D. G. DESHPANDE, M. H. KANIA and V. D. TULZAPURKAR
Vishnu Krishna Belurkar and Another
State of Maharashtra
I) Whether the Panchnama is actually merely a record of what a panch sees, and the only use of such record is to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchnama can be used as a contemporary record to refresh his memory.
II) Whether documents like Ex. 28, being the Statement of the complainant recorded by P.S.I. Sarakwas (P.W. 13), are in any manner a hit on the provisions of S. 162 of the Code of Criminal Procedure and if at all to what extent and whether they can be entirely excluded as inadmissible.
III) What is the real purpose of making these panchanamas during the course of investigation undertaken by the police?
- No. 2 Vishnu Krishna Belurkar (appellant No. 1 in the appeal) and original accused No. 3 Shriram Balkrishna Vaidya (appellant No. 2 in the appeal) were respectively working as a Junior Assistant and a Draughtsman in the office of the Arbitrator.
- In the same concerned locality one person named Omprakash Mundada, the complainant, owned a plot bearing S. No. 250-B which was included in the reservation made for a garden, called Peshwe Park, in the Scheme.
- It so appears that the complainant along with a couple of other plot-holders were making attempts to get their plots excluded from the reservation made in the Town Planning Scheme and according to the prosecution for showing this favour the accused had conspired to obtain illegal gratification from the plot-holders.
- The complainant went om further to decide to trap the persons demanding such bribe and therefore he approached the Anti-Corruption Police and he lodged a complaint with P.S.I. Sarakwas supposedly alleging that illegal gratification to the tune of Rupees 2000/- was being demanded from him by accused No. 1 and 2 for exclusion of his plot from reservation that was made for the garden in the scheme and that he was going to pay Rs. 500 being the first instalment of the bribe to accused No. 2 in the latter's office and that therefore necessary action be taken.
- After the completion of the investigation a charge-sheet was submitted against the three accused for the offences of conspiracy, acceptance of bribe and criminal misconduct.
- Along with that the Court of the learned Special Judge charges under S. 120-B, S. 161 read with S. 120-B and S. 5(1) (d) read with S. 5(2) of Prevention of Corruption Act, 1947 read with Section 120-B were framed along with offences u/s. 161 and S. 5(1) (d) read with S. 5(2) of the Prevention of Corruption Act, 1947 red with S. 34 I.P.C.
- On the evidence that was led before him the learned Special Judge, Poona acquitted accused No. 1 of all the charges levelled against him but recorded a conviction against accused No. 2 and accused No. 3 (appellants Nos. 1 and 2 in the appeal) under sections mentioned above and sentenced each one of them to R.I. for one year and to pay a ne of Rs. 500/- and in default he directed each of them to R.I. for 3 months. The appellants have therefore moved to Bombay High Court challenging their convictions and sentences imposed upon them by the learned Special Judge, Poona.
- The complainant stated in his evidence that the accused No. 3 'then asked me to pay the amount as told by Saheb' while panch Bendre had stated that accused No. 3 asked the complainant to give as instructed by Saheb' but had Ex. 34 the post-trap panchanama it had been merely recited that accused No. 3 thereafter demanded money from the complainant and as such the prosecution evidence should not be accepted. To reply to the above contention it was urged on behalf of the State by the learned Assistant Government Pleader Mr. Chitnis that the entire post-trap panchanama (Ex. 34) was itself inadmissible the contents whereof were hit by the provisions of S. 162 of Criminal P.C. and if that was so, there was no question of there being any infirmity as suggested on behalf of the accused and the prosecution evidence, particularly of the panch could not be rejected.
- The pancha's evidence suffered from serious infirmities and as such the prosecution case should not be accepted.
- It was Mr. Chitnis appearing for the State who raised a contention that several documents which have been referred to in the question framed for our determination, particularly post-trap panchanama (Ex. 34) would become inadmissible by reason of the ban contained in S. 162 Criminal P.C.
- His contention in substance was that what is recorded in the panchanama is nothing but communication made by the panch as to what he had seen and what he heard to the police officer who has been investigating the offence, for, according to him, it is implicit in the act of writing the panchanama by the police officer or the police scribe that the panch narrates or communicates what he has seen or heard, both before the in arrival of the investigating officer on the scene or after his arrival
- On behalf of the State by the learned Assistant Government Pleader Mr. Chitnis contention in substance was that what is recorded in the panchanama is nothing but communication made by the panch as to what he had seen and what he heard to the police officer who has been investigating the offence, for, according to him, it is implicit in the act of writing the panchanama by the police officer or the police scribe that the panch narrates or communicates what he has seen or heard, both before the in arrival of the investigating officer on the scene or after his arrival.
- Further on the communication in fact precedes the record that is made by the police at the dictation of the panch and in that sense the contents of the panchanama, particularly as to what transpired at the time of passing of the money, will have to be regarded as statements made by the panch witness to the investigating officer and therefore such statements would become inadmissible by reason of the ban contained in S. 162 Criminal P.C.
- The recitals in the panchanama as to what the panch had seen and as to what he had heard would always be a narration by the panch witness to the police officer and therefore the same would target S. 162 Criminal P.C
- Mr. Chitnis stated that by parity of reasoning it should be held that after the trap was carried out and when panchas set about to record what they had seen and heard at the time of passing of the money as also all that transpired subsequently, the recording of the same in a panchanama written out by the police officer or the police scribe has no separate existences per se but it constitutes a record of narration or statement made by the panch to the police officer of what he had seen and heard and therefore such record should be deemed to be a statement made by the panch witness to the police officer during the investigation under Chapter XIV and the same would be hit by S. 162 Criminal P.C
The Court held the statement of the accused amounting to a statement made by the panch to the police officer during the course of investigation is incorrect.
A panchanama is made if the police officer feels it necessary to make a record of any statement that might be made by the accused, a statement leading to discovery of any fact as contemplated by S. 27 of the Evidence act and such record is made of the time when the accused makes the statement in the presence of the panchas. The held that the use of such contemporary record, being in the nature of previous statement made by the panch, for corroborating the evidence of the panch is perfectly valid u/s. 137 of the Evidence Act. Furthermore, the only use of such record is to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchnama can be used as a contemporary record to refresh his memory. Without any question, such panchanamas cannot take the place of substantive evidence but they merely corroborate the substantive evidence if given by the panch from the witness box at the trial. The usage of such contemporary record being in the nature of previous statement made by the panch for corroborating the evidence of the panch is well perfectly valid under Section 157 of the Evidence Act.
The exception is that if it fulfills the two conditions laid down in Section 162 of the Code, it becomes inadmissible thereunder, except for the limited purpose therein stated. 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.
Consequently, it can be said that very 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, and the Court should take out that portion from being admitted in evidence.
Thus Mr. Barot urged in the instant case, the Panchnama was not recorded by the panchas themselves but its contents were dictated by them and it was the police officer investigating this case who wrote it out and kept the Panchnama in his custody until it was produced in the trial Court. The fact however that it was written out by the officer as dictated to him by the panchas would not, in our view, make any difference, for that is merely a mode in which the Panchnama is recorded, nor would the officer keeping that document with him make any difference and in the Courts view 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.
Furthermore any statement made in the Panchanama cannot be used in evidence except for the purposes of contradicting the witness whose statement is contained in the Panchnama, but if it is intended to contradict him by the writing his attention must before the writing call be proved, be called to those parts of it which are to be used for contradicting him. This is what is required under Section 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain that part of the statement that is put to him does not constitute substantive evidence.