i

Evidentiary Value of Panchnama

(Project towards the partial fulfillment of internal assessment in the subject of Law of
Evidence)

Date: 8th October, 2009

Submitted by:- Submitted to:-

Ishaan Chhaya- 409 Mr. Souvik Chatterji
Madhav Misra- 501 Faculty of Law
Pranjal Vyas- 509
Rashi Ahooja- 511

NATIONAL LAW UNIVERSITY, JODHPUR

Summer Session
(July – November 2009)
 ii

Table of Contents

1. INTRODUCTION……………………………………………………………….1
2. PANCHANAMS: CRIMINAL PROCEDURE CODE………………………..3
3. EVIDENTIARY VALUE………………………………………………………..6
4. PANCHANAMAS AND SECTION 162 CRPC………………………………11
5. GROUND REALITIES………………………………………………………...14
6. CONCLUSION…………………………………………………………………17
7. BIBLIOGRAPHY………………………………………………………………18
 1

1. INTRODUCTION

The above mentioned quote gives us an insight into the importance of panchnamas and
their relevance in order to ensure that the investigation carried out by the police is fair
and just.

It is not viable to define the term panchnama and it is interesting to note that the term
panchnama fails to find definition in the Penal Codes of India. However, it has been
described to refer to any document, or a written account, of some transaction, which had
taken place in the presence of respectable persons. In fact, the term ‘panchnama’ traces
its roots to the Sanskrit language where the term ‘panch’ means ‘a respectable person’
and the term ‘nama’ means ‘a written thing’.1 Even though the term has not been
recognized in the Criminal Codes of the country2, it has not failed to secure popular
usage. The Courts have recognized the term and give it some description. For instance in
Emperor v. Mohanlal Bahabhai,3 Chief Justice Beaumont has explained the nature and
purpose of the document styled as panchnamas as follows;
“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.”

The main question which the researcher seeks to answer through this paper, after
analyzing the concerned Sections of the Evidence Act, 1872 and their application by the

1
P.C.Banerjee, “Criminal Trial and Investigation”, 4th ed. 2005, p. 56.
2
Ibid.
3
(1940) 43 Bom LR 163.
 2

Court is whether panchnamas have much evidentiary value and whether the Courts can
rely solely on the evidence of panch witnesses corroborated by the panchnama to convict
the accused?
 3

2. PANCHNAMAS: CRIMINAL PROCEDURE CODE

The word panchnama does not find mention in the Code of Criminal Procedure, 1973.
However it can be construed from Sections 100 and 174 of the Criminal Procedure
Code.4 The former provision (Section 100) deals with search of a closed place by the
police officer under a warrant issued by the Court and the latter provision (Section 174)
deals with ascertainment of the cause of death, an inquest will be held in the presence of
two respectable inhabitants of the neighborhood by observing the dead body and
examining the witnesses who acquainted with the facts of the case. 5 The police shall draw
up an inquest report containing the apparent cause of death, describing such wounds,
fractures, bruises and other marks of injury as may be found on the body.6

The procedure laid down in Section 1007 is followed for conducting search of any closed
place with a warrant issued by the Court under Sections 93, 94, 95 and 978 of the

4
P.C.Banerjee, “Criminal Trial and Investigation”, 4th ed. 2005, p. 57.
5
Ibid.
6
Section 174, Cr. P.C.: Police to inquire and report on suicide, etc.: - “(1) When the officer in charge of a
police station or some other police officer specially empowered by the State Government in that behalf,
receives information that a person has committed suicide, or has been killed by another or by an animal, or
by machinery, or by an accident, or has died under circumstances raising a reasonable suspicion that some
other person has committed an offence … shall proceed to the place where the body of such deceased
person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall
make an investigation, and draw up a report of the apparent cause of death, describing such wounds,
fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by
what weapon or instrument (if any), such marks appear to have been inflicted. (2) The report shall be
signed by such police officer and other persons or by so many of them as concur therein…”

It is important to note at this juncture that the Criminal Procedure Code (Amendment) Act, 2005 amended
Section 176 of the Principal Act and introduced sub-section (1A), which provides for an investigation by
the Judicial Magistrate in addition to the investigation held by the police in cases where the person dies or a
rape has been allegedly committed on any woman, while in the custody of the police. However it is my
submission, that such an amendment to Section 176 does not affect the requirement of panch witnesses and
the preparation of an inquest report (panchnama) under Section 174 of the Cr. P.C.

7
Section 100, Cr. P.C.: Persons in charge of closed place to allow search.
8
The same would be done under Sections 93, 94, 95 and 97, Cr. P.C. Section 93: When search-warrant may
be issued. Section 94: Search of place suspected to contain stolen property, forged documents etc; Section
95: Power to declare certain publications forfeited, and to issue search warrants for the same; Section 97:
Search for persons wrongfully confined.
 4

Criminal Procedure Code, and without warrant issued by the Court under Sections 165 9
and 16610of the Criminal Procedure Code. The text in Section 100(4)11 and (5) is explicit
and reads as follows;
“(4) Before making a search under this Chapter, 12 the officer or other
person about to make it shall call upon two or more independent and
respectable inhabitants13 of the locality in which the place to be searched
is situate or of any other locality if no such inhabitant of the said locality
is available or is willing to be a witness to the search, to attend and
witness the search and may issue an order in writing to them or any of
them to do so.
(5) The search shall be made in their presence, and a list of all things
seized in the course of such search and of the places in which they are
respectively found shall be prepared by such officer or other person and
signed by such witnesses; but no person witnessing a search under this
Section shall be required to attend the Court as a witness of the search
unless specially summoned by it.”

The intention of the legislature behind incorporating this provision is to guard against
possible chicanery and unfair dealings on the part of the officers entrusted with the
execution of the search and to ensure that any thing incriminating which was found in the
premises searched was really found there and not introduced or planted by the officers
conducting the search and also to ensure that nothing is stolen while the search is being
conducted.14 Thus to control and check the malpractices of the officers, the presence of
independent and respectable witnesses is made compulsory in the case of search of a
closed place and seizure of any item therein.15
9
Section 165, Cr. P.C.: Search by Police Officer.
10
Section 166, Cr. P.C.: When officer in charge of police station may require another to issue a search
warrant.
11
Ibid.
12
Chapter VII, Cr. P.C.: Process to compel the production of things (Sections 91-105).
13
A respectable person refers to one who is not in disrepute. However it is necessary to note that the debate
over the categorization of a person as ‘respectable’ is beyond the scope of the present paper.
14
State of U.P. v. Arun Kumar Gupta, (2003) 2 SCC 202; State of Punjab v. Wassan Singh, AIR 1981 SC
697.
15
P.C.Banerjee, “Criminal Trial and Investigation”, 4th ed. 2005, p. 56.
 5

3. EVIDENTIARY VALUE
The evidentiary value of Panchnamas has caused a great cause for debate. The Supreme
Court and the High Courts have faced the task of determining its evidentiary value on a
plethora of occasions. 16

The situation in practicality works in the following manner. The police go to search the
premises and search them in the presence of two independent respectable inhabitants
(“panch witnesses” or “panchas”) of the locality. After conducting the search, the police
prepare a report (panchnama) of the items seized and the situation at the site of the
offence (or the inquest report under Section 174, Cr. P.C.) since the primary and essential
purpose of making such panchnamas is to make a record of things which occur in the
presence of panchas and which are seen and heard by them Thereafter, at the stage of the
trial, the panch witnesses depose before the Court and give their testimony. Now at this
stage, the panchnama is also submitted before the Court, which contains all the details
concerning which, the panch witness bases his testimony.17

The questions, which have to be answered, are as follows; what is the evidentiary value
of panchnamas? Is it merely corroborative evidence or the same can also be treated as
substantive evidence? What is the evidentiary value of panch witnesses?18
 Corroborative Evidence (Section 157)
In answer to the first question, the Courts have been consistent in holding that a
panchnama is not admissible as substantive evidence of the fact recorded therein.19 It can

16
Ibid.
17
Ibid.
18
Ibid.
19
Har Chand v. Diwan Singh, AIR 1929 All 550. Kadiya Bhavan v. Ismail Mamad, AIR 1955 Sau 32;
Mukund v. State, AIR 1957 Raj 331; Emperor v. Mohadeo Dewoo, AIR 1946 Bom 189. In addition to this,
the Madhya Pradesh High Court explicitly said that a panchnama is not admissible under Section 35 of the
Indian Evidence Act, 1872; Bhagirath v. State of Madhya Pradesh, AIR 1959 MP 17. Section 35, Indian
Evidence Act, 1872: Relevancy of entry in public record, made in performance of a duty.
 6

merely be used as corroborative evidence 20 under Section 157.21 It can merely be used to
corroborate the testimony of the panch witnesses, under Section 157,22 which would be
the substantive evidence if given by them from the witness box at the trial. 23 The
significance of the testimony of the panch witnesses cannot be emphasized more than the
decision in Devidas v. State of Maharashtra24 wherein the Court held that when panch
witnesses are examined but stated that no information was given by the accused in their
presence, the Court will not rely on the Police evidence.
 Aid Memoir (Sections 159-161)

20
“The word ‘corroboration’ connotes support or confirmation, and indicates, in relation to the law of
evidence, that certain evidence is confirmed in its tenor and effect by other admissible and independent
evidence.”-Chandrachud (ed.), Ratanlal and Dhirajlal, “Law of Evidence”, 18 th ed. 2006, p. 77, wherein the
authors have quoted Lord Reading’s famous opinion in R v. Bakersville: corroborative evidence is evidence
which confirms in some material particulars not only the evidence that the crime has been committed but
also that the prisoner committed it. The Indian Supreme Court has approved of this definition and after
relying on a couple of High Court decisions arrived at the following description: “Corroboration is a rule
of prudence and evidentiary value of a disposition which is otherwise admissible is not just wiped out in the
absence of corroboration,” in Pattu Lal v. State of Punjab, AIR 1996 SC 3197; Shakila Banu v. Gulam
Mustafa, AIR 1971 Bom 166; State of Punjab v. Gurnam Anna Manickam, AIR 1970 Mad 91.
21
Mst. Dalbir Kaur v. State of Punjab, AIR 1977 SC 472; Valibhai Omarji v. The State, AIR 1963 Guj 145;
Vishnu Krishna Berlukar v. State of Maharashtra, (1974) 76 Bom LR 627 at 624; Mylsami alias Thoppan
v. State, 1994 Cr LJ NOC 76 (Mad.): absence of independent witnesses not a ground to discard seizure
evidence; State Govt of N.C.T of Delhi v. Sunil, 2001 Cr LJ 504 (paras 19, 21 and 22).Gopinath (rev.), John
Woodroffe and Syed Amir Ali, “Law of Evidence”, 16 th ed. 1996, pp. 3767-3769; Also the Bombay High
Court in Emperor v. Mohanlal Bababhai, (1940) 43 Bom LR 163 and in Emperor v. Rustom Lam, (1931) 34
Bom LR 267 has noted that if the police want to rely on a panchnama they must call a panch to prove it.
The panchnama of a search of premises is not evidence of what was found on the search unless the
panchas are examined as witnesses. Also see, Chandrachud (ed.), Ratanlal and Dhirajlal, “Law of
Evidence”, 21st ed. 2004, p. 29.
22
Section 157, Indian Evidence Act, 1872: Former statements of witness may be proved to corroborate later
testimony as to same fact: - In order to corroborate the testimony of a witness, any former statement made
by such witness relating to the same fact, at or about the time when the fact took place, or before any
authority legally competent to investigate the fact, may be proved.
23
The position can be best summed up in the erudite opinion of John Beaumont, C.J. in the famous case
before the Bombay High Court, Emperor v. Mohanlal Bababhai, (1941) 43 Bom LR 163 where relying on
another decision of the Bombay High Court in Emperor v. Rustam Lam (1931) 34 Bom. L.R. 267, he held;

“A police-officer is not entitled to give evidence of what the panch told him that he saw,
and that is what it comes to if a police-officer is allowed to put in the panchnama. A
police witness may state that he held a panchnama and offer to produce the record if the
accused asks for it, but he cannot bring it on record in his evidence-in-chief. If the police
hold a panchnama, and do not offer to call the panch, an inference may be drawn against
them from the fact that the panch is not submitted for cross-examination. The putting in
of a panchnama without calling the panch is not only an infringement of the rules of
evidence against the admission of hearsay evidence, but it is unfair to the accused,
because it enables the police to get the advantage of evidence in corroboration without
putting that evidence to the test of cross-examination.”

24
1982 Cri LJ 2189
 7

In addition to corroboration under Section 157, the other purpose, which is served
by these panchnamas is that such record should serve as aid memoir to the panchas when
they enter the witness-box in the Court at the time of the trial and depose about the things
that they had seen and heard.25 This would attract Sections 159 to 161 of the Indian
Evidence Act, 1872, under which a panch witness can refresh memory by referring to the
panchnama as provided in Sections 159 to 161.26 Section reads as follows;
“Section 159: Refreshing Memory:- A witness may, while under
examination, refresh his memory by referring to any writing made by
himself at the time of the transaction concerning which he is questioned,
or so soon afterwards that the Court considers it likely that the
transaction was at that time fresh in his memory.”
Thus, a panchnama, it is submitted, and has been held by the Courts in the cases
cited above and in several recent cases,27 would serve as ‘writing’ under Section 159 and
can be used to refresh the memory of the panch witness at the stage of the trial. 28 It is
pertinent to note that neither Sections 159 nor 16029 render the document itself admissible
as substantive evidence.30 In addition to the above, Section 16131 awards to the adverse
party the right to the production and inspection of and cross-examination upon, all that is
made use for the purpose of refreshing the memory of the witness. Even a panchnama
can be used for refreshing the memory of a witness, and if used in that manner, it must be
shown to the opposite party under Section 161.32

25
Bhagirath v. State of Madhya Pradesh, AIR 1959 MP 17. Gopinath (rev.), John Woodroffe and Syed
Amir Ali, “Law of Evidence”, 16th ed. 1996, Law Book Company, Allahabad…pp. 3767-3769; BOOKS
26
State v. Rajabhai, AIR 1960 Guj 24; Kanbi Bhasan v. Ismail, AIR 1955 Sau 32; In re: Kolli Seetha Rami,
AIR 1939 Mad. 766; Kajaji Ramji v. State of Gujarat, 1966 Cr LJ 331.
27
Girish Yadav v. State of Madhya Pradesh, AIR 1996 SC 3098; K.K.Patel v. State of Gujarat AIR 2000
SC 3346.
28
Ibid.
29
Section 160, Indian Evidence Act, 1872: Testimony to facts stated in document mentioned in Section
159:- A witness may also 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.
30
Gopinath (rev.), John Woodroffe and Syed Amir Ali, “Law of Evidence”, 16th ed. 1996, pp. 3767-3769.
31
Section 161, Indian Evidence Act, 1872: Right of Adverse party as to writing used to refresh memory:-
Any writing referred to under the provisions of the two last preceding sections must be produced and
shown to the adverse party if he requires it; and such party may, if he pleases, cross-examine the witness
thereupon.
32
Miyabhai v. State, AIR 1963 Guj 188; State v. Rajabhai, AIR 1960 Guj 24; Kanbi Bhasan v. Ismail, AIR
1955 Sau 32; In re: Kolli Seetha Rami, AIR 1939 Mad. 766; Kajaji Ramji v. State of Gujarat, 1966 Cr LJ
331; P. Ramanatha Aiyer, “Cross Examination: Principles and Precedents”, Vol. 1., 3rd ed. 2003; p. 318.
 8

 Cross-Examination (Section 145) and Identification Parade33

Another provision of the Evidence Act, which warrants mention, is Section 145,
which deals with Cross-examination as to previous statements in writing. As was held by
the Supreme Court in Kanu Ambu Vish v. The State of Maharashtra 34 that any statement
used in a panchnama cannot be used in evidence except for the purposes of contradicting
the witness whose statement is contained in panchnama under Section 145 of the
Evidence Act.35

Another instance where the evidentiary value of a panchnama has been

considered relevant is in the instance of an identification parade,36 where it has been
considered to be important and desirable to have independent evidence to show that he
parade has been conducted properly and fairly, because there is nothing easier than for
the police to stage an unfair identification parade, in which the witness is shown the
accused before he identifies.37

33
Section 9, Indian Evidence Act, 1872: Facts necessary to explain or introduce relevant facts:- Facts
necessary to explain or introduce a fact in issue or a relevant fact, or which support or rebut an inference
suggested by a fact in issue or relevant fact, or which establishes the identity of any thing or person whose
identity is relevant …
34
AIR 1971 SC 2256, ¶ 10: “that any statement used in a panchnama cannot be used in
evidence except for the purposes of contradicting the witness whose statement is
contained in panchnama but if it is intended to contradict him by the writing his attention
must before the writing can 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.”
35
Section 145, Indian Evidence Act, 1872: Cross-examinations as to previous statements in writing.
36
Supra n. 35 at ¶ 11.
37
Emperor v. Mohanlal Bababhai, (1941) 43 Bom LR 163 at ¶ 5:

“I do not suggest that the police often hold unfair identification parades, but it is
obviously desirable that there should be independent evidence to show that a parade has
been properly held, and Deputy Inspector Kale recognized that in this case and
summoned panchas; but if the prosecution wish to prove by independent testimony what
happened at the parade, they must call the independent witness … A police witness may
state that he held a panchnama and offer to produce the record if the accused asks for it,
but he cannot bring it on record in his evidence-in-chief. If the police hold a panchnama,
and do not offer to call the panch, an inference may be drawn against them from the fact
that the panch is not submitted for cross-examination”.
 9

4. PANCHNAMAS AND SECTION 162

Another issue, which needs to be addressed while dealing with panchnamas, is whether
the admissibility of panchnamas would be restricted by Section 16238 of the Criminal
Procedure Code? The Courts have discussed this issue at great length and there is a view
that where a panch hears certain statements made to him and himself reduces what is
stated into writing, the writing is a statement made by the person to the pancha.39 But if a
Panch sees something and tells the police officer what he had seen and the police officer
then reduces into writing what the Panch had told him of what he had seen, then that

38
Section 162, Cr. P.C.: Statements to police not to be signed: Use of Statements in Evidence:- “(1) No
statement to a police officer in the course of an investigation under this chapter shall, if reduced to writing,
be signed by the person making it, not shall any such statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the tiem when
such statement was made…”
39
Ibid.
 10

writing would be a record made by the police officer of a statement made to him by the
Panch of what the Panch had seen. Such a panchnama would be hit by section 162 of the
Criminal Procedure Code.40

This issue was also discussed by the Gujarat High Court at great length in Valibhai
Omarji v. State41 wherein the Court was of the opinion that Section 157 of the Evidence
Act is controlled by Section 162 of the Code of Criminal Procedure 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. The Court emphasized that Section 157 of the
Evidence Act and Section 162 of the Code of Criminal Procedure have to be read
together and on a joint reading of the two provisions it is clear that the word 'statement' in
Section 157 of the Evidence Act, 1872 has a wider connotation than the same word used
in Section 162 of the Code.
In order that a previous statement of a witness falls under Section 162 of the
Criminal Procedure Code, two conditions have to be fulfilled, namely,
(i) that it be a statement to a police officer and42
(ii) that it is made in the course of investigation under Chapter XIV, Criminal
Procedure Code.43

The question therefore is whether a panchnama is a record of a statement, which

falls within the ban of Section 162 of the Code? Whether a panchnama is one which is hit
or not hit by Section 162, Criminal Procedure Code or whether it is one which can be
used under the provisions of Sections 159 to 161 of the Evidence Act44 would depend on
the facts of each case.

40
Miyabhai v. State, AIR 1963 Guj 188; Kajaji Ramji v. State of Gujarat, 1966 Cr LJ 331. P. Ramanatha
Aiyer, “Cross Examination: Principles and Precedents”, Vol. 1., 3rd ed. 2003, p. 318.
41
AIR 1943 Guj 145. The Court in this case relied upon a division bench opinion of the Court in Naginlal
Nandlal v. State of Gujarat, 1961-2 Guj LR 664: “a panchnama made by the police cannot be regarded as
a statement made by one panch witness to another. It can be regarded as a statement made by the panch
witness to the police officer and if so, it would be-hit by Section 162 Cri. Pro. Code. If the panchnama was
not made during the course of the investigation, then it would not be hit by Section, 162 Cri. Pro. Code.”
42
Ibid ¶ 19.
43
Ibid ¶ 19.
44
Miyabhai v. State, AIR 1963 Guj 188; Kajaji Ramji v. State of Gujarat, 1966 Cr LJ 331. P. Ramanatha
Aiyer, “Cross Examination: Principles and Precedents”, Vol. 1., 3rd ed. 2003, p. 318.
 11

As regards the first condition laid down in Section 162, 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, 45but 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. 46
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.47 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

45
AIR 1941 Bom 149.
46
Supra n. 31: “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.”
47
An analogy could be drawn to Section 27 of the Evidence Act, 1872 serving as an exception to Section
162 of the Cr. P.C. in that the non-confessional portion of the statement made by the accused, if it leads to a
discovery of fact would be admissible under Section 27 of the Evidence Act, 1872, however otherwise it
would fall under the mischief of Section 162 Cr. P.C. and would not be admissible. This was held in the
famous case, Pulukuri Kotayya v. King-Emperor, (1974) 74 IA 65.
 12

5. GROUND REALITIES

It is disgusting to note that the Criminal Justice System is being gravely abused with
respect to the testimonies of panchas. The requirement under the provisions mandating
the presence of panchas is that they should be ‘respectable inhabitants of that particular
locality’. This particular requirement has been grossly abused by the police officers. The
following views of the researcher are based on an observation of the system as executed
in the city of Mumbai and is thus not making any general statements. 48 The practice,
unfortunately, that is followed by several police officers is as follows; they enter into an
arrangement with people who have been convicted in the past for petty offences in each
locality. Now when the police goes to conduct a search they either intimate these persons
who arrive at the spot, sign the panchnama or they do not even go to the spot but
subsequently arrive at the police station, when beckoned and sign the necessary
panchnama.

This particular issue has drawn the attention of Advocate Manjula Rao49, who is the
public prosecutor in the city of Bombay, who lambasts this system adopted by the police
officers50 She pointed out the instance of the famous Alistair Perriera case which is
currently sub judice before the Bombay High Court, wherein she noted that the persons
who deposed before the Sessions Court as Panchas51, were subsequently seen to be
deposing in Three other matters as panchas and had a Criminal Record.52 Now it is my
submission that the possibility of this being a coincidence is indeed remote and this
markedly brings out the lacuna in the system53

48
Ibid.
49
She was the Public Prosecutor in the famous Best Bakery Case.
50
She delivered a lecture at the St. Xavier’s College, Mumbai on “Forensic Science and the Criminal
Justice System” on the 20th of September, 2007, where she addressed this issue.
51
Gopinath (rev.), John Woodroffe and Syed Amir Ali, “Law of Evidence”, 16th ed. 1996, p. 132.
52
Ibid.
53
Ibid.
 13

The position can be best summed up in the words of the Honourable Supreme Court in
54
State of Gujarat v. K.P.Singh, wherein the Court pointed out the dangers of relying
solely on the testimonies of the panchas and observed;
“…because of appearing as police witnesses in a number of cases and
they being pliable and untrustworthy, their evidence cannot be relied
upon.”

This particular issue is related to the question as to what amount of weight should be
given to the testimony of the panch witness? This is because, there is always a significant
amount of uncertainty as to whether the panch witness is an independent witness or a
partisan witness?

The Supreme Court in State of Bihar v. Basawan Singh,55formulated the correct rule in
the following words, “if any of the witnesses…are not accomplices but are partisan or
interested witnesses, who are concerned in the success of the trap, their evidence must be
tested by the application of diverse considerations which must vary from case to case,
and in a proper case, the Court may even look for independent corroboration before
convincing the accused person…” 56
Thus a person who is concerned in the success of the trap is to be treated as a
partisan57 or interested witness. In Ramanlal v. State of Bombay,58 the panchas were also
with the raiding party and witnessed the preparation and carrying out of the raid. The
Court also held that “…it cannot be said that these two witnesses were not independent
54
1995 Cri LJ. 3623 (SC).
55
AIR 1958 SC 500
56
Another instance is the Best Bakery Case The prosecution examined two witnesses who signed
‘panchanamas' pertaining to the recovery of weapons from the accused. Abdul Mansuri, a civil engineer,
said that the investigating officer in the case, Kanani, had called him to the police station in May 2002, and
pointed to an accused, who later took them to recover and identify a long stick. However, in the cross-
examination by defence counsel, Mr. Mansuri admitted that in the trial at the Baroda court he had said that
he was passing by the police station and was called in to sign some papers and he was not told why his
signatures were taken. Mr. Mansuri also admitted that he told the trial court in Baroda that he did not know
or see anything. Abdul Kadiwala, the other witness, signed the panchnama for weapons recovered at the
instance of two accused, Jayantibhai and his son, Rinku (both are not arrested). Mr. Kadiwala said a sword,
a pipe and a knife were recovered.
57
A Partisan witness has been defined in State v. Pundit Bhikaji Ahira, AIR 1959 Bom. 543 at 546 as; “a
person who lends himself to be a tool in the hands of the police in a trap may evidently be regarded as
partisan witnesses and to that extent his evidence needs corroboration.”
58
AIR 1960 SC 961
 14

witnesses even though they consented to become search or panch witnesses.” Thus the
evidence of panch witnesses was treated not on the same footing as the evidence of
partisan or interested witnesses but as additional evidence to be considered on its own
merits. The mere fact that they accompanied the police and witnessed the raid does not
make them interested witnesses. They may stand on that footing if the circumstances
show that they share in the intention to raid or have become parties to that intention by
any subsequent conduct on their part such as being actually interested in the result of the
raid.59

6. CONCLUSION

In light of the aforementioned observations concerning the importance of panchnamas

and the evidentiary value of panchnamas and the testimonies of panch witnesses, it is
pertinent to conclude that panchnamas are not admissible as substantive evidence and are
merely corroborative in nature under Section 157 of the Indian Evidence Act, 1872 and
are also useful for refreshing the memory of the panch witnesses under Sections 159 to
161 of the Evidence Act. In addition to this, the document is also significant in the
context of cross-examination under Section 145 of the Evidence Act. Furthermore
Section 162 of the Criminal Procedure Code serves as a partial restriction on the
59
Furthermore the Bombay High Court in Ramchand Tolaram v. State, AIR 1956 Bom 287, pointed out that
if the panchas are not party to the trap and are there only for the purpose of witnessing what was taking
place, there is no reason to treat them not as independent witnesses but as partisan witnesses. Their
Lordships drew attention to the danger involved in treating panch witnesses as necessarily Partisan
witnesses. They pointed out that if panchas who come forward to do their duty in the administration of
justice as respectable citizens lose in the bargain their independent character and carry a stigma of being a
partisan witness, it would be a serious matter. In Omprakash Shankarlal Sharma v. State of Maharashtra,
1993 Cri LJ 3175 at 3181 (Bom), M.F. Saldanha, J. was of the opinion that “where the two panch witnesses
belonged to the same community to which the complainant belonged. The complainant admitted that one of
the witnesses was known to him, and the second Panch has admitted that he was a very good friend of that
Panch and the connection, therefore was very clear. It was held that neither of those two Panchas could
come within the category of “independent persons”. The solitary purpose of relying on the evidence of
Panchas was on the ground that they were disinterested persons”
 15

admissibility of the panchnama as evidence under Section 157 of the Indian Evidence
Act, 1872. The Court should exercise caution and ascertain whether any part of the
panchnama falls within the mischief of Section 162 of the Code of Criminal Procedure.
However, one should not forget the ground realities and the abuse of the system by the
police officers while implementing these procedural requirements, which have been made
to protect the interests of the accused and to ensure a fair investigation. Keeping these
realities in mind, the Court should be circumspect in accepting the testimony of a panch
witness and should strive to identify the nature of the witness and accordingly categorize
him as an ‘independent’ or a ‘partisan’ witness as the case may be. The Court should
accept these testimonies with caution and seek to rely on supporting independent
evidence in arriving at a decision. This cannot be emphasized more in a period of the
Indian Legal System wherein the Courts fail to hesitate in declaring the innocence of the
accused purely on the ground that “the entire investigation is a tainted piece of
investigation and the evidence led by the prosecution in this behalf cannot be accepted at
all.”
 16

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