ng s me (external) changes in t'em and
thereby defraud women and children, are to be funished in proportion
to the values of those articles. Tose, who manufacture (imitation) gold.
pearls, corals 8 -0 similar other (precious) things (and sell them as
genuine ones to the consumers) are to pay to the purchasers (of those
articles) twice the value of the price (exacted by them) and an equal amount
of fine to the king also.

Visnu (४. 124) says on the award. of the punishment of first amercement:
(Such punishment is to be inflicted on) the sellers also of imitation articles
(pratiriipa-vikradyakasya ca).

D. V. adds: Here the word pratiriipa means ‘artificial pearls and similar
other (precious) things’. The punishments of such offences will vary in
proportion to the serious or trivial nature of the imitation effected, resulting
in variations gf the prices (of the commodities).

Manu (IX. 292), as quoted in the Ratnakara (pp. 101-2), says: The king
should cut into pieces (/avusah chedayet) with razors (ksurcili) the body
of the goldsmith (Aema-kdra), the most sinful of the overt thieves (kanf{c‘ka),
engaged in committing unjust, actions (done, while engaged in making gold
ornaments).

D. V. adds: The word kanjaka (literally meaning ‘a thorn’) means here
‘an overt thief? and the phrase ‘/avasah chedayet’ implies that ‘the king
should cut into pieces the flesh of his body’. Such harsh way of meting out
the punishment has been prescribed in view of the heaviness of the punishment
to be inflicted in such cases and also in cases of repetition of the offence
(i.e. upon old offenders). Cf. Ratnakara (pp. 101-2). But according to the
Mit., the above punishment is applicable to cases of (theft of) gold,
belonging to (idols of) gods, Brahmanas and kings only (for the purpose of
manufacturing ornaments from it).

. Yaj. (I, 297) also says on this point: The users (1.6. manufacturers) of
spurious gold (kiita-svarna-vyavaharl) and sellers of forbidden meat

84 , DANDAVIVEKA
@

(vimdmsasya ca vikrayi) are to have their three limbs cut off and also to be
punished with (the fine of) the highest amercement.

7. V. adds a long note: Halayudha and others have listed the three limbs,
spoken above, as tie nose, the ears and the hands and interpreted the com-
pounded word kitta-svarna-vyavahari as ‘he who manufactures fake gold by
effecting improvements (on the colour of inferior metals) by mixing the latter
with mercury and subjecting the mixture to chemical processes like the
application of heat’ (Cf. Ratnakara 0. 307). The phrase (vimdmsasya ca
vikrayt) obviously implies ‘sellers of the meat of dogs etc., passing it as
that of deer etc.” According to the interpretation of the Mit. of the previously
quoted text of Manu, the word hemakara (literally meaning a goldsmith,
i.e. amaker of gold ornaments) necessarily involves the selle of such spurious
gold (and not simply its manufacture -). In view of the prescription of a heavy
punishment on persons, convicted of this offence, it is certainly relating only
to the manufacture of an outwardly gold-looking substance, so made by mix-
ing silver and other metals with gold. The phrase /avasah chedayet clearly
indicates ‘mutilation of limbs’ and from the addition of the word ksuraih
(by means of razors), thus differentiating them from daggers and other more>
dangerous cutting instruments, the limbs (of the offender), to be cut, appear
to be smaller (than his bigger and more important limbs). Thus the above
two texts of Manu and Y4j. practically mean the same thing. So the com-
bined import of the two texts is that the manufacturers (and sellers) of coun-
terfeit gold are to be awarded the corporal punishment of the mutilation
of their limbs only (and not of death) along with the pecuniary punishment
of the highest amercement. _

Yaj. (II. 246) again says: The person, who after having converted inferior
articles, made of clay, animal hide, jewel, thread, iron, wood, stone and
wearing apparel into superior ones, sells them as such, shall have to pay
fines, amounting to eight times of the respective sale-prices of those things.

D. V. adds: This conversion of inferior articles into superior ones is
‘making them appear erroneously to be superior ones (to the purchaser) by
the application of (wily) devices’. Such conversion may be effected in the
following ways:

(1) By passing black clay as musk, by means of sprinkling the former
with the scent of the latter, (2) By declaring cat’s skin as tiger’s skin by effec-
ting improvements on the colour of the former, (3) By reddening prisms and
passing them as rubies (padma-rdga), (4) By effecting qualitative excellence
of cotton threads and declaring them as silken threads, (5) By improving
the colour of black iron and making them look like silver, (6) By passing
bael wood as sandal wood by the application of the adour of the latter on

PUNISHMEN OF PHYSICIANS 9 85
v

the former, (7) By declaring the rinds of kakkola as cloves (lavanga), and
(8) By effecting improvement of quality of cotton cloths and declaring them
as silken cloths. (Cf. Ratnakara, pp. 307-8).

The same authority (II. 247) continues: Proper punishments should be
inflicted on persons, who change the sealed covers of vessels (containing
precious things) (entrusted to them by other persons and thus misappropriate
their contents) or sell imitation carrying-vessels (after having manufactured
them).

D. V. adds: Thus the changer of the cover of a sealed vessel, containing
gold and similar other precious articles, entrusted to him by somebody and
the manufacturing seller of a carrying ve-sel, apparently looking like one,
made of musk (but not really so), should be punished properly. (Cf. Ratna-
kara p. 308).

The same authority (II. 248) has also laid down the gradation of
punishments in the different cases of the above offences in the following
manner:

If the article involved is worth less than a pana, worth a pana or worth two
panas, the corresponding fines (of the misappropriator or manufacturing
seller) will be fifty, one hundred and two hundred paras respectively. The
fines will be proport onately increased with the increase in the value of the
commodity involved.

D. V. adds: If a person deposits some quantity of gold with a goldsmith
to make for him a drinking vessel of the svastika karuca or other patterns
but the goldsmjth, after having misappropriated a part of the gold so deposi-
ted, conceals his misappropriation by telling the depositor that a part of the
gold has naturally vanished by the (chemical) processes of heating, blowing,
rolling and similar other actions, he is to be fined an amount, commen-
surate with the value of the stqlen part. The natural vanishing of portions
of the (various) metals, though specified by Narada and other authorities,
has not been taken into account here, as such vanishing occurs (to a limited
extent) through the necessary chemical processes (adopted by goldsmiths).
So also the similar cases of the weaver, silk-manufacturer (and similar
other textile workers), though described by Manu and other authorities,
have been left unstated here.

PUNISHMENT OF PHYSICIANS

“Manu says: The physician, who, not being familiar with the (application
of) specific medicines and mantras and being also ignorant of the causes

** Read in the Ratnikara (p. 304) as 8 text of Brhaspati,

86 : sti uals

and cures of diseases, extorts nfoney from patients, deserves punishment
as a thief. |

` #2]. तवा. 242) has laid down the following specific punishments (of the
phy: icians) in the following specific classes of patients:

A (veterinary) physician, acting wrongly in the treatment of a lower
animal, is to be fined the first amercement, while physicians, doing so in
regard to human beings and royal personages, are to be awarded the fines
of the middle and highest amercements respectively.

D. V. adds: The Mit. is of opinion that the punishments will vary in
proportion to the monetary values of the lower animals or the king’s owner-
ship over them.

Visnu (V. 175-7) says: A physician, acting wrongly while treating the best
(class of men), the middle (class of men) and the lower animals, is to be fined
the highest, middle and first amercements respectively.

D. V. adds: All these several kinds of (pecuniary) punishments are to be
inflicted in those cases only, where the patients survive the treatment, but
the punishments shall have to be enhanced where the patients succumb
(to the wrong treatment). This is the opinion of Narayana, expressed while
interpreting Manu(IX. 284), beginning with the words cikitsakanam sarvesam
i.e. of all physicians (acting wrongly)].

PUNISHMENTS OF CHEATS, CREATING CONFIDENCE (in unsuspecting persons)
AND OF ASSESSORS, WRONGLY ADVISING (the king) OR
ACCEPTING BRIBES (from the litigants) ९

Vyasa says: Prostitutes, cheats and artisans rob persons of their wealth
by engaging them in vicious activities—persons, who are neither disposed to
do so nor conversant with the pros and congof such activities.

D. V. adds that hence the above classes of persons are known to be confi-
dence-creating cheats (visrabdha-vartcakah). (cf. Ratnakara, p. 305).

Brhaspati (XXII. 14) also says: The untruthful (@nydya-vadinah) bribe-
accepting and confidence-creating courtiers (sabhydah) are to be banished
(from the territory)

D.V. adds: The word sabhydh means ‘members of the royal assembly
and the word anydya-vadiah implies ‘those (cou tiers), who become untruth-
ful out of greed of money’. The phrase visrabdha-vaficakah is to be under-
stood as ‘those (courtiers), who, after having given false hopes (to the
litigants) of securing favoura le decisions for them, do not do so and thus
cheat them’. The bribe-accepting class of courtiers (utko.dddyinah) is of two
kinds, viz. those, who (occasionally) accept bribes (out of court) and those,

PUNISHMENT OF DECEITFUL INTERMEDIARIES ETC. 87
9

who (habitually) do so, (being engaged in adjudication) and thereby eke out
their living.

Vyasa has thus defined the former*® (the latter?) kind: Those persons,
who, having been posted in halls of justice, give out wrong judgements by
accepting bribes (from the litigants), are known as utkocakah [i.e. (habitual)
bribe-acceptors]. These men virtually destroy the king’s property. The
Ratnadkara has thus explained the term viz. sabhyotkocaka-vattcakah,
occurring in the text of Manu (cf. IX. 258): (The courtiers), who, having
been entrusted with the duty of deciding law-suits, accept bribes (from the
litigants), are called utkocakah, i.e. bribe-acceptors and are known to be
‘living upon the acceptance of bribes’.

Visnu (४. 179-180) has laid down the following punishment for these
men: Forfeiture of the entire property should be effected (by the king)
of the false witnesses and of the courtiers, living upon bribes.

Manu (IX. 231) also has said: The king should completely impoverish
those courtiers, who, having been engaged (by him) in supervising litigation
but being boiled (as it were) with the heat of (i.e. corrupted by the greed of)
wealth, spoil (Aanyuh) the suits of the litigants.

D.V. adds: ‘Being boiled with the heat of wealth’ (dhanosmand pacyamanak) `
means ‘being corrupted with the heat, as it were, of the greed of bribes’
(cf. Kullika’s commentary on the above verse of Manu). Narayana, however,
says that the word Aanyuh in the above text means ‘(those who) declare the
litigants, though not defeated, as defeated in the lawsuits’.

Yaj. (I. 339) says: The king should first deprive the (habitual) bribe-
acceptors of alb their belongings and then send them to exile. D. V. adds
that the punishments for the above offence vary according to its first or
repeated commipsion.

PUNISHMENT OF DECEITFUL?INTERMEDIARIES AND FALSE WITNESSES

Brhaspati (XXII. 19) says: If out of affection (towards a businessman or a
litigant) or due to avarice, the intermediaries (madhyasthah) deceive another
person or the witnesses depose falsely, they are to be fined twice the amount
(of the money, illegally extorted from others for the commission of the
offences).

D. V. adds: The madhyastha is an officer, appointed (by the king) to
fix prices of commodities but if such an officer illegally fixes the prices and
thus exacts money (from the businessmen), he then comes within the pur-

“DP. V. wrongly reads prathamam (i.e. the former), which should be dyvitiyam (i.e. the
latter.)

88 DANDAVIVEKA

view of the present text. Banishment ‘of the courtier, committing the above
offence, has already been laid down by Vyasa (Yaj. ?). As regards false
witnesses, the prescription of the present text holds good in cases of their
first commission only (and not for their repeated commissions).

Visnu (V. 179-180) has, however, laid down the following prescription
of punishment for the (habitually) bribe-accepting courtiers and false wit-
nesses: Forfeiture of the entire property (is the punishment) of the false
witnesses and of the courtiers, eking out their living from bribes.

D. V. adds: But when the witnesses, not having accepted any bribes
beforehand, depose falsely out of greed (for future gains), the different punish-
ments, to be meted out to them in those cases, will be described below in the
chapter of Miscellaneous offences,

PUNISHMENT OF GAMBLERS

Manu (IX. 223) has divided gambling into two kinds: Whatever is gambled
with inanimate objects in the world is dyita (i.e. gambling proper) and
whatever similar act is done with living creatures is called samdhvaya (i.e.
prize-fighting).

D. V. adds: The sport, with inanimate objects kept as wagers, is talled
a dyiita. But if the wager is with pigeons, cocks, sheep and similar other
animals or with human beings, it is then known as a samdahvaya. This
two-fold gambling may also be resorted to by the king, if circumstances
50 require, as Yaj. (II. 203a) has said: (The king) should start gamb ing
under the presidentship of a supervising officer (eka-mukham.) for obtaining
clues of the thieves (taskara-jndna-karandat).

D. V. adds: The compound word eka-mukham, when dissolved, becomes
ekam mukham i.e. pradhanam yatra tat tatha, i.e. (having one person as its
president). The insertion of the word taska¥a (i.e. thieves) (in the other com-
pound word taskara-jfidna-karanat) has been made, inasmuch as persons,
having amassed fortunes by theft, turn into gamblers and so the king should
appoint one headman, technically called sabhika, for the apprehension of the
thieves; the word sabhika, having been derived from the word sabha, which
means ‘a den of the gamblers and cheats’, thus stands for ‘a person, familiar
-with or presiding over the den’. So a sabhika or sabhdpati is ‘one, who
lives upon the profits, accuring from the sports, conducted by means of. dice
and various other sporting implements, improvised for that purpose.’ His
duties have thus been laid down (by Y4j. IT. 200):

Having been properly protected (by the king), he should pay the promised
dues to him, should collect money from the defeated gambler and make over

PUNISHMENT FOR PRIZE-FIGHTING ७ 89
हि
that amount to the victorious one, should be forgiving and should utter

truthful words (to the gamblers for creating their confidence).

PUNISHMENT FOR PRIZE-FIGHTING (involving dishonest
sporting with animals)

Brhaspati (XXII. 12) says: The following classes of mean*’ (or sinful)
persons, such as those, who dishonestly sport with dice and cousequently
deprive the king of his dueseand those, who deceive other persons (including
their playmates) by means of (false) counting (of the dice etc., used in such
sports) are all cheats and are to be punished by the king.

D. V. adds: Wagering with sheep etc. is also included within the above-
mentioned sporting with dice, as both the above ways of sporting are equally
condemnable on equitable grounds and on the authority of the following
text of Yaj. (II. 203b), introduced by him-in the topic of gambling:

Similar is the (prohibitive) injunction against prize-fighting with animals.

So Brhaspati (XXII. 11) has again said the following in a general way:

The secrets (of the prize-fighters) should be publicised and they (i.e. the
prize-fighters) should be banished (from the territory).

Visnu (V. 134-135) also says: The hands of the prize-fighters and the
thumb and the second finger taken together (sandamSa) only of the swind-
lers are to be cut off. |

D. V. adds that the above-mentioned (harsh) punishments are to be inflict-
ed in cases, involving gravity of the above offences and that consequently,
according to the Ratnakara (p. 306), the word cihnam (i.e. an evident sign
of an already punished criminal), occurring in the following text of the same
authority (i.e. Vignu), is in consonance with the punishments, just previously
prescribed (by him) and consisting of the mutilation of the hands or of the
thumb and the second finger taken together:

“The king should have the persons of the prize-fighters and swindlers
imprinted with evident signs (sa-ciinam) (as proofs of their past punishments)
and should then turn them out of the territory.”

But the author of the Mit. says that those, who dishonestly engage them-
selves in prize-fighting or swindle out money from others by deceitfully
using jewels, mantras, powerful drugs and similar other things, are to have
their persons, imprinted with characteristic marks of dog’s foot etc. and

transported out (nirvasayet) (of the territory)

५? {9. V. reads ksudrdh (1.6, mean persons) in the body of the text and a variant viz.
papah (i.e. sinful persons) in the corresponding foot-note |

6 ` DANDAVIVEKA

§

D. V. adds that -this transportation (nirvasancm), (when laid down as a
punishment) without any qualifying epithet, invariably means ‘out of the
territory’, as always interpreted (by commentators), or ‘out of the gamblers’
community (dyiita-mandalat), as Narada (dyita’ V. 6) has laid down: (The
king) should banish the sinful gamblers and prize-fighters from their commu-
nity (nirharet dyiita-mandalat), after having bedecked their necks with gar-
lands of dice, which is their proper punishment.

D. V. adds: But the Mit. has read raja rdstrdad vivdsayet {i.e. the king should
banish (them) from ‘the territory] instead of nirharet dyiita-mandaldat, (as
read in the text of Narada, quoted by us), after having quoted this text by
prefacing it with his remark that “‘a special rule has been laid down by Narada
on the banishment (nirvasane) (of such criminals).” So it. is evident that
these optional punishments are to be inflicted in consideration of the gravity
or lightness of the offences, committed in this connection. Thus, as the
following text (of Manu IX. 225-226, only four feet only of the eight such),
though in the nature of a recommendation, added to an injunction (vidhyar-
thavada-pravisjam api), contains both the words viz. purdt and rdsfrat
(the quoted text of Manu reads rdsjre), (meaning ‘the city’ and ‘the territory’
respectively), so expulsion from both the (capital) city and the territory is
implied : +

“The king should forthwith banish from the (capital) city (त) the
gamblers, the cheats and those other persons, who entice other men and other
men’s wives by secret signs, as these former classes of persons, residing in the
territory (rasfre), torment the peace-loving citizens.”

Though the same authority has described in the following text (1X. 222a)
the thievish nature of both gambling and prize-fighting without making
any differentiation whatsoever between them: “Both gambling and prize-
fighting are overt thefts’’ and though he has also laid down indiscrimi-
nately in the followimg another text (IX. 224) the punishment of mutilation
of limbs and similar other (harsher) punishments:

“All those, who themselves indulge or cause others to indulge in gam-
bling and prize-fighting, and those Sidras, who adopt the special insignia
of the twice-born classes, are to be put to death by the king,” |
_ yet both the offences, enumerated in the above two texts, are to be taken as
‘nothing but deceitful prize-fighting only, as that interpretation fits in well
with the above-quoted text of Brhaspati. Otherwise, the fate of the indivi-
dual criminal is to be taken into account, as hinted at by the author of the
Mit. on this topic (regarding the infliction of the heavier penalty).

1५ has been prescribed on the authority of the following two texts of Yaj.
वा. 201) and Narada (0४११० V. 7) respectively that a person, even though |

PUNISHMENT FOR PRIZE-FIGHTING ® 91

winning in a gambling contest, unknown to (i.e. unauthorised by) the king,
shall not be allowed to gain the stipulated amount but shall be fined

‘‘The king’s share in a gambling contest is well-known and so the gambler,
winning in such a contest, shall have to pay beforehand that (king’s share
for adjudication of his case) in a place, presided over by the sabhika (i.e.
the supervisor of gambling) and not otherwise.”

“The man, who engages himself in a gambling contest, unauthorised by
the king, should not only be deprived of his gains, if any but also should be
punished.” 6

So it appears that the Mit. and the commentary on ParaSara have intro-
duced the above text of Yaj. (in the respective commentaries) to empha-
size the principle of the king’s duty to exact the above penalty from the
defeated gambler, only when the supervisor fails to do so.

Just as in a suit for recovery of debt, the creditor has to pay to the
king beforehand for the purpose of adjudication (i.e. ascourt-fee) one-twentieth
part of the loan, going to be fraudulently ignored by the debtor, without
which no such decision and the consequent repayment to the creditor
of the money lent can take place, so on the same equitable principle
the king’s share (of the gains of gambling) has also been prescribed here.
So the real import of Yaj’s text (quoted above), is that only after receiving
his own share (from the winning person), the king should compel the
defeated gambler to make over the stipulated money to the winner and not
otherwise.

The clause vjz. dyiitamandale sasabhike jitam (i.e. the winner in a gambl-
ing contest, presided over by the supervisor) also emphasizes the same
meaning, containing as it does the principle of the king’s share.

Thus, he, who engages himself of his own accord in a gambling contest
without the express permission,of the king, will not realise his profit, even
though he has won in the contest, as even the honest (and winning) gamb-
lers do not succeed** in exacting their gains (from the defeated ones) without
the royal power—this is the purport of the first three feet of the above text
of Narada

Such being the outcome of the above interpretation that the winning
gambler cannot realise his profit without the intervention of the king, who
also does not interfere without getting his share beforehand (from the win-
ning party), both the above propositions being thus interdependent, the com-
bined purport of the above-quoted two texts is that a gambling contest may
be launched into only after getting the permission of the king and promising

«9 उ, $, has misprinted ng... Saktyd for na... Saktd

92 , DANDAVIVEKA

©

to pay him his share. The mentibn of punishment in the concluding foot
of the above text of Narada is on the analogy of that, imposed on a person,
who swims (with his arms) across a river, having the ferry system, out of
fear for (i.e. with the intention of avoiding) the ferry charges. So. the actual
offences (committed in both the cases) consists in avoiding the king’s legal
dues and nothing else, as Vasistha (XIX. 125) has laid down that “a person,
swimming across a river with his arms, shall be fined a hundred copper coins.”’
So if it is interpreted that in the present case also, neither the introduction
of a gambling contest nor winning in such a contest, when introduced,
turns out to be (legally) inadmissible and even if so considered, the winner
is not (legally) entitled to realise his gains, such an interpretation is vitiated
by an invisible fault only (adrsdtrthatva). So if a person, being confident
of realising his gains in case he wins and not caring for the king’s punish-
ment, launches into a gambling contest without the king’s authorisation,
stipulating that the losing party shall have to pay the wager, in such words
‘If your dice of the same denomination fall twice or my sheep slip away
from your sheep, I shall then pay you a hundred (copper?) coins’, then in the
happening of the above contingencies nobody is to be held guilty (and
consequently punished).

¢.

PUNISHMENT OF (BOGUS) ASTROLOGERS

Brhaspati (X XII.15) says: Those, who, being ignorant of the Science of As-
trology and of the evil portents (indicated by it), advise people about the
latter out of (sheer) greed of money, are also to be (appropriately and)
carefully punished (by the king)

D.V. adds that the addition of the phrase ‘out of greed of money’
(artha-lobhena) suggests that the consequent punishments (for the above
offence) vary in proportion to the money thus extorted.

PUNISHMENT OF WASHERMEN®?® (rajaka-dandah)

Manu (VII. 396) says: A washerman (nejakak) should gently wash the
cloth on a smooth board of the silk-cotton wood, should neither carry (na
nirharet) one man’s clothes 10. washing places by tying them together with

other man’s clothes nor allow anybody (but the owner), to wear them
(na vivasayet)

^ The words nejaka (noted below) and nirnejaka are the real synomyms for ‘washers |
man’ while rajaka really means ‘a dyer’ only and not a washerman,

PUNISHMENT OF WASHERMEN 93

}

D. V. adds that the Ratnadkara (p. 341) has explained the clauses ‘na
-nirharet? and ‘na vivdsayet’ as above. But Narayana has interpreted the
latter clause as ‘should not make (an unreasonable) delay in delivering
them to the owner’ and explained the former clause as ‘should not change
one man’s clothes with those of another’. The Ratnakara (loe. cit.) has
added that ‘(a washerman), doing these unfair acts, becomes liable for
punishment

The Matsyapurana says on this topic: The clothes (of the employer) are
to be gently washed (by a washerman) on a smoth board. Any washerman,
doing otherwise, is to be fined (dandyah)®° a silver mdsaka

Yaj. (1. 238) says: The washerman is to be fined three panus for putting
on the cloth of another man (given to him for being washed) and he (i.e. the
washerman) is to be fined ten panas in case he sells, gives on hire, mortgages
or makes a gift of such cloth (to a friend, asking for the same)

The same authority (II. 181) further says: In cases where a cloth is lost
(i.e. damaged or destroyed by the washerman for washing it in contra-
vention of the rules, laid down above) and persons, proficient is assessing
values of various articles and in consideration of the time and place (of
the occurrence of the mischief) and the pecuniary condition (of the washer-
man concerned), prescribe the specific amount of compensation, such com-
pensation is surely to be paid (by the offending washerman to the owner of
the cloth, so lost by reason of the former having washed it on an uneven
piece of wood)

Narada (krita’ VV. 8-9) has laid down the variations of compensation in
proportion to the variety of uses (already made of the clothes, so damaged
or destroyed): The compensation is to be less by one-eighth than the full
cost-price of a cloth, which has been washed once only (before being given
to the washerman for re-washing), by one-fourth in a case, where double
washing has already been done, by one-third in a case of similar treble
washing and by half in that of quadruple washing. After that, the
compensation to be charged for a partially worn-out cloth is to be reduced
to one-fourth of the costprice only. But no such rule is to be followed in
cases of damaging or destroying a completely worn-out cloth (jirnasya-

D, V. adds that the exact calculation of the above-mentioned. various kinds
of compensation is to be made by the arbitrators, mentioned above, in accor-
dance with the above rules.

` -*0 70. V. reads dapgah but dandyah is bettcr here. |
` . "9. V. wrongly reads the phrase as ‘firagh syan, पन ksaye’,

94 ९ # DANDAVIVEKA
। ~

PUNISHMENT OF PERSONS, WHO EXTORT MONEY FROM
OTHERS ON FALSE PRETENCES
Manu (VIII. 193) says: He, who snatches away other men’s wealth on false
pretexts (upddhibhis‘tu), shall be publicly put to death by various methods
(by the king), along with his accomplices.

D. V. adds the following comments: That is, he, who extorts wealth from
others on pretexts, introduced by such false statements as “The king has
been angry with you and I can save (rak shami)™ you from his anger if you
agree to give me wealth” and “I shall help you to secure that maiden (in
marriage) or gain that wealth (if you agree etc.)”—such a person shall be
put to death by the king by the adoption of various methods such as mutila-
tion of his limbs, such as hands and legs, or decapitation. Though the above
text really relates to ‘deposit’ (niksepa), having been included (by Manu)
within that very topic, yet, as it has been (quoted and) explained by previous
writers in this topic (of fraudulent extortion) on grounds of equity, so we
have also introduced it here. Thus, he, who misappropriates another person’s
wealth, deposited with him, by falsely declaring that ‘nothing has been deposi-
ted (with me)’, is to be so punished. But Narayana has said that the above-
described punishment is to be inflicted in cases of repeated commission of
the above offence of extortion.

PUNISHMENT OF TEACHERS AND SPECIALISTS (in technical arts)

The Matsyapurana, as quoted in the Dharmakosa, has laid down: The
virtuous king should cause those persons to disgorge the entire amounts of
fees, received by them, who, after having received beforehand the requisite
fees (from their pupils or apprentices), do npt initiate the latter into (the
mysteries of) the desired learning or technical skill.

PUNISHMENT OF (FALSE) MANTRAS AND TANTRIC (i.€. OCCULT) PRACTICES

Brhaspati (XXII. 20) says: The king should banish from his territory those
persons, who, after having somewhat hoodwinked people on the strength
of mantras and drugs, employ upon them occult practices, such as making
them subservient to them (milakarma). |

D. V. adds that ‘milakarma’ in the above text means vasfkaranam (i.e.
‘making them subservient to them’). |

त DV. has misprinted raksdmi as vaksyami.

PUNISHMENT OF CHEATS AND SWINDLERS 9९

@
PUNISHMENT OF NON-HERM&TS POSING AS HERMITS

Brhaspati (XXII. 16) says: The king’s officers shall put to death those ordi-
nary persons, who pose themselves (as hermits) by taking the staff, deerskin
and similar other things (appropriate to hermits only) and thereby fraudulent-
ly extort money from other (unsuspecting) persons.

PUNISHMENT OF (PROFESSIONAL) CHEATS AND SIMILAR
, OTHER SWINDLERS

Manu (IX. 225) says: The king should forthwith banish (nirvasayet) from
the capital city (or from the territory) gamblers, professional cheats (kustla-
van), beckoners of other men and other men’s wives (by secret signs) (kerdn),
those who are attached to or dress themselves as heretics (pdsandasthan)
those who follow professions, exceedingly inappropriate to their respective
castes (vikarma-sthan) (even when there is no emergency) and (dead) drun-
kards. |

D. V. adds the following comments:

The word pdasandasthah in the above text means ‘those, who are attached
to (Buddhist or Jain) monks, known as ksapanakas’, Kullika Bhatta in his
commentary on Manu (IX. 226) has explained the portion ‘vikarma-kriya’
of the term ‘vikarma-kriyaya’, occurring in that verse, as ‘cheating’
(vaficanam). Thus, depriving other men of their money by cheats etc., having
taken recourse to deceitful means, is emphasized here. As the previous
other digest? have included the ‘dead drunkards’ (Saundika-s)* in their
chapters on theft, men of such deceitful habit only and not dealers in
spirituous liquor are to be punished, inasmuch as persons happen to belong
to this very caste only by the accident of their birth. Kullika has further
said [in his comments on the Present verse, i.e. Manu (LX. 225)] that ‘other
unspecified cheats are also to be included within the above 150०० as the
above text has been laid down (by Manu) in the topic of gambling’. But
Narayana has interpreted the word nirvdsayet of the above text as ‘bahir
eva vasayet’ (i.e. ‘should make them reside outside (the capital city or the
territory). So it seems that (Kullika’s) interpretation of kuSilavdn as natan®™
(ie. actors) implies that this class of men is not to be regarded as ‘overt

° Kullaka reads vaficanatmaka-kriyayd.

Kullika explains its as madya-karan (i.e. liquor-manufacturers) which may be a
misprint for madya-pardn (meaning ‘addicted to drinking’)

55 Kullika’s interpretation omits the latter portion of the above after the figure ‘55’..
` ` ५ Kulltika reads. nartaka-gdyandn (i.e, daneers and singers), `

५6 , DANDAVIVEKA

{६
thieves’ (prakdsa-taskarah). So the‘earlier (commentators and) digest-writers
have said that there can be no gradation of punishments, according to the
gravity of the offences committed, in the absence of the prescription of any
specific punishments like that for ‘overt thieves’, for persons, enumerated
here.

The digests (and commentaries), after having said all this, have quoted
the following text of Vyasa:

Rich merchants (naigamadyah) and similar other (professional and non-
professional) classes of men should be so purished according to their
offences that they may not (in future) transgress the limits (of sanctioned
behaviour) and may abide by the current conventions.

D. V. adds: So it appears that the punishment, prescribed for a group of
criminals (of the above classes, acting in a conspiracy), should be inflicted
upon another group also in view of its possible association with the former
group. But where different punishments have been laid down for two or three
such groups, they are to be meted out also in consideration of the gravity
or lightness of the offences and of their first or repeated commission and
also in view of the comparative richness or poverty of the criminals concerned.
Again, where no such punishment for a particular group has been laid down,
that is to be devised according to equity or in consonance with the specific
nature of the offence. This procedure is to be followed in similar other
analogous ५2568. Brhaspati (XXII. 2-3) has thus specified such criminals
by the following two texts:

Merchants (naigamah), physicians, gamblers, courtiers, bribe-receivers,
swindlers (vaficakah), (०४5) astrologers and prognosticators (daivotpdatavidah),
persons, engaged to perform propitatory rites (bhadrah), manufacturers (of
spurious articles) (Silpajfiah), bogus mendicants (pratirupikah), servants, who
perform acts, unauthorised by their masters (akriyakarinah), officers, (appoin-
ted by the king) to fix prices (of commodities) (@madhyasthal), false witnesses
and (feigned) magicians are known as ‘overt thieves’ (prakasa-taskarah).

D. V. adds the following commentary: Naigamah means ‘traders, defraud-
ing customers by the use of false balances etc.’ The word ‘physicians’ (valdyah)
refers to those only, who aggravate the diseases (of their patients) (by adminis-
tering spurious and inefficacious drugs to them) and thus defraud them and
the word ‘courtiers’ is in relation to those only, who wrongly adjiicate
(a law-suit) out of greed of money. The word ‘bribe-receivers’ has been used
in connection with those, who accept bribes, when placed in (high) official
positions. The word vaficakah (i.e. swindlers) has been interpreted in the
Ratnakara (p. 288) as ‘those, who fraudulently misappropriate the money of |
one of the partners in a joint-stock venture, but (Kullika) in his commentary

PUNISHMENT OF CHEATS AND SWINDLERS 97
|

on Manu has explained it as ‘those, who, after having taken gold from other
persons (i.e. from customers for the purpose of manufacturing gold ornaments
for them), mix it with other baser metals and thus defraud them’. The Ratna-
kara (loc. cit.) has dissolved and explained the compound word daivotpata-
vidah as daivavidah and utpdtavidah and as respectively meaning ‘those,
who falsely foretell a person’s fortune’ and ‘those, who falsely predict future
natural calamities’ and ‘thereby deprive others of their money’. But Hala-
yudh’ has read the above expression as “tathaivotpatavidah’ and explained
it as ‘those, who falsely interpret (the present physical phenomena as) portents
of future natural calamities and thus extort money (from the public)’. The
Ratnakra (loc. cit.) has explained the word bhadrdk as ‘those, who, having
been engaged (by somebody) to perform propitiatory ,rites (in his favour),
do not do so and thus defraud him of his money’. But Kullika Bhatta
in his commentary on Manu has explained the term as ‘those, who,
though committing sins secretly, assume (unsuspected) good appearances
and thereby extort many from others’. (Narayana) Sarvajiia has, however,
interpreted it as ‘those, who astonish women and similar other persons
(i.e. children and illiterate folk) by concealing their real appearances (i.e. by
assuming false appearances)’. The Ratnakara (loc. cit.) has explained the
terms, viz. 40410061 and pratirupikak as ‘those, who exact money by manu-
facturing spurious articles’ and as ‘those, who extort money by anointing
their persons with characteristic holy marks etc.’ respectively. But Haldyudha
has interpreted the latter term as ‘those, who falsely carry the insignia of
staff and similar other things, appropriate for mendicants’. The previously
quoted text of Brhaspati (XXII. 16) (p. 115 of D. V.), viz. dandajinddind. . .
rajapurusaifi [1.6. The king’s officers ... fraudulently extort money from
other (unsuspecting) persons]. corroborates the above interpretation.
The word akriyaka@rinah means ‘servants, (performing 263, unauthorised
by their masters)’. Halayudha has said that the above epithet applies to all
the various classes of persons, (previously and subsequently enumerated
in the above two texts of Brhaspati) and hence the fraudulent character
of all those kinds of men is to be understood, while convicting them of
those particular offences. The word madhyasthah implies ‘those (officers),
appointed (by the king) for fixing prices of commodities but (secretly)
exacting money (from the businessmen) by fixing false (i.e. exorbitant)
prices (of their commodities)’. ‘False witnesses’ (kijfa-sadksinah) are
‘those, who depose falsely in other men’s suits (by speaking untruths)’.
‘(Feigned) magicians’ (kuhaka-jivinak) imply ‘those, who show magical
processes (and perform occult practices) and thus take away others’
money’. |
13

98

DANDAVIVEKA.

Narada (caura® vv. 2 and 3a) says: The following classes of persons are
known as ‘overt thieves’ (prakdsa-vancakah):

` (1)
. 2)
(3)

(4)
(5)
(6)
(7)

Those, who use false measures and balances,

Those, who accept bribes (from others),

Those, who give false hopes to others or create false fears in them
and extort money from them

The swindlers, who surreptitiously rob others of their money,

The public women (i.e. the prostitutes),

Those, who put on royal robes without royal permission, and

Those, who, having told others of their intention to invoke a particular
deity for their welfare, invoke another deity (anyadeva*’-mangala-
deSadvara) and thereby defraud their clients

Manu (IX. 257a and 258-260) lays down: The following categories of
persons belong to the class of overt thieves (prakdaSa-vaficaka-s):

(1)
@)

(3)

(4)
(5)
(6)

(7)
(8)
(9)

Those, who snatch away other persons’ wealth in exchange of their
(i.e. of those former persons) various (spurious or inferior) mer-
chandise,

Those, who accept bribes (from others) (but really do mischief to
them without giving them anything useful in return, according to
Kullika’s comment), ` ५
Those, who extort money from other people by practising fraud upon
them (aupadhikah),

(Ordinary) cheats (but swindlers, according to Kullika),

The gamblers,

Those, who, having promised their clients to invoke benign deities
for their welfare, do not do so (mangulddesa-vritah),

Vicious persons, posing as virtuous ones,

Magicians (aiksanikah), 3

High officers, acting improperly out of greed of money (asamyak-

, karinascdiva mahamatrali),

(10)
(11)
(12)

(13)

87 2).
58 D.

The Quacks (cikifjsakaf),
The officious painters (silpopacdra®-yuk tasca),

‘Public women (parya-yositali), adepts in the art of hypnotising others.

and

Persons of the degencrate classes, working secretly and pesing as
members of the regenerate classes (andryan aryalinginah). These and
similar other persons are to be known as overt oppressors of the
people (i.e. anti-social elements). |

V, has misprinted °deva® as °desa°.
V. has misprinted °cdra° as °kdra’.

PUNISHMENT OF CHEATS AND SWINDLERS , 99
6
D. V. adds the following comments: Nafayana has explained the term aupa-

dhikah as ‘those who take away (money from others) by taking recourse to
upadhi(i.e. chala), meaning (fraud), made by means of the balance and similar
other (weights and measures), which word should be sopadhika® (to be gram-
matically correct), but the former term, being syntactically the same as the
latter, may be so retained’. The following text of Vyasa has fully explained
the connotation of the term (mungaladesa-vrttah):

“Those, who give out false hopes of propitiating appropriate deities (to
avert their clients’ calamaties), deceitfully extort money from others on that
account, (but do not do so) and thus defraud men and women” (The last
foot of the above text of Vyasa viz. anaryda$ caryalinginah is almost the same
as the corresponding foot of the last verse of Manug explained above viz.
anaryan aryalinginah). The Ratnakara (p. 289) has interpreted the above
phrase as ‘those, though not Brahmacarins (i.e. ceremonial practisers of
the vow of student-hood) and not belonging to similar other (high and respec-
ted orders of society), pose themselves as such and consequently extort money
from others’. Kullika in his commentary on Manu has said that the word
mahamatrak means ‘those, who derive their living from the training of ele-
phants’ and that ‘the word asamyak-karinah qualifies both mahamatrah
and cikitsakah (i.e. physicians) (just following the above word)’. (Narayana)
Sarvajfia also, after having read mahamatyah for mahamatrah, has explained
the entire foot (of the above-explained verse of Manu) as we have done.
Halayudha,having read panya-dosinah for panya-yositah and connected it with
both silpopacarayuktasca and nipunah, just preceding it one after another, has
explained the whole phrase as “those black-marketers, who outwit even the
Srotriyas by the use of gems and similar other costly things and receive in
return costly presents (i.e. big values).”’ (Kullika) Bhatta has interpreted
the phrase viz. anarydn aryalinginah as ‘those Sidras and other (degenerate
classes of) persons, who assume the garb of Brahmanas and extort money
from others’.

All the above interpretations (of different commentators and digest-writers)
are equally acceptable, as all the several classes of persons, (explained by
them), fall within the category of overt thieves (prakdsa-taskara) without
any distinction. The punishment for pratiriipakara-“ dinam (i.e. assumers
of royal dress without royal permission) and other classes of persons (enu-
merated above), will be described below in the topic of miscellaneous

offences (prakirnaka)

५० D. V, has misprinted it as sopddhika.
०० D, V. misreads pratiripakdnam for pratiriipakaradinagm.

100, DANDAVIVEKA

€

Manu(VII.123-124) has thus laid down the punishment of the chief offi-
cers (pradhana-bhrtan)®:

As the officers, placed (by the king) in charge of the protection (of the
people) in his territory®*, often turn out to be deceitful and extort money
from others, so (the king) should shield his subjects from (the clutches of)
these persons. Those vicious-minded persons, who wring out money from
the. litigants, should have their entire property forfeited and should them-
selves be exiled by the king

Katyayana (V. 956) says: Those who imitate the king in his appearance
(dress etc.), the on-lookers of dances (at the cost of the official duites,
imposed uron them by the king), those, who realise more fines (prakarah)
(than are due [णा € criminals) and the piferers of the king’s wealth
should be awarded various corporal punishments.

D. V. adds: Some authority has explained the term prakara as ‘the
(misappropriator of) the money, realised as fines’. But (Vacaspati) Misra
(V. C. p. 159) has explained it as ‘those, who exact higher fines (from the
criminals), which are already high’. The punishments for these (two) offences
are, however, as have been laid down before.

PUNISHMENTS FOR APRAKASA=TASKARA-S (Covert Thieves)

Manu (IX. 257b)® has thus classified them: The thief (stena), the homeless
wanderer (afavya) and similar other persons are included within the category
of pracchanna-vaftcaka-s (i.e. surreptitious cheats or aprakasa-taskara-s).

D. V. adds that according to Ratnakara (p. 289), the word stena means
‘those thieves, who commit stealing by making holes (in a person’s wall)’
and the word afavya implies ‘persons, who have taken up their residence in a
forest (and have no house to live in)’; and that by the addition of the word
Gdi (i.e. similar other persons), the thieves, who live in open meadows”
(or in the outskirts® of the village, according to a different reading), are
included; and that this last kind of persons commits stealth (i.e. burglary)
even in the day-time.

_Brhaspati (XXII. 4) has, however, said: The following classes of criminals
are known to be pracchanna-taskara-s, viz. hole-makers (in the walls of
other men’s houses), persons who relieve travellers of their purses, the kidnap-

61 DP, V. reads bhitdn for °bhrtan.

3 —D. V. reads rdstresu but Manu reads rdjfiohi.

¢? Manu reads the text a bit differently but meaning the same.

* and 65 D. V. reads prdntara® (i.e. a meadow) and prdnta’® (i.e. the outskirts etc.) in
the body of the text and the footnote respectively.

PUNISHMENT FOR APRAKASA-TASKARA-S „ 101

| ,
pers of bipeds (i.e. men) and quadrupeds, stealers of movable property
(utksepakah) (before the very eyes of the guards by evading their notice)
and usurpers of grains.

D. V. adds that according to the author of the Mit., the term utksepaka
means ‘one, who snatches away something from the possession of another
man by throwing.a piece of cloth or similar other things over the person of
the latter’.

Vyasa has laid down: Those, who roam about at night, unperceived (by
ordinary persons) and equipped with digging instruments, fit for committing
theft and those, whose entry into a house cannot be perceived (by its inmates)
—these two kinds of criminals are known as pracchanra-taskara-s. The
utksepaka, the adept in the art of digging holes (im other men’s houses), .
the snatcher of travellers’ purses, the cutter of the knots (tying up gold and
similar other precious things with a person’s wearing apparel), the kidnappers
of men and women respectively and the stealer of (domestic) beasts—these,
along with the previously described two kinds (of pracchanna-taskara-s), are
known to be the nine classes of thieves’. D. V. adds: “The inclusion of the
above two kinds (of pracchanna-taskara-s) in the present list (of nine kinds of
thieves), such as an utk sepaka, is for inflicting upon them the appropriate pu-
nishment for the preparation etc. (of the crime of theft), though they are not
actually redhanded. Thus, (on the authority of the texts of Brhaspati and
Vyasa, read together), it appears that there are the following eight classes of
aprakdSa-taskara-s viz. (1) the hole-digger (2) the stealer of a traveller’s purse
(3) the stealer ५८ bipeds (4) the stealer quadrupeds (5) the utksepaka (6) the
knot-cutter (7) the usurper of grains and (8) the stealer of miscellaneous
things. The homeless wanderer and similar other persons (without any
ostensible means of livelihood) are only a slightly different class of thieves
from the snatchers of a traveljer’s purse and are really mutually inclusive.
Though according to the Ratnakara (p. 290), a separate class of thieves other
than the hole-diggers, spoken of by Brhaspati, is indicated by the use of the
word ‘usurper of grains’ (Sasyahara) yet no real difference is effected by
including or excluding the latter class, enumerated in the list of Brhaspati
but only a difference in the number of the classes is made, as the consequent
punishments for both the crimes are the same, on the analogy of the maxim
viz. ‘By one’s mother or by a neighbour woman’. Still as Manu (cf. VIII. 320
and 323) has prescribed a punishment (i.e. of death or a lesser punishment)
for a theft of paddy, which, though it ought to have been equal (in the cases
of tendency) to that laid down in theft of gems, is actually equal to that for
kidnapping human beings and for stealing quadrupeds, so here also the two
classes of thieves have been separately mention

102 + DANDAVIVEKA

€

Those several kinds of thieves,® prescription of various punishments in
the shafe of aggravation or extenuation on whom has been laid down by
Narada in consideration of their varying criminality, ought to be left for
discussion in the topic of miscellaneous thefts below. But their classification
is not unjustified here.

The word Sasyahara is, therefore, being explained here as ‘the stealer of
paddy’, having practically ignored the technical definition of the word
Sasya, embodied in the following text from the paribhdsa (i.e. technical terms)
chapter, appended to a separate context ‘

“Crops (Sasyam) are those, which are standing on the fields, paddy
(dhanyam) is that, which (though brought home from the field) has not yet
been husked, husked-paddy is known as rice (@ma) and boiled rice is called
annam (literally meaning, ‘fit to be eaten’).”’

The term prakirndpahari means ‘a stealer of gems and similar other precious
things’, as the offence here is concerning things, other than the previously
specified bipeds (i.e. human beings), on the authority of the following text
of Narada (prakirnaka V.4)

“All other offences, not specifically treated in the previous chapters,
shall be termed prakirnaka (i.e. miscellaneous ones).”

If it is said that the robber of a traveller’s purse (pantha-muf) and sirhilar
other thieves, though separately mentioned in the present chapter, might
also have been included in the chapter on miscellaneous crimes, as those
persons also steal gems and other precious things, we admit the argument
But their separate mention is due to the fact that such robbing a traveller
(of his purse) is out and out a crime, quite irrespective of the comparative
value of the robbed articles.

So in the cases of kidnapping human beings (or stealing animals), no
question of hole-digging (into another man’s wall) or its particular methods
and implements are taken into consideration, as those enquiries are irrelevant
here, just as the value of the article, snatched away from a traveller, is not
considered relevant. So Vyasa and other authorities have laid down the
particular methods and implements, utilized in a hole-digging only or the
comparative worthiness or value only of the human beings kidnapped or
animals stolen, having regard to their comparative relevance. So, even if the
digger into another man’s wall may by chance get a big or a small quantity
of things, the very crime of such digging itself has been made punishable
by Manu (IX. 276), as follows

` “He, who. (commits) theft by digging into etc’’.“¢ The author of the Mit
has also expressed the opinion that the heavier punishment prescribed here
is owing to the gravity of the offence committed | ` -

95 See a little below for an English rendering of the whole verse

PUNISHMENT FOR APRIAKASA-TASKARA-S 103

Dd

So Govindaraja (another commentator of Manu), while explaining the
following text of Manu (VIII. 34), has laid down the similar punishment of
death for stealing an article, valued more than one hundred gold coins, on
the analogy of another text (of Manu?) viz. ‘Sentence of death (is prescribed)
for (stealing) more than one hundred’:

‘““When some thing, previously lost but subsequently restored (by the king’s
men), has been kept in the custody of responsible officers® for its safety,
those persons, who, coming to steal it, are arrested (on the spot), should be
put to death by the king with the help of an elephant.’’®’

But Kullika, finding fault with the above opinion of Govindaraja, has
said that like ‘stealing by digging into another man’s wall’ (Manu IX. 276),
death sentence must be imposed (on the offender) even in the case of stealing
even a small quantity (or number) of articles, originally lost (but subsequently
recovered) and preserved by the king, as death sentence has been specifically
prescribed here and that the text, authorising the same penalty for stealing
more than one hundred (articles, or things valued one hundred gold coins),
applies to those very cases only, where specific prescriptions of sentences
other than death have been made. So even in the theft of a small amount of
wealth by committing the (heinous) offence of wall-digging etc., the prescrip-
tion’ of the sentence of death is the settled law’. In the following text of
Vyasa:

A digger into (another man’s) wall, when he gets a huge amount of wealth
from the house (of that person), should return it in entirety to its owner and
should for that purpose deposit it with the king.

D. V. adds that this returning of the (entire) booty is an optional punish-
ment in cases of getting a big amount of wealth (by the criminal).

So Brhaspati (XXII. 21a) has laid down: The stealers by digging (into
another man’s wall) should be compelled to return the stolen property and
placed on the stake afterwards (to be put to death)

Katyayana (cf. V. 960) has consequently laid down the following punish-
ment even in cases, where the stealing or any other crime has not been fully
committed by a thief or any other criminal

The first punishment for a particular kind of theft is to be inflicted in its
very commencement, the middle one in its progressing stage and the punish-
ment, prescribed for an offence, is to be metéd out, when it has been fully
committed.

¢ Manu reads tisthed yuktair adhisthitam but D. V. wrongly reads tisthetyuktair
adhisthitam for this portion
` ५? Manu reads rajebhena (=raja+ibhena, ibha meaning an elephant) but D.V. misreads
it as rdjdtena

104 , | DANDAVIVEKA

Of the above various kinds of thieves, the punishment of the wall-digger
has been thus laid down by Manu (IX. 276): The king should cut both the
hands of those thieves, who dig into other men’s walls and commit thefts
at night and should then put them to death by placing them on a sharp
pale.

Here the additional punishments of making (the thief) return the
stolen article and the proclamation of the offence (by the king) have already
been spoken of.

Brhaspati (XXII. 21b) has prescribed the following punishment for a robber
of travellers: (The king) should fasten (a noose) around the neek of the robber
of travellers and hang him from a tree.

Both Narada (cf. ceura V. 7) and Katyadyana (V. 820) have laid down:
Those, who annoy their own country (svadesa-ghdtinah) (by stealing articles)
and obstruct the public thoroughfares (i.e. are highway robbers), should
have their (tesam) entire property forfeited by the king, who should also
impale them on a stake.
` D. V. adds the following comments: The king’s country is that, which is
ruled by him and also inhabited by thieves and those among the latter, who
annoy that country (by stealing etc.), are called svadesa-ghatinah. The word
teSam (i.e. their) means ‘of the thieves’. So, if those thieves plunder another
(king’s) territory, the former king should not confiscate their entire property,
as that act (of the thieves) is in his favour. This is the opinion of the Ratna-
kara (p. 315). Though the Ratnadkara has introduced this quotation just
after the above-quoted text of Brhaspati (p. 314), prescribing the punishment
of a pantha-mu (i.e. robber of travellers), yet, owing to its itisertion in the
text (of Narada and Katyayana), laying down the punishment for causing
obstruction to the thoroughfares of one’s own country, it appears that no
punishment is to be inflicted on considerations of equity on the kidnappers
and stealers respectively of human beings and quadrupeds of other countries.
The. principle laid down in the present text, is thus in consonance with that,
laid down in a previously quoted (p. 42 of D. V.) text of Katyayana
(V. 826), viz. paradesahrtam dravyam etc. (i.e. an article, stolen from

another country etc.)

ON THE TOPIC OF THE KIDNAPPING OF BIPEDS (i.e. human beings)

Manu (VIII. 323) says: One, who kidnaps high-born men and specially
women or steals the most costly gems, deserves the punishment of death.
Brhaspati (XXII. 22a) also lays down: The kidnappers of human beings
are to be burnt (to death) by the king, by setting fire to dry grass (kata),
(placed on all their sides.) |

PUNISHMENT FOR KIDNAPPING OF BIPEDS 0105

|

Vyasa also says: The kidnapper of a Woman should be made to lie upon
a bed of iron and burnt (to death) by setting fire to dry grass, while that of a
male person should have his hands and legs cut off and he should be placed
at the junction of four roads.

Narada (caura® V. 28) lays down: The punishment of the highest amerce-
ment is to be inflicted on a kidnapper of a male person, after (having cut off)
both of his hands (hastau), that of the forfeiture of the entire property on a
kidnapper of a female person and that of death on a similar offender, regard-
ing a maiden. The stealer of horses and elephants and the kidnapper of
children are also to be awarded the same punishment of forfeiture of pro-
perty. This has already been said by Brhaspati.

D. V. adds the following long commentary: The Kamadhenu has read
drstam (i.e. is seen) for Aastau in the above text [and so according to it the
first line of the above text means that “the punishment of the highest amerce-
ment is seen (i.e. has been prescribed by the earlier authorities) for a kidnapper
of a male person.”] The Ratnakara (p. 316) has said that the mutually
contradictory punishments, corporal and pecuniary, prescribed in the above
several texts for the same offences, involving the same kinds of human beings
and animals, are to be reconciled in considerations of the higher or lower
caste of the kidnapper or stealer, their opulence or poverty, and the compara-
tive value of the®® stolen (article and animal or relative worth of the kidnap-
ped human being).

So it appears that Manu (VIII. 323) has only laid down in general terms
the sentence of death for kidnappers of men and women, which punishment
may be inflicted in many ways, such as by the simple or the complicated
method. So Brhaspati has advised the infliction of this (capital) punishment,
by surrounding the body of the criminal with dry grass and then setting fire
to it (to burn him alive). This particular method of carrying out death-
sentence is in consonance with the import of the text of Vyasa, beginning
with the phrase, viz. ‘the kidnapper of a woman’ (striharta) and containing
the mention of the requisite ‘iron bed’ (lohaSayane) (to be used in inflicting
this punishment of burning the kidnapper of women to death). So it further
appears that death-sentence having thus been unanimously laid down for
kidnappers of women, the carrying out of the same punishment, prescribed
by Vyasa for kidnappers of male persons also, as is evident from the latter
part of his text, beginning with the phrase viz. nara-hartd (i.e. a kidnapper
of male persons), is to be done, after having effected the mutilation of the

० 7. ¢. reads hdryutkarsa etc. and Ratnadkara reads kdryotkarsa® but it should be
haryotkarsa (i.e. hérya {the stolen article] +-utkarsa).

14

106 DANDAVIVEKA

hands and legs of the wrong-déer and subsequently placed his body at
the junction of four public roads, which punishment is but another form
of impaling the offenders. The punishment of death (for kidnappers of
male persons also) having thus been confirmed, an option lies between death-
sentence (prescribed in the text of Vyasa) and a lesser punishment (of mutila-
tion of both the hands only, along with the fine of the highest amercement),
as laid down by Narada in the above-quoted text, beginning wth the word
purusam (harato) (i.e. of the kidnapper of a male person), on the authority
of the following (anonymous) text viz. ‘The principle of option is to be
relied upon in law (smrti-Sastra), when the conflict (between several authorita-
tive texts) has been (apparently) dissolved.’ In the present case, the option
is to be exercised in cases involving women and grown-up men. Thus, the
specific prescriptions by Vyasa (Narada?) of the punishments of death and
forfeiture of property for kidnapping unmarried girls and children respec-
tively are not at all contradictory, as the two offences are concerning
two different classes (of the persons kidnapped).

Thus the kidnapper of a married woman should be made to lie upon an
iron bed and put to death, by burning him alive with the fire, kindled with
dry grass and that of adult male persons should have his hands and legs
cut off and he should then be impaled to death. This is one sort of punishment.
Another sort is the cumulation of the corporal punishment in the form of
mutilation of hands and legs and the pecuniary punishment in the shape of
the highest amercement of the latter class of criminals, described above and
confiscation of the entire property of the former class. The somewhat con-
tradictory character of the above two sorts of punishmerits may be thus
resolved: The first set applies only to the cases of high-born adult men
and married women, on account of the occurrence of the word kulindnadm
(i.e. of those, who belong to high families) in the above-cited text of Manu
(VILL. 323) and the second set holds good in the cases of (adult) men and
(married) women of ordinary families

In cases of kidnapping men and women of royal families, Sankha-likhita
have laid down the following special rule: For kidnapping a prince (rajapu-
trapahare), the punishment is the imposition of a fine of one thousand and
eight (panas) or (any sort of) corporal punishment; for committing the
same offence regarding the sons of other relations of the king as well as
other members, male and female, of the royal family, half of the above fine
or an appropriate corporal punishment is the proper penalty.

D. V. adds the following comments: The word asfasahasram in the above
text means ‘one thousand and eight’ panas, meaning, according to the chapter
“on technical terms (paribhasa), Kargsapanas according to the Ratnakara (p.

PUNISHMENT FOR KIDNAPPING OF SERVANTS 9107

8

316). The above interpretation is right, as Is evident from the concluding por-
tion of the above-quoted text of (Sankhalikhita), which means: Twelve and
a half panas and three karsapanas are (the respective fines) for stealing a goat
or a sheep and a mongoose or a cat respectively. Thus in the above latter
portion of the text the karsapana and the pana mean the same thing, for if
we take the former as synonymous with a purdna (which is a silver coin),
there arises the objection of the application of a heavier punishment for
stealing mongooses and cats, which are decidedly smaller creatures than
goats and sheep. 9

The Kamadhenu has read rdjaputrapaharesu for rdjaputrapahare in the
above text. The optional punishments viz. corporal and pecuniary, prescribed
in the above text, are to be reconciled as being applicadle to the cases of cri-
minals, poor and rich respectively, according to the Ratnakara (p. 316). So it
is evident that the final import of the above text is that in view of the gravity
of the offence of kidnapping members of the royal family than that of doing
so regarding members of ordinary families, both the pecuniary and corporal
punishments are to be inflicted, as the particle va, put in the phrase Sariro va
(of the above text), has been used here in a cumulative sense (and not in an
alternative sense, as interpreted by the Ratnakara).

IN CASES OF KIDNAPPING MEN-SERVANTS AND MAID-SERVANTS

Manu (VIII. 342b) lays down: A kidnapper of (other person’s) servants
and a stealer of (other men’s) chariots and horses shall have to receive the
punishment, afpropriate for a thief (of consumers’ articles) (caura-kilvisam).

Narada (cf. caura® V. 33) also says: He, who cuts the portion just above
the heel of cows, belonging to the households of Brahmanas (i.e. owned by
Brahmanas) or kidnaps maidservants (similarly owned by a Brahmana),
shall be punished by the fine of the middle amercement and also the mutila-
tion of his leg.

D. V. adds that as a higher punishment has been prescribed for a kidnapper
of a maid-servant, belonging to a Brahmana, it is apparent that a similarly
heavy punishment, befitting a thief, is to be meted out to kidnappers of
Brahmana-owned men-servants also. This punishment may be either
corporal or pecuniary and ordinarily heavy, while such offences, committed
in respect of cattle or servants, owned by persons, other than Brahmanas, will
necessarily entail lesser punishments upon the offenders.

IN CASES OF STEALING QUADRUPEDS

The same authority (i.e. Narada) (caura® V. 29) says: The corresponding

108 § _ DANDAVIVEKA

punishments for the thefts of big, medium-sized and small animals (belonging
to others) are the fines of the highest, middle and first amercements.

D. V. adds that the big animals are the elephant and similar other beasts
and the medium-sized are the bulls etc., and that all these animals are exclu-
_ sive of the big beasts, specially enumerated below (for purposes of punish-
ments to be inflicted on their kidnappers). |

Manu (VIII. 342 and 324) has laid down: ‘‘He, who ties up (sandata)
the legs of animals having their legs untied (asanditanam) or loosens (vimok-
sakah) them, if tied together (sanditanam) or kidnaps (other persons’) ser-
vants or steals (other men’s) horses or chariots, shall be punished with the
penalty of a thief.” ““The king should take punitive measures in cases of theft
of big animals, weapons and medicines, in considerations of the time and
urgency of the utilization (Ka@ryam) of the animals and articles stolen.”

D. V. adds the following long commentary: The words sandata and vimok-
gakah respectively mean ‘he, who ties up (the legs) of (those animals for stea-
ling them) and ‘he, who loosens them with the same intention’. The word
caurakilvisam means ‘punishment, fit for a thief, which may be either corporal
or pecuniary, and may thus be either death or mutilation of limbs, or imposi-
tion of fines’ according to Kullika Bhatta in his commentary on Manu.
But Narayana has interpreted the former of the above two verses in the
following different way: |

०८४ person, who employs as beasts of burden and conveyance the animals,
let loose with their legs untied by their owners and thus become ownerless”’,
is called a sandata, while a vimok saka is “one, who lets loose animals, belong-
ing to other persons and with their legs tied up by them, with the evil inten-
tion of acting inimically towards their owners.” ‘A kidnapper or stealer
of other persons’ servants or chariots and horses’ implies “one, who entices
the former (i.e. the servants) (along with the chariots and horses) and com-
pels them to do one’s own work.” Though not technically thefts, these
actions amount to thefts by force of analogy.

The above interpretation is also acceptable, as, though these actions are
not really thefts, they become so by analogy and there is, therefore, no
conflict of this interpretation (with that of Kullika, quoted just above).
Such analogical thefts are also punishable like real thefts.

The words kdlak (i.e. time) and karyam (i.e. urgency) respectively mean
‘time of war or peace’ and ‘the comparative utility (of the animals or articles
stolen)’.

Having taken all these facts into consideration, such as whether those
animals or things have been snatched away (by the aggressors) in proper
times of their use (for public benefit) or for their pretended (1.6, dishonest)

PUNISHMENT FOR STEALING OF QUADRUPEDS $ 109

use, whether the horse, elephant and similar other animals are inherently
comparatively important, one over another or whether they are meant to be
put to further big or small purposes, the king should inflict upon the stealers
of quadrupeds a light or heavy or heavier penalty—this is the real import
of the above two texts (of Manu), taken together (cf. Ratnakara, p. 316).

Y4j. (II. 273) has thus laid down (some of) the heavier penalties: (The king)
should impale the kidnappers (of human beings), the stcalers of horses and

elephants and the forcible murderers.
Vyasa also has said: The stealer of horses should have his hands, legs

and waist mutilated and thus put to death.

Vyasa (Narada’) has thus exemplified a heavy punishment in the follow-
ing half-verse (already quoted above, along with a full verse and explained
by D.V.):

Brhaspati has laid down the punishment (of the forfeiture of the entire
property) of the stealers of horses, elephants and minors.

Visnu (V. 77) has laid down: The stealer of a cow, a horse, a camel or an
elephant should have one each of his hands and legs cut off (by the
king).

Safkhalikhita have thus given an example of light punishment: The
punishment for stealing chariots,®® drawn by elephants or horses, or 6818, 10
pulled by cows and bulls, is equal to that of kidnapping a royal prince.

D.V. adds: The punishment in the above cases is thus a fine of one thou-
sand and eight paras or (any kind of) corporal punishment. But the previous-
ly prescribed punishment of death is to be inflicted on the stealer by means
of binding, letting loose or doing similar other (objectionable) actions, relat-
ing to big animals, when the utility, speciality or physical bigness of the stolen
animal is of the highest order. In cases of committing theft?! of animals, which
are comparatively neither very big nor very useful nor highly special ones, the
punishment of forfeiture of property or mutilation of hand and leg is to be
inflicted on the thief. When such thefts are in relation to the lowest type of
such animals or things in point of utility etc., the proper punishment is the
imposition of the fine of the middle amercement.

Narada” (cf. caura® V. 33) says: In cases of the cutting off the portion
just above the heel (sphurd), [ of cows, owned by Brahmanas (gogu

* Supplied from the (Vivdda)-ratndkara. (p. 316). D. V. omits ratha (meaning
‘a chariot’).

7° D. V. has misprinted® vrsa-ydnegu as vrsdyanegu.

™ D. V. misreads fad-apakdre for tad-apahdre (meaning ‘in theft of which’).

73 The. English rendering has been made here after supplying from the Ratndkara
(p..3! 7) the missing second line of this quotation from Narada, as printed in D.V, .

110 4 | DANDAVIVEKA

। ।
brahmana-samsthasu)| and kidnapping maid-servants, the thief shall have to
pay the fine of the middle amercement and suffer mutilation of one of
his legs.

D. V. adds that the seventh case-ending has been used in the words go
and brahmana-samsthd to mean the sixth case-ending, (i.e. ‘of the cows,
belonging to Brahmanas).

Brhaspati (XXII. 22b) also says: (The king) should cut off the nose of,
bind and then drown the stealer of cows.(go-hartda) into water.

D. V. adds: The word go-harta is an archaic use (arsa-prayoga) in the
first case-ending for the second case-ending. The cows, spoken of here, are
to be understood as referring to good cows, owned by Brahmanas and fit
for performing sacrificés with. The above text is found in the Kamadhenu.

Manu (VIII. 325) lays down: In case of cutting off the portion just above
the heels of cows, owned by Brahmanas and in the theft of beasts (pasiundam),
the wrongdoer should have half of each of his legs immediately cut off
(ardha-padikah, as interpreted by Narayana).

D.V. adds: According to the Ratnakara (p. 318) the beasts (pasavah), spo-
ken of here, are small animals other than goats, sheep, cats and mongooses.
SO, it seems that they mean medium-sized animals. According to the inter-
pretation of Narayana, the beasts here include buffaloes and similar other
animals, owing to their mention along with that of Brahmana-owned cows.
There is thus no contradiction of this text (of Manu) with the previously cited
text of Narada, as this latter authority also practically means the same thing
In fact, the word go (i.e. a cow) in the text of Narada means,‘a good (and
very useful) cow’, and the same word in the present text of Manu means
a comparatively inferior cow’ and also the word ‘pasu’ (i.e. a beast) in this
text refers to ‘a cow and similar other animals of inferior quality and
belonging to persons, other than Brahmanas’. So no contradiction arises
between the above two texts.

‘Vyasa also says: The stealer of beasts should have half-portions of
both his legs cut off with a sharp weapon (tik snasastrena).

D. V. adds that (Vacaspati) Misra (p. 134 of V.C.) has read a-tiksna®
(i.e. not very sharp) for tiksna° in the above text and interpreted the term as
*g blunt’ weapon, a spade and similar other implements’.

Safkha-likhita (once quoted above) have also laid down: (The punishment)
for stealing goats and sheep is a fine of twelve and a half paras and three
karsapanas is the fine for stealing mongooses and cats.

Vignu (V. 78) also says: The stealer of goats and sheep should get the
punishment of mutilation of one of his hands

D. V. adds that according to the Ratnakara (p. 318), the conflict between

PUNISHMENT FOR काट$८^1८^5 ETC. ) 111

the above two texts can be reconciled dy assuming that the text of Visnu
relates to a poor thief or the goat or sheep, stolen by him, is fit for performing
sacrifices with.

ON THE TOPIC OF THE PUNISHMENTS
FOR Utksepakas and Granthi-Bhedakas

Vyasa has laid down: (The king) should (punish) the wtksepaka (i.e. the
stealer of movable property before the very eyes of its guards) and the granthi-
bheda(-ka) (i.e. the snatcher of a traveller’s purse) by cutting off their thumb
and second finger taken together (sandamSa).

Manu (IX. 277) also says: Two fingers (anguli) ang one hand and one leg
(hastapadau) of the robber of a traveller’s purse are to be cut off (by the king)
in the first and second commissions respectively of the above offence,
while in the third commission the above-mentioned criminal deserves death-
sentence.

D. V. adds: According to Narayana, such enhancement of punishment
is also to be made in cases of repeated commission of other crimes. The
word auguli (1.6. two fingers) means “the thumb and the index or the second
finger’. Though the above text (of Manu) has laid down this punishment,
concerning ‘a robber of a traveller’s purse’, yet it also applies to ‘a stealer
of movable property before the very eyes of its guards’, as both of the above
criminals belong to the same category and have been mentioned together
(in the previous text of Vyasa and the following text of Yaj.).

Thus Y4j. सा. 274) also says: The stealer of movable property before the
very eyes of its guards and the robber of a traveller’s purse are to be made
destitute of their sandamSa (i.e. the thumb and the second finger taken
together) (in the first commission of those offences) but should lose one each
of their hands and legs in the second commission.

D. V. adds: The author of the Mit. has expressed here the following
opinion:

The above text of Yaj. is concerning those kinds of robbery, which deserve
the pecuniary punishment of the highest amercement, on the authority of
the following text of Narada: “The mutilation of that very limb (tad-anga-
cchedah) may be substituted by the fine of the highest amercement.”’

The above view is questionable, as it conflicts with the earlier view, expres-
sed by the author of the Mit. himself in the following terms on the inter-
pretation of the text viz. “the (pecuniary) punishment, amounting to
double of the value of the article involved (is to be imposed)”, occurring
in the section on sdhasa (i.e. high crimes)

112, | DANPAVIVERKA —

“The infliction of the (pecuniafy) punishments, beginning from the first
amiercement, is in-connection with offences other than theft (and robbery)”’.

Moreover, Yj. (II. 297) has himself prescribed the mutilation of hands
etc. of the offender in cases of selling forbidden meat, which is not a sdhasa
(i.e. a high crime). So the above text of Narada (quoted by the author of the
Mit.) has been meant to be utilized in other topics and its statement in
general terms is in connection with topics, not coming within the purview
of specific punishments. So the portion tad-anga (ofthe word tad-anga-cchedah,
occurring in the above text of Narada) has been explained in all the previous
digests as ‘the limb, connected with the commission of the Sahasa (i.e. high
crime).” The commission of the crimes of robbery before the very eyes of the.
guard of a property and of robbing a traveller is neither feasible by the
thumb and the second finger only (of the criminal) nor is the latter’s leg
necessary for such commission nor is there any occasion for the cumulation
of various punishments here. The above interpretation (of the author of the
Mit.) is, therefore, wrong, in view of the absence of any (authoritative) text (in
` 115 favour) or of any circumstances, necessitating the aggravation of the pres-
cribed punishment here, amounting to the non-existence of any authority
for interpreting it in that manner. As the specific prescription of the cutting
off the sandumsa (of the offender), convicted of robbing a traveller’s purse
or stealing (a thing) before the very eyes of its guard, has been made here
(in clear and unambiguous terms), so the construction of the above text of
Yaj. does not stand in need of importation of extraneous matters.

Brhaspati (XXII. 24) has thus laid down on the theft of paddy: The stealer
of paddy is to be made to pay ten times the value of the paddy stolen (as
compensation to its owner) and twice that amount as fine (to the king).

Manu (VIII. 320) has also said: Sentence of death is (the proper punish-
ment) for stealing paddy, more than ten kumbhas but payment of fine,
amounting to eleven times its value in stealing paddy less than ten kumbhas
is to be ordered and the booty should also be decreed to be returned to the
owner. |

D. V. adds: According to Ratnakara (p. 320), a kumbha consists of twenty
prasthas but according to the author of the Mit., it is made up of twenty
dronas. Kullika Bhatta has also said that a kumbha consists of twenty
dronas, a drona being equal to two hundred panas (or palas?). The interpre-
tation of the term kumbha by the Gopatha-Brahmana as equal in measure
with a ghrta-drona holds good in cases of such liquid substances as ghrta,
i.e. ghee.

The following anonymous text, containing the definition of various praded .
standards of measure, beginning with amdsaka, which is equal in weight with

PUNISHMENT FOR THEFT OF PADDY ) 113

)
five krgnalas, is being quoted here: A pdia is made up of sixty-four mdsakas
and thirty-two palas make a prastha—this has been said by Atharvan himself.
An adhaka consists of four prasthas and four dghakas make a drona.

The Skandapurana, however, says: A prasrti consists of two palas and two
prasrtis make a kudava. Four kudavas make a prastha, four of which make
an adhaka.”* Four aghakas make a drona. This is the list of measures of
articles.

D. V. adds: (People) use this drona as a full (standard) vessel. The above
text has been quoted in the Caturvarga-cintamani (of Hemadri), prefaced
with the word ‘Skandapurdnam’. After having quoted the above enumera-
tion of the measures, beginning with prasrti and ending with drona, the
Bhavisyapurana says: A kumbha consists of two dronas and sixteen
dronas (or siiryas) make a kharin.

D. V. adds that siirya, read by some as sérpa, is another name for
drona.

After having cited the above measures, beginning with kudava and ending
with drona, the Visnudharmottara has laid down: Sixteen dronas make a
kharin and twenty dronas make a kumbha but in measuring paddy (dhanya),
a kharin consists of ten kumbhas only.

D. V. adds that according to the author of the Maharnava, the mention
of the word dhanya in the above text implies the inclusion of barley and similar
other grains and also liquids (in the above list of requisite measures), on
account of the general description (of such articles) in the above text of the
Skandapurana.

CandeSvard says in the Balabhusana: Kudava, prastha, addha (or adhaka),
drona and kharin are successively four times of the just following one and a
kumbha consists of twenty kharin-s—this is found current in the world
(loke). |

D. V. adds that the word (गट means in Mithila (i.e. modern North Bihar)
and adjoining parts (of the country). So we find that a kumbha measure is
of two kinds, viz. consisting of two dronas and of twenty dronas respectively.
But the Danaviveka has defined it as consisting of a thousand panas (palas?).
So we see that the word kumbha is used as several kinds of measure.

The Varahapurana says: Two palas constitute a prasrti,. while a single
pala makes a musti. Eight mustis make a kufici, eight of which makea puskala.
Four puskalas are collectively known to be an dghaka, four of which make
a drona. This is the list of the measures. A prastha again is known to be a
collection of four serikas.

` १0. V. reads dghakdif, which should be dghakag.
ig

1144 DANDAVIVEKA

7. V. adds: Hemiadri (the author of the Caturvargacintamani) has defined
serika as a kudava and the Kalpataru has also said that a serikdis tantamount
to a kudava and consists of twelve prasrtis.

The Samaya-prakaéa, Ratnakara and Smrtisagara have said that twelve
prasrtis make a serikda, four of which make a prastha. But the Bhipala-
paddhati (a work of the king Bhojadeva?) has expressed the opinion that
the standard length (prasrti) of the hand or leg of a man of standard
height (pramanastha-purusasya) makes - 9 prasrti, twelve of which make a
kudava and a kudava, multiplied successively bysfour, makes a prastha, an
aghaka and a drona respectively and so sixty-four kudavas make a drona.
The author of the Kalpataru also holds the same view.

After having quoted the following two verses viz. “Five krsnalas make a
masa, sixty-four of which make a pala. Thirty-two palas make a prastha—
this is current in (mdgadhesu i.e.) the country of Magadha (i.e. Modern
South Bihar). A dron consists of four a@dhakas.” and “The standards,
current in Magadha, are said to be the best,” some digest-writers have .
interpreted the above standards of measures as current in Magadha only.
This view is incorrect, as according to the import of the above-quoted
remark of the Gopatha-Brahmana. and the consequent universality of
those standards, the word ‘mdgadhesu’ means the only standards ‘current
in the country of Magadha’ (and nothing more). Thus, it is to be borne
in mind that the comparative superiority of the above standards is not
owing to the bigness of the measures but owing to their being based on
Vedic authority. ५ | ४

In the previously quoted text of Manu (VIII. 320) the prescribed sentence
of death may be carried out in three forms, viz. harassment, mutilation of
limbs and death proper. According to Kullika Bhatta the option in the
employment of the three forms is in consideration of the comparative worthi-
ness or otherwise of both the thief and the master (of the paddy). But Nara-
yana has said that the sentence of death, (laid down in the above text of
Manu), (ordinarily) means ‘harassment etc.’ but ‘mutilation of limbs etc.’,
only when the theft has been committed of a Brahmana’s property. The
author of the Mit. has, however,expressed the opinion that the option is to
be exercised after taking into account the comparative worthiness of the thief
-and the owner and the time of the commission of the theft in normal times
or in times of famine. The controversy about the number of kumbhas (for
assessing the relative culpability of the thief) should also be thus resolved. |
-According to the Ratnakara (pp. 320-321), the word Sege in the above text _
means ‘much less than ten kKumbhas’ and the phrase ‘tasya ca tad-dhanam’ im- `
plies that the owner should be compensated for the loss, suffered by the theft

PUNISHMENT FOR THEFT OF PADDY 115

(svamino yad apakrtam™ tad dapya ityarthali). The payment of fine, eleven
times of the value of the paddy stolen and also returning to the owner the
same amount of paddy (or its price), as laid down in the text of Manu
(VIII.320), are to be construed as relating to the first commission of this
offence. But the payment of fine, twice the value of the paddy stolen and
compensating the owner by returning to him ten times of the booty, as
preseribed by Brhaspati (XXII.24), is concerning the repeated commission
of the above theft. So there is no conflict between the two prescriptions,
according to the Ratnakara,(pp. 320-321).

So Manu (VIII. 331) says: (In cases of misappropriating) paddy grains,
(paripiitesu) kept in a brushed condition (in the barn), vegetables, esculent
roots and fruits by an unconnected person (niranvaye), the (pecuniary)
punishment of a hundred (paras) shall be imposed on him but fifty (panas)
only on a connected person (sanvaye).

D. V. adds the following comments: According to the Kalpataru, the
word paripiittesu means ‘having the weeds on them brushed off’ and the
-word niranvaye mplies ‘(left) without guards’. But the Ratnakara (p. 323)
has interpreted the latter word as ‘without any friendly connection (with the
owner), (apparently) authorising such misappropriation.’ The word harane
(i.e. i cases of misappropriation) is to be understood in both the above kinds
of punishments. Narayana also says that when the taking is not done after
stating one’s relationship, such as agnatic, with the owner, it is a niranvaya
one and the opposite is the s@nvaya one. According to the Ratnakara (p.323),
Manu’s prescription of the sentence of death in stealing more than eleven
(ten ?) kumbha$ of paddy and of the payment of fine, amounting to eleven
times of the stolen thing, in doing so regarding less than ten kumbhas, is
concerning the pilfering of paddy, stacked in a house. The present punish-
ment in the form of fine of a hundred (panas) (or of fifty panas) is to be
inflicted if the offence is committed in respect of paddy, spread on the
threshing floor. Kullika Bhatta is also of the same opinion.

The same authority 6.6, Manu VIII. 330) further says: The punishment
for stealing even small quantities of flowers, green paddy, shrubs, creepers
and trees and other cereals, the weeds of which have not yet been cleared
off, shall be five Krsnalas
, 7. V. adds: The phrase ‘harite dhanye’ (i.e. green paddy) means ‘of the
field, being stolen as grass (0.6, fodder for the cattle)’. But Narayana has
explained it as mdgas and other pulses. The word alpegu (i.e. small quanti-
ties) is to be understood as ‘less in weight than the maximum burden for a

१५. V. has misprinted apabrtam as apakrtam.—

1161 | DAWDAVIVEKA

' @

single person’ and the word ‘aparipiitesu’ implies ‘the weeds of which have
not yet been cleared off’. The Krsnalas are to be taken as ‘made of gold’,
according to the explanation of technical terms (paribhdsd), supplied (by us)
in an earlier chapter. But Kullika Bhatta has said that they may be made
either of gold or of silver according to the time and place, (in relation to
which they are mentioned).

Manu (IX. 280) says: Those, who break granaries (kosthdgadram), armour-
ies and temples, and steal 75 elephants, horses and chariots, shall be forth-
with put to death. ०

D. V. adds the following note: The word kosthagadram means, according
to Ratnakara (p. 318) ‘a granary of rice-grains’ but implies, according to
Narayana in his commentary on Manu, ‘a royal palace’. The word avicdrayan
means ‘not making any delay, when that offence has been proved beyond
doubt’ (cf. Ratnakara, Joc. cit.). As the breaking of the walls and digging
into the foundations of granaries etc. are in the nature of digging holes in
others’ premises (sandhi), so persons, convicted of that offence, deserve the
punishment of a hole-digger (sandhi-cchid). Simple (i.e. beginning of) digging
will be dealt with in the miscellaneous portion in the top‘c of the ‘first com- `
mission of crimes’ but the addition of the participial form ‘bhedinah’, which
indicates ‘a habit (of doing so)’ (for the primary suffix ‘nini’ has been tagged
to the root ‘bhid’), necessitates sentence of death on the culprit for his repeated
commission of the above offence of breaking (granaries etc.) for purposes
of checking his bad habit beforehand. We may alternatively interpret the
above-mentioned crime of breaking (bhedanam) as theft, pure and simple, as
the text is included in Manu in his topic on theft. The Kamadhenu, the
Kalpataru and other digest-writers have also included the above verse in
their respective chapters on theft. Thefts of ornaments and other valuables
are also possible in temples like those of Jagannatha (in Puri, Orissa).

The same authority (i.e. Manu, VIII. 325) further repeats a text, already
cited him above (on p. 131, D.V.): In the breaking of the burden (sthiiri-
kayasca bhedane), after having stolen cows, belonging to Brahmanas (brah-
. mana-samsthdsu) and in the theft of other beasts, (the offender) should

be immediately made to suffer the cutting off of the half portions of his
two legs. .

D. V. adds: The word brdhmana-samsthadsu means ‘bradhmana-sambandhi-
nisu’, i.e. belonging to Brahmanas, and the word hArtdsu (i.e. being stolen)
should be supplied here according to the context. The term sthiirikd in the
word sthirikdydasca means ‘the burden, borne by bulls, buffaloes and similar

` ` % P, $, has misprinted® hartyr$ ca as °hantrr$ ca.

PUNISHMENT FORK वक्रा OF PADDY 018

ॐ

other beasts on their back’. According "to the dictionary of verbal roots,
the roots, sthila and spbiila mean ‘carrying’, to the former of which the
pleonastic affix of kan has been added, the ending vowel a has been changed
in i on the authority of the grammatical rule ‘sthd?t’ (i.e. the ending vowel
of roots beginning with stha changes into i) and as ra and /a are considered
interchangeable, sthila has been ultimately changed into sth#rikd which
is commonly known as goni. So the phrase sthirikdydsca bhedane, means,
‘by breaking that (i.e. sthiirikd or goni), i.e. for the purpose of stealing
paddy from it.’ ®

The interpretation of the above phrase by Kullika viz. ‘for piercing the
nose of a barren cow for the purpose of making her fit for carrying burdens”
—is not acceptable, as it lacks both familiarity wits the present reading’®
and knowledge of the things involved in the above text. Piercing the nose
(of a cow) is not a thing so involved and is, moreover, irrelevant to the
context. If we accept the above interpretation of Kullika, then the explana-
tion of Narayana to the following effect becomes faulty: ‘In the breaking
of the burden of the sphirika (which is synonymous with sthurika), meaning
the burden (on the back) of the carrying bull.’

Thus, the following interpretation of the Ratnakara (p. 318) is also to
be dispensed with: A sphurikd is a ‘barren cow’ and bhedanam means
‘piercing into the nose’.

The same authority (i.e. Manu VIII. 243) lays down: The punishment,
to be imposed on the owner of a field, who is also the tiller of its soil, for his
lapses (atyaye), should be ten times of the quantity, which is the (king’s)
share (as revenue). But if that offence has been committed by the hired men
of the owner of the field and without the knowledge of the latter, the punish-
ment to be inflicted on those men shall be half of the above (i.e. five times
the revenue)

D. V. adds: According to Ratnakara (p. 320), if the loss of the king’s
share (as revenue) occurs owing to the lapses of the farmer, the latter, who
thereby becomes a stealer of paddy and other’’ crops, is to be fined eléven
(ten?) times thelost revenue. But Halayudha has said: when, due to the atyaya
i.e. faults of the owner of the field, corresponding fault (i.e. less production)
occurs in the crops, the king should fine him ten times his share of those
crops, but when such loss of crops results from the shortcomings of his

. # Manu reads khurikdyd§ea etc. and not sthirikdydéca. See above for a diffetent
reading of the same word and different interpretation of the entire verse
Ratndkara reads dhdnydpahdri ekddasagunarh dandyah sasydpahdri ea but D. V

118 \ | DANDAVIVEKA

6 .
servants and without his knowledge, the servants only shall be fined 14105
of the former amount of fine. .

PUNISHMENT OF THE THIEVES OF MISCELLANEOUS ARTICLES

It has already been said that the term prakirna (i.e. miscellaneous) is applica-
ble to gems etc., outside the bipeds (i.e. human beings) etc., described above.
The miscellaneous articles are of three kinds, beginning with the best

Narada (sahasa VV. 13-16) says on this topic: the wise men have divided
according to their inherent worth?® (dravydpeksam), such (miscellaneous)
articles into three categories, such as the trivial, the middling and the best
regarding which thefts can be committed

The same author has thus enumerated all such articles in due order:
Earthen pots, ordinary seats, cots, wood, leather, grass, Sam! kind of paddy,
boiled rice— these are known as the trivial things. All kinds of wearing
apparel except those, made of silk, all the beasts, excepting the cow, all the
metals (/auham) but gold, paddy and barley—these belong to the middling
group. Gold, jewels, silk, human beings, both male and female, elephants
and horses and the things, belonging to gods, Brahmanas and kings, are
to be considered as belonging to the best class °

D. V. adds notes on some of the words, used in the above text: Sami
kind of paddy, grown out of simbi and similar other stalks, is another name
of the mudga and similar pulses. The word /auha means all metals (and not
only iron). The things, belonging to gods, though sometimes trivial i.e
insignificant, are to considered the best of this lot, according to the author
of the Smrtisara. GraheSvara Miséra is also of the same opinion

Brhaspati (XXIII. 3) also says: Such (miscellaneous) articles are of three
kinds, viz, inferior, middling and superior and the corresponding punish-
ments for stealing them are the first, middie and highest (amercements)
respectively.

D. V. adds that though the fines of the first and other amercements have
been prescribed in this text for stealing the inferior (i.e. the trivial) and other
kinds of things, yet the respective inferiority 6.6. triviality) or superiority
of the things stolen must be taken into consideration to pronounce the proper
amercement, which may be more or less than the prescribed ones for the
theft of the things concerned

The same author (XXIII. 5-8) has thus exemplified the above principle
One, who destroys or misappropriates implements of agriculture, bridges,

: 8 —. $. has misprinted tad ardhena as tad arthen
Dp. ई, wrongly reads sarvdpeksam for dravydpekgam, _

PUNISHMENT FOR THEFT OF MISCELLA NEOUS ARTICLES /119

flowers, esculent roots and fruits, shall: be punished with (the fine of) panas,
beginning from one hundred, according to the circumstances of the particular
cases. A person, who kills or damages beasts, wearing apperel, food and
drink and the requisites of a household, should be punished as a thief with
a fine up to two hundred panas. Male and female persons, gold, jewels, the
wealth, belonging to gods and Brahmanas and silk are the best kind of things
and the punishments for stealing (or kidnapping) them are according
to their prices (and economic values). The king may also order the payment
of double their prices in cpnsideration of (the pecuniary condition of) the
offender (purusdpeksayd) and may even pronounce the verdict of death
on him to stop the recurrence of the crime.

D. V. adds: According to the Ratnakara (p. 349), the punishments,
specified in the expressions, Satadyam (beginning from one hundred) and
dvi§atantam (up to two hundred) are to be appropriately inflicted, according
to the value of the things, destroyed or stolen and also in consideration of the
time and place of the above acts (of destruction or theft) and the (physical)
capacity (of the culprit). The term purusdpeksayd means ‘in consideration of
the pecuniary condition (of the offender)’. So the punishment for (stealing
or destroying) a thing of nominal value is its very price and that for an
article of substantial value is twice its price. But in cases of things or living
beings, where there is no price fixed (or possible to be fixed), death is the
proper punishment for checking the repeated commission of the theft of such
things, according to the Ratnakara.

D. $. continues by remarking: Manu (IX. 280) (quoted and explained
earlier) contains among others the term dyudhdgadra (i.e. a repository of
weapons, i.e. an armoury), where by the insertion of the latter portion
of the term, viz. dgara (i.e. a house or a repository), the former portion, viz
adyudha (i.e. weapons) should be constred as ‘belonging to the king’. The
punishment, prescribed here, seems to be in connection with the repeated
commission of this offence (of breaking an armoury).

The following text of Brhaspati (XXII. 25) also is in relation to the recur-
rence of the offence: Anyone, who takes grass, wood, fruits or flowers
(of another person) without asking him (i.e. securing his permission), deserves
the punishment of the mutilation of his hand

D. V. adds that the option between the payment of fines, amounting to the
actual prices or twice or five times the prices for the above offence of stealing
the most trivial things such as grass etc. and the mutilation of a hand of the
thief is highly inappropriate and must be reconciled as the latter penalty |
being applicable to cases of repetition of the offence only. = |

The following text of Katyayana (V. 822), containing as it does the

12९ D4ANDAVIVEKA

additional clause ‘na karoti yatha unal? [1.6, so that (he) may not repeat (the
-above offence)], manifestly refers to the recurrence of the crime:

“The very limb, by means of which, a thief commits (financial) injury

to others, shall have to be mutilated by the king, so that he may not repeat

the above offence.”’ Thus, even the texts on punishment of offences, contain-
ing no such specific clauses, should be interpreted in the above way, having
regard to the manner of punishment, prescribed therein.

The following text of Yaj. (II. 275) is also to be interpreted likewise:
The punishment for stealing inferior, middling and superior things should

be inflicted according to the comperative worth of the article stolen and in

consideration of the time, place (of the commission of the crime) and age
and capacity (physical and financial) (of the culprit).

In the interpretation of the following text of Narada (Sahasa V. 21) the
Ratnakara (p. 327) itself has said that this analogical application of punish-
ments ( for offences, ranging from high crimes to thefts) is to be made
in relation to inferior, middling and superior articles, when the punishments,

80 inflicted, are not in conflict with other different penalties:

The very punishments, prescribed by the wise men in cases of high crimes
(Sahasegu) of the three kinds, are to be inflicted respectively on the thefts of
the three, kinds of articles. '

The same authority (i.e. Narada) (cf. caura® V. 25) has laid down on the
theft of the superior things among the above three kinds: In cases of stealing
all the articles weighed (tuta-dharimameydnam) or counted (ganimandifica),
which are definitely costlier than the previously mentioned articles (ebhij),
the punishment is the imposition of fines, ten times the valtie of the article
stolen.

D. V. adds: The expression ‘tuld-dharima-meya’ means ‘those articles,
which are sold after weighing them in a balance (tuid@), such as camphor,

rice-grains etc’. The measurement by means of prastha and other measures

comes within the purview of the above-described act of weighing. The.
word ganima implies ‘betel-nuts’ and similar other things, which are generally
sold after counting them by twenties. The word ebhif indicates ‘the previous-

ly described wood, (earthen) pots etc’. The superior character of the things,

referred to here, is proved by their prices being higher than wood, (earthen)
pots and similar other things, specifically mentioned above.
Manu has laid down in the following two texts (VIII. 321-322) the varia-

tions to be made in punishments (to be inflicted on thieves) in accordance
with the superiority or inferiority of the articles stolen: The sentence of

0681090 is to be inflicted on (the stealers of) articles, which are sold after =
* 1, V. reads damah here for vadhak |

PUNISHMENT FOR THEFT हू SUPERIOR THINGS I yi

®
weighing them in scales and balances, such as gold, silver and similar other
precious things, and costly cloths, each of them weighing over one hundred
palas and the punishment of mutilation of the hand only, when each of
such stolen objects weighs over fifty palas. But if the weight of the stolen
thing is less than fifty palas, the imposition of a fine, which is eleven times
the value of the thing itself, is the proper penalty.

D. V. adds a long commentary: (Kullika) has said in his commentary
on Manu, (while interpreting the former of the above two texts), that “‘this
equating®! of the present text with the just preceding one (VIII. 320), begin-
ning with the words viz. dhanyam daSabhah kumbhebhyo [i.e. (death is the
proper penalty for) stealing paddy over ten kumbhas], by the use of the word
tatha™ (i.e. and), is in consideration of the time and place (of the theft),
the stolen article and the caste and qualifications of the owner of that
article.” The word dharimam means ‘weighable in a scale or balance’. But
Narayana Sarvajiia has said that “the word dharimam means a scale or
balance and the things, which are weighed in it and other than gold and silver,
i.e. copper and other baser metals (are referred to here). The word ‘satat’
in the above text means ‘(over:the value of) a hundred niskas, and a niska
is to be taken as consisting of four units of gold, each consisting of sixteen
masas. But the word pafcdasatastvabhyadhike means ‘over the value of’
fifty copper coins’ and the word €#€ means ‘less than (the value of) fifty
(copper coins).” |

Thus the imposition of the fine, ten times the value of the thing stolen, .
is also to be construed in relation to the fesa, (i.e. if the value is less than
fifty copper coins) and the penalty, in relation to objects, worth more than
one hundred units of gold, is the sentence of death (vadha) as laid down
by Manu and Narada (caura@® V. 27) himself has also said (almost in similar
words as Manu) :—

“In the cases of (stealing) gold, silver and other precious metals and
things, good wearing apparel, and all the gems and jewels, more than one
hundred units of gold in value, death (is the proper punishment).” The
Kamadhenu and the Mit. have read vadhah in place of damah in the above
former text of Manu. (The printed edition of Manu has also read likewise).
Narayana has interpreted vadha as meaning ‘seritence of death, if the thing
stolen belongs to a Brahmana and mutilation of limbs only, if it belongs
to a person, other than a Brahinana’. Halayudha has also said that the above

Kulluks reads visamikarapam, instead of samikatanam, read in D. V. and adds
riharanlyam at the end of the sentence, which latter word means ‘is to be avokied.

०» Kulluka omits the phrase (tatheti), containing tathd.

०० Kulluka reads apahartrdravya for apabsta-dravya, read in D. V, `

९.

| 124 | | DANDAVIVEKA

८ ©
number viz. ‘one hundred’ relates to the number of panas and also to that
of the garments (vdsasafica), which are those worn by human beings, both
ordinary and silken. But (Vacaspati) Misra (p. 137 of V.C.) has expressed the
following opinion: The stealer of gold and silver, silken and other ordinary
garments, valued more than a hundred paras, is to be put to death™ and if
the above-specified things are valued more than fifty panas (but less than a
hundred pandas) such a thief should have to lose both his hands (or one
hand only) while the stealer of those articles, worth less than fifty paras in
value, is to pay eleven times the value only ofthe article concerned. But
Govindaraja, (another commentator of Manu,) has interpreted the word
Satat, (occurring in the text of Manu,) as ‘more than one hundred gold (coins)
and accordingly (the above punishment of death) will be inflicted (on the
thief) in case of stealing articles, valued more than one hundred gold
(coins)’. This view is questionable. The jewels (ratndni), spoken of in the
text of Narada, means rubies and similar other gems, on the authority of
the following text of Manu (VIII. 323b): |

“In the case of stealing the most precious gems, the (stealer) deserves the
sentence of death.”

According to Ratnakara (p. 322), in the following text of Sankhalikhita
viz. ‘in case of stealing gold or jewels’, written in the context of an earlier
text, laying down that ‘the punishment is either corporal (Sariro) or consists
of mutilation of limbs (anga-cchedo va)’, the corporal punishment consists
in harassment, the mutilation of limbs is that of the ears only and these
punishments are to be inflicted in cases of theft, involving fifty (palas) only
and poverty (of the thief). The same work (1.6. Ratnakara, loc. cit.) has
again given the interpretation that “it relates to a person, not fit to be put
to death but possessed of sufficient quantity®® of wealth” of the following
text of Visnu (V.8.7), introduced in the context of punishment: “To
the stealer of jewels is to be inflicted the fine of the highest amerce-
ment.88” |

If we take this latter interpretation even in the case of stealing good but
not the most precious kind of jewels, there is no contradiction with the
earlier interpretation, as the punishments, prescribed by Sankha-likhita
are concerning (the theft of) bad quality of jewels

०५ D. V. reads the corresponding text twice (i.e. pala (pana 2) Satadhika-milyasydpaharta
vadhyah).

95 Ratndkara’ reads the sentence as ‘avadhya-dhana-visayam etat’ whiie D. $, reads it
as ‘tan-madhyama-dhana-visayam iti ratnadkarah

6° Ratnakara reads the sentence as‘ ratndpahdry-uttamasaGhasam but D. V. reads it as
‘“sdhasah’) | -

PUNISHMENT FOR THEFT ORMIDDLING THINGS ==. 123
&

So the final conclusions are the following:

(1) In cases of stealing copper and other baser metals, valued more than
one hundred panas and belonging to a Brahmana or to the king, the
punishment of the thief is either death or mutilation of limbs. —

(2) Similar punishment viz. death or mutilation of limbs, for, stealing
(any quantity of) gold

(3) In case of stealing the principal jewels, punishment of death and-in
that of pilfering the inferior jewels, mutilation of limbs

(4) In case of stealing copper and such other baser metals, valued more
than®’ fifty (but less than one hundred) paras, mutilation of limbs
(irrespective of the caste or status of the offended party) but if the
value of such stolen metals is less than fifty pdnas, the payment of
fine only, equal to eleven times its actual price.

(5) In cases of stealing the aforesaid metals valued twenty-five panas only
or things like camphor, only ten times the actual price of those articles
are (to be realised from the offender) as fines.

Sankha-likhita have thus laid down the following punishment in cases of
stealing middling things: The imposition of a fine of one hundred and eight
(panag) (is to be made) in cases of stealing implements of agriculture (slta-
dravyam) in proper time (yathakdlam)

D. V. adds that the word sit@ means ‘land under cultivation’ and sita-
dravyam implies ‘the plough-share, axe (or shovel) etc. The word yathakalam
indicates ‘in times of cultivation’. So if such offence is committed in other
times, some extgnuation of the above punishment is to be made.

Manu (cf. [X. 293)85 also says: In cases of stealing weapons, medicinal
drugs and implements of agriculture such as the plough-share and the waters
(needed for irrigation), the king should inflict (appropriate) punishments.

D. V. adds: ‘Of the weapons’ (Ssastrandm) means ‘of daggers and
such other violent weapons’, ‘of medicinal drugs’. (ausadhasya) implies ‘of
soothing plasters’ (kalyadna-ghrtadeh) and ‘karsyam phalam’ means. ‘the
ploughshare,. used in Kysi (i.e. agricultural operations)’. So if in the season
of cultivation the plough-share and other implements are.stolen, resulting
in the non-production of a sufficient quantity of crops due to absence. of
(adequate) cultivation, then the punishment will be aggravated, otherwise
it will be somewhat less than that. Halayudha is of opinion that the same
reasoning (i.e. non-availability,"resulting in the defeat of the country by an
enemy country) is to be applied to the stealing of the (king’s) weapons. .The

87 D. V. reads °panddikesu for °panddhikesgu
88 Manu reads the third and fourth feet differently. D. V. uneecessarily and meaninglessly

thrusts mdso between kdrgyaphdlo and dakandiica

१2 DANDAVIVEKA

restitution of the thing stolen is to be insisted upon in all the above cases,
as emphasized earlier. — |

D. V., after having quoted again Manu (VIII. 330 and 331) along with
comments on the word niranvaye by the Ratnakara (p. 323) and the Kalpa-
taru, adds the following comments on some other words of those texts:

According to (Vacaspati) Misra, (V.C. p. 138), the word puspam means `
‘kusumadi**¢ 1.¢e, flowers and similar other things (connected with a tree).
The word naga means ‘a tree’ here and according to Halayudha, the word
niranvaye means ‘left without any guard.’ The Word harane (i.e. in the case
of stealing) is to be supplied after both the words (viz. niranvaye and sanvaye).
As fruits and esculent roots have been included by us and also by Ratnakara
(p. 323), in a following text of Vyasa in the next topic of the stealing of trivial
things, and vegetables also, both in view of their trividlity and inclusion in
the latter (VIII. 331) of the above texts of Manu, naturally fall within that
category, the Ratnakara having Included them in section of middling
things, but their theft has been made punishable a bit severely by this text
(of Manu), so to resolve this contradiction it appears advisable to restrict
the meaning of the of the ‘vegetables, fruits and esculent roots’, spoken of
in Manu’s text as ‘those, belonging to the king or to Brahmanas, or meant for
the worship of gods or for the performance of sacrifices or difficult to be
procured (in that particular time or place)’. But Narayana has explained
the phrase ‘vegetables, esculent roots and fruits’ (sakamiila-phalegu) as
‘costly ones, providing a person with his daily food by their sale.’

Sankha-likhita haveJaid down: Forty panas are to be imposed as fine on
the stealer of a single wheel of a chariot and one hundred eighty on. that
of a wooden bed.

ON THE TOPIC OF STEALING TRIVIAL THINGS

Vyasa has laid down: The stealer of the middling type of trivial things
(madhya-hina-dravya-hdr!) and of flowers, fruits and esculent roots shall
have to pay (as fine) twice the value of the things sotlen or five krsnalas.

7. V. adds: The madhya-hina-dravya-s include boiled rice and similar
other things and the term krgnala is to be understood as a coin of the weight
of three barley grains, which will have to be made of gold, according to the
paribhasa (section on technical terms), given above.

Gautama (II. 3.15) says: Other authorities (anye) have laid down the
punishment by the imposition of a fine of five krsnalas in the taking (i.e.
stealing) of fruits and green vegetables.

०० But V. ©, reads kusumbhddqu,

PUNISHMENT FOR THEFT(OF TRIVIAL THINGS hy25

&

D.V. adds: These two later additional quotations, regarding fruits and vege-
tables, have been made (byus) and these do not thereby offer any contradiction
(to our previous quotations on the same). Owing to the insertion of the word
anye (i.e. other authorities), an option may be said to have been implied
(between the purports of the previous and present citations). It seems that
the option may be exercised in consideration of the first or the repeated
commission (of the above offence) and the presence or absence of mutual
affection between the parties 0.6. the owner of the articles and the appropria-
tor), authorising such takthg (without the former’s permission).

Manu (VIII. 326-9 and 333) has laid down: The stealers of the following
articles are to pay the fines, amounting to twice their respective values:

Thread, cotton, the basic seeds of alcohol, cow-dung, raw sugar, curds,
milk, whey, drinking beverage, grass, reeds, pots, made of those reeds,
salt, earthen pots, earth, ashes, fish and birds, oil and clarified butter, meat
and honey and any other thing, gathered from animals and all other similar
articles, such as various kinds of liquor and eatables and boiled rice. But
the king should punish with (tam Satam) a fine of one hundred (copper
coins) the person, who steals other things belonging to the last items (i.e.
eatables and boiled rice), spread out for being served to persons and also
that person, who steals the fire from a house.

D. $. adds: The pot, made of reeds (vainava bhanda), is a receptable of
water, made of thick reeds. But Narayana Sarvajfia, having read vaidala
for vainava and connected bhandas (i.e. pots) with both venu (reeds) and
vidala, has eyplained vaidala bhandas as ‘pots, made of wood, cut into small
pieces.’ The phrase anyat pasusambhavam (i.e. any other thing, gathered
from animals) means ‘hide, teeth and similar other things.’ But Narayana
has explained the phrase as. rocand (i.e. a kind of yellow pigment) etc.
Anyesam evam ddinam [i.e. other things, belonging to the last item (of
eatables)} means ‘i.e. cakes, prepared and spread on the dining plates’.
The phrase tam Satam has been read both by Kullika and Narayana
Sarvajiia as tam dadyam (i.e. the punishment of the first on him) and
explained as ‘the punishment of the first amercement’. According to the
Ratnakara (p. 324), the fire, (spoken of in the last portion of the above
group of verses,) is ‘ordinary domestic fire’, on the authority of the
following text viz. ‘An ordinary fire is to be meant in a visaya’, which
last word is to be explained as samSaya [i.e. (in cases of) doubt].
Govindaraja has also said that the above punishment applies to a person,
who steals even the ordinary domestic fire. But Kullika says that this is
unjust and that the king should impose the fine of the first amercement
only on the person, who steals from another person’s fire-house the किम

126 | व

or the grhya fire, in consideration® of 1176 . 16 of the ‘placing of fire
[(agnya-) dhana], ‘being performed by the owner of the fire. Narayana
is also of the same opinion

Visnu (V. 83-84) also says: The pilferer of the following things is to be
fined by twice (dvi-gunam) the value of the article involved

Threads, cotton, cow-dung, curds, milk, whey, raw sugar, grass, salt,
earth, ashes, fish and birds, oil and clarified butter, meat and honey, small
pieces of wood, made into a pot, reeds, earthen and iron-made vessels
and boiled rice

D. V. adds that Halayudha has read tri-gunam (i.e. thrice) instead of
dvi-gunam (i.e. twice).

Sankha-likhita 8१८०2150 said: In cases of (stealing) manufactured wood
(i.e. wooden things) and pots, made of stone, earth (produced by potters),
leather, cane and of vidala (i.e. small pieces of wood, joined together), the
fine is five times or three times of the kdrgdpanas, fixed respectively as
prices of the articles.

Narada (caura® VV.22-24) has laid down: In cases of stealing wooden pots,
grass and similar other things, earth-made vessels, reeds and pots, made
of reeds, nerves, bones and hides (of animals), vegetables, ardra (ginger),
radishes, fruits and esculent roots, cow’s milk, sugarcane-juice, salt, oil,
boiled rice, rice prepared to be served, wines and eatables (odanasya ca)
and all other things of very insignificant values, the punishment (in the
form of fines) shall be five times the prices of the respective articles.

D. V. adds: The Kamadhenu has read amigsasya (i.e. of fish and flesh
of animals) for odanasya. But the Mit., having read ausadhasya (i.e. of
medicine) for the latter word, has remarked that odana (i.e. eatables) has
already been included in the above text within pakvdnna (i.e. boiled rice).
So it appears that the fines of twice the valees of honey and similar other
things, as prescribed by Manu and those of five times the values of cow’s
milk and similar other things, as laid down by Narada, aré to be reconciled
by apportioning them to small or very small quantities of curds etc.

Manu (VIII. 319) further says: He, who steals the rope (rajjum) or the
water-pot (ghafam) from a well or breaks the well itself, shall not only be
compelled to pay the fine of a mdsa but also be forced to restore (samaharet)
the stolen articles (tac-ca)

D. V. adds: Kullika Bhatta has interpreted. the word kipat 0.6. from a
well) as ‘kiipa-samipat’ (i.e. from the vicinity of a well) and has further
‘said that the words, “गप ghafam’ mean ‘either the rope or the

५०. Kulluka reads ddhdnapeksayd (i.e. in consideration of the rite of ddhdna) but D. V
teads ddhdnopaksayam (1.6, 1088 of ddhdna), which is meaningless here, a

PUNISHMENT FOR THEFR OF TRIVIAL THINGS 197

water-pots’? Ratnakara (p. 326) is of opinion that the theft, referred to
here, is concerning a single piece of rope and one water-pot only. But the
Kamadhenu has read the two words ‘rajjurm’ and ‘ghafam, placed one after
another in the beginning of the above text, as a single word viz. ‘vajra-
ghatam’, on the reasoning of the word tat (meaning that), which is in the `
singular number with ca (meaning and), having been used at the end of
the text. The nibandha Halayudha is also of the same opinion. But the
Parijata, though reading almost similarly the above text of Manu, (quoted
by us), has suggested a sa@mdhdara-dvanda compound in the word rajju-
ghatam (as read by him for ‘rajjurm ghatam). The word samdharet in the
above text means, according to D.V., tyajet (i.e. leave there).

-Sankha-likhita have laid down: A non-Brahmara, accused either of
stealing the following things, belonging to a Brahmana, forcibly or of taking
them unknowingly, shall be awarded be punishment of the mutilation of his
hand (or hands):

Sacrificial wood, sacrificial ghee, sacrificial fire, ordinary wood, grass,
stones, flowers, fruits, esculent roots and similar other things. But if a
Brahmana openly steals the kuSa grass, the water-carrying vessel and the
requisites of an agnihotra sacrifice, he shall have to suffer mutilation of
limb but if he is ascertained by circumstances to have done the above sin
(of theft) (Kilvisi), he shall be made to mount on an ass but members
of other castes, doing so, shall have their heads shaved and sprinkled with
urine, over and above the punishment of mounting on an ass.

D. V. 2004; The ‘Brahmana’, mentioned (in the beginning of the text),
means ‘one, engaged in the performance of sacrifices and similar holy actions’
(cf. Ratnakara, p. 327). The ‘sacrificial wood’ etc., spoken of, implies ‘those,
which have been procured (by the Brahmana) to perform the sacrifices’.
The ‘requisites of an agnihotra gacrifice’ are ‘those, which are to be offered
to fire for the performance of homa’. The word kilvisi means ‘a thief’, accord-
ing to the context. ‘Of other castes’ means ‘of Ksatriyas and other inferior
castes’. (cf. Ratnakara, pp. 327-8).

On the topic of theft Gautama (II. 3.43) says: No corporal punishment
is to be inflicted on a Brahmana. So as an answer to the question, what
will the proper punishment be for a (guilty) Brahmana, the same authority
(II. 3.44-45) has laid down: Causing cessation of his usual holy duties, pro-
clamation of his guilt, banishment and imprinting his person (with charac-
teristic marks) and performance of penances, if he fails to eke out his living
by any other means (than stealing) (avrttau).

0. V. adds: ‘Launching into new religious duty’ is meant by the first
of the above penal measures, viz. ‘causing cessation of his usual holy

128 DAY प AVIVERA

duties’. But Halayudha has said that the penal measure is ‘avoidance of
‘other men’s contact with him and similar other physical actions’.‘Procla-
mation’ consists in the publicization of his thievish character by beat of
drums, after having made him mount on an ass. ‘Banishment’ is ‘turning
him out of his own country’. Imprinting on his person’ should be made
‘on his forehead and other exposed parts of his body of the marks of a
thief’. The Ratnakara (p. 328) has said that the above-mentioned punish-
ments are concerning the Brahmana, not engaged in (holy) sacrifices®*®
(i.e. not a pious Brahmana) and are thus not in conflict with the previously
quoted text of Sankha-likhita. The same authority (i.e. Ratnakara, p. 328)
has also quoted the following different opinion of Laksmidhara: This
latter author has read in the above-quoted text of Sankhalikhita ‘Brahmano
bradhmanasya’ instead of ‘Abrahmano bradhmanasya’ and has accordingly
given his opinion in the following words

If a Brahmana steals sacrifical wood etc., belonging to another Brahmana
then only the stealer Brahmana shall have his hand (or hands) mutilated
but a Brahmana, doing so in respect of a non-Brahmana, shall not have
to undergo any kind of corporal punishment. This is the real interpretation
of the above text (of Saikhalikhita).

‘But the Kamadhenu has, however, read the above text with the negative `
particle a, added to the first word, i.e. Brihmana. The word avrttau means
‘in case he fails to earn his livelihood by any means other than stealing.’

Apastamba (LI. 28.10-12) has laid down: If a person, who is not learned,
appropriates the sacrificial wood, (sacrificial) water, esculent roots, fruits
flowers and incense, a morsel of food and vegetables, belonging to others,
he is to be admonished (vaca bddhyo) but a learned man, doing so, shall be
punished by the taking away of his wearing apparel only, even if he has done
so intentionally (kamakrte) and if even he, has appropriated the eatables
(included in the above list), when his life was in danger (due to starvation).

. 0. V. adds the following note on the above text: The phrase vdcd bddhyo
means ‘should be admonished’, as Manu’s dictum (VIII. 341), previously cited
by us on pp. 40 and 41 exempts a travelling Brihmana (or a member of
the three upper castes) only from punishment in cases of his taking two
radishes and a handful of peas on the deplection of his resources and esculent
roots and morsels of food of the present list are other than those, exampted by
Manu or emphasize the owner’s implied prohibition to take these things

‘The word kamakrte means kdmakrie spi 6.6, even if done intentionally)

The import of the present text of Apastamba is the same as that of the text of

*D. V. reads that Ratnakara has.read edn! aydgddipara-bradhmana-visaydal but
Ratnikara reads etn ca yigddipara-brdhmape. |

PUNISHMENT FOR THEFT rr TRIVIAL THINGS 129

Manu (XI. 16), beginning with the words tathaiva saptame bhakte (i.e. at
the time of the person’s partaking of his seventh meal, i.e. of the first meal
after his previous three-days’ starvation), already cited by us in the sub-
chapter on ‘exemptions from punishments’ (p. 41). Though the present
Apastamba text has not been quoted by Ratniakara, yet we have put it down
here from its quotation by the Kamadhenu and Halayudha’s digest. It also
appears that the import of the just cited (last portion of the) text of
Gautama, beginning with the word avrtiau (in the absence of means of
livelihood), is identical witl? that of the present Apastamba text. Moreover,
the fact of the insertion by Manu of the text (VIII. 341), containing the
number ‘two’ (in the phrases viz. dvavik si dve ca miilake), in the topic of the
theft of trivial articles, may also be taken as intending the same thing.

The following view is, therefore, wrong: As the usual means of livelihood
(vrtti) (of a Brahmana) is officiating in other persons’ sacrifices and follow-
ing similar other avocations, positively prescribed for him, the word avrttau
(in the above text of Gautama) means ‘when a Brahmana is not able to
make both ends meet (by following those means of livelihood), he may
then even take recourse to stealing’, for the following three reasons, viz (1)
the above interpretation suffers from cumbrousness, (2) it is in direct
conflict with the injunction, prohibiting thefts generally and (3) it also
militates against the texts, prescribing specific punishments for specific thefts.
Thus, even according to the interpretation of Ratnakara (p. 328), the word
jivana (occurring in the following clause of that interpretation viz. anyena
prakarena jivaganupapattau) means “(sustenance of) life at that particular
period’, which view corroborates the above text of Apastamba and does
never indicate ‘means of livelihood (jivika) only’, as is evident from the
blemishes of this latter interpretation, enumerated above.

In continuation of punishments, Visnu (V. 88) says: The pecuniary punish-
ment (i.e. fine) for stealing an article, not specified (in texts), is equal to the
price of the article concerned.

D. V. adds: As this text has been quoted in the Ratnakara (p. 326) and
in the Kamadhenu in the topic of the theft of trivial things, where two times
or five times of the actual prices of the articles stolen have been prescribed
as punishments, as are justifiable, so it seems that this text relates to the stealth
of things, more trivial (than those, specifically mentioned in the other texts)
or it may be construed as “concerning unauthorised thefts, (committed by
the thieves) out of their affectionate relationship (with the owners of the
things so stolen).”’

Here ends the third chapter, viz. on theft, of the Dandaviveka, composed by
Mahdmahopadhyaya Sri Vardhamana, the dharmadhikaranika (i.e. judge).

17 | ts |

CHAPTER IV

PUNISHMENT FOR MOLESTATION
OF OTHER MEN’S WIVES (paradarabhimar sana)

The word paradara (of the above compound word) means ‘any woman,
other than one’s own wife’, who is of two kinds, viz. married and unmarried.
Of these two, the married type also may be of Various kinds, viz. chaste and
unchaste, belonging to superior and inferior castes, relation and stranger,
kept in seclusion and not so kept, wife of impotent and similar other per-
sons and any other woman. The unmarried type again admits of a three-fold
division, viz. unmarried daughter (of any person), an outcaste woman and a
prostitute. That these divisions of several kinds of women, like the employment
of force, fraud, mutual love and similar other factors, effect the application
of different kinds of punishment has been shown by us in the first chapter,
while dealing with technical terms. The molestation (abhimarsana) of these
several kinds of women is also of two kinds, viz. kidnapping (them) (sangra-
hana) and (performance of) sexual intercourse (with them). This sangra-
hana is nothing but samicinam grahanam (i.e. taking intimately), which
consists in forging intimacy with another man’s wife.

Brhaspati (XXIV. I) has thus subdivided this sangrahana: Rudeness
(i.e. parusya) has been spoken of as consisting of two kinds, sdhasa (a rash
act or high crime) contains two characteristics and sangrahqpa (kidnapping
of women) which originates from vice, is to be known as of three varieties.

The same author (XXIV. 2a) has then described those varieties in the
following words: Two varieties are those, which are effected by force and
fraud respectively and the third variety hag its origin in mutual love.

D. V. adds that these three varieties are also to be found in the perfor-
mance of sexual intercourse (with another man’s wife), which is also preceded
by the above three conditions.

The same authority (XXIV. 2b) again makes a different division of the
above three kinds of kidnapping in the following manner. That offence
(of sangrahana or kidnapping another man’s wife etc.) is also said to be of
three classes, viz. the first, the middle and the highest.

He (XXIV. 3-5) then thus describes these three classes: Baldtkara (or
forcible abduction) is what is committed with a woman, who is either un-—
willing, or 18.11 a sleeping, drunken or mad condition or talking incoherently
within herself. Updadhi-krta (or fraudulent abduction) is what is accomplished
either by bringing a woman to one’s own house by deceitful means or by

PUNISHMENT FOR MOLESTATION OF OTHER MEN'S WIVES 4
offering her wine or other ॥ em Anurdga-ja (or abduction
of a woman, consequent to the mutual love of the parties) is what is effected
either by mutual love, generated by exchange of glances, or after having
sent a female intermediary or out of greed either for the personal beauty
(of the woman) or for the money (belonging to her).

The Matsyapurana says: A man or a woman, who seduces a woman
(saficarakah) or who assigns her a secret place (for her meeting
with her paramour) (avakdSadah), is to be punished as the person, who
indulges in committing gexual intercourse with another man’s wife
(paradarikah).

D. V. adds: Halayudha has interpreted the word safcdraka as ‘one
conducts a male or a female to a place, fit for his og her (secret) meeting
with the concubine or paramour, for that specific purpose.’

Manu (IX. 225, Ist and 4th feet only) has laid down: (The king) should
forthwith banish from the city (or the territory) the gamblers, the cheats,
the seducers of other men and other men’s wives (Kerdn).

D. V. adds: According to Ratnakara (p. 313), the word kerah (in keran)
means ‘those, who make secret signs to and thus seduce other men and other
men’s wives’. Halayudha is also of the same opinion. The division into the
first etc., referred to above, has been described in detail by Vyasa and other
authorities but we have not quoted all those descriptions for fear of swelling
the bulk of this treatise but are going to include here some hints of the
same for the purpose of applying punishments (on those several types of
seducers).

Brhaspati (XXIV. 6b and c) thus says on this topic: Sidelong glances,
smile, sending a female emissary and touching the ornaments and garments
(of a woman) constitute the first kind of samgraha (i.e. sarhgrahana, or
seduction).

D. V. adds that the forbearahce of a male person, touched by another
man’s wife, is also to be taken into consideration here like the former’s
own touching (the woman), on the authority of the following text of Manu
(VIII. 358): The acts of (a man’s) touching a woman in a prohibited part of
her body and tolerating the touch, made by her (on the man), are known
to be samgrahana, approved of by both of them.

Vyasa says: The middle kind of sdhasa (here samgrahana) consists in
sending perfumery and garlands, betelnuts, ornaments and clothes (to a
woman) and in enticing her with food and drink.

Brhaspati (XXIV. 8) further says: Persons, adept in the sacred lore,
have characterised the following actions as constituting the highest
samgrahana;

132 | DANDAVIVEKA

Sitting together (with a woman) on the same seat and sleeping (with her)
on the same bed, sporting together, kissing and embracing (her).

D. V. adds that similar other acts are to be understood or looked for
in original works.

Brhaspati (XXIV. 11) has thus laid down the following punishments (for
the above three classes of offences): The fines of the first, middle and highest
amercements should be respectively imposed on the above three classes
(of criminals) but higher amounts of fines are to be levied from richer offen-
ders

Apastamba (II. 26.18-19) has laid down: A well-dressed young man,
who approaches another man’s wife without any evil motive, should be
admonished only but if he does so intentionally (i.e. with an evil motive),
he is to be punished.

But Manu (VIII. 360-361) says: Beggars, ballad-singers (vandinah),
persons, who have just got themselves initiated into holy sacrifices (diksitah)
and (paid) artisans (karavah) may converse with house-wives unrestricted.
But one, prohibited from talking with other men’s wives, should never do so
and if found doing so, shall be fined a gold coin.

D. V. adds: According to Ratnakara (p. 385), the word vandinah means
“ballad-singers (in praise of some person)’, the word dik sitah implies ‘pefsons,
just initiated into holy sacrifices’ and the word kdravah indicates ‘paid arti-
sans.’ But the commentary on Manu (by Kullika) explains the last term as
‘cooks and similar other persons.’

Yaj. (II. 285) has prescribed the following special rule regarding the
punishment to be inflicted on a guilty woman, in this connecfion:

In case of positive prohibition (by her male relations, sueh as husband,
son etc.) the woman found (guilty of conversing with an unconnected man)
shall be fined a hundred (copper coins) and the man, so involved, two hundred
(copper coins). These punishments, according to the respective castes of the
parties, of both the man and the woman, are to be meted out to them in
cases of prohibition just like those of seduction (including actual sexual inter-
course) when they do so together.

D. V. adds that it seems that (punishments, prescribed in) the previously
quoted texts of Manu are concerning the repeated commission of the offence
of seduction or relating to richer offenders, while the present text of शद.
has laid down the punishments in cases of the first commission or of
poorer offenders.

Katyayana has, however, laid down the following exception to the above
general rules (laid down by Manu and Y4j.)

“Those, who are adept (in the determination of the criminality of such

PUNISHMENT FOR MOLESTATION OF OTHER MEN’S WIVES | 433

men and women) have stamped as मौत seduction’ the connection of an
(unconnected) male person with a married female in her (husband’s) home
(paragrhe) but not so, when the woman herself has come to that man’s
house.” “So grahana (i.e. sarngrahana or seduction) may be committed by
any other means, due to evil motive but never in the case of the woman
herself coming to the house of the man, who is not to be considered
guilty.”

D. V. adds: The word paragrhe means ‘the man having gone to the
woman’s house’, where the man is to be considered guilty but if the
woman comes to the man’s house of her own accord, the man is to held
absolutely not guilty. The latter text has been read in the Kalpataru in the
topic of samgrahana (i.e. seduction) but has been introduced in the Ratnakara
(p. 385) in the topic in continuation of abhigama (i.e. sexual intereourse),
having prefaced it with the name of Katyayana.*!

Narada (cf. stripumsa® V. 61) and Katyayana® have said: A person,
approaching the (somewhat) free and consenting (secchan)** wives of
persons, who have abandoned their husbands because of their very bad
character™ and of the impotent and similar other powerless persons, shall
not be held guilty of any high crime (sdhasa).

Id. V. remarks : The Kalpataru has added the following explanatory note
to the above text : A male person, willingly approaching the wicked wife of
aman, who has forsaken her for her wickedness and also the wives of
impotent and other powerless persons, shall not be held guilty.

Manu (VIII. 362) has laid down: This general rule (laid down in the just
preceding vérse of the same author, quoted above) does not apply to the
wives® of the actors and similar other clases of persons, living upon the
income of their dependents (including wives), as these men connect their
own wives with other men and secretly employ them in sexual inter-
course with them

D. V. adds the following note: The word dtmopajivinah (i.e. persons,
living upon the income of their dependents) means “those, who live upon
the presentation of themselves, attired in dresses’ (veSopajivinah) and employ
and exploit their wives as their substitutes on the authority of the maxim

9 But Ratnadkara has prefaced this quotation with the name of Vispu.

9? The following quotation has also been prefaced by the above work (p. 385) as of
Visnu.

9 D. V. reads secchdn but Ratnakara (Joe. cit) reads svecchan.

०५ 7), $, reads pradusfa° but Ratnakara (loe. cit.) reads it as adusfa, which is meaning-
less here

96 D. V. wrongly reads cdranadogesu for cdranaddregu, correctly read in Manu and
Ratnakara (p. 386)

134% DANDAVIVEKA

‘A wife and a son are one’s own selve$’.” But Narayana has explained the
above word as ‘relating to prostitutes’ (who live upon the prostitution of
their own bodies). There is no prohibition of and consequent punishment
for conversing with them. If anybody carries on conversation with such
women in seclusion, then a nominal punishment will be imposed on him,
as laid down by Manu (VIII. 363):

A person, holding conversation with maid-servants, women, kept as
permanent concubines of single persons and wandering nuns (pravrajitdsu)
will have to pay a nominal fine (kificit eva tu)°°4 (as punishment):

D. V. adds: The word pravrajitdsu means ‘women of the Buddhist and
other heretic folds, practising vows.*® The word kificit has been explained
by Narayana as ‘according to (the offender’s) capacity’ but according to
Ratnakara (p. 387), it means “ ‘less in value than a gold coin’, as shown by
Manu himself.”’ So it is apparent that the punishment to be inflicted in such
cases of conversation with actors’ wives and similar other women should
necessarily be less than that, fit to be prescribed for the offence of enticing
them, as the former offence relates to conversation only and the latter to
enticement, and Brhaspati has generally laid down the punishment, amounting
to the first amercement, for the latter class of offences. This punishment should
necessarily be inflicted in a more lenient form, when the offence (of entice-
ment) is committed in respect of wives of actors and similar other classes
of persons, as the fine of a gold coin, as prescribed by Manu (VIII. 361),
is rather too exorbitant and consideration must also be had of the prevalence
of the practice of enticing women among very rich men.

Sankhalikhita have said: The duties (dharma), incumbent oh everybody,
are attachment to his own wife only and performance of his own work.
The very limb of the body, with which a person commits an offence, is to be
cut off or he should be fined one thousand and eight (panas). These punish-
ments are to be meted out on offenders, other than a Brahmana, who is
unpunishable

D. V. adds: According to the Ratnakara क. 387), “by the limb’ (angena)
means “by means of hands and other limbs’ and this punishment of mutilation
of limbs is applicable to all offenders excepting Brahmanas, as the phrase
anyatraivam brahmanat (meaning ‘excepting Brahmanas’) is to be construed
with sarvesam (i.e. of all persons). This prescription is to be followed (in

85a D. V. omits ‘tu’.

PD. V. reads bauddhadi-vrata-carinisu, while both Ratnakara (p. 387 in the body of
the text) and Kulluka read bauddhmdi-brahma-cdrinisu and bauddhdadi-brahma-cdrintbhi§ ca
respectively, though Ratndkara records in the corresponding footnote on the same page
8 variant, viz. vrata

PUNISHMENT FOR पनः ओ OF OTHER MEN’S WIVES 135
6

cases of molesting other men’s wives) even though there is a complete
absence of wickedness of motive (i.e. the evil act has unintentionally
been committed) on the corroborating authority of the text of Ndarada,
viz. ‘also conversing with another man’s wife’ and is rather a more lenient
form of punishment than the sentence of death, as it amounts to mutilation
of a limb only of the offender.

Manu (VIII. 352-3) says: The king should imprint with tormenting punish-
ments the bodies of those (fan)®’, engaged in molesting other men’s
wives and then banish thém out of the territory. Miscegenation among the
people’ arises out of that offence, resulting in the rise of injustice,®® cutting
at the roots (of civilised society) and conducing to wholesale destruction.

D. V. adds that (Vacaspati) Misra (V.C. p. 171), having read the phrase
(pravrttams)-tan as (pravyttdmhs)-trin, explained it as the three (lower) castes
other than Brahmanas.

The same author (i.e. Manu, VIII. 359) further says: A non-Brahmana,
convicted of enticement (of a woman), deserves the punishment?! of death,
as wives of all the four varnas!®! are known to 0610914 the things, fittest for
preservation.

D. V. adds a long note on the above three texts of Manu: ‘Imprinting with
(tormenting) punishments’ means “doing so by cutting off the nose, lips and
similar other (minor) parts of the body’, according to Kullika Bhatta in
his commentary on Manu. But Narayana (another commentator of Manu)
has explained the above phrase as ‘(by mutilating) the private parts (of the
offending mg@le person)’. According to Ratnakara (p. 387), the underlying
principle (of punishments in these cases) is imprinting with the specific
figures of what are justified in the individual cases in the several types of
death-sentence and the word abradhamana (i.e. non-Brahmana) should be
understood as ‘a member of a caste, other than that of a Brahmana, (doing so)
in relation to a member of a highercaste’. Thus it is apparent that though the
above two statements (laid down in the three texts of Manu) really belong
to the topic of (prohibited) sexual intercourse (with other men’s wives)
owing to the occurrence of the word svaddra-niyama (i.e. attachment to one’s

9 But both Manu and Ratnakara (p, 387) read nrrn for tan.

98 ED. V. misreads no kasya for lokasya.

9० T). V. misreads (milaharo) dharma for (millaharo) S dhatma.

100 Both Manu and Ratnakara (p. 387) read dandam but D. V. reads vadham, which
amounts to tautology here, as it is preceded by the word prdandntam (i.e. extinction

of life).
101 9). V. reads ‘caitaigdm’ (i.e. of these) for varndndm. read by Manu and Ratnikara

(p. 387).
1016 Both D. V. and Ratnakara (p. 387) read smrtadh but Manu reads sadd (meaning

“always’).

136 =+
: ©

own wife only) (in the previously quoted text of Sankhalikhita) and also due
to the insertion of the phrase para-darabhimarse tu (i.e. but in the cases of
molestation of other men’s wives) (in the beginning of the first text of Manu),
laying down in general terms (the punishment in such cases) and the subse-
quent addition (in the beginning of the second text) of the cause (of the inflic-
tion of such punishment) viz. tat-samuttho hi (i.e. arising out of that offence),
thus clearly indicating by both these phrases and by the interpretation of
(Narayana) Sarvajiia, laying down a drastic punishment, and consequently
enticement of and performance of sexual intercourse with other men’s
wives and not simply holding conversation with them are implied, yet, owing
to the dictum of Apastamba viz. the cutting off of the male organ
with the testicles (Purvasannipate Sisnasya chedanam Ssa-vrsanasya) (is
the appropriate punishment of such offenders) and also due to the fact
that the word avga (i.e. limb) may also mean the male organ also, the repeti-
tion of the word yena (i.c. with which) (in the phrase viz. yena yena angena,
occurring in the text of Sankhalikhita) becomes thereby useless and contradic-
tory to the explanation of the word afgena (i.e. with the limb) as hastddincti
(i.e. with the hand and similar other limbs), offered by Ratnakara (p. 387).
Moreover, the word samgrahana (i.e. enticement) has been actually ysed
in the last text (of Manu) and the prescription of the infliction of a heavy
punishment has been made just after that word. As the concluding words
viz. ‘wives are the fittest things, worthy of preservation’ (dard raksyatamah)
have been added simply to stop the repetition of the offence and as both
the above statements,(of Manu, expressed in three texts) have een cited in
all the previous digests in the topic of samegraha (1.e. enticement of women),
so it is absolutely certain that the above texts relate to that very offence.
But as the various punishments, viz. mutilation of hands and similar other
limbs, infliction of the fine of one thousand and eight (panas), exile and
sentence of death, being mutually dissimilar, cannot be reconciled only
` in consideration of the higher caste of the enticed woman (than that of the
enticing man), the following simplified rules are laid down here:

(1) A Brahmana, committing a serious enticement and also repeatedly,
should be banished after having imprinted characteristic marks on his person
but in all other cases, should have to pay the fine of one thousand and
eight (panas) only.

(2) A non-Brahmana, accused of doing so in relation to a woman of a
higher caste or not so and also repeatedly, should be put to death. In
all other cases, a rich non-Brahmana should be fined one thousand
and eight (panas), while a poor such should have his hand (or hands)
mutilated

` PUNISHMENT FOR PROHIBITED INTERCOURSE “137

Kullika Bhafta has interpreted the am a-bradhmana (i.e. non-Brahmana)
as a Sidra, by reason of the prescription of a heavy punishment. The
Kalpataru has suggested the supply of the word Brahmanyah (of the wife of
a Brahmana) after the phrase viz. abrahmanah samgrahane in the last of the
above texts of Manu.

PUNISHMENT FOR PROHIBITED SEXUAL AND CARNAL
INTERCOURSE (WITH WOMEN AND MEN)

Prohibited sexual and carnal intercourses constitute two kinds of
such connection and also on the authority of the prohibition, laid
down in the Visnupurana, in the following phrase viz. in the sex-organs of
women, other than one’s own wife and in organs othey than sexual.

Manu (VIII. 373) says on this topic: For cohabiting with an outcaste
(Vratyaya saha) or a Candala woman for a full year ‘samvatsardbhisastasya’,
the punishment of the criminal shall be double of that, which has been laid
down in such cases of solitary connection.

D. V. adds: According to Ratuakara (p. 393) the principle, underlying
the above (enhanced) punishment, is consideration of the time involved
(1 year). But the Kalpataru has explained the above in the following manner:

Phat wicked person (dusfasya), who has already acquired the infamy of
having cohabited with another man’s wife for a year (samvatsarabhisastasya),
shall be punished with double the penalty, laid down in such year-long
cohabitation (with another man’s wife), when he again commits that offence.
The word dustasya implies “not merely stigmatised with such infamy but
also habituafly a guilty person.”

(Kullika) in his commentary on Manu, however, says: If a person, already
convicted of and punished for the offence of cohabiting with another man’s
wife, repeats that offence with that very woman after the lapse of a year
only, he is then to be awarded ह punishment, double (in amount or severity)
of the previous punishment

According to Ratnakara (p. 393), 8 vratya woman 15 one, who has deviated
from the path of morals and religious practices, as Harité has defined the
term vrdtyd as ‘a woman, not performing the usual duties and not following.
the religious practices

Lakgmidhara [the author of the (Krtya-) Kalpataru] has also said that a
vrdtya woman is ‘one of very evil conduct and includes women, making
their living out of slaying and capturing (animals?)’. But Halayudha has.
explained the term ‘as an unmarried girl, who has passed the normal age
of marriage’. Narayana has also expressed the same view in his commentary |
on Manu. But Kulldka Bhatta has explained it as ‘one, born in the’ vratya

‘easte’ and. added the following remarks
>: oe

138 . DANDAVIVEKA

` प्र a person, accused of and a ns punished!®? for cohabiting
with either a vrdtya woman or a Candala woman, repeats those offences
after the lapse of a year only, then the punishment, prescribed by Manu in
the text (VIII.385b) viz. “(A fine of) a thousand (panas) (is to be inflicted
on a person, cohabiting with) a woman of the untouchable class”, should
be doubled and Manu has here offered two examples only of such cohabita-
tion simply to extend the application of the punishment for approaching a
Candala woman on a person, convicted of doing so in respect of a vratya
woman also

But Narayana has given a completely different interpretation (of the above
text of Manu): The punishment to be inflicted on an offender, who has
already been penalised for cohabiting with another man’s wife and
who commits a similar offence once only in respect of a menstruating
girl, not yet got married, even though she has attained her marriageable
age, should be double of what is usually awarded to similar offenders and
not otherwise

But the import of the Kalpataru is to the following effect: If a person,
who is inherently wicked and has already been punished for illegally enjoying
‘another man’s wife for a year, cohabits once only either with a Vrdtya ora
Candala woman, he is to get double the punishment, already inflicted upon
him for a year-long cohabitation with another man’s wife.

Manu (VILII.379) further says: The shaving of the head only of the
Brahmana, (accused of the above offence), is the substitute for sentence of
death, which should, however, be carried out literally for offenders, belonging
to other castes ५.

The Matsyapurana also says: The man, who forcibly (balat) pollutes
another man’s wife (by ravishing her), is to be sentenced to death (vadha-
dando), while that another man’s wife is not at all to be held guilty. But one,
taking (samgrhnan) ‘a deccased man’s poor (adravyam) wife, also incurs no
crime, while if that widow is possessed of means to feed herself (क्क), `
the man, taking her, deserves forfeiture of his entire property (sannam
parigrhanastu sarvasvam dandam arhati).

D. V. adds: The Kamadhenu has read the last line of the above quotation
(of four lines) as‘ sa-drarmyam tarh grhdnastu dandam uttamam arhati’, which
means ‘in case of taking such a widow possessed of riches, (as one’s wife),
_ the man is liable to be fined the highest amercement (or punished with the
` infliction of the highest penalty, 1.6. with death). The sentence of death
` (vadha-dandah) is simply illustrative and means the punishments, appropriate

19 TD. V. reads adanditasya here for danditasya, which very word, though not found
in the above-quoted comment of Kulliika, is the correct one here according to the context,

PUNISHMENT FOR PROHIBITED INTERCOURSE 139
9

for specific cases. It, therefore, appears that the taking of a willing, poor
widow is applicable to cases of such act, done by a Sidra and similar other
lower caste men, as is evident from the use of the word samgrhnan, to be -
sharply differentiated from another word baldt, used just before and meaning
‘by taking recourse to fraudulent practices’. The import of the adjective
adravyam (i.e. having no wherewithal to maintain herself) is that a man,
taking her with the allurement of providing her with food, raiment and
similar other necessaries of life, is not to be held guilty.

Vyasa says: The punishment for abducting a woman, living concealed
(under the custody of her husband or other male relations), should be as
prescribed (in books on law) but half of that punishment is to be inflicted
on the man, who cohabits with another man’s wife, come to him of her own
accord. 1

D. V. adds that according to Ratnakara (p. 392), ‘the word Yathoktah
(i.e. as prescribed) means ‘fine of the highest amercement’ and similar other
appropriate punishments, according to it (i.e. D. V.) and that according
to the same authority (loc cit.), ‘half of the prescribed punishment is to
be inflicted on those persons only, who cohabit with (the willing) wives of
other persons other than those of the impotent and similar other physically
incapacitated men, cohabitation with whom is considered innocent’.

Brhaspati (XXIV.16-17) has said: If a woman, coming to a man’s house
and alluring him by touches, courts him, she is to be punished (with the
proper penalty) and the man involved should be awarded half the penalty.
The punishMent in such cases is to have the nose, lips and ears of the offen-
ders cut off, to make them roam about (the city) and to drown them into
water or to offer them as food to dogs in a place, filled with many men.

D. V. adds that it naturally follows from the above text that a man, who
cohabits with another man’s Wife after alluring her, gets the full punishment
and that the penalty of mutilation of the nose etc., (which is the only punish-
ment for this class of women) isan alternative higher punishment for
such men. (Cf. Ratnakara p. 398 for the similar original Sanskrit paragraph,
conveying the above sense, though rather expressed in the same clumsy
_manner, which has been simplified by us).

Katyayana says on this topic: (Defaulting) women urider coverture!™
are not to be arrested(and punished by the King) but their husbands, who

103 DZD, V. reads gacchantydm for icchantyém, which has been correctly read by Ratnakara
0. 392)

¬. 7, V. toads वन्न (न na+4-asvantatrdh) and extpidins asvatantrdh a4 sdsvamikdh,
i.e. ‘with their husbands living’, while Ratndkara (p.. 339) reads na satantrah but. explains
the latter word similarly, the negative particle being construed by.both with the verb,

140 ia daha baa

are the real offenders (when the former go wrong) should punish them and
the king should take them to the latter (for punishment).

D. V. adds that according to Ratnakara (p. 399) the punishment on
erring married women (with their husbands living) should be inflicted on them
(by the king) through their husbands.?™

The same authority (V. 489) further says: Ifa married wife, whose husband
has gone abroad, is arrested by king’s men for her setting out for her para-
mour’s house, she is to be kept confined in a prison only till the return of
her husband

The general principles of punishment in cases of illicit sexual intercourse
have thus been explained

The special punishments for performing sexual intercourse WITH OTHER MEN’S
WIVES by the practice of force, fraud and other condemned methods have thus
been laid down by Brhaspati: (XXIV.13-15): He, who ravishes (a woman
i.e. another man’s wife) by force (sahasa), should have his entire property
forfeited (by the king), who should also cut off his penis and testicles and
make him circumambulate (the city or the locality) on the back of an ass.
But he, who does so by taking recourse to fraud, should be punished in various
ways such as by imprinting his person with figures of the female private
parts and banishing him from the city (or the territory). If the above offence
has been committed upon a woman of the same caste (as that of the offender),
the latter should get the punishment of the highest amercement. In cases
of commission of the offence in respect of women of lower and higher
castes (than that of the criminal), the latter will be awarded half (ardhikah)
of the above punishment and sentence of death respectively

D. V. adds: In the first part of the above texts, the commission of the
above offence by taking recourse to force or fraud also includes within itself
the additional fact of the unwillingness of che ravished woman. The list
of punishments for a fraudulent ravisher also includes the forfeiture of his
entire property. In the last part, the infliction of the punishments of the
highest and half of the highest amercements on the ravishers of women of
equal or inferior castes will be made in cases, not involving force or fraud
but by the sending of emissaries to those women. Half of the punishment
(Grdhikah) means the middle amercement. In the cases in connection with
superior caste women, involving both force or fraud and the sending of
intermediaries, sentence of death will be the proper punishment. This is the
opinion of Ratnakara (p. 388). In view of the above opinion, it follows that
the punishments for ravishing women of the same as and lower than the

28. D. V. has the wrong reading svdmitve tair eva for :svdmidvdraiva, read both in (p. 399 -
of Ratnakara) and in D, V, ag 4 variant, |

PUNISHMENT FOR SPECIAL INTERCOURSE BY FORCE, FRAUD ETC, 141
न

caste of the offender shall be higher than the highest amercement and equal
to it respectively, when such offences have been committed with force or fraud
and the penalty for an inferior caste man, doing so upon a superior caste
woman on the above conditions, is death, after having inflicted tormenting
injuries on the body of the criminal, in view of the more heinous character
of the offence or on the authority of the following text, quoted in the Kama-
dhenu and other digests as of Manu (VIII.372 a) in the topic of arrogantly
outraging a woman’s modesty: (The king) should burn (to death) the
sinner (i.e. offender), after having made him lie down upon heated iron.

Yaj. says: In cases of such (outraging of the modesty of) higher caste
women, the (offending) man should be put to death and the (consenting)
woman, so outraged, should have her ears and other organs (adi) cut off.

D. V. adds: The author of the Mit. is of opinion that the addition of the
word ddi to karna (i.e. ears) implies ‘mutilation of the nose etc.’ but accord-
ing to Ratnakara (p. 389) the word means ‘hairs’. The Kamadhenu has read
the compound word as Karndvakartanam (= Karna-+-avakartanam). The
view of Ratnakara (loc. cit.) that the sentence of death, laid down in the
above-quoted text of Brhaspati, also applies to the (outraged) women with
' the additional punishment of mutilation of her ears and similar other
organs or parts of the body, is to be construed, it seems, with those cases
only, where a woman of a higher caste gives her express consent to perform
sexual intercourse with her to a man of a caste, lower than hers and not in
other cases, where no such offence is known to exist.

THE special qpunishments FOR COMMITTING SEXUAL INTERCOURSE (WITH
OTHER MEN’S WIVES), IN CONSIDERATION OF THE secluded or un-secluded
conditions OF THE WIVES THEMSLVES AND THEIR belonging to higher or lower
castes THAN THE CULPRITS INVOLVED, WILL NOW BE LAID DOWN.
~ Ya. (11.286a) lays down: If @uch prohibited sexual intercourse is per-
formed by a man) with a woman of his own caste, (he) will be fined the highest
amercement (uttamo dandah) but .if with a woman, belonging to a caste,
ower than his, the middle amercement.

D. V. adds: This prescription applies to members of all the castes and
relates to cases of forcible commission (i.e. rape) with secluded women.
The author of the Mit. has interpreted the word uttamah as uttama-sahasa,
which is equal to the payment of one thousand and eighty panas as fine.
The interpretation is justified by reason of the interpretability of that
punishment by the fine of that number (of panas).

Manu-(VII.378A and 382-3) lays down: A Brahmana, forcibly cohabiting
with (i.c. committing. rape upon) a secluded Brahmaga woman, shall be -
fined one thousand (papas), which will be reduced by half if he cohabits `

142 ˆ ` DANDAVIVEKA

with a willing woman (i.e. if it is a case of adultery). The punishments for
a Vaisya, committing forcible cohabitation with a similar Ksatriya woman
and for a Ksatriya, doing so with a (similar) Vaigya woman, will be the same
as that for committing the same offence with an un-secluded Brahmana
woman (Yo brahmanyam aguptayam). But if a Brahmana outrages the
modesty of secluded Ksatriya or Vaisya women, he shall be fined a thousand
(pands) and the same punishment (sahasro)* will be inflicted on Ksatriyas
and VaiSyas, committing the same offence in, respect of a secluded Sidra
woman. |

D. V. adds the following comments: Narayana has said that the phrase
‘Yo brahmanyadm aguptayam’ indicates that the punishments to be inflicted
in such cases on a Vaisya and a Ksatriya will be five hundred and one thou-
sand (panas) respectively. But Ratnakara (p. 392 ) has explained it as meaning
‘the middle amercement’.. The view of the author of the Mit. is the same as
that of Narayana, cited above (sahasrapana‘®’--paficasatpanadtmakam).

So the same author, after having explained a half-text (of Yaj. II.286a
cited above), beginning with the word sajatau (or svajatau), has quoted the first
and third verses of the present text of Manu (consisting of three verses) as
special prescriptions of the latter authority regarding the above offence,
committed on unsecluded women of the same caste (as that of the offender)
or on secluded women of lower castes in due order and he has cited
the middle verse (of Manu), after having prefaced it with the words tad aha
(1.6, so the same authority has laid down), to prescribe the punishments
of a thousand and five hundred panastobe inflicted on Ksatriyas and Vaisyas
(respectively) in their cohabitation of the wives of those two castes in mutual
fashion.

Thus it appears that there is an avagraha (i.e. S) between the words dandyo
and guptam, which will collectively become dandyo S guptam (to be
more consistent), in view of the fact that the Brahmana, forcibly ravishing
a Brihmana woman, who has been kept secluded, shall be fined one thousand
eighty (panas), as Yaj. (11.286a, quoted above) has prescribed the punishment |
of the highest amercement upon him (and the Mit., also quoted above, has
explained it as ‘one thousand and eighty (panas))’, while similar offence,
committed in respect of an unsecluded Brihmaha woman, is one thousand
panas only. The residual portion of the first of the verses (of Manu) means
that in cases not involving force (of the offender) (but consent of the woman
concerned), the fine of five hundred panas will be the proper punishment.

Thus the prescription of both Ksatriya and Vaisya offenders’ punishment
is to be. construed with the just following part of the above sentence (of the

५०५. 0. $, misreads sdhasro as sdhaso
1? 9, $, misreads the first portion of this compound word as sahasrapaparh

PUNISHMENT FOR SPECIAL INTERCOURSE BY FORCE, FRAUD ETC, 143

` second verse and beginning with the® words viz. Yo brahmanyam), as that
construction will do away with the invidious'®* discrimination (made by
the Mit.) between a Vaisya and a Ksatriya, committing cohabitation with
each other’s woman, the cohabitations being thus of the pratiloma and anu-
loma*® varieties respectively. |

Though Kullika Bhatta has explained that in cases of cohabiting with
an unsecluded Brahmana wife, a VaiSya and a Ksatriya are to be awarded
the punishment of fines of five hundred and a thousand (panas) reespectively,
the punishments being justified in their cases, yet those punishments are
not just the same, prescribed by Ratnakara(p.392) which are somewhat contra-
dictory (with those, laid down by Kullika) and the interpretation of the Mit.
of the word tat-samam, (occurring in the above middle text of Manu,) that
` it prescribes the equal amounts of the punishment to "be paid as fines for
cohabiting with an unsecluded Brahmana wifehas alsothe only differenceofthe
first text (of Manu) being applicable to a Brahmana offender and the middle
text jointly to a Ksatriya and a Vaisya ones. But the above somewhat different
views (of Ratnakara and the Mit.) do not materially affect the final conclu-
sions. If it is argued that extenuation and aggravation of punishment are
justified in cohabiting with lower caste and higher caste females and conse-
quently the above three different interpretations (of Narayana, Ratnakara
and Kullika) are contradictory to one another, Kullika Bhatta himself
has thus clarified the point: The above punishment is to be understood as
relating to a meritorious Vaisya, cohabiting with a non-meritorious Ksgatriya
woman, being a Ksatriya by caste only, the offence having been committed
by mistaking leer as a Sadra woman and hence the lesser punishment (is to
be inflicted upon him).

The phrase gupte tu te (in the last text of Manu) means ‘such secluded
Ksatriya and Vaisya women (taken together)’ and rak sitdyam (i.e. secluded)
is-to be supplied after Siidrdyadme(in the above text). The punishments for
cohabiting with all classes of secluded women are to be intensified in cases
of doing so with women of highly secluded character on the authority of the
following text of the Matsya-purana: The punishments for (ravishing) highly
secluded women shall be higher than those for doing so in relation to secluded

women.
- The same authority (VII.375-7) further says in continuation of the clause

108 D, V. reads naiydyikam here, which should more fittingly be read as a-naiydyikam.
and an avagraha be placed between” strigamane and naiydyikam
299 Pratiloma (connection) means ‘that between a lower caste male and a highest caste

female, and anudoma (connection) means juat the opposite

144 bDANDAVIVEKA

dvaijatam varnam avasan™, [i.e. cohabiting with the wife of a member of
the twice-born caste (dvijati)], occurring in VIII.374: A Vaisya:(convicted
of the above offence) shouldbe put into imprisonment for the period of one
year and then should have his entire property forfeited (by the king), while
a Ksatriya offender should be fined a thousand (panas) and should have
his head besmeared with urine (?mittrena)™ A Vaisya and a Ksatriya, out-
raging the modesty of an un-secluded Brahmana woman, should only be
fined five hundred and one thousand (panas) only but members of the above
two castes (ubhavapi tu taveva) convicted of the same offence in relation
to a secluded Brahmana woman, should be punished like a Stdra offender,
committing the above offence or burnt (to death) with fire, made of grass.
D. V. adds the following comments: The words dvaijatam varnam, though
apparently applicable to the three twice-born castes, here refer to Brahmana
women only, as a special statement (in a later text of Manu VIII.382) has
already been cited by us. The word mitrena, according to (पापि explana-
tion in his commentary on Manu, means ‘with the urine of an ass’. The
same commentator has further said that the punishment, prescribed in Manu
(VILI.376) above in respect of a Vaisya offender, convicted of cohabiting
with an un-secluded Brahmana woman, relates to a non-meritorious Brah-
mana woman, leading her life as a Brahmana’s wife only, ravished by the
Vaigya under the mistaken notion that she is a Sidra woman. Thus the
leniency of the punishment, prescribed here, is easy to understand. (Nara-
yana) Sarvajha has justified the higher punishment of one thousand (panas)
on a Kgatriya offender on account of his inherent duty of protection of the
people. But another authority has restricted the punishment of the offenders,
belonging to the above two castes (and possessed of five hundred and one
thousand copper coins only) to the payment of five hundred and one
thousand (panas) respectively: The punishments of the offenders of the
above two castes (ubhau) for cohabiting with a secluded Brahmana’s wife
have been laid down (by Manu) like that, inflicted on a Sadra offender,
convicted of the above offence, and are forfeiture. of the entire property and
mutilation of all the limbs or burning (to death) with fire, generated by grass,
on the authority of the following text of Vasistha: (The king) should envelop
the bodies of the Sidra, Vaisya and Kgatriya offenders with ordinary grass
(viranaih) red grass and thorny leaves (Sarapatraif) and have them burnt(to
death). The commentary on Manu (by Kullika) adds that the above punish-

110 ©, V. has misread it as dvisan but not only Manu (VIII.374) but also D. V. on p. 172,
while quoting the whole text, have read it as dvasan

i111 TD, V. reads it as Sudrasya in the body of the text but not only offers the variant
mitreva but also includes and explains the latter reading in the accompanying eomment.

PUNISHMENTS FOR SPECIAL INTERCOURSE BY FORCE, FRAUD ETC. 145

ments for the offenders of the above two castes (viz. Vaisyas and Ksatriyas)
are to be inflicted for their cohabitation with meritorious Brahmana wives
only. So this opinion does away with the apparent conflict with the forfeiture
of property and fine of one thousand panas respectively, prescribed above.
Narayana (another commentator of Manu) has also said that the above
two sorts of punishments are to be inflicted in consideration of the outrage
having been committed on non-meritorious and meritorious Brahmana
Wives.

The same authority (i.e. Manu VIII.384) further lays down: For, the
offence of cohabiting with an unsecluded woman, a Vaisya shall be
punished simply with a fine of five hundred panas but a Ksgatriya should
either have his head besmeared with urine 0" be awarded! the above
fine.

D. V. further adds in his comments on the above text that Laksmidhara
the author of the (Krtya-) Kalpataru] has read maundyam eva instead of
dandam eva, which former phrase means ‘(only) shaving the head (and not
besmearing it with urine afterwards)’.

The same authority (i.e. Manu VIII.385) further says: A Brahmana,
cohabiting with an unsecluded Ksatriya, Vaisya or Sidra woman(sidram va),
should be only fined five hundred (panas), which should be enhanced to one
thousand (panas), if the offence is committed in respect of the wife of a
member of an untouchable caste.

D. V. adds that Narayana (a commentator of Manu) has qualified the
word Sidram in the above text by the phrase guptam aguptam vd (i.e. secluded
or unsecluded}, and that according to it (i.e. D. V.) the Sidra woman, spoken
of here, means ‘an inferior type of Sidra woman’ on the authority of the
text of Brhaspati viz. hindyam ardhikal' (Cf. D. V., p. 165 above) and
thus implies ‘a Sidra woman, previously enjoyed by other men’, as banish-
ment of the offender has been laid down as the punishment for outraging
the modesty of a Sidra woman, not so previously enjoyed. (Cf. Ratnakara,
p. 393).

So Apastamba (11.27.8) says: An Arya, (if married to or outraging the
modesty of ) a Sidra woman, is to be done, away with (ndsyah).

D. $. adds that the word dryah means a Brahmana or a member of any
other superior caste, and the word ndgsyah means ‘is to be banished’. (Cf.

५४३ ED. V. reads ca (i.e. and) but both Manu and Ratndkara (p.395) (/oc.cit.) read vd
(i.e. or). But D. V. in its explanatory comments on this text adds yad va (i.e. or rather)
between the two kinds of punishment.

118 DP), $. reads rcchet tu for icchet tu, read bath by Manu and Ratnakara (/oc-cit) (p.395).
116 DP. V. reads drdhikah in the text of Brhaspati, quoted by it on p. 165-.above but reads

ardhikak here.
19

146 | DANDAVIVEKA

Ratnakara, 1०८ . cit). The Sidra woes, referred to here, is one such, not
previously enjoyed by others and married by a Brahmana. The author of
the Kalpataru has consequently interpreted the word ‘hindyaém’ (in the text of
Brhaspati) as ‘in a virgin or unpolluted Sidra woman’. (Cf. Ratnakara, Joc.
cit.). Somebody has, however, interpreted the above word, occurring in the
above text of Brhaspati, as meaning ‘a woman of a caste, inferior to a
Sidra’, which is wrong, as it is conflicting with the punishments prescribed
above and also because the fine of the middle (highest?) amercement is lighter
than banishment. ५

Manu (VIII.374) again says: A Sidra, cohabiting with a woman of the
Avijati (i.e. twice-born caste or castes) of the unsecluded type, should lose
(as punishment) one*of his limbs and his entire property and with such a
‘woman of the secluded type, should lose all his limbs (i.e. shall be put to
death) and forfeit his entire property (agupte Sngaika-sarvasvair gupte sarvena
hiyate). |

D. V. adds: The Ratnakara (p. 395) and other authorities have read the
second line of the above text as ‘aguptaikdnga-sarvasvi’ (the very reading,
recorded by Ratnakara) or ‘aguptdngaika-sarvasvair’, both the readings
somehow making out the meaning of that portion of the above text, as done
by us from our reading of the same. But the reading, adopted (by Kulfaka)
in his commentary on Manu, is ‘aguptam angasarvasvair guptam sarvena
(hiyate) , (which reading also means the same thing and is found in the printed
Manusmrti and correspondingly explained in the accompanying commentary
of Kullika on the abeve text.) But the Kalpataru has read this line as ‘agup-
tam angasarvasvi guptam sarvena hiyate’ and explained it as follows :

(For cohabiting with) an unsecluded woman (of the dvijdti class or classes),
the offender is made devoid of his offending limb and his entire wealth but
loses only all his limbs (i.e. is put to death) if the offence has been committed
in respect of a secluded woman.

So in this view no punishment of forfeiture of the entire property is
inflicted on the outrager of a secluded woman (of the above class or classes).

Gautama (II.3.2-3) has laid down the following dictum in continuation
of the punishment for a Sidra (committing the above offence): (The punish-
ments of a Sidra) for ravishing the (unsecluded) wife of an Arya are mutila-
tion of his genital organ and forfeiture of his entire property, while the penalty
for committing the same in respect of a secluded wife (of an Arya) includes
sentence of death.

D. V. adds the following comments: The phrase Arya-stri means ‘the
wife of any member of the three (higher) castes’. By reason of this prescrip-
tion (of Gautama) the one limb, spoken of in the previously quoted text

PUNISHMENTS FOR SPECIAL INTERCOURSE BY FORCE, FRAUD ETC. 147
| ®
(of Manu), means ‘the genital organ, i.e. the penis’ and the mutilation of all

the limbs of the offender is ‘nothing but the sentence of death’, owing to the
implied similarity of both the prescriptions. So, after having said that Manu
has prescribed the above-described punishments, the author of the Mit.
has quoted the above-cited text of Manu. The interpretation by somebody,
amounting to the cutting off of any one limb of the person, convicted!®
for violating the chastity of an unsecluded woman, is, therefore, to be
rejected. |

Apastamba (II.27.9-10)* says: If a Sidra, after having (married or)
approached an Arya wife, cohabits with her, he is to be put to death. His
wife also should be punished.

Harita also says: The king shall tie up the violafor, (belonging to an
inferior caste) of the bed of (i.e. of the chastity of the wife of) a superior
(caste) man and offer his body as food to dogs and shall burn (to death)
with fuel the (violated) woman also.

Gautama (III.5.14-16) also lays down: The king should, moreover, have
the woman, approaching (of her own accord) a man of a caste, lower than
her own, devoured by dogs and/or should publicly put to death the man
involved or inflict upon him the (alternative) punishments laid down.

D. V. adds: The phrase hina-varna-gamane (in case of her approaching
a man of a lower caste) implies the woman’s, carnal desire. According to
Ratnakara (p. 396), the words ‘yathoktam (va) mean ‘or make the man also
be devoured by dogs’ but according to the Parijata ‘or cut off his penis and
forfeit his enfjre property’.

(Yama)"® lays down the following prescriptions in continuation of his
previous statement (recorded here just afterwards), beginning with the clause
viz. vrsalam sevate (ya tu) Brahmani, (i.e. the Brahmana woman, who cohabits
with a Sidra): The king ahould put to death the Sidra (so involved) on a
heated bed, made of iron and burn the sinner (alive) with wood, leaves!’
and grass. The king should cause the Brahmana woman, cohabiting with a
Sidra, out of vanity due to her pride, to be devoured by dogs in a place,
inhabited by persons, carrying out the order of the execution of criminals,
sentenced to death: |

D. ४. adds: The persons, referred to in the concluding portion of the
above text, means ‘Candalas’, So it is evident (from the above two texts
of Yama) that owing to the mention of the word prakdsam (i.e. publicly)
in connection with putting the male person to death in the above-cited text

118 D. $, reads vaddhasya, which literally means ‘arrested’.
116 DP, V. omits the word Yama at the beginning of the following first verse.
17 Ratnakara (0, 395) reads parnaih instead of patraih, both meaning ‘leaves’,

148 DANDAVIVEKA

of Gautama, the punishment of the female person in the form of her body
being devoured by dogs (is also to be carried out in public) and the idea of
the infliction of that punishment on her secretly is erroneous and should,
therefore, be rejected.

The same authority (i.e. Yama) further says: When a Brahmana’s wife
cohabits with either a Vaisya 0115 a Ksatriya, she is to have her head shaved
and she is to be made to roam about (the locality) on the back of an ass.

D. V. adds: The prescriptions, made here by ¶# 26131108, viz. shaving the head
of the offending Brahmana woman, already made naked, making her swallow
clarified butter, mount on an ass and roam through the public thorough-
fares, are in the form of penances (and not punishments), owing to the conclu-
ding sentence, appended to that prescriptive statement, viz. pita bhavati
[i.e. (she) thereby becomes purified (of her sin)]. (Cf. Ratnakara p. 396).

So the above last text (of Yama), as read in the Kalpataru with the ending
clause viz. Sidram agnau prasyet [i.e. (the king) throw (the defaulting Brah-
mana woman) into fire for (cohabiting with) a Sidra] and the text of Brhas-
pati, beginning with the clause viz. anicchantt ca ya bhuktd {i.e. the unwilling
woman, ravished (by somebody)] (Cf. Ratnakara p. 399) have either been
overlooked or not quoted here

Manu (VIII.371-2) says: The woman, who, having been slighted by her
husband’s relations out of envy for her personal beauty (or, out of the
vanity for her personal beauty and relations of her father’s family) (jAdti-stri-
guna-darpita) trangresses her husband, should be made by the king to be
devoured by dogs in a place, peopled by many persons. (The excutioners)
should also burn (to death) the sinning paramour of the woman in a bed,
made of heated iron or he may be burnt (to death) with the remaining fuel,
(used for burning the woman to death earlier) and should supply!® just
enough fuel, needed to complete the burging.

D. V. adds: According to Ratnakara (p. 398), the word Janghayet (i.e.
transgresses) means ‘goes over to another man, leaving her husband’ and
the compound word jfati-stri-guna-darpita means ‘having been slighted
by the relations of her husband’s family"! out of envy for her womanly
beauty’. But (Kullika) Bhatta in his commentary on Manu has read the
above compound word as sirl-jAdti-guna-darpita and explained it as ‘(a

118 —D. V. va for vdpi, which has been rendered necessary here for metrical reasons
and correctly read as such in Ratnakara (p. 397).

11° —D; V., though giving the correct reading dadhyusca (i.e. should supply) as a variant
in the footnote, misreads it as dadyusgca in the body of the text.

1% Ratnakara (p. 398) reads tucchikrtd (i.e. having slighted) but D. V. misreads it as

diptikrta.
4%. Ratnakara (loc. cit.) reads jfdtibhik but D. V. misreads it as jfatiti,

PUNISHMENTS FOR LOWCASTE AND UNTOUCHABLE INTERCOURSE 149

। ।
woman, who transgresses her husband) out of pride for her wealthy father
and other relations of his family and also for her personal beauty’. But
Narayana, though reading the above compound word as we have done,
interprets it to mean just as Kullika has done.

The phrase samsthdne bahu-samsthite (i.e. in a place, peopled by many
persons) means ‘in a public lawn and similar other places.’

Visnu (V.18) also says in continuation of his previous statement, contain-
ing the word hanydt (i.e. should put to death): The wife, not yet enjoyed
by her husband (asakta-bhértrkadm) and approaching another man (by trans-
gressing her husband).

D. V. adds that according to Ratnakara (p. 399), the above text is to be
construed with hanyat [i.e. (the king) should put (to death such a wife)] and
that a different reading with a (palatal) Sa is also seen in the above word!2?
asakta°

PUN ISHMENTS FOR COHABITING WITH LOWCASTE AND
UNTOUCHABLE WOMEN

The text of Manu (VIII.385), concluding with the phrase sahasrantvantyaja-
striyam, has already been cited above. Ratnakara (p. 393) has interpreted
the word antyaja-striyam as ‘the wife of a washerman and similar other
classes of men’, (Vacaspati) Misra has explained it as ‘the wives of washer-
men, leather-workers and similar other men’ and the author of the Mit. as
‘the wife of a Candala’. Kullika Bhatta also, having derived the component
word antyajg as ‘ante bhavo antyo’ (i.e. sprung out of the lowest class
of men), has explained it as ‘a Cdndala and similar other persons, below
the status of whom no other inferior class of Sidras exists’ and so according
to him, the whole word antyaja-striyam means ‘the wife of a Candala etc.’
The punishment by death for cehabiting with such women, prescribed (in
various texts), is applicable to criminals of castes other than Brahmanas.

Yaj. (11.294) lays down: (The king) should order banishment (of the
offender), convicted of cohabiting with an antyd (i.e an untouchable woman),
after having imprinted the figure'®* of a headless person and a Sidra (convic-
ted of the above offence) should also be similarly stigmatised with figures
and sentence of death shall be prescribed for an untouchable person, if he
cohabits with an arya woman.

12But Ratndkara (p. 399) reads and explains the word as avasakta° and also adds the
variant avasaktain thefootnote, which also contains two other variants such as anupayukta®
and anupabhukta’. |

"ग्ण. 8 reads tvankam kabandhena and also contains the better reading tvdrikya (tvahkya 7)
as a variant. Ratnadkara (p. 394) reads tvarika-kabandhena,

150 DANDAVIVEKA

D. V. adds the following long commentary: According to Ratnakara (p.
_ 394), the first line of the above text means ‘(The king) should have the body of
the criminal, belonging to the three upper castes, imprinted with the headless
figure of a male person and banish him from the territory (for cohabiting with
an untouchable woman).’ The Kalpataru is also of the same opinion. But the
author of the Mit. has expressed the opinion that (banishment should be
ordered) ‘after having disfigured the body of the offender with the ugly figure
of the female organ etc.’ This opinion is also correct as it is according to equi-
table principles. The Kamadhenu and Kalpataru' have read the (first) portion
viz. tvanka (of the compound word tvanka-kabandhena) as ‘cankya’, where the
use of the /yap suffix, normally added to roots with a prefix, instead of ktvdc, in
the simple root ank, may be justified as being an archaic. usage (arsa-prayoga).
The Mit. says that an additional pecuniary punishment is alsoto be imposed
here on the authority of the following (concluding) clause in Manu (VIII.385),
meaning ‘a thousand (panas) (should be imposed as fine on the person, who
cohabits with) the wife of an untouchable person’. From the clause ‘sidras
(tathd) sikya eva’, containing the particle eva (meaning ‘only), the order
for his banishment is only prohibited (by the above text), which interpreta-
tion does not conflict with his death-sentence. The Pariata, however,
has read the above portion as ‘(sidrastatha) antya eva syat’ and explained
it as ‘A Sudra (committing the above offence) is degraded (by his above
criminal action) into an untouchable person and cannot afterwards be taken
back into the Sidra fold’. The Mit. also, having read it similarly, has inter-
preted the above as*‘A Sidra, having cohabited with an anjya such as a
Candala,1*4 becomes transformed into a Candala,’.

Though, owing to the enumeration by Yama in his following text, washer-
men and similar other persons are to be known as antya-s and also on
account of the just quoted interpretation of the Parijata, a Candala isa
mleccha like the yavanas and similar other classes of persons (i.e.
8 person outside the Hindu fold) and is not fit to be enumerated as a Sidra,
yet, owing to the explanations, offered on the above text, by such learned
commentators as Kullika Bhatta and also due to their almost similarity,
he (i.e. a Candala) may be distinguished from a Sidra but by the use of
the word antyaja in the text of Manu (VIII.385), referred to above, washer-
men and similar types of men are intended

Yama’s text: The members of the following seven castes are known as
antyaja-s:—A washerman, a leather-worker, an actor, a varuda, a kaivarta,

a bheda and a bhilla.

1M DP, V, misreads cdnddlantyabhigame as cdpdalanyabhigame,

PUNISHMENT FOR INCEST ETC. 15}

Narayana has also said in course of his interpretation of the above term
that antyaja-s such as washermen are of seven castes, as laid down in a
Smrti (i.e. of Yama). But (in our opinion) the word antyd, occurring in
the above text of Yaj. (11.294), means ‘the wife of a Candala and of members
of similar other untouchable classes’, as such women are more despicable
than wives of washermen and similar classes of men and the punishments of
imprinting the person with characteristic figures and subsequent exile are
heavier than the payment of the fine of one thousand (panas), and both the
lowliness of caste and the heavicr character of punishment tally together. The
author of the Ratnakara (p. 394) also holds the same view, as the word antya in
his following explanatory sentence of the above Y4j. text is intended to mean
such, ‘An aryd means the wife of a member of the three higher castes, cohabit-
ing with whom an antya (i.e. a Candala) is to be put to death’. If it is argued
that this interpretation of the Ratnakara ts conflicting with the following
half-text of Manu (VIII.373b) viz. “‘for cohabiting with a Vrdtya woman
or with a Candala woman (the punishment of an old offender is doubled)”,
we say in reply that no such conflict arises here, as the import of that non-
conflicting opinion (of Manu) has been elaborated by us in the very begin-
ning of the sub-chapter on the general principles of the punishment of inter-
course with other men’s wives. An optional allotment of the punishments
over different classes of criminals involved may be made in cases of different
punishments (prescribed by different authorities), viz. Imprinting of charac-
teristic figures, followed by banishment, relates to the poorer members of
the three higher castes and the imposition of a fine of one thousand (panas)
concerns itself to richer members of the above castes.

REGARDING INTERCOURSE WITH ONE’S OWN RELATIONS (i.e. INCEST)
AND WITH THE QUEEN AND SIMILAR OTHER DIGNIFIED WOMEN

Narada (stripumsa VV. 73-76) has prescribed the following punishments:

The person, who performs sexual intercourse with anyone of the following
women, is technically called a guru-talpaga (i.e. violator of the bed of one’s
elders) and no other punishment than mutilation of the male organ (of the
offender) has been prescribed for this class of criminals: Mother (mata),
mother’s sister, mother-in-law, mother’s brother’s wife, father’s sister, wives
of paternal uncle, friend and pupil (or disciple), sister, her female friend,
daughter-in-law, daughter, teacher’s wife, any agnatic woman (sagotra), a
woman refugee, queen कका), a female recluse (pravrajita), any chaste
woman, nurse, any woman of a superior caste (varnottama).

D. V. adds: The word 7122 (lit. ‘mother) is “father’s any other wife than
the actual mother”, on the analogy suggested by the word gurutalpaga. The

132 DANDAVIVEKA

anthor of the Mit. is of opinion that the insertion of the word maidis illustrative.
The mention of the paternal uncle also includes within its category on equita-
ble grounds “brothers and similar other nearest blood-relations”’. Similarly,
sister’s female friend also includes ‘female friends of daughters and similar
other female relations’. According to the author of the Mit. the word "का
(i.e. queen) means “the queen consort”. This interpretation is right, as other
punishments have been laid down for intercourse with an ordinary Ksatriya
woman. The additional mention of the word sagotrd over and above the
step-mother (sapatnimata) and similar other women of the motherly status
is for the imposition of higher penalties than simply cutting off the male organ,
such as harassment and similar other corporal punishments (vadha- danda-
tadandadeh praptyartham). The clause viz. nanyo dando vidhtiyate (i.e. no other
punishment has been prescribed) implies the imperativecharacter of the mutila-
tion of the male organ (of the offender) and means in plain words that no other
punishment isto be inflicted in lieu of the above punishment (butany other
punishment may be inflicted over and above this punishment), as appears from
the full meaning of the entire text, quoted above. The word pravrajita means
‘a woman, living as a nun owing to her aversion to worldly pleasures and
properly discharging the duties of a widow, as laid down in the Vedas and
Smrtis’, as monasticism is forbidden for females and such a woman ranks
among the highly respected ones, the word pravrajita having been placed
just after the word rdajfi (i.e..queen). The word pravrajitd, used in the follow-
ing text of Yaj. (11:293b): “The fine of forty panas is (to be inflicted on a man)
for (his) cohabitation with a pravrajita”, means ‘the wife of a follower of
Buddhism and other heretic religions’ and carries with it an idea of lowliness,
the word having been used along withthe word dasi (i.e. female servant) and
other words. So the above text is not conflicting with the text of Narada.
The word varnottamad, according to the author of the Mit., means ‘a Brah-
mana woman’. The Ratnakara (p. 391) has said that this text relates to a
secluded woman! (tad-idam vacanam guptavisayam).

Yj. (L11.232-3) also lays down: A person, who cohabits with the following
women, is called a guru-talpaga and such a person and the willing (sakamdyah)
woman, so cohabited with, should have their respective private parts cut off
(or pierced into) and then they should be put to death: Father’s sister,
mother’s sister, mother’s brother’s wife, daughter-in-law, mother’s co-wife
(i.e. step-mother), one’s own sister, daughter and wife of one’s teacher and
one’s own daughter.

15 The Ratndkara adds just before the above sentence ‘matdstra janant-vyatiriktd pitr-
patni’ 0.6. the word ‘mother’ means here ‘father’s wives other than the mother’ (cf. D. V.’s
comments—bdeginning portion).

PUNISHMENTS FOR DEFILING UNMARRIED GIRLS 153
। ।

D. V. adds: The queen, the mother-in-law and similar other women
are to be included in the above list, as their names have been inserted in the
previous text (of Narada) along with those of father’s sister etc. and all
these women (both included and not included in the present text) are equally
venerable or affectionate. So it appears (contrary to the view of Ratnakara,
cited just above) that the previous text (of Narada) relates to non-secluded
women, whereas the present text, laying down a heavier punishment, con-
cerns itself with secluded women. The same heavy punishment is to be
inflicted on equitable grounds also in cases, entailing social degradation
of the offenders (of both sexes)
_ Yama says on this topic: A dvija (i.e. a member of any one of the three

higher castes or a Brahmana), cohabiting with his mother’s sister, mother’s
female friend, own daughter, father’s sister, mother’s brother’s wife, own
sister or mother-in-law, immediately becomes socially degraded.

Gautama (Part of III.3.1) also lays down: Persons, having sexual connec-
tions with women, related to them by the father’s or the mother’s line, are

degraded.

PUNISHMENTS FOR DEFILING UNMARRIED GIRLS

The unmarried girls may be of three kinds, viz. of superior status, of the
same status and of inferior status in comparison with the respective castes
of the defiling persons. The defiling also may be perpetrated on those girls
in two ways, viz. by cohabilation and by thrusting fingers into their private
parts.

After having described the grave sins (mahd-pdtakani), Manu (X1.59 and
61a) has said: Pouring the seminal fluid into the genital organs of one’s
Own sisters, other unmarried girls, untouchable women and the wives of
one’s friends or of one’s sons is known to be an equally heinous offence like
gurutalpa (i.e. violating the teacher’s bed). Defilement of unmarried girls
and atheism!¢ are also upapdtaka-s (or minor vices).

D. V. adds that according to (Kullika’s) commentary on Manu, the defile-
ment (of unmarried girls, spoken of above) is by thrusting fingers (into their
private parts) and not by performing sexual intercourse with them. The
same author (i.e. Manu, VIII.366a) has laid down the following prescription
in continuation of his remarks, concerning a Kanyd (i.e. unmarried girl):
The wretch, who cohabits (illegally) with a woman of a caste, higher than his,
deserves sentence of death. D. V. adds that the clause ‘even if such woman

18¢ Manu reads the second half of this half-text as vardhugyam vrdtalopanam instead of
nastikyafi copapatakam, read by D. V

154 DANDAVIVEKA

be a consenting party to the cohabitation’ (icchantim api) should be added
to the phrase ‘with a woman of a higher caste’ (uttamdam).

Narada (stripumsa V.71) says: Two fingers of the person, (which were
thrust into the private parts) of an unwilling maiden, are to be cut off and
forfeiture of the entire property, followed by the extreme penalty, shall
be ordered for doing so in respect of a girl, belonging to a superior caste.

D. V. adds: The two fingers, spoken of, are those, which have been used
for some sort of cohabitation (with that girl) performed by means of those
fingers. The Parijata 1s of opinion that the above punishment is in consonance
with the general rule, laid down in the following maxim, viz. The limb
or organ of the body, with which the offence has been committed (by the
offender), should be cut off.

Sanhkha-likhita have laid down: The mutilation of the two (incriminating)
fingers of the wretch, (who has committed the condemned act of thrusting
them) into (the private parts) of an unwilling maiden and the sentence of
death for the former, doing so in respect of a superior caste girl, are the
respective punishments.

D. V. adds that these punishments are also for cohabitation, committed
by the two fingers

But Hariharahas explained the phrase ‘dvyangulacchedo dandasca, occurring
in the above text of Sankha-likhita as “‘the cutting off of a portion of the
male organ, measuring the breadth of two fingers only.”

D. V. adds that the insertion of the particle ca (meaning ‘and’) implies
the cumulation of the punishments of the mutilation of twe-fingers-broad
portion of the male organ and of the imposition of danda, which, in D. V.’s
Opinion, is the fine of six hundred (paras), as Manu (VIII.367) has said:
The man, who, after having overpowered an unmarried girl, (thrusts his
two fingers into) her (private parts) (Kany&im kuryat), should have those
fingers cut off forthwith and he also deserves an additional!?’ punishment
of six hundred (paras) as fine. =

D. V. adds: The author of the Mit. says that the defiling (of the unmarried
girl) consists is making a sore in the female generative organ by thrusting
fingers. Kullika Bhatta also expresses the same opinion in his commentary
on Manu. But Narayana has interpreted the word Kurydt [in the phrase viz.
kanyam kuryat (in the above text of Manu)] as ‘widens the generative organ
(of the girl)’.

Y4j. (I1.288b) also says: Mutilation of the hand (of the culprit) for defiling
(an unmarried girl) and death-sentence (or any other stringent corporal

187 D, $, misreads dandah sapéatam arhati for dandarh etc.

PUNISHMENTS FOR DEFILING UNMARRIED GIRLS 155

punishment) of the criminal for doing so in respect of a superior caste
woman (uttamayam).

D. V. adds: The author of the Mit. is of opinion that the word ‘anulomam’
(i.e. an unmarried girl, belonging to a caste, lower than that of the offending
man) follows from the first half [(i.e. II.288a) of this text where such a
woman has been referred to} and that if (a man) commits rape upon or
defiles such an unmarried and unwilling girl, (the punishment of) mutilation
of his hand (shall have to be inflicted). Death (or any other stringent corporal
punishment) (is to be inflicted on) the defiling man for doing so in respect
of an unmarried and unwilling girl, belonging to a caste, higher (than that
of the man) on the authority of the text viz. vadho hinasya (i.e. death sentence
for an inferior caste person) and of the corresponditig interpretation by
Sarvajiia of the word hinasya as ‘relating to an inferior caste man.’

Manu (VIII.3 64) has thus laid down the punishment of the defiler of an
unmarried girl of the same caste as of the former: A person, who, belonging
to the same caste (as that of the girl), defiles one such unmarried and unwilling
one, deserves immediate vadha (i.e. death or any other stringent corporal
punishment) but no such sentence of death etc. is to be inflicted on such an
equal-caste man, doing so with an unmarried but consenting girl.

D. $. adds: The word vadha in the above text means, according to Kullika
Bhatta in the commentary on Manu, ‘mutilation of the male organ etc.’
but implies, according to Nardfyana, ‘must be awarded the punishment of
death’ (owing, perhaps, to the insertion of the word sadyah before that word).
So the import of the whole text (of Manu, cited above) is that sentence of
death and the imposition of a fine of one thousand (panas) are the respective
punishments for the defiler (of an unmarried girl of the same caste) in
cases of unwillingness and willingness of the girl concerned. Both the
punishments also follow from & text of the Matsyapurana, laying down
the penalty of death for the defiler of an unmarried and unwilling girl of the
same caste and the pecuniary punishment, amounting to the highest amerce-
ment, for that of an unmarried but willing girl, also of the same caste.

Narada (stripurmsa V.72 )lays down: A man, cohabiting with a willing maiden
of his own varna, thereby incurs no transgression (of law) but he should bedeck
her person with ornaments and having thus purified her, should marry her.

Manu (VILI.366b) also says: Subject to the approval of the girl’s father, the
ravisher (of an unmarried girl) of the same varna shall have to pay fulka (i.e.
brideprice) (to the father of the girl) (and then he will be allowed to marry her).

D. V. adds: The Ratnakara (p.402) says that sulka is an amount of wealth,
agreed upon by both the parties, as is payable in the dsura form of marriage.
(Kullika) Bhatta in his commentary on Manv is of opinion that appropriate

156 | DANDAVIVEKA

(
money, called 4५14, is to be paid and this is not a fine. But the author of
the Mit. explains the term as a couple of cows (i.e. a bull and a cow) (to be
payable to the father of the girl) but on his refusal to accept it, it should
be paid as fine to the king. Narayana, however, has explained in the following
manner:

(The offending man) should pay lo the father (of the girl) Sulka in the
form of (the bride’s) price, if he consents to give her away to that person
but if he does not so consent, he may marry her to any other person.

Sankha-likhita have said: If the ravished girl Belongs to the same varna as
that of the ravisher, the latter shall take her (as wife) after having paid
Sulka (or bride-price), ornaments and twice the ordinary stridhana (woman’s
peculium). Bo

D. V. adds: The stridhana (payable on such occasion) should be twice
what is normally paid in dasura and similar other forms of marriage and
should be made over to the girl herself and the su/ka should be paid to her
relations (such as father, brother etc.). The man may then take her (as wife).
The word icchantyam (i.e. if she was a consenting party to the cohabitation)
should be added to the word samdyam (i.e. if the girl belongs to the same
varna). This is the view of Ratnakara (p. 402). But according to our (i.e.
(i.e. D. V.’s) opinion, the word an-icchantydm meaning ‘un willing’, (and not
icchantyam), is appropriate to be added here to the word samdyadm and so
in case the ravished unmarried girl of the same varna was a consenting party
to the commission of the above offence, the payment of the sulka only (and
not of the sulka and many other things), as laid down by Manu (VIII.366b)
is the proper way of making amends for it.

Apastamba (II.26.20-21) has prescribed in continuation of his previous
statement viz. in case of ravishment, the following punishment for the
ravisher (of an unmarried girl) belonging tq,a caste, lower than his own: The
ravishing man, doing so in an unmarried girl, is.simply to have his
entire property escheated to the crown and is to be banished (from the
territory). |

D. V. adds that the above punishments apply to. का unwilling (and un-
married) girl, belonging to a lower caste.

Manu (VIII.368) says: A person, who pollutes (by thrusting fingers),
a willing (unmarried) girl (sakamam diisamanastu), shall not have to have
his fingers cut off but should be fined two hundred (panas) only for suppress-
ing the repetition of the offence (i.e. as a preventive measure).

_D. V. adds: According to Ratnakara (p. 403), (the above text) relates to
(the pollution of) a lower caste girl. But (Kullika) in the commentary of
Manu, having read the first foot of the above verse as sakadmam diisayam

PUNISHMENTS FOR ABDUCTING UNMARRIED GIRLS 157

stulyah,"8 has explained the participial verb diésayan as ‘by thrusting
fingers’.

Manu (VIII.365) further says: An unmarried girl, cohabiting with a man
-of a superior caste, shall not be compelled to pay anything as fine but one
such, doing so (sevamanam) with a man of an inferior caste, should be kept
restrained (5471410 vasayet) in her house.

D. V. adds that it has been said (by Medhatithi?'**) in his commentary
on Manu that the word sevamdnadm means ‘pressing the man to perform
sexual intercourse with her’ and the phrase ‘samyatadm ydsayet’ means ‘made
to live carefully guarded until she gives up her desire (for committing the

above offence).
PUNISH MENTS FOR ABDUCTING UNMARRIED GIRLS
have been incidentally laid down here

Yaj. (11.287-8) says: Any man, who abducts a girl, bedecked (for marriage
with another person), shall have to pay the fine of the highest amercement
but the fine of the first amercement is to be realised from him if the girl, so
abducted, is not so bedecked (and not ready for marriage with another person)
These punishments are to be inflicted in cases when the abducting man is
of the same varna as the abducted girl but if the latter belongs to a caste,
higher than the former, the penalty of death shall be imposed. But the abduc-
tor is to be held not all guilty if he has committed the offence in respect of
a willing (unmarried girl) of his own varna. But if the abducted girl (of the
same varna) Has not been a consenting party (to the commission of the offence)
the abductor has got to pay the fine of the first amercement. In cases of
defilement (practised upon any unmarried and unwilling girl of equal or
inferior varna), the cutting off of the hand (of the defiler) is the proper punish-
ment, which turns into one of death-sentence when the girl, so defiled, happens
to belong to a superior caste.

D. V. adds that according to Halayudha, the defilement, spoken of above,
is ‘by thrusting fingers (into the private parts of the girl)’. The author of
the Mit. is of opinion that owing to the punishments, described above, (to be
inflicted on the abductor), it follows that the girl, so abducted, should be
snatched away from him and given in marriage to another (suitable bride-

groom).

128 An edition of Manusmrti with the commentaries of both Medhatithi and Kullaka
` 1९808 °tulydrh; thereby making no materia! difference in the sense of the above text and
the accompanying comment of Kullika also contains his interpretation as quoted.

139 Not found in the accompanying comment of Kulljka but in that of Medhatithi in
almost identical words,

158 DAN AVIVEKA

4
PUNISHMENTS FOR UNTRUTHFUL BRIDEGROOM AND GUARDIAN
OF THE BRIDE

are incidentally described here

The Matsyapurana says on this topic: He, who hands over a defective girl
in marriage (to a person) without informing him beforehand (of her defects),
should be punished by the king himself with the imposition of a fine of ninety-
six (panas). He should also punish with the infliction of the fine of the highest
amercement that person, who, having shown to the intending bridegroom
one girl, actually gives another girl in marriage with him. Ifa bridegroom,
who, having concealed his own defects, takes an unmarried daughter (of
any person) as his wife, the girl, though given away in marriage (to him),
is to be considered as not so given and (the untruthful bridegroom) is to
be fined two hundred (panas) by the king.

2}. (11.146a) says: The person, who declines to give away to a man his
daughter, already betrothed (dattvd) to him should not only be punished
but also be compelled to pay up to the intended bridegroom the expenses,
(already incurred by him) with interest (vyayam dadydcca sodayam).

D. V. adds: The word dattvaé means ‘having betrothed to be given in
marriage’ and the word vyayam implies ‘the money, already spent by. the
bridegroom in connection with the reception, offered to his own relations
and to the relations of the girl’. The father of the girl should pay to the
bridegroom all the above amount of money with interest. This procedure
of compensation is to be followed in the absence of any cogent reason
(justifying the goin. back on the previous negotiations) as the following
text of Y4j. (1.65b) has furnished a sp€cial cause of permission for rescinding
the negotiations: A girl, already betrothed to a person, may be taken back
(annulling the betrothal), in case a bridegroom, superior in merit to the
former, turns up. ॥

PUNISHMENT OF A WOMAN FOR DEFILING AN UNMARRIED GIRL.
has been laid down by

Manu (VIII.369-70): One unmarried girl, who defiles (kuryat) another
unmarried girl, shall be punished with the fine of two hundred (paras), shall
also have to pay thrice the bride-price (Su/ka) and undergo ten lashes with
ropes (Siphah). But an elderly (married) woman (stri), doing so, shall have
her head to be at once shaved and her two fingers cut off and shall be made
to mount on an ass.
D. V. adds: According to the commentary on Manu (by Kullika), the

word Kurydt means ‘defiles (her) by thrusting fingers (into the private parts

PUNISHMENT FOR COHABITING WITH UNCHASTE WOMEN 159

‘of the latter) and according to the author of the Mit., it means ‘creates
sore in those parts’. Narayana has assigned the reason of the payment
of three times the usual bride-price as the refusal (of prospective bridegrooms)
to marry such a defiled girl on suspicion of consummation having already
been effected. The word siphah, according to the Kalpataru, means ‘beating
with hanging roots of trees, ropes and similar other things’. The Ratnakara
(p. 403) is also of the same opinion. Narayana has explained the term as
‘the hanging roots of trees’. Another authority has qualified the shaving
of the head (of the defiling woman) as doing so, after having left ten tufts
of hair (on the head). The woman, referred to here, means any female other
than an unmarried girl. (Narayana) Sarvajfia has allotted the punishments
of shaving the head, mounting on an ass and cutting off of the two fingers
to a Brahmana lady, a Ksatriya woman and a female, belonging to any
other caste (than the above two) respectively.

PUNISHMENT FOR COHABITING
WITH UNCHASTE AND SIMILAR OTHER WOMEN

Vyasa has laid down: The punishment of the despicable person, who
commits sexual intercourse with a woman, already enjoyed by many men,
is intended (by the earlier jurists) to be like that, prescribed for doing so
with a prostitute and not with another man’s wife.

Yama has also said in the topic of a bandhaki (i.e. an unchaste woman):
A person is to pay a fine of five Krgnalas, if he cohabits with another man’s
wife of the same varua as his and that of twelve (panas) with such a woman
of a different but lower varna.

D. V. adds that a krgnala is (a coin of the weight of) three barley grains
and the word dvddaSako (i.e. twe|ve) is to be construed with panas.

Narada (stripumsa VV. 78-79) says: An unchaste non-B rahmana woman
(Abraéhmant), a prostitute, a maid-servant and a nigkasini, if belonging to
castes, lower than one’s own, may be approached but not such women of
castes, higher than that of the offender. Blemish certainly attaches to the
person, cohabiting with these unchaste women, like that, accruing from the
performance of sexual intercourse with other men’s wives. So though appro-
achable with impunity, these women should not be so ‘done, as they may
be in the permanent keeping of other persons (saparigrahah).

D. V. adds: The word A-BrahmaniI means ‘a woman of the Kgatriya
and other lower castes’. A maid-servant is one’s personal maid-servant and
a niskdsini means ‘an unchaste woman, belonging to one’s cognatic relations’.
The author of the Mit. is of opinion that these several classes of women
may be so treated (by the approaching persons), even if they are not kept

160 DANDAVIVEKA

secluded (anavaruddhdsvapi). According to Ratnakara (p. 406), by the use
of the word gamyak (i.e. approachable) the (consequent) punishment only
is prohibited but men, doing so, do not enjoy any immunity from the
(resulting) sin. The above view (of Ratnakara) is right, as Sankha-likhita
(quoted above) have used the word svadara-niyamah (i.e. (all men) should
confine their sexual activities within their own wives) and hence transgression
of 8 Sastraic injunction necessarily entails sin (upon the transgressor). The
maxim, previously cited, viz. punishments clear away the sins, is applicable
to offences other than such unlawful sexual intercourse.

So Narada (Cf. stripumsa® V. 77) has further said: The punishment of
persons, ravishing women, not fit to be so ravished, as laid down (in works
on law), is to be inflicted by the king but it is by the performance of penances
only that the consequent sins are expiated.

D. V. adds: If such expiation only is to be performed in secret cases of
cohabitation with women, not to be so cohabited, owing to the absence of
the (king’s) punishment in those cases, that clearly proves the generation
of sin in such offenders. In fact, we have already said that real cessation
of the consequences of sin is effected only by means of expiatory rites, as
substitutes for punishments and not by means of punishments only. The
several classes of women, enumerated in the above text, fall within the
category of females, kept secluded by a person and enjoyed by him. These
women, (though not really other men’s wives), are called saparigrahah, as
they are in the permanent keeping of other persons, as the word para-dara-
vat (i.e. like other men’s wives) has been used here in a general sense.

Yaj. (11.290) has laid down this special punishment: A person, cohabiting
with secluded maid-servants and (ca) with unchaste women (dhujisydasu),
though fit to be so cohabited, shall be fined fifty panas.

D. V. adds: According to Ratnakara (p. 406), the secluded maid-servants,
who have been so secluded by their masters, include even those, who belong
to castes, lower than the latter. But it has been said in the Mit. that those
maid-servants, who have been kept secluded (avarudhda) by their masters in
the houses of the latter, have been so done to save them from being enjoyed
by other persons with the (false) stipulation that the former have to stay in
the masters’ houses lest the services they are rendering might be interfered
with (by others), that the bhujisya type of women is always in the keeping of
(successive) men and that the insertion of the cumulative conjunction ca
implies ‘the inclusion of such public women as prostitutes and other unchaste
women’. If it is argued that the general womanly character of a prostitute
follows not from her specific caste as a prostitute but from her belonging to a
caste, lower than that of her visiting man and hence she may also be takenas a

PUNISHMENTS FOR COHABITING WITH UNCHASTE WOMEN 161

woman of even the same caste and that in case she belongs to a caste,
higher than that of the man, intercourse with such a woman becomes
reprehensible, we say in reply: The caste of the prostitutes, who ply
the profession of catering to the desire of men (for enjoying women),
is without any definite beginning as is popularly believed and we learn
from a statement of the Markandeyapurana that the (female) descendants
of the apsarases (i.e. demigods), named pdftcaciida-s, are called vesyts
(i.e. prostitutes), who constitute the fifth caste. So owing to the per-
manent absence of the sdlemnisation of the marriage-rites among these
women, the men, who cohabit with them, neither incur any invisible sin
nor invite any punishment. But according to the author of the Mit. the men,
cohabiting with them, though immune from punishments, do not enjoy
such immunity from incurring sins, on account of the maxim viz. One should
always be attached to one’s wife (only) and also on account of the
imperative necessity of performing penance (for any sinful act), following
from the text viz. penances are to be done for cohabiting with beasts and
prostitutes.

The same authority (Cf. Yaj., 11.291) further says: One, committing rape
upon a maid-servant, is to be fined fifty panas and if many persons do so
upon her, when she is not a consenting party, they should severally be fined
twenty-four pands. Commission of rape upon a prostitute also is known to
entail a fine of ten panas upon the person, doing so.

Narada says: A dvija (i.e. a Brahmana or a member of either of the three
higher castes) cohabiting with a prostitute (without paying her the requisite
fee), should be fined equal to the amount to have been paid to her as
her fee.

D. V. adds: The author of the Mit. is of opinion that owing to the occur-
rence of the word prasahya (\.¢, forcibly) (which is also to be supplied in the
just quoted text of Narada) in the above texts, the punishments are to be
inflicted only in cases of forcible cohabitation with (i.e. committing rape
upon) maidservants (and prostitutes) and not to be inflicted in cases, where
the requisite fees have been paid (by the persons involved). So we find that
there is no contradiction of this later prescription with the earlier one (made
in respect of intercourse with such women)

Yaj. (11.289b) further lays down: A person, performing sexual intercourse
with beasts, is to be fined a hundred panas and one, doing so with a woman
with deficient limbs (Aindngim cuiva), is to pay the middle amercement as
punishment.

D. V. adds: The Ratnakara (p. 407) has interpreted the word /indnygi as
a woman, bereft of her nose and similar other organs. But the Mit. has

21

{62 DANDAVIVEKA

&
-Yead the phrase 28150 Ainastrindf (ca) and explained it as ‘an unwilling or
willing untouchable woman, it cohabited (by any person), will entail upon
the latter a fine of the middle amercement.’

PUNISHMENT FOR CARNAL INTERCOURSE WITH MEN AND WOMEN
other than in the order of nature, which latter is with women
in their private parts (i.e. for unnatural offence of the Indian Penal Code)

The word ayoni means ‘other organs except the genitals of a woman’. It
may be of two kinds, viz. (1) other parts of the bodies of women and men
(2) private parts of cows and other animals.

Y4j. (11.293) hasNaid down the following punishment for the first kind
of such offences: `

Whoever commits carnal intercourse with women in organs other than
their genitals or with men or cohabits with a nun shall have to pay a fine
of forty (catvdrimSat) panas.

D. V. adds: The Mit. has read caturvimSatiko (i.e. twenty four) for catvari-
mSat. ‘(Carnal intercourse) with women in organs other than their genitals’
means ‘in their month’, as this bad practice is prevalent in Drdvida (i.e.
South India) and Utkala (i.e. Orissa) and has been recorded in works on
Erotics. This nasty practice, performed as it is-in the sitting posture (upavisja)
(of both the persons), is known to be aupavistaka (derived from the word
upavistd).

Vatsyayana (3.3) has accordingly said: The performance of sexual
act in the mouth of hers (i.e. of the woman) is called aupavistaka.

The following text viz. ““This immunity from punishment applies to the
cases of those women, who favour their sexual actions to be performed
in their aupavisfaka (or sitting) fashion”, virtually saves prostitutes, maidser-
vants and similar other women from thé infliction of punishment for the
above unnatural offence. Prohibition to perpetrate this offence with one’s le-
gally married wife (dharmapatni) has been laid down by the following text of
the Karma-vipdka-samuccaya: The wifely status of the legally married and
vow-practising wife, if cohabited by her husband in her mouth, becomes
dissolved. |

Somebody has said that the above prohibition really amounts to the cul-
pability of the husband, so involved and calls for the punishment, prescribed
above, when so done, on the authority of the explanation of Vijiianesvara
(the author of the Mit.) on the above text (of Yaj.), expressed in the following
words, viz. ‘he, who commits carnal intercourse in his own wife’s mouth’.

180 But Yaj. reads it as hindm strim gafica (i.e. an untouchable woman and a cow).

PUNISHMENT FOR COHABITING WITH COWS ETC. — 163

छि

D. V. adds that the above view is wrong, inasmuch as no question of special
prohibition arises because of the general statement (recorded in the above text)
viz. cohabiting in the other organs than the genitals of women and also
because the prohibition only applies to the actual stage of the commission
of this offence on the authority of the text of the Visnupurana, quoted and
explained by us in the previous sub-chapter on ‘division of punishments’.
The phrase viz. ‘or cohabits with a man’ (purusam vapi mehatah) implies
‘in case a person does so out of excessive lust’.

PUNISH MENT FOR COHABITING WITH COWS AND OTHER ANIMALS

Visnu (V. 40-43) has laid down: The adulterer!*! (parajdy!), cohabiting with
a (married) woman of the same varna as his, should be fined the highest
amercement (tiittamasdhasam dandyah) and should be fined the middle amerce-
ment, if he does so with a (married) woman of a lower caste and with cows
(gogamane ca) but should be put to death if he commits the above offence
with an untouchable (married) woman or with a higher caste (married)
woman.

D. V. adds: The word madhyamam (i.e. the fine of the middle amercement)
is to be supplied after the phrase gogamarie ca (i.e. in cohabiting with cows
also) on the authority of the text of Narada viz.‘ the middle amercement in
cows’ (madhyamam sahasam gosu). The prescription of the penalty of death
in the case of cohabiting with a (married) woman of a caste, higher than the
culprit’s owa, concerns itself with a non-Brahmana offender owing to the
meaningful insertion of the adversative conjunction tu (meaning ‘but’) (in the
first statement, relating to cohabitation with a same caste woman).

The Matsyapurana has laid down this special punishment of a Brahmana
offender: The best among human beings (i.e. Brahmanas), cohabiting with
cows, should be fined a gold (coin).

D. V. adds: The author of the Ratnakara (p. 407) has said that the pres-
cription of death sentence in the above text of Visnu applies to Sidras only
and that of the middle amercement in the same text holds good in cases,
relating to Ksatriyas and Vaisyas and that there is thus no conflict between
the above two prescriptions. According to D. V., this interpretation is
questionable, because a logical deduction may be made from an already
cited text and not from one to be cited later on (as the above text of Vignu
has not yet been cited by Ratnakara) and also because the above line of inter-

181 DP, V. reads pdrajdtiyd, which is wrong here, in the body of the text, while it gives the
correct reading pdrajéyi as a variant in the footnote,

164 | DANDAVIVEKA
@

pretation is contradictory to the very force of words and to the rules of deri-
vation.

The Matsyapurana again says: He, who commits carnal intercourse with
animals other than the cow, should be fined a pana and should be compelled
(to eat and drink) such animal’s (eatable) grass and (drinkable) water.

D. V. adds that the word panam, used in the above text, means ‘a hundred
(panas), on the authority of the text of Visnu (V.44) viz. the punishment
for cohabiting with a beast is one hundred Karsapanas. The Kamadhenu
has read the above word panam as Satam (i.e. one hundred). |

Here ends the fourth chapter on ‘Molestation of other men’s wives’ of
the Dandaviveka, composed by Mahamahopadhyaya dharmadhikaranika
Sri Vardhamana.

CHAPTER V

PUNISHMENTS FOR ABUSE OR DEFAMATION
(VAKPARUSYA)

Narada (vag VV.1-3) says: Words, embodying insults, imputations (akrosa-
nyankusamgitam) and irritating utteranances (pratikitlartham) against (other
persons’) country, caste, family etc., constitute yak-parusya (abuse). These
words may also be of three kinds, viz. cruel, obscene and severe and the
corresponding punishments have also been laid down in proportion to the
gravity of the offences. The insulting utterances (akrosa or s@ksepa) are
known as cruel, the imputations (nyanku-samgitam) are called obscene and
the wise men term as severe those utterances which are made with
imprecation.

D. V. adds: The author of the Mit. has explained the insulting utterances
(saksepam) as ‘Fie on thee, fool, low-born etc.’, the imputations (nyanku)
as such untrue and obscene expressions, not fit to be uttered, as in connec-
tion with the cohabitation with one’s own sister and similar other relations,
and irritating utterances (pratikilartham) as those severe words, charging
(other persons) with grave sins, such as “You are adrunkard and so on’. Ganes-
vara Misra in his Vyavahara-taranga has thus justly described the above three
kinds of abusive words: The common characteristic of all these utterances
is the generation of mental dejection of the persons against whom they
are directed and these utterances are divided into insults against another
person’s country etc., imputations on him and cruel expressions to cause
irritation to that person. These three kinds may be either slight, grave or
very grave and consequently eptail corresponding punishments upon the
utterers. The words viz. cruel etc. are their technical labels and insulting
etc. are their descriptions.

But the author of the Mit. has read the expression as dkrosa-nyanku-
samyutam instead of °sangitamand explained a@krosa as ‘shouting’ and nyanku
as ‘unspeakable’ and interpreted the whole expression as ‘such words, which
are uttered by shouting and contain unutterable elements and which are,
thus, of irritative import’ and that ‘this is the general definition of vak-parugya’.
This interpretation is questionable, as this does not cover all those cases of
abuse, which contain no shouts but have threatening or mimicrying elements
in them, as Katyayana (V.768) has said:

That is said to be harshness of words (i.e. abuse), when a person makes the
sound “hum” (before another), coughs (before him) or imitates or utters

166 | DANDAVIVEKA

(before another) whatever is condemnable according to popular notions.
70. V. adds that the following are the examples of the three kinds of insult-
ing utterances: (If one says) against a resident of Gauda (i.e. Bengal) that
the residents of Gauda are quarrelsome, such statement will amount to an
insult of one’s country (desak sepa). (If one says) regarding a Brahmana that
Brahmanas are highly avaricious, that statement will be an affront to one’s
caste (jatyaksepa). (If one says to a member of the Vaisvanara family) that
the Vaisvanaras are of cruel habits, that will be an expression of grudge
against one’s family (KulakroSa). ` ४

The expression nyanku-sdmgitam means ‘an expression, containing the
mention of the private parts of the body’ and such expression, true or false,
made against another person 910791४ by exposing the private parts of the
utterer himself, also falls into that category.

So Katyayana (V.770) has again said: When one reproaches another
with the possession of constitutents that are generally termed undesirable
(or bad), whether they actually exist in him or not, these are known as
nisthura (i.e. cruel) words

The Kalpataru, after having read the expression as nyanga-samgitam,
has also explained it as ‘obscene’ and the Ratnakara (cf. p. 240) has interpret-
ed it as'*? ‘an expression, containing the name of the private parts of the
body’. But Halayudha has explained it as ‘threatening with the hands and
similar other actions’. The author of the Smrtisadra has read the term and
explained it just like the Kalpataru. Vacaspati (Misra) has, however, explain-
ed it as ‘containing the mention of the genitals’. But the Kamadhenu has

ead the expressiqn in both the above texts (of Narada and Katyayana) as
vyanga-sangitam’, where the first word vyariga means ‘lame and other persons,
deficient in organs of sense and action’. The same authority (1.e. Katyayana)
(VV.771-772) has thus defined the obscene {aslilam) and severe (tivrafica)'®
varieties of speech:

When (a person), out of anger (towards another person), utters abusive
words along with the exhibition of his private parts (nyaigdvaptiranam)
or casts aspersions against the occupation, country or family of the second
person, such expressions are called by the wise men as ‘aslila’ (i.e. obscene).
The expressions, which impute grave sins or theft of royal articles to other
persons or attribute to them loss of their castes, are known as ¢ivra_(i.e.
severe): 3

५५ 0. V. reads Nikrstanga-sanga (0 gd?)—vat and Ratnakara reads nikrstdnga-
sangaval

188 1D. V. wrongly reads nisthurafica for tivrafica, The description of the nistura variety
has already been made by Katydyana in his earlier text |

PUNISHMENTS FOR ABUSE OR DEFAMATION 16
| ,

D. V. adds that the Kamadhenu has read angdvapiranam for nyangava-
puiranam (in the first of the above two texts of Katyayana).

Brhaspati (XX.3-4) has laid down: Those, who are conversant with law,
have characterised threatening utterance towards another person of minor
sins, consisting of the commission of sexual intercourse with that person’s
sister or mother as the middle kind of vak-pdrusya (i.e. abuse) and have classed
the attribution on another person either of the eating and drinking of un-
eatables and undrinkables or of committing grave sins in the highest category
of such offence, which in these cases cuts to the quick the hearts of other
persons and is hence technically known as ‘severe’.

D. V. adds: According to Ratnakara (p. 242) the expression viz. ‘bhagint-
matrsambandham™ upapdataka-samsanam’ (i.e. threatening utterance towards
another person of minor sins, consisting of the commission of sexual inter-
course with that person’s sister or mother) means ‘I shall cohabit with your
sister or mother’. Halayudha is also of the same opinion. In fact, the word
‘mother’ (used in the above text) means ‘mother’s co-wife’ (i.e. step-mother).
So the expression means ‘I shall try to co-habit with your sister or step-
mother’ and the very utterance of such expressions does not constitute a
minor sin

Katyayana (VV.773-774) has further laid down: He, who, out of anger,
imputes blemishes (agundn) (on a worthy person) or attributes good qualities
on an unworthy person or otherwise utters false epithets (anya-sanga-niyojt)
(regarding a person), is known as a man of abusive (vdgdusfa)'*®® speech.
He, who algo proclaims the blemishes of a 1५ person (adustasyaiva) who
(really) does not possess them for simply defaming him (dosa-kdrandt) or
imputes the faults of one person on another person, is also called a man of
abusive speech. (In other words, both the above classes of persons are
guilty of the offence of vak-pdrugya.)

D. V. adds: The word gunini (i.e. on a worthy person) is to be supplied
after the word वणका (i.e. blemishes) and the word anya-sanga-ntyoji (i.e.
utters false epithets) means ‘calls him by a name, implying censure’. The
particle eva in adusfasyaiva means api(i.e. also). By the addition of the phrase
dosa-karanat (i.e. for simply defaming him), an exception is provided for
such proclamation being made in consideration of one’s friends’ or relations
(real) faults

14 D, V. reads sambandhart in the body of the text but °sambaddham in the just following
comment.

"° PD. V. wrongly reads vakdustam here

166 —D. V. reads dustasyaiva tu in both the body of the text and the accompaning comment
but Ratnakara (p. 243) reads adus{asyaiva in both the places Katyadyana also reads like
Ratnakara

168 0^0^ कारश

Punishments for Brahmanas and members of other castes
for abusing one another

Brhaspati (XX.8) has laid down: If the abuser-and the abused persons
belong to the same caste, the punishment (of the abuser) shall be just as laid
down (for such offence) but if the abuser happens to belong to a caste, lower
or higher than that of the abused person, he will be punished by twice (the
amount of the prescribed punishment) and by a somewhat greater amount
respectively. D. V. adds that the abuser’s belonging to a caste lower than
that of the abused is to be settled in consideration of his conduct, caste etc.,
as compared with those of the abused.

Yaj. 1.206-7) says: If an abuse is made against inferior persons (adhame-
gu), the punishment is half (of the prescribed amount) but it shall be doubled,
(than the prescribed amount), if directed against other men’s wives or superior
persons (uftamegu), having regard to the comparative higher or lower varnas
and castes (of the abused persons). The punishments will be doubled or
trebled in abuses against higher castes (of the abused persons) as the case
may be but will be reduced to successive halves in those against lower castes.

D. V. adds: The word adhamesu means ‘inferior both in caste and merits’.
‘Half’? means ‘twelve and a half panas‘, as the fine of twenty-five panas
has been laid down in general for abusing in the just preceding text
(of Yaj.). As no epithet has been prefixed to the word parastrigu (1.6. other
womien’s wives), the words utkrsfasu (of superior castes) and prakrstdsu (of
superior merits) are to be added to it. ‘Doubled’ means ‘increased to fifty
panas’. The word varna means ‘Brahmanas and other varnas’, while the
word 1/7 means ‘Ambasthas (i.e. Vaidyas) and other mixed castes of
uncondemned unions’. The last part of the above text means that among
the three varnas viz. Brahmana, Ksatriya and Vaisya, a Ksatriya or a
Vaisya, abusing a Brahmana, should get twice or thrice respectively of the
preseribed punishment. But a Brahmana, abusing a Ksatriya, will receive
half and a K satriya, doing the same against a Vaisya, half of half (i.e. one-
fourth) of the prescribed punishment.

Manu (VIII.276-7) also says: A (judge), conversant with (law), should thus

prescribe the punishments for a Brahmana and a Ksatriya (abusing each other
of their own castes) : A penalty of the first amercement and that of the middle
amercement are to be inflicted on a Brahmana and a Ksatriya respectively.
A Vaisya and a Sudra, doing so against their own castes (svajatim prati),
‘should also receive the above two kinds of punishments, having due regard
to the superior or inferior merits of the abusers. But this apportionment of
punishments shall not involve the cutting off of the tongue (cheda-varjam)
of the accused persons

PUNISHMENTS FOR BRAHMANAS ETC, IN SUCH ABUSING 69

D. V. adds the following commepts on the above two texts of Manu by
his two commentators, viz. Kullika Bhatta and Narayana.

The former says: The above two texts relate to abuses with the imputation
of social degradation (on the abused persons). The addition of the word
svajatim (in the second text) implies the prohibition (recorded in the latter
portion of the above text) of the mutilation of the tongue for the Vaisya
offender only but such mutilation is to be resorted to in such offences
having been committed against a Brahmana and a Ksatriya. So according
to D. V. the word cheda-varjam is to be construed with a Vaisya anda
Sidra only

The latter says: On the (last) two castes (i.e. Vaisya and Sidra castes),
abusing members of their own castes, the punishments, as prescribed for
them but without the mutilation of the tongue, shall have to be inflicted,
from which it necessarily follows that such offenders against the Brahmana
and Ksgatriya castes shall not enjoy immunity from the above punishment
of mutilation of the tongue.

In continuation of his previous statement that eight purana coins are to
be charged as fine from a member of aninferior varna for shouting against or
abusing or otherwise debasing a member of a superior varna, Harita has
made the following further statement:

In case of shouting by the use of false words or striking with the feet,
the mutilation of the offending organ or fine of five hundred (panas) (shall
be the proper punishment) but if a member of a superior varna does so in
relation to one of an inferior varna, only one quarter of the above punish-
ment is to be inflicted, or the former, being a member of a superior varna
and hence the master of the inferior varna, shall be let scot-free, and a Brah-
mana is the most powerful (and privileged) of the superior varnas.

D. V. adds the following lengthy note: According to the Ratnakara (pp. 249
and 251) “the word purdna heremeans 137 thirty-two silver Krsnala (coins)’
and shouting by the use of false words is nothing but abusing. The (offend-
ing) organ, referred to here, is the tongue, which is to be cut off when a
member of an inferior varna uses abusive false words against a member of
a superior!*® yarna or such offender may only be fined five hundred!*® (panas).
But a member of a superior varna, doing so against one of an inferior varna,

137 D. V. wrongly reads dvdvimsat°, which may either be dvd-vimsali (i.e. twenty-two)
or dvd-trimSat (i.e. thirty-two). Ratnakara (p. 249) has read the latter in the body of the
text and added the former as a variant in the foot-note.

138 T). $, misreads ukrsfavarnam for ut-krstavarnam

13* Ratnakara (p. 251) reads paricdsatam (i.e. fifty) both in the text of Harita and its
accompanying comment.

22

120 DANDAVIVEKA

is to have only one quarter of this pecuniary punishment inflicted upon him

(Harita) then lays down the following alternative prescription (in the form of
immunity from any punishment whatsoever for the latter class of offenders),
prefacing his prescription with the words na vd kiftcit (or not so at all),
“‘because of their being members of the first varna and also because the
Vaisyas!#° and members of other varnas are also superior to Sidras.1”

In fact, the word abhisamsana (used in the above text of Harita) means
‘abusive shouting’, which, if made falsely and hence harshly, entails the
punishment of the mutilation of the tongue and if not so (i.e. if made on
justifiable grounds), it necessitates the infliction of the fine of five hundred
panas. If such abuse is uttered by a member of a particular yarna against
one of a different varna, the alternative lesser punishment by way of fine
only shall not be inflicted upon the offender, as is the rule for the cases where
both the offender and the offended persons belong to the same varna.
In cases where such persons not only belong to the same varna but also the
abusive words are based upon facts, the punishment of the fine of eight
puranas only is to be inflicted. Alternatively, the words pdda-tadane'®
(striking with the feet) and anrtabhisamsane having been used together, the
appropriate punishment for striking a person with feet is the mutilation
of the offending foot (or feet) and that of false abuses is the fine of five hun-
dred (panas). Moreover, though the import of the latter statement in the
above text, beginning with the clause viz. na vd kincit (i.e. or nothing in the
shape of punishment), is not fit to be narrowed down owing to the whole
statement having been made in continuation of the punishment of the three
higher varnas and also because of the existence of the common antecedents,
yet this latter statement is to be construed in relation to Brahmana offen-
ders only, as the very concluding portion of the above entire text contains
the clause viz. isdnatamo hi brahmanah (i.e. the Brahmana is the overlord
of all human beings). Just like in relation with the following verb upadadhati
(i.e. dresses with) in a Vedic mantra, which calls for the supply of the word
aitjanadravya (i.e. an anointing substance) before it in accordance with the
general rule of construction, the addition of the following sentence viz.
tejo vai ghrtam (i.e. clarified butter is effulgence) just after the above verb,
requires the dressing to be made with clarified butter only, it should not be
argued that the above clause viz. isanatamo hi brahmanak (i.e. a Brahmana
is the overlord of all men) is a similar completing statement of the word

140 3. V. reads brahmanddinam (1.e. of the Brahmanas).

41 PD. V. misreads ksudra° for sadra’.

42 This latter punishment is in conflict with the former one of five hundred panas.
443 PD. V. misreads pdda-cchedane for pada-tddane.

PUNISHMENTS FOR BRAHMANAS ETC. IN SUCH ABUSING 171

svamitvat (i.e. by reason of his being a master of the inferior varnas) as the
superlative suffix fama, which has been added to the adjective fsana, comes
into conflict with the above view, rendering the very theory of the completion
of a previous statement by adding explanatory matter (anuvadamatrasya)
useless (and hence superfluous). Moreover,'4 just like in the following
text viz. (One) should throw sesamum seeds in that place and bind a she-
goat nearby, inasmuch as a Sraddha, vitiated by the depredations of demons,
becomes purified by sesamum seeds and by a goat’, the latter statement,
expressed in the word ajena (i.e. by a goat), has been added to secure the
desired result in a place, devoid of goats, there is also some purpose to be
served here and so the immediately preceding,varna is, by reason of its superi-
ority, the master of the immediately succeeding one and a Brahmana, being
the master of all those masters, is the highest master. So he (i.e. a Brahmana)
only enjoys complete immunity from punishment and a Vaisya and a Ksatriya
shall have to receive some amount of punishment in proportion tothe degree
of their mastership (over the Sidra). This is the real import of the latter
portion of Harita’s text. But this immunity from punishment does! not
hold good in the case of a Sidra, devoid of merits, on the authority of the
occurrence of the epithet gunahinasya (i.e. devoid of merits) (in relation to a
Sidra) in a text of Brhaspati, to be quoted a little below. Owing to the pres-
cription of punishments in all other cases, the word Brahmana (used in the
above text of Harita) does not also mean an ordinary member of the varna,
following agricultural‘and other occupations but a meritorious one, (having a
good way of life), as such a Brahmana only is fit for being the overlord (of all
human beings). So in view of our having allotted a special class of persons
for the enjoyment of the alternative immunity from punishments, as laid
down in the above text with the words na vd (or not), the eight blemishes,
naturally vitiating an alternative prescription (vikalpa), have been dispensed
with in our opinion.

Manu (VIII.269) and Narada (vag. V.17) have laid down: Members of
the twice-born classes (dvijatinam), using ordinary abusive words (vyati-
krame) towards men of their respective own varnas, shall be fined twelve
panas but this punishment shall be doubled in cases where such abusive
words are utterly inexpressible (in the public).

D. V. adds: The word dvijati has been used here in the wider sense (i.e.
in the sense of the three higher varnas and not in the narrower sense of a
Brahmana only), according to Ratnakara (p. 247). The word vyatikrama
means vak-parusya (i.e. abuse) and the phrase avacaniyo vadah means ‘utter-

144 —. | V. wrongly adds na ca (moveover, not) before this statement.
14 DE, $, misreads sa (meaning ‘that’) for na (meaning ‘no’, ‘not’).

172 DANDAVIVEKA

ance of words, not fit to be uttered’ (of. Ratnikara, loc. cit.). Narayana
has interpreted the above phrase as “‘the utterance only (and not commission
of the offence involved) of such statements as ‘you cohabit with your sister’
and similar other expressions.”

Katyayana (V. 775) and USanas have also said: If a person says, ““What I
have said (in the abuse) was said out of ignorance, carelessness, excessive
delight or affection, I shall not'*® again say 80," he should be meted out
half of the punishment (prescribed in such cases).

D. V. adds that according to Ratnakara (p. 244), this refers to such abuses
only as are(comparatively trivial and) avoidable (and not highly reprehensible).

PUNISHMENTS FOR BRAHMANAS AND MEMBERS OF OTHER CASTES
FOR ABUSING MEMBERS OF CASTES OTHER THAN THEIR OWN
are now being stated in due order

Brhaspati (XX.12-13) has thus laid down the punishments of Brahmanas
in these cases: A Brahmana, abusing a Ksatriya, is to be fined half of one
hundred (i.e. fifty paras) and should be fined half of fifty (i.e. twenty-five
panas) and twelve and a half (panas) respectively when doing so in respect
of a Vaisya and a Sidra. The punishment (by the imposition of the above
fine) is for (the commission of the above offence in relation to) an innocent
and good (i.e. meritorious) Sidra but the Brahmana abuser of a Sidra,
devoid of merits, is not to be held guilty.

Sankha-likhita have thus laid down the corresponding punfshments for
Ksatriyas: A Ksatriya, abusing a Brahmana, a Vaisya and a Sidra, is to
be fined one hundred, fifty and twenty-five (panas) respectively.

Brhaspati (XX.14a and 15) has prescribed the punishments for VaiSyas in
such cases in the following words: A Vaisy, hurling abuses on a Ksatriya,
shall be fined one hundred (panas) and a Ksatriya, convicted of the same
offence against a Sidra, shall be awarded a fine of twenty-five (panas), which
punishment shall be doubled in case a Vaisya commits the same offence
against a Sidra, as it has been laid down by persons, conversant with law.
The punishments for members of other castes for abusing a Brahmana, as
laid down by Manu, will described (by us) a little below.

Brhaspati (XX.16) has prescribed the following penalty for Sadras: A
Sidra abusing a Vaisya, a Ksatriya and a Brahmana, shall be fined the first,
the middle and the highest amercements respectively.

D. -V. adds that according to Ratnakara (p. 250) the above three kinds
of amercements are 250, 500 and 1000 (panas) respectively

"4५ ED. V., though reading correctly the words ndham evam as a variant in the footnotes,
misreads the above words as dha naivam in the body of the text

PUNISHMENTS FOR BRAHMANAS दाश, ABUSING OTHER CASTEMEN 17

Manu (VIII.267) says on this topic: A Ksatriya, abusing (@krusya) a Brah-
mana, shall receive the pecuniary punishment of one hundred (paras) and
2 Vaisya, doing the same, that of one and a half hundred (i.c. one hundred
and fifty) or {0147 hundred (कावड). But a Sidra, convicted of such offence,
shall be put to death. D. V. adds the following quotation from and criticism
of the interpretation of Ratnakara (pp. 248-9) on this text:

The Parijata has supplied the phrase madhyamena pdrusyena (i.e. with
the middle kind of abuse) before the verb akrusya of the above text and
according to Kullika Bhatta the punishment of death, prescribed here, is
in the form of torture, which, according to Ratnakara (p. 249) is the!4®
mutilation of the tongue and similar other organs. The Ratnakara (p. 249)
has also added that the above alternative punishments for a Vaisya are to
be inflicted in consideration of the gravity of the abuse. As we have seen just
20096149 in the last text of Brhaspati, beginning with the word Vaisyam,
D.V. continues that a Sidra committing the first kind of abuse, is
awarded only punishment in the form of the first amercement, so the
present interpretation of Ratnakara (borrowed from the P§arijata) of
the infliction (on a Ksatriya, for abusing a Brahmana) of the (punishment,
appropriate to) the middle kind of abuse, is questionable, as in
‘this latter case the punishment should necessarily be lighter than the
first amercement (and not higher than that). If not so, what would be the
proper punishment for a Sidra, committing the highest kind of abuse?
Certainly nos the mutilation of his tongue, which punishment has been
prescribed by the Ratnakara itself for the middle kind of abuse. It should
not also be any other punishment, as no such penalty has been specifically
laid down here. As the author of the Ratnakara (p. 251) himself has explain-
ed the clause viz. anrtabhisamSage tadangacchedah, occurring in the afore-
cited text of Harita, as ‘the mutilation of the tongue is the punishment for
severe abuses’, so a similar punishment is appropriate for the highest (1.e.
harshest) abuse, hurled upon a Brahmana.

Manu (VIII.270-1) and Narada (vag. VV.22-23) have also said: Ifa member
of the once-born caste (i.e. a Sidra) abuses a member of the twice-born
castes (i.e. the three higher castes, who are dyvijas, i.e. twice-born) with the
severest words, he should have his tongue mutilated, as the former has
sprung out of the basest portion (of the Creator’s body). If such a (low-
born) person calls them (i.e. the high-born persons) by their names and

147 T), ई. misreads dvevd (i.e. or two) as tveva.

148 D. V. misreads jihvdcchedddydtmakam as jihvdcchedydtmakam.
148 T. V. misreads qnantaroktam as antaroktam.

10 PD), $, reads bhedam for chedam (read by Manu) here,

174 DANBAVIVEKA

castes out of sheer malice, he should then have a burning iron rod, ten-finger
-long, thrust?*! into his mouth.

D. V. adds: The once-born caste (ekajatih) means ‘a Sidra’, as he has
got no sacrament of the investiture with the sacred thread (upanayana)
performed on him. The word darunayda twith the severest (words)] means
‘with heart-rending words, expressive of the degraded status etc. (of the
person abused)’. The phrase ‘sprung out of the basest portion (jaghanya-
prabhava) means ‘as the Sruti has said that he has been born of the legs
(of the Creator).’ Accordingly, the members of the mixed castes, committing
the same offence against those of the twice-born classes, should receive
the same punishment, as the former have also been born of the baser
portions (of the Creator’s body).(Cf. Ratnakara, p. 252) (Narayana) Sarvajiia
has, however, explained the word ‘ekajdtih as ‘born of the basest caste,
1.6. an untouchable’. The word atidroha!®™ (i.e. malice) has been explained
in the Ratnakara (p. 252) as atiSayadroha (i.e. excessive enmity). But (Nara-
yana) Sarvajiia, having also read the above word as’ ‘ati-drohena’, has
explained it as ‘out of excessive hostility, i.e. out of the desire of abusing,
due to vanity’. Kullika has said that a burning iron rod is to be thrust into
the mouth (of the accused).

Manu (VIII.273) again says: He, who speaks falsely (vitathena) about
(i.e. distorts the description of) the learning, the country (of residence),
the caste, the actions (Karma) and the limbs of the body (Sdariram) of another
person, out of vanity (darpat), shall have to pay the fine of two hundred
(panas) |

D. V. adds: Acco rding to the Ratnakara (p. 253), the actions (karma)
consist of penances and the word sdriram means ‘limbs of the body’. The
word darpa is nothing but ‘casting aspergions on another person, due to
a firm conviction of one’s own merits’. The word vitathena means ‘falsely’
and the third case-ending, affixed to it, is by virtue of the grammatical rule
viz. prakrtyadibhya upasamkhyanam (i.e. the third case-ending is also added
to words such as prakrti). So, where anyone expresses untrue statements,
out of vanity, about the learning, country, caste, performance of penance
and bodily limbs (of another person), the former should be fined two
hundred (panas). The false statements about all the above things (relating
to a person) may be thus:

151 TD). V. reads vidheyos yamayak for niksepyos yomayah, read by Manu and given by
D. V. as a variant in the footnotes

189 Ratnadkara (pp. 251-2), though reading thus in the body of the text and comment
gives the variant abhidroha for both the readings in the footnotes

183 But D. V. has read it as atheti pathit¥a, which seems to have been ariti° (=atl-+ iti)
164 D—. V. misreads ddrdhyena as darghena,

PUNISHMENTS FOR SPECIFIC ABUSES 175

“This person has not read the Vedas”, “The country of residence of this
person is not the Aryavarta’’, “This person is not a Brahmana”, “This man
has not performed penances” and “This man is not a person with a good
skin.” But according to Kullika Bhatta, the words sariram and karma
are in apposition and mean together “(This man has not) gone through'®*®
the rite of upanayana (i.e. investiture with the sacred thread), which is a
Sacrament (Samskara), performed on the body”. Narayana, however,
has explained the above two words as ‘carrying a load etc.’ and added that
a member of the twice-born classes only, while making such false statements,
is to be punished as stated 0०५८ and not a Sidra, who deserves the punish-
ment of death. This latter portion of Narayana’s interpretation is justifiable
on account of the various texts cited above. But the punishment of death,
laid down by Narayana, is to be narrowed down to the mutilation of the
tongue. So the opinion of Kullika Bhatta that this text (of Manu)
relates to abusing between the members of the same castes is also
acceptable.

SPECIFIC PUNISHMENTS FOR SPECIFIC OFFENCES'®’ OF THIS (VAK-)
PARUSYA (1.6. ABUSE) CATEGORY

Vyasa has said on this topic: The utterers of statements, attributing ordi-
nary sins, minor sins and grave sins (to other persons), shall be punished
with the first, middle and highest amercements respectively.

Yaj. (11.210) also says: A person, casting aspersions on another person,
charging him with degrading sins (pdtaniya-kyrtak sepe) and with minor sins,
is to be fined the middle and the first amercements respectively.

D. V. adds that the phrase patantya-krtaksepe means ‘charging him with
Bra@hmana-murder and similar other (grave) sins, causing degradation
of a person’, and that the above text seems to be concerning the highly mert-
torious persons, accused of doingso.

Visnu (V.29-32) lays down: The highest amercement is the punishment
(for a person) for charging another person with degrading sins (patantya-
ksepe) and the middle amercement for doing so with minor sins. (The
highest), (the middle) and the first amercements are to be inflicted on persons
casting aspersions on the aged masters of the Vedas (traividya), on the several
castes and guilds (of merchants) and on the village and the country (of resi-
dence of other persons) respectively

165 ED, V. reads nayam duscarma but Ratnakara reads ndyam aduscarmd, which is the

correct reading.
166 [). $, reads taditi but Kullika reads the portion as Artam iti.
157 (>), V. reads fesu tegu padrusya-visese for” visesesu.

176 ` DANDAVIVEKA

D. V. adds that the words uttamg-sdhasam (i.e. the highest amercement)
and madhyamam [i.e. the middle (amercement)] are to be supplied after the
phrases viz. traividya-vrddhanam and jati-piiganam respectively.

Yaj. (11.211) also says (in support of our above interpretation): The highest
amercement is (the punishment) for abusing the masters of traividya 6.6.
the Vedas), the king (mrpa) and gods, the middle. amercement for doing so
against the guilds of several castes and the first amercement for such offence
against the village and the country.

D. V. adds: The word traividya means ‘a person, conversant with the
three (pre-eminent) Vedas such as Rgveda, Yajur° and Sama” and the word
71/00 means ‘a ruler of subjects, i.e. a king’. The phrase jati-piga means ‘a
collection (piga) (i.e. a guild) of the Brahmanas, the duly installed (Ksatriyas)
and similar other castes (jati)’. Some authority has suggested the supply
of the phrase upapdtaka-yukta (i.e. concerning minor sins) after the words
grama-deSayoh prathamah (i.e. the first amercement in cases of reviling a
person’s village of country), on account of the fact that those words just
follow the words madhyamo jati-piiganam, the offences regarding which
(i.e. the collection of the guild of the Brahmanas etc.) have been made punish-
able as minor sins, which alone entail the fine of the middle amercement
upon the offender. This view is wrong, inasmuch as the extenuation of
punishments has been made only in consideration of the comparatively less
criminality of the person to be charged or not to be charged with a particular
offence, the criminality in each case having been determined from other
Smrti texts, as Brhaspati (XX.17 and 19) has said: One, who casts aspersions
against another person’s country (or village), shall be fined twelve and a
half panas.and one, (falsely) connecting another with the commission of a
Sin, out of sheer vanity, shall be punished with the first amercement. I (i. e.
Brhaspati) have laid down these punishments for those classes of offenders,
which should be meted out by the wise men just as prescribed or may
be extenuated or aggravated (according to the circumstances of each
case).

Narada (Vag. V.19) has also said on this point: One should not impute
with any sin either a person, who has undergone expiatory rites in confor-
mity with the Sdstras or one, who has already been punished by the king.
A sinful person, acting in contravention of the above rule, deserves punish-
ment.

Yay (11.204) has laid down the following punishment for the above imputa-
tions: One, who casts aspersions against persons, deficient in limbs or organs
_of sense or against diseased persons by true or false statements or improper
praises, shall be fined twelve and a half panas.

PUNISHMENTS FOR SPECIFIC ABUSES 177

v

D. V. adds: The word roginah (i.e. diseased persons) means ‘lepers and
similar other persons’. A true statement may be such as ‘calling a blind man
blind’ and a false statement is ‘attributing deficiency in any limb or organ
of sense to one of perfect limbs or undestroyed organs’. An improper
praise means ‘calling a blind man as one with perfect vision’. All these state-
ments are concerning the same caste of the imputer and the person imputed
against, as this view is deduced from the following text of Brhaspati (XX.5):
Twelve and a half panas have been laid down in works on law as the punish-
ment for abuse between members of the same caste, possessing similar merits.

Visnu (V.27) says: A sooth-sayer of persons, deficient in one eye and
lame men, shall also be punished with the fine of a karsapana.

D. V. adds that the word Karsdpana here means a pana and that the pres-
cription of the above punishment is to be construed as concerning poor men
of the same castes and equal merits, to avoid inconsistency (with the text
of Brhaspati, quoted just above).

Yay. (11.289) has further said: A person, accusing a woman (sérf) (of
blemishes), shall have to pay (the fine of) one hundred (panas), which will
be doubled if the accusation is a false one.

7. V. adds: The word stri here means a kanyd (i.e. an unmarried girl).
So if a person accuses an unmarried girl by declaring in public that the girl
has been suffering from such chronic and disgusting diseases as epilepsy and
phthisis or has already been deflowered, and by divulging similar blemishes,
is to be fined a hundred (paras). But when a person does so by falsely attri-
buting to her non-existent faults, he is to be fined two hundred (panas).
But when one speaks out the really existing faults of a girl, just about to be
given away in marriage, such an accuser is to be considered not all guilty,
according to a text of Narada, to be quoted below.

The same authority (i.e. Yaj. प्र.205) further says: One, who curses another
man by saying to him, ‘I have cohabited with your sister or mother’, shall be
punished by the king with the fine of twenty-five (panas).

D. V. adds: According to the Mit., by the use of the word ‘sister’, coha-
biting with (that man’s) wife is also implied. But the Vivada-cintaémani
(of Vacaspati Misra) (cf. p. 110) has read the first line of the above text

‘Abhigantads si bhagininh mdataram5’?4 yan mameti hi’ (i.e. you have
cohabited with my sister or mother)

Yaj. (11.208-9) further says: If a person orally threatens another person
that he would break his arms, neck, eyes or thighs, the former shall be
fined one hundred (panas) but the fine will be reduced to its half (i.e. to fifty

1572 VC. reads yamayediha for yan mameti hi.
23

178 DANDAVIVEKA
@

panas), if the threatening is concerning the legs, ears, nose, hands and similar
‘other organs. If the threatener is really unable to translate into action (what
he says by way of threatening another person), he is to be fined ten panas
only (in both the above kinds of uttering threats) but (the above two kinds
of fines viz. one hundred and fifty panas are to be realised and) a surety .
secured from a threatener, who is really able to put into effect his above
threats, for the safety of the person, threatened by him

D. V. adds: According to the Ratnakara (p. 247) and other authorities,
by the use of the phrase viz. bahu . . . sakthi-vinase (i.e. breaking of the arms

. thighs) the major limbs are implied, while by the use of the phrase begin-
ning with pada (i.e. the legs), the minor limbs are taken into account. These
punishments are to be inflicted when the parties belong to the same castes.
(cf. Ratnakara, p. 247).

Manu (VIII.275) has said: A person, abusing (aksdrayan) his own par-
ents, wife, brother, son or teacher and one, not allowing passage for one’s
teacher or superior, are to be fined one hundred (panas).

D. V. adds: According to the Ratnakara (p. 248), the word aksdrayan

in the above text measns ‘committing an offence of the category of vak-
parusya’ but according to Halayudha, it implies ‘charging him falsely with
a curse’. Narayana has, however, explained the term as ‘abusing (him or her)
with condemnable cohabitation’ and thus illustrated it that ‘ulterances,
such as abusing one’s own wife, mother etc. by telling them that their
mothers are unchaste women, come within this category’. Kullika B hatta
has also said that as the words aksdrita, ksdrita and abhisas¢a have been
classed as synonyms in the Abhidhana-kosa (a Sankrit dictionary of synonyms),
so the word dk sdrayan means ‘charging a person with minor sins and similar
other lapses’ and similar punishment (constituting the fine of one hundred
panas) (is to be inflicted on the offender) for thus cursing'®** his mother, brother
and similar other relations. But the author of the Mit. has expressed the
opinion that the above offence relates to innocent mother and similar other
respectable relations and to guilty wife and similar other dear relations.
Medhitithi has, however, explained the term a@ksarana as ‘dissension’ and
added that the above prescription relates to persons, causing dissession
among their own mothers and other relations. But the Dharmakosa, having
read the word aksa@rayan as akroSayan, explained the verbal noun akrogana
as ‘calling such persons with words of censure’.

Brhaspati (XX.9a) has said: One, who abuses one’s own sister and similar
other relations, shall have to pay the fine of fifty (panas).

168 7, V. reads °Sapanena for §dpena, read in Kulliika’s com.

PUNISHMENTS FOR SPECIFIC ABUSES 179
®

In the topic of abusing the judge and in continuation of the word Krosatah
(i.e. shouting against) Sanhkha-likhita have laid down:

(For abusing) the judges, teachers (and superiors) and Brahmanas general ly,
the proper punishments are reproof, harassment, besmearing™®® (the body
of the culprit) with cowdung, making him mount on an 8258160 or any other
vanity-curbing punishment

D. V. adds that all these alternative punishments are to be inflicted in
consideration of the gravity of the offence

The following half-verse of Manu (IX.232, 2nd and 4th feet only) is also
to the same effect :( The king) should put to death the fault-finders (ditsakan )
of the ministers (prakrtindjfica) and the associates of the enemies (of the state).

D. V. adds: According to the Ratnakara (p. 369), the word prakrtinam
means ‘of the ministers’ and the word diisakan means ‘those, who falsely
find out faults (of the ministers)’. But Kullika in his commentary on Manu
has explained the latter term as ‘dissension-creators’.

Visnu (III.33-34) has laid down: The svami, the amatya, (the friends of the
king,) the treasury, the danda (i.e. the criminal law) and the well-wishers
(of the state) together constitute prakrti-s and (the king) should put to death
all those, who find faults with (or create dissensions among) them.

D. V. adds that the word 5147111 here means ‘the king’ and that the Ratna-
kara (p. 369) has explained the word amatya as meaning ‘the principal citizen’:
The punishment of death, prescribed in the previous as well as in the present
text, relates to persons, other than Brahmanas, who should, however, be
punished with the substitutes of that extreme penalty.

Narada (vag. V.20 and cf. vag. V.30) has laid down the following punish-
ments (of a Brahmana) for abusing the king: The following two persons,
viz. a Brahmana and the king are known in this world to be beyond censure
and outside the penalty of death,sas these two sustain the world. (So a Brah-
mana), abusing the king, who has not deviated from his own path (vartmani
sve vyavasthitam) (i.e. proper administration of the subjects), becomes
purified (i.e. absolved from his guilt) by the mutilation of his tongue or by
the forfeiture of his entire property.

D. V. adds: The phrase viz. vartmani sve vyavasthitam means ‘in the
absence of such faults of the king as dereliction of his duties of looking over
(the welfare of) his subjects, punishing the innocent and similar other lapses.
The immunity of the judges, while discharging their duties (and incidentally
casting aspersions against the king), has already been shown by us in the
(first) chapter on (the theory and practice of) punishments.

199 T). V. misreads gomaydpralepanam for gomaya-pralepanam.
16 D, V, reads khardrohanam for khardropanam read in Safkha-likhita,

180 - DANDAVIVEKA
त

Yj. (11.302) has laid down: (The king) should cut off the tongue of the
person and banish him (from the territory), who indulges in speaking against
the king (anis{a-pravaktaram), abusing him (tasaivakroSakam) and divulging
his state secrets (tan-mantrasya ca bhettdram)

D. V. adds: The Mit. has read akrosfinam for akrosakam in the above text
and explained the entire text as follows: The word anisfam means ‘praises
etc. of (the king’s) enemies’ and pravaktdram means ‘indulging in always
speaking,’ while the word dkroSinam means ‘in the, habit of blaming the king’
and the phrase viz. mantrasya ca bhettaram implies ‘dinning into the ears
of the king’s enemy (kings) the secrets of the former king, (formulated by
him) for effecting growth of his own state and destruction of the enemy

tates’. The king should order mutilation of tongue of such (hostile) person
and turn him out of his own state

D. V. further adds that the previously quoted text of Yaj. (1I.211a), laying
down the punishment of the highest amercement, refers to lighter abuses of
the king only and is thus not contradictory (to this latter statement of the
same authority). The following statement of Katyayana (V.955b) viz. ‘(The
king) should order the sentence of death for him who speaks evil (apriyasya
ca yo vakta) (of the king)’, is in relation to non-Brahmana offenders only.
The Ratnakara has explained the above statement as ‘those, who are in
the habit of speaking things, unpleasant (i.e. injurious) to the king, are to be
put to death’. USanas has thus laid down in the following text that the cases,
where no specific punishments have been prescribed, are to be adjudged
in accordance with the respective gravity of the offences, fallixg within the
categories of cruel, obsecne and severe abuses: (The king) should manipulate
the danda (i.e. punishment) having regard to the circumstances of the parti-
cular cases, where the earlier high-souled ones (i.e. legal authorities) have
not laid down in detail the appropriate pernalties.

D. V. adds that this principle (of discretion) is also to be followed in all
other cases (of the administration of criminal justice).

Narada says: Where an utterance is made (by a person) of degradation
(to befall on another person) on the authority of the Sastras with the (good
intention of) effecting the shunning (by the latter of bad company), the former
thereby incurs no fault but if otherwise, he becomes equally guilty as the
degraded persons themselves and the punishment for such false utterances
is the highest amercement. The king should carefully consider the false
statement, if any, made to him and should as a corrective measure order the
mutilation of the tongue of persons, who arein the habit of spreading
untruths

D, V. adds; The above punishment of mutilation of the tongue is concern-

PUNISHMENTS FOR SPECIFIC ABUSES | 181

@
‘ing non-Brahmana offenders only, that for the Brahmana culprits being the
highest amercement (spoken of earlier in the above text).

Harita says on this topic: Those persons, who assemble together for
(the evil purpose of) falsely slandering others, should have their tongues cut
off or should each be fined one thousand (panas). ` |

Katyayana (V.673) has said: He, who can eat in the same plate or in the
same row with another, shall be punished, if he refuses to do so without.
pointing out the fault (in him that prevents such commensality of taking
food together). D. V. adds that though the above offence relates to one’s
action and not to va@k-pdrusya proper, yet, owing to the existence of the rule
of prohibition (of interdining in the same plate or in the same row by persons
of different ages and castes) and also due to the similar culpability of such
(unpardonable) lapse, the above text has been quoted here.

Brhaspati (cf. XXI.19) has laid down: A person, if shouting, having been
shouted against (by another person with abuses, hurled upon him), does
not thereby become guilty (of any offence whatsoever).

Narada says: When an abuse has been uttered (by a person against
another) out of anger, generated between two persons, the latter is respected
(manyate) (if he) forgives (ksamate) and does not indulge in counter-abusing
the abuser but if he makes a counter-abuse (ativartate), he becomes guilty.

D. V. adds: The author of the Ratnakara (p. 273) has explained the words
manyate as ‘is respected, i.e. is not made punishable’, ksamate (i.e. forgives)
as ‘does not indulge in counter-abusing’ and ativartate as ‘spreads the offence
of (vak-) parysya’ 1.6. ‘makes a counter-abuse’. So, according to our opinion,
the innocence of the abused person in shouting against the abuser, relates
to the absence of repetition of the abuse, which, if repeated, shall make the
counter-abuser certainly liable to punishment. In fact, the plain meaning
of the above text is that he, who, being unable to bear the insult, simply
shouts against (the abuser, who has hurled the insult upon him,) is not liable
to punishment.

The Ratnakara (p. 275) has further said that the consideration of innocence
in the absence of the repetition of the above offence, as laid down in (the
above text of) Brhaspati, should be construed in relation to the same or
lower social status of the abused person but even if such shouting (but not
hurling counter-abuse) against a person of a higher social status is made,
it shall then be counted as an offence.

Brhaspati (XXI.5) lays down: When a person of lower age or inferior social
status transgresses (the respect, due to) a person of higher age or superior
social status, by abuse etc. the latter, when chastising (sa eva tagayan) the
former, should be sought after (for punishment) by the king.

182 DANDAVIVEKA

@

D. V. adds: The punishment (for such abuses) falls into two definite
categories, first, appropriateness of the infliction of punishment (on the
abusing person by the king himself) and secondly, taking the law into one’s
own hands from those of the king (and making assaults, which are im-
proper,) by the abused person, as is evident from the use of the clause sa eva
tadayan (in the above text). This latter method (of taking the law into one’s
own hands) is permissible only in the cases, cited in the just following text
of Narada and may also be allowed in any other case (not cited in that text),
in accordance with the principle of equity.

Narada (vag. VV.11-14) has laid down: Immediate (corporal punishment) .
(by the abused person) of the following classes of persons for having trans-
gressed the legal prestige (of the former) is the settled law: Untouchables,
pasu-s, Candalas, prostitutes, executioners (and butchers), the elephant-
tamers, the outcastes, the slaves and those, who flout the advice of (superiors)
and teachers and the wise have declared that such (taking the law into one’s
own hands) does not turn out to be an offence, amunting to assault. The
very person of higher social status, who is flouted by these persons, shall
himself administer the (requisite) punishment (on them) and shall not thereby
render himself liable to consequent punishment by the king, as these (listed)
persons are, as if, the dirt of human society and so their money is also dirty.
Consequently the king should, when necessary, put them to physical
harassment but should never inflict pecuniary punishments upon them.

D. V. adds the following comments: According to the Ratnakara (p. 275),
the untouchables (svapaka) are those, procreated by an Ugra ig a Ksatriya
woman. According to our opinion, they are persons, born of the union of
Ksatriya males and Ugra females, as Manu (X. 19a) says: ‘A
person, born of a Ksatriya in an Ugra woman, is known as a $§vapdaka’.
Devala has, however, said that the members, of the twiceborn classes have
termed a person, produced by a Kgatriya man in a Sidra woman, as an
Ugra. The word pasu (in the above text) means ‘an impotent
person’. The Mit. has, however, read it as Sanda (meaning the same). A
(8104818 is a person, generated by a Sidra male in a Brahmana female. The
word badhaka-yrtti (i.e. executioners and butchers) means ‘one, who lives
upon the killing (badha) of others (i.e. men and animals)’, the pleonastic
suffix kan having been added to the word badha to make it badhaka, accord-
ing to the Ratnakara (p. 275). The Kamadhanu and Kalpataru have read
the portion vesyd-badhaka-vrttigu as veSydsu badha-kartrsu, which is a clearer
reading but the Mit. has read it as vyangegu badha-kartrsu (Le. regarding
persons, deficient in limbs and executioners and butchers). The slaves refer to
those, who have been born in the master’s house. The word ghdata (i.e. killing)

PUNISHMENTS FOR SPECIFIC ABUSES 183

means ‘physical torture or harassment’ and the addition of the particle eva
(just after it)implies that fines should never be imposed (on them). The under-
lying principle of the last two verses of the above four verses (of Narada),
beginning with the words yam-eva is:

The persons, affected by the abuses of the untouchables (svapaka) and
all the other classes of persons, specified above, should themselves punish
them and the king should not take them to task for taking the law into their
own hands. But if these former persons do not do so out of prestige or in-
capacity, then only should the king punish the above latter classes of persons.
The king should also harass them but never fine them, as they are the pests
of the society and hence are cursed human beings. So their money is also
cursed. (of. Ratnakara, p. 276). Further remarks on the above topic are to
be sought for in the (next) chapter on danda-pdarusya (i.e. assault).

Here ends the fifth chapter on vak-pdrusya in the Dandaviveka, composed
by Mahamahopadhyaya-dharmadhikaranika—Sri Vardhamana.

CHAPTER VI

PUNISHMENTS FOR ASSAULT (DANDA-PARUSYA) |

Brhaspati (XXI.I) has thus defined it: Striking a person with hands, stones,
clubs, ashes, mud, dust and weapons is termed as dandapdrusya (i.e.
assault).

D. V. adds that three kinds of assault, viz. by means of ashes and similar
things, clubs etc. and weapons respectively, have been spoken of here and
these three kinds are successively graver (in point of culpability). |

Narada (vag. VV.5 and 6a) also lays down: This offence (i.e. assault)
is also of three kinds, committed as it may be by the use of lighter, medium
and heavier agencies, resulting in raising only, and striking only with them
but shedding no blood (of the assaulted person) and doing so (of the
above person).

D. V. adds: Here as the beginning, the very commission and. the conse-
quent result constitute the three parts of the above crime, so the crime itself
has been spoken of as consisting of three kinds viz. light, medium and heavy,
which have been said to be successively graver. All these varieties of the
above offence are of two kinds, viz. self-made and caused by other (instruc-
ted) men. The first variety also is of two kinds, viz. mutually started and
started by either of the parties. The assaulter may also be of many types
in view of the singularity or plurality (of the assaulting persons) and of the
good and other kinds (of those persons). The assault may also be of four
kinds in considerations of the movable and immovable character of the
thing or living being assaulted and of the biped and quadruped character
of the living beings so treated. Moreover, the pecuniary condition of the
offenders in such cases is also to be taken into account. All these considera-
tions, applicable to particular cases and justifying the imposition of parti-
cular punishments, are to be looked for in the introductory chapter (of this
work). (The judge), while punishing the culprits for this offence, must also
arrange for the paying back of the part of the booty, if recovered (to the
person, whose articles have been stolen), the repairing of the property of the
assaulted person, imposition of the double penalty (in some cases) on the
assaulter (who has also stolen things of the assaulted person), the payment
by the severe assaulter of the medical expenses (of the assaulted person)
and similar other connected matters

Yaj. (1.221) has laid down: Anything, stolen by a person (from another
person), after having picked up a quarrel with the latter, should be ordered

PUNISHMENTS FOR ASSAULT 183
> |

to be restored to the owner and twice the value (of the thing stolen) should
also be exacted from the assaulter.

Katyadyana (V.788) also says: Those (offences), for which admonition
and harassment of the offenders have been laid down as punishments, should
also be decided after having compelled the offenders to restore or repair
the property, stolen or damaged (bhagnam), (to the real owners) but the
poor persons (unable to do so) should be ordered to compensate by their
labour. 3

D. V. adds: The word bhagnam (i.e. broken or damaged) means ‘houses,
(private) roads etc.” The poor culprits should compensate for their offences,
relating to property, by serving the aggrieved person.

Manu (VIII.287) has laid down: (Persons, convicted of) having inflicted
injuries on the limbs (of another person) or of causing bruises (vruna) to or
discharge of blood from (his body), should be ordered (by the king) to pay
the necessary expenses!*! (of medicine and diet) or additional fines (along
with those expenses).

D. V. adds: The word vrana, according to Narayana, means ‘piercing
through the flesh (of the body’.) If the inflicter of the above injuries by means
of cutting into the body or breaking hands and other limbs of another person,
declines to pay the necessary expenses of medicine and diet of the injured
person, then the king should not only compel him to pay the above expenses,
but also inflict necessary and additional pecuniary punishment upon him.
Some MSS. of Manu has read prana instead of vrana in the above text and
Narayana Ins explained the former as ‘balam’ (i.e. strength).

Katydyana (V.787) has also said: While prescribing punishment for the
injury effected (and consequent disability to work generated) of the bodily
organs, the persons, proficient (in law), should follow the rule of exacting
from the offender some amoun? of money for appeasing the person injured
and also such amount as is sufficient for healing his wound (and making
his body fit for work).

Visnu (V. 75-76) also says: All those persons, who inflict injuries on the
bodies of human beings and domesticated animals, shall have to pay the
necessary expenses of healing up the injuries.

D. V. adds: In cases, where an animal (belonging to another person)
cannot be healed up even by exacting the above expenses of medicine and
diet from the injuring person, the latter shall have to pay either a substitute
animal or its price to the owner of the animal.

Yaj. (11.225-6) says on this topic: In cases of hurting, causing flow of

161 0. V. misreads samutthdna-vyayam as rvsaasvafica vyayam.
+ |

186 94५४८

blood and cutting off of the principal and subsidiary organs (sakhdnga-
cchedane) of the small animals, such as goats, the corresponding punishments
begin from two panas, being doubled in each succeeding case (dvipanad dvi-
gunah). But in cases of castration of the male animals orjputting them to
death, the fine of the middle!*2 amercement, along with the payment of the
price of the animal concerned, shall have to be imposed. The punishments
in all the above cases, concerning big animals (such as horses), shall be twice
of all the above-prescribed punishments.

D. V. adds: The word sakhd of the compound word sakhanga-cchedane
means horns and similar other limbs (of the animal’s body), from which no -
other organs sprout up and the word क्व of the above compound means
hands and feet (of the animal’s body), from which other parts (viz. fingers
and toes) sprout up. Halaéyudha and Ratnakara (p. 277) have thus explained
the above terms.’*, But the Mit. has read dvipandd dvigunah as dvipanah'"
prabhrtit and has added the following interpretation:

It should not be argued on the basis of the phrase dvipanak prabhrtih
that two, three, four and five panas are meant here (as successive punishments).
The numbers ‘three’ etc., even when logically following from the prescription
of successively higher punishments, according to the comparative gravity
of the offences committed, have never been laid down as the numbers, quali-
fying the amount of fine (to be paid in coins) as these numbers create cum-
brousness. So it is better to suggest the successive even numbers following
the above prescribed dvipanah (i.e. two panas), i.e. two, four, six and eight
panas. 7 ८

Visnu (V.77\and 50-54) says: The killers of such animals as an elephant,
a horse, a cow and a camel should have one of their legs cut off. A killer ofthe
rural (i.e. domesticated) animals should be fined one hundred Karsdpanas
and should also be compelled to pay their price to the owners of those
animals. But a destroyer of the forest animals shall be fined fifty Karsdpanas
only, while the killer of birds and fish shall be fined ten Kadrsapanas and
that of insects one Karsdpana only.

D. V. adds: The above punishment applies, according to the Krtyasagara
and Smytisdra, to those, who do not eke out their living on (the killing of)
those animals. But Halayudha has said that the above punishment shall be

1! The D. V., though giving the variant ‘mrtyau madhyamaly’ as a variant in the footnote
(p. 221) and explaining the phrase as ‘mdrare ca madhyamasahaso dandah’ in the correspon-

ding comment (p. 222), misreads the phrase as ‘mrtydvadhamo’ in the body of the text
(p. 221).

1% D. V. omits Sogitetpdde in the comment on the above text by Haldyudha and Ratna-
kara, found in the latter work.

i DPD. V. misreads it as dvigunah etc.

PUNISHMENTS FOR ASSAULT 187

®
inflicted only upon those killers of insects, fish and other animals, owned
by others, as is evident from the mention of the payment of the price to the
owners (of those animals) (in the above text). |

Katyayana says: Persons, charged with the slaughter of animals and
birds and of serpents, cats, ichneumons, dogs and boars, should be fined
three or twelve panas (as considered appropriate)

D. V. adds: The punishment of three panas only applies to the killing of
the most insignificant animals and birds and that of twelve panas to that of
good (i.e. useful) animals and birds. The punishment of fifty panas, laid
down in the (previously cited) text of Visnu, is concerning the slaughter
of the best (i.e. the most useful) animals and birds on the authority of a text
of Manu to be quoted below. |

Fathers and similar other superiors, if instigating sons and similar other
relations to commit assault (on others), are to be held guilty but not other-
wise. This topic will now be discussed.

Narada (cf. vag. V.32) has laid down: If a son, a dog or a monkey has
not been instigated by the father or the owner of those animals to commit
a crime (relating to assault), the latter shall not be liable for punishment.

व]. (11.300) has said: The owners of toothed and horned animals, who
are capable of clearing (the public road of those animals) but do not do so,
are to be punished with the first amercement, which shall be doubled in case
of cries (vikruste) (of the passers-by).

D. V. adds that the word vikrugsfe means ‘‘when (a passer-by) has more than
once cried oyt “Remove your horned animal‘ (from the path).”

The same authority (i.e. Yaj. I1.298) has further said on this point: A
person, riding on his own quadruped or practising so on a quadruped,
owned by another person or carrying or practising the carrying of a (large)
piece of wood (or a heavy stone) but warning with a shout the pedestrians
beforehand, shall not be held guilty.

D. V. adds: The word quadruped (catuspada) means ‘a horse, a bullock
etc.’

Manu (VIII.290) says on this point: There are ten exceptions to the culpa-
bility of a conveyance (ydna) or its driver'®® and its owner but in all other
cases, there is definite guilt (on the part of those two classes of
persons)

D. V. adds: Though the beasts, drawing a conveyance such as a chariot,
are immune from punishment, yet the man, carrying a palanquin, enjoys no
such immunity and hence the word ‘yana’ has also been included here, accord-
ing to Narayana. —

165 DF), V. misreads yantusca as jantusca,

188 DANDAVIVEKA

The same authority (i.e. Manu VIII.291-2) has thus enumerated the ten
exceptions: Manu has laid down immunity from punishment of both the
puller and the owner in the following ten cases

When the noose, bound through the nose of the drawing animal (of a
chariot), has been torn off, when the yoke (of the chariot) has been broken,
when (the chariot) has swerved from the real path due to the unevenness
of the ground (tiryak), when another chariot from the opposite direction
has suddenly arrived (pratimukhagate), when. the axle (or central spoke)
within a wheel (of the chariot) or a wheel has been broken, when the leather
strap, the binding rope around the neck of the animals or the rein has been
torn or when the driver (of the chariot) has shoutingly warned the pedestrian,
to move away (from the path).

166T), V. adds : The word pratimukhdgate means, according to Narayana
“come by making an about turn’. The compound word firyak-pratimukhagate
means the following according, to Ratnakara (pp. 279-280): Owing to the
proceeding in a slanting (tirjak) and opposite (pratimuka) direction and
thereby colliding with another chariot. |

The same authority (i.e. Manu VIII.293) further says: Where, owing to
the want of experience of the driver, the horses or other drawing animals
(of a chariot) deviate from the right path and loss of lives occurs as a result,
the owner (of the chariot) should be fined two hundred panas.

D. V. adds: Here the driver having been appointed by the owner (of the
chariot), the latter becomes punishable for his fault in appointing an un-
trained charioteer. The commentary on Manu'® (by Kullika) says that
the punishment is here on a par with that laid down by Manu (VIII.296)
himself, beginning with the words manusya-marane ksipram [by a sudden
(but unprovoked) killing of a man]

The same authority (i.e. Manu VIII.294) has said in the following text
the immunity from punishment of the owner of a chariot, who has appointed
an experienced driver

If the driver (appointed) is an experienced one, he is then to be punished
but when he is not an experienced?®* one, all the persons, who have ascend-
ed the chariot, are to be fined one hundred panas each and neither the owner
nor the driver (of the chariot).

166 Other explanatory matters, reproduced by D. $, from Ratnadkara (12८. cif.) and
included by us in the English rendering of the above two texts of Manu, contain many
misreadings

१०१ But Kulluka has made this statement in connection with his comment on the next
verse, relating to the punishment of the driver and not to that of the owner

198 PD, $, misreads prajake Sndpte as prajako Sndptah,

PUNISHMENTS FOR ASSAULT 189

D. V. adds: According to (Kullika) Bhatta, the passengers of the chariot
but not the driver and the owner!®® become punishable for their fault in
boarding a chariot, driven by an inexperienced driver. But according to
Narayana, all those persons of the chariot, who have been taught by the
owner to defend the driver, are to be punished.

The same authority (i.e. Manu VIII.295) further says: But if he (i.e. the
driver), having been obstructed in the way by other beasts or (vd) by any
other chariot, brings about the death of living beings, his punishment is
beyond consideration. ‘

D. V. adds: Here the particle vd (i.e. or) means non-finality, and hence
includes cases of going down slopes, rising upwards, going in aslanting direct-
ion etc. According to Ratnakara (p. 281), “‘when the chariot, owing to the
want of experience of the driver, becomes obstructed by an animal or by
another chariot and thereby causes the death of any creature, the punishment
of the driver is certain in those cases.”’!”° But Narayana, after having prefaced
his comments on the above text (of Manu) with the sentence, viz. ‘(Manu)
has laid down (this test) in cases of death, brought about by circumstances
beyond one’s control’, interpreted it as meaning ‘the punishment here
has been left undecided (dando S vicaritah) (by the sages) i.e. no punishment
results (from such happenings)’.

The same authority (i.e. Manu VIII.296) now lays down the particular
punishments for the charioteer for having caused the death of particular
animals (by rash and negligent driving):

In causing the sudden (and unprovoked) death of a human being, the
sin or culpability like that of a thief accrues (to the driver) and in doing
so in relation to such big animals as the cow, the elephant, the camel, the
horse and similar others, half of the above culpability (attaches to him).

D. V. adds: (Narayana) Sarvajiia has prefaced his comments on this
text (of Manu) by saying that (Manu) has thus laid down the punishment
for intenttional murder with cudgels and similar other things. But Hala-
yudha has said that by the insertion of the word ‘cauravat’ (i.e. like a thief)
the analogy here is with the pecuniary punishment for a high crime and not
with the sentence of death, half of which is impossible in view of the phrase,
inserted in it viz., ‘half of that is to be meted out in cases of (killing) cows
and other animals’. The Ratnakara (p. 281) is also of the same opinion.
So also is Kullika Bhatta, who has explained the text as laying down the
highest amercement as that for a thief. But Narayana Sarvajiia has said
that half of the fine, imposed on the theft of a particular animal, is to be

168 T). $, reads svdmi-vyatiriktah (i.e. except the owner).
. 1% [—. V, contains many misreadings in the above extract,

190 DANDAVIVEKA `

levied for the (sudden and unprovoked) killing of that animal. This is right,
as this punishment is not (in any way) conflicting with that, laid down in
the (previous) chapter on murder, where such slaughter of human beings
is with the express intention of committing so, whereas here such man-
slaughter has been brought about through negligence only. In one case,
the assault is inflicted (on a person) with the motive of causing his death
and in another case, the motive of assault is simply to cause pain in his body
and by chance the assaulted person succumbs to the injuries. So it is proper
to take into account the relative gravity of both the above criminal actions,
committed by the assaulter. Therefore, the question of prescription of parti-
cular penances for killing cows and similar other animals, with intention or
without intention as the case may be, has arisen. It is for this reason that the
(previous) digest-writers have introduced the above text of Manu in the
chapter on (danda-) parusya (i.e. assault) and not in that on murder. This
conclusion is also not in conflict with thetext of Brhaspati viz. ‘death-sentence
(should be meted out) in killing’, introduced by those (digest-writers) in
this chapter (on assault), as that very text is also in connection with inten-
tional murder. The above text (of Brhaspati) is to be construed to those very
cases where, however, a person, having been exhausted in consequence
of various ways (of assault, inflicted upon him), is on the point of death and
is still being assaulted with heavy rods or a man dies, due to the thrusting
into his person of a dagger and similar other mortal weapons, and thus no
inkling of contradiction between the texts (of Manu and Brhaspati) is known
to exist here. The fact is that the reading ghdtane (i.e. in cases of killing)
in the above text of Brhaspati is corrupt, the-Kamadhenu and other authori-
ties having read it as j‘pdtana (i.e. patane)’. Moreover, as the punishment
for cutting off (another person’s) ears and similar other organs is twice the
middle amercement, prescribed in the latter portion of the above text for
piercing into them, so twice the highest amercement, prescribed in the former
portion of the text for breaking bones, is to be inflicted on equitable principle
for causing the loss of the bones (of another person) and it is in this latter
case that the alternative corporal punishment may also be inflicted. The
word pramapanam, used in the above text of Brhaspati, means “destruction’,
which is possible to be effected in bones only, which are also near at hand
(in an assault) and so they are likely to be meant here. If it is argued that
the word prapatanam would have been better here (instead of pramdpanam),
we reply that suchs eparate statement is not fit to be made, just like the state-
ment of: Narada, viz. death of the fingers and the thumb. Here owing to the
relevancy of the bones (to an assault), it is easy to explain ghdatana as patana.
So the logical interpretation of the above text is that he, who really causes

PUNISHMENTS FOR ASSAULT 191
®

loss of another person’s bones, should receive the similar loss of his own
bones as the punishment. Though there is here some amount of complexity
in the method of interpretation, yet there is no fault in it, as such methods
are known to have been invented out of consideration for bringing out the
sense of a sentence under discussion and also according to principles of
equity. The authors, who read the above text as we have done, must also
admit the logical principle that a person should receive a punishment, just
in keeping with the offence, committed by him. Discerning persons should,
therefore, consider these texts, grounded on principles of equity, without
any prejudice whatsoever.

Manu (VIII.297-8) again says: Two hundred (panas) and fifty (panas)
should be the respective punishments for killing small beasts and auspicious
animals and birds, while five masas and one mdsa only for killing asses,
goats, sheep and similar other animals and dogs and boars respectively.

D. V. adds: The Ratnakara (p. 282) and other authorities have said that
the smallness of animals is to be judged by their age as in the case of locusts
etc. and by their species as in the case of goats etc. Kullika Bhatta has,
however, said that in spite of the specific mention of the small animals (in
the above text), other animals such as monkeys?!” are to be included (in the
above list) and that the small beasts, referred to here, mean young and adolo-
scent ones only. But Narayana has said that the mention of the fine of
two hundred (panas) for (killing) small animals, including beasts and birds
etc., is nothing but the highest amercement, which is diminished in propor-
tion to the r@lative smallness of the animals involved, and belonging to others
only but a fine of fifty (panas) has been prescribed (in the above text) for
(killing) ownerless animals. The auspicious beasts are rnru and similar
other animals. The boars, referred to here along with dogs, are not wild
ones. According to the Parijata,*two(?) mdadsakas mean ‘two silver Krsnalas’.
Kullika Bhatta has also explained the word pafcamdsikah as ‘amounting
to five silver 11245 and not five gold mdgas’ as successively lower masas
have been prescribed here. But Narayana has interpreted the term as ‘of the
value of five gold mdsas

Katyayana (V. 792) has said: Manu has laid down that one, killing an
animal, should give (to the owner) another animal (of the same type) or its
proper price.

D. V. adds: This text is concerning both sorts of killing, viz. that, due
to the application of a killing instrument and that, occasioned accidentally
by being run over by a chariot. The word pratiriipam (i.e. substitute) means
‘almost like in it in quality etc.’ । | |

171 DT, V, reads vdnaradinam but Kullika has read vanacarddindm.

192 | _ DANDAVIVEKA

Manu (VIII.285) also says: The principle, underlying the punishments to
be meted out on the destroyers of trees (vanaspatindm) (big and small) is
that the former should be inflicted in proportion to the utility of the latter.

D. V. adds: The term vanaspati here logically includes all useful trees and
(so punishments for their destruction should be) according to their relative
utility, great or small. (cf. Ratnakara p. 282). Kullika Bhatta has said
that “the highest and other amercements are to be imposed as fines on
(the destroyers of trees), according as the fruits, flowers, leaves etc. (of the
trees so destroyed) are considered the best, the medium and ordinarily
useful. This view is correct in consideration of the following statement 9
Visnu (V.55) to be quoted (in full and explained) below (p. 324 of D.V.):

The cutter of a tree, yielding fruits, shall be fined the highest amercement.

Here the punishment is to be inflicted on the person, who himself cuts
down ownerless trees, creepers etc. or engages others to do so, as this consti-
tutes transgression of the following such standing injunction of Vasistha
(XIX.11) and also because wanton destruction (of such trees) is prohibited:
“One should not destroy the trees, which yield fruits and flowers etc.”’ This is
more so prohibited in view of the advice of the practice of penance, embodied
in the following anonymous text:

‘One hundred RX mantras are to be inaudibly muttered for cutting down
fruit-yielding trees, creepers and groves and flowering plants.’ The punish-
ments for such offences will be described by us in detail in the next chapter
on “‘Miscelleneous offences’. The only difference between the punishments
for committing such offences in relation to such trees etc., “oelonging to
others, and in relation to ownerless ones, is that in the former class of cases
either a substitute or the proper price of the tree, so cut down, is to be made
over to its owner.

Now, if a person, such as a husband, a‘father or similar other person,
wishing to punish his wife, son and similar other relations, either assaults
them himself or has them thrashed by his pupils etc., then he becomes punish-
able if any excess of beating results from it but not otherwise, as
Manu (VIII.299-300) has laid down: When (a person’s) wife, son, servant,
pupil, and full brother become guilty, they may be thrashed by a rope or
by a cluster of creepers on the back of their bodies only but never on their
heads. A person, doing otherwise, shall be punished as a thief.

D. V. adds: The word ‘wife’ with its definite connotation includes within
it a ‘daughter-in-law’ also and similarly the word ‘son’ means a ‘grandson’
also. The word ‘servant’ has been used here in a general sense and hence
means ‘principal and subsidiary servants and subordinate persons also’,
as owing to the following interpretation of the Ratnakara (p. 270) of the

PUNISHMENTS FOR ASSAULT 193

®
text of Apastamba (11.10.12) viz. “The corrector or master (sdastd) should
give orders (to his servants to be carried out by them)”:

A Sdsta is one, whom a Sidra waits upon (i.e. serves).

The word ‘(full) brother’ means ‘a younger such brother’. The word prstha-
tah (i.e. on the back) means ‘on parts of the body other than the vital and
tender ones’ and on the same logic the words ‘nottamange’ (i.e. not on the
best organ) means ‘not on such sensible parts’. The phrase ‘caura-kilvisam’
(the offence as of a thief) means ‘the highest penalty, Jaid down for theft’,
which should be inflicted upon the above person in cases when the person, so
chastised, does not succumb to the injuries but a heavier punishment is to
be awarded on the above person on the death of the latter, according to
Narayana.

Narada (abhyupetya’ V.14) says in continuation of his statement of
punishment to be impoosed on a Brahmacdrin (i.e. a Vedic student):
Such a person should not be beaten severely and neither on the head nor on
the breast and should be first taken to task and then taken into confidence.
This punishment may be inflicted either by the king or by the teacher (of the
Vedic student).

The Bhavisya-purana also lays down: O the best of the gods ! if a son,
a pupil or a wife, after having been chastised, dies (of the effects of the chasti-
sement), the corrector (or master) does not thereby becomes tainted with
fault.

D. V. adds: The word ‘son’ is an example of the persons to be chastised
and the chagfisement is as described above. Now the special rule for the con-
test between two persons other than a father and a son is being given below.

Narada (vag. V.9) says: He, who begins an assault, is invariably guilty
and the other person, who makes a counter-assault, is also guilty (to some
extent) but the punishment on the former must be heavier.

When it is impossible to ascertain the priority of the mutual assaults of
two persons, Katyayana has laid down:

Whenever it is difficult to ascertain the priority (visesa) of two persons,
simultaneously engaged in fighting against each other, both of them should
be punished for having committed assaults.

D.'V. adds: The word visesah means a decision to the effect viz. ‘(This
of the two has first assaulted the other’ and similar other propositions (ityd-
dyakdrah),1"* according to the Ratnakara (p. 273). Though in cases of mutual
assaults when the priority of the assaults is not known, such knowledge
can be had from the oaths of the complainants, otherwise no suit can be

178 D. V. misreads itydkdrah for ityadyakdrak, forming the last word of the Ratnakara
quotation (p. 273) and thus makes the second reference to it untraceable in it.

25

194 । DAN DAVIVEKA

started, yet when the question of the simultaneity of the two assaults is
immaterial like that of the two wrestlers or two sheep and it is also similarly
impossible to find out the priority of the assault in an encounter, ensued
between the chief opponents of two places, the above text concerns itself
with such (doubtful) cases. The above text is simpry illustrative. Accordingly,
even in cases where the beginner of the fight commits a lighter (i.e. milder)
assault and the attacked party deals out a heavier (i.e. harsher) blow and
both the parties thus become equally guilty, the above principle of the equa-
lity of punishment of both shall have to be followed. The addition of the
word adi (i.e. ‘and similar other propositions’) in the above—quoted inter-
pretation of the Ratnadkara (p. 273) supports the above view (of ours).

But if the counter-assaulter aggravates the quarrel, he is then to get the
heavier punishment, as Narada (vag. V.10) has said: When in a mutual
fight, having been ensued between two persons, either of them, the assaulter
or the counter-assaulter, persists in aggravating the fight, he should then
have the heavier punishment.

Brhaspati (XXI.3) has also echoed the same view as follows: Equal
punishments should be inflicted upon both the persons, equally assaulting
each other, while the beginner and the persister (i.e. aggravator) deserve
higher punishments.

D. V. adds that the last part of the above text means that if, when one
person has assaulted another person with hands or ashes and the other
person strikes him with a sharp weapon, the latter is then to receive the
higher punishment. ~

Katyayana (cf. V.780) has also said: That person, who, having been
assaulted by another person, strikes the latter with a fierce (dbhisanena)
weapon, shall have the greater punishment.

D. V. adds that the word dbhisanena (dandena) means ‘ by a dagger and
similar other weapons’. But Brhaspati (cf. XXI.1 9) has laid down: (cf.
Ratna kara, p.274 and Cf. D.V. p.215 for part of this text). When a person,
having been shouted against, makes a counter shout or having been assaulted,
makes a counter-assault (prati-tadayan) or kills an assailant, he does not in
all these cases become guilty.

D. V. adds: The above text, though concerning the commission of the
above offence, not involving its aggravation and so laying down theinnocence
of the first assaulted party, should be construed in cases of counter—assaults
having been made ina milder degree than orin an equal degree as the primary
assault. As greater culpability has been spoken of only in cases of making
a heavier counter-assault, so a lesser punishment, as laid down in the (earlier)
text of Narada, should be meted out to the counter-assaulter and such cases

PUNISHMENTS FOR ASSAULT 195

। ।
fall within the category of continued quarrels, according to the Ratnakara
(pp. 274-5). The use of the word prati-tadayan implies ‘a counter-assault
of the same degree’, according to Trilocana Misra in his Dharmakosa.

Manu and Vaésistha (III.16) have thus defined an assailant (dtatayin):
An incendiary, a poison-administerer, an armed person, a robber of wealth,
a dispossessor of one’s (corn-) fields and a kidnapper of (another man’s)
wife—these six classes of persons are known to be assailants.

Visnu (V.191a-192a) and Katyayana (cf. VV.802-3) have given the follow-
ing definition: These seven (six?) classes of persons are to be known
as assailants:

A person with a raised dagger (in hand), one with fire in his hands, one
on the point of uttering a curse (against another) with his (raised) hand,
a person, who is in the habit of killing others by occult practices, prescribed
in the Atharvaveda, one hostile in attitude to the king and one who violates
the chastity of another man’s wife.

The Matsyapurana has also said: The men, who are conversant with law,
describe the following persons of the world as assailants: |

The dispossessor of another man’s house and (corn-) fields, outrager of
the modesty of another man’s wife, the incendiary, the poison-administerer,
the person with a raised weapon, one practising occult rites (for bringing
about another person’s ruin or death), and one who acts adversely to the
king’s interests.

Brhad-visnu has also forworded the following classification (of assailants):

A persorewith a raised dagger, a violator of the chastity of another man’s
wife, a robber of wealth, a poison-administerer, a killer by Artharvaveda
practices and one, who destroys another man’s inherent strength—these
six classes of persons are known to be assailants.

D. V. adds: The additional gnention of the dispossessor of one’s fields
over and above that of the robber of one’s wealth is for the purpose of
showing various kinds of wealth. So in cases where both the dispossession
of one’s small cornfield and robbing one of a large amount of wealth
bring about the loss of that person’s livelihood, the culprits concerned
are termed ‘assailants’. The acts, hostile to the king (rajagami ca paisunam),
are those statements, the utterance of which causes instantaneous death
of the king. ‘One, who destroys another man’s inherent strength (fejoghnam)”’
means ‘one, who destroys the Brahmanic vigour of a person by administering
wine to him’.

When, however, no apprehension of death can be made by a person by
any conceivable means, such a person, with a weapon in hand and raising
it aloft, does not fall within the category of an assailant,

196 DANDAVIVEKA

e

So the Bhavisyapurana has prescribed the following penance in such
cases: |

0 hero ! even if a person intentionally puts to death a Brahmana, versed
in the Vedas and engaged in assaulting (praharantam) (him), he should per-
form the extreme penance, extending over twelve years.

D. V. adds: The word prahara (included within the participle praharantam)
does not mean here ‘death’, which is absurd but ‘assault’ or “complete des-
truction of eyes and other organs’. In view of the occurrence of the word
udyatasi or its synonyms in all the above (four) texts, the settled interpreta-
tion is that such action (i.e. causing death of another person with the dagger
raised) must be in the very stage of being committed and not to have been
committed nor to be committed to render a person, convicted of that crime,
an assailant. This is right, as the issue of a warrant of arrest of the offender
or of an injunction against the apprehended one may be had in those two
latter cases, where taking the law into one’s own hands becomes unjustified
on the authority of the following anonymous text: ‘One should not take
a weapon (in one’s hands) even for the purpose of a trial.”’

But somebody has said: Whatever may be the arguments in cases of
assault, one, who has already committed the offence of kidnapping another
man’s wife, is (certainly) an assailant on the maxim of Kaimutika (=kim+
uta-+ snika suffix) (i.e. not to speak of or it goes without saying), inasmuch
as the already committed kidnapping (of another man’s wife) is graver than
an actual commission of that offence and the killing of a kidnapper in such
cases should entail neither any punishment nor any obligationeto undergo
expiatory rites uport-the killer.

The above view is questionable, as the gravity of the crime to be committed
(by an assailant) is not the justifying reason of his being put to death (by the
assailed person) but the realr eason is that tke very preservation of ones’ own
life, which is a peremptory necessity, cannot be accomplished otherwise in
those cases. Such impossibility of effecting self-preservation is directly visible
in a case of (severe) assault and is indirectly to be inferred in other cases and
is, therefore, not to be qualified by other factors. Alas! if it is argued why
should there be a prescription, justifying the killling of the kidnapper, when,
in the case of such kidnapping another man’s wife, self-preservation is possible
directly or indirectly, we say in reply that protection of one’s wife is equally
mandatory as self-preservation, as Manu (VIII.359b) has laid down in his
topic on the molestation of other men’s wives: “The wives of all?” the
varnas are the best among the things to be protected,”’ and has also said in

178 Manu reads caturndmapi (i.e. of four) and D, V, reads sarvesdmeva,

PUNISHMENTS FOR ASSAULT 197

,
that topic (cf. VIII.353) of ‘the destruction of everything, resulting from the
miscegenation of castes, due to the outraging of the modesty of a person’s
wife by others’.

Let there be the purification by the subsequent menstrual discharge of
women, subjected to other men’s connection due to mistake, pride or in-
fatuation of the former or outrage by the latter. So, when even, in cases of
outrage the prescription of three nights’ (i.e. of three full days’) expiation
has been laid down, that is to be construed in relation to women who have
either not begun menstruating or have ceased to menstruate and thus the
conflict of the above two prescriptions is resolved. In a case of an intentional
adultery of a woman, her purification is effected by the performance of the
candrdyana penance. But if such adultery results in concepjion or abortion and
if the woman is found to have had sexual intercourse with a teacher, a pupil,
a degraded person, a Candala and similar other respected or despised
persons, she is to be deserted, which desertion consists in depriving her of
association with her husband and participation in religious actions, as has
been the settled conclusion of the (previous) digests by means of reconcilia-
tion of the texts of Brhaspati, Yama, Yajfiavalkya, Sankha, Vasisthaand other
sages. But the author of the Mit. has prescribed purification of the woman by
subsequent menstruation in all cases of adultery (not followed by conception),
committed by her and has supported his opinion by adding that subsequent
menstruation absolves a woman of the sin, accruing from the mental adultery,
committed by her out of a desire to enjoy a man other than her husband
and that desertion is the penalty for her, if she has conceived as a result
of the physical adultery, which is due to a connection with a Sidra only
on the authority of the following text:

The wives of Brahmanas, Ksatriyas and VaiSyas, if found guilty of sexual
connection with Sadras but not having borne any child on that account,
become purified by expiation but not those, who have given birth to any
child.

Such being the combined import of the sacred lore, how is it that death-
sentence of even a Brahmana molester of other men’s wives has been pres-
cribed simply out of a fear of miscegenation? Even if it be a case of rape,
an element of force is manifest even in the (consenting) molestation of another
man’s wife (i.e. in adultery) (priyadhargt) just like in that of outraging her
modesty (atikramakart), on account of the word dharsi having been derived
from the root dhrsd, meaning ‘haughtiness’ and also because all the words
viz. apahart, ati-kraminam and abhi-gaéminam also mean the same thing and
indicate the greater culpability of the man involved. If it is argued that in
spite of the general nature of the kt (i.e. verbal) suffixes to imply actions

198 DANDAVIVEKA

6

only, the particular krt suffix nini (which has been used in the word: priya-
dhars!) is really a part of an already commenced action, we say that the
argument is wrong, because inspite of the existence of a part of an already
commenced action in the nini suffix, alternatives have been prescribed such
as (automatic) purification by the next menstruation or passage of three
full days in a case of rape and a sentence of death here is simply for averting
the invisible consequences (and not for securing ends of justice). So the
question of committing the above offence intentionally is dispensed with,
as even an intentional adultery can be purified by candrdyana and even in
a case of conception, resulting from such adultery, no appellation of mis-
cegenation is to be applied there, as these cases do not fall within that category.
Moreover, such miscegenation arises out of kidnapping (and subsequent
intercourse) by members of varnas other than that of Brahmanas and Nara-
yana has explained the following sentence in the text of Manu (VIII.348a),
viz., “Arms should be taken up by members of the twice-born classes’
that (Brahmanas may take up arms) only when their distress arises out
of contact of the higher caste wives with men of lower castes. So wherefrom
comes the sanction for the death of the Brahmanas?

Kidnapping of another man’s wife is not in itself a cause of miscegenation
but it becomes so, if followed by the procreation of a child (in her). So if
cohabitation is performed in a period of time outside the three menstrual
nights (of the kidnapped woman), kidnapping does not constitute a positive
fault. So let there be death-sentence for Ksatriyas and VaiSyas only, cohabit-
ing with a Brahmana woman within the three menstrual nights. क

In fact, on the‘authority of the following text of the Bhagavad-git (I. 40b),
which is a kind of Upanisad, it is a settled conclusion that miscegenation
without any difference occurs, when a Brahmana or a non-Brahmana inten-
tionally or unintentionally cohabits with (other men’s) wives: “O descendant
of Vrsni (i.e. Arjuna) ! if women become corrupt, miscagenation (certainly)
arises.”

So Sankha-likhita have thus assigned in the following statement deviation
from chastity as the cause of miscegenation: “Women, having become
corrupted by the loss of their chastity and enjoyment by others, become the
cause of the mixture of castes.”

Such being the case, there is no impropriety in putting to death (the violator
of another man’s wife’s chastity), only if the corresponding lapse cannot
‘be cured even by the performance of penance.

The following opinion of somebody is, therefore, questionable:

“It follows from the following text of the Brahmapurana that death is
the proper punishment of Brahmanas and others, when engaged in the act of

PUNISHMENTS FOR: ASSAULT 199

%

cohabiting with other men’s wives: Persons, found flirting with other men’s
wives, were put to death by the husbands of those wives out of spite.”’ As
the concluding portion of the above-quoted text (of the Brahmapurdna)
contains the clause viz. patitas te prakirtitah (i.e. they are known to be degrad-
ed), which is in the form of a substitute of the sentence of death, (having
been added to the previous portion of the text) to prove the degrading charac-
ter of the crime described in it, so the entire text only emphasizes the pres-
cription of a substitute of death proper (in the form of social degradation,
which 13 civil death).

As the above text (of the Brahmapurana) does not limit the operation of
an injunction (vidhipurvako hi niyamah) but simply lays down the extreme
prescription of the penalty of death owing to the inclusion of the word dvesat
(i.e. out of spite) in it, so the view that the above text only emphasizes the
settled conclusion is also untenable and we say in reply that an outrager
of the modesty of another man’s wife is certainly an assailant, having been
included as such in the list of such persons but his absence of sin follows
from the text viz. ~) dtatayi-vadhe [i.e. no (sin or fault) accrues from the
killing of an assailant).

The above arguments have been forwarded by us on the authority of the
view of Bhavadeva.

But the author of the Mit. has said: “The following text of Katyayana
is of the Arthasastra (i.e. Polity):

One should put to death an assailant, approaching him with the express
intention @§ killing him, though the latter may be an adept in the Vedic
love and the former does not thereby become a Brahmana-murderer. But
the following text of Manu (XI.90) is of the dharmaSastra (i.e. Law):

This purification of the sin of an unintentional Brahmana-murder has
just now been described: but thege is no deliverance from the sin of an inten-
tional Brahmana-murder.

In a case of conflict between the above two texts, the dharmasastra text
is to be considered as of higher authority, as Y4aj. (II.21b) has laid down:
The settled principle (of interpretation) is that dharmasSastra (injunctions)
are more weighty than arthasastra (prescriptions).

Thus, Manu, having commenced his remarks with the text (VIII.348),
beginning with the sentence viz. “Arms should be taken up by Brahmanas
(or by members of the twice-born classes)”” and ended them with the text
(VIII.349), beginning with the phrase viz. “‘for the preservation of one’s
own self”, has laid down the immunity from punishment of persons, convic-
ted of killing an assailant with a weapon, not fitted with disguised dangerous
parts and his later statement, beginning with the words, viz. ‘A teacher, a

200 DANDAVIVEKA

child or an old man’ (VIII.350) (killing whom, come as assailants, is permit-
ted without any consideration), is simply an elaboration of his previous
statement. Moreover, due to the occurrence of the particle vd (i.e. or) in this
last verse of Manu, the second line of which also contains the word eva
(i.e. even), Manu permits one to kill even such persons as a teacher, who
are never to be put to death, not to speak of other (ordinary) assailants.
But it does not necessarily follow (from the above statement of Manu)
that a teacher and similar other persons are to be killed on such occasions,
on account of the following texts of Sumantu and Manu (IV.162)
respectively: |

“There is no fault in killing an assailant, except it or he be a cow or a
Brahmana.” “One should not kill one’s preceptor, adviser, parents, teacher,
Brahmanas, cows and all other hermits

The present text of Manu lays down the general prohibition only of killing
persons such as one’s preceptor, who have turned assailants and nothing
more, killing any other person having been prohibited by the general state-
ment of law. Thus the next text of Manu (VIII.351), beginning with the
clause viz. ‘No fault arises from the killing of an assailant’ (being partly
the same as the text of Sumantu, just quoted above) is to be interpreted as
applying to cases other than a Brahmana etc. Assailants have been defined
in general a little above in the texts beginning with the words viz. agnido
garadak (1.6. the incendiary, the poison-administerer etc.) and with the word
Udyatdsim (i.e.a person with a raised sword etc.). Soif Brahmanas etc., turned
into assailants, have inadvertently been put to death by a persor. who simply
tried to repel their attacks for preserving his own self etc. without any express.
motive of killing them, then the latter has got to undergo a light expiation
only and is not to be punished by the king. Narayana has also explained
the text of Manu (VIII.350) as prescribing the mutilation of limbs only (of a
person, killing his assailant of the excepted kinds), as shown above. But
Silapani, after having interpreted the particle eva in the phrase hanydd eva,
occurring in the above text of Manu, as laying down a niyama (i.e. qualified
injunction) only, has offered the following remarks (in his Prayascittaviveka,
pp. 65-7), in continuation of the following text of Katyayana (cf. V. 804),
quoted and explained by him:

[The text]

“‘When a crime is going to be committed by a person, who has not been
annoyed by another person, by trying to take the life or property of the
latter, the former is to be accused as an assailant.”

[Stlapani’s explanation]
So, when a person, after havirig been annoyed by another person, is going

PUNISHMENTS ‘FOR ASSAULT 201

to commit murder (of the annoyer),'such a person is not to be called an
‘assailant’ but shall incur a lapse only for killing him.
[Silapani’s remarks]

Finding negation of the principle, laid down in the above-quoted text of
Katyayana in the following texts of Sumantu and the Bhavisyapurana respec-
tively,

[Sumantu’s text]

“No fault arises in killing an assailant, except when it or he be a cow or a
Brahmana and in doing so, one has to undergo expiation only’.

[The Bhavisya-purana text]

‘One should never kill a cow or a Brahmana, even if the latter has injured
the former’,

Sdlapani has, by way of giving his final conclusions, again quoted and ex-
plained a text of Katyayana (V.801) to the following effect:

[Katyadyana’s text]

Bhygu (has laid down) that when a person, superior by dint of penance,
Vedic study or birth, becomes an assailant (i.e. a desperate felon), he should
never be put to death but killing is prescribed for a sinner of a lower class.
[Sdlapani’s explanation]

The word ‘birth’ (janma) means ‘the caste and family (of the assailant)’.
So a higher-caste assailant should never be killed by a lower-caste person,
assailed against. In cases where both the parties belong to the same caste,
one, superior to the other in penance, learning or family, should not also be
put to deat

Silap4ni has concluded his remarks by quoting and explaining the Bhaga-
vad-gita (I.36a), which is to the following effect:

So it has been said in the Bhagavad-gita:

910 will accrue to us, if we kifl these (etdn) assailants”’.

[Silapani’s explanation}

The word वका (i.e. these) means ‘Bhigma and others, who are possessed
of very high merits.”

Halayudha has also given his conclusions in accordance with the texts of
Katyayana

So it appears that the text, authorising a person to kill his assailant, which
is based on the Sruti text laying down the necessity of self-preservation,
is similar in import with another Srutitext, prohibiting suicide, as it is impro-
per to say that one should protect one’s own self and at the same time to lay
down that, after having flown into rage, one should not kill oneself by
starvation or by swallowing poison etc., as the latter prohibition follows
from the former injunction. The following Sruti text, “Those, who kill

26 |

202 bANDAVIVEKA

themselves, go (after their death) {6 those worlds, where there is no sun
and which are enveloped with blinding darkness,” is equal in implica-
tion to a former one, relating to self-preservation. Otherwise, in the
absence of anything to subsist upon, one has to preserve one’s body even
by partaking of human flesh and similar other uneatables and for that
purpose one may even steal gold, belonging to a Brahmana. Owing to
the necessity of establishing absence of contradiction between two injunctive
texts, when either of the two injunctions, one prescriptive and another probi-
bitive, has been taken into another, the other automatically becomes super-
fluous, and so the above line of reasoning is unjustifiable. If not so, the pres-
cription for the performance of penance, laid down in the following text of
Gautama 1.3.45), already explained by us.in the sub-chapter on exemp-
tion from punishments, viz. “A person, without any ostensible means of
livelihood (and consequently stealing other men’s things), has to undergo
penance”’, promulgated by that authority in relation to a Brahmana in the
topic of theft (p.151 of D.V.), becomes contradictory. |

The view, expressed by Narayana, while interpreting a text of Manu,
that the sentence of death, prescribed by his author, is not real death but
mutilation of limbs, is questionable, as preservation of one’s ownself is
also impossible by cutting off one’s own limbs and such a prescription simi-
larly amounts to the transgression of the former injunction. It is improper
that there should be murder of a Brahmana by another person simply for
the preservation of the self of the latter, as an intentional Brahmana— murder
entails upon the murderer the life-consuming penance, as laid<Jown in the
Kathakasruti and Apastamba (1.24.24) in the following two texts respec-
tively:

“One, suffering of starvation, should ascend fire.” “(After having spoken
of the penance to be performed for twelve continuous years) this supreme
vow should be practised (to court death) up till the last breath exists.”

So let us not discuss this topic any more, on account of the maxim viz. “It
is better not to touch a quagmire than to cleanse it (after having touched it),’”

So by analogy of the text of Vignu (III.43) viz. 0106 should protect one’s
own self everywhere and one’s territory with one’s all might, if attacked
by an enemy”, prescribing self-preservation, (the king), when attacked by
an enemy, has the imperative duty to protect his territory with all his powers,
which implies the protection of his subjects and of all those, who have taken
shelter under him. So with that end in view, a Brahmapa may (sometimes) `
0९ put to death owing to the imperative necessity of the protection of subjects.
Just as the Sruti text viz. “One should procure (the meat of) an animal for
purposes of Vedic initiation” is not barred by another Sruti text viz. “One

PUNISHMENTS FOR ASSAULT 203
®

should not kill any living creative’, as*both the above texts can be reconciled
by the maxim of utsargd-pavadda (i.e. a general rule and its exception), simi-
larly in the present case, if it is said that there is no contradiction between
the texts viz. "076 should slay an approaching assailant” (Manu VIII.350)
and “One should not kill Brahmanas and cows” (Manu IV.162), a Brahmana
assailant (and not an ordinary Brahmana) may be put to death and the
entire latter text, beginning with the words dcdaryafica (A preceptor and ...),
does not thereby become superfluous. Moreover, if it is said on the authority
of the following text of Daksa that the latter text of Manu is indicative of
greater sin, then let the former text (of Manu) be construed as authorising
the killing of an assailant who is other than a Brahmana, which way of
interpretation effects a reconciliation of the above two texts:

[Daksga’s text]

A gift, made to a non-Brahmana, is simply equal in religious merit (as
prescribed for the gift), which merit is doubled, if made to a person, who calls
himself a Brahmana (i.e. who is a Brahmana only by caste but does not follow
the duties, laid down for a Brahmana). This religious merit is increased one
hundred thousand times (i.e. a lakh times), when made to one’s preceptor
and becomes imperishable, when made to one’s full brother. Just as equality:
two times, (a hundred) thousand times and endlessness (of the religious merit)
emanates from the above four classes of persons respectively, so do the
results, which follow killing (of creatures). So an intentional murder of a
Brahmana assailant brings about the corresponding sin in full, which becomes
ageravatedewvhen the offence is committed in respect of one’s preceptor
(come as an assailant) but does not arise at all when perpetrated against
Ksatriyas and others. In fact, though there is certainly immunity from punish-
ment in cases of killing Ksatriyas and similar persons, turned assailants, on
the authority of the text of Katyayana (V.482), beginning with the words
‘where there is possibility of death’ (pranatyaye tu yatra syat), quoted by us
in the topic of exemption from punishment (p. 39 of D.V.), yet a small
amount of sin undoubtedly occurs, on the authority of the following texts of
the Bhagavad-gita (1.33b, 34 and 36a):

“CQ Madhusidana (i.e. Krsna) ! I do not wish to kill these persons such
as preceptors, sires, sons, grandfather, maternal uncles, fathers-in-law,
grand-sons, brothers-in-law and other cognates. If I kill them, approaching
as assailants, sin will surely accrue to me.” So Rama had to undergo expia-
tory rites for killing his assailant Ravana and the performance of the horse
sacrifice by Yudhisthira for atoning for the sin, consequent upon his killing
the Brahmana Aévatthiman and brother Karna, who were up in arms against
him, becomes justifiable, So, even when the Lord (Srikrgna) was offering

204 DANDAVIVEKA
|

encouragement (to Arjuna), who, having been horrified by the apprehension
of consequent sin, had left fighting (against his own kinsmen), the former
did not accord the latter permission to kill those assailants. He rather
described death (of human beings) as nothing but the destruction of
the peculiar connection of the body with the mind and spoke of the soul, `
which, being eternal, is not subject to death, which is impossible in its case
and to substantiate his above thesis, he introduced the views of the meta-
physical Samkhya philosophy. An alternative has been provided by the
following text [of the Bhagavad-gita (IV.37), uttered by the Lord, finding
Arjuna] in an abhorrent attitude: “If you are a worse sinner than 21 other.
sinners, you will be able to cross that ocean (of sins) by means of the boat
of knowledge

The science of self-meditation, though difficult to be put into practice,
was introduced (by the Lord) for that very purpose. It is for this reason
that even when Lord Vyasa was asked by Yudhisthira how to atone for the
sins, committed by the latter, the former, without according his acquies-
cence to the latter’s past conduct, advised the latter to perform the
horse sacrifice.

Thus the above-quoted texts of Manu and other authorities having been
coustrued in relation to non-Brahmana offenders, the text of the Bhavisya-
purana also (cited above) viz. ‘after (intentionally) killing (a Brahmana,
versed in the Vedas), who has assaulted a person’ is also to be construed in the
same way, as having been laid down with that very implication. If we take
it according to its usual explanation, the heavier punishment, gxescribed by
it, becomes improper. The Sitra of Sumantu (quoted above) also lends sup-
port to the above line of interpretation of the Bhavisyapurana text. Bhava-
deva Bhatta has said that the above sitra (of Sumantu) is not a single sutra
(i.e. aphorism) but a combination of three (separate) sitras which thus lend
support. to our interpretation. So, after having pronounced the proper
penance for Brahmana-murder and also having prescribed a similar
penance for those, who associate with such murderers, Sumantu has
laid down the first aphorism to prohibit the penance by saying that
“fault accrues to cases other than” etc. (dososnyatra), while his
second aphorism condemns killing of persons, other than assailants
(ndtatdyi-vadhe) and his third aphorism viz. “a killer of cows and Brahmanas
should have to perform penance” (go-brahmanan ghnatah prdayascittam
kuryat) states the appropriate circumstances, necessitating the performance
of a (particular) penance. The penance of go-sndna is “‘ablution of one’s
body with the water, which has flown down after having washed. the horns
of a cow”, as Vyasa has said

PUNISHMENTS FOR ASSAULT 205

|,

An ablution with the water, which has flown down after having washed
the horns of cows, is equal in religious merit to that, (accruing to a pilgrim,
who has) constantly visited all the places of pilgrimage in the three worlds.

If it is argued that the insertion of the word Brdhmana in the above (first)
injunction, just following the word go (i.e. cow), has been made to lay down
the ablution for a Brahmana for clearing away the sins, accrued to him (for
the above offence), that argument is to be discarded as having been oppos-
ed by the Mit. and other authorities, involving as it does the splitting of a
single siitra to fit in with two propositions. As you (i.e. the forwarder of
the above argument) have already accepted the interpretation (of Bhavadeva)
that the first aphorism (of Sumantu) is an exception to his earlier prescrip-
tion of the performance of expiation for a Brahmana-murderer and his
analogical prescription of the same for the associates of such a person,
so it naturally follows from the above aphorism that such expiation is not
to be gone through by an associate of the murderer of an assailant. It is also
not an approved way of interpretation to include an associate of a murderer
within the term ‘murder’, as the term has got no such inherent force to be
so (extended in meaning). As the Kalpataru has read the above aphorism
as ‘dtatdyinyadose’, so we may even presume that no word as vadha (i.e.
death) exists in the aphorism. If the second aphorism is taken to be as
laying down the prescription of penance of Brahmana-murder for association
with a person, other than the slayer of an assailant on the logic that the
‘fault’ (dosa), spoken of here, relates to that association, (our reply is that)
the word éfault’ (dosa) has no inherent force to be extended to include penance
and moreover, the entire aphorism will thereby be rendered meaningless,
as the prescription of penance follows from the analogy itself, which is with-
out any exception. If it is further argued that the aphorism simply deprecates
the fault of committing a mugder, then there will be a contradiction of the
topic under discussion and a negation of the aphorism itself, as such condem-
nation of killing automatically follows from (the earlier) prescription of
death-sentence, which is without any exception. We have also to presume
an implied sense in the word go (i.e. cow) to be used in the sense of ‘cows’
horns (goSrnga)’. If we say that the fifth case-ending in the word brahman@t
is in the sense of the third case-ending, meaning instrumentality, that will also
outstrip the limits of the topic itself, as the fifth case-ending has been appro-
priately added (to the word Brahmana) in course of laying down the prescrip-
tion of the requesite penances. In fact, why should Sumantu, possessing
good senses, having forgotten to write a terse sentence with clear and unam-
biguous meaning, put down such an aphorism in which the intended sense
has become controversial but the unintended one has been made more mani-

. 206 a DANDAVIVEKA

fest? So we may (safely) conclude that the entire sitra is one and indivisible
and it only lays down the faultlessness in killing an assailant, who or which
happens to be other than a Brahmana or a cow, as that way of interpretation
will be in consonance with the dicta of Manu and others and also with the
following text of Baudhayana, quoted in the Rajadharmakanda of the
(Krtya-) Kalpataru’” (pp. 131-2):

“One should not engage oneself in fighting with frightened, drunken
and mad persons and persons without armours, elephants, children, old
men and Brahmanas, except in those cases, when they have turned assailants.
(But if they have turned assailants), no fault arises in killing them, excepting
the cases of persons of deficient limbs, charioteers, persons without weapons
in their hands or with dishevelled hair, persons who have turned their back
(from fighting), who are leisurely sitting at the roots of trees or have ascended
them, persons unpractised in arms and cows and Brahmanas’’. Here in the
first sentence of the present text of Sumantu fighting only with a Brahmana
assailant has been permitted but this fighting also has been prohibited in the
second sentence with the intention of stopping it, out of an apprehension of
killing, resulting from such fighting. So Lakgmidhara [the author of the
(Kytya-) Kalpataru], having cited in the Prayascitta-kanda the texts, per-
mitting the killing of Brahmanas and similar other respectable persons and
cows and similar other useful animals, when turned assailants and also
having quoted the above-discussed text of Sumantu, has clearly stated
that the latter text is in connection with assailants other than cows and
Brahmanas. Had this author (i.e. Laksmidhara) also (consted and)
written the text.of Katyayana, beginning with the words viz. dtatdyint
cotkrste (i.e. if the assailant happens to be a respectable person), his
conclusion would have been the same as that of Silapani (cited above),
i.e. he would not have given his above permissjon, as the persons, enumerated
in the above text of Katyayana, would have always been immune from punish-
ment. So sin necessarily follows the killing of an assailant Brahmana and
similar other respectable persons but no punishment is to be inflicted on the
killer, as the other text of Katyayana, referred to above and relating to
arthaSdastra, has been overridden by the just following text of Manu. Absence
of sin cannot be presumed from immunity from punishment, as inspite of
such immunity in cohabiting with a prostitute and similar other women,
penances have been prescribed.

So the settled conclusions are the following:

१ But there are some different readings in the Kalpataru, which also reads the second
sentence as of Gautama, |

PUNISHMENTS FOR ASSAULT 207

®

(1) If a Brahmana, having been enraged for some reason, first. strikes
against a Sidra, devoid of merits, the former is to have no punishment, on
the authority of the text of Harita, containing the words na vd (i.e. or not)
and discussed in the chapter on abuse (p. 202 of D. V.)

(2) If a non-Brahmana first attacks a Sidra or any other person (with or
without merits), the former shall be awarded the prescribed punishment,
without any consideration, on the authority of the text of Narada (p. 232
of 1D.V.).

(3) He, who, having been assaulted by anybody, tolerates the assault,
becomes worshipped by words (i.e. respected by others), on the authority of
@ previous text of Ndrada 0. 215 of D. V.), containing the sentence viz. Sa
manyate*"® yah ksamate (i.e. he, who tolerates, is respected).

(4) He, who, being unable to tolerate the assault, inflicted upon him by
a person of equal or lower social status, counter-assaults that person with
just the same degree of intensity, enjoys immunity from punishment, on the
authority of the text of Brhaspati (p. 233 of D.V).

(5) If the assaulter happens to be a person, superior to the assaulted person
in merits, caste and similar other things and the assaulted person happens to
belong to the untouchable and despicable classes, the latter, even if making
a single counter-assault just equal in degree of intensity with that of the
former, becomes punishable, as in such cases toleration being the proper
conduct to be followed by the latter, counter-assaults by him are improper
on his part (pp. 216 and 217 of D.V., texts of Brhaspati and Narada).

None bus a mad man assaults another person without the latter having
previously committed any fault (against him). So in cases of persons of lower
social status (having been assaulted by those of higher social status), the
previous commission of the offence of abuse by the former must be taken
into consideration here. Accordingly, the higher-status man, even if counter-
assaulting the lower-status man in excess of the original assault, does not
thereby commit any fault on the principle underlying the text of Brhaspati,
beginning with the words ‘vdk-parusya’ and cited in the previous chapter
(p. 216 of D.V.).

(6) Thus when a Sidra without merits assaults a Brahmana but the latter
does not counter-assault the former (but tolerates it), the former is also liable
for punishment

(7) But if he, who being indifferent to the degree of the assault, inflicted
upon him, makes a counter-assault and even does it to a greater degree,
he is to receivea punishment, lesser than the prescribed one, on the authority

425 [. ई, misreads sa manyate as sdmdanyato.

408 | DANDAVIVEKA

of the text of Narada (p. 232 of D.V.) viz. piirve tu vinayo guruh (i.e. the
punishment on the former person, starting the assaults, is higher than that
on the latter)

(8) But he, after having counter-assaulted the assaulter and seen him re-
maining silent, starts the quarrel afresh or the counter-assaulter, having
found the assaulter desisting from the quarrel after having been assaulted
by him, begins the quarrel anew—both these persons will get more than the |
prescribed punishment on the authority of the text of Narada (p. 233 of
D.V.) viz. piirvo va yadi vottarah 0.6. the former or the latter person as the
case may be)
` (9) Thus he, who, having been assaulted by a person with ashes and similar
other nasty things, returns the assault by means of a dagger and similar
other dangerous things, is to be awarded a heavier punishment onthe autho-
rity of the text of Katyayana (p. 233 of D.V.) and also in consideration of the
greater degree of criminality, manifested by the malice and the assault in
the latter case. |

(10) Where, however, the priority of the assault and the counter-assault
cannot be ascertained or where both the assaults are of the equal degree
of intensity, both the parties are then to be punished equally as prescribed,
on the authority of the texts of Katyayana (and Brhaspati) (pp.232 and
233 of D.V.). |

(11) There is complete immunity from punishment of the person, who
kills an assailant, on the authority of the text of Brhaspati (p. 233 of
D.V.). ~ १

The above prescription of punishments (for assaults) holds good in the
case of abuses also on grounds of equity, as Narada has laid down in his
prefatory remarks on the topic of abuse and assault viz. ‘vidhih paficavidhas-
tiikta etayor ubhayor api’ (p. 33 of D.V.) (1.6. this five-fold prescription is
laid down for both these kinds of rudeness (i.e. of speech and punishment—
1.6. abuse and assault) and also the two texts of Brhaspati, referred to
above, have also. made it clearer.

The punishment for many persons, assaulting together a single man, has
thus been laid down by Y4j. (II.221a): When many persons take to assault-
ing (ghnatam) 8 single person, they should be fined double the prescribed
amount. |

D. V. adds: The word ‘each’ should be supplied after ‘should be fined’
in the above sentence, on the authority of the text of Visnu (V.73 ) viz. “Each
of the several persons, assaulting (nighnatam) should receive double of the
fine prescribed.” ‘When a person of superior social status punishes by
physical torture such as harassment a man of inferior social satus, who has

PUNISHMENTS FOR ATTEMPTS OF ASSAULT 209

0 $
committed an act of assault (upon him), the former shall have no punishment

(inflicted upon him)”—this conclusion, based upon authoritative texts and
also the factors, constituting the inferior social status (of a person), have
already beén recorded by us in the chapter on abuse and so they should
be referred to therein.

Here ends the consideration of the general theory and_ practice of
punishment for the offence of assault (danda-pdrusya).

PUNISHMENTS FOR ATTEMPTS TO COMMIT ASSAULT

Brhaspati (XXI.8a) says on this topic: The fine of the first amercement
should be imposed on the person, who attempts to assault another with
stones, slabs of stone and wood.

2}. (11.216) also says: If a person raises his hands or legs against another,
he should be fined ten and twenty (panas) respectively but the fine of the
middle amercement should have to be imposed in cases of raising a weapon
(for purposes of assault) and these punishments hold good among all the
varnas, beginning with Brahmanas

D. V. adds that the above two texts (of Brhaspati and Y4j.) are concerning
attempts of assault between the members of the same castes.

Visnu (V.60-62 and 64) has laid down the following in continuation of
punishment (to be inflicted):

The punishments (of the fine) of ten and twenty Karsapanas are to be
imposed on a person, attempting to assault another with his hand and leg
respectively and those of the first amercement and the highest (amercement)
in cases such attempts are made with the use of wood and weapons respec-
tively.

D. V. adds that the word uttamam (the highest) means ‘the highest amerce-
ment’, which very reading occyrs in the quotations of the above texts in
the Krtyasdgara and Smrtisagara.

Yaj. (11.215) again says: The very hand of a non-Brahmana, inflicting
injury upon a Brahmana, is to be cut off but the fines of the first amercement
and of its half are to be imposed in cases of brandishing (the assaulting mate-
rials) and seizing them (for the purpose of throwing them at the person
intended) respectively.

D. V. adds: Both these latter kinds of punishments are to be inflicted
in cases of attempts having been made by an inferior—status man to assault
a superior-status one. But the author of the Mit. is of opinion that the
punishment for a Sidra, even when attempting to assault (a Brahmana etc.),
is mutilation of his hands and other organs on the authority of a text of

Manu, to be quoted by him a little below

27

210 DANDAVIVEKA
é

Sankha-likhita have laid down the following in continuation of the
imposition of fines, constituting panas: Fifty-six (panas) for making anattempt
with assaulting materials (prahdrodyame) and twice that amount in actually
throwing them or striking with them.

D. V. adds: The word prahdra in the above text has been derived as
‘anything with which a person is assaulted (prahriyate S nena)’ and thus
means ‘stones, clubs etc’, The above punishment holds good only in cases of
attempts to assault a member of an inferior varna by one of a superior varna.

SPECIFIC PUNISHMENTS FOR COMMITTING ASSAULT

Brhaspati (XXI1.6-7) lays down (the following punishment) on the throwing
ashes etc. towards another person: Throwing of ashes and similar other
objectionable things (towards any person) and beating (tddanafica) with
hands and similar other organs are known to be the first variety of assault
and the corresponding punishment is Karsapanas, amounting to the value
of a (silver) mdsa. This is the punishment prescribed in such assaults, having
been committed towards persons of equal social status (as that of the
assaulter).

The wise men have prescribed twice and thrice of the above punishment,
(when the above offence is committed) towards other men’s wives and men
of superior social status, in consideration of their relative importance.

D. V. adds: Here the word taganam means an attempt (to commit such
assault) only, according to Grahesvara Misra. Harinathopadhyaya 1s also
of the same opinion. If such attempt only is considered as the-4rst variety
of assault, thén it becomes impossible to lay down increases of punishment
in still higher cases of such offence, as such a view comes into conflict
with the following text of Katyayana:

“Twelve panas should be imposed as the-(pecuniary) punishment for the
brandishing of hands and this punishment is doubled, if some objectionable
thing is actually thrown towards members of the same caste’. So (our view
is that) the word tadanam, (used in the text of Brhaspati), means ‘assault’
(and not an attempt to commit assault), as the particle ca (i.e. and) has been
used in a cumulative sense. The assaulter having in such cases committed
a lesser (but actual) offence only, it appears that the meaning of the word
prathamam is ‘(an assault) of the first variety.” According to the Ratnakara
(p. 259), the word mdasikah, used in the above text, means ‘amounting to |
the value of a (silver) mdsa’ and the word same means ‘among persons, equal
in caste and merits etc.’ (cf. Ratnakara, (0८.८70).

Yj. (11.213-4) lays down: The punishment of touching (sparse) another per-
son with ashes, mud and dust is known as (i.e. the criminal is to be punished

SPECIFIC PUNISHMENTS FOR ASSAULT 211

@
with the fine of ) ten panas, which ampunt of fine shall be doubled in doing
so with abominable things (amedhya), the back of a leg(pargni) and saliva.
The above punishments are to be imposed, if the touchings are between per-
sons of equal (social status and merit) Both the above punishments are to
be correspondingly doubled if the offence is committed in relation to other
men’s wives and persons of superior status but should be reduced to
corresponding halves, if committed in relation to persons of lower status
and merit. Complete immunity from punishment is the rule, when such
offences have been committed out of (complete) loss of understanding,
drunkenness and similar other causes.

D. V. adds: The word amedhya means tears, phlegm, the cuttings of
finger-nails, hair and dirty things of the ears, the rheum of the eyes and leav-
ings of food. Some authority has explained the word pargni as the ‘leg’.
A text of Katyayana, to be quoted just below, has laid down the punishment
for assaulting another with stools etc. As the above texts of ४2]. are (evident-
ly) in relation to the commission of the above offence in the lower part
of the body only, the punishments shall be necessarily aggravated, if com-
mitted in relation to the middle part of the body and the head, on the autho-
rity of that text of Katyayana. The word adi (i.e. and others), added to the
compound word moha-mada (i.e. loss of understanding and drunkenness),
implies ‘madness and similar other states of the mind’. As striking (a person)
with ashes etc. has been intended in the previously cited texts of Brhaspati
and touching him with the above things is spoken of in the present texts of
Y4j., entailing a heavy and a light punishments respectively upon the offender,
so it appears that the two kinds of texts are not contradictory to each other.
This is clearly indicated from the introductory phrase of the Smrtisara, viz.
‘Yaj. has laid down the following (punishment) in cases of touching the body
of another with the following things’.

Katyayana (V. 784) has laid down the following punishments for throwing
vomitings etc. (against any person): He, who assaults another person with
vomited matter, urine, ordure and similar other (nasty) things (adi), is to be
punished with a penalty, four times of the prescribed one and the punish-
ments shall be increased to six times and eight times, if such offence in com-
mitted in relation tothe middle portion of the body and the head respec-
tively. |

D. V. adds: The word ddi, added to the compound word chardi-miitra-
purisa (i.e. vomited matter, urine and ordure) implies ‘other nasty things
such as fat, seminal fluid, marrow and blood’. The increase by four times
etc. is in connection with the fine of ten panas etc.

Manu (VIII.282) and Narada (Vag. V.27) say: The king should cut off

212 | . . DANDAVIVEKA

| |
the two lips, male organ of generatien and the anus respectively of the
person, spitting over another person’s body, urinating or producing a bad
sound (avasabdayto) from the anus out of pride (darpdt).

D. V. adds: Kullika Bhatta has read avagardhayatah'" for avasabdayatah
and explained gardhanam as ‘insulting (a person) with the sound, issuing
from the anus’, which, however, makes no real difference in meaning. The
word darpat (i.¢. out of pride Or vanity) has been added in the above text
to exclude such offences having been made out of inadvertence, drunkenness,
loss of understanding and similar other states of the mind. Kullika Bhatta
has also added with a reference to the just preceding text of Manu that
the present text isin connection with a Sidra, committing these offences.
But (Narayana) Sarvajfia has, however, said that all the above offences are
relating to their commission by persons of inferior status.

Yaj. (11.217) further lays down: A fine of ten paras is the punishment for
disguisedly pulling the leg, hair, or hand of another person catching
hold of his cloth and a fine of one hundred panas is to inflicted fora
tormenting way of envoloping another man’s body with a piece of cloth
and kicking him with the leg.1”’

D. V. adds: According to the Ratnakara (p. 260), the compound word
pidakarsanSukavesta-padadhyasah is a samaharadyanda (i.e. a cumulative
copulative compound) to be dissolved as pidakarsasca ansukdvesta-pada-
dhyasasca [i.e. a tormenting pulling and kicking, after having envoloped (the
body of a person) with a piece of cloth}. The author of the Mit. is of opi-
nion that the above punishment is to be inflicted when all the 26९ mentioned
in the above affence, have been done together. But the Kamadhenu has read
the latter part of the above text as pidakarsansukdaveste (padadhydse) and
explained it as ‘(after having enveloped the body of another person with)
a piece of cloth (a#sukena), the pulling by which causes pain (to him) (pidayai
yasyakarsas tena).

Manu (VIII.283) and Narada (vag. V.28) lay down: If a person catches
hold of another man’s hair, the punishment of the mutilation of both the
hands (hastau) should be invariably inflicted upon him and the same punish-
ment shall be meted out to him also who catches hold of another person’s
legs, beard, neck or testicles.

D. V. adds: Kullika Bhatta has carried the word darpdt (i.e. out of pride)

| 176 But Manu has read it as avasardhayato and Kullika has explained sardhanam as
above. |

177 T), V., though reading 0441075८ as a variant and padddhydsagca in the quotation
of the explanation of the Ratndkara in its comments, reads pddanydse in the body of the
text, | |

SPECIFIC PUNISHMENTS FOR ASSAULT : 213

। । ।
to this text 75 from the earlier text of, Manu. According to D. V., the word
hastau (i.e. both the hands) has been inserted here to emphasize the punish-
ment of both the hands (of the culprit), even if the offence might have been
committed with one hand only.

Harita says: The fine of eight purdna-s is to be imposed on a member
of an inferior varna for shouting against, insulting or assaulting members
of the superior varna-s. The punishment shall be increased to thirty(purdna-s)
in cases of fastening of the cheeks or catching hold of the neck or assaulting
on the face or by pulling the hair. The corresponding punishment for pluck-
ing the hairs of the body, threatening and beating, is sixty-three (purdna-s).
The penalty shall be increased to two hundred (purdana-s) for cutting the top-
knot and the ears and breaking the limbs (anga-bhanga)'*® Either mutilation
of the (offending) limb (of the culprit) or imposition of the fine of five hundred
(purdna-s)'® is the proper penalty for kicking a person with the legs or uttering
false abuses against him. But if the above offences are committed by members
of the (most) superior varna (ddyesu) (i.e. by Brahmanas), then either a
quarter of the above punishments or nopunishment at all (pado na va kincit)'**
should be inflicted upon them, as they belong to the highest varna and are
hence masters of the inferior varnas. The Brahmana is the overlord of the
superior (varnas).

D. V. adds: The word anga in the phrase anga-bhanga in the above text
refers to such limbs of the body as the hands, feet and other (useful organs)
The rest of the explanation of the above extract is to be looked for in the
earlier chapter on abuse (pp. 202-4 of D.V.)

Manu (VIII.279-80) has laid down: Manu’s prescription is that the very
limb, by means of which a member of the lowest varna (antyajah) assaults
a member of a superior varna (Sreyamsam), is to be cut off. If such assault
is made by raising the hand, thg hand is to be cut off and if such beating 13
effected out of anger with the leg, the leg should be cut off

D. V. adds: The words sreyamsam and antyajah mean ‘a member of the
three higher varnas’ and ‘a Sidra’ respectively

Visnu (V.66) says: One should not transgress (atikradmet) one’s parents
and teacher. Mutilation of the (offending) limb is the proper punishment
for transgressing the above three persons.

D. V. adds: The word atikrama means ‘kicking with the leg’, according

178 But Kulliika has done so in the interpretation of the Ist line only and added himsayd
(i.e. out of desire to inflict injury) in the 2nd line

179 Cf. Harita above (p. 202 of D. V.) for the following portion of this full quotation.

180 The earlier shorter quotation reads pajsicasatantvddyesu for paficasatam vd ddyesu.

181 The present quotation misreads pddo na vd as pddonam.,

214 DANDAVIVEKA

to the Ratnikara (p. 356). Thus the mutilation of the leg, which is the ins-
trument of kicking, is implied here (cf. Ratnakara, (०८. cit.).

Yaj: (11.232a) has laid down the following punishment in his topic of
the same, amounting to fifty panas: He, who shouts against or
transgresses respectable persons or assaults his brothers or wife, (shall be
awarded the above punishment).

Brhaspati (XXI.9b) also says on this topic: The wise men should devise
punishments, appropriate to the injuries, caused by the assaults. The same
authority (XXI.10) further says on the topic of assaulting with bricks etc:

The talented (judges) should prescribe the fine of two mdsas in cases of
assaults having been committed with the help of bricks, stones and logs of
wood but the above fine shall be doubled if discharge of blood ensues from
such assaults.

Visnu (V.67) has laid down on assaults, committed by means of weapons:
One, who creates agony in the body of a person (by means of weapons) but
without causing any discharge of blood, shall be fined thirty-two panas,
which amount of fine shall be doubled if discharge of blood is caused.

Manu (VIII.284) has laid down the following punishment for piercing
against the skin and causing greater discharge of blood (of the assaulted
person):

He, who pierces against the skin of another person and causes the red
(i.e. blood) to come out, shall be fined one hundred (panas). The piercer
of the flesh should be awarded a fine of six niskas but the piercer of the
bones should get banishment (as his punishment) (pravdsyah). .

D. V. adds: The niska, spoken of in the above text, means a silver niska
coin, as no qualifying adjective has been placed before the word and also
because (six) silver niska coins seem to the adequate amount of fine in such
offences. But Narayana has explained the compound word san-niskan as
(six) dindra coins. Kullika Bhatta has given his opinion that this text is
concerning the same castes (of the assaulting and assaulted persons) and
persons, belonging to castes, other than Sidras. (Narayana) Sarvajfia has
interpreted the word pravdsyak as “‘to be banished from the country, after
having all his property been forfeited (by the king).”

Brhaspati (XXI.11-12) says: The first, the middle and the highest amerce-
ments are to be inflicted upon (persons, convicted of) piercing against the
skin, doing so against the flesh and breaking (fully) the bones (of another per-
‘son) respectively.. But death is the proper panalty for committing murder.
(ghatane tu pramdpanam) The fine of the middle amercement shall also be
(ordered) for cutting off another person’s ears, nose or hands or for breaking
the teeth or bones of another person, But twice the above various kinds

SPECIFIC PUNISHMENTS FOR ASSAULT 215
&

of pecuniary punishment shall have to imposed, if the parts of the body,
struck against, fall down (patitesu) to the ground.

D. V. adds: According to the Ratnakara (p. 263), the words ghdtana and
pramapana mean ‘murder’ and ‘death (-sentence)’ respectively.

Katyadyana (V.781) says: Bhrgu has laid down that cutting off (chedane)
of the ears, lips, nose, legs, eyes, tongue, the male organ of generation and
hands entails the punishment of the highest amercement and the breaking
of (bhedane) (i.e. causing injury to) those parts of the body the middle
amercement (upon the wrong-doer).

D. V. adds: The words ‘chedana’ and ‘bhedana’ mean ‘causing them
to fall down from their positions’ and ‘cutting asunder’ respectively. (cf.
Ratnakara, p. 263).

The same authority (V.969a) adds: All the above punishments are to be
applied against persons, committing similar offences (samadparadhanam).

D. V. adds: The word samaparddhanam means ‘of those, who cut off
or break other limbs of the body’. According to the Ratnakara the
entire above prescription is concerning the commission of such crimes
out of inadvertence.

Yay. (11.219-220) has laid down: The fine of the middle amercement is to
be imposed in the following classes of offences:

Breaking of hands, legs and teeth, cutting off of ears and nose, causing
an almost healed-up sore to reappear, assaulting a person to make him
almost dead, causing the stoppage of one’s movements, of taking meals and
of the power of speaking, piercing into eyes and similar other tender parts
of the body and breaking the neck, arms and the thigh.

The same authority (i.e. partly Yaj. 11.304) has further said: The punish-
ment for a Sidra, who pierces through both the eyes of a person, is eight
hundred (panas). 3 ‘

D. V. adds: The above text is concerning a piercing, which is curable.
According to the Ratnakara (cf. p. 264), the word asfasatah means ‘eight
hundred panas’.

Visnu (V.68-72) says: The fine of the middle amercement is to imposed
(on the wrong-doer) for breaking hands, legs and teeth and cutting off the
ears and nose (of another person) and for causing stoppage of (another
person’s) movements, taking meals and the power of speech,. The fine
of the highest amercement is to be inflicted (upon the culprit). for
assaulting (a person) and breaking or damaging (a person’s) eye, neck
and thigh. The king should not release from life-long imprisonment (the
criminal), who pierces into (i.e. plucks out) both the eyes of another person
or he should render the offender devoid of both his eyes.

216 | DANDAVIVEKA

D. V. adds: The addition of the cumulative particle ca(i.e. and) at the end
of the words viz. prahdra-dane netra-kandharasakthyafica indicates that
punishment for the several kinds of offences, enumerated by these two com-
pounded words, is to be higher than the middle amercement, spoken of
just above. The phrase Bhange ca is to be construed with the second word,
beginning with netra. According to the Ratnakara (p. 264), in these state-
ments (of Yaj. and Visnu) and in the statements (of other authorities) also,
various prescriptions of corporal and pecuniary punishments for the same
offence have been made. Causing of great or little pain and the wealthiness
or poverty of the criminal are to be taken into account for the infliction
of those (apparently contradictory) punishments. The commutation of the
pecuniary punishments into corporal ones is also to be considered in the
light of the possession or absence of wealth of the assauller, according to
Ratnakara (p.264).

Manu (VIII.286) has laid down: The punishments to be inflicted upon the
criminals should be in proportion to the degree of pain (duhbkhaya), experi-
enced by the men or the beasts after having been assaulted (prahrte)'®* by
the former.

D. V. adds: The word dubkhaya implies ‘the intentional infliction of the
assault’. So when the infliction of the pain is due to inadvertence and is thus
not intentional, no fault arises. (cf. Ratnakara, p. 265, the reading of this
comment portion of which is somewhat faulty).

Narada (cf. vdg. V.31) also says on this topic: That (yah) wicked person,
who assaults the king, even if the latter may have committed an offence,
should be ‘first impaled (s#/yam) and then burnt alive, as the former is a
criminal, more despicable than the murderer of a hundred Brahmanas.

D. V. adds: The word yah (i.e. that person) refers to a non-Brahmana
and the word si/yam means ‘subjected to that punishment of being pierced
through the flesh of his body after having made him mount on a stake’. (cf.
Ratnakara, p. 266).

Here ends the sixth chapter entitled dandapdrusya (i.e. assault) in
the Dandaviveka, composed by Mahamahopadhyaya—dharmadhikaranika-
Sri-Vardhamana. |

182 TD), V. and Ratnakara (0. 265) read prakrte for prahrte, read by Manu.

CHAPTER शां

PUNISHMENTS FOR MISCELLANEOUS OFFENCES
(prakirna-danda)

There is a following collection of verses (describing the various subdivisions
of these offences): The sages, while subdividing the miscellaneous ofiences,
have classified some of them as uddistah and some others as muktakah,
beginning with sahasa in the latter and have incidentally spoken of two
other divisions viz. vivada-visaya and vyavahara-pada. So these make up
four kinds, which have been described (in detail) in the four corresponding
portions, just following the first portion, devoted to vyavasthd (i.e. pres-
cription or definition). So there are five vargas (or subdivisions) in this
chapter on miscellaneous offences.

D. V. adds: As the above subdivision has been made on the basis of
the preliminaries (of judicial procedure) owing to the differences in their
conclusions in the form of laying down the requisite punishments, so no
fault arises in the overlapping of twos and threes among them in such a
subdivision. The vivada-visaya (i.e. titles of legal disputes), intended here,
is of eighteen kinds, as laid down by Manu (VIII.4-7), beginning with re-
covery of debt and ending with gambling and prize-betting. It is for this
reason, {70६ the topic of the collection of taxes (by the king), though described
in the nibandhas along with the above eighteen kinds (of titles of law), has
been left out in our discussion on that subdivision and introduced in-our
preliminary sub-chapter (of this chapter) in view of the introduction of
the above topic by Katydyana and other authorities in that sub-chapter:
The offences such as theft, though connected with the titles of law, have
also been left out by us in this chapter, as those offences do not fall into the
category of ‘miscellaneous offences’.

Brhaspati (XXIX.I) says on this topic (on vyavasthdvarga): The suits,
lodged by complainants, have been thus described in brief. I shall now
speak about the suits, to be started by the king himself (nrpdsrayam vyava-
haram) i.e. suo moto, which are termed as ‘miscellaneous offences(prakirnaka)’.

D. V. adds: Though suits concerning murder etc. are also dependent
on the king (nrpasritah), yet the king passes his judgments in those suits,
after both the plaintiff and the defendant (or the complainant and the accus-
ed) have proved their cases and the king has finally decided by pronouncing
his punishment on either of the parties, who has been adjudged guilty.
But in this chapter on miscellaneous offences the difference consists in the `

28

218 DANDAVIVEKA

९
fact that the king, without any private complaint and after having been
apprised by his own spies of the lapses, committed by members of the several
varnas in several stages of life and having discussed the relative criminality
of the offenders, inflicts the appropriate punishments on them and places
them in the path of righteous conduct (from which they have deviated).

So Narada (prakirnaka V.6) says: The king should on his own initiative
place in the proper paths (the members of) those varnas, who have either
deviated from them or have followed any commotion.

Manu (1X.273) also says: If any person of the pious way of life (dhar-
majivanah) deviates from the path of religious conventions, (the king)
should tornent that defaulter from his own Vedic duties with the infliction
of punishments only.

D. V. adds that the word dharmajivanah means ‘a Brahmana and similar
other persons’.

Thus, both the following acts viz. the forsaking of the prescribed
duties and the practising of the forbidden actions, are punishable, as has
been laid down by Brhaspati (1.131): The King should, (after having made
provision for their food and raiment), confiscate the properties of those
persons, who habitually omit the performance of their specific duties and
commit acts, forbidden for them.

0. V. adds: According to the Parijata, the word ‘of duties’ (vihitasya)
means ‘of those actions, laid down for the individual yarnas in several
stages of life’, and including those, omitted more than once due not to
inadvertence etc’. and the word ‘forbidden’ (pratisiddhasya) implies
‘the regular. commission of the fault of eating the uneatables and similar
other acts’ The Kalpataru adds that the eating etc. (is to be under considera-
tion) with the exception of those, sanctioned by the customs of the
country. 4

Apastamba (11.27.18-20) also lays down: (The king) should put in a
solitary prison the Brahmana or a member of any other caste, who has tran-
gressed the conventions (laid down in the sacred books) up till his correc-
tion and who should be banished, if no such correction occurs (within a
specified period of time).

D. V. adds: The Kalpataru has added the epithet ‘committer of the
forbidden acts’ to the pronoun ‘anyam’ (i.e..a member of any other caste).
The word ‘samdpatti’ (correction) means ‘his conviction that he would
do so next or not do so again’. This punishment is regarding repeated com-
mission of the above offence and relates to Brahmana offenders also. .

Manu (2९.291) has laid down this separate punishment for a non-
Brahmana (offender): He, who transgresses the existing conventions,

SUBDIVISION OF DEFINITION ` 219

। ,
(maryada@), should be penalised!®* with corporal punishment, consisting of
the maiming of his limbs. (vikrtarn vadham).

D. V. adds: The term marydda means “the popular conventions, current
in a country, caste or family or laid down in the sacred books or promugal-
ted by the king”. So the transgressor of those conventions should be imme-
diately put to death (or to similar other torture) on the authority of a text
of Narada (vag.12a).viz. Immediate death is the penalty for transgression of
conventions. The author of the Ratnakara (p. 294) has interpreted the
phrase ‘vikrtam vadham’ in the above text of Manu as ‘physical torture in
the shape of cutting off the ears etc. (of the offender)’ and has explained the
word ghata in tha above text of Narada, read with the latter half of the text
of the same author (vag. V.11b). viz ‘hastipa...gesu ca (D. V. p. 217)
as ‘harassment (tddznam)’, on the authority of the first half of the
above text of Manu (1X.291a), which is to the following effect: He, who
sells spurious seeds (passing them off as genuine ones) and digs out (other
men’s) seeds (to sell them), (should get the vikrta vadha as punishment).

So the above explanation (of the Ratnikara) should be taken as con-
cerning cases, not involving repetition of the above offences. In cases of
repetition by Ksatriyas and others, not followed by any correction on the
part of the offenders, the import of the word ‘vadha’, connected with two
portions of the above text (of Manu), is the actual sentence of death, and the
corresponding punishment of banishment is justified in the case of a (similar)
Brahmana (offender).

If it is argued by an objector that the acceptance of the interpretation
of the Ratnakara for some portion of the above text and that of ‘yours’ (i.e.
the present author) for some other portion are incompatible, then our reply
is that the objection, put forward, is just but in connection with the mention
of the single word vadha (i.e. death), which may also be interpreted by
explaining it as harassment, mutilation of the limbs and death proper in
conformity with the specific offences concerned, just as, after having
interpreted the single word Sariram (i.e. relating to the body), occurring
in the text of Sankha-likhita, beginning with the phrase Kifa-Sdsana-prayoge
(i.e. in the use of a forged royal document), as ‘shaving of the head etc.,’
(p. 296) concerned as it is in that context with suits, involving the use ‘of
spurious balances etc., the Ratnakara (p. 369) has explained the same word
as ‘death (itself), concerned as the same text is (in this latter case) with
suits, involving the transgression of the royal orders.

188 Manu and Ratnakara read as vikrtam, which also occurs in the quotation of the
latter’s interpretation by D. V. also,

220 DANDAVIVEKA
¢
Here ends the first section entitled vyavasthavarga (i.e. the subdivision

of definition) in the prakirnaka (i.e. the chapter on miscellaneous
` offences),

UDDI§TA-VARGA
(i.e. classes of offenders, enumerated in the chapter on
miscellaneous offences)

Narada (prakirnaka VV.1-4a) has thus described the contents of this chapter:
Litigations, started by the king himself (vyavaharo nrpasrayah) and includ-
ed within the chapter on miscellaneous offences, may be of the following
varieties: |

(1) Transgression of the King’s orders, (2) Performance of the special
duties, to be discharged by him only, (3) Creation of dissension among
the prominent citizens and among the ministers, (4) Reversal of the con-
ventions of the heretics, ordinary merchants (naigama), merchants, trading
with other countries (नस) and of the guilds, (5) Disputes between father
and son, (6) Violation of the performance of expiatory rites, (7) Abolition
of the practice of the acceptance of gifts, (8) Abolition of the persons, placed
in (and discharging the duties of) the several stages of life, (9) Fault of
inter-mixture of the varnas (i.e. miscegenation), and (10) Rules guiding the
voluntarily accepted special occupations of the several varnas.

D. V. adds: Halayudha has explained the word naigama as the associa-
tion of many citizens and the Kalpataru has interpreted the word Sreni as
the federation of the merchants, farmers and similar other classes of persons,
engaged in. similar work.

Katyayana (V. 946a) has added the following (to the above list of
Narada): Performance of the king’s (special) duties, and one’s own duties 1654
and disquisition on doubtful matters-all, this is prakirnaka 183°

D. V. adds: The mention of ‘one’s own dharma’ (sva-dharrman) along
with the king’s duties (rajadharman) (in the above text) is really to avoid
the contradiction between these two kinds of duties. The word niscitatvena
(i.e. with the idea of their certainty) is to be supplied after the phrase
viz. sandigdhanafica bhdsanam'*¢ (i.e. disquisition on doubtful matters).
This applies to cases where another person’s injury ts done by the untrue
statement (of a person) and not to those cases, where the performance of
penance only has been prescribed by the use of the phrase ‘niskrtinam
akaranam’ (0.6. non-performance of the expiatory rites).

1834 J), V. misreads svadharmédnsca as tradharmdnsca, which former is translated here,

५००0 Supplied from Katydyana (V.946b) for reasons of context,
w8¢ DP, $, misreads bhdsanam as bhdvanam,

CLASSES OF OFFENCES 221

Brhaspati (XXIX.12) has laid down (some other additional things):—
(Non-payment of) the sixth-portion, the ferry-charges and the thing to
be thrust into pits, the disrupter of battles and thieves and the destroyer
of standing crops.

D. V. adds: The word sad-bhdga (i.e. the sixth portion) relates to gold,
lost but subsequently recovered by a person, which sixth portion should
be received by the king (from the hands of the person, recovering
the gold) and the thing to be thrust into pits (garte deyas) refers to the
eatables, dedicated in the Vaisvadeva sacrifices, to be so done (for their
utilization by animals and insects).

The same authority (XXIX.13-15) goes on saying: Non-performance
of the expiatory rites, transgression of the royal injunction of arrest (dsedha)
of either of the contesting parties (in a suit), abolition of the several varnas
and stages of life, the abolition of (the truth about) the intermixture of
castes, (suppression of facts concerning the finding of a) treasure-trove,
(misappropriation of) the wealth of a person, who has died heirless, (sudden)
acquisition of wealth by a poor man, (performance of) religious duties, not
laid down in the sacred books, the unauthorised pronouncenent of the judg-
ment of the litigants, (creation of) anger among the ministers, (making of)
secret signs by two persons between them and the practice by the subjects
of acts, condemned in the holy books—all these should be described below.

D. V. adds: The topic of dsedha (i.e. arrest) will be elaborated in
the section on vyavahdra-varga (i.e. section on judicial procedure). Trea-
sure-trove (nidhi) is of two kinds, which will be described below. The
sudden acquisition of wealth by a poor man, who is without an ostensible
means of livelihood and is thus suspected of having acquired a treasure-
trove, is a cause of his punishment

Yaj (1.361) says on this topic: The king should inflict punishments
upon and place in the proper way of life the families (Kulani), the castes
(jatth), the merchants, trading with other countries (ईद), the several
guilds of the betel-leaf-sellers etc. (ganam) and artisans (jdnapadan), if found
deviating from their respective duties

D. V. adds: The families relate to ‘those of Brahmanas’ and the castes
to ‘those of the Ksatriyas and others’, The word ‘ganam means ‘the
guild of the betel-leaf-sellers etc.’ and janapadan implies ‘that of artisans’.
The word viniya (i.e. after having punished) has been added here simply be-
because it is not possible to restrain the erring persons by words only without
threatening them, as such persons pay no heed to the Vedic texts, laying
down the unseen bad results of sins, aecruing from their commission and
thus have no fajth in and respect for mere words,

222 ` DANDAVIVEKA

So the punishability of all the classes of offenders, enumerated in the
above several lists, if found transgressing the rules and conventions, pres-
cribed and to the followed, has been laid down and the lists may be supplemen-
ted even without the existence of any other special ones, in considerations
of time, place and circumstances. This is the settled conclusion.

Sankha-likhita have laid down the following punishment for the trans-
gression of the king’s orders: Corporal punishment (210) or mutilation
of the limbs (of the offender) is (to be resorted to by the king) in offences
such as the use of forged royal documents, transgression of the royal orders
and employment (in business transactions) of spurious balances, weights
and measures.

D. V. adds: The word Sarirah, used in the above text, is ‘the sentence
of death’ according to the Ratnakara (p. 369). Though the same authority
has explained the above word as ‘shaving the head of the culprit etc.’ (p. 296)
in its chapter on ‘overt thieves’, yet that explanation is in consonance with
the offence of employment of the spurious balances etc. only. The same
authority (p. 369) has also explained the mutilation of limbs (a7gaecheda)
as ‘cutting off of the limb, with which the offence has been committed’
and has added that ‘its substitutes are to be applied according to the gravity
or lightness of the offence’. Thus, if a short royal document has been forged
by somebody, the offending limb of that person is to be mutilated according
to the degree of culpability.

So, while explaining the following text of Manu (part of IX.275):
‘(The king) should inflict various corporal punishments (ghatayed vividair
damaih) on those.persons, who act adversely to his orders”, Kullika Bhaffa
has said that those, who do so, should be punished with the mutilation of
their hands, tongue etc. in proportion to the gravity of their offences.

Yaj. (11.303b) has laid down the following punishment for a person,
usurping the privileges of the king: One, who ascends the (beasts of) conve-
yance and the (special) seat of the king, should be awarded (the fine of)
the middle!** amercement.

D. V. adds: The conveyance (ydnam), spoken of in the above text,
means elephants, horses etc. and the seat (asanam) refers to the throne.
The phrase ‘without the King’s permission’ is to be supplied after the above
text.

Katyayana (V. 955) also says: All those, who engage themselves in royal
sports or betake to the avocation of the king or speak ill of him, should be
put to death.

1% But Yaj. reads uttama (—sahasah) for madhyama etc., read in D, V,

CLASSES OF OFFENCES 223

®

D. V. adds: The phrase rdja-krigdsu (royal sports) implies ‘the sports
and actions, reserved for the king’ and the clause ‘(who) assume the role
of the king’ (tad-vrttyupajivinah) means ‘who do such acts as the admi-
nistration of the subjects’. These two kinds of act, when performed without
the permission of the king, become punishable.

The same authority (part of V. 956) continues by saying: Those, who
imitate the king in his appearance (dress etc.), should be subjected to various
kinds of physical torture. D. V. adds that ‘without the king’s permission’
should also be supplied here.

Visnu (V. 14) lays down the following punishment in continuation of
the word ‘hanyat’ (i.e. should be put to death), (occurring in an earlier
text of the same author):

Those persons, who, having sprung from less dignified families (akulindh)
(than that of the king), aspire for the kingdom.

Yay. (IL. 295) further says: Those, who tamper with a royal order by
increasing or diminishing the amount of money (to be paid or to be received)
recorded in it or let loose profligates or thieves, shall be awarded the fine |
of the highest amercement.

Katyayana (V. 954) also says: He, who succeeds in his cause by means of
a false means of proof (pramanena) or by a forged seal (mudrayd), shall be
awarded the highest amercement. ,

D. V. adds: The word pramanena means ‘by a document’ and the word
mudraya implies ‘containing the signature etc. (of the king) affixed
or engraved on It’.

Manu (1X. 232) also says: (The king) should put to death the forgers
of (the documents embodying) royal orders, the accusers of the ministers,
the murderers of women, children and Brahmanas and those persons, who
associate with the enemies (of the king).

D. V. adds: According to Narayana, the phrase Kiita-sdsana-karj{rrn
(i.e. forgers of the royal orders) means ‘(those who) write out forged
royal orders’. As the two kinds of punishments viz. sentence of death and
the fine of the highest amercement, as laid down by Manu and Katyayana
respectively, are not similar, so the settled conclusion is that the above two
punishments are to be inflicted in cases of graver'®® and lighter types of
criminality (of the offenders) respectively. Owing to their total exemption
from the capital punishment, Brahmanas are to be fined a hundred gold
(coins) us its substitute on the analogy of the commutation of the death
sentence, to be passed on a grave sinner, to that of banishment.

166 1, V. misreads alpdrnalpdparddha as alpdnaparadha.

224 DANDAVIVEKA

Narada has laid down on the offence of creating dissensions among the
city elders: The king should not tolerate the effecting (of the big persons)'*6
of associations, (sanghdta-karanam), hostile to the public interest, the
taking up of arms without necessity (ahetau) and harming one another.

D. V. adds: The word ahetau means ‘without any apprehension of fear’.
The king should not tolerate these heretics (and scoundrels) of the city but
punish them as severely as he can. The punishment, laid down here for
effecting undesirable alliances among the biggest persons, should be applied
to cases, involving the ministers also. |

As disturbance of the settled practices results from the reversal of the
conventions of the heretics and similar other persons, so Narada has laid
down: The king should keep intact the characteristic conventions (samayam)
of the pdsandas, ndigamas, Srenis, piigas, vrdtas, ganas and others (°ddisu) in
the fort!®’ as well as in the localities. |

D. V. adds: Pasandas are “persons outside the pale of the three Vedas
(i.e. the hereties, such as Buddhists, Jainas etc.)”? and pigas mean ‘guilds
of merchants (and artisans)’. but according to some authority they imply
“‘the occasional associations of various kinds of traders.” Vrdtas include
“‘all the members of the armed forces.”’ The addition of the word adi indicates
the inclusion of the samgha and other associations, of which sangha means
‘the collection of the Jainas and the Buddhists”, gu/ma means “that of the
Candalas and other untouchables” and varga includes all other unspecified
associations. The word samaya means ‘the conduct in connection with
technical religious practices.’

Brhaspati (XVII. 95-105) has laid down the following gradation of the
officers-in-charge of the villages and towns who should not be transgressed:
(The king) should appoint the best and most experienced men (to supervise)
all the affairs (of the territory). Such men 4y twos, threes or fives should
be engaged to cater to the interests of the entire community. The Sreuts,
the ganas and other associations of the village should abide by their decisions.

३}. (IL. 1885) says: He, who acts adversely to the actions (of those men),
shall be punished with the first amercement.

Katyadyana (V. 671) also says: He, who criticises the justified actions
(of the group) and who gives no scope to the speaker (when the group meets)
or who speaks out what is absurd, shall be awarded the first amercement.

D. V. supplies the word Karyacintakesu “(to the planners of actions)’
after briiyat ‘(speaks out)’.

186 >. V. wrongly inserts sanghdta between prakrti and pratikfila in the comments here.
187 Narada reads durge but D. V. reads dvande.

CLASSES OF OFFENCES 225

। 9

Manu (VIL. 219-20) again says: We, who after having joined, with the
utterance of an oath, an association of the villagers or the country-men,
subsequently quarrels with it out of greed, should be banished from the
territory. Such a transgressor of conventions should also be subjected to
physical harassment and should be made to pay a fine of six niska coins,
collectively weighing equal to four measures of gold and a silver Satamdna
coin in addition.

D. V. adds: According to the Ratnakara (p. 181), the word catuh-suvarnan
(i.e. four measures of gold) is an epithet of the word niska (i.e. the compound
word san-niskan) to obviate the interpretation of the latter word otherwise,
as laid down in the chapter on technical terms. But Kullika Bhatta has
interpreted it to mean ‘each of the six niskas, weighing equally with four
measures of gold and an alternative punishment of a silver §atamana’.

Katydyana says on the acts, relating to conventions: The acts (relating
to a convention) should be performed by all the members of that convention.
But he, who, though (physically) able to perform them, quarrels about
them, should have his entire property forfeited (by the king) and should also
be banished (by him) from the city (or the territory). A person, creating
dissension into or showing indifference towards a convention, should be
punished with a fine of six nigka coins, collectively weighing equally with
four measures of gold.

D. V. adds: The dissension (bhedam), spoken of in the text, is to be inter-
preted as ‘between the several members of that association’ on the authority
of the following text of Narada:

Those, who create dissensions of the several ganas (i.e. associations),
should be specially punished.

The explanation of this two-fold preseription of punishments for the
same offence is to be looked for in the section on vivdda-pada (i.e. titles
of law) below

Yaj. (1. 187) says: (The king) should confiscate the entire’ property
of and banish from the territory the person, who either steals the things
(guna-dravyam), owned collectively by a conventional association or trans-
gresses (the rules of) that association.

D. V. adds that the phrase gana-dravyam means ‘the common property
of the whole body of members of the village or town’.

Katyayana again says: (The king) should forthwith banish from the city
(or the territory) the person, who pinpricks another person, perpetrates
any other form of cruelty, creates dissension (among the ministers or subjects)
indulges in rash acts (sdhas!) and: acts inimically towards the Sren!, the piiga

or the king
29

226 DANDAVIVEKA

Brhaspati (XVII. 22) says: Those, who conspire together and deprive the
king of his legal dues, should have to pay back ten times of the robbed
amount (to the king). The same punishment will be applied to abseonding
merchants (who have not paid off the royal taxes).

ON THE TOPIC OF DISPUTES BETWEEN FATHER AND SON

Though no direct punishment has been specifically prescribed in disputes
between father and son, yet owing to the stricture passed on such acts, as is
evident from the statement (in the section of evidence), viz. pitrd vivadama-
nasca (i.e. when quarrelling with father), such actions are to be regarded
as prohibited and consequently a nominal punishment for transgression
of the moral injunction, as laid down in the section on sdahasa (i.e. rash
acts), is to be meted out (to the witnesses) in consideration of the posses-
sion of merit or not by the father. The examples will be given in the topic
of evidence below.

Visnu (V. 120-121) says: Witnesses, deposing in a suit, involving a dispute
between father and son, shall be fined ten panas. But he, who acts as their
instigator (sdntariyah), shall, however, get the pecuniary punishment of the
highest amercement.

D. V. adds that the Kamadhenu has read antare syat for santariyak syat
in the above text. |

Yaj. (11. 239) has laid down: Witnesses, deposing in a suit, involving
a dispute between father and son, shall be fined three panas only. But the
instigator (antare ca tayor yah syat) between the above two persons shall
be fined eight. hundred paras.

D. V. adds: A father, possessed of merit, is intended in the present text,
while such a person, devoid of merit, is intended in the previous text (of
Visnu). So there is really no conflict between the two texts. But the Mit.
has read asfagunak for asfasatali in the above text (of Yaj.) and given the
following explanation:

The person, who, instead of preventing the dispute between a father and
his son, promises to depose in their suit, should be fined three panas only.
But he, who stands as a surety for the wager in their suit with a wager and
also aggravates their quarrel (which is evident from the word ‘ca’ (i.e. and)
(inserted after the word antare)], 1s to fined eight times the above three
panas, 1.6, twenty-four panas.

“VIOLATION OF THE PERFORMANCE OF EXPIATORY RITES’ (prayaScitta-vyatikra-
ma) is the same as ‘non-performance of the expiatory rites’ (niskrtindm akara-
nam), spoken of by Katyayana (by Brhaspati?) above. There is an
anonymous Smrti text on the above offence: (The king) should devise the

VIOLATION OF SEVERAL CLASSES OF MEN 227

®
appropriate corporal and pecuniary punishments for those members of the
four varnas, who do not undergo expiatory rites (for their lapses).

ON TRE TOPIC OF THE ABOLITION OF THE PERSONS, PLACED IN (AND DISCHAR-
GING THE DUTIES OF) THE SEVERAL STAGES OF LIFE, the Devipurana says: Depo-
pulation sets in in a king’s territory, where a self-restrained person takes his
meals in the houses of prostitutes and similar other despicable persons or
where a Vedic student, who has taken a pious vow, partakes of the food,
prepared by a prostitute and similar other socially degraded persons and by
a Sidra woman.

The same authority adds: When an ascetic, wearing yellow robes, sits
down on the bare ground and thus bids adieu to his vow (of asceticism)
or associates with persons like prostitutes, a general consternation arises
among the people.

D. V. adds: The occurrence of the words yasya rdstre (in whose territory)
in the former text and the implication of the inherent poverty of the offen-
ders from both the texts necessitate the infliction on them of the punish-
ment of turning them out of the territory either by conciliatory or any other
(drastic) method.

Daksa also says on this topic: He, who, after having adopted the life
of a recluse, does not really remain in that life by the performance of the
requisite duties, should have his person imprinted by the king with the foot
of a dog and should be immediately transported by him from the territory.

D. V. adds that this punishment is relating to Brahmanas.

Narada has said elsevhere. When the members of the three twice-born
varnas deviate from the life of a recluse (after having once taken it up),
the king should order banishment for the Brahmana offenders and servi
tude for the Ksatriya defaulters.

D. V. adds: Sidra offenders,in such a case shall have to undergo servi-
tude on account of the maxim of Kaumutika (i.e. it goes without saying).

ON THE TOPIC OF THE FAULT OF THE INTERMIXTURE OF VANAS, the same
Devipurana says: When there is a possibility of miscegenation owing to the
spread of the practice of partaking of forbidden things such as wine of the
practisers of Saiva ascetics and consequent generation of (universal) fear,
the real reason is the currency of the Saiva and other tantras.

As Yaj. (II. 186) says: The samayika, which does not conflict with his
own duties, should also be carefully protected by the king as also the laws,
promulgated by himself.

D. V. adds: According to the Ratnakara (p. 180), the term samayika
means ‘(the practices) made for the welfare of the entire community’ but
according to the Mit., “it has been derived from the word samaya (i.e. time)

228 | DANDAVIVEKA

and hence means ‘the preservation of ,the grazing fields of cattle, preserva-
tion of water, maintenance of the temples etc,”’. The word rdaja-dharma
means such laws made by the king, which insist upon a person to perform
monthly propitiation of the maleficient deities and do similar other things,
on behalf of the king. |

21४2४218 (V. 670) says (on the rajadharma-s): That wicked person,
who does not obey the laws, promulgated by the king and thereby
sets at naught the king’s orders, is to be imprisoned (grahyah) and
punished. |

D. ४. adds that the word grahyah here means ‘is to be put in prison’.

The topic of the punishment of the assessors and similar other persons
for their pronouncement of judgment in favour of either party before the
final disposal of the suit will be described in the vyavahdra-varga (i.e. section
01 judicial procedure).

ON THE TOPIC OF THE RECOVERY OF LOST PROPERTY

Yaj. (II. 33) says: The king should hand over to the real owner of an
article of value, lost (by him) but recovered (by another person), if the
former can tell him its peculiar characteristics. Otherwise, the false claimant
is to be fined the value of the thing concerned.

D. V. adds: The word pranastam (i.e. lost) means ‘left (by him) out of
carelessness in the office of the tax-collector or on the road or snatched
(from him) by thieves’. The officers of the tax-collection office or those
of the police-station should make over such recovered articles to the king
on the authonty of the following text of Gautama:

‘The officers (or other men), having come upon an ownerless article,
should hand it over to the king.”” The king should deliver that article to
the real owner, if he can prove his ownership qver that thing by such character-
istics as “of white colour” or “of a round appearance’’. But if the latter
fails to substantiate his ownership, he should be fined the value of the thing
concerned on the authority of the following text of Manu (VILL. 32):

If a person fails to tell (the king) the exact time and place (when the thing
was lost) or the colour, appearance and dimensions (of the thing), he should
be fined an amount, equal to the value of the thing itself.

D. V. adds: The author of the Mit. says that the punishment inflicted
here is for making a false assertion. This is right, as such texts as ‘a really
false asserter (of ownership over a thing) is to be fined thrice the value of
the thing’ do not apply to those cases, in which a defendant is not guilty
of any wilful false assertion. In case the real owner (of the thing) fails to turn
up at once, the king should wait for him for three years, as

RECOVERY OF LOST PROPERTY 229

। 8

Manu (VILI.30a) has laid down: The king should keep in his own custody
for three years an article, the owner of which cannot be found out.

D. V. adds: Kullika Bhatta has said that the king, after having pro-
claimed by beat of drums whether anybody has lost something, should place
the article at the door of the royal palace. The Mit. says that the time limit
of three years implies ‘if so necessary’ (i.e. the upper limit).

Manu (VIII.305) has further given his verdict about what to do if the real
owner does not turn up within that period: If the real owner turns up within
three years, he shall take it back (Aaret) and (if he does not turn up within
that period of time), the king shall take it.

D. V. adds that according to the Mit., the verb ‘hare?’ has been used (in
the case of the King) for granting himself the permission to spend or utilize it.

The same authority (i.e. Manu VIII.33) has laid down a special rule on
the above: The king should (while making over the lost thing to the real
owner) appropriate its one-sixth, one-tenth or one-twelfth portions, follow-
ing the practice of the good.

D. V. adds: The Ratnakara (p. 346) says that the alternatives of one-sixth
etc. are to be adopted in consideration of the smallness, medium character
and bigness of the expenses of preserving the thing. Halayudha has also
given his opinion that the taking (by the king) of the one-sixth or other
portions has been laid down in accordance with (the expenses of) preserva-
tion. But Kullika Bhatta is of the view that (the above three kinds of portions
to be appropriated by the king) are in consideration of the worthiness or
unworthiness of the real owner of the thing. The author of the Mit, has,
however, said: If the real owner turns up within a year, the king should
deliver the entire thing to him. But if he does so in the second, third or fourth
year, the king should deduct one-twelfth, one-tenth or one-sixth portions
respectively of the thing as the preservation costs and deliver the remainder
to the owner. But if the latter turns up after the lapse of three years, the
king should give him a portion, equal to his own portion (i.e. one-sixth).
But even if long after three years the owner fails to turn up, the king should
make over one-fourth portion only of the thing to its recoverer but the same
portion of the king’s charges only should be paid to the latter, in case the
real owner happens to turn up long after the lapse of three years, as Gau-
tama (II. I. 36-38) has said: |

After having come upon an ownerless thing, (the finder should report
it to the king,) who should, (after having made a public proclamation,)
preserve it for a year only, after which period one-fourth of the value of the
thing shall be passed on to the finder of that thing and the remainder appro-
priated by the king himself,

230 DANDAVIVEKA

¢

D. V. adds that all the above preseriptions are in connection with gold
(lost and subsequently recovered).

Yaj. (11.174) has laid down the following rule about other kinds of things
(so lost and afterwards found):

Four panas are to be paid to the recoverer of single-hoofed animals and
five such to that of a human being. Two panas each are to be made over
to the reeoverer of buffaloes, camels and cattle and a quarter (pddam) (of a
pann) each only to those persons, who make over (to the king) goats and
sheep, similarly lost and afterwards recovered.

D. V. adds: According to the Ratnakara (p. 345), the single-hoofed ani-
mals include horses and similar other animals and the pada (i.e. a quarter),
in the above text means ‘a quarter of the (previously stated) four panas,
1.6. a single pana’. But it appears that a quarter of a pana (and not a whole
pana) is meant here according to the context. The author of the Mit. has
prefaced the above text of Yaj. with the remark that ‘“‘the following text
is an exception in cases of some objects to the general rule, prescribed by
Manu (VIII.33) about the one-sixth and other portions of the thing con-
cerned to be taken by the king” and has explained the text as follows:

The owner of one-hoofed and other animals, originally lost and later
on found (by the king), should pay to the king four and other correspond-
ing panas.

The Kalpataru has also given iis explanation of the necessity of paying
four panas by the owner to the king as costs of the preservation (of such
animals). `

In fact, thécosts of preservation of horses, human beings etc., such as one-
sixth (of the value of the thing concerned), equally applicable to that of
gold and other things, are quite separate matters. The present prescription
of four panas etc., being the daily maintepance charges, is an altogether
different topic. Otherwise, irrespective of the values of the several things
concerned, the difficulties of preserving the several things are sometimes
inversely proportional to those values, inasmuch as a huge quantity of
gold can be easily stored up in an under-ground pit, whereas a horse of
quite insignificant value in comparison to that of gold is difficult to be kept
in custody (even within a greater space). So it seems that the above two
explanations (of the Mit. and the Kalpataru) should be construed as relating
to the almost immediate arrival of the owners of those things.

Apastamba (II. 28.7-9), as quoted in the digest of Halayudha, is to the
following effect: One should, after having brought back to the village animals,
which have been inadvertently left in the forest, make them over to their
tespective owners. If such lapse is repeated only once, the former person

FERRY CHARGES 231
ह
should pen them up and if the mistake is further repeated, he should not
deliver them at all.

Vasistha (XIX.23-24) has laid down in his topic on ferry charges: The
following persons are exempted from the payment of such charges:

A Srotriya (i.e. a Vedic student, practising Vedic duties), the king, an
orphan (or a diseased person), a recluse, children, old men, just delivered
women, carriers of (royal) messages, maidens and widows.

D. V. Adds: The text of Manu, cited by Vasistha (XIX.37) beginning
with the words viz. na bhinnakarsdpanam asti Sulkam (i.e. no taxes for
articles, worth less than a Karsdpana) has been quoted by us in the section
on overt thieves (p. 95 of D. V.)

Visnu (V.131-133) says: The boat-man (tarikah), charging a person with
sthala-sulka, (i. e. land carriage tax) is to be fined ten panas. He is also to
be similarly’ fined, if he extorts ferry charges from Vedic students, forest-
repairers, mendicants, pregnant women and pilgrims. He should exempt all
these persons (from the ferry charges).

D. V. adds: The word tarikal here means ‘the person, engaged (by the
king) to collect charges (from passengers) for ferrying them over a river
or similar other water-course.’ As the persons, enumerated in the present
text of Visnu, are almost the same as those listed in the previous text of Vasi,
stha, such as a Srotriya and others, so the boatman, referred to in the latter,
if guilty of realising ferry charges, should be similarly punished and should
also be compelled to pay back the realised amounts to the persons concerned.
The sheet of water, which can be easily crossed over with one.’s feet, is
as good as land and so the charges for crossing it on a boat amount to sthala-
Sulka (i.e. land charges). Hence the punishment of the fine of ten panas
is to be imposed on the boatman, who insists on a pedestrian, crossing
a river on foot, to get up on his boat and subsequently extorts ferry charses
from him.

Halayudha also says: A boatman (ndyikah), not having really ferried
(a man over a small stream) but exacting ferry-charges from him, is to be
fined ten panas.

But the Kalpataru has read sthanika for ndvikah in the above text and
explained it as ‘the man in charge of the ferry ghdt i.e. the toll-man’.

In fact, sulka (i.e. tax) is of two kinds, viz. land tax (sthanika) and ferry
charges (tdrika)

The first kind has thus been described by Vigsnu 11.29): (The king)
should realise one-tenth portion as the (commodity) tax from indigenous

merchandise. The second kind has also been described (by the same author)
as follows:

232 DANDAVIVEKA

The tax to be given for any commaflity, carried by a conveyance, is one
pana and that for any such, carried by a human being, is one-half pana
only.

D. V. adds: So the following punishment (procedure?) has been laid down
for realising one-tenth portion as the tax on acommodity, carried by a man
inasmuch as a person becomes exonerated of the duty of payment of the
(commodity) tax (by paying it) in proportion to the weight (of the thing to
be sold) and not according to its value, otherwise the (commodity) tax,
charged on am erchant, would exceed his profit. The view of the Mit. is
also to the same effect.

Vasistha (X1X.25) says: One, who swims across a river where ferry-
system exists, is to be fined one hundred panas.

D. V. adds that the obvious reason is the consequent loss of the king’s
revenue (if a person does so).

ON THE TOPIC OF THE DESTRYER OF STANDING CROPS (Sasya-ghatana-kyt-
tatha), (specified in Brhaspati’s text, quoted on p. 263 of D. V.), the Markan-
deyapurana says: A big town or city (pura) is a place, encircled with high walls
and ditches on all sides, half a yojana (i.e. half of nine miles) squareand divided
into eight parts. A Khefa (or a small town) is half in dimensions of a big town
or city and a Karvaja (or a smaller town) is three-fourths in area of a Kheja.
A grama (or a village) is a cluster of houses, situated within agricultural
and pastoral land, mainly inhabited by Sddras and possessing a highly fiou-
rishing peasantry.

D. $. adds: According to the Danasagara (of Ballala Sena) (p. 145), a
Karvata 18 a> principal village among two hundred ones and a Khejfa is a
village, two miles long.

Yaj. (Ul. 166a and 167) has thus described the dimensions of the land,
to be set apart in a village:18* The grazing land of cows is to be made
either with the common consent of the villagers themselves (gradmeechaya)'*®
or by order of the king. This land should be situated at a distance of one
hundred dhanuh (i.e. four cubits each) in a village, at a distance of two
hundred dhanuh in a Karvata (i.e. a small town or a principal village) and
at a distance of four hundred dhanuh in a big town or city.

D. V. adds: The first mention of the word grdma (in the compound word
grameechaya)'®* means ‘the residents of the village, town etc.’ The idea

_ 188 The text of Brhaspati, quoted on p. 267 of D. V., has laid down several duties to be
performed in villages and other units (grdmasgandent-rdibhi Kartayan to be placed before
the following.

189 This is the reading of Yaj., also supported by the just following of comments of
D. V., the text in which, however, misreads it as grdme tu ya.

COMMON PASTURE-LAND _ | 233

(of the above citation) is that land js to be set apart for the grazing of cattle,
in accordance with the (common) consent of the villagers (or townsmen)
themselves or by orders of the king and in consideration of the smallness
or bigness of plots of land, so available. The extent of the distance between
such village or town and the grazing fields is to be graded as one, two or
four hundred dhanuh, according to the circumstances of each case. As the
intervening distance in each case depends upon the dimensions of the village
etc., so the distance, available in the case of a Khefa (i.e. a.small town or
a principal village but bigger than a Karvata), is of the extent of three hundred
dhanuh only.

So Manu (VIII.237) has laid down: A hundred dhanuh (or three samya-
pata-s'*) shall be the extent (of the grazing land) on all sides of a village
and thrice the above extent shall be that, encircling a town.

D. V. adds: A Samya is a stick and so samyapdta means ‘that portion of
land, crossing which a stick, thrown by the arm of a man of moderate strength,
falls down on the ground.’ Three times this distance is also known as ‘the
intervening space between a village and its fields of crops’. This way of
measurement has been spoken of here, owing to the lack of measurement,
due to the possible ignorance of the extent of a dhanuh and the availability
of a Samya. The above explanation is in accordance with the readings adop-
ted and interpretations made by the earlier digests. But (Vacaspati) MiSra
has in his Vivada-cintamani (p. 103) read the above word Samydpdtah as
sampatah and explained it as Kandapatah (i.e. throwing of the trunk of a
tree). All these measurements are tentative. The real procedure of fixing
the extent of the grazing land of the cattle is in proportion to the number
of such cattle in the village concerned.

So Visnu (V.147-149) says: No fault arises in the tract of land at the very
end of a village (grdma-vivitante) or in an unprotected plot of land on the
roadside. But this immunity is allowed (in cases where such feeding of
animals goes on) for a short time only.

D. V. adds: The phrase grama-vivitante means ‘in the tract of land, situa-
ted at the end of a village and containing within it grazing grounds with
growing grass for the use of cattle’. “7 nprotected’ (andvrte) means ‘such
a plot of land on the road-side with no arrangements for the prevention of
‘animals approaching it’. So if the standing crops of a field, adjacent to a
road, are eaten up for a short time by beasts, the herdsmen (of the beasts
concerned) are not liable. But they are to be considered guilty in cases of
continual eating (by the beasts in their charge).

190 3. V. reads, both in this quotation and the following comments, Sasydpdatah for
samyatoatah.

30

234 DANDAVIVEKA
¢

So it has been said in the Krtyasagara: The culpability of the man-in-
charge (of the beasts) is inferred in those cases. The Smprtiséra has also
echoed the same view.

So Y4j. (II.162) has laid down: No fault arises (in cases of such eating
up by beasts of crops growing) in fields, situated on the roadside or at the
extreme end of a village, if such offence has been committed unintentionally
(i.e. inadvertently). But intentional commission of the above offence entails
the punishment as a thief upon the offender.

USanas also says: The fathers of the person, who asks for the return
of the paddy (dhdnyam), eaten up by (another person’s) cows, as also
the gods do not partake (of the offerings, made to them by that person).

D. V. adds: The word dhanyam (i.e. paddy), used here, is illustrative.
If such crops are taken back, they conduce to the attainment of hell (after
death) of the persons, who do so. So these crops should not be taken back.
According to (Madhavacarya’s) commentary on the ParaSara-smrti, the
above text is concerning the paddy and other crops, lying unprotected
near a village.

Narada (simabandha V.38 and cf. V.39) has thus laid down this special pro-
cedure for the transgressor of the above Shastraic injunction: If a person, whose
paddy (dhanyam) has been devoured by another man’s cattle, asks the latter
to give it back to him, it shall have to be so done with the approval of the
elders of the village. The amount of paddy, eaten up by one man’s cows
(gavattam), should thus be returned by him to the cultivator. This 1s also
the punishment, prescribed in the other kinds of damages, done to crops by
cattle (to be inflicted on the owner of the cattle).

D. V. adds: The use of the word dhdnyam instead of Sasyam is illustrative.
The reading, adopted here by the Ratnakara (p. 236) and other authorities
as gavatram (instead of gavattam, adopted ,by us) and the explanation,
` offered by the former as ‘grass’, are not to be accepted, as the reading and
the explanation are the results of not having consulted the reading, recorded
by the Kamadhenu and other authorities.

Visnu (V.146) says: Also (ca) the value of the crops, so destroyed, has
got to be paid in all cases (sarvatra) to the owner (of the crops).

D. V. adds: The addition of the word sarvatra (i.e. in all cases) implies
that such payment is imperative, whether the offending beasts were under
a herdsman or not so. The insertion of the particle ca (i.e. also) means ‘in
addition to the fine, imposed by the king’.

But Manu (VIII.2405) has said: If the beasts were under the custody of
herdsmen (at the time of the commission of the above offence), the latter

PUNISHMENTS OF CROP-DESTROYING BEASTS 235

&
are to be fined one hundred (pangs) but beasts without herdsmen are to be
driven away (by the owner of the field).

Katyayana (VV.664-665) says: The beasts, which stray into corn-fields,
parks, or reserved pastures, houses and cowsheds (filled with corn) should
be seized (grahanam) and chastised (fa@danajica) as laid down by Brhaspati.
In the case of beating of the beasts of the lowest, middle and highest classes,
if their owners object to such beating, the beaters should be punished.

D. V. adds: The word grahanam in the above text means ‘seizure’. But
the Kamadhenu has read vd (i.e. or) instead of ca (i.e. and) in the above text.

Here ends the topic of the punishment of the destroyer of crops.

So, if crops are destroyed in places other than the grazing plots of cattle
by reason of their having been caten up or damaged by beasts, the beasts
concerned and their herdsmen are to be harassed. The beast-owner’s duty
of the payment of the value of the (destroyed) crops to their owner and of
the fine of equal amount to the king is the settled conclusion in all cases
other than the following excepted ones, which are of two kinds, having
occurred by reason of an act of State or an act of God or owing to the special
-ity of the (offending) beasts.

Narada (simabandha VV.36-37) has thus described the first kind: In cases
where the cows are seized by the king’s men or killed by lightning strokes,
bitten by serpents or fallen down from trees, put to death by tigers or other
ferocious animals or attacked with diseases, neither the herdsman nor the
owner of the cows is to be held guilty for the death of the cows concerned.

The same authority (simabandha V.30) has also illustrated the second
kind: A cow, which has been delivered of a calf not earlier than ten days,
a big bull (nahoksa), a horse and an elephant are to be carefully prevented
(from further destroying the crops) and their owners should not be made
liable for punishment. ५

D. V. adds: The big bull (mahoksa), mentioned above, means ‘an impre-
gnating bull’. Horses and elephants are useful for the administration of the
subjects (by the king), on the authority of the following text of Usanas:
Elephants and horses should not be punished, as they are considered useful
for the administration of the subjects.

Manu (VIII.242) also lays down: Manu has laid down that cows, deli-
vered of calves, not earlier than ten days, bulls and beasts, dedicated
to gods, whether having their herdsmen or not, are unpunishable.

D. V. adds: According to Kullika Bhatta, even dedicated bulls are kept
by the milkmen for the impregnation of their cows and should, therefore,
be considered as possessing herdsmen,

236 DANDAVIVEKA
|

Sankha also says: Beasts, dedicated toegods, he-goats and bulls, even if
guilty (of the destruction) of crops, should get no punishment.

D. V. adds: According to the Ratnakara (p. 238), the word ‘bull’ is to
be taken as meaning ‘an impregnating bull and one, dedicated (to gods)
for the spiritual welfare of the (deceased) ancestors’. A he-goat, specified
in the same context, is also to be understood in the above senses.

Usanas has also laid down: The following (animals) are not to be punished:

An animal, blind of one eye, a lame animal, a bull, let loose (in a sacrifice),
after having imprinted the sign of the trident and other things on its person,
a stray (agantuka) cow, a just delivered cow and a constantly running cow
or a cow with highly murderous propensities (abhi-carin!).

D. V. adds: According to the Ratnakara (pp. 238-9), the words Kana
and Kuntha imply ‘highly incapacitated (animals)’, and the word dgantuka'™
means ‘one, which has strayed from its usual place of residence’. But Grah-
e§vara Misra as well as the author of the Smrtisdra has explained this word
as “one, which has come from another village’. Halayudha and others have
explained the word abhi-cdrini as ‘of highly murderous propensities’ but
(Vacaspati) Misra (V.C. p. 107) has interpreted it as ‘a constantly running.
one’. But the Parijata has read the above word as abbisarini and explained
it as ‘running after a bull (to gain fertility)’.

Narada (simabandha V.35) has laid down a special rule on this topic:
When a cow, having strayed (from the herd) on account of the dereliction
of duty by the herdsman, destroys (the crops) of a field, the owner of that
cow is not to be held guilty but the herdsman shall get the consequent punish-
ment. * |

D. V. adds: It appears from the above text that the cow in question is
to get immunity from chastisement owing to is unruly nature, as is evident
from its having entered into the unfamiliar foreign fold out of fear of impreg-
nation (from the bulls) in its own herd but in such cases of straying from
its original fold, the herdsman is certainly to be considered guilty.

` Thus ends the discussion of punishments for such offences (of or relating

to cattle).

It having been thus settled that punishment is to be meted out in all other
cases outside the above (two kinds of) exception, if it is asked, “‘Are those
to be selected for punishment without any discrimination?,” we reply in
the negative, because the following anonymous text lays down:

Large or small destruction of crops, resulting either from the depreda-

19 This latter interpretation is not found in the (Vivada-) ratuakara,

PUNISHMENTS FOR SPECIFIC BEASTS 237

8
tions of big or small beasts or from these depredations having been done
at night or in the day-time or intentionally or unintentionally, becomes the
subject-matter of the variation of punishments.

For example, the damages, done by an elephant or similar other big animal
within a short period of time, exceed those done by a goat or similar small
animal for a longer period of time. (Domestic) animals roam about with
satishaction at night either owing to the absence of any preventer or on
account of the implicit desire of the herdsman or the master but these animals
do not do so in the day-time owing to the absence of the similar desire on the
part of the above two classes of persons. The animals also sometimes destroy
the very roots of the crops and sometimes their branches and leaves etc.
only. Thus, destruction of crops becomes serious or light in view of its
cause or its natue, resulting in the heaviness or lightness of the corresponding
punishment. So if bearing in mind the very contexts of the commission of
particular crimes, learned men consider the different matters, the prescrip-
tion of contradictory punishments in the texts, cited just below, will be easy
for them to follow :

Gautama (II.3.19-23) has laid down: Punishment of five 2114505 should
be inflicted on a cow, six mdsas on a camel, ten on a horse and a she-buffalo
and two each on a goat and a sheep respectively.

D. V. adds: According to the present context, the masa is to be taken
as a silver one, on the authority of the chapter on ‘technical terms’ above.
But in the Mit. it has been explained as the twentieth part of a copper pana.
This explanation is also justified on the authority of the following text of
Katyayana:

So, one-fourth part of a pana and half a pana are to be imposed as fines
on a cow and a she-buffalo respectively.

Such other punishments are to be wnflicted in accordance with the particular
offences. |

Sankha-likhita have said: The young ones of all (animals) are to be fined
a masa each and the she-buffalo is to be charged ten mdsas, while the ass
and the camel are to be fined sixteen each and the goat and the sheep four
each.

Vigsnu (V.140-145) also lays down: If a she-buffalo commits destruction
of crops, its keeper shall be fined eight mdsas. But if there is no keeper,
its owner shall be so fined. Half of the above amount of fine shall be imposed,
if such destruction has been done by a horse, a camel, an ass or a cow
and half of that half punishment (i.e. one-fourth of the first mentioned
punishment of eight masas) shall have to be imposed in cases of such des-

238 DANDAVIVEKA
। ।

truction by a goat or a sheep. But all these fines shall be doubled if such
animals, after having eaten up the crops, remain (in the fields), sitting
(at ease).

D. V. adds: According to the Krtyasadra (o ségara?) and Smrtisara, the
horse, mentioned here, refers to ‘horses of merchants and similar other
persons’, as these horses do not help the administration of subjects. On
the authority of the following text of Yaj. (11.1605) that ‘a mule and a camel
are to be considered equal to a she-buffalo’ and also owing to the mention
of all these animals together in the texts (relating to such offences), a mule,
a camel, an ass and a she-buffalo are to be considered big animals, a cow
is to be taken as a medium-sized one, a goat and a sheep as small ones—
this seems to be the classification of these animals

Saikha-likhita lay down: A cow, found grazing for two consecutive
nights, should be fined five mdsas

Narada (simdbandha V.34a) says: Twice the prescribed punishment shall
be imposed on cows, exhausted (after eating up other men’s crops) and
four times on those, who continue residing (Vasatam) (in those fields).

D. V. adds that the word vasatam means ‘of those, who, after having
grazed in those fields, pass their nights there’.

Yaj. (Cf. 11.160a) further lays down: Twice the prescribed punishment
and four times of that shall be imposed on residing singly and doing so
with calves (in those fields) respectively.

Manu (VIII.240) (partly the same as the quot. on p. 280 of D. ४. above)
also says: If animals, having their keepers, encroach on a fenced field,
situated near a public road or a village, they are to be fined one hundred
(panas). (The owner of the field) should himself drive away the keeper-less
animals.

D. V. adds: Animals with keepers ase to be driven away by the latter.
But if they do not do so, they, being suspected of bad motive, should be
fined one hundred

Narada (sitmabandha V.34b for the Ist sentence only) says: The wise men
have prescribed punishment as thieves for all those, who (forcibly) cause (the
animals in their charge) to graze before the very eyes of the owner of a field.
The owner (of the offending animal) shall have to pay the value (of the
crops eaten up) to the owner of the field and the prescribed fine to the king
and the herdsman is also to be punished.

D. $, adds that the above two-fold penalties are to be applied only to
the cases, involving the presence on the spot of both the owner of the field
and the keeper of the animal in question,

FINDING OF TREASURE-TROVE 239

The same authority (simabandha V.29) further says: In cases involving
(wholesale) destruction of crops along with their roots, the owner (of the
destroying animal) should pay compensation to the owner of crops and
the prescribed fine to the king and the keeper should have corporal
punishment (in proportion to the degree of his negligence).

D. V. adds: ‘Destruction of crops along with their roots’ means ‘such
destruction as obstructs the thriving of the crops at that place’. The owner
of such animal shall have to compensate the owner of the field for the loss,
occasioned to the latter, in addition to the payment of the fine to the king.
While dealing with the following (anonymous) text, viz. “In cases where
such causing the animal to graze in a field results in the generation of much
pain ona Brahmana and similar other persons of very slender means of
livelihood, the cowherd concerned is to be put to death (vadhyah)”, Hala-
yudha has explained the above term (i.e. vadhyaf.) literally.

The straw and similar other things, left after the eating up of the crops
by cows and other animals are to be taken by the owner of the cows etc.,
such taking on his part amounting to purchasing, as it were, by the price,
paid by him as fixed upon by an intermediary. So.Narada, as quoted
by the author of the Mit., has said :

The straw left should be made over to the owner of the (offending) cow
and the paddy left belongs to the cultivator himself.

D. V. adds: According to the Ratnakara (p. 232), all these punishments
are to be inflicted severally on each of the (offending) animals. The inflic-
tion of punishment should be upon the herdsman, when the animal is kept
under his care and when not so kept, upon the owner of the animal, on
the authority of the following text of Visnu (V.140-141), as quoted in the
Krtyasdgara and Smrtisara: “The owner (is to be punished), when the animal
has not been kept in the custody of a herdsman but the herdsman shall
receive the punishment, when it has been so kept.” Returning the crops
to the cultivator is to be made in proportion to the quantity destroyed and
the physical harassment of the herdsman should be in accordance with the
gravity of the offence (committed by the animal in his charge) but such
harassment should not be in consideration of the number or quality of the
animal or animals (committing the above offence.)

ON THE TOPIC OF THE FINDING OF TREASURE-TROVE (nidhi)

A nidhi (or treasure-trove) is a previously buried substance, (supposed to
be) lost for ever. It is of two kinds viz. one with the owner known and ano-
ther with the owner unknown, which latter kind is known as ‘paranidhi’.

240 [1१.191 8/1 /:/ $

Manu (VII.35) has thus described the former kind: The king should
appropriate the sixth or the twelfth portion of a nidhi, which has been truly
and reasonably claimed by a person as his own (lost property).

D. V. adds: Vijfianesvara (the author of the Mit.) has said that these
alternative portions are (to be taken by the king) in consideration of the
(change of) colour (of the thing), the time (elapsed after its loss). etc. But
Kullika Bhatta has expressed the opinion that (this difference in taking a
portion by the king) is due to the meritoriousness or otherwise of the 19
asserter of ownership (on the nidhi). The Ratnakara (p. 648) is also of the
same view. These prescriptions are applicable to cases, where the finders
(of the nidhi) are persons other than Brahmanas.

80 Visnu (1LI.63-64) says: A person, other than a Brahmana, discovering
wealth, previously buried underground by himself, should give its twelfth
portion to the king. But persons, (falsely) claiming (vadantah) another
person’s deposited wealth as their own, shall be fined the same portion of
the wealth (tat-samam).

D. D. adds: The word tat-samam means ‘equal to (the same portion
of the value of) the deposited wealth’, as the wealth having come to his
notice first, the determination even of its twelfth portion, if he happens to
have deposited the wealth him-self,!** has arisen in consequence of his
finding only. Otherwise, ca (i.e. and) would have been added after vada-
ntah and not tat-samam.

Manu (VIII.36) also says: He, who falsely claims (another person’s
deposited wealth as his own), should be fined one-eighth of his own wealth
or a small portion of the discovered wealth.

D. V. adds: The former punishment is to be inflicted only when the real
owner has been definitely found out but the latter in cases when such a person
has not been so found out. The small portion to be fined is in consideration
of the fact that he may not thereby be ruined. Kullika Bhatta has, however,
said that the choice between the heavier and lighter punishments is in consi-
deration of the possession of merits or not (by the false claimant).

Vasistha (11.13) lays down on the latter kind of discovered wealth:

The wealth, whose owner is unknown (aprajidyamdnam), if discovered
by anybody, shall be taken by the king, who should give one-sixth of its
value to the discoverer.

D. V. adds: The word aprajfidyamanam may also be of two kinds, viz.
‘of unknown ownership’ and ‘without any owner’. The above prescription

193 D. ई, misreads vaktr as bahu. |
198 [0. V. reads sannihitatvat for sva-nihitatvat.

DIVISION OF TREASURE-TROVE 241
9

is applicable to cases of wealth, discovered by a person other than a learned
Brahmana, which contingency has been added just below. If discovered
by such an ordinary person, the rule of the Brahmana’s share is to be followed
but there is no king’s share in the wealth, found by a learned Brahmana.

In the following text of ९8). (1I.35a), “the king should appropriate the
sixth portion of a wealth, discovered by any other person (itarena)’, after
his earlier statement (L1.34b) viz. “A learned (Brahmana) should take in
full (such wealth)”, both Vijfianesvara (the author of the Mit.) and Can-
deSvara (the author of the (Vivada-) ratnakara) (p.650) have explained the
word itarena as a non-learned person and so Ksatriyas and similar other
persons are not entitled to receive that (learned Brahmana’s) share.

In the following text of Gautama (LI. I. 43-45) “wealth, discovered by a
learned Brahmana, does not become the king’s property. According to
some authority, if the discoverer of such wealth happens to an a-Brahmana,
he gets one-sixth portion only of that wealth (and the remainder goes to the
king)’ The negative porticle in the word a-Brahmana is for censure. Even
if we take it in the sense of paryudasa (i.e. a prohibitive rule) it means ‘a
person other than a learned. Brahmana’ i.e. ‘an ordinary Brahmana’. If
(cet) it is supposed that the prescriptions of the payment by the king of the
sixth part to the finder of the wealth, as laid down in Vasistha’s *°* text
and of the acceptance by him of that very part (from some classes of finders),
as perscribed in the text of Y4j., are contradictory, the contradiction has
been reconciled by the following explanation of a learned author:

The author of the Mit. has said: ‘The word itarena (in the text of Yaj-)
means ‘by persons other than the king and a learned Brahmana, le. by a
non-learned Brahmana, a Ksatriya and others’. If some wealth has been
come upon by such latter class of persons, the king should make over one-
sixth of its value to the finder and appropriate (Gharet) the residue himself”.

D. V. adds that the (above-quoted) text of Gautama is also to be referred
to in this connection.

The same authority (i.e. the author of the Mit.) has further said: “The
verb ‘haret’ (in the text of Vasistha) has been used to permit (the king)
to use that wealth, like a property, previously lost and subsequently recover-
ed (pranas{adhigatavat). But if the real owner (of the wealth) subsequently
turns up and identifies it by giving its description, number etc., the king
should then make it over to him after deducting for himself its one-sixth
or one-twelfth portion.”

19, TD, $, misreads Visnu-vakye for vasistha-vdkye and na after cet.
31

242 DANDAVIVEKA

_In cases where the king has himself come by a piece of wealth, Visnu
(1LL.56-61) has laid down the following rule in his rdja-dharma section:

After having come by a piece of wealth, (the king) should make over
one-half of it to Brahmanas and deposit the remaining half in (his own)
treasury.

The same authority has also laid down in case of such recovery of wealth
by a person, other than the king: A Brahmana, recovering wealth, should
himself appropriate it. A Ksatriyg (doing so) should, after giving one-
fourth each to the king and to the Brahmanas, take the remaining half. A
Vaisya (in similar cases), after having made over one-fourth and one half
, portions to the king and the Brahmanas, should appropriate the remain-
ing one-fourth!®> portion only. But a Sidra should first divide the reco-
vered wealth into twelve parts and after having made over five each of such
parts to the king and the Brahmanas, should take the remaining two parts
himself.

D. V. adds on the authority of the following text of Vasistha (LII.14) viz.
“If a Brahmana, engaged in the six-fold avocations (appropriate to his
caste), comes by (a piece of wealth), the king should not demand it (from
him)”, that the word Brahmana, used in the above text (of Visnu), is “a
Brahmana, performing the six-fold avocations” only.

Thus, in the: following text of Manu (VII.37): “A learned (Vidvan)
Brahmana, having chanced upon a piece of wealth, deposited earlier under-
ground, should take it in its entirety, as he is the lord of everything’, (implied)
learning also exists only in Brahmanas, discharging their six-fold duties
and learned Brahmanas, doing so, are the appropriate objects of the applica-
tion of the attribute of the performance of the six-fold duties and the two
concomitant epithets viz. ‘learned’ and ‘performers of the six-fold duties’
are easy to suggest the same idea. So a re¢onciliation of the two texts, con-
taining the above two epithets, will thus be by signifying the co-existence
of the two attributes viz. ‘learning’ and ‘performance of the six-fold duties’.
So while explaining the text of Y4aj. (11.345) viz. ‘A learned (Brahmana)
shall take in full’, the Mit. has said, ““A learned (Brahmana), i.e. a (Brahmana)
possessed of Vedic learning and good religious conduct, should take (such
wealth) in its entirety.’ Medhatithi and Govindaraja (two commentors
of Manu) have interpreted the above Y4j. text as ‘doing away with the duty
of making over the king’s share, enjoined by the text of Manu (VIII.35)
beginning with the words viz. mamdayam iti yo briiyat (i.e. he, who says

19 D. V. misreads caturtharhsam (i.e. one-fourth portion) as amsadvayam (i.e. two parts).

SPECIAL RULES 243

that it belongs to me) and relating to that kind of wealth only, deposited
underground by (the claimant’s) father and similar other ancestors.’ But
Kullika Bhatta has said that the wealth in question includes that, placed
underground by others also, on the authority of the following texts of Narada
(asvami-vikraya V.6) and ५2]. (11.34) respectively:

(Narada’s text)

(Any one,) coming by a wealth, deposited underground by another person,
shall present it to the king, to whom all such wealth of all persons except
that of a Brahmana has to go. ४
(Text of Yaj.)

After having discovered a hidden wealth, the king shall give its half por-
tion to Brahmanas, while a learned Brahmana, (having done so,) shall take
it in entirety, as he is the lord of everything.

Though the above-quoted text of Narada contains the word sarvesam
(i.e. of all persons), which is in the sixth case-ending, and has also got the
phrase brahmandd rte (i.e. except that of a Brahmana), thereby implying
that even when the real owners of such kinds of wealth turn up, (they shall
be escheated to the crown,) excepting the case of a Bradhmana owner of the
wealth in question, yet the above text does not bar the escheating of the
wealth, discovered by a Brahmana. The proclamation of the overlordship
of Brahmanas in the above text of Yaj. is simply recommendatory (and
not mandatory) just like the statements such as ‘everything belongs to a Brah-
mana’. Otherwise, many contradictions (of texts) will arise and there will
be too much extension (of the meaning of words in a text). So to avoid the
resulting futility of the connotation of words, ownership over another
person’s deposited wealth is not recommended here. So it being certain
that the word nidhim (i.e. wealth), placed after the infinite verb labdhva
(i.e. having discovered), means ‘another man’s wealth’, the finite verb ddadyat
(1.6. shall take) is to be construed with the above two words. But the king
shall do so only when the wealth, though really belonging to a Brahmana,
has not been conclusively proved to be so. Otherwise, if he fails to do so
through negligence, many texts, authorising the king to take (unclaimed)
deposited wealth, will be rendered useless. But if due to an inscription on the
container of the wealth or after questioning an astrologer, the wealth is
proved to be a Brahmana’s property, then (in those particular cases), even
the king shall not take it, on the authority of the phrase viz. brakmanad
rte (i.e. except that of a Brahmana), occurring in Narada’s text but shall,
after getting it, give it up to Brahmanas, on the authority of the following
text of Brhaspati on the topic of partnership and also on the purport of the

244 DANDAVIVEKA

following text of Narada (dayabhaga v.51) on the topic of the wealth of
_ persons without direct descendants
(Brhaspati’s text)
“A Brahmana (only) shall take a Brahmana’s property”.
(Narada’s text)

५ member of his own caste then (steps into succession).” If it is said
that a Brahmana’s taking in this fashion will amount to his (unlawful) appro-
priation of another man’s property, the reply is that the above text (laying
down the distribution of that discdévered wealth among Brahmanas) does
not confer ownership of a Brahmana in another man’s deposited wealth,
as has been done in the following text of Gautama (II. 1.39):

(A person) becomes the owner of property by means of inheritance, pur-
chase, partition, gift and finding (i.e. seizure) (eddhigamesu)’, which latter
word viz. adhigama has been explained in the digests as ‘the finding of deposi-
ted wealth’. If it is argued that this unspecified mention (by Gautama) of
the finding necessitates the addition of the act of division (among other
Brahmanas of the discovered wealth) in the above-cited text of Visnu
(III.56-61), we say in reply that this latter text is easy to be interpreted
in its plain meaning. If it is further argued ‘How can there be an
extinction of the right of the real owner by another man’s finding
of his deposited wealth?’, the reply is that such deposited (and subse-
quently) discovered wealth of an unknown owner is also of two kinds,
viz. one with its owner lost and another with its owner not tra-
ceable. The former kind, owing to the non-existence of its owner, is un-
controlled and hence ownership arises in it by its mere taking just like that
in grass and similar other trivial things. But in the latter kind, extinction
of ownership arises out of the foregoing by the (untraceable) owner (of his
deposited wealth), as is evident from his act of not searching for it. Or
let there be the employment of the term ‘anya-svamika’ (i.e. having another
person as its owner) like that used in cases of other kinds of property, ori-
ginally lost (by one person) but subsequently recovered (by another person).
It should not be assumed from the above text (of Gautama) that the fault
of the splitting of sentence (vakya-bheda) here simultaneously creates a
contradiction between two kinds of assertion (i.e. actual ownership in cases
of property got by inheritance, purchase, partition or gift and in that another
kind of property, come by a person and received for tentative or conditional
ownership), as the above text simply authorises the finder of such’ property
to use it (for the time being). So such kinds of lost wealth (when recovered
by a person) shall have to be made over to the actual owners when they

CONFLICT BETWEEN DHARMA AND ARTHA-SASTRA 245

turn up’ So the interpretation of the Mit, (quoted above), allowing the
option to the finder (of such lost wealth) to divide it into parts, as advised
by it, also holds good here.

If it is said that this text, authorising the use (of another man’s wealth),
is contradictory to the general law, laid down on ‘Thefts’, the reply is that
it is really not so, as it is a text of Polity (artha-Sdstra), just as (1) inspite
of the prohibition by USanas (p. 279 of D. V.) of the taking back of crops,
eaten up by (another man’s) cows, Gautama has prescribed it (p. 283 of
D. V.), (2) inspite of the rule laid down by Sankhalikhita (p. 159 of D. V.) of
enjoying one’s own wife only, Narada has permitted intercourse with the
unsecluded female slaves of other persons (pl. 188 of D. V.), (3) inspite
of the complete immunity from the infliction of death-sentence upon a Brah-
mana, spoken of by Manu (VII.380), (p. 239 of D. V.), Katyayana has
allowed killing such a person, if he comes as an asailant of another person
(p. 239 of D. V.), and (4) inspite of the prohibition, laid down by Satatapa
and other authorities, of marrying one’s maternal uncle’s (i.e. mother’s
brother’s) daughter, as she is related to one’s mother by consanguinity,
Brhaspati has approved of it among the southerners.

So, though the texts of Usanas, Sankha-likhita, Manu, Satatapa and
others are considered authoritative, being texts of dharma-Sastra (i.e. Posi-
tive law), yet those of Gautama, Narada, Katydyana and Brhaspati, being
texts of artha-Sastra (i.e. Polity) and laying down immunity from punishment
in all those specified cases, become more effective. Hence there is really no
contradiction between these two sets of texts. Similarly, though shunning
the acceptance of other men’s property, laid down in dharmasastra, 15 impera-
tive on a person, as such non-acceptance amounts to the practice of a vow,
yet he, who appropriates such (unclaimed) wealth, belonging to another
person, should be neither blamed nor punished by the king—this is the
real import of the text, authorising the seizure of (a person’s wealth ),
originally hidden and subsequently discovered by another person.

Manu (VIII.148) has clarified the above point by the following text:

If the property of a person, who is neither an idiot nor a minor, is enjoyed
(by another person before his very eyes), the former’s (complaint against
the latter) shall be rejected'®* in a law-suit (vyavahdrena) and tke enjoyer
of the property'®? will become the owner of the property in question.

D. V. adds: The insertion of the word vyovahdrena implies that due to
the decision of the learned, the property in question certainly belongs to the

196 D. V. misreads bhdgam for bhagnam.
197 DP, V, reads dhanam but Manu reads dravyam,

246 DANDAVIVEKA

previous owner in accordance with the principle of dharma (i.e. dharma-
Sastra). So it is settled that if a wealth (originally lost and subsequently
discovered) is conclusively known to be the property of a person, other
than a Brahmana, it can be appropriated by the discoverer but if not so
(i.e. if it is proved to have originally belonged to a Brahmana), it shall be
distributed among Brahmanas. (If Brahmanas and similar other persons
themselves come upon such wealth,) they will take parts each of the entire
wealth, after having informed the king of the discovery.

Narada (asvdmi-vikraya VV.6a 21 7b) has also said: A person, dis-
covering a wealth, deposited underground by any other person, shall have
to present it to the king and shall enjoy it only when given back to him
by the latter. If not no reported (or presented), that person becomes a
thief (i.e. shall be punished as a thief).

Yaj. (11.355) has also laid down: The person, who has been accused of
not having informed the king (of the discovery by him) of such wealth,
should have to give it back (to the king) and should also be punished
(by him). | |

D. V. adds: According to the author of the Mit., the punishment, referred
to here, shall be according to the capacity (of the culprit). It seems that it
shall be forfeiture of the entire property, as Visnu (III.62) says: (The king)
shall forfeit the entire property of the person, who has been convicted
of the offence of not having informed the king (of the discovery by him of
such wealth).

Here ends the second section on the topic of the uddista-s (i.e. classes of
offenders) in the chapter on miscellaneous offences.

MUKTAKA-VARGA (i.e. detached offences)
SAHASA

Narada (cf. sa@hasa V.2) has thus classified sahasa: A sahasa is of five kinds,
viz. murder, theft, molestation of other men’s wives and two kinds of rude.
ness (i.e. abuse and. assault).

Dd. V. adds: This general classification (of s@hasa offences) carries the
implication of their common attribute of having been committed openly.
So in these offences the guard (of the property or person concerned) has not
the absence of knowledge of their commission but such absence of knowledge
does exist in a theft, which is, therefore, not to be classified within sdhasa
offences, as the definitions of theft and sadhasa are mutually exclusive. More-
over, robbing a person of his wealth even before the very eyes of a guard,
if done surreptitiously, becomes a theft and kidnapping or enjoying another

DEFINITION OF SAHASA 241
| ।
man’s wife, even if not done in theepresence of a guard, turns out to be a
sahasa.

So Narada (5०450 V.1), after having admitted the above two contigencies,
has finally discarded the above distinguishing characteristic of a sdhasd
by defining it in the following manner: |

Whatever act is done by persons, proud of their prowess, with force
(sahasa@), is called a sahasa, as the word sahas means ‘force’ itself (the word
sahasa being the third case-ending singular form of sahas and hence meaning
done ‘with force’).

So due to this derivative definition of sahasa, its component element is,
according to Narada’s opinion, ‘commission with force’ only.

Narada (sdhasa V.12b) has made this clearer by the following (further)
statement: An injury (to a person), committed with the use of force, is a
sahasa and that, perpetrated with the practice of fraud only, is theft.

D. V. adds: The word chalena (i.e. by fraud) means ‘without the know-
ledge of the guard’. By the above definition theft becomes divided into two
classes, viz. thefts and similar other offences, not specifically defined, when
committed with the employment of force, turn out to be sdhasa crimes,
which call for heavier punishments and not those, committed secretly.
The author of the Mit. has, therefore, said that the punishment of these
offences should be according to the manner of their commission.

Bearing this in mind, Y4j. (11.72) has mentioned (theft and sahasa) sepa-
rately as follows: All kinds of witnesses (are admissible) in (cases of)
kidnapping, theft, rudeness (i.e. abuse and assault) and sdhasa crimes.

D. V. adds: Though according to the above enumeration, offences, which
are not technically sahasa crimes (according to the five-fold division of
Narada), become so and are consequently punished similarly .

As Brhaspati (XXII.3) has laid down: That offence (i.e. theft) is known
to be of three kinds, viz. low, medium and high and the fines of the first,
middle and highest amercements are to be correspondingly imposed on the
offenders (of those three kinds) and also.in consideration of the thing (stolen).

D. V. adds that the above text has already been quoted by it in the topic
of miscellaneous thefts (p. 141 of D. V.).

Narada (s@hasa VV. 7-8) has also said: The punishments for that offence
depend on the very kind of it. The punishment for such offence of the first
(i.e. pettiest) kind is (a fine) up to one hundred (pana-s), while persons, conver -
sant with law, have laid down (the fine) up to fine hundred (pana-s) for the
medium kind. The (pecuniary) punishment up to one thousand (pana-s) is inten-
ded for (the commission of) the highest kind (of this offence) or death sen-

248 DANDAVIVEKA

tence, forfeiture of the entire property, banishment from the city (or territory),
imprinting (the person of the offender) with characteristic marks and the
mutilation of his offending limb are the several punishments, prescribed
for this highest kind of sdhasa crime.

D. V. adds that according to the Mit., the above punishments of death
sentence etc. are to be inflicted either singly or collectively (on the offenders).

After having prescribed the imposition of a fine, equivalent to the value
of the thing, destroyed or stolen, Brhaspati (XXILI.8a) has laid down: The
kings may (also) impose a fine, double the value of the thing (so destroyed
or stolen) in consideration (of the special circumstances) of the offender.

Yj. (11.230b) also says: The (pecuniary) punishment (for such offences)
is to be double of the value (of the thing concerned) and this is to be increased
to four times such value in cases of concealment (of the thing).

D. V. adds: From the prescription of the special punishments, laid down
here, it appears, according to the author of the Mit., that the general punish-
ments, such as the first amercement (prescribed above) relate to offences
other than theft.

Brhaspati (XXILI.85) again says: The thief should be subjected to physical
torture for stopping the repetition of the offence.

D. V. adds: The above prescription (of harsher punishment) is applicable
to such thieves as cannot be restrained by the imposition of fines, owing
to their repeated commission of this offence.

Manu (VIII.288-9) has also laid down: He, who destroys another person’s `
articles (not specifically mentioned in the texts) knowingly or unknowingly,
should be compelled to cause satisfaction (tusfim) to the latter (by giving him
the substitutes of the things, so destroyed by the former) and to pay also
fines of the same values to the king. In cases of destruction of leather and
vessels or objects, made of leather and other materials, such as pots of
wood and stone, flowers, fruits and esculent roots, the fines shall be five times
the respective values of the things concerned.

D. V. adds: The word tustim (satisfaction) implies ‘with the substitution
of the destroyed articles’. According to Narayana, the words ‘knowingly
or unknowingly’ have been added “‘to emphasise the proportion of the crea-
tion of such satisfaction’. and consequently the fine for the destruction,
caused knowingly , is equal to the value of the thing destroyed, while that
for the same offence, committed unknowingly, is half of that value.

‘Vessels or objects, made of leather’ are such things as shoes, drinking
bowls etc. Things, made of wood and stone, are measures etc. and pitchers
etc. respectively. According to the Ratnakara (p. 351), the first use of the

DISCUSSION ABOUT SAHASA 249

word carma (i.e. leather) is simply for the sake of emphasis. The prescription
of punishment in all cases is in consideration of the possession or non-
possession of merit and richness or poverty of the person, committing such
sahasa offences, the speciality or otherwise of the things (destroyed) and
the gravity or lightness of the offences committed (by way of such destruction).

If it is said that the above paraphrase of the known conclusions regarding
the non-seriousness of some offences is unnecessary, we say in reply that it is
not so, inasmuch as theft is certainly a sahasa crime but it may be committed
in two ways, viz. with the use of force, pride, insensibility and fraud, where
the punishment is heavier and without the use of force etc. Those kinds of
theft, consisting of wicked activities, committed without the use of force
but secretly (by reason of non-obstruction by guards), and hence classed
as minor sdhasa crimes, also call for appropriate punishments. So those
sages have laid down those texts, (relating to such minor sdahasa crimes,)
in the chapter on sdhasa. The Kamadhenu and other digests have according-
ly quoted them in the corresponding chapters of those works. We have
only collected those texts in the chapter on miscellaneous offences, as we
have promised (in the very beginning of the present treatise) to divide it
into specific chapters to set out the distinguishing features of several kinds
of offences, according to our intended division.

Yaj. (11.224) has laid down the following punishment for throwing thorns
and similar other objectionable things into (another man’s) house: The
person, who throws into (another person’s) house things, which annoy him
or bring about his death, are to be fined sixteen pana-s and the middle amer-
cement respectively.

D. V. adds that the annoying things (dubkhotpadi) are thorns and similar
other objectionable things and the killing things (prdna-haram) include
serpents etc

Visnu (V.110) has said in continuation of punishment: One, throwing
tormenting things into (another man’s) house, is to receive (the pecuniary
punishment of) a hundred pana-s.

D. V. adds: The punishments to be inflicted here are in proportion to
the gravity or otherwise of the annoyance effected. The word house (grha)
here includes all those places, where offences like striking with thorns are
possible to b: committed in relation to persons staying confidently there and
which, therefore include roads etc

While commenting on the following text of Sankha-likhita, laid down
in continuation of the infliction of the alternative punishments of death
and mutilation of limbs, “In defiling thoroughfares and liquids”, the Ratna-
kara (pp. 353-3) has said that defilement of the thoroughfares can be effected

32

250 DANDAVIVEKA

¢
by sharp instruments and that of liquids by mixing them with poison. Accord-
ing to this interpretation, the punishments for the above offences have been
made unnecessarily heavier (than ordinary penalties in similar cases of the
commission of such offences)

So an iron rod, besmeared with poison or a hidden pit with an iron spike
placed within 1४०7० on the border-line of a water-course or on a cross-road,
poisoned ghee or water are things, which are sufficient to cause (a pedestrian’s
death). Even when not actually causing such death, the placing of these things
(on a public road) indicates the attempt to kill others on the part of those,
who put them (in such places). So when these things, so placed, actually
cause death of other persons, the man, who had earlier put them in those
positions, should also be done to death but where such things simply cause
excessive pain to others, the man’s limb should be cut off. These are the
alternative punishments for these offences.

Thus, in spite of the facts that serpents and other venomous reptiles
cause invariable death and that the intention of killing others on the part
of the thrower of such creatures into another man’s house is to be naturally
inferred from such acts of throwing, if no physical injury results from those
dangerous creatures having been cleared away at once, the punishment,
laid down by Y4Aj. (11.224), is to be inflicted on the wrongdoers.

On the placing of nasty matter on public roads, Manu (IX.282) says: He,
who deposits nasty things except in distress'®8 (amedhyam anapadi) ona
public road (rdja-marge), shall be fined two Kdrsapanas and shall have to
cleanse the road very soon.

Katyayana (cf. V.755) has thus defined a raja-marga (i.e. public road):
That is known to be a rdja-marga, by which all citizens along with
quadrupeds go unobstructed to their desired places (i.e. destinations)

D. V. adds: According to the commentary on Manu (by Kullika), the
word amedhya means ‘ordure etc.’ and that the word andpadi implies ‘except
in distressed conditions

The same author (i.e. Manu [X.283) has provided some exceptions to the
above general rule: (But) if a diseased person,!®® an old man, a pregnant
woman or a child commits the above offence, they are simply to be served
with an admonition (paribhadsanam) but should have to clear the road of that
nasty matter. This is the settled rule.

D. V. adds that the word paribhadsanam means “such verbal punishment
as ‘Do not do so again’.”

197८ 73. V. reads Kacchapikd, which should be Kacchatikd meaning ‘on the borderline
of a water-course

D. V. misreads amedhyam-dGndpadi as amedhya-malddikam
199 D. V. misreads dpadgato'S thavd as dpatkrte yathd

PUNISHMENT FOR DEFILING ROADS, TANKS ETC. 251
@

Visnu (V.106-7) also says: (A fine of) one hundred pana-s (is to be imposed
on a person) for the deposit on the road or near a garden or a reservoir of
water of unclean (i.e. nasty) excretory matter. The offending person shall
have to remove it. | ~

Katyayana (V.758) has laid down: He, who defiles a tank, a garden or a
flight of steps (to a tank or a river) (i.e. a ghat) with a nasty thing (i.e. ordure),
shall have to cleanse that place of the filth and shall also be punished with
the first amercement. .

In continuation of punishment, Visnu (V.108-9) further says on the des-
truction of houses, huts and other places of residence: The destroyer of
houses, huts etc. shall be punished with the middle amercement and shall
have to repair them. (The above text with the name of Visnu, affixed to it,
has been wrongly repeated by D. V. on the next page.)

D. V. adds that the above punishment is concerning the major destruction
of those places of residence.

Yaj. (11.223) lays down the following punishments for almost similar (but
less serious) offences:

In cases of loosening the bindings and damaging in some places of huts
and cutting the huts into two portions and causing greater damages to them,
the fines of five, ten, twenty and forty pana-s are to be imposed respectively.

D. V. adds: The above interpretations of the words abhighdta, bheda,
cheda and avaghdata, used in the above text, are in accordance with those of
the Ratnakara (p. 350). (Vacaspati) Misra (V. C. p. 149) is also of the same
opinion. But the Mit, has read Kuddala-pdatana for Kudydvaghadtana and
tad-vyayam for tad-dvayam in the above text and explained in the following
manner:

The respective punishments for loosening the bindings of and damaging
or cutting into two the huts are five, ten and twenty pana-s. [In cases of causing
great damages, the cumulative amounts of the above three kinds of fines
are to be charged. (The damager) shall also have to make over to the owner
of the hut concerned the necessary expenses for its repair.

Halayudha has also said: The fines of five, ten and twenty pana-s are to be
respectively imposed for simple damage, somewhat greater damage and break-
ing into two portions, caused to a hut but the cumulative fine is to be ordered
for its complete destruction. (The damager or destroyer) shall also be com-
pelled to make good the loss to the owner of the hut.

The above two interpretations are also right, as they are reasonable.
The Kamadhenu has also read (like the Mit. and Halayudha) tad-dvayam
as tad-vyayam.

Katydyana (V. 809) says: He, who either breaks, fells down or shatters

252 | DANDAVIVEKA

a rampart wall (made of stones, bricks and similar other materials) or puts
obstruction to the flow of water (running in a water-channel) shall be awarded
the first amercement.

Manu (19.289) also says: The person, who has broken walls or doors
(dvaranam) or filled up ditches, should be immediately put to death (prama-
payet).

D. V. adds: According to Narayana, the word dvarandm means ‘the
passages of doors’. Kullika Bhatta in his commentary of Manu has read
pravasayet for pramapayet in the above text and explained it as “‘should be
banished from the country’. The two kinds of punishments for the breaking
of a wall, (laid down by Katyayana and Manu respectively) are in consi-
deration of its graver or lighter character. The duty of the breaker is also
implied to have been laid down like that of the damager or destroyer of houses
and huts, on equitable principle.

Yaj. (II. 232-7) has laid down the following punishments for sixteen kinds
of offences such as transgressing the authority of one’s superiors: Fine of
fifty pana-s each should certainly be imposed on the following (five classes
of offenders): The enrager and transgressor of the authority of one’s own
superiors (arghya), the chastiser of one’s own brothers and wife, the non-
deliverer of one’s promised thing (sandisfasya), the breaker of the seal of a
closed house and the inflicter of injury on one’s own servants, kinsmen and
similar other persons (samanta-kulikadinadm).

Fine of one hundred (pana-s) each is the requisite punishment for the follo-
wing (eleven classes of offenders): One, who cohabits with a widow at one’s
sweet will (svacchanda-vidhavagami), one, even when cried against (vikrusto’
nabhidhavakah), does not run towards (the crying person), one, who shouts
for nothing, a Candala, who touches (the members of) the superior (uttamdan)
(castes), one, who partakes of the meals,.(served) in the religious rites,
meant for gods and fathers of the Sidra recluses, one, who swears by the
utterance of improper words, unworthy persons, such as 5704735, doing acts
(such as accepting gifts), unfit for them, one, who destroys the masculinity
of trees and smaller animals, one, who cheats persons in connection with
common property, the destroyer of the phdétus of a female slave and the
mutual deserter of one’s own father, sons, sisters, brothers, spouse, teacher
and pupil, when not degraded

D. V. adds the following lengthy comments

The word arghya means ‘fit for arghya i.e. respectful offering), such as
the teacher.’ According to the Mit., the word sandigfasya means ‘of a thing
sent (by a person) as promised (by him).’ “The breaker of the seal of a closed
house’ includes persons, not authorised to do so. The servants (sdmanta),

NON-RESPONSE TQ ATTACKED PERSONS | 253

spoken of, mean ‘those servants, who’reside in one’s house or in one’s fields’.
Kulikd-s mean ‘those born of the same family’. ‘Similar other persons’
means ‘persons, belonging to one’s own village and country’. (The injury,
spoken of above in relation to such persons, may be done in the following
ways:)

Katydyana (cf. V. 807) has laid down the following punishment for causing
damage or destruction of things other than of (houses and) huts: The person,
who causes a smaller damage or a greater damage or complete destruc-
tion of (valuable) things, shall be awarded the first amercement and the
owner (of the thing so damaged or destroyed) should also be provided (by
him) with a substitute of that thing.

Things, which are rendered unfit for further use by a slight injury, are
such highly precious things as crystals. The punishment for all the above
varieties of the offence is the same, (as prescribed in the above text of Katya-
yana).

Halayudha has also said: The principle of the infliction of the same
punishment (for the above-mentioned several classes of the offence), in
spite of the gravity or lightness of the damage or destruction done in relation
to the article in question, is acceptable,

D. V. adds that the damager or destroyer of those articles causes harm
to their owners. But the same authority (i.e. Halayudha) has interpreted the
phrase ‘apakdrasya Karakah’ as ‘their not well-doer’ i.e. ‘inflicter of damage
etc.” (Vacaspati) Misra (V.C. pp. 150-151), however, having read akarasya na
for apakdarasya (Karakah), has interpreted the phrase as ‘one, who does not
call the above-mentioned persons such as owners, servants (on appropriate
occasions).’ ‘One, who cohabits with a widow at one’s sweet will’, means
‘one, who does so even when not appointed to do so.’

Visnu (V. 118) has laid dow&: A person, when called for protection by
another person, attacked by a thief or other miscreants, does not quickly
run towards the latter (and thereby becomes an offender).

So Halayudha has also interpreted the word anabhidhdvakah (in the above
text of Yaj. ) as “one, though being able, does not run (towards the person,
crying for help).’ But (Vacaspati) Misra has read the above word as anabhi-
dhayakah and explained it as ‘one, who does not respond (to the cries of
that person.’ (V. C. p. 151)

The word uttaman means ‘Brahmanas and members of other superior
castes’. The ‘Sidra recluses’ are such as ‘(the Jainas) of the Digambara sect
and members of similar other heretic sects’. ‘Swearing by improper words’
implies ‘statements such as “J shall then cohabit with my own mother”
The text of Visnu (V. 118) viz. ‘one, who swears when not called upon to

254 _ DANDAVIVEKA

do so’, may also be accepted as the‘import of the above action, as such
swearing is also unjustifiable.

The destruction of the masculinity of trees can be effected by putting a
stop to its fructification by the injection of medicine into them. The small-
ness of animals is to be judged in relation to such smallness in comparison
with (the bigness of) elephants and similar other animals. But Visnu (V. 119)
has only said in general terms, ‘The destroyer of the masculinity of animals’,
which statement has been explained .by the author of the Ratnakara (p. 277)
as ‘the cutting off of the testicles®” of (male) animals’. ‘The offence of the
cheating of persons, by depriving them of common property’ should have
to be unscrupulously committed. The prescription of the fine of one hun-
dred (pana-s) for a person, not running to (the rescue of) a crying person
(having been attacked by another person), is to be interpreted as applying
to the one of the crying person, not having been injured by that person.
But if he has been so injured, the corresponding punishment should be as
laid down in the following text of Visnu (V. 73-74) :

When several persons take to assaulting (nighnatam) a single person,
each of them should be awarded double of the punishment, prescribed (for
such assault) and the persons, staying near or not running towards the crying
person, shall also be similarly punished. |

The fine of one hundred (pana-s) (should be imposed) on a (20218,
touching (a member of a superior caste), even though so done uninten-
tionally.

Visnu (V. 104-5) has stated elsewhere: An untouchable, intentionally
touching persons not to be touched by him, is to be put to death and if he
does so in relation to a menstruating woman, he should be beaten with
Siphaas

D. V. adds: A Siphda is the eye of a 11660 So (the latter part of the text)
means that he should be thrashed with ropes, made of siphds

The punishment by the imposition of the fine of one hundred (pana-s) `
should be inflicted on persons like Sidras for a single acceptance of gifts
etc. But if they repeatedly do so, the following punishment, as prescribed
by Manu (X. 96) should be inflicted on them: One, who, though being a
member of an inferior caste, lives out of greed upon the avocations, laid
down for members of superior castes, should be impoverished by the king
and at once banished (from the territory)

D. V. adds: Halayudha says that the phrase adhamo jatyd (i.e. a member

900 Ratnakara reads andacchedah but D. V. misreads it as gudacchedah in the body of
the text, though it contains the variant azigacchedak in the footnote |

KILLING A PHOETUS ; 255

of an inferior caste), used in the above text, means ‘a Vaisya (and a Sidra)’
and that if such a person, tries to eké’out his living by following the occupa-
tions of a Ksatriya (and of a Brahmana), he should have his wealth forfeited
and he should also be transported from his territory (by the king). The
Ratnakara is also of the same opinion. The same authority (i.e. Ratnakara
pp. 369-370) has also said: The fine of one hundred (pana-s) and the forfeiture
of the entire property for killing the phdétus of a female slave and that of a
Brahmana woman respectively have already been laid down by Y4j. (LI. 236)
and so the following half-text of Yaj.°(JI. 277a): “‘The fine of the highest
amercement is to be imposed for striking a person’s body with a weapon
and for killing a phdétus”, is concerning the destruction of a phdétus of a
woman, other than the above two classes

The Mit. has also explained the above half-text after having supplied the
phrase ‘with the exception of the phdétus of a female slave and of a Brah-
mana woman’ after the half-text. Though the punishment for killing the
phdétus of a Brahmana woman has nowhere been specifically laid down,
yet it ought to be included within the above exception on equitable principle.
Though also the Mit., while explaining the text (of Manu (XI. 88a)) viz.
‘After having destroyed the phdoétus of an unknown woman’, has added that
an analogy of Brahmana murder is being shown here, yet the purport of
this text is also indicative of the same import.

The instrumentality of chastisement in effecting that destruction of the
phoétus is to be inferred from the location of the preceding word in the above
text viz. Sastrdvapate (i.e. in case of striking with a weapon), from the neces-
sary supply of the pharse paragatre (i.e. on another person’s body) and also
on the authority of the following another text:

Usanas says: The fines of the first, middle and highest amercements are
to be imposed respectively (on the culprit), who creates difficulties in the
delivery of a pregnant woman*or who destroys the phdétus either by ad-
ministering medicine to her or by thrashing her.

Visnu (V. 113-4) lays down: The mutual deserters of father, son, teacher,
a person to whose sacrifices one officiates as a priest and a Vedic priest
(rtvik), when not degraded, (are punishable). One should not also discard
them (even when they become degraded.)
` D. V. adds: The clause ‘even when they become degraded’ is to be supplied
after tan (i.e. them) (in the second sentence of the above text). 7yaga (1.e.
desertion or discarding) means ‘not offering them the necessary welcome
etc.” and atydga (i.e. non-desertion) implies ‘holding conversation etc.,
though apparently prohibited, with them’.

The fine of one hundred (pana-s), (laid down in the above text of

256 | DANDAVIVEKA

Y aj.) is for mutual desertion by [लव men but the fine of six hundred*!
(pana-s), as laid down in the following text of Manu (VII. 389), is to be
inflicted on learned persons, who intentionally desert either of the above
classes of relations

Neither one’s parents, nor one’s wife or sons deserve to be deserted. Any
one, doing so, when they are not degraded, should be fined by the king
six hundred (pana-s)

The fine of two hundred (pana-s), as laid down in the following text of
Sankha-likhita, applies to an intentienal desertion by either of the parties
enumerated: One’s own parents and all the blood-relations, possessing
merits, are not fit to be discarded. He, who intentionally discards them,
when not degraded, is to be get the infliction of the fine of two hundred
(pana-s).

Visnu (V. 91-97) lays down the following punishments on offences such
as not allowing others to go (first) by a road:

He, who does not allow passage for persons, who are to be given priority
in passage (on a road), is to be fined twenty-five Karsapana-s.2 Thosealso,
who do not offer seats to persons, who are to be so offered, whodo not pay
respectful tribute to persons, worthy of the same (also belong to the same
category). Those, who transgress the claim of the neighbour Brahmanas to be
invited (in dinner) in their houses and those, after having invited such Brah-
manas, do not serve food to them or the latter, having given their consent (to
partake of the dinner), do not do so, are to be fined a gold masa. The last
ones are also to give to the inviting person twice the amount of food, (pre-
pared for but not partaken of by them)

Manu (II. 138) also says: Priority of passage is to be given to the follow-
ing several classes of persons

A person, seated in a wheeled carriage, one, who has passed ninety-years
in age, a patient, a person with a load, a wéman, a Brahmacdrin, who has
just completed his Vedic studies and taken the purificatory bath, the king
and a bridgroom.

D. V. adds: The word daSamisthasya, used in the above text, means ‘one
who is above ninety years in age’ and the bridegroom is ‘one, who is on his
way to marry (some body’s daughter in the latter’s house).’ The above text
is illustrative and includes such other persons as one’s teacher, preceptor
and superiors and all persons, more learned than the above person (who is to
grant passage to such persons).

201 PD. V. misreads saf-Sata-dando as §atadando (cf. Ratnakara, p. 356)

9०9 D. V. misreads Kdarsapana-paiicavimsatipandn for Kdrsdpanapafica-vimésatim (cf.
Ratnadkara, p. 357 foot-note) (

PUNISHMENTS FOR OTHER TRANSGRESSIONS 257

8

The next two other classes of persqns, (in the above-quoted text of Visnu),
such as he, who does not offer seats or pay respectful tributes (to worthy
persons), along with the first-mentioned one, i.e. he, who does not grant
passage (to several classes of persons), are guilty of an almost equal offence
and so the latter two classes also deserve the same amount of fine of twenty-
five (Kar sapana-s). The fine of a gold mdsa, (laid down for the just following
three other classes of offenders in the same text of Visnu in connection with
invitation to dinners) may alternatively be imposed on the just preceding
two classes of offenders, as the offence of the latter is equal in nature
with those of the following three others. The refuser of invitation, offered
by a neighbour Brahmana, is to be such as one, who permanently resides
in his own house but refuses such invitation without anything having gone
wrong with the inviter. In continuation with the imposition of the fine of one
hundred (pana-s), the following statement of Manu (cf. VILL. 275),2% concern
as it does with respectable persons such as one’s teacher, is not conflicting
(with the just quoted previous text of the same author.)

Manu’s statement: Not giving passage to one’s teachers etc.

Manu (VIII. 392) further says: The Brahmana, who does not feed one’s
immediate and almost immediate neighbours, who are fit to be invited in a
festivity, in which twenty Brahmanas are being fed, should be fined a mdsa.

D. V. adds: The above offence, regarding the non-feeding of the above
two classes of persons, concerns Brahmana inviters only, as Narayana has
said that the insertion of the word viprah within the text implies that a
Ksatriya, doing so, incurs no guilt.

The same authority (1.6. Manu VIII. 393) has further said: A Srotriya,
who does not offer dinner? to another meritorious Srotriya in auspicious
festivities (bhiti-krtyesu), shall have to give twice the amount of food (tad-
annam) and also pay the fine of a gold masa.

D. V. adds: A Srotriya is a person of good religious practices®>, Kullika
Bhatta in his commentary on Manu has said that such another Srotriya
should happen to bea neighbour or almost a neighbour (of the former Srot-
riya) and that the word bhiti-kriyesu means ‘on such occasions as the celebra-
tion of marriage (in his house)’. The word tad-annam, meaning ‘the amount of
food to have been served (to the Srotriya)’ and twice that amount shall have
to be made over ‘to such unfed person’, according to the Ratnakara (pp. 357-8)
‘When such feeding has not been done’ being implied here, this text is of the

909 J), V. reads panthdnant cadaddnastu, while Manu reads panthadnarh cddadad guroh. |

9०५ TF). V. misreads bhiti-krtyesu bhojayan for bhiti-krtye-svabhojayan, thus negating
the real sense.

tos D. V. explains Srotriyah as saddcdravdn (i.e. of good religious practices) but Kulltika
interprets it as vidyd-cdravdn (i.e. possessing learning and performing religious rites).

33

258 DANDAVIVEKA
ध

same import as the previously quoted ल of Visnu. The payment (as fine)
of a gold mdsa 15 to be made to the king

It appears that owing to the insertion of the adjectival phrase vimsati-dvije
(i.e. in which occasion twenty Brahmanas are invited) in the former text
of Manu, the meritorious Srotriya, mentioned in the latter text of the same
authority, means “a meritorious Srotriya other than the inviting Srotriya’s
neighbour or almost neighbour”. Moreover, the mdsa, mentioned in the
former text, is also to be taken as a gold mdsa on account of the context
and similarity of the offence concerned. Also because such a neighbouring
person, fit for being invited in such a dinner but not so invited, is also similar
to a person, who, though worthy and hence invited, declines to accept the
invitation, as spoken of by Visnu, by reason of the equality of position of a
blameless neighbour and a meritorious non-neighbour. The neighbourli-
ness in the former, devoid of any blemishes, is the compelling reason for
extending an invitation to him. |

The following view of Halayudha is questionable: The masaka, spoken
of by Manu in the former text, is to be construed as a silver masaka, in
view of the fact that Manu has specifically laid down the fine of a gold mdsaka
for the offence of non-feeding a neighbouring Srotriya in a festive accasion
Because the contents of the latter text are too explicit to include the factor
of neighbourliness into it, resulting in the negation of the difference of punish-
ment and possession of merit itself by the invited person supports his being
so invited in spite of his non-neighbourliness. lt should not be argued that
the insertion of the phrase vimSati-dvije in the former tzxt minimises the
auspicious character of the occasion for dinner, as the phrase bhiti-krtyesu,
inserted in the latter text, simply adds to its holy character. So it 1s to be
said that in a more sumptuous dinner the omission of invitation to neigh-
bourly Srotriyas is a higher offence (than the two cases, already cited) and
hence calls for heavier punishment. Even in a dinner, confined to twenty:
Brahmanas only, there should be an increase of punishment for excluding
the neighbouring (Srotriya) Brahmanas except for extenuating circumstances.
But it should not be said that the fine of a gold mdsa_ is to be consequently
imposed for not extending invitation to a neighbourly Srotriya and a fine of a
silver 71145८५ is to be ordered in other cases, as such decision will conflict with
the following text of Yaj. (II. 263): A ferry-man, exacting land-tax (from
a passenger) is to be fined ten panas. A similar fine shall be imposed on a
person, not.inviting the neighbouring Brahmanas

The above text is to reconciled®”* as referring to the case of a neighbouring

206 ED. V. unnecessarily adds mara (i.e. mine) before this sentence. It might have been
api (i.e. also)

FEEDING OF BRAHMANAS 259

Brahmana, devoid of merits, on the authority of the following text of the
Matsyapurana, quoted in the Kamadhenu:

‘There is no exemption from the sin, (arising out of the dereliction of the
duty) of feeding Brahmanas.’ So this latter text is in consonance with our
explanation of the former text.

The punishment for the following four classes of offenders is a gold masa:

(1) One, who does not accept an invitation,

(2) One, who does not serve meals to invited guests,

(3) One, who, even after having accepted an invitation, does not actually

partake of the meal offered, and

(4) One, who does not extend invitation (to worthy persons).

There is an additional duty (imposed on the host) of offering twice the
amount of meal (to the aggrieved persons) in the second and fourth cases.2°

So let there be the two-fold prescription of a gold mdsa and a silver masa,
equivalent to ten pana-s, for the commission of the above offence in connec-
tion with neighbour Brahmanas in proportion to their possession of merits.
Halayudha has, however, said that fines of a gold mdsa, ten pana-s and a
silver masa are to be inflicted on the defaulter in connection with very
worthy, worthy and unworthy Brahmanas respectively.

Visnu lays down the following punishment for refusal of an offer of gift
without any valid reason: A Brahmana, who is in the habit of accepting
gifts and has been invited to receive one such but does not respond to the
invitation without any valid reason, is to be fined eight hundred (paza-s).

D. V. adds that the above text finds fault with a person, who presents
himself on (occasions of) gifts but shows his aversion to accept the offer
of one such and that this fault is like that of uttering an abuse.

In continuation of the statement that a person, polluting a Brahmana
and others, is punishable, Visnu (V. 98-103) lays down: One, who defiles a
Brahmana with uneatables, is td be fined sixteen gold (coins); and one, who
does so with things, which cause loss of caste, isto be fined one hundred (gold
coins); and one, who does so by (making him swallow) wine, ts to be put
to death. Halves and halves of halves (i.e. quarters) of the above several
punishments are to be meted out to persons, convicted of the same offences
in relation to Ksatriyas and Vaisyas: But the fine of the first amercement
is to be imposed on a similar offender in relation to a Sidra.

D. V. adds: According to the Mit., the uneatables, ‘spoken of in the above
text, may be either ‘mixed with food and drink’ or offered, ‘unmixed with

ae? 1. V. wronghly reads uffarayor (i.e. in the last two cases), which should be dvitiya-
caturthayor, ध

260 DANDAVIVEKA

1
anything’. The uneatables include undrinkables also, on the authority of
the following text of Manu:

After having made Brahmanas or dvijas (i.e. members of the twice-born
classes) eat an uneatable (food) or drink an undrinkable (liquid) etc.

Uneatable (and undrinkable) things are such as stools and urine and caste-
destroying ‘substances are such as garlic.” The corresponding uneatable
(i.e. undrinkable) substance for a Sidra is the milk of a tawny-coloured
cow and the meat of the (five) forbidden five-clawed animals destroys his
caste. “Fines of half of that (punishment)’ (tad-ardham) means eight gold
(coins) and fifty (gold coins) constituting the punishments for causing to
eat unetables and caste-destroying substances respectively. The second
tad-ardham implies (the fines of) four®® and twenty-five gold (coins) for the
above two offences respectively. (The first-mentioned fines) are to apply to
cases involving good Brahmanas and others only.

Y4j. (I. 296) has laid down the following punishment in the other cases

The fines for causing defilement through uneatables for (ordinary) Brah-
manas, Ksatriyas, Vaigyas and Sidras are the highest, middle, first and half
of the first amercements respectively
_ In the following other text of Yj. (II. 297) the three organs. (trinyangani)
are the nose, ears and hands, according to the author of the Mit. and others:
manufacturers (and users) of spurious (i.e. imitation) gold and the sellers
of forbidden flesh (vimamsasya) are to have their three organs cut off (tryanga-
hinah) and should also be fined with the highest amercement

The text of Visnu, in continuation of the mutilation of one of the legs
(of the offender), is also to the following effect: The seller of forbidden
flesh also

D. V. adds that the forbidden flesh (spoken of in both these texts) means
“such prohibited flesh as of jackals and similar other animals

The following other text of Visnu (V. 1 74) lays down: The sellers of un-
eatables and unsaleable substances and the iconoclasts are to be punished
with the fine of the highest amercement.

D. V. adds: The sales, referred to in the above texts, are not always con-
demned (i.e. disapproved) sales, otherwise the sales of the uneatables and
other unsaleable substances for medicinal purposes will amount to crimes
So the above texts are to be interpreted in consideration of their applica-
bility to good or bad purposes

Vigsnu (V. 173) again says: The partaker (bhaksayita) of uneatables and
caste-defiling substances is to be banished (from the territory)

#8 >, $, omits caturah (meaning णपा) here.

POLLUTING PURE THINGS 261

&

D. V. adds: The word bhaksayita jn the above text means ‘the intentional
eater’, on the authority of the following text of Manu:

Those, who swallow (such uneatable food) of their own accord, are to be
rendered devoid of property by the king.

Manu (EX. 290) has laid down the following punishment in abhicara and
similar other occult practices: If ill-wishing persons practise (on other
persons) several kinds of abhicdra and many other (condemned) actions
with the employment of roots, they are to be fined two hundred (pana-s).

D. V. adds: The word abhicaresu in the above text means ‘in those Shas-
tric practices, which involve the performence of sacrifices with hawks and
in those other supernatural actions like writing with a needle, taking the
dust of (a person’s) feet, done towards an innocent person’ and the word
milakarmani means ‘those (hostile) actions, done by ill-wishers with the
help of the roots of medicinal plants’. The phrase ‘Krtydsu Vividhdsu ca’
implies ‘uccafana’ (i.e. making a person leave) his business by magic spells
for causing diseases and other ailments (in the body of the person so treated
with those practices) and unbecoming utterances (by the person, doing
such) as ‘I take your mother etc’. Kullika Bhatta has said in his commentary
on Manu that the above punishment (of two hundred pana-s) is to be inflicted
in cases, where the person, so charged, survives the above practices but in
cases, which end fatally, the punishment for murder is to be inflicted upon
the authors of those crimes. In the sub-chapter of overt thieves, the word
milakarma means ‘conversion to one’s views’ (vasikaranam) and is employed
to extort money (from customers) but here it means ‘employment of roots
(mila) of medicinal plants’ and the difference of the two topics in indicated
by (the addition in the present text of) the word andptaih 6.6. by ill-wishers).
But Narayana has explained the word andptah as ‘an unrelated person’
and has said that the conversion to his own will is accomplished by the
employment of such roots etc. and has added that if done against relations
such one’s husband etc., such action does not become condemnable.

Manu (IX. 286) lays down in polluting pure things etc: The fine of the
highest amercement is to be inflicted on persons, causing pollution of pure
things, breaking (articles) and piercing wrongly through jewels.

D. V. adds: Pollution (disane) means ‘causing deterioration of the thing
by contacting it with bad things’ and breaking (bhedane) implies ‘breaking
brittle things’. | |

Yj. (TI. 301) prescribes the following punishment for concealing facts
about one’s (wife’s) paramour:

One, who passes one’s (wife’s) paramour as a thief only, is to be fined
five hundred (pana-s). But he, who, after having received from him a bribe,

262 DANDAVIVEKA

sets him free, is to be fined eight times (astagunikrtam) the money, received
as bribe. ` ^

7. V. adds: He, who, out of fear for the degradation of his own family,
canceals the blemish of his wife and so passes her paramour as a thief only,
is to pay the fine of five hundred pana-s. But if he lets him off after receiving
a bribe from him, he is to pay a penalty of eight times the money received as
bribe. This is the opinion of Halayudha, (81466४88 [p. 361 of (Vivada-)
ratnakara)] and others. But (Vacaspati) Misra (V. C. p. 154) has interpreted
the word asfagunikrtam in the abové text as ‘eight times of five hundred®°%,
(para-s). |

Narada (rrdddna ४. 67) has laid down the following punishment for
selling things, not fit to be sold by a person:

A Brahmana, who has deviated from the right path by selling things,
not fit for him to be sold (avikreydni), should be replaced in the proper
path (i.e. conduct of life) by the king with the infliction of a heavy punish-
ment.

Though the above author has prescribed the just-quoted text after
having written the following texts (rnddana VV. 61-63), yet many other
things may be added to the list, provided in them, on equitable principle:

A Brahmana, who has taken up the occupation of a Vaisya, should not
sell the following things: Milk, curds, clarified butter, honey and remnants
of honey, lac, caustic substances, (animal) fat, liquids, meat, rice, sesamum,
linen, soma juice, flowers, fruits and stones, human Beings, poison, weapons,
water, salt, cakes, shrubs, hemp, silk, hides and bones (of animals), blanket,
single-hoofed animals, buttermilk, containing a large proportion of water,
(animal) hairs, oilcakes, vegetables, ginger and drugs. |

So (1066४०४ has explained the term avikreyani (in the above
earlier text of Narada), as ‘those things, the sale of which (by a Brahmana)
has been prohibited in the works on dharma-sastra’. The seller of such
forbidden things should be corrected by the award of a heavy punishment
(dandena bhityasd), 1.6, the fine of the highest amercement, on the authority
of the following text of Vignu (V. 173) :

The seller of unsaleable articles should be awarded the fine of the highest
amercement.*0°

Manu (LX. 285) has laid down the following punishment for breaking
bridges etc. :

The breaker of bridges (sankrama), banners, (distinguishing) poles and

398८ D. V. misreads paiica-visinsatim-asfa-gundm for pafteasatim asfagunan. |
9० The above text is a part of a bigger text of the sanme authority, quoted on p. 309
of D. V., a little above.

DESTRUCTION OF BRIDGES AND IMAGES 263

images of gods (pratima) should have to repair them and also pay a fine of
five hundred (pana-s).

D. V. adds: Sankrama means ‘a.collection of logs of wood and other
things to facilitate passing over a water-course.’ It isknown as sdnka (Sanko 7)
in ordinary language. A banner is ‘the distinguishing sign of royal palaces,
temples and other important places.’ A pole is (a distinguishing sign) placed
in markets and stables for elephants etc.” But Kullika Bhatta in his commen-
tary on Manu has explained it as ‘the distinguishing sign, placed in front
of tanks etc.’ Narayana has interpreted it as‘a pole for fastening banners
of villages etc.” and has also explained the word pratima as ‘an effigy of a
human being’, as the sentence of death is the proper punishment for breaking
an idol, which is also different in dimensions, as has been laid down (by
Manu IX. 280) in the text, beginning with the word Kosthdgdra (and contain-
ing the word devatagarabhedakdn). But according to D. V., as the above text
(i.e. Manu IX. 280) relates to theft, so it should not be dragged into the
interpretation of the present text (i.e. Manu +. 285) (relating to breaking).

Katyayana has also said: He, who either steals or breaks or burns images
of gods or breaks their houses (i.e. temples), shall be awarded the fine of the
first amercement.

But Visnu (V. 173) has said: The breaker of divine images should be
punished with (the fine of) the highest amercement.

Sankha-likhita have, however, laid down: In cases of causing destruction
of idols (of gods), parks, wells, small bridges, banners, big bridges and
nipdnas, the breaker shall have either to reconstruct or to repair them and
shall also receive the punishment of (the fine of) eight hundred (pana-s).

D. V. adds: A nipdna is a reservoir of water, constructed near a well for
drinking water by cows and other animals. Reconstruction should be
made in cases of total destructign and repair of the destroyed portion only
in cases of partial destruction.

Visnu (V. 15) has further said in continuation of the word hanydat (Le.
should put to death): The destroyers of (big) bridges.

Yaj. (cf. Ll. 2785) hs also laid down: (The king) should plunge into water*™
the breaker of big bridges, after having tied him with a slab of stone.

D. V. adds: The alternative punishments of the fines of the highest and
_ other amercements and also of that amounting to five*! hundred (pana-s)
are to be meted out to an iconoclast in considerations of the worthiness or
unworthiness or richness or poverty of such breaker of idol. But in the case

219 TF, V. reads (setubhedakaraft-) cdsu, which should be °cdpsu’ to fit in with the verb
pravegayet at the end of the line
7. V pafica-$atdtmaka’ as paya-Satatmaka®

264 DANDAVIVEKA

- of breaking a big bridge, the sentence of death shall be inflicted only in cases
of major destruction of the same. In other cases (i.e. not involving major
destruction), the punishment, laid down by Sankha (-likhita), should be

inflicted
Manu (LX. 281 and 279) has laid down the following punishments for the

breaking etc. of tanks

He, who steals (Aaret) the water of a previously excavated tank (pirva-
nivistasya) or breaks (bhindhyat) the entering passage of water in such a tank,
shall be fined the first amercement. But the breaker of a tank shall be put
to death (by immersing him) into water or by strangulation (suddha-vadhena)
or shall be compelled to repair the tank and pay a fine of the highest amerce-
ment.

D. V. adds: The word purva-nivistasya means ‘(of a tank), already existing,
(having been excavated)*™ for bathing, drinking and similar other purposes.’
The verb Aaret means, according to Narayana, ‘conducts it to a tank, situated
near (his residence)’. But Kullika has read bandhydat for bhindhyat and
explained the word taddga-bhedaka (i.e. breaker of a tank) as “the destroyer
of the entire amount (krtsna) of water of the tank 09४४3 creating barriers to the
entrance of water into it.”” Narayana has, however, interpreted the above word
(1.6. tadaga-bheduka) as “he, who effects the passing away of the water outside
the tank” and has not added the word krtsna (1.6. entire) to the (implied) word
‘water’ in the former word. According to the Ratnadkara (p. 364), the word
Suddha-vadhena (lit. by pure death) means “by choking the throat®"4 (of the cul-
prit), outside water (i.e. not by plunging him into water)’. But Narayana has
explained the above word as ‘by decapitating (him)’, as putting to death by the
mutilation of the hands and fingers is an impure (asuddha) form of death, as
it causes pain (to the body of the culprit). The same author has also said that
all the above-discussed punishments are पिए intentionally committing those
offences, while unintentional commission of the same entails the thorough
repair of the damaged tank, followed by the payment of the fine of the first
amercement, upon the offender. But Kullika has read yad va’pi
for tac-cdapi (i.e. that also) and has expressed the opinion that if the offender
repairs the tank (so destroyed), he shall then have to be fined with the
highest amercement only.

Sankha-likhita have further said in continuation of the alternative punish-
punishments of death and mutilation of the limbs: For breaking (i.e. destroy-
ing or damaging) a vdpi, a tada@ga and an udapana

915 [). V, reads sndnapdnddyu-payuktasya as °dupa-yuktasya

313 PD, V. misreads °bhedddind for °ban n

914 ED, V. misreads ndlibandhddind (read in its footnote) or galandlibandhddind (read by
Ratnakara) as garigdtira-tvddind.

VARIOUS KINDS OF WATER-RESERVOIRS 263
9

D. V. adds: In cases of stealing 0.9 diverting) the water of a tadaga for
self-prescrivation and similar other purposes, (the punishment is the fine
of) the first amercement. In doing so in respect of an inferior (i.e. smaller
or less useful) taddga, mutilation of limbs 15 the proper penalty. But if the
offence is committed regarding the entire quantity of water, contained in a
good (and highly useful) taddga, the extreme penalty of death (should be me-
ted out to the offender). That imposition of the sentence of death may be either
simple or attended with tortures (vicitra) in consideration of the superiority
(and utility) of the taddga in question. Such different punishments may also
be prescribed in proportion to the gravity of the offence committed (in that
bad action) or in consideration of the presence or absence of motive in it.
Option between sentences of simple and complicated death may also be exer-
cised in consideration of the comparative (size and position of) the reservoir
of water, so damaged. A vapi isa receptacle of water ten cubits square, a
tadaga is one such more than hundred cubits square and an udapdana*"® is
larger in area than that, according to the Smrti of a foreign province.

The Devipurana says: O best of kings! A well is above ten cubits (in
diameter), a durga is greater in area than that, a va@pi is larger in diamensions
than the combined length of two rods, each measuring ten arm-lengths
and a ftadaga, eight kinds of which have already been described by me, is
ten times larger than a vapl.

The Kapila-paficaratra also says: A शकण is hundred dhanu-s (1.e. four
hundred cubits) square, a pool or pond is four times larger than that, a
dirghi (i.e. a small lake) should be made nine hundred (cubits) (in length)
and three hundred in breadth, a taddga (i.e. a lake) should be thousand
cubits square and a reservoir of water, ten thousand cubits square, is called
a sagara (i.e. a sea)

Yaj. (II. 278-9) has laid down the following punishments for administering
poison, setting fire and similar other offences

A woman, administering poison and setting fire (visdgnidam), killing
(other) male persons and destroying or damaging big bridges, if not pregnant,
should be immersed in water,*!* after having tied her throat with a slab of
stone. But a woman, who administers poison and sets fire, kills her husband,
superiors and her own offspring, should have her ears, hands, nose and lips
severed from her body and then should be killed by cows (gabhih).

D. V. adds: The Mit. has added the following comments on the above
two texts:

816 73. V. misreads it as nipdnam, which is not only irrelevant heré but also means a differ-
ent thing, as has been |
reads setu-bhedakarliicaiva but Yaj. reads °A cdpsu. |

34

266 | 0403४1४६

‘The “administering of poison” (referred to in the second text) is mixing
poison with food and drink for causing death of other persons (than her
own relations) and ‘setting fire’’ is doing so for burning villages etc. The
word ‘gobhift’ indicates that (such a woman) is to be put to death by instiga-
ting unruly bulls against her

The woman, spoken of (in the first text), if not pregnant at that time,
should be plunged into water with a slab of stone, tied to her throat, other-
wise (i.e. if pregnant) she is to be put to death (after her delivery?) after the.
mutilation of her ears etc. The insertion of the same word visdgnidam in
the begining of both the above texts does not amount to tautology, as the
two texts contain two separate sentences. The mention of this word in the
former text is to state the offence with the corresponding punishment for
its commission against persons, other than her husband with the object of
bringing about his death, as is evident from the word purusaghnim, inserted.
almost after it. But the mention in the latter text is to state the commission
of the same offence with the motive of causing her own husband’s death,
as is manifest from the word pati ... pramapanim (meaning ‘killing thereby
her husband and other relations), placed just after it. In both the above
cases, the motives and corresponding crimes seem to be correlated
together. |

But the Mit. (and Y4j. also) have read vi-pradusfam for the first visagnidam
and the former has explained it as ‘viSesatah prudustam’ (i.e. specially wicked).

The feminine gender of the first visdgnidam is not meant to be taken
literally. So a male person, convicted of the same offence, should be similarly
punished. So the following statement in general terms of Sahkha-likhita
viz. “Death or mutilation of limbs (is the punishment) for polluting liquid
substances by mixing them with poison and other injurious things’’ holds
good here

Yama says: Prajapati has said that persons, who throw fire towards any
person, the murderers and their accomplices are to be punished with their
bodies (i.e. put to death) etc.

D. V. adds: The offences, described above, are, in connection with
persons, other than Brahmanas, who are exempted from this punishment.
According to the Ratnakara (p. 365), the punishments with their bodies.
are also in proportion to the gravity of the offences, This view is correct
on the authority of the text of Manu (VII. 286), beginning with the words
viz. manusydn@rh pasinafica, quoted and explained by us in the chapter on
assault (p. 258 of D. V.).

Yaj. (II. 282) says: One, who sets fire to a field of crops (Ksetra), house,
village, forest (vana), a vivita and a threshing floor or cohabits with the

LOOTING THE TREASURY _ 267

king's wife (1.6. the queen), is to be burnt to death by creating fire in a straw-
mat (पध)

D. V. adds: The Mit. has explained the word Ksetra as ‘filled with ripe
fruits and ripened crops.’ The word vana means ‘a forest or a play-ground’
` The expression vivita means ‘a tract of land, containing grass, meant for
the cattle etc.’ A Kata means ‘(a mat) made of straws

Katyayana (V. 9565) has laid down the following punishment for looting
the royal treasury and similar other things. The plunderers of the king’s
wealth are to be awarded various kinds of corporal punishment.

Manu (IX. 275) also says: Those, who plunder *’ the royal treasury or
are inimically disposed towards him or collude with the (king’s) enemy, are
to be put to various kinds of corporal punishment

D. V. adds: According to Kulliika’s commentary on Manu ‘are inimically
disposed towards him’ means ‘flout his orders’. According to the Ratnakara
(p. 366), ‘colluding with the (king’s) enemy’ means ‘destroying his own
king’s state by doing so’ but according to Kullika Bhatta, it means “‘aggravat-
ing*!® the enmity with the enemy king’. Narayana has, however, inter-
preted the above expression (arindm upajapakdn) as ‘those, being (secretly)
connected with the enemies, destroy their own ministers’. The Mit, after
having quoted the above text, prefacing it with the clause viz. “‘death is the
proper penalty for offences like the looting of the royal treasury’’, has
explained the phrase vividhair dandaih as ‘by forfeiture of the entire property,
mutilation of limbs and death proper’. But Kullika in his commentary on
Manu has said ‘by the cutting off of the hands, tongue etc. in proportion
to the gravity of the offences’. |

The Matsyapurana has also said (in similar terms as Manu, just quoted):
The plunderers of the royal treasury, persons, inimically disposed towards
the king and those, who benefit the enemies (of their own king) (at the cost
of the king himself), are to be tortured with various corporal punishments.

Manu (IX. 2325) further says: (The king) should put to death those
persons, who are friendly with the king’s enemies (dvif-sevinah).

D. V. adds: The word dvif-sevinah means ‘those royal servants, who are
hostile to the king’. If in spite of the infliction of pecuniary punishment as a
substitute for corporal punishment on a Brahmana, convicted of the offence
of hostility to the king like robbing him of his treasury, no correction of
conduct occurs in him, who persists in his bad conduct even in his next punish-
ment of banishment or after coming back after banishment*”® (from a foreign

7 ED. V. misreads + pd trr$a as °hantrr§ca
218 T), V. misreads ग buddh
19D, V. misreads voivdsydd as vaijatydd. Cf. p. 68 of D, V, for the correct expression,

268 । .. DANDAVIVEKA

¢
territory), he is either to be relegated tq life-longimprisonment or to detention
up till the correction of his conduct, according to our conclusion, recorded
almost at the end of the first chapter (of this work)

Manu (IX. 232) has laid down the following punishment for accusing the
ministers

The king should put to death the forgers of the royal documents, the
accusers of the ministers, the murderers of women, children and Brahmanas
and those persons, who are friendly with the king’s enemies. (The same
as the quotation on p. 266 of D. V.)

D. V. adds: According to the Ratnakara (p. 369), the phrase prakrtinam
disakan means ‘the unwarranted fault-finders of the ministers’. (Vacaspati)
Miéra (V. C. p. 160) is also of the same opinion. |

Visnu (II. 33-34) has also said: The master (i.e. the king), the ministers,
the fort, the treasury, the punishment (i.e. the criminal law) and the friends
of the state—all constitute the prakrti-§. (The king) should put to death all
those, who accuse them (unreasonably).

D. V. adds that the ministers are the best among the citizens (sista).
Sankha-likhita have laid down on the conversion of women, who are not
female slaves, into such ones, in continuation of his earlier statement viz.
“sentence of death or mutilation of limbs”: In handing over in marriage
women, who are not female slaves, to the men slaves.

D. V. adds: The punishments of death and mutilation of limbs are to be
meted out for such offence in consideration of the comparative worthiness
or unworthiness of the offenders, convicted of this fault. It is a matter
of outraging (the modesty of a woman) and so no fault arises if the woman
is a consenting party to such marriage

YAj. II. 304) says on the proclamation of the king’s (future) harm: The
fine of eight hundred (pana-s) is to be imposed on the person, who injures
both the eyes (of another person) or proclaims harmful news about the
king and on the Sidra, eking out his living by following the special avocations
of a Brahmana.

D. V. adds: The phrase rdjadvistadeSakrtah (i.e. of the proclaimer of
_news, harmful to the king) means “of the proclaimer of such prophecies
as ‘The king shall die in the second year (from now)’.”

The author of the Mit. makes the following comments:

` That astrologer, who, though unerring in doing good to superiors (includ-
ing the king), makes such injurious prognostication about the king as ‘There
will be dethronement of the king after the lapse of a year’, is to be fined
eight hundred (pana-s)

Yama makes the following statement in connection with a Brahmana:

PUNISHMENT FOR CRUELTY TO ANIMALS 269

®
Banishment (from the territory) 18. 6 appropriate punishment (of the
Brahmana), who utters harmful things about the king.

Manu lays down the punishment for causing debilitated bulls and similar
other beasts to draw carts: He, who causes young cows (go-kumarl) arid
other beasts, dedicated to gods and bulls, strong as well as weak (uksadnam
vrsabhantatha), shall be fined the first amercement, which punishment will
be increased to the fine of eight hundred pana-s (asfamam), if death results
(from the employment of such animals to that work).

D. V. adds: The word go-kumari means ‘a cow, attached to a bull’ and
the word uksd means ‘an impregnating bull’ from its having been derived
from the root uksa, which means ‘discharge of the (seminal) fluid’. The
word vrsabha means ‘a worn-out bull’.

Brhaspati also say$ in his topic on bulls: He, who causes tired, hungry
and thirsty (bulls) to draw (carts or carry loads) in inappropriate times,
is to be termed a go-ghna (i.e. a cow-killer) and he should be either finally
got rid of (i.e. put to death) or awarded (some appropriate) punishment.

Katyayana (V. 789) also similarly says: He, who causes fatigued, famished
and thirsty asses, bullocks, buffaloes, camels and similar other beasts of
burden to draw (carts or carry loads) in improper times, shall be fined the
first amercement.

On committing suicide, Angiras has said: The body of the person, who
kills himself by taking resort to lightning etc., shall be besmeared with filthy
substances but if he survives the above act of suicide, he shall be fined
two hundred (pana-s). .

D. V. adds that similar punishments will also logically follow such other
cases, committed by means of other dangerous methods.

Manu has specified such other cases as follows: Those persons, who have
survived their attempts to cgmmit suicide by means of (drowning into)
water, (jumping into) fire and hanging or have renounced the life of a recluse
after having once adopted it or have escaped death even after swallowing
poison or after infliction on their bodies of mild strokes of weapons, are also
to be considered as “having relapsed into the old bad way of life” and
should consequently be driven out of the common society.

D. V. adds: The previous prescription of the punishments like exile,
imprinting (the person with characteristic marks) and driving to servitude,
to be served out on the renouncers of the status of a recluse, relate to inten-
tional commission of the above offences but here the offences specified
are those, which have been committed due to incapacity to avoid them on
the part of the offenders. So this present prescription does not stand in
conflict with the previous prescription, |

270 | DANDAVIVEKA
@

` ON THE PUNISHMENT FOR USURPING THE WEALTH OF A CHILDLESS WIDOW
(AND SIMILAR OFFENCES)

So Kfatydyana (V. 921) has laid down the following prescription in connec-
tion with the property, (inherited by a childless widow): A 5011658 (i.e.
childless) widow, having kept unsullied the bed of her lord (i.e. husband)
and practising the special duties (incumbent on a widow) and foregoing
the pleasures of life, shall enjoy (her husband’s) property up till her death
after which reversioners shall take it

Manu (VIII. 28-29) has also laid down: The duty of protecting the wealth
of the following classes of women (devolves on the king himself): Barren
widows (who have been provided with wealth by their husbands), women,
whose sons have predeceased them (and whose husbands are also dead), or
those widows, who have no (near) agnates and cognates (to look after
them) and diseased widows, if all such women happen to have remained
chaste. If the relations (i.e. reversioners) of these women appropriate their
wealth, while they are still living, the virtuous king should punish them
as thieves.

D. V. adds: The wealth, which has accrued to these women after the
death of their husbands, leaving no other heirs and that kind of stridhana,
which they might have received from their near and dear relations and
which is technically known as ‘sauddyika’, is the wealth spoken of here.

Katyayana (VV. 911-912) further says: Neither husband nor son, neither
father nor brothers are competent to take or spend a stridhana (i.e. woman’s
peculium). If any one of the above-mentioned persons forcibly enjoys this
stridhana, he shall have to pay it back with interest and shall also be fined.
D. V. adds that the punishment, spoken of here, is to be a fine, equal in
amount to that wealth, so enjoyed, as similar has been the prescription in
earlier cases (of almost similar offences.)

} am
PUNISHMENTS FOR THE SUDRAS, CONVICTED OF TRANSGRESSING
THE ESTABLISHED RULES OF CONDUCT

Manu (VIII. 272) and Narada (vag. V. 24) have laid down: The king should
pour heated oil into the mouth and ears of a Sidra, giving.advice on dharma
out of pride to Brahmanas

D. V. adds that the phrase dharmopadeSam (i.e. giving advice on dharma) .
means “doing so, after having learnt a fragment of dharma, with the words
viz. “‘You should practise this way of religious observance etc.” (ef.
Kulf@ka’s com. on the above text) | . ee ५

PUNISHMENT OF SODRA TRANSGRESSORS 271.

Brhaspati (XX. 18) has also said: The Sidra, who indulges in giving
religious advice, based on citations of the Vedas and shouting against
Brahmanas, shall be punished with the mutilation of his tongue

Gautama (ILI. 3-4) also says: If he (i.e. a Stidra) listens to the Vedas,
his ears should be sealed with tin and lac and he shall get the punishments
of the mutilation of the tongue and death for citing from the Vedic texts
and carrying along with him (manuscripts of) the Vedas respectively.

Harita says: So in the case of his overhearing the chanting of the Vedas,
both the ears of a Sidra should be clésed with tin and lead, liquefied toge-
ther (vipldvya).

D. V. adds that Halayudha has read vidravya for viplavya.

Manu (VIII. 281) and Narada (vag. V. 26) have again said: A member
of the (most) inferior varna (i.e. a Sidra), if found to have sat along with
(abhiprepsu) a member of a superior varna, should be banished (from the
territory) after having marked his waist with characteristic figures and should
also have a portion of his buttock chopped off.

D. V. adds that the word abhiprepsu (though derived from a desiderative
root) has been used here in the ordinary sense of the root (ap with the prefixes
abhi and pra) (meaning ‘gets’ (the seat)). (cf. Ratnakara p. 267).

Visnu (V. 20) also says: If a person, sprung from an inferior caste (ava-
krstajah) sits along with a person of a superior caste (utkrstena), he shall
have his waist, imprinted with characteristic figures and shall be banished.

D. V. adds: According to the Ratnakara (p. 267), the words avakrstajah
and utkrstak mean a Sidra and a Brahmana respectively. But Narayana
has explained the above two words as ‘Ksatriya and others’ and ‘a member
of a caste, superior to that of the offender’ respectively. The marking on his
waist is for Ksatriya and Vaisya offenders only but both the penalties, viz.
marking on the waist and cuttjng off of a portion of the haunch, are to be
imposed on a Sidra, wishing to sit along with a Brahmana. The imprinting
with characteristic figures should be made with heated iron rods and justifiably
according to the appearance of the seat concerned. The singular number of
the word sphicam, meaning ‘a portion of a buttock’ and used in the second
text of Manu and Narada above, is so intended by the above authorities
and also on the additional authority of the Matsyapurana viz. ‘A portion of
one of his buttocks should be cut off’. Kullika Bhatta has prescribed this
cutting off in such a fashion as not to kill the offender. But the last portion
of the above second text of Manu and Narada has been read in the Dhar-
makoga as ‘medhram va’ pyasya kartayet’ (i.e. “or should cut off his genera-
tive organ’)

Gautuma (II.3.5) has further laid down: The fine of one hundred (pana-s)

22 DANDAVIVEKA

should be imposed (on a Sidra or a member of any other inferior varna),
who wishes equality (with a Brahmana or a member of any other superior
varna) in séat, bed and speech and on the road

D. V. adds that ‘equality in speech’ means ‘speaking when the member
of the superior varna is speaking’ and ‘equality on the road’ implies ‘going
together

Apastamba (II. 27.15) has also said: The punishment for claiming equality
on the road, in bed and in seat is physical harassment. D. V. adds that the
prescription of the fine of one hundred (pana-s) in the just previous text (of
Gautama) should be applied to wealthy Siidras only.

Katyayana (V. 957) has laid down: The sinful (pdpam)**° Sidra, who,
after having once taken up (pravrajya), the last stage of life (i.e. sannydasa)
and engaged himself in the muttering of prayers and performance of sacri-
fices, forsakes that mode of life, shall be punished with the sentence of death
or twice the amount of fine, fixed for commutation of the extreme penalty.

D.V. adds: According to the Ratnakara (p. 661), the word pravrajyd means
‘the adoption of the later or last®®! stage of life’. Though the adoption of
this stage has not been recommended for a Sidra in the Vedas and Smrtis,
yet if a Sidra, after having once taken it up inaccordance with the prescrip-
tion of the Saiva tantras, renounces it, he is to be considered as pravrajya-
vasita (i.e. a deviator from the later or last stage of life). The duties, laid
down (in the corresponding sacred books) for the Saivas*** and followers of
other (heretic) faiths, even though not prescribed in the Vedas and Smrtis
should be upheld by the king

Yaj. (LI. 3048) has also laid down: A Sidra, earning his living with the
insignia of a Brahmana (Vipratvena), should be fined eight hundred (pana-s),

D. V. adds that the word vipratvena means ‘with the sacred thread and
other insignia of a Brahmana

D. V. adds the following comment of the author of the Mit. on the above
half-text of Yaj |

The punishment in the shape of a fine of eight hundred (pana-s) is to be
inflicted on the Sidra, who takes up the insignia of a Brahmana, such as the
sacred thread, for (enjoying the privilege of) dining in a feast, (meant for
Brahmanas only). When a Sidra doesso assume the dress of a Brahmana
for participating.in a Srdddha feast, the portion of his body, from which the
sacred thread is slung, should be stamped with a heated rod—this punish-

240 1D. V. misreads it as padam |
` #43 DZ. V. misreads °uttaragrama’ (i.e. the later stage of life) as caturdsrama’, which might
have Sp caturthdsrama

ndkara reads saivddi-dharmah but D. V. reads it as bauddhadi-dhar 0.8, the
duties of the Buddhists) न

` +

PUNISHMENT FOR CUTTING TREES 273

8
ment, as laid down in another Smti, should be followed in such cases.
But if he does so for earning his livelihood, he should be put to death on
the authority of the following text of Manu (IX. 2246) :
(The king) should put.to death Siadras, convicted of having adopted the
iusignia of a member of the twice-born class, (i.e. pre-eminently ‘of a Brah-
mana’)

PUNISHMENT FOR CUTTING TREES

Katyayana (V. 793) has laid down ‘the following punishment for cutting
trees etc: The settled rule is that the corresponding punishments, to be
inflicted for damaging or destroying all kinds of big trees, are in proportion
to their comparative utility.

D. V. adds: This general rule applies to those kinds (of trees) for (damag-
ing or destroying) which no specific punishments have already been pres-
cribed. So 11 case of wanton cutting of ownerless trees, a nominal punish-
ment is to be inflicted on the cutter. But for doing so in respect of trees,
having owners, the making over either of a substitute of the tree, so cut
down, or its price to the owner of the tree concerned should be done.
This has been discussed and settled in the present treatise earlier and
should be looked for in that portion.

Yaj. (II. 227-9) further says: The corresponding punishments for cutting
down the branches, the joints (skandha) of the branches with the main tree
and the roots (sarva) of those trees, from the branches of which further
branches come out (prarohiSakhinah) and the shade-giving (upajivya) trees
are twenty (pana-s) and the successively twice the above amount, such as forty
and eighty pana-s. The trees, growing on homestead land and on the
boundary of cremation grounds, in holy places and temples and those, which
are conspicuous (visruta) for their size, if so cut down, shall entail twice
the above (three kinds of) punishments. But halves of the prescribed punish-
ments are to be inflicted, if such injury is caused by anybody to the above-
mentioned parts of the bushes, bunches of flowers, shrubs, creepers, waving
tendrils, annual plants and virudha-s

D. V. adds the following comments: The prarohisakhinah (trees) are
such as the banyan tree. The upajivya (trees) are those, the shades of which
are utilized, such as the mango tree. The word sarva means the ‘roots’.
The visruta (trees) are such as the butea froudosa. The gulmah are those
creepers, which do not become very long, such as those of mdilati (i.e. jasmine)
flowers. The bunches of flowers (gucchdk) are such non-creepers with
variegated colours as the Kurunfakas (i.e. yellow or white amaranth), The
shrubs (Ksupait) are those with small branches such as the sakofaka-s(?)

35 .

224 DANDAVIVEKA

The creepers (/atah) are those which twist themselves around big trees i.e.
parasites such as the vines and Dalbargia Oujeinensis. Pratanah (or waving
tandrils) are those, which have neither trunks nor sprouts and rise up straight
such as the Sarivas (2). The ogadhi-s (or annual plants) are those, which
die after the ripening of their fruits such as the plaintain trees. Virudha-s
are those shrubs, which, though cut down, sprout up in various parts
(vividham prarohanti), such as the tdla-kucya (7).

Vignu (V. 55-59) lays down the following in continuation of punishments
(dandah):

The cutter of trees, yielding fruits, is to be fined the highest amercement.
The cutter of flowering trees is to be punished with the fine of the middle
amercement. The cutter of creepers, bushes and shrubs is to be awarded
the pecuniary punishment of one hundred Karsdpana-s, while that of wanton
destroyer of grass shall be one (Karsdpana). All these offenders (are to pay)
to the owners of these trees etc. for growing them again.

D. V. adds: According to the Ratnakara (p. 283), the word dadyuh
(i.e. “are to pay’) should be supplied after tad-utpattim (i.e. for growing them
again). The Kamadhenu has also read as such.

Vasistha (XIX. 11) says: One should not ordinarily destroy the fruit-
yielding and flowering trees, or (v@) he may do so for purposes of cultiva-
tion or for the performance of domestic duties and sacrificial rites.

D. V. adds: ‘For purposes of cultivation’ (Karsanartham) means ‘for the
construction of ploughshares for tilling the soil’. The insertion of the alter-
native conjunction va (i.e. or) has been made to cover foreseeable and un-
foreseeable purposes (for allowing such cutting). The word gdrhasthyange
means ‘duties, connected with the house for the attainment of seen and
unseen results, to be achieved for the benefit of the household premises and
for sacrificial purposes’. (cf. Ratnakara, p. 284).

Here ends the third section on the topic of the muktaka-s (i.e. detached
offences) in the chapter on miscellaneous offences.

VIVADA-PADANI (i.e. titles of legal disputes)

Manu (VIII. 4-7) has laid down on this topic: The first of these (i.e. vivada«
padani) is (1) the recovery of debt and the following seventeen others are
included within them: (2) Deposit and pledge (3) Sale without ownership
(4) Concerns among partners (5) Resumption of gifts (6). Non-payment of `
wages (7) Non-performance of agreements (8) Recission of sale and purchase
(9) Disputes between the owner ‘(of cattle) and his servants (10) Disputes
regarding boundaries (11) Assault (12) Defamation (13) Theft (14) Robbery

VIVADA-PADANI 275

and violence (15) Adutery and rape (16) Duties of man and wife (17)
Partition 9०७ (vibhdgasca) (of heritage) (18) Gambling and betting. These
eighteen titles have been recognised here as relating to legal disputes.

D. V. adds: As abuse and assult and similar offences, involving violence,
have been separately discussed (by us), and as we have also included offences
like ‘non-performance of agreements’*** in (the uddisfa-varga section of)
this chapter on miscellaneous offences and also because transactions like
the recovery of debt are not of themselves crimes but become so as a result
of denial of the debt etc. and that fhey do not thereby create commotion

mong the people, so topics such as ‘sale without aownership’ are only
discussed below

Manu (VIII. 197-8)225 has laid down on this offence: If a person, not being
the real owner of a property and not also being authorised by the real owner
to sell that property, does so, the former, being thus a thief but posing as an
innocent person, should never be cited as a witness (in a law-suit). If (such
unauthorised seller of another man’s property) happens to be a relation of
the latter (52114140), he shall have to pay (avaharyo) six hundred pana-s
as fine. But if such a person happens to be a man, unrelated to the real
owner (niranvayah) and thus unauthorised (anapasarah) to do so on behalf
of the latter, he shall be branded as a thief and punished as such. One,
selling a property, over which one has no ownership, (to any other
person), after having mistaken it to have belonged to him (owing to his
relationship with the proprietor himself), shall thus be punished (i.e. by the
imposition of the above-mentioned fine). But one, who is in no way related
to the real owner, doing so, shall be punished as a thief, as the offence,
thereby committed, 1s intentional (no question of mistake having arisen in
that case)

D. V. adds the following comments: ~The word avahara means “giving”
and so the word avaharya, derived from it, means “‘shall have to give, i.e. to
pay.” Laksmidhara, GraheSvara, Kullika®** and Harinatha are also of the
same opinion. But Narayana and CandeSévara (Ratudkara, p. 104) have
explained the above word as dandyah (i.e. shall be punished). This explana-
tion is incorrect, as it creates a tautology with the word damam (i.e. punish-
ment) (at the very end of this line). The word s@nvayak means ‘related to the
real owner and thus having **” possible (partial) ownership of the property
in question’, such as his divided brothers even in his life-time. The word

333 1D. V. misreads vibhdgagca as vivddasca

#34 TD. $, misreads samvid-vyatikramddeh as sannidhyati-kramddeh
। धि last verse of the above three, i.e. that, beginning with anena vidhind sasyah, not
ound in

98५ But Kullika has explained avahdryo as dandanlyah

97 D. V, wrongly reads fad-dravya-yogya-sambandhabhavavan for °sambandhabhavavan,

226 | DANDAVIVEKA

¢

niranvayak implies ‘a totally unrelated person, having no possible (partial)
ownership’. Narayana has, however, said that even if a person, related
to the real owner, becomes an anapasara, by selling the property in inop-
portune time and in an inappropriate place, (i.e. he is also to be punished).
But the author of the (Krtya)-Kalpataru has explained the word anapasara
otherwise, viz. the word apasara, having been derived from the verb apasarati,
which means ‘goes to another person from the owner’, is to be interpre-
ted as “gift, purchase and similar other modes of transfer of property
and a person, having no authority to make those transactions in respect
to a property, is called an anapasara. The earlier commentators (of
Manu) such as Bhaguri and Medhiatithi and the later ones as Kullika
Bhatta have interpreted the above word likewise. All the above (divergent)
opinions, due to different readings of the text and different methods of its
Interpretation, are equally accptable, as all them are reasonable.

The following two interpretations of the author of the Ratnakara
(p. 104) and of the authors of the Krtyasagara and Smrtisara are questionable:

(Ratnakara’s interpretation) : The word apasarah means ‘(implied)autho-
rity to remove a wealth from the master’s house by a person, related to the
former’. A person, having no such authority but doing so of his own accord,
is called an gnapasara.

(Interpretation of the Krtyasdgara and Smrtisadra) : The word anapasarah
means ‘apalayitah’ (i.e. not absconding).

So the settled decision is: A person, related to the real owner, making a
sale of the latter’s property out of mistake only, is to be fined six hundred
pana-s but an unrelated person, fully cognisant of his absence of owner-
ship in a property, doing so, shall be punished as a thief. This punishment
shall be inflicted on the unrelated person, if he himself makes the unlawful
transaction, involving transfer of the thing (to an outsider) but if the former
causes a third person to do so on his behalf, he shall get the additional
punishment of the fine of six hundred (pana-s), according to the Ratnakara
(p. 104)

Katyayana (V. 620) has laid down the following punishment of the person
posing as the owner of a lost property

If the claimant of an article (alleged to be lost) fails to substantiate his
claim of the lost property by (the testimony of) his kinsmen, he deserves to
be punished as a thief in order to prevent (his taking of) undue advantage.

Yaj. (II. 1716) also says: (If a person, after having recovered a lost pro-
perty) does not report the fact (of its recovery) to the king, he shall be fined
the value of the one-fifth portion of such property

Brhaspati (XII. 8b) has also said: If (the recovery of a lost property is)

PURCHASE OF STOLEN ARTICLES 277

not reported (to the king by a person, making its recovery), he shall have to
pay a fine twice the value of that property

D. V. adds: When a person, knowing full well that the property, recovered
by him, does not belong to him, persists in claiming it as his own out of
greed, the above punishment of twice its value will apply but only one-fifth
of its value will be exacted from the person, doing so by mistake. It is thus
clear that the above-cited text of Katyayana is concerning the excess of repe-
tition of the offence

Brhaspati (XII. 3-4) has laid down*the following punishment for (some
kinds of) purchasers (of articles): No fault arises (in a purchaser), if the
thing has been purchased in exchange of the price, previously fixed by the
(king’s) supervisor (of prices of commodities). But a person becomes a
thief by buying a thing fraudulently. The following kinds of purchase only
become tainted with fault:

If it has been made within a house or outside the village, at night or secretly
from a known bad person or by the payment of a lower price.

D. V. adds: The above texts have been cited and explained by the Krtya-
sagara and Smrtisara, after having been prefaced with the remark viz. “In
some cases the purchase even from the real owner of a thing turns out to be
illegal.” D. V. concludes by remarking that the transactions in such cases
also are forbidden just like sale without ownership.

So Visnu (V. 166) also says: { a person secretly purchases something at a
lower price, both the seller and the purchaser are to be punished as thieves.

D. V. adds: This prescription does not appear to be a happy one, as a
seller, wishing to sell his commodity secretly out of fear of thieves and similar
other wicked persons, may thereby be (unnecessarily) tortured. So the Dhar-
makosa has cited this text, after having prefaced it with the remark, viz
“Tf the purchaser knowingly (i.e. with the knowledge of its stolen character)
buys on article (at a lower price), then he is also to be punished.” But??®
the Kalpataru has not added this proviso before this quotation. The Kama-
dhenu, the Ratnakara and other authorities have altogether omitted this text.

Narada says: One, purchasing a thing from the recognised servant of the
seller of that article (and not from the seller himself), becomes guilty of that
offence (i.e.'of the offence of illegal purchase).

Y4j. (II. 1685) also says: A person, buying a thing at a lower price secretly
or in an inappropriate time (velahine) from an unworthy seller (hindd),
becomes a thief. |

D. ४. adds: The word hindd means ‘from a poor person, not possibly
to be the owner of the commodity in question’. The word velahine implies
= [, ¥, reads ataeva (1.6. ‘therefore’) here, which should be Kintu (i.e. “but’).

278 DANDAVIVEKA

‘in a time, not usually fixed for transactions like (sale and) purchase’. So
by purchasing at a lower price a thing from a poor or wicked person or from
a servant of the seller secretly and in an inappropriate time, a person renders
himself to be almost a thief and analogically deserves the punishment of the
latter. |

५३]. (IL. 172) lays down the following punishment of the owner (of a lost
but subsequently recovered thing):

He, who, after having got back his stolen or damaged property from
another person, appropriates it witHout having reported its recovery to the
king, shall be fined ninety-six pana-s.

D. V. adds: The above punishment is for a person, who does not inform
the king in the following words: ‘This thing belongs to me. It was stolen
by such and such person’. According to the Krtyasagara and Smrtisara, the
non-reporting to the king amounts to hiding a thief and thus flouting the
orders of the king. This is also the view of the Kalpataru, the Ratnakara
(p. 111) and other authorities. ।

Brhaspati (XX. 9-12) says: In suits without any (clear) means of proof
(pramana-hine vade tu) the king himself should discharge the duties of the
judge in consideration of the comparative fault of the persons involved.
When a commodity has been exposed for sale in the row of merchants
within the knowledge of the royal officers and the residence of the seller
of the commodity is either not known or such seller is dead, the real owner
of that thing should take it back (from the purchaser, ‘in case he has
bought it) by paying him half of its price only. Both of them (1.e. the real
owner and the purchaser) will thus lose half of the real price of the thing in
such transactions, inasmuch as purchasing a thing from an unknown source
is a fault on the part of the purchaser and not preserving it in safe custody
(ca’ paripadlanam) is that of the owner. Both these facts have been pronoun-
ced by learned men as detracting from the actual price of a thing sold.

D. V. adds: The present texts (of Brhaspati) are concerning those cases
only, where owing to the lack of vigilance on the part of the owner some
person steals and sells his property (to some other person who thus buys
a stolen property), as is evident from the insertion of the words ca’ pari-
palanam [i.e. not preserving (it) in safe custody]. So these texts do not come
into conflict (with the previous texts of other authorities). Thus, the
present texts, beginning with the word pramdnahine, concern themselves
with such cases, where good faith of the owner or of the buyer and in |
the price does not appear to exist as in an overt purchase. In the absence
of all these factors, ‘the decision of the king is the final authority’, as laid
down by Vyasa, is to be relied upon. The phrase sama-nyiindadhikatveng

RESUMPTION OF GIFTS | 279

d
means ‘in consideration of the comparative honesty or dishonesty of the
persons involved’, according to the Ratnakara (p. 109).

Narada lays down on the resumption of gifts: The gifts, which are made
by persons, afflicted with fear, anger, bereavement, and disease or made
by them under co-ercion, as also those, offered as bribes or by way of joke
or out of mistake or due to fraud (having been practised upon the donor),
become null and void

D. V. adds that the Mit. has explained a bribe as ‘that amount of money,
which is given to the persons in authority for the removal of the obstacles
in the way of the accomplishment of the intended action

Narada himself has said on the topic of giving or promising to give bribes:
The amount of money, previously promised by a person to be given to
another person, should never be so given, if the intended action has not been
accomplished. If, however, such money has already been given (and no
benefit has been secured by its giver from its receiver), the latter shall be
forced to pay it back and also be fined eleven times the above amount—so
say the Gdrgiyamanava-s.

D. V. adds: The fine of ‘eleven times the amount’ (ekddasa-gunam) 1s
applicable to cases, where the bribe has been promised only but not yet
paid. It may be said in pursuance of the above texts of Narada that the
bribe, if already paid, turns to nullity (i.e. becomes un-repayable).( 7?)

Katyayana (V. 650 and cf. V. 651) has laid down: If any amount of money
has been promised (by any one) to be given (as bribe) to the person, who will
show the former the following classes of persons, such as a thief, a robber,
a man who has deviated from his usual livelihood, an adulterer, and a man
of bad character, or one who will spread false reports for a person,, that
money is not to be given, as it is a bribe only. (But if it has already been
given), neither the giver nor the intermediary is to be held guilty ‘but the
receiver shall certainly be punished

But it should be noted that a bribe, promised to be paid for receiving a
benefit in return, shall have to be paid. If that has already been paid, that
should not be taken back, as it serves the purpose of compensating for the
benefit to be received in return.” So the Krtyasagara and 18278. have
cited the above texts of Katyayana by prefacing them with the following
sentenees: |

Money given for the accomplishment of any kind of work, is not termed
a ‘bribe’. It may be given (with impunity) in particular kinds of work, as
explained by Katyayana (in the following texts).

Thus ends the fourth section on vivadapada-s (i.e. titles of legal disputes)
in the chapter on miscellaneous offences.

280 DANDAVIVEKA

¢
-VYAVAHARA-VISAYA-DANDA (1.8, punishments, connected with
judicial procedure)

Though the offence of violating the order of arrest (asedha-vyatikrama, 1.6,
like modern ‘jumping bail’) has been mentioned in the previous section of
uddhista-varga (p. 263 of D. V., text of Narada), yet it is being elaborated in
the present section for reasons of relevancy.

Brhaspati (I. 141) says: The king should have that person brought (before
him) (dsedhayet) by a warrant, beari ng his real or by an officer of his own,
against whom a complaint has been made (by another person) on the basis
of facts or of threatened injury. -

Narada (I. 47 also says: The plaintiff should cause to be restrained
(Gsedhayet) the person, not waiting for a decision or frowning upon his state-
ments and abusing him up till the issue of summons to and appearance of
him (in the court).

D.V. adds that this restraint is of four kinds, as (the same authority) (1.48)
has thus described them: These restraints in the form of arrest are of four
kinds and may be concerning place, time, exile and action. The person, so
restrained, should not transgress them.

D.V. adds: The Kalpataru has thus explained the following several kinds
of sthandsedha (i.e. restraint of place):

“You shall be punished in such and such a manner if you move away
from this particular place or go to the village, eat or read there.”

The Parijata and other authorities have also offered similar explanations.
The Ratnikara has also said almost the same as the above explanation:
“You are not allowed to go away from this place or reside in a distant
place, to eat or do any other work.” But the author of the Dipika has inter-
preted the term sthanasedha to mean ‘that very place in which the plaintiff
(the accused?) is not to be kept’, the term Kaldsedha to mean ‘that place
where he is to remain fasting’, the term ‘pravasdsedha’ as ‘the place where
he is exiled’ and the term ‘Karmasedha’ as ‘the place where he is restrained
from performing obsequial rites such as sraddha.’

The same authority (i.e. Narada) (I. 51) (the last line wanting in Narada)
has further said: The restrained person, if found to have transgressed the
restraint put upon him within the time, fixed for the purpose, shall be punish-
ed. But the person, at whose instance a person has been restrained, shall
be liable to be punished (by the king) if he has abused the power of restraint
(anyathad kurvan) or if he has caused an innocent person to be restrained.

This is the law.

RESTRAINT ON A PERSON 281

। @

D. V. adds that the phrase ‘has 2 01366 the power of restraint’ (anyathd
Kurvan) means ‘by resorting to the beating of the restrained person

Narada and K§atydyana (cf. V. 106) have thus illustrated the above
He, who restrains (the defendant) with such condemned acts as causing the
cessation of the normal activities of his several organs (of senses and actions)
such as talking and breathing freely, is to be held guilty and not (the defendant)
who breaks such restraint.

Narada (I. 49, 52-54) has thus listed those persons, who are not to be put
under restraint: A person, put under restraint while swimming across a
river or passing through a dreary forest or situated in a bad region or in
distress, shall not be held guilty, if he breaks the restraint, put upon him by
another person. The following classes of persons should not be put under
restraint and should not be consequently summoned by the king for that
purpose:

A person, about to marry, a diseased person, one, about to make Vedic
sacrifices, one, placed in distress, one, who has been complained against
by a third person, one, engaged in the performance of the duties of the
state, cowherds in grazing fields of the cattle, cultivators, engaged in culti-
vation (Sasyabandha), artisans, engaged in their work, soldiers while fighting
battles, minors, royal messengers, a person, about to make gifts, a man,
who has taken up a religious vow and a person, situated in an awkward place.

Katyayana (Part of V. 110) has thus described sasyabandha: One should
not make (the defendant) engage in the dispute, if he is a cultivator, ready
to reap the crop, as also with the approach of the rains, from the begin-
ning (of the sowing of seeds) to the harvesting (of the crops).

Artisans are of four kinds, as has been said in the following text (of this
authority) (V. 6324): Apprentices, more advanced students, experts (in
that craft) and teachers e

Vyasa has also said: A person, engaged in meditation or about to com-
mence a Vedic sacrifice, a pious person, a person in distress, one, who has
taken up a religious vow and one, about to make gifts—all these persons
are neither to. be complained against in a lawsuit, nor to be put under res-
traint and consequently not to be summoned (by the king) for that purpose.

Katyayana has further said: A defaulter (in repayment of debts) (Kdrya-
11020), one in distress and one, heavily engaged in festivities or in connec-
tion with administrative duties (are not to be summoned).

D. V. adds: The word kdrydtipdti means ‘one, whose lawsuit (for being
a defaulter in repayment of a debt) is pending (before the court)’. The above
(first) exception to the exercise of restraint is concerning cases of secured
debts.

36

282 DANDAVIVEKA

Yj. has thus prescribed in other tases: A plaintiff, who has just lodged
a suit (to the king), should never be put under restraint to depose-in a
disputed point of law. The person, who causes the restraint of such a person,
not fit to be so restrained, shall receive the same fine for causing restraint
(as is fit to be imposed on the losing party in the pending suit)

Katyadyana (cf. V. 589, V. 100 and cf. V. 101) continues |

A creditor, who harasses a debtor, १५8० who claims investigation in a court,
shall not only lose his claim but shall also be fined an equal amount of that
claim. A person, who, having been summoned by the king (to appear before
the court), though able to do so, flouts the summons, should be punished
by the king in proportion to the gravity of his offence according to the
legal prescription. The respective fines to be imposed upon him for cases of
slight, middling and heavy causes, shall be fifty, one hundred as minimum
and always at least five hundred (pana-s)

Vyasa furnishes some exceptions to the above general rule: (In case-of a
person, residing) in a region, ravaged by foreign army or stricken with dis-
eases or in the grip of a famine, the king should re-issue the summons and
Should not inflict punishment (on the person, failing to comply with his
order by the first issue of summons.)

Yaj. (II. 243) says: He, who puts into prison a person, not to be impri-.
soned, who lets loose a person, fit to be put into prison and either imprisons
or makes scot-free an arrested person, whose case is sub-judice (aprapta-
vyavaharam), shall be punished with the highest amercement.

D. V. adds that the word apradptavyavaharam means ‘a person, who has
been brought (to the court) in connection with a suit, which has not yet
been decided.’

[N. B.: This very word has been used in a previous text of Narada (p. 334
of D. V.), enumerating the persons not‘to be restrained, in the sense of a
minor’ (who has not yet reached the age of making legal transactions and
is hence exempted from all legal proceedings.)]

Visnu (V. 195) lays down: If the person, who has been appointed (by the
king for the detention of undertrial prisoners), releases a person, fit to be
punished, he shall be fined twice the amount to have been imposed on the
above person (if proved guilty) and if the judge realises an amount of fine
from persons, not fit to be so fined, that pest of human society shall also
be fined twice the amount, realised by him
` >. V. adds: The detention of litigants and undertrial prisoners follows
from the rule viz. the plaintiff and the defendant and the complainant
and the accused are to be kept in coustody till the hearing of the suit or of `

2389 D, V. misreads rnikam as badlakam

REPRESENTATIVES IN SUITS 283

the case. It seems that there can be no doubling of the sentence of death, so
in cases of releasing beforehand an arrested person, (who is subsequently re-
arrested and) sentenced to death, the above releaser should be fined one
hundred gold (coins), as the substitute®®® of the sentence of death and the
convicted person should then be put to death.

Yaj. (IZ. 295b) again says: He, who lets loose an adulterer (pdradGrika)
and a thief, shall be punished with the highest amercement.

D. V. adds: The above text is concerning the release of" a stealer of petty |
things and of a paradarika (i.e. an adulterer), who commits adultery with
unsecluded female slaves, belonging to an inferior caste

Narada (LI. 23) and Katyayana have laid down: If a person, who, not being
a brother or a son or the father of another person and not also having been
engaged by him (in a law-suit), uselessly deposes for him, he shall then be
liable to punishment.

Katyayana (V. 92) has furnished exceptions to the above general rule:
But slaves, menials, pupils, persons deputed and relatives, when they speak
(on behalf of another person, their master etc.), shall not be punished but
any other person than these (if meddling in a litigation) shall be punished.

Brhaspati (I. 142) lays down a special rule: Whether deputed or not depu-
ted, a relation or any other person shall be allowed to depose in favour of
the plaint (of the plaintiff) or of the reply (of the defendant) in the cases of
& minor, an idiot, a mad man, an old man, a woman, a child and a diseased
person. |

Katyayana (VV. 93a, 94 and 95) has laid down another special rule: No
representative (prativadi) (of the plaintiff or the defendant) shall be allowed
inthe trials ofthe following crimes where the man himself (Kartd), the plain-
tiff or the defendant, should engage himself in the dispute: Brahmana-murder
drinking wine, theft (steye), cohabitation with one’s superiors or teacher’s
wife (i.e. incest), murder, theft (steye), molestation of other men’s wives
partaking of forbidden food, abduction and defilement of maidens, abuse
and assault, counterfeiting of coins and measures and sedition.

D. V. adds: The word prativadi (though ordinarily meaning a ‘defendant’)
here means pratinidhift (i.e. a representative) and the word Kartd (though
ordinarily meaning an ‘agent’) here means abhiyuktah (i.e. the accused
person) (But it really means here ‘the plaintiff or the defendant.’) According
to the Ratnakara the second mention of the word steya is to emphasize
the gravity of this offence. But D. V. says that in fact the first mention
of this word is to be interpreted as ‘theft of gold’ (and not of other things of

> D. V. misreads° pratinidhitvena as° pratinesiddhena
= D. $, misreads tyajyate as tajyate

284 । DANDAVIVEKA.

inferior quality), as it has been classed with other offences, which are
grave sins (mahda-pdtaka-s) and such theft of gold is as sinful and heinous
as Brahmana-murder, man-slaughter, cohabitation with one’s teacher’s
wife and molestation of other men’s wives; the second mention is in con-
nection with ‘theft ofother things’ (which does not amount to a grave sin).

PUNISHMENT OF ASSESSORS

The punishment to be inflicted on.those persons (appointed by the king as
assessors in law-suits), who, after having received illegal gratification (from
either of the parties), pass wrong judgments in cases, has.already been dis-
cussed (by us) in the section on ‘overt thieves.’

On the apprehension of the receipt of such illegal gratification, Katyayana
(V. 70) has laid down: The judge, if found conversing in private with either
of the parties in a suit,not yet decided, is to be punished and also parti-
cularly the assessors (if they do the same).

The same authority (V. 79) has said elsewhere: When an assessor (Sabhya)
speaks out his wrong decision (regarding a case) out of affection (for a party),
or out of ignorance, greed (of money) or infatuation, he shall be punished, as
he is then to be called an asabhya (i.e. unworthy to be a member of the
court, alternatively meaning ‘a savage’)

Narada (cf. I. 67) has laid down the following punishment (for such per-
verse assessors): Those assessors, who deviate from the path of law (Smrti)
etc out of either love (or affection), greed or fear, are to be punished severally
by the imposition of fines, twice the amounts (to have been imposed) in
connection with the suits (vivddat).

D. V. adds: The particle adi (i.e. etc.), added after smptyapeta (i.e. deviating
from the path of law), includes ‘dcdra’ (i.e. customs). The author of the Mit.
has said: The word vivadat means ‘than the fine, which should have been
imposed on the plaintiff on his losing the case’ and not ‘than the money-
value of the suit’, as no pecuniary punishment (on the latter account) is
inflicted on the unsuccessful complainant in (criminal) cases like kidnapping
of women

Brhaspati (cf. XXII. 14) has said: All those assessors, who pronounce
unjust verdicts (anydyavadinah), are to be banished.

D. V. adds: The above punishment is to be inflicted in those cases only,
where (such unjust verdicts) charge the accused with the imputation of highly
tormenting grave sins or cause loss of his livelihood, or, if we take the word
anydyavadinah as, having been derived from the root vad with the addition
of the nini suffix, added to substantives to indicate the usual practice (sia),

PUNISHMENT OF ASSESSORS 285
®

meaning ‘in the habit of pronouncing such unjust verdicts’, that derivative
interpretation also does not come into conflict (with the imposition of the
severe penalty of banishment, prescribed here).

Again, in such cases where the defendant (i.e. the debtor) completely denies
the borrowing of gold (coins) in several instalments and the plaintiff (i.e. the
creditor) succeeds in proving his case in the lending of some instalments
only, the decision of the assessors, based partly on the truthful statement
of the plaintiff and partly on conjecture by way of ratiocination, becomes
somewhat different from the (expected) true finding, the supervisors (i.e.
assessors) of the suit do not become guilty.

So, after having said that ‘ratiocination may also be resorted to in arriving
at the truth of a case and should therefore be utilized wherever necessary’,
Gautama (II. 2.32) has laid down: So the king and the judge do not become
reprehensible (in such cases).

On the topic of the utterance of doubtful statements (sandigdhandftca
bhdsanam), listed above, Narada says:

(The king or the judge) should give out his judgment or verdict, based
on truth, after having made a full appraisal of the evidence in the suit. They
should never pronounce judgments, not based on truth (thus arrived at) and
the pronouncer deserves (the fine equal to) twice the amount (dvigunam).

D. V. adds: The dvigunam, spoken of here, is according either to the
money-value of the suit or to the (pecuniary) punishment to be imposed on
the losing party (in the suit).

The same authority further says: The amount of money, lost by a party
(in a civil suit) on account of the fault of an assessor, shall have to be com-
pensated for by the assessor concerned and a suit of the litigants, if finally
settled, should not be re-opened (na vicdlayet).

D.V. adds: The first part of the text means that the “‘money ‘lost’ (nasfam),
‘i.e. given to the winning party’, should be made over (by the assessor) to
the losing party” and the second part means that ‘the latter should not assail
i.e. re-open the above judgment’. This is (our) interpretation in accordance
with the text, as read in the Kalpataru, the Parijata and other works. But
the Vyavahara-dipika, following the Kamadhenu, has read pra-vicdrayet
for na vicdlayet and offered the following different explanation: “‘A suit,
even when once decided by an untruthful assessor, should be fully decided
again (pra-vicarayet).” Thus, according to this interpretation, this re-opening
of the matter is the punishment for the erring assessor. This second inter-
pretation is also right, as re-opening wrongly decided cases and (conse-
quent or subsequent) punishing the previous judge and assessors have been
laid down, But. the Krtyasagara has read the concluding portion as ne

286 __ DANDAVIVEKA

vicdlayet and explained the phrase as ‘should not disturb (the former judg-
ment), only if not protested against by the plaintiff.’

Katyayana. says on a similar topic: An (ignorant) person, who decides
cases, following the earlier judgments of the judges and the assessors and also
in the manner of their reasoning, renders himself liable to punishment (tu sa
dandabhak).

D. V. adds: The above text is concerning a person, who has not been
appointed as judge, such as Sidras and other persons. But there is also a
different reading viz. na sa dandabhak (instead of tu sa dandubkak), which
former reading is relating to Brahmanas and members of other superior
castes, adept in dharma (i.e. practices) and sastra (i.e. legal literature). So
there is no material difference by the adoption of this latter interpretation
also, as Brhaspati (I. 108a) has laid down: A person, conversant with
dharma (i.e. legal practices), whether appointed (by the king) or not, may
pronounce (judgments in law-suits) and also as Narada (III. 22), as quoted
in the Ratnakara, says: A person, conversant with Sastra (i.e. legal litera-
ture), may pass his judgment (in a law-suit), whether he has been appointed
(by the king for that purpose) or not. D. V. adds Somebody has utilized
the authority of the following text of .Katyayana (V. 6 of K. Sup.) and

accorded his approval to the cases of adjudication even by unappointed
persons:

(Katyayana’s test) |

“Those, who, not having been appointed (by the king), engage themselves in
the special duties of the latter and decide legal disputes, should be punished.”
(Opinion of that anonymous authority) “The above text is applicable only
to the persons, devoid of the knowledge of the legal practices and legal
literature only. So, where there is no apprehension of any miscatriage of
justice by its administration even by unappointed persons and where the
king either approves of such administration (of justice) with the general idea
that such (unappointed) persons are discharging his (i.e. the king’s) duties or
overlooks their conduct out of compassion.” The above author has invoked
the authority of the above-cited texts of Brhaspati and Narada, containing
the words ‘niyukto va’, in support of his arguments.

PUNISHMENT FOR ACCUSING HONEST WITNESSES |
Brhaspati (V. 21) says: If a defendant (धव्या) accuses honest witnesses,

summoned by the plaintiff, in spite of their being free from blemishes,
he shall be awarded the same punishments (tatsamam dandam).

PUNISHMENT FOR ACCUSING HONEST WITNESSES 287
। । e

D. V. adds: According to the Ratnakara, the phrase tatsamarm dandam
means ‘equal to the damages to be realised (from the losing party) in the
suit.” Thus it means in (criminal) cases like abduction of women ‘equal to
the fine (to be imposed) on the losing party’ as has been stated above, which
the reader is requested to consult.

Katydyana also says: One should not accuse (a witness) with false charges,
(dosena) for doing which the accuser becomes punishable or loses what
he is going to establish. ध

D. V. adds: The word dosena (i.e. with charges or faults) means ‘on the
basis of already proved facts and not of facts to be proved.’

Brhaspati and Katyayana also say: But such accusations of witnesses by
way of purging their already made depositions, on the basis of facts, well-
known to the assessors or current among the people, may be allowed to be
made by the assessors but not for correcting their future depositions (to avoid
the possible faults):

The above two authorities have thus described the possible faults: The
fault of dnavasthd (i.e. improbability) arises, when the latter witnesses
(i.e. witnesses of the defendant) are to prove the falsity of the former witnesses.
(i.e. those of the plaintiff), though the probable facts, supposed to subs-
tantiate that falsity, may be conjectured (by the assessors) beforehand, yet
other facts may also be adduced by the latter witnesses.

D. V. adds: Where there is no apprehension of the arising of the fault
of improbability (a@navastha) and other faults, (imputation of) such fault,
even though to be substantiated, may be allowed. Thus, the imputation
of impurity (i.e. falsity) on a witness, who, after having taken the oath of a
witness, and having actually deposed in a case, has been afterwards attacked
with a disease or assailed by another calamity, may be made (by an
assessor) on equitable grounds. Otherwise, the defendant (क्वा) may win
his case by simply saying that the witness had an attack of highly tormenting
fever on the previous night, in which case the fault of anavastha (improbabi-
lity) arises in pursuance (of the sanctity) of the oath, taken by the witness.

Katyayana (V. 379) further says: If any person accuses after the deposi-
tion the witnesses, who have not been found fault with beforehand and also
cannot adduce any (proper) reason (for not proclaiming them at first), he
shall be punished with the pirva-Sahasa, D. V. adds that according to the
Ratnakara the phrase pirvasdhasam means uttama-sahasam (i.e. the highest
amercement) (and not the first amercement).

PUNISHMENT FOR PROCURING FALSE WITNESSES

Katyayana (V. 407) says: He, who cites false witiesses through the greed of

288 DANDAVIVEKA

(winning) the cause, shall have his entire property forfeited (by the king)
and should be made nirvisaya.
०.४. adds: According to the Ratnakara, the expression nirvisayam means

‘debarred from lodging suits in (future) cases’. The above punishment
relates, according to D. V., to the repeated commission of the above
offence. In the first commission of the above offence, the following text
of Yaj. (II. 81) is to be relied upon

“The false witnesses and their procurer (Kija-kyt) are to be severally
punished with twice the amount of the fine to be imposed in the case.”

One, who cites false पध) witnesses, is a kitfa-kyt (i.e. procurer of false

witnesses).
PUNISHMENT OF FALSE WITNESSES

The topic of deposing falsely, after accepting a bribe etc. from the party,
has already been discussed (by us) in the section of ‘overt thieves’.

Manu (VIII. 120-1) has laid down the following punishments for deposing
falsely out of greed (of money): If (such false evidence has been given
by a witness) out of greed of money, he shall be fined one thousand (pana-s),
if out of ignorance (mohdt), two hundred and fifty pana-s, if out of fear, twice
the amount, involved in a fine of the middle amercement (i.e. 2 x 5001000
pana-s), if out of friendship, four times the first amercement (i.e: 4x 250 =
1000 pana-s) if out of lust, ten times the first amercement (=10 x 250=2500
pana-s), if out of anger, three times the next (param) (i.e. the middle amerce-
ment) (i.e. 3 x 500=1500 panas), if out of temporary loss of understanding
(ajfidnat), two hundred (pana-s) and if out of infatuation (नन), one hund-
red (pana-s) only are to be imposed on him as fines.

D. V. adds: The word moha means, according to Kullika Bhatta®*! and
other commentators ‘perverse knowledge.’ The Ratnakara has also ex-
plained the expression as ‘wrong knowledge’. But the Kalpataru has inter-
preted it as ‘absent-mindedness’. Though this authority and the Ratndkara
have explained the term param as ‘next to the (just-spoken) first amerce-
ment, 1.6. the middle. amercement’, yet GraheSvara Misra has interpreted
it as the highest amercement i.e. one thousand (pana-s) (and thus trigunam
param, according to him, means three thousand pana-s). Narayana Sarvajiia
has also meant the highest amercement by the. word param. The word
ajiidnam means, according to the Kalpataru, ‘temporary loss of understand-
ing’ but according to the author of the Mit., ‘non-maturity of understanding.’
The expression valisya means, according to the Ratnakara, infatuation due

331 Not found in Kullika’s comment.

PUNISHMENT FOR PERJURY 289

to the advent of youth’ but accofding to the author of the Mit.,‘ non-
generation of knowledge.’

Yaj. (II. 81) has laid down the following in cases of perjury, not arising
out of the previously described causes such as greed:

The perjurers are to be punished severally by the fines of twice the
values’ of the suits (vivadat) but a Brahmana perjurer is to be simply
banished (from the territory) (vivasyo brahmanas tatha).

D. V. adds: According to the auther ofthe Mit., the word vivddat means
in relation to ‘the fines to be imposed on the losing party in a suit’. It
seems that the punishment prescribed here is concerning suits involving
(recovery of) debts only, as the laying down of an amount is in such (civil)
suits (and not in criminal cases). The Krtyasdgara says that in all other
cases (including criminal proceedings) the following punishments (as laid
down by Katyayana) (vide p. 335 of D. V. above for this quotation) shall
be inflicted:

In trivial cases (of perjury) a fine of fifty (pana-s) only, in medium cases
(of such offence) that of one hundred (pana-s) and in most heinous cases
that of five hundred (pana-s) shall always be inflicted.

The clause vivadsyo brnhmanas tathad means that a Brahmana should not
receive any other punishment except banishment. But members of other
varnas should be awarded this latter punishment over and above the fine,
described above. Otherwise, the legally declared provision of extenuation of
punishment for a convicted Brahmana will be rendered useless. This com-
parative immunity of a Brahmana offender ‘is to be applied also to the
previously cited texts of Manu (VIII. 102-1), beginning with the words
lobhat sahasram [i.e. a fine of one thousand pana-s for (perjury committed)
out of greed], as the same author (VILI. 123) has, (almost just after writing
the former two texts), laid €own: A pious king should put to exile
(pravasayet) after having punished the members of the three (lower) varnas,
convicted of perjury, but should give the sentence of exile (vivdsayet) only
to a Brahmana, convicted of the same offence.

D. V. adds the following lengthy comments:

The punishments, enumerated for perjury due to various causes such as
greed (in the previously cited texts of Manu), relate to a single commission
of the above offence. but the present text (of the same author) concerns
itself with the repeated commission of the offence. So, according to Kullika
Bhatta’s interpretation (of the present text), the king should inflict the pecuni-.
ary punishments, recorded above and then banish the (convicted) members
of the Ksatriya and other varnas but should only banish the Brahmana
offender without imposing any such fines upon him. Narayana is also

37

290 DANDAVIVEKA
{ त

of the same opinion. But Govindaraja has said that (the king) should,
after having fined them as such, should (once) make them naked [which is
a far-fetched interpretationof the verb vivasayet, derived from the root vas
(to live), to mean vasas, (i.e. ‘wearing apparel’).] Medhatithi has, however,
explained vivdsayet as meaning vivdsanam kuryat on the strength of his
interpretation of vivdsanam as ‘taking away his wearing cloth’ or ‘breaking
his house’. But the Ratnakara 085 interpreted thz word just like
Kullika Bhatta. ८

The author of the Mit has made these remarks: The verb pravasayet,
(used in connection with the three other varnas), means “put to death’, as the
word pravasa has been used in the Arthasastra in the sense of ‘causing death.’
Yet it should be variously interpreted as ‘cutting off of the lower lip’, ‘mutila-
tion of the tongue’ and ‘severance of life from the body’ (i.e. putting to death)
in proportion to the gravity of the offence of perjury committed. The present
text is concerning repeated commission of the offence. The verb vivdsayet
(used in connection with Brahmanas only) means either ‘turn him out of his
own country’ or ‘(once) make him naked’, The latter sense is got by first
resolving the verb vivdsayet into (vasaso vigato vivasas’, (i.e. devoid of
cloth) and then forming from it a causative verb, meaning tam koroti
(i.e. making him devoid of cloth (vdsas)’ by applying the sitra Viz. navisthavat
pratipadikasya, resulting in the elision of the fi portion (i.e. the ending vowel a
in vivasa here) and changing it into vivds (a newly formed root). Or, another
interpretation may be suggested: The word vdsa, having been derived from
the root vas (to live) in the sense of ‘(people) reside here (vasantyasmin)’,
means a ‘house’ and hence the verb ‘vivdsayet’ means ‘shall break his
house

Having said thus much, the author of the Mit. concludes by saying that
a Brahmana (convicted of perjury), due to gfeed or other factors, should be
punished with fines, extending in the descending order from one thousand
(pana-s) (for single commission of the offence) but should both be fined and
exiled (or made naked or should have his house broken down) in cases of
his repeated commission of the offence. The above three alternative punish-
ments are to be inflicted in consideration of the caste (of the offender), the
thing (involved in the offence) and single or repeated commission of the
offence itself and similar other factors. Or, the punishments of fines and of
banishment are to be applied (indiscriminately) to the four varnas in lighter
and heavier types of the above offence

Yaj. (II. 82) has further said: A person, who, after having previously told
others some facts (known by him and relating to a case), suppresses them
(at the time of their actual delivery in the court) due to vitiating factors

PUNISHMENT FOR PERJURY 291

0 2
(tamovrtak), shall be fined eight times the punishment but a Brahmana
(offender) shall be simply banished.

D. V. adds: The word tamovrtah means ‘having his mind, distracted by
affection for the party etc.’ ‘Eight times’ should be construed in relation to
the amount of money, involved in that (civil) case, as that is relevant and
authori sed here. So the Ratnakara has explained it as such. But it has been
explained in the Mit. as ‘eight times the amount of fine to be imposed on the
losing party’. But Grahesvara Misra has expressed the following opinion in
his Vyavahara-taranhga: The ‘eight times’ (spoken of in the above text of Yj.)
is in relation to the several punishments, laid down in the text (of Katyayana),
beginning with ‘hine karmani pajicasat’ 0.6. fifty (pana-s) in trivial offences).
Even according to his (i.e. GraheSvara’s) opinion, the ‘eight times’ should
be construed as meaning ‘eight times the specific fines to be imposed in
(civil) suits, involving (recovery of) debts, which are of definite amounts,
as he himself has expressed that opinion in his interpretation [of the earlier
text of Yaj. (II. 81,)] concerning the words ‘prthak prthak’ (i.e. separately
or severally).

The vivasana of a Brahmana is ‘turning him out of the country.’ But
according to the author of the Mit., this vivdsana is of three kinds, viz.
making (the Brahmana offender) naked, breaking his house and turning
him out of the country, either of which should be carried into effect accord-
ing to the particular circumstances of the case under consideration. The
same authority has also said in connection with offenders of other varnas
that in cases of impossibility of inflicting the prescribed (pecuniary) punish-
ments on them (because of their poverty to pay them), such penalties as
causing them to perform laborious work, laid down for their particular
castes, tying them up with fetters, throwing them into prison etc. are to be
meted out to them. Aggravation of punishments may be obviously made
in view of the gravity of the offence. So this authority has explained the
suppression of facts (nihnava) (by a witness), as pointed out in the verb
nihnute in the above text of Yaj. (II. 82) as “excessive crookedness.”’

Narada (rnaddna V. 197) as quoted in the Krtyasagara, 1s also to the same
effect: He, who, after having previously stated to other persons some
(relevant) facts, completely suppresses (atinihnute) them at the time of his
actual deposition,*** shall be more severely punished, as he is a greater
culprit than an (ordinary) false witness.

Visnu (V. 179) also says: Forfeiture of the entire property is to be ordered
for false witnesses.

939 1), V. misreads sdkgitve as sdksitvam.
#3 >. $, misreads vineyo as vinayo,

292 DANDAVIVEKA

(

. D. V. adds: According to the Ratnakara, the above punishment is for
repeated commission of the above offence. Thus it is obvious that the
punishment, laid down by Y4j. ता. 82), is concerning the first commission
of the offence. But GraheSvara Misra has said that the previously prescribed
monetary punishment is to be inflicted on poor criminals but if possessed
of wealth,*™ the offenders are to have their entire property forfeited (by the
king). |

‘Manu (VIII. 108) and Narada have laid down: If disease, fire or death
of relatives of a witness occurs only a week after his giving false evidence,
he shall be compelled not only to pay the debt, involved in that (money)
suit but to suffer additional punishment. 7

D. V. adds: The occurrence of disease etc. is only an indication of the

impurity (i.e. falsity) of the witness and the (additional) punishments, laid
down in the above text, are from one thousand pana-s downwards, or twice
the subjectmatter of the (civil) suit in question or beginning with fifty (pana-s).
The idea is that when no certain conclusion about the falsity of the evidence,
adduced by a witness, is to be arrived at from visible after-effects of the
deposition, invisible (i.e. superhuman) proofs (such as ordeals) may be resor-
ted to for the determination of the appropriate punishments for such perjury.
So the above text of Manu and Narada has been quoted by Graheésvara
‘Misra for (advising the king) on the arrival at the truth of the deposition
after the lapse of a (reasonable) period of time.

` Bhavadeva has also said: If within a week of going through an ordeal
a witness is found to be attacked with a disease or assailed by any other
disturbing conditign, he is then to be stamped out as a false witness and as
such, he is to pay off the amount of debt (involved in a money-suit) and
to suffer additional punishment on that account. |

©
PUNISHMENT OF A WITNESS, WHO, THOUGH KNOWING (ALL) THE
FACTS OF A CASE, WITHHOLDS HIS EVIDENCE

Manu (VIII. 107) says: A person, free from any physical or judicial affliction
(agadah), not deposing in a suit (involving recovery of debt) within three
fortnights (=3 x 15=45 days), shall have to pay the entire (money of the)
debt along with its one-tenth part (dasabandhajica) as interest.

D. V. adds: The word agadah implies ‘absence of any unavoidable obstacle’
‘Dasabandham (or one-tenth portion) is (exacted from such a witness) as
interest on the debt in question, according to GraheSvara Misra. So it is

9८ Danda-sampattau, as read by D.V. is meaningless here and should possibly be dhana-
sampattau, ।

PUNISHMENT OF A NON-DEPOSING WITNESS | 293

wrong to take it in the sense of punishment, payable to the king. (cf. Kulli-
ka’s comment on this verse for this latter interpretation).

The following explanation of the Mit. on the following text (of Yaj. (II. 76)
is questionable:

(The text)

A person, not deposing (in a suit for recovery of debt), shall be compelled
by the’king to pay the entire debt along with its one-tenth part (sadasaban-
dhakam) on the 46th day (of the issue of summons to him) (i.e. just after the
expiry of the three fortnights allowed)>
(Explanation of the Mit.)

“‘The entire money of the debt along with its interest shall be caused
(by the king) to be made over to the lender by such (recalcitrant) witness.
The expression sadasabandhakam means ** ‘along with its one-tenth part’
and this one-tenth part is appropriated by the king himself, on the authority
of an earlier text of Yj. (IT. 42a) to the following effect:

The king should cause the debtor to pay an extra amount of ten per cent
of the money, proved by adjudication (i.e. decreed)***(to be paid back to
the creditor).” This latter text (४). I[. 42a) is concerning the realisation
of a citizen’s debt from his debtor, as is evident from the use of the word
sadhitat (i.e. proved by adjudication) in it, as the author of the Mit. has
himself prefaced this text with the following sentence viz. ‘“‘where the
creditor, being weak enough to recover his money from the debtor, causes
it to be so done by the king, the following punishment is to be inflicted upon
the latter.”

Katyayana (V. 405) has, however, laid down punishment (on such recalci-
trant witnesses): A person, who has witnessed a transaction but would not
depose as a witness, shall have to pay the debt (in dispute) and an equa!
amount of fine but in disputes other than this (i.e. other than those of debts)
he ahall be fined three hundre@ pana-s.

D. V. adds: The penalty, equal to the amount of the debt, is relating
to (the money lent out of) a minor’s property. In (criminal) cases like abduc-
tion of women, the fine (for a non-deposing witness) is three hundred pana-s
only.

The author of the Mit. has thus commented on the following text of
Visnu (VILI. 37ab): |
(Vigsnn’s text) |

Those witnesses, who though capable of giving evidence (in a suit), remain

०० 1D. $, misreads dasamdnsa-sahitarh dasamansaca as sadagsamdnsasca only.
०० D, V, misreads sGdhitdd dasakarmh as sddhitG@dagakam.

294 DANDAVIVEKA

silent (at the time of deposition), are equally vicious as perjurers and hence
deserve the same punishment as the latter.
(Comments of the Mit.)

“As it has been laid down in the above text ‘(they are like) perjurers
as regards punishment’, so the specific punishments, prescribed by Manu
(VIII. 120-1), beginning with the words lobhat sahasram (i.e. one thousand
pana-s should be imposed as fine, if perjury is committed out of gréed) or
twice the fines, imposed on a losing party in a suit, shall have to be prescribed
(in such cases of silence on the part of the summoned witnesses also for
a single commission of the offence) but both the fines and banishment shall
have to be ordered for repeated commission of the offence.”

According to the Ratnakara, the punishment is forfeiture of the entire
property (of the criminal), as laid down by Visnu (for perjurers in an
earlier text, p. 347 of D. V.) and also, according to this authority (i.e. the
Ratnakara), this earlier text of Visnu is concerning repeated commission
of the offence (Joc. cit.). But according to Grahesvara, the respective amounts,
(prescribed by Manu for the respective causes of the commission of the
offence of perjury), shall have to be realised as fines from poor culprits only,
who do not possess sufficient property (to be awarded the punishment of
the forfeiture of their entire property). All these have been discussed by us
in the just preceding topic (of perjury). |

Vyasa has laid down on the forging of documents: He, who forges
documents relating to the sale or mortgage of immovable property, should
have his offence proclaimed to the public and shall have his tongue, hands
and ankle-bone cut off.

D. V. adds: The mutilation of the tongue and other parts of the body
should be effected in consideration of the nature of the forging (and subyect-
matter of the document so forged). The several parts of the body, specified
in the above text, may be collectively or akernatively cut off. This is the
import of the text.

REVIEW OF JUDGMENT AND OTHER CONNECTED MATTERS

K4tyayana (V. 459) has laid down the following rule in cases, where victory
or defeat is decided by means of ordeals: The alleged criminal, who is found
innocent (by an ordeal) shall have to pay fifty para-s (as fee) but he, who
is found guilty (by the ordeal) shall be liable to pay a fine. |

The same authority (VV. 460-461) has prescribed the following list of
(special) fines (for the defeated party in several kinds of ordeal):

These are the respective penalties in the ordeals of poison, water, fire,

REVIEW OF JUDGMENT 295

balance, sacred libation, rice-grains and in the ordeal of taptamasa (heated
beans)

One thousand pana-s, ,six hundred, five hundred, four hundred, three
hundred, two hundred and one hundred (pana-s) respectively and a lesser
fine in the case of lesser ordeals (than these).

D. V. adds: The author of the Mit. has expressed the opinion that these
above several kinds of punishments may be applied cumulatively just like
that, prescribed by Yaj. (II. 11) in the gust following verse.

%2]. (I. 11) says: In case of denial (of the borrowing of money from the
plaintiff) by the defendant, the latter should have to make over to the king
the amount, proved by the plaintiff and the false plaintiff shall have to pay
a fine, twice the amount of the money, involved in the suit.

D. V. quotes the following comments of the author of the Mit. on the
above text

Even in cases involving the plea of a previous judgment (pran-nydya)
(modern ‘res judicata’) or a counter-charge, the fact (of borrowing) having
been denied by the defendant but proved by the plaintiff, the former shall
have to pay the actual amounts to the king. But if the plaintiff fails to prove
his case, he then becomes a false claimant and thus renders himself liable to
‘make over twice the money. claimed by him, to the king as punishment.
All these prescriptions are relating to recovery of debts only. Other punish-
ments have been prescribed for other titles of legal disputes. But such pay-
‘ments in the form of repaid loans and fines in relation to monetary trans-
actions are not possible in lawsuits, not involving any transaction of money.
[D. V. contains many misreadings in the above-quoted comments of the Mit.,
specially in the interchanges made by it of the words viz. arthi (i.e. plaintiff)
and pratyarthi (i.e. defendant)]

Manu (VILLI. 51 and 59) also ays: If a sum of money, (lent by the plaintiff
to the defendant but) denied by the latter, is proved®*? by the former, the
latter should then be made to hand it over to the creditor and pay some small
amount of fine (to the king) according to his means. But both the defendant
who denies a part of the actual money, borrowed by him and the plaintiff,
who makes a false claim on a portion of the money, lent by him, are to be
fined twice the amount of the portions of money involved, as both of them
are vicious

D. V. adds: All these prescriptions are concerning the wicked intention
of the parties. So the Ratnakara has said that “the punishments in the
form of the equal amount, twice the amount and some small amount
of fine are to be inflicted in consideration of the possession of merits or not
by the creditor and the debtor, convicted of bad motives.” If that is not

296 DANDAVIVEKA

possible, penalties are to be imposed ‘in consideration of the castes of the
parties involved. In cases of assertion or-denial of a claim due to forgetful-
ness and similar other causes, either of the parties, being not guilty, is not
to be punished. But the Kalpataru has expressed the opinion that if a
denial is made due to forgetfulness, unaccompanied with a fraudulent motive,
some amount of fine has to be paid by the denying party accordingsto his
means. But creditors often claim the repayment of their money, which
was not lent to other persons, due to fraudulent motive only and so they
are invariably to be fined twice the amount, claimed by them without any
consideration (of the possibility of the occurrence of forgetfulness).

Narada (IL. 37) has laid down this special rule about the Sidra offenders:
Those Sidras, who, lodge false complaints against Brahmanas (or members -
of the twice-born classes) should have their tongues cut off and they should
be placed on the stake by the king.

व}. (II. 305) has given this prescription on the review of judgments: In
cases of wrongly decided (dur-dysfdan) suits, the king should review the judg-
ments and should, -1 necessary, impose fines, equal to twice the amounts,
to have been imposed on the losing parties, on the assessors and the winners
in the previous consideration of the cases.

D. ४. adds: The phrase dur-dr stan (vyavahdran) means ‘those suits, in which
there is an apprehension of not having been justly decided, owing to the
transgression of the provisions of law and custom, due to (undue) affection
0 greed (on the part of the assessors).

The same author (II. 306) further says: The person, who, though lawfully
defeated in a suity.considers himself to be not so defeated, should be again
vanquished in the court and saddled with twice the amount of fine (to be
imposed on the losing party). |

Manu (IX. 234) has also said: The king should again decide those cases,
which have been wrongly decided by his ‘ministers or the judges and should
punish each of them a thousand (pana-s).

D. V. adds that the above prescription applies to the cases, involving those
offences, against which no specific fines have been laid down or to (criminal)
cases, like abduction of women, involving no transaction of money. But
Kullika Bhatta in his commentary on Manu has said that as forfeiture of the
entire property has been recommended for some classes of persons, specified.
in the following text, beginning with the words viz. “Those, who are engaged
in accepting bribes”, so the punishment, prescribed in the present
text of Manu, is concerning persons other than those, specified in the

former. न
Yaj. (II. 18) has further said: If the suit is with a wager, then the losing

` PUNISHMENT IN WAGER CASES 297

party shall be compelled to pay both the wager, made by himself (svapanafica)
and the fine (to the king) and the money lent, to the creditor.

D. V. adds: By making such statements, as. “If even without review
of judgment I do not repay this loan of yours’’, “If you can prove your case
of the entire loan, then only shall I make repayment of this sum to the
king,” the debtor does not repay his loan but only promises its repayment
and defers it, it is a suit with a wager. If in such a suit, contested by the
creditor, the debtor is defeated, he shall have to make three kinds of
payments: —

(1) A fine, equal to the money borrowed, due to the fact of his denial,
established by his defeat in the suit, (2) the money, stipulated in the wager
and (3).the money, which is the subject-matter of the suit. In case the creditor
is defeated, he shall have to pay the fine and the wager only but not the
money, said to have been lent by him.

So has Bhavadeva made the following remark, not on review of judgment
but in general terms:

*“*A law-suit may sometimes be accompanied with a wager on account of
the determination of the parties, with a statement like the following, “If
I am defeated in this case, I shall then pay you a.thousand (pana-s).” So
the king should then cause the party, which is defeated in such a case with a
wager, to pay the wager, made by the person himself and should impose
a fine upon him.” He (i.e. Bhavadeva) has then quoted the following text
of Narada (cf. I. 5), relating to a wager, expressed in general terms:

The party, which is defeated in a suit between two parties, made with a
wager, is to pay the amount of wager, made by it (only) and the (conse-
quent) fine also.

The author of the Mit. has thus explained the above-quoted text of Y4j.
(II. 18): By the insertion of the words svapanaiica, it is emphasized that
in cases where one party makes a wager of paying a hundred (pana-s) and
another party promises the payment of fifty (pana-s), then each of the
parties is to pay the respective amount, promised by it, and not more
than what has been stipulated by it.

Somebody has said on the authority of the following text of Narada
that ‘in cases where the plaintiff has promised to pay a fine, equal to twice
the amount, involved in the (money) suit, that promised amount should
have to be paid, as it is the wager here and Y4j.,’s text (II. 18), beginning
with the words sapanas cet [i.e. if (the suit] is with & wager), is also concern-
ing the review of a judgment and is similar in spirit to the text of Narada
व. 65) beginning with the word firitam (i.e. decided):

(Narada’s text) _
38

298 -DANDAVIVEKA

‘*He, who challenges a false case and a decision on testimoney of witnesses
as having been unlawfully decided, should pay .a fine, equal to twice the
value and thus win the case.”

(D. V. says that) this is wrong, because in another text of Y4aj. (II. 305),
beginning with the word dur-drysjan (i.e. wrongly decided cases), which has laid
down the prescription of a fine, equal to twice the amount, involved in the
- suit, there is no mention of a previously given consent on the part of the
plaintiff and a winning plaintiff cannot do so beforehand and moreover,
the word sapanasca (in the latter teXtof Yaj.) cannot be dissolved, like a
copulative compound, into dandasca panaficeti (i.e. both punishment and
wager) and also because the word pana (i.e. a wager) has got a definite
connotation, it cannot be otherwise interpreted, eventhough possible
to do so, resulting in the allocation of the above two texts of Y@aj. to
definitely different topics. An additional reason of the rejection of the
above opinion is that the text of Manu (VIII. 59), beginning with the
words yo yavan nihnavita (i.e. He, who denies etc.), has laid down
the punishment on the defeated party of paying twice the amount of the
suit, even without a review of the former judgment or a previous promise
of the plaintiff to pay such amount.

So it should have to be considered here, twice of what has been spoken
of in the above-quoted text of Narada, beginning with the word firitam
(a false case decided as true)

Somebody has thus answered the above question: ‘Twice the amount’
(dvaigunyam) is of the value of the thing, involved in the suit, as that is
relevant here and serves the purpose of a complement of that ‘twice the
amount’ and also because it is similar in import to that Jaid down in a
text of Yaj. (II. 306) , beginning with the words yo manyeta (i.e. He, who
considers etc.)

This interpretation is also wrong, because in spite of the existence of denial
and similar other factors in both the cases, when a defeated party, either
due to haughtiness or bad motive or in defiance of the verdict of the judge,
launches into a further dispute, it is but proper that its punishment in such
a case should necessarily be higher.

So the settled conclusion is that in a case of denial in a primary suit, twice
the amount is concerning the value of that very suit but where the denial
is made in a case of review of the former judgment, twice of the twice (four
times) the value of the suit should be the proper punishment, as that is rele-
.vant there |

The word firitam (in the above text of Narada) means “decided by means
of witnesses, documents etc. and almost followed by a punishment,” Other-

` CONCLUDING VERSES 299

wise the infliction of twice the punishment becomes inconsistent, neces-
sitating the unjust infliction of the same punishment in serious and light
offences. Thus, it is also settled that the above-decided twice of the twice
(1.6. four times) the value of the suit should also be charged as fine in the
offence, described in the text of Y4j. (IT. 306), beginning with the words yo
manyeta (i.e. He, who considers etc.). So the view that the pana 0.6.
wager), included in the words sapanas cet (Yaj. II. 18), should be taken
into account for the infliction of the pecuniary punishment of twice the
amount, spoken of, is dispensed with, because if we accept this view, we
do not stand in need of the promise having been made by a party and the
prescription, involving both the punishment and the party’s own wager,
becomes split up into two statements. In fact, the use of the word sapana-
$(cet) (in Yaj. II. 18) may be supported as “following a general injunction.”
Otherwise, the practice of making a wager, involving the payment of an
exorbitant sum, in cases, for which the sages have laid down light punish-
ments only, will go out of vogue. It cannot also be argued that the above
heightening of the amount of fine is in consonance with the text viz.
“whereas the rich persons (may pay etc.)’ (arthovanto yatah santo)™*, as such
aggravation of punishment may also be effected éven without the existence
of a wager

Here ends the vyavahdra-visaya (i.c. the fifth and last) section in the
chapter on Miscellaneous offences.

Those miscellaneous offences, which are mutually contradictory and hence
difficult to be enumerated and described even by hosts (of scholars), have
been exemplified (here) on the basis of their originating causes for the speedy
grasp (of the readers) at their intended senses.

Here ends the seventh chapter, entitled ‘punishments of miscellaneous
offences’, in the Dandaviveka, composed by Mahamahopadhyaya Vardha-
mana.

CONCLUDING VERSES

This treatise (vivekah) on the law of punishments (danda-vidhau) (1.6.
Danda-viveka) has been prepared by Sri-Vardhamana, son of Srimad-Bhaveéa
and sprung out of the family of Sri-bilva-pajfica, for (the persusal and satis-
faction of) the king of Videha (i.e. Mithila or modern North Bihar). (1)

Though this nibandha has been composed by consultation of other men’s
‘works only, yet some beauty is discernible here, having been generated by

` अम 7). V. misreads this clause (supplied from p. 51 of D. V.) as anubandho yatah sabhyo
Which is totally meaningless

300 ` | _ _DANDAVIVEKA

‘the citation of appropriate texts, just as a new and all-pervading loveliness
manifests itself out of the flowers, garlanded together over a crest. (2)

This nibandha has been made by the persuasive orders (of the above-
mentioned patron king) after my consulations with the following works:
The Kalpataru, the Kimadhenu, the work of Halayudha, the Dharmakosa,
Smyrtisdéra, Krtyasigara, Ratnakara, P&rijéta, the two (Smpti-) samhitas
of Manu and Yajfiavalkya with their (several) commentaries, Vyavahara-
tilaka, Pradipika and Pradipa. (3) =

Let the good men, after having gone through the above treatises and
(my) present work, give their opinions about the merits and defects of the
latter. (4). | |

If, after having understood the senses of (my) words, critics, with the
express intention of proclaiming their faults, become vociferous, (then
there is no harm, done to my work), (asI have the firm conviction that)
there will be a satisfaction of the learned in the present nibandha, after they
have consulted all the works (on thissubject), produced by earlier authors. (5)
Both the above two kinds of scholars will then become silent for ever, as
my request to the entire world is to appreciate the merits of the work,
leaving aside the fault-finding spirit. (6)

Here ends the Dandaviveka, composed by Mahamahopadhyaya
Sri-Vardhamana, the dharmadhikaranika and belonging to the Bilva-
paftcaka family.