PREAMBLE
‘PANCHNAMA’
plays very important role in criminal justice delivery system, more
particularly genuineness and accuracy of investigating agency could be define
from the ‘PANCHNAMA’ what they have recorded during investigation. Duly proved
PANCHNAMA entrusts genuineness of investigation which helps to prove case
beyond all reasonable doubt. ‘PANCHNAMA’ is very important aspect of criminal
investigation; it corroborates main evidence if duly proved.
To
reach at complete understanding of the subject, first of all we must examine
the literal meaning of ‘PANCHNAMA’. It can be plainly said that, ‘record of
observation by at least five people.’
In
well-known encyclopaedia of Gujarati
language ‘Bhagvadgomandal’ ‘PANCHNAMA’ has been described as:
પંચનામું; પંચના ઠરાવનો કાગળ paper
of decision or opinion of PANCHAS.
But
here we are concern only with the different ‘PANCHNAMA’ prepared by
investigation agency whilst they are investigating in the criminal offence, so
we must derive elements of Panchnama from respective procedural Law.
As
‘PANCHNAMA’ is in the form of document which has been prepared during
investigation it plays very important role in establishing guilt of accused.
Moreover sometimes ‘PANCHNAMA’ becomes key in the appreciation of evidence by
the court.
KINDS
OF PANCHNAMA PREPARED BY INVESTIGATION.
Investigation
while investigating they perform different kinds of duty. Main functions of
investigation are to
A) Observe
crime scene investigation
B) Collect
samples from crime scene for forensic investigation.
C) Search
of place and seizure of things.
D) Search
of suspected person.
E) Search
of Accused and seize things or articles found from his possession.
F) Perform
raid up on secret information.
In
all above important functions perform by investigation agency, they have to
prepare ‘PANCHNAMA’ in order to collect concern record of investigation so
as to use for refreshing memory during trial. There are different kinds of
Panchnama prepared during investigation, which are categorized as search, seizure,
recovery, discovery, arrest, inquest, test identification parade. Out of these
some of them are a part of mandatory procedure laid down in different provision
of Cr.P.C and others are performed to established genuineness of investigation.
Mainly
following Panchnama prepared by investigation Agency.
1 Code of Criminal Procedure Act, 1973 [here and after in short Cr.P.C.] section 100 – During search in closed place
When
any officer authorised for search of any place by warrant under the provision
of sec 100(4) it is mandatory for the officer making such search to call upon
two or more independent and respectable inhabitants of the locality and perform
search. He may issue order to any person for such Panchnama.
That,
search shall strictly be made in the presence of Panch and list of all things
be prepared and signed by concern Panch witnesses. Copy of this list also to be
provided to occupant of place. Moreover it is also provided u/s 100-8 that, if
any person without reasonable cause refuse or neglect to attend and witness a
search he shall be deemed to committed offence u/s 187 IPC.
As
per provision Panch witness who has accompanied such search need not attend court
unless he specially summoned.
2)
Cr.P.C Section 102 – Seizure
Panchnama of the property which may be alleged or suspected to have been stolen
or found under suspicion of commission of offence.
Under
this provision police officer may seize any property which he suspected to have
been
A)
Stolen,
B)
Which may be found under suspicion of the commission of offence.
It
is mandatory for every police officer to report such seizure to the
magistrate having jurisdiction. Such police officer may give custody
thereof to any person on his executing Bond undertaking to produce before court
u/s 102(3)Cr.P.C.
3)
Cr.P.C Section 174 - Inquest Panchnama
when any person died by committing suicide, killed by another reasons.
When
police officer received information that any person has committed suicide, or
has been killed under suspicious circumstances raising reasonable suspicion
that some one has committed an offence, he shall after give information to
nearest magistrate to conduct inquest. And such magistrate shall proceed to the
place where dead body of the deceased person is laid and there in the presence
of two or more respectable inhabitants of the neighbourhood shall make an
investigation followed by the report of apparent cause of death. Such report is
called inquest Panchnama.
4) Cr.P.C
165 - Panchnama of search
without warrant for the purpose of investigation.
Under
this provision Police officer investigating the case in certain circumstances
empower to search any place with in the limit of his police station and that
such thing can not otherwise obtained without undue delay, such officer may
after recording in writing grounds of his belief and specifying in such writing
and perform search as mentioned in sec.100.
5) Cr.P.C
166 - Panchnama
of search by order to other officer by incharge of police station or
Investigation officer not below the rank of PSI, beyond jurisdiction.
Officer
in charge of police station or I.O not below the rank of Police Sub Inspector
may if he feel necessary to search beyond his jurisdiction he may request to
make such search to concern in charge of respective police station, and if he
has reason to believe that delay occasioned by other police officer, it shall
be lawful to make any search beyond jurisdiction. Copy of list which has been
prepared in such search shall send to nearest magistrate empowered to take
cognizance of the offence.
6) Evidence
Act Section 27 - Discovery or recovery of any thing, information of
which is obtained from accused.
It
is constitutional right under article 20(3) which provides that no person
accused of any offence shall be compelled to be a witness against himself. So,
time and again constitutionality of provision laid down u/s 27 of evidence act
has been questioned in Apex court. As this section information received by
accused if proved against him. Apex court affirms this provision in the
landmark judgement of Nisa Stree Vs. State Of Orissa 1954-sc-279.
It
is a rule of evidence that confession obtain by inducement, threat or promise
is irrelevant in criminal proceeding moreover if confession made to police
officer shall not be proved against any accused. Further, unless the confession
made before magistrate, any confession made during custody shall not be proved
against such person. These all are rule of evidence laid down in sec 24, 25 and
26 of evidence Act, but sec 27 is exception. When any person accused of any
offence whilst in the custody of police give any information which prier
unknown and subsequently as per his information anything discovered in
consequence of information received, that information may be proved whether not
not it amounts to confession.
To
receive information from accused which is relevant and which prier unknown to
investigation and in consequence to search that thing panchnama is to be
prepared which is called discovery panchnama
Sec
27 of the evidence act entitles I.O to introduce so much of the information
received from the accused person in to evidence whereby the fact is discovered.
But any other information of confession which is not relevant to the facts
discover will not be admissible. The only object behind this exception is to
provide guarantee furnished by discovery of fact or object in pursuance to the
information received from accused.
Following
are the important aspects of discovery panchnama:
i) Person
accused of offence must be in custody.
ii) He
must have given information which is in consequence discovered.
iii) Information
which is not covered can not be discovered.
iv) Information
which to be consequently discover can not be easily seen or discovered without
the help of accused.
v) Discovery
must be of some fact which the police had not previously learnt from other
source.
vi) Confessional
statements which are not connected with any discovery of fact or object should
not be permitted to be introduced by incorporating the same in panchnama.
How
to prepare ‘Discovery Panchnama’
Discovery
Pnachnama is prepared in two parts. First part of Panchnama called as
preliminary or primary Panchnama and latter part is called secondary Panchnama.
First of all information which is received from accused be recorded in the
primary panchnama and all information obtained by the accused be recorded be
description in preliminary panchnama mention time and date with signature.
Thereafter in consequently search be made and detail of that search also to be
mentioned in detail secondary panchnama. If thing found as per information
prier given then discovery is proved and that portion of information obtain
from accused may proved against that accused.
7)
Panchnama of crime scene
As
soon as report of any cognizable offence is registered in police station before
PSO, the first and foremost duty of PSO is to direct any police officer to
inquire in the matter and approach crime scene as soon as possible.
Inspection
of Place where crime has been committed is very important to properly
investigate the crime, as well the material collected from crime scene also
play important role in trial as those all are considered strong documentary
evidence and corroborative piece of the prosecution evidence.
Crime
scene panchana should be prepared by two or more respectable local persons and
observation given by victim witness or complainant who was well aware of crime
scene show crime scene, and it should be recorded by PANCHAS in presence of
police officer.
Crime
Scene Panchnama should be proved by panch witness or concern police
officer.
8)
Panchnama of Muddamal
Whenever
any muddamal recovered of which police officer has reasonable suspicion having
been used in commission of crime,panchnama is prepared. In this panchnama all
detail of muddamal article is mentioned. If panchnama is proved during
trial, it becomes important relevant evidence of prosecution.
9)
Panchnama of identification of muddamal
When
any valuable muddamal is recovered or in the matter where it is important to
decide identification of recovered muddamal panchnama is prepared.
10)
Panchnama of physical condition of accused when arrested.
To
comply with the provision u/s 51,52 and when accused is arrested in particular
physical condition which is require to be taken on record this panchnama
becomes much helpful.
Under
sec 51 when person is arrested and immediate bail has not been given, then
police officer who has arrested the person may search him and place in safe
custody all article, other then necessary wearing apparels. For this purpose
panchnama is being prepared. Moreover u/s 52 when any person arrested in any
offence and at the time of arrest he is found in possession of offence weapon
then also arrest panchnama becomes helpful in proving possession of offensive
weapon. To register injury up on person of accused also arrest panchnama is
important evidence.
PROCEDURE
TO RECORD PANCHNAMA
In
the course of prosecution when any witness who is summoned to witnessed any
panchnama, it is very important for prosecutor that how to conduct prosecution
in such case.
First
of all we must consider legal position for the proof of panchnama. That
is, As per Sec.100(5) any witness who has prepared panchnama shall not
compulsorily require to attend court unless specially summoned by the courtso
also, in sec.165 it has been laid down to follow procedure as per sec.100.
Therefore, it is crystal clear from this provisions that, panch witness are
require to be examine to prove contents of panchnama.Panchwitness in the course
of prosecution be first of all examine in the witness box be asked whether he
has made any panchnama in the present of investigator? Thereafter he be shown
Document of panchnama and his signature.. If he recognizes and state facts
contain in panchnama, it is enough to prove it. But if he forgets the content
of that panchnama his memory can be refresh by showing document with permission
of court, in this situation also panchnama is proved. During examination in
chief witness affirms his signature but even after giving chance to refresh his
memory, not support prosecution then he may be asked question with permission
of court u/s 154 which can be asked in cross examination and by this way
prosecution can impeach his credit.
What
is a result when PANCH witness turned hostile?
This
argument we very often heard by defence counsel in the court-room while he is
arguing in defence and sometimes also in the judgement of criminal court that,
Panch witnesses are turned hostile; and therefore it create serious doubt in
prosecution case. But if we consider actual position of‘Decided
Ratio’ time and again it has been reiterated in the judgements of Hon.
Apex court as well as our own high court(Gujarat Highcourt) that, only by
turning hostile or by not supporting prosecution case by Panch witness is not
fatal, if testimony of police witness who prepare panchnama and conducted
search, seizure, arrest, recover or discover found trustworthy and truthful and
clear doubts regarding panchnama.
In
the matter of State Of Gujarat Vs.Satish @ Kalu @
Hathoda Bhikhabhai Patel, Citation:2006-GLR-1-816 our highcourt observes that,
‘32 It
is well settled that merely because the panch witnesses do not support the
case of the prosecution, the case of the prosecution need not be thrown
over-board as unreliable. It must be realized that the phenomenon of panch
witnesses turning hostile to the prosecution is not unknown and is ever on the
increase. It needs hardly to be emphasized that the decision of a case does not
depend solely on the question whether the panch witnesses support the
prosecution or turn their back on it. If the decision of the case were to
depend solely on the testimony of panch witnesses regardless of the evidence of
police officers, in theory, it would be giving a right to veto to the panchas
so far as that question of culpability of an accused is concerned, which is not
permissible in criminal jurisprudence. It is well settled that without
good ground being pointed out, testimony of police officer, if otherwise found
to be true and dependable, cannot be discarded by Court on the ground that he
is a police officer.’
In
the serious cases of Arm Act, NDPS ACT, ACB Panchnama plays very
important role. Hon’ble Gujarat Highcourt in one another case State Of Gujarat Vs.Brahmin Babulal Haribhai,
1997-GLR-3-1956 laid down guideline for appreciation of such cases in this circulated
judgement that, ‘It is but natural that in
such serious cases like the one under the N.D.P.S. Act and the Arms Act, where
a panch even if he is honest and truthful, would never dare, like to give
evidence in the open Court against the accused, who in all probability,
obviously and always may be connected with some underground dreaded criminals,
resulting into conviction and sentence which could ultimately easily boomerang
upon him and his family members putting their lives, limbs and liberty in
danger at any time, at any place for giving evidence implicating the accused ..
Quite rightly so because in case if any such apprehended things happen, who is
indeed going to protect, and save lives of such witnesses from being victimized
by the convicted accused . Under such tale-telling circumstances, the Court
should not readily discard the evidence of the police witnesses, merely because
it finds that the panch witnesses do not support the prosecution more
particularly when there is no reason to doubt the credibility of the police
officer who actually caught accused red-handed .’ (see para- 06)
IMPORTANT
CASE LAW
1) Aghnoo Nagesia Vs.State Of Bihar 1966-AIR(SC)-0-119
This is a landmark judgment regarding admissibility of the
content of Discovery/Recovery which is obtained during police custody of
accused which is tested on the touchstone of judicial as well as constitutional
scrutiny and remain intact till today. Ration laid down in this judgment is
“confession or an admission is evidence against the maker of it if it
admissibility is not excluded by some provisions of law - no part of the
confessional statement is receivable in evidence except to the extent that ban
of S. 25 is lifted by S. 27 of the Act - test of severability that if a part of
report is properly severable from the strict confessional part then the
severable part could be tendered in evidence is misleading and the entire
confessional statement is hit by S. 27 of the Act.”
2) Mohd.Aslam Vs.State Of
Maharashtra,:2001-SCC-9-362 Police officer's evidence about recovery - panch
witnesses to recovery panchnama turned hostile - held, evidence of police
officer not vitiated.
3)State Of Gujarat Vs.Satish @ Kalu @ Hathoda Bhikhabhai Patel,
Citation:2006-GLR-1-816
4) State Of
Gujarat Vs.Brahmin Babulal Haribhai, 1997-GLR-3-1956
CONCLUSION
As
discussed above panchnama is a documentary evidence which can be proved in the
court of law by testimony of concern Panch witnesses or Investigation Officer
who has investigated case or proceed over the inquiry i.e- T.I. Parade, arrest,
search, seizure etc. , as the case may be. It can also be use to refresh memory
during proceeding. Duly proved Panchnama establish genuineness of investigation
procedure. Search, seizure, recovery and discovery are strong corroborative
evidence to prove prosecution case.
If
investigation agency enthusiastically efforts to record genuine PANCHNAMA and
follow all requirements of law in its preparing it would works as sharp and
shining sword in the hands of prosecuting officer, who is vigorously fighting
to prove guilt of accused. While formal and stereotype routine panchnama and
its regular hostile Panchas are serious headache for prosecution and mockery of
judicial system. We hope time will change to situation and routine
panchnama would be moved out from police investigation as well as investigation
and judiciary both develop an eye to justify criminal investigation and trial
which leads towards social security to people and enhance trust of common man
in criminal justice delivery system.
Last
but not least, I could not prevent myself to reiterate “SATYANNASTI PARO
DHARMA”, The quotation of Upnishada Rishi which is adopted by our
department. May The Goddess of Justice enlighten all of us.
Source: lawyersclubindia
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