Whether it is mandatory to prepare and prove spot panchnama in offence U/S 294 of IPC?

 Section 294 in The Indian Penal Code

 [294. Obscene acts and songs.—Whoever, to the annoyance of others—

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.]

As per this section offence should occur in a public place. Hence the prosecution must prove that crime happened in a public place. Therefore it is mandatory for investigating officer to prepare spot panchnama to show that offence occurred in a public place. The prosecution can also prove that incident happened in a public place by adducing other evidence.

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Whether scene mahazar can be used to cross examine investigating officer as his previous statement?

As per Section 145 of the Indian

Evidence Act, a witness may be cross-examined as to

'previous statements' made by him in writing. That means,

as per Section 145 of the Indian Evidence Act, only a

previous statement in writing of such a witness can be made

use of for contradicting such a witness.


      8.     The next provision is with regard to Section 155

(3) of the Indian Evidence Act, which says that the credit of a

witness may be impeached by the adverse party or with the

consent of the Court by the party who calls him, by proof of

former statements inconsistent with any part of his evidence

which is liable to be contradicted. There also, only in case

of a previous statement, the provision under Section 155(3)

of the Indian Evidence Act can be pressed into service.

      9. Matters being so, the said documents marked as

D30 and D31 in evidence, even if those documents are

admissible under Section 65B(4) of the Indian Evidence Act

as an electronic record, the same cannot be made use of as

a previous statement within the meaning of Section 145 as

well as Section 155(3) of the Indian Evidence Act.

Admittedly, those DVDs contain the matters recorded by the

investigating officer or some other matters available at the

scene of occurrence during the preparation of the scene

mahazar.      A mahazar cannot be treated as a previous


statement at all.    What was seen by the person, who

prepared the mahazar, are recorded in the mahazar. It is

only a document.

      10. Only when the versions by the person, who has

prepared it, are recorded in writing in the mahazar, it can be

treated as a previous statement. In such case, if the

document contains the previous statement of the person,

who prepared the scene mahazar, the defence may be able

to make use of it under Section 145 of the Indian Evidence

Act to contradict the witness or under Section 155(3) of the

Indian Evidence Act to impeach the credit of the witness.

When it is only a scene mahazar and when those

documents were recorded as things, which were available at

the scene at the time of the preparation of the scene

mahazar, the present request of the accused to make use of

it under Section 145 or Section 155(3) of the Indian

Evidence Act is not legally sustainable.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                      PRESENT:

                        MR. JUSTICE B.KEMAL PASHA

          8TH DAY OF DECEMBER 2015

                                           Crl.MC.No. 7647 of 2015 ()
                                              

      MOHAMMED NISSAM Vs  STATEOF KERALA
Citation:2016 CRLJ 4319

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