Bombay HC: What are pre-requisite which panchas must depose before the court for proof of panchnama?

PW-3 Ashok Atmaram Patil apart from confirming his signature on the panchnama has not corroborated the contents of the panchnama and on the contrary has categorically stated that the panchnama was not read over to him before it was signed by him. He was declared hostile by the prosecution. The prosecution has not bothered to examine the other panch who was stated to have been present at the time of recording of the said panchnama and there is no explanation for not producing the said panch before the Court. Besides, mere production of panchnama on record with the confirmation of the signature of one of the panchas thereon cannot amount to confirmation either of the contents thereof nor about the truthfulness of the contents of the panchnama. It is necessary for the panchas to broadly state in their substantial evidence, it not minutely, the facts which they might have noticed prior to the recording of the panchnama and such evidence should be disclosed from the testimony of the panch recorded in the Court. In the absence of such substantial evidence being found on the record, mere placing of the panchnama on record by itself would not be considered as a corroborative evidence.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 588 of 1992

Decided On: 30.07.2004

Ramesh Babu Desai Vs. State of Maharashtra

Hon'ble Judges/Coram:

R.M.S. Khandeparkar and R.S. Mohite, JJ.

Author: R.M.S. Khandeparkar, J.

Citation: 2004 CRLJ (Bom)4593,MANU/MH/0439/2004

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Whether the court can rely on call details of mobile used in crime if prosecution fails to prove connection between owner of that Sim and custody of accused of that SIM?

  As regards the call data and the ransom calls, we may note that Santosh Jadhav, Assistant Nodal Officer, Reliance Communication, was examined as PW-17 and spoke of the call data of mobile number 8305620342 from which the ransom calls were made. According to him, the SIM card with the said mobile number was given to one Bhuraji, son of Deepu, whose address was House No. 433, Sanjay Gandhi Ward, Tehsil Jabalpur. He produced Bhuraji's 'Customer Application Form' along with his attached Election ID card. These documents were marked as Ex. D6. The call data of 28.03.2013 showed that this SIM card was used on the mobile handset with IMEI No. 358327028551270. He marked in evidence Ex. P35 in that regard. Therefore, the mobile number from which ransom calls were made was in the name of one Bhuraji, s/o. Deepu, and his address was available. However, the police did not even attempt to contact Bhuraji or examine him to find out how and why his SIM card was used for making the ransom calls. Even more startling is the fact that, though PW-17 placed on record actual proof of the allotment of this mobile number to Bhuraji (Ex. D6), no such steps were taken by the police to establish the link between Om Prakash Yadav and mobile number 9993135127, which was attributed to him. PW-15 baldly stated that the said mobile number was allotted to Om Prakash Yadav but did not mark in evidence any document in proof thereof. Surprisingly, he had stated in his deposition that he had brought the certified copy of the application form and the ID used when this SIM card was allotted to the subscriber, Om Prakash Yadav, but the same were not marked. In effect, no palpable connection is established between the said mobile number and Om Prakash Yadav. In the absence of such a tangible link, the call data report (Ex. P31) and the contents thereof are practically useless in establishing the prosecution's case that the ransom calls were made from Om Prakash Yadav's mobile phone handset by inserting Bhuraji's SIM card, with mobile number 8305620342, therein.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

Read full Judgment here: Click here.

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Supreme court lays down requirements of valid panchnama as per S 100 of CRPC

  In Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay MANU/SC/0268/2013 : (2013) 13 SCC 1, this Court noted that the primary intention behind the 'panchnama' is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. It was further noted that the legislative intent was to control and check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. It was pointed out that a panchnama can be used as corroborative evidence in the Court when the respectable person who is a witness thereto gives evidence in the Court of law Under Section 157 of the Evidence Act. This Court noted that Section 100(4) to Section 100(8) Code of Criminal Procedure stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Code of Criminal Procedure for the purposes of a valid panchnama:

(a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real.

(b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses.

(c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama.

(d) The I.O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the main I.O.

(e) Place, Name of the police station, Officer rank (I.O.), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama.

(f) The panchnama should be attested by the panch witnesses as well as by the concerned IO.

(g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses.

(h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

Read full Judgment here: Click here.

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Whether Panchnama is admissible In Court Where Witnesses Merely Acted As Attestors And Did Not Disclose How Objects Were Discovered?

  Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how. Ergo, no lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

Read full Judgment here: Click here.

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Whether the court can rely on discovery at the instance of accused if it was done when he was not accused of any offence and he was not in police custody?

 In the case on hand, though Rajesh Yadav was taken to the police station, be it on 29.03.2013 or even earlier, he could not be said to be in 'police custody' till he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an 'Accused' in the FIR and was not 'Accused of any offence' till his arrest. Therefore, it was his arrest which resulted in actual 'police custody', and the confession made by him, before such arrest and prior to his being 'Accused of any offence', would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception Under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact. In consequence, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not 'Accused of any offence' and was not in 'police custody' at the point of time he allegedly made a confession. {Para 27}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

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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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Leading Supreme Court on release of seized property on Supratnama

To avoid a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

Valuable Articles and Currency Notes

11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.

12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:--

(1) preparing detailed proper panchnama of such articles;

(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and

(3) after taking proper security.

13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.

14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.

Vehicles

15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrate who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.

19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

20. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. It identity could be no the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (crl.) 2745 of 2002

Decided On: 01.10.2002

 Sunderbhai Ambalal Desai  Vs. State of Gujarat

Hon'ble Judges/Coram:

M.B. Shah and D.M. Dharmadhikari, JJ.

Citation: AIR 2003 SC 638,(2002) 10 SCC 283,

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Leading Judgment on basic concept of panchnama

These provisions demonstrate that a search and seizure under the said Act has to be carried out in the presence of at least two respectable inhabitants of the locality where the search and seizure is conducted. These respectable inhabitants are witnesses to the search and seizure and are known as "panchas". The documentation of what they witness is known as the panchnama. The word 'nama', refers to a written document. Its type is usually determined by the word which is combined with it as a suffix. Examples being, nikah-nama (the written muslim marriage contract), hiba-nama (gift deed, the word hiba meaning - gift), wasiyat-nama (written will) and so on. So a panchnama is a written record of what the panch has witnessed. In Mohan Lal v. Emperor MANU/MH/0124/1940 : AIR 1941 Bom 149, it was observed that "[the panchnama is merely a record of what a panch sees...." Similarly, the Gujarat High Court in the case of Valibhai Omarji v. The State MANU/GJ/0067/1963 : AIR1963Guj145 noted that "[a] Panchanama is essentially a document recording certain things which occur in the presence of Panchas and which are seen and heard by them." Again in The State of Maharashtra v. Kacharadas D. Bhalgar MANU/MH/0222/1978 : (1978)80BOMLR396 , a panchnama was stated to be "a memorandum of what happens in the presence of the panchas as seen by them and of what they hear".

16. We have examined the meaning of the word panchnama in some detail because it is used in Explanation 2(a) to Section 158BE of the said Act although it has not been defined in the Act. A panchnama, as we have seen is nothing but a document recording what has happened in the presence of the witnesses (panchas). A panchnama may document the search proceedings, with or without any seizure. A panchnama may also document the return of the seized articles or the removal of seals. But, the panchnama that is mentioned in Explanation 2(a) to Section 158BE is a panchnama which documents the conclusion of a search. Clearly, if a panchnama does not, from the facts recorded therein, reveal that a search was at all carried out on the day to which it relates, then it would not be a panchnama relating to a search and, consequently, it would not be a panchnama of the type which finds mention in the said Explanation 2(a) to Section 158BE.

IN THE HIGH COURT OF DELHI

ITA 1198/2008

Decided On: 12.11.2008

Commissioner of Income Tax

Vs.

 Shri S.K. Katyal

Hon'ble Judges/Coram:

Badar Durrez Ahmed and Rajiv Shakdher, JJ.

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Whether recovery panchnama becomes inadmissible in evidence if it is not signed by accused?

It was then argued that the recovery Panchnama (Exh.76A) did

not contain signature of the accused and for which reason the same

was inadmissible. Even this submission does not commend to us.

In that, no provision has been brought to our notice which

mandates taking signature of the accused on the recovery

Panchnama. Admittedly, signature of accused was taken on the

statement recorded under Section 27 of the Evidence Act (Exh.76

and 77 respectively). The statement of accused No.3 (Exh.77) bears

his signature. Therefore, even this argument does not take the

matter any further.

 [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 467/2010

Kishore Bhadke  Vs. State of Maharashtra 

Bench: Jagdish Singh Khehar, Arun Mishra, A.M. Khanwilkar

Dated:Dated: January 3, 2017.

Citation: 2017 ALLMR(CRI)1316 SC, 2017 CRLJ988 SC,
(2017) 3 SCC760

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Bombay High court Guidelines to magistrate for recording evidence of witness relating to S 27 of evidence Act

Even though we are disposing of these appeals by this order it is necessary, considering the interpretation of section 27 of the Evidence Act and also from our experience regarding the manner and the mode in which discoveries under section 27 of the Evidence Act are proved in the trial Court, either before the Magistrate or before the Sessions Judge, we deem it necessary to give certain guide-lines and directions in this regard to all the trial courts. Those directions are as follows:-

(A) The prosecutor conducting criminal cases where a recovery or discovery under section 27 of the Evidence Act is to be proved, should be careful in seeking compliance to section 27 strictly from the concerned witnesses viz. the panchas and the Investigating Officer who are intended to be examined for that purpose.

(B) The prosecutor should be careful in eliciting from the witnesses whether panchas or police officer, the exact words used by accused with reference to the articles involved in the crime, place where they are kept and the manner in which they are kept.

(C) The Judge of Judges (including Magistrate and Sessions Judge recording evidence) should take down the words used by witnesses whether panchas or police officer regarding disclosure made by accused to them or regarding statement made by accused to them which led to the discovery of objects, the place where the objects were kept and the manner in which they were kept.

(D) The trial Court should bear in mind that mere proof of panchanama as a document itself is not sufficient and the contents of the panchanama viz. the statements of accused under section 27 of the Evidence Act must be proved and brought on record by the witnesses in their oral testimony.

(E) The prosecutor and the trial Court should not permit summary of the evidence of the witnesses to go on record in so far as the oral evidence is in respect of section 27 of this Act. Whatever witnesses state in the Court in this regard as the words of the accused or the statements of the accused should be taken down in its full original form and there should be no abridging or curtailment in that regard while recording the evidence.

(F) While examining memorandum of discovery under section 27 of the Evidence Act, that part of the statement of the accused which is liable to be excluded as inadmissible should be specifically mentioned in the deposition.

(G) When the arguments started in this case we found that there was no map either sketch map, rough map, or map drawn according to scale of the scene of offence or the spot where the murder took place. This created handicap and obstacle in appreciation of evidence, and therefore, we were required to visit the spot, and hence it is necessary to give further directions to the Investigating Officers and the Police Officers that in every offence where capital punishment is prescribed and on considering the nature of the offence and facts of the case, the Investigating Officers should prepare a map or a plan depicting true and correct picture of the scene of offence, surrounding areas and the places where the witnesses claimed to be present. These directions should be circulated to the Commissioner of Police or Inspector General who in turn will communicate all the Investigating Officers within his jurisdiction.

These guide lines are only regarding the steps to be taken while recording the evidence and they are not to be construed in any manner limitation or liberties of the trial courts in appreciating the evidence that has come on record. All these directions should be scrupulously followed by all the concerned.

Bombay High Court

Shri Shankar Gopal Patil & Others vs The State Of Maharashtra on 14 October, 1999

Equivalent citations: 2000 (5) BomCR 360, 2000 BomCR Cri

Bench: D Trivedi, D Deshpande

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Whether police officer can prove seizure panchnama?

 Learned counsel for the appellants has vehemently argued that in some of the recoveries, though a large number of people were available, but only police personnel were made recovery witnesses. Thus, the whole prosecution case becomes doubtful. The term ‘witness’ means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in Court, or otherwise.

In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, AIR 1995 SC 1930, this Court dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.

(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan v. Superintendent of Customs, AIR 2007 SC 2040).

11. Thus, a witness is normally considered to be independent unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause to bear such enmity against the accused so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence.

Supreme Court of India

Madhu @ Madhuranatha & Anr. vs State Of Karnataka on 28 November, 2013

Citation; 2013 (4) Crimes 571 SC

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Whether crime no. can be mentioned on seizure panchnama later on?

 As regards point number (i), Mr. Deshpande, learned counsel for the appellant relies upon certain observations in Nathiya's case (supra). It is observed there : "In the present case, the F.I.R. Ex. P. 16 was admittedly recorded at 1 p.m. on 28-2-87 i.e. after the police party had reached the police station after making the recoveries. But, the recovery memo Ex.P. 1 bears the number of the F.I.R. The same is true of Ex.P. 2, Ex.P. 3 and Ex.P. 4. If the F.I.R. was registered after the alleged recoveries had taken place and after the accused-appellants had been apprehended, then those documents could not have recited the number of the F.I.R. at all. The prosecution has not explained this grave and serious discrepancy. The possibilities are that either F.I.R. had been recorded prior to the alleged recoveries and arrest or the at the F.I.R. number was inserted in these documents after the F.I.R. had been registered. Both ways, it seriously reflects upon the veracity of the prosecution story and creates a goods deal of doubt if recoveries had been made in the manner alleged by the prosecution, PW 5 Hamir Singh was under a duty to explain this discrepancy but he has not cared to do so. PW 1 Bijraj Singh, who is said to have accompanied Hamir Singh during the seizure proceedings has categorically admitted that the police party had gone back to police station after recovery memos, site plan, Fard Halat Moka had been prepared. If it is so, the number of F.I.R. recited in these documents was definitely a later interpolation which discredits the prosecution case." With respect, we do not agree with the above view expressed in Nathiya's case that this seriously reflects upon the veracity of the prosecution story and that it creates a good deal of doubt. Let us take the case of the articles. They were seized and sealed on the spots. Thereafter they were taken to the police station and the C.R. number was entered thereon. If they are required to be inspected and initialled by another officer then this would be done still later. If such initialling is required to be done at a specified place on the packing or labels, then such place would have to kept blank. Even in the case of a document it may require to pass through several stages and certain endorsement would be required to be made at each stage. This does not adversely reflect upon the veracity of the prosecution story at all. Further in the present case PSI Khot has explained as to how the number came to be stated later on on the Panchanama and labels. If the crime register number on the Panchanama is required to be entered at the time of drawing up the Panchanama then in such cases no Panchanama can be made on the spot. Accordingly we reject point No. 1 as having no merit.

Bombay High Court

Ali Hussain Sayyed vs State Of Maharashtra on 3 November, 1992

Equivalent citations: 1993 (1) BomCR 732, (1993) 95 BOMLR 12, 1993 CriLJ 277

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