Role of Panchnama in Criminal Justice Delivery System

1. Preamble
- PANCHNAMA’ is very important aspect of criminal investigation; it corroborates main evidence if duly proved

2. Kinds Of Panchnama Prepared By Investigation

3. Cr.P.C section 100 – During search in closed place

4. 2) Cr.P.C Section 102

5. 3) Cr.P.C Section 174

6. 4) Cr.P.C 165

7. 5) Cr.P.C 166

8. 6) Evidence Act Section 27

9. 7) Panchnama of crime scene

10.8) Panchnama of Muddamal

11. 9) Panchnama of identification of muddamal

12. 10) Panchnama of physical condition of accused when arrested.

13) Procedure To Record Panchnama

14) What is a result when PANCH witness turned hostile

15) Case Law - 1) Aghnoo Nagesia Vs.State Of Bihar

- Mohd.Aslam Vs.State Of Maharashtra
- State Of Gujarat Vs.Satish
- State Of Gujarat Vs.Brahmin Babulal Haribhai

16) Conclusion
-It is hoped that the situation will improve, leading to the elimination of routine panchnama in police investigations.

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   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.

Dharmendrasinh G. Rana

Assistant Public Prosecutor

LEGAL DEPARTMENT

GOVERNMENT OF GUJARAT