Introduction
The word panchanama is not defined anywhere in law. The word panchanama has significant value as it is used by almost all the courts in number of cases. Not only the Criminal Courts but also the Civil Courts rely on document named panchanama to check veracity and truthfulness of the action taken by Officers of State or Officers of Court. The word Panchnama literally means a “record of observation by five people”. Panchanama is essentially a document recording certain things which occur in the presence of the Panchas and which are seen and heard by them. The word panchanama consists of two words, panch and nama. In Sanskrit the word panch means respectable person and nama a written document. In criminal cases this panchanama has very important value. The panchanama accounts state to things which were found at particular place at particular time.[i]
A Panchnama is essentially a document recording certain things which occur in the presence of Panchas and which are seen and heard by them. Panchas are taken to the scene of the offence to see and hear certain things and subsequently they are examined at the trial to depose to those things and their evidence is relied upon in support of the testimony of an Investigating Officer. A Panchnama recorded on such an occasion is in its turn relied upon in support of the evidence of the Panchas as a statement previously made by them under Section 157 of the Evidence Act[ii].
In criminal law the panchanama has corroborative value. The Code of Criminal Law, 1973 also does not define panchanama anywhere. But the same is incorporated in section 100[iii] of the Code. The section 100 is part of chapter VII which titles Process To Compel The Production Of Things. In this chapter the power to carryout search of particular places is given to officers as laid down sections 93, 95, 97 and 98 of the Code. The provision of panchanama is made to convince court that officer have in fact have carried out such search or made such seizure.
In Mohanlal Bababhai v. Emperor[iv], Beaumont, C. J. and Sen. J., observed thus:
“A panchnama is merely a record of what a panch sees. The only use to which it can property be put is that when the panch goes into the witness box and swears to what he saw, the panchnama can be used as a contemporary record to refresh his memory.”
In The State of Maharashtra v. Kacharadas D. Bhalgar[v], 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.
Object behind making Panchnama
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, with or without warrant 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. The legislative intent was to control and to check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of article.
Moreover Panchnama is an important document because it informs the person from whose premises the articles are seized or the person searched as to the name of the person or the building etc. where the search was carried out and the officers who were authorized and had carried out the search and the articles, if any, seized.
Procedure and Contents of a Panchnama
The procedure for preparing panchanama is not stated in any Act. But Section 100 subsection 4 and subsection 5 of the Code of Criminal Procedure, 1973 provides for panchnama in cases where search is done. The attesting witness i.e., the panchas are to be two or more independent and respectable persons. In the case where there is no eye witness to the offence and the case totally based on circumstantial evidence then such panchnama carries immense value. It is also important that after preparation of panchanama the panchas should read its contents. If the panch is illiterate, then such panchanama should be read over to him and there should be an endorsement that the contents of panchanama were read over to them. In case where at time of making panchanama there was no source of light then it should be mentioned as to how the source of light was managed to prepare panchanama.
‘Panchas’ should be independent and respectable people. They should normally belong to the locality and/or neighbourhood of the place where the panchanama is drawn. There is however no bar in getting panchas from distant places also if need be or to overcome the non-availability of local panch witnesses. The panchas should, however, be,-
- Intelligent
- Literate as far as possible
- Respectable citizens
- Should possess an understanding and of impartial nature
- Must be with good antecedents. No convictions earlier.
- Should not be interested /prejudiced in the matter they are attending to.
- Should not be easily influenced by pecuniary / other considerations.
- Should not be a minor.
- Acceptable to the religious sentiments of the owner of the house.
- Free from contagious diseases and infirmities as to effect their being proper panchas (for instance deaf, mute, blind etc.)
- Should have no relationship either with the place or persons searched.
- Complainant or owner of the house should not be made a pancha
- Well-to-do or affluent persons may not necessarily be respectable persons,
- No objection if panchas are Government servants.
In case no Panchs (Witness) are available when required, the Officer-in-charge shall conduct the search and seize the articles without Panchs (Witness) and draw a report of entire such proceedings which is called a Special Report.
Any search and seizure operation invades constitutionally protected and cherished right of privacy. Administrative lapse even of minor nature when there is invasion of the said right does lead to criticism and allegations. It will be salutary and proper that whenever a search is made under warrant a copy of the search warrant be furnished to the occupant or the person searched.
Site/Spot Inspection Memo/ Naksha Mauka
This panchanama is generally drawn by Investigating Officer when he visits the informant or the person who has knowledge about place of crime. When such informant or such person shows the Investigating Officer place of crime then in presence of two panchas the Investigating Officer draws spot panchanama. In this panchanama there are details of the position of scene of crime after the crime. For example if there is allegation of theft then generally in such panchanama it is found that the articles on the place of crime were scattered and cupboard or safe was broke open. So also in accident cases the tyre marks are often mentioned in this panchanama which shows that accused was driving his vehicle in speed or he tried to avoid accident. This panchanama corroborates the fact that incident had taken place.
How Panch Nama is proved
A panchanama can be proved by examining the panch witnesses in the Court. Panchanama can be submitted in court as documentary evidence in pursuance of the oral submissions of the witness or witnesses. Basically a Panchanama is a record of what the Panchs (Witness) see and the same can be proved only when the said Panchs stand in the witness box and testify on oath as to what they saw during the Panchanama. The main intention behind conducting Panchanama is to guard the case from unfair dealings on the Part of the Officers. The Panchanama can be used as a corroborative piece of evidence. It cannot be said to be a substantive piece of evidence, and hence relying only on the Panchanama in absence of any substantive evidence cannot attract conviction.
Whether it is necessary to be an eye witness to the crime in order to be a Panch (Witness to the Panchnama/Memo)
The procedure for drawing a panchnama is Panchas are taken to the scene of an offence to see and hear certain things. Therefore, panchas are liable to be examined at the trial to depose to those things and their evidence is relied upon in support of the testimony of an investigating officer. A panchanama of this kind recorded and relied upon in support of evidence from the panchas is akin to a statement previously made by him under Section 157 of the Indian Evidence Act, 1878 which says that former statement of witnesses may be proved to corroborate later testimony as to the same fact. So there is no need for a panch to be an eye witness of the incident/crime. His only role is to going to the place and verifying the proceedings done by Investigation officer in front of him.
Evidentiary Value of Panchnama
Panchnama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence/crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The documents so prepared needs to be signed by the investigating officer who prepares the same and at least by two independent and impartial witnesses called “panchas”, as also by the party concerned.[vi] The panchanama can be used as corroborative piece of evidence. It is not substantive piece of evidence. In absence of any substantive piece of evidence court can’t rely upon panchanamas on record for conviction.
What happens when IO didn’t made seizure memo or the memo (of any kind) is not drawn on the spot but in office or legalities were not followed
It is a humdrum that Sections 93 to 104 of Code of Criminal Procedure, 1973 are dealing with search and seizure. Section 461[vii] of the said Code deals with irregularities, which vitiates the proceedings. From a close reading of Section 461 of CrPC, it is easily discernible that mere failure on the part of the Investigating Agency in preparing seizure memo does not vitiate the proceedings.
In Yakub Abdul Razak Memon vs State of Maharashtra it was held that on any deviation from the procedure, the entire panchanama cannot be discarded and the proceedings are not vitiated. If any deviation from the procedure occurs due to a practical impossibility then that should be recorded by the I.O. in his file so as to enable him to answer during the time of his examination as a witness in the court of law. Where there is no availability of panch witnesses, the I.O. will conduct a search and seize the articles without panchas and draw a report of the entire such proceedings which is called a ‘Special Report’.
For better appreciation, it would be condign to look into the decision reported in Khet Singh v Union of India[viii], wherein, the Hon’ble Supreme Court has held that when the seizure memo has not been prepared on the spot, but subsequently in the office of the Customs Department, the accused persons been present throughout and there been no allegation or suggestion that the contraband article has been in any way meddled with by the officer, the irregularity if any in the search would not vitiate the conviction. From a mere reading of the decision rendered by the Hon’ble Supreme Court, it is made clear that if there is any irregularity in preparing seizure memo, it would not belittle or vitiate the case of the prosecution.
For example in a corruption case where the witnesses corroborate the fact that they have given bribe to the accused and the accused was caught having huge sum of money in his office coupled with the fact that when he was examined no satisfactory reply was given, in such a situation not making a seizure memo will not defeat the case of prosecution.
It has already been pointed out that mere omission on the part of the Investigating Officer in preparing seizure memo would not vitiate the entire proceedings. Further, as per the decision referred to, seizure memo can be used as a corroborative evidence. Therefore, it is quite clear that it is not a substantive piece of evidence. Since seizure memo can be used as a corroborative evidence, mere omission on the part of the Investigating Officer in preparing the same would not militate the case of the prosecution.
Where witness accepts his signature on Panchnama but denies that it was made in his presence or states that he signed on the blank paper
Many people argue that a panchanama being a document can be proved, but it is not correct. Evidence may be oral or documentary. Documentary evidence is to prove the contents of a document, when the question is what are the contents of the document? But when the question is what a witness has seen or what he has heard etc., the evidence must be oral and must be direct. When the question is what the witness has seen, he must say what he has seen. There is no question of documentary evidence to prove the fact which a witness has seen and to prove that the witness has seen that fact. A document may be used for contradicting the witness but when the question is what the witness has seen, there must be direct oral evidence as to what he has seen.
It has to be kept in mind that a Panchnama is only a note made by the witness at the time of incident, which he has seen, and the only use which can be made of such a document is that provided in Sections 159[ix] and 160[x] of the Evidence Act. A Panchnama can also be treated as a note or a record made by the Panch witness to refresh his memory under Section 159 of the Evidence Act. In view of Section 159 of the Evidence Act, even If the Panchnama is not written by the Panch himself but by another person, Section 159 Evidence Act would apply to it provided the Panchnama was read by the witness within the time mentioned in Section 159 Evidence Act and if when he read it he knew it to be correct. In such a case the Panchnama can be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act. When the writing is used by a witness to refresh his memory, the provisions of Sections 160 and 161 of the Evidence Act will apply.
In other words a witness’s memory may be weak, but a witness may refresh his memory by referring to any writing made by himself at the time of the transaction concerning this question as provided in Section 159 of the Evidence Act. The witness may also refer to any such writing made by any other person, and read by the witness within the time referred to in Section 159, if when he read it he knew it to be correct. The very fact that a provision is made for a witness for refreshing his memory by referring to certain documents in order to prove certain facts makes it clear that the evidence of such facts must be given by the oral evidence of the witness and not by producing a document.
The question in such a case is not as to the contents of the Panchnama but as to what the witness, who was present at the time of the incident, has seen, and this can be proved by the oral evidence of the witness, if necessary by refreshing the memory by referring to any note made by him as provided in Section 159 of the Evidence Act. So it means that even if Panchnama was not drawn in front of witness or he was asked to sign on blank papers, still it will not disprove the panchnama nor it will affect the prosecution case as long as witness accepts the fact that what he saw has been correctly recorded in it. A witness can testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves if he is sure that the facts were correctly recorded in the document.
Whether Panchnama is a record of statement falling under bar of Section 162 CrPC
In Mohanlal Bababhai v. Emperor[xi], it was held that, Section 157 of the Evidence Act (corroboration of testimony of witness with former statements made by him at or about the time when such fact took place before an authority legally competent) is controlled by Section 162 of the Code of Criminal Procedure[xii] and therefore if a statement, though falling under Section 157 of the Evidence Act, were also to fall under Section 162 of the Code, it would be Section 162 of the Code that would prevail and such a statement would be inadmissible. Reading Section 157 of the Evidence Act and Section 162 of the Code of Criminal Procedure together, it is clear that the word ‘statement’ in Section 157 of the Evidence Act has a wider connotation than the same word used in Section 162 of the Code.
But in order that a previous statement of a witness falls under Section 162 of the Code, two conditions have to be fulfilled, i.e.,
- that it has to be a statement made to a police officer and
- that it is made in the course of investigation under Chapter XIV, Criminal Procedure Code.
The question therefore is whether a Panchnama is a record of a statement which falls within the ban of Section 162 of the Code?
A previous statement of a witness complying with the conditions laid down in Section 157 of the Evidence Act is admissible. The exception is that if it fulfils the two conditions laid down in Section 162 of the Code, it becomes inadmissible thereunder, except for the limited purpose therein stated. The important words in Section 162 of the Code are “No statement made by any person to a police officer”. Therefore the statement must be one to a police officer and unless it is to a police officer, it does not fall within the mischief of Section 162 of the Code. Therefore it is necessary that the statement in question must have the element of communication to a police officer. If a Panchnama is merely a record of facts which took place in the presence of panchas and of what the Panchas saw and heard, it is not a record of a statement communicated to a police officer, it would be admissible under Section 157 of the Evidence Act and would not fall within the ban of Section 162 of the Code of Criminal Procedure.
As its very name signifies, it is a document recording what the Panchas saw and heard. At the same time, if a Panchnama does contain a statement which amounts to a statement communicated to a police officer during the course of his investigation, it would fall within Section 162 of the Code. Therefore every time when a Panchnama is tendered in evidence, it would be the duty of the Court to ascertain whether any part of it falls within the mischief of Section 162 of the Code of Criminal Procedure and if it does fall, the Court should take out that portion from being admitted in evidence.
As held in Santa Singh v. State of Punjab[xiii], the mere presence of a police officer when a statement is made does not by itself render such a statement inadmissible. So long as a Panchnama is a mere record of things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him, it would not fall within the mischief of Section 162 of the Code.
In case of Vishnu Krishna Belurkar v The State of Maharashtra[xiv], the question before Hon’ble HC was whether the panchanamas are hit by the provisions of section 162 of the Code of Criminal Procedure, 1973. The question was referred to Hon’ble Full Bench of High Court of Bombay. In para 8, the Hon’ble Full Bench has observed that:
“In our view, the fact that panchanama is written out by the police officer or the police scribe as dictated to him by the panchas would not make any difference, for, that would merely be a mode in which the panchanama is recorded. Of course, if a panchanama does incorporate a statement which amounts to a statement intended as a narration to a police officer during his investigation, it would fall within Section 162 and will have to be excluded but that is the duty which the court must perform every time a panchanama, is tendered in evidence.”
Conclusion
So on the basis of above discussion here is the conclusion:
- Panchnama is just a record of proceeding of what a panch saw or heard when he was taken to the spot by the IO of the case. It contains the signature of IO, the panchas as well as the person who identified the spot.
- A panchnama is proved by calling the panch who will testify that the document bears his signature and whatever is recorded in it is correctly recorded. It doesn’t matter that the panchnama was actually made in the presence of the witness when he was taken to the spot or it was made by the IO sitting in his office. As long as witness says it correctly mentions all the details, it stands proved.
- Panchnama although being a document has to be proved by oral evidence of IO and panchas as to what they saw and heard. Procedural irregularities and not making panchnama is not fatal to the case of prosecution as long as other evidence exist on record.
- Pnchanama is just a corroborative and not a substantive piece of evidence. Conviction can’t be recorded solely on the basis of it.
- Whether statements recorded in Panchnama falls under the bar of Section 162 CrPC or they are admissible by virtue of Section 157 of Evidence Act depends upon the nature of statement made by the panchas to the IO. If it is only about what they saw or heard, then it is admissible under Section 157 IEA but if it contains something in the nature of information then it will fall under the bar of Section 162 CrPC and the prosecution wouldn’t be able to use such statement to corroborate the panchas.
[i] https://nacin.gov.in/resources/file/e-books/Panchnama.pdf
[ii] https://devgan.in/iea/section/157/
[iii] https://indiankanoon.org/doc/1137396/
[iv] 43 Bom LR 163: (AIR 1941 Bom 149)
[v] (1978) 80 BomLR 396
[vi] Yakub Abdul Razak Memon vs State of Maharashtra
[vii] https://indiankanoon.org/doc/1329851/
[viii] (2002) 4 SCC 380
[ix] https://devgan.in/iea/section/159/
[x] https://devgan.in/iea/section/160/
[xi] 43 Bom LR 163: (AIR 1941 Bom 149)
[xii] https://devgan.in/crpc/section/162/
[xiii] AIR 1956 SC 526
[xiv] (1974) 76 BOM LR 627