Chapter 8 - Trial and Torture to Elicit Confession

[Sanskrit text for this chapter is available]

Whether an accused is a stranger or a relative to a complainant, his defence witness shall, in the presence of the complainant, be asked as to the defendant’s country, caste, family, name, occupation, property, friends, and residence.^[1] The answers obtained shall be compared with the defendant’s own statements regarding the same. Then the defendant shall be asked as to not only the nature of the work he did during the day previous to the theft, but also the place where he spent the night till he was caught hold of. If his answers for these questions are attested to by reliable referees or witnessess, he shall be acquitted. Otherwise he shall be subjected to torture (anyathā karmaprāptaḥ).

Three days after the commission of a crime, no suspected person (śaṅkitaka) shall be arrested, inasmuch as there is no room for questions unless there is strong evidence to bring home the charge.

Persons who charge an innocent man with theft, or conceal a thief, shall themselves be liable to the punishment for theft.

When a person accused of theft proves in his defence the complainant’s enmity or hatred towards himself, he shall be acquitted.

Any person who keeps an innocent man in confinement (parivāsayataḥ śuddha) shall be punished with the first amercement.

Guilt against a suspected person shall be established by the production of such evidences as the instruments made use of by the accused, his accomplices or abettors, the stolen article, and any middlemen involved in selling or purchasing the stolen article. The validity of the above evidences shall also be tested with reference to both the scene of the theft and the circumstances connected with the possession and distribution of the stolen article.

When there are no such evidences and when the accused is wailing much, he shall be regarded as innocent. For owing to one’s accidental presence on the scene of theft, or to one’s accidental resemblance to the real thief in respect to his appearance, his dress, his weapons, or possession of articles similar to those stolen, or owing to one’s presence near the stolen articles, as in the case of Māṇḍavya, who under the fear of torture admitted himself to be the thief', one, though innocent, is often seized as a thief. Hence the production of conclusive evidences shall be insisted upon. (Tasmātsamāptakaraṇam niyamayet=hence punishment shall be meted out only when the charge is quite established against the accused?)^[2]

Ignoramuses,^[3] youngsters, the aged, the afflicted, persons under intoxication, lunatics, persons suffering from hunger, thirst, or fatigue from journey, persons who have just taken more than enough of meal, persons who have confessed of their own accord (ātmakāśita), and persons who are very weak—none of these shall be subjected to torture.

Among the spies, such as harlots, suppliers of water and other drinks to travellers, story-tellers, hotel-keepers providing travellers with boarding and lodging, any one who happens to be acquainted with the work similar to that of the suspected, may be let off to watch his movements, as described in. connection with misappropriation of sealed deposits.

Those whose guilt is believed to be true shall be subjected to torture (āptadoṣam karma kārayet). But not women who are carrying or who have not passed a month after delivery.

Torture of women shall be half of the prescribed standard. Or women with no exception may be subjected to the trial of cross-examination (vākyānuyogo vā).

Those of Brahman caste and learned in the Vedas, as well as ascetics, shall only be subjected to espionage.

Those who violate, or cause to violate, the above rules shall be punished with the first amercement. The same punishment shall be imposed in case of causing death to any one by torture.

There are in vogue four kinds of torture (karma): Six punishments (ṣaṭdaṇḍa), seven kinds of whipping (kaśa), two kinds of suspension from above (upari nibandhau), and water-tube (udakanālikā ca).

As to persons who have committed grave offences, the form of torture will be nine kinds of blows with a cane; 12 beats, two thighs: two knots; 20 beats with a stick of the tree (naktamāla); 32 beats on each palm of the hands and on each sole of the feet; two bindings, the hands, the legs being joined so as to appear like a scorpion; two kinds of suspensions, face downwards (ullambane cale); burning one of the joints of a finger after the accused has been made to drink rice gruel; heating his body for a day after he has been made to drink oil; causing him to lie on coarse green grass for a night in winter. These are the 18 kinds of torture.^[4]

The instruments of the accused, their size, weapons, dress, and identity, shall one understand from Parchment Register.^[4]

Each day a fresh kind of the torture may be employed.

Regarding those criminals who rob in accordance with the threat previously made by them, who have made use of the stolen articles in part, who have been caught hold of in the very act or with the stolen articles, who have attempted to seize the king’s treasury, or who have committed culpable crime, may, in accordance with the order of the king, be subjected once or many times to one or all of the above kinds of torture.

Whatever may be the nature of the crime, no Brāhman offender shall be tortured. The face of a Brāhman convict shall be branded so as to leave a mark indicating his crime: the sign of a dog in theft, that of a headless body in murder; that of the female part (bhaga) in rape with the wife of a teacher, and that of the flag of vintners for drinking liquor.

* After having thus branded to a wound and proclaimed his crime in public, the king shall either banish a Brāhman offender or send him to the mines for life.^[5]

[Thus ends Chapter VIII, “Trial and Torture to Elicit Confession,” in Book IV, “The Removal of Thorns” of the Arthaśāstra of Kauṭilya. End of the eighty-fifth chapter from the beginning.]

Footnotes and references:

[1]:

The Munich Manuscript reads, “Sākṣmā”; Accordingly the passage means, “Tn the presence of the complainant, the defendant’s witnesses, whether local persons or foreigners, shall be asked as to their country, caste..”

[2]:

N. I, 1, 42.

[3]:

The Munich Manuscript reads “Mandāparādha,” a person guilty of a minor offence.

[4]:

The text is very obscure here.

[5]:

Vi. 5, 2-8; N. Par. 41.