Supreme Court: How to appreciate evidence if prosecution has taken far off resident as panch to seizure panchnama?

 In fact, the recovery of the weapons on disclosure of the Appellants itself becomes doubtful. The witness of Recovery Memo P.W.1 - Mohd. Ayub Khan was declared hostile and another witness P.W.10 - Chittar admitted that signatures were obtained on the memos and annexures at the Police Station itself. It is also pertinent to mention here that P.W.1 - Mohd. Ayub Khan was residing 4 Kms. away from the place of recovery and P.W.10 - Chittar was residing 8 Kms. away from the place of recovery and were also declared hostile. Prosecution failed to establish as to why none of the local persons were called to be the witnesses. The conduct of the prosecution appears to be extremely doubtful and renders the case as concocted, to falsely implicate the Appellants. {Para 24}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1327, 1369 and 1370 of 2008

Decided On: 13.07.2011

Mustkeem Vs. State of Rajasthan

Hon'ble Judges/Coram:

A.K. Ganguly and Deepak Verma, JJ.

Author: Deepak Verma, J.

Citation: AIR 2011 SC 2769,MANU / SC / 0795 / 2011,

[ 2011 ] 9 SCR 101,( 2011 ) 11 SCC 724

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Whether prosecution can prove recovery panchnama through evidence of investigating officer?

  As already stated, on 1st February 1967 the coat, sweater, shoes and socks of the accused and a blanket of the deceased were recovered in the presence of P.W. 2, P.W. 5, P.W. 8 and P.W. 28. After this they proceeded to the place indicated by the accused and recovered the blood stained dagger from under a stone, which was witnessed by them. P.W, 2 did not accompany the party as according to him he had to go to make arrangements for the funeral of the deceased. On the way to the place from where the dagger was to be recovered the party met one Bhag Singh P.W. 12 who also accompanied them to the place of recovery and in the presence of Roshan Lal (who was not examined) Amar Chand, P.W. 8, Bhag Singh, P.W. 12, and P.W. 28, the dagger was recovered and a Memo Ex. P. 28 was prepared and attested by the aforesaid witnesses. The High Court rejected the evidence of these recoveries under Ex. P. 6/A and P. 28 because P.W. 2, P.W. 8, P.W. 13 and Roshan Lal the driver of P.W. 2, were all connected with the deceased and are not therefore independent or impartial witnesses. It thought that the Investigating. Officer should have called independent and impartial witnesses preferably, and if possible, from the locality, as it could not be said that they were not available or if available would not be willing to be witnesses and that in any case calling of the same persons to witness several searches or recoveries, is objectionable, and would render the search or the recovery doubtful and suspect, if not invalid. {Para 8}

9. Further having held this it nonetheless said that there was no injunction against the same set of witnesses being present at the successive enquiries if nothing could be urged against them. In our view the evidence relating to recoveries is not similar to that contemplated under Section 103 of the Criminal Procedure Code where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate. In an investigation under Section 157 the recoveries could be proved even by the solitary evidence of the Investigating Officer if his evidence could otherwise be believed. We cannot as a matter of law or practice lay down that where recoveries have to be effected from different places on the information furnished by the accused different sets of persons should be called in to witness them. In this case P.W. 2 and P.W, 8 who worked with the deceased were the proper persons 'to witness the recoveries as they could identify some of the things that were missing and also they could both speak to the information and the recovery made in consequence thereof as a continuous process. At any rate P.W. 2 who is alleged to be the most interested was not present at the time of the recovery of the dagger.

IN THE SUPREME COURT OF INDIA Criminal Appeal No. 67 of 1969 Decided On: 07.12.1971 Himachal Pradesh Administration Vs. Om Prakash

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Whether contents of panchnama are proved if panch witnesses have not deposed what they have seen on the spot?

Unfortunately neither the learned First Class Magistrate nor the Police Prosecutor who conducted the prosecution cared to prove the opponent's admission contained in the panchama through the panch when he was being examined on behalf of the prosecution. The panchnama was bodily admitted into evidence and the panch was merely asked to identify the signature below it. This procedure is entirely illegal. A panchnama can never be treated as substantive evidence of the facts recorded therein. These facts have to be proved independently of the panchnama by the testimony on oath of the panch who had seen these facts and who was a party to the panchnama. The Panchnama is useful only to corroborate or contradict the panch witness or to refresh his memory.

 Gujarat High Court

Kadiya Kanbi Bhavan Manji vs Ismail Mamad And Anr. on 11 January, 1954

Equivalent citations: 1955 CriLJ 274

Author: Baxi

Bench: Chhatpar, Baxi

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Whether seizure panchnama can be proved by evidence of investigating officer even if panch witnesses turn hostile?

 As pointed out earlier, based on the disclosure statement of Accused No. 1, MO-1-dagger which was kept hidden in the haystack of fodder in the loft of the cattle shed behind the house of Accused No. 1 had been seized under Ex.-P9-Panchnama in the presence of panch witnesses PW-8-Chandrappa and PW-9-Mahadevappa Needgera. The said panch witnesses have not supported the prosecution case and turned hostile. MO-2-dagger and MO-3-handle of the axe were recovered from the scene of occurrence under Ex.-P7-spot panchnama. On behalf of the Accused, learned Senior Counsel contended that the evidence of PW-17-PSI as to the recovery of MO-1-dagger at the behest of Accused No. 1 is doubtful and when PWs 8 and 9 have turned hostile, no weight could be attached to the alleged recovery of MO-1-dagger. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat and Ors. MANU/SC/0871/2010 : (2011) 11 SCC 111, it was held as under:

33. In Modan Singh v. State of Rajasthan MANU/SC/0126/1978 : (1978) 4 SCC 435 it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra MANU/SC/2255/2000 : (2001) 9 SCC 362.

34. In Anter Singh v. State of Rajasthan MANU/SC/0096/2004 : (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10)

10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.

35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1066 of 2009

Decided On: 08.08.2019

 Mallikarjun  Vs.  State of Karnataka

Hon'ble Judges/Coram:

R. Banumathi and A.S. Bopanna, JJ.

Citation: (2019) 8 SCC 359

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Supreme Court: Persons holding clerical posts can be called independent Panch witnesses

 There is no force in the contention that persons holding clerical posts could not be called independent witnesses on the ground that they would be under fear of disciplinary action if they did not support the prosecution case. The respectability and verasity of a witness is not necessarily dependent upon his status in life and it cannot be said that clerks are less truthful and amenable than superior officers. 

Supreme Court of India

Hazari Lal vs Delhi Administration on 15 February, 1980

Equivalent citations: 1980 AIR 873, 1980 SCR (2)1051

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Golden Rules for appreciation of Evidence of Panch witness

"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute no for the purpose of helping the indicated person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty are not independent person. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent on the police or other officials for any purpose whatsoever."

Thus, summing up the ratio of the judgments cited above, and proper interpretation of the independent character of the witnesses, some important aspect will have to be considered and kept in view, it can be enumerated for consideration. Its limited listing would not be a proper one. There would be other factors also which would weigh at the time of considering the independent or dependent character of the witness who had acted as a panch witness for police in raids or seizures. They can be numbered but cannot be limited. (1) the status of such witness in the society, (2) whether such witness is amenable to police influence, (3) whether such witness has ground to be afraid of police or such reading agency - Whether such person has any cause to beg for the favour of police or such raiding agency, (4) whether such person can afford to displease the police or such raiding agency, (5) whether such person can remain fearless and can refuse the request of police or such agency to act as panch witness for untruthful case but has accepted to act as panch witness only for helping the cause of law and justice in truthful case. (6) whether such person has any independent source of livelihood or whether he is dependent on police or such raiding agency for his livelihood or his status in the society, (7) whether the witness has regard to the rule of law and therefore has acted as a panch witness or a witness, (8) whether such a witness is law abiding person and himself happens to be a disciplined and law regulated person, (9) whether he is found to be law breaking person, whether there is any suspicious things in his ways of livelihood, behaviour or conduct. (11) whether police or such raiding agency had asked him the questions about his impartiality to acting as a panch witness or his participation in former cases of traps, raids and seizures.

9. On these and other relevant grounds the Court should examine evidence of such witness cautiously and carefully when it has come in the evidence that such witness has acted as panch witness in some other cases prior to the case in question. If he happens to be a person convicted or if he happens to be a Court bird or happens to be tainted on above mentioned points, the Court has got to be on its guard in accepting his evidence. Acting as panch witness in previous cases does not by itself and alone disentitle him of creditworthiness. A citizen cannot be stamped to be a liar unless his evidence has been examined with proper approach guarded by normal human experience and prudence of prudent person.

Bombay High Court

Benard Chapanga vs The State Of Maharashtra on 15 July, 2002

Equivalent citations: 2003 (2) ALD Cri 121

Bench: J Chitre

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Whether investigating officer can prove seizure panchnama if panch witnesses turn hostile?

This Court, in Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657, held that even if panch witness turned hostile, the evidence of the person who effected the recovery would not stand vitiated. After considering the scope and ambit of Section 27 of the Evidence Act, 1872 this Court enumerated the following principles to be adhered to. "16. The various requirements of the section can be summed up as follows:

a. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

b. The fact must have been discovered.

c. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.

d. The person giving the information must be accused of any offence.

e. He must be in the custody of a police officer.

f. The discovery of a fact in consequence of information received from an accused in custody must be deposed to."
SUPREME COURT OF INDIA

Tulshiram Sahadu Suryawanshi & ANR. Vs. State of Maharashtra

[Criminal Appeal No. 507 of 2008]

P. Sathasivam,J.

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