 Sir, unmute yourself. Good evening, friends. And during these testing times, when you have a speaker who had just demitted the office after having an illustrious career as a judicial officer and thereafter as a judge, and who's known pan India for his judgments, and especially that J. Alipaz judgment just keeps on resounding in everybody's mind the way it was carried forward and how it changed the dynamics of politics in Tamil Nadu. But be that as it may, without touching the judgment, his understanding of law coupled with the appreciation of evidence has always been a benchmark which everybody wants to understand. Taking into that queue, we requested Justice Michael Kunan to take a session with us in our endeavor to decimate knowledge down to Tulukas as well as up till the all areas. We tied up with Daksha Legal. We have Basur Raja of Daksha Legal who has joined us as a knowledge partner. And without taking much time, as such Justice Kunan doesn't require any introduction. Everybody knows about him. And like we have always been speaking about that we want, that the speaker should take the mantle forward and give us the knowledge. And today's topic of Panchanama, the evidence to be valued, not only as a student, judicial officers, lawyers, are keen to understand the sanctity of Panchanama and how it has to be appreciated. And the way the people are just joining us on the webinar, it shows the immense popularity which he has. And in fact, just before we were going live, I was seeing that there's another session on the reverse owners coming forth probably on 3rd of May with Vikram and so people can join that session as well. And it only shows that once the speaker has demitted the office and immediately people are requesting him, his knowledge is known to everyone and they met him more popular. Over to you, sir. And thank you for accepting our invite. Thank you, Mr. Vikas, and good evening to all the participants. And before commencing with the subject, I think I take this opportunity to express my appreciation to Beyond Law and the team of Mr. Vikas for the initiative you have taken in organizing this series of lectures, that too in the most difficult times. I think as for me, I think it is a learning experience for me to interact with the participants who have been evincing keen interest in the diverse subjects chosen for discussion on this platform. So thank you once again. Coming to the topic of the day, I'm sure most of our participants are familiar with the term panchenama. It is also called mahasas. We also come across this term in civil law. But today, we'll be concentrating in the use of the panchenamas in criminal law. In criminal law, this term is so widely used. It has almost become an integral part of the investigation in criminal cases. I don't think you might have seen any charge sheet filed before the court without containing mahasas or the panchenamas of one or the other kinds. I think that itself speaks for the importance of a mahasas, be it in the investigation or in the eventual trial. But unfortunately, when it comes to trial, what we notice is that in every alternate case, we find the punch witnesses denying their presence and participation in the panchenama. And the courts readily rejecting this important piece of evidence on plimsy grounds as if these panchenamas have no legal value at all. I think it is in this scenario we have to understand what exactly is a panchenama. What is its relevance? Relevance in the investigation into a criminal offense. It's relevance in the trial of an accused. We also have to understand if the panchenama is not proved in accordance with law, whether the properties or the articles recovered therein lose their value, could they be relied on by the court? If it is proved, what is the value or the weight that could be ascribed to the evidence of the punch witnesses in determining the culpability or the innocence of the accused? What is the mode of proof? What is the mode of proof of panchenamas? I think these are some of the issues I think we would try to understand in this session. Now, firstly, coming to the aspect of what is panchenama. The term itself suggests it consists of two words, pancha and nama. Pancha is already, you know, you may be knowing it. It might have been derived from the words panchayatars, where in a village setup, the disputes used to be settled by the respectable persons of the village who were the or who used to be the witnesses for resolution of any disputes. And generally it was considered the presence of five witnesses, panchas. Five witnesses would be a relevant thing which would grant sanctity to any transaction. So it is a pancha and nama. Nama means, as you may be aware of that, we come across the vakaalatnama, nikanama, hibanama. Or in Kannada, we have got vilunama. See, that is nothing but a document in writing. So panchenama means it is nothing but a record of or something in writing or a record or a memorandum of the proceedings that take place in the presence of the panchas, in the presence of the witnesses. It can be two or more or five. So that is what is called as a panchenama. Now, if you see the term panchenama is not defined or explained anywhere under any statute, I think except for some local rules. For example, under the in-pest, in the case of in-pest, I think the Karnataka state, we have the separate rules regarding the conduct, what we call it, the Karnataka investigation of unnatural deaths and conduct of in-pest amendment rules of 2005. Otherwise, you don't find any statutory definition. We don't find any statutory definition of the term. But in the entire CRPC, there are two provisions which deal with this concept. That is section 100 of the CRPC in the context of search and seizure. If it's section 100, subsection 4, what it says is before making a search under this chapter, the officer or other persons about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality. If no such inhabitant of such locality is available or is willing to be a witness to the search, to attend and witness the search and issue an order in writing to them or to any of them to do so. So before conducting the search, what it says is that he has to summon or secure two independent and respectable inhabitants. I do not know what an extent we can interpret this or insist on this formalities if you take, for example, an offense takes place in a forest where a search has to be conducted or a person has to be arrested immediately moving out of committing a theft of forest produce. I think where no inhabitants would be available. I think that we'll see it is not, might not be a subject matter for our discussion, but that is the one provision which says that a Panchana when it is in a search, it should be in the presence of two independent and respectable inhabitants. Then subsection, subclass of five, 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. So what is a Panchanama? We get some clue, some indication here. So the search shall be made and it shall be signed by such witnesses, but no person witnessing a search under this section shall be required to attend the court as a witness of such search, unless specially summoned by it. So this is one of the provision. The other provision we find is under section 174. Under section 174, that is a inquest. See what? Under section 174, where the officer in charge of a police station or the police officer, specially empowered, receives information that a person has committed suicide or has been killed by another or by an animal. So it is of unnatural nature. What it says 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 neighborhood shall make an investigation and draw up a report of the apparent cause of death. So here, the only two places we find the manner in which the Panchanama has to be prepared and the role of the witness or the role of the panchas or the witnesses. And that is under 174, under section 100, it is to affect the search and seizure. And here it is to know or to ascertain the cause of death, describing such wounds, fracture and all other things as might be found and skating. So that is, these are the two provisions we come across, but you should know these are not the exhaustive kind of, these are not the exhaustive kind of the Panchanamas that we come across and that are prepared in the course of the investigation. But one thing is clear that the Panchanamas and the Panchas, they come into picture only after the commission of the offense. In other words, these Panchanamas come into existence in the course of the evidence, in the course of the investigation and not, and therefore it follows that the Panchas are not the witnesses to the crime or to the occurrence. So their involvement comes into picture only at the stage of investigation. They are the witnesses only to the proceedings or the transactions that take place in their presence during the course of investigation. So this aspect we have to, when you try to understand what exactly is a Panchanama, a Panchanama is a part of the investigation. It has got nothing to, they are not the witness. So the witnesses are secured to watch and see the proceedings that are conducted in the course of the investigation. So these are the witnesses only to the proceedings conducted by the investigating officer. So that has to be bone in mind. And that gives an indication that the main purpose of the Panchanama is to make record of the transaction so that it could be used either as aid memoir or to refresh the memory of the Panchas or later to use it as the previous statement of the witnesses. So these are the contours or the outlines of the Panchanamas. So otherwise, Panchanama, if you should have a simple idea of a Panchanama is that it is a record or a memorandum of the transaction or the events that take place during the course of investigation in the presence of the Panchas. Now to know whether, as we said that the act or this code deals with only two types of Panchanamas but they are not the exhaustive narration or the detail, exhaustive of the Panchanamas. There are various other kinds of Panchanamas also. And to know that what are the other types of Panchanamas you must know because as I said, as I told you this Panchanamas are the part of the integral part of the investigation. You must know what exactly is investigation. What is the investigation? See investigation is defined under section 2H of the code. It says investigation includes all proceedings under the code for the collection of evidence and conducted by a police officer or by any person authorized by the magistrate. So evidence, the investigation is nothing but collection of the evidence. Now you may be knowing it. See every crime takes place at a particular time in a particular place. As soon as a crime takes place or a person comes to the knowledge or gets the knowledge of the crime the criminal law is set in motion either by lodging a FIR or the first information report under section 154 or the investigating officer himself coming to know about the commission of the offense. Then the law sets in motion and section 156 if you see it authorizes the section 156 of the code. It authorizes the police officer to investigate as a matter of right without an order of the court. So what it says is that any police officer in charge of a police station without the order of a magistrate investigate any cognizable case which a court having jurisdiction over the local area within the limits to such station would have power to inquire into or try under the provision soft. So the power to investigate is derived by the station house officer as soon as the offense is committed or comes to his knowledge and what is the procedure of investigation? See section 157 if from the information received or otherwise information received means the FIR under 154 or otherwise but anyway an officer in charge of a police station has reason to suspect commission of an offense which is empowered under section 156 to investigate. So he's empowered under section 166 he shall forthwith sent a report of the same to a magistrate empowered to take cognizance such offense upon a police report and shall proceed in person or shall depute one of his subordinate officers not being the below the rank as the state government while general to proceed to this spot to investigate the facts and circumstances of the case. So we said Pancenamas come into existence in the course of the investigation. Investigation is set in law, set in motion or the criminal law is set in motion whenever a crime is committed or the knowledge of it is coming or the investigating officer comes to the knowledge of the commission of this offense. Then what is this duty? He's empowered under the court and his duty is he has to immediately proceed to this spot and investigate the facts and circumstances of the case. Therefore the mahasas or whatever the proceedings that he conducts during the course of the investigation there consists of the certain stages or the certain acts of the certain what we call it the various stages of the investigation and what are these various stages? The section 157 he must proceed to the spot. So the first stage is he must proceed to this spot. Second, discovery and arrest of the suspected offender because these are the various stages even in the judicial pressure this one I think in the year 1955 that is H&M Rishma's case. I think they have dealt with this and have said what are the stages in an investigation to be conducted by the investigating officer? First, he should proceed to this spot. Second, ascertainment of facts and circumstances of the case. Third, discovery and arrest of the suspected offender. Fourth, collection of evidence relating to the commission of the offense which may consist of examination of the various persons including the accused what we generally called as the statements which are reduced into writing. Then search the place, seize the things considered necessary as evidence to prove the charge or to prove the offense. And finally, based on this evidence collected by him to form an opinion or to prepare a report which you call it a final report under section 173. So therefore, when at each stage of these proceedings at each stage of this investigation if he conducts any mazes or any if he in at each stage if he prepares any, if he collects any evidence and he is required to make a record of that record of that evidence, that is exactly what we call it a pancharama or the mazer. For example, when he proceeds to the spot the traces of evidence will be found at this spot. So he is required to make a record of that evidence traces of evidence will be found at this spot. And there he has to collect the evidence regarding the traces of evidence found at this spot and make a record of it. That is what we call it a spot pancharama. If at this spot he finds the weapon used for the commission of the offense and he finds that it is required to be seized. He effects the pancharama what is called as seizure pancharama. If in the course of the investigation he sees that the accused has to be arrested then he has to secure the witnesses, secure the panchas and in the presence of the panchas he arrest him and prepares an arrest memo or the arrest mazer. And these are all arrest mazer. And if the identity of the accused has to be established then he subjects in for the test identification and a mazer or the record produced at that stage is called test identification mazer. Or if an inquest has to be conducted or on questioning the accused he finds that he makes a disclosure. Then again he prepares a mazer. What we call it a disclosure mazer. And if it leads to the recovery he prepares a recovery mazer. See all these are the mazers that are prepared in the course of the investigation at different stages and depending upon the purpose for which the pancharama or the investigation is conducted by him. So that's the essential purpose of this pancharama is nothing but to create a record a memorandum of the proceedings conducted by him. Now if you analyze the evidence that he has collected by the investigating officer in the course of the investigation in the presence of the panchars if you see this in the background of the Indian Evidence Act all the material collected by him in the presence of the panchars be it at this spot or by way of arresting the accused by effecting recovery but whatever it may be it relates to the evidence regarding the relevant facts. I'm just coming to the evidentiary value of the pancharama. See what whatever pancharama she prepares it has got a relevance to the ultimate proof of the offense by way of relevant facts. See section five of the evidence act it states about section five. Those of you who have got the book can just refer to it, see section five. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are here in after declared to be relevant and of no others. So that case or an offense can be proved by the fact in issue or by the relevant by proof of the relevant facts. Now, what are the proof of the relevant facts? So what are the relevant facts are dealt in section six onwards? If you see section seven, the facts which are the occasions, pause or effect of fact in issue is you see the illustration B. The question is whether a murdered B marks from the ground produced by a struggle at or near the place where the murder was committed are relevant facts. Now in the course of the investigation, he's empowered to collect facts and circumstances of the case. And the law requires an investigating officer to go to this spot where the telltale evidence is available to examine the place. And certainly if the question is whether a murder and B the marks on the ground produced by the struggle for example, if there was a scuffle between the parties or if the vehicle has arrived that the tire marks would be found at this spot. All these are the relevant facts to prove the ultimate charge against the accused or to make out a case against the accused. And that evidence is collected in the presence of the panchas. And when that evidence is collected, he makes a record of it, what is called as panchanama. So this panchanama essentially relates to the relevant facts which are required, which are, which will be, which when proved will establish the fact in issue ultimately. So that we should keep in mind. So, and likewise, you see section eight that is motive, preparation and previous or subsequent conduct. The conduct of any party or of any agent of a party to any suit or proceedings in reference to such suit or reference of those. Here, if you see this example, the question is whether he committed a crime, the fact that he absconded after receiving a letter warning him that if party was being made for the criminal and the contents of the letter are relevant. Next, he is accused of a crime. The facts that after the commission of the alleged crime he absconded or was in possession of property or the property or the proceeds of the property acquired by the crime or attempted to conceal things which are might have been used in committing it relevant. So the relevant fact and that exactly what has been done by him. So when he prepares and arrest Pancharama, he gathers necessary evidence in the presence of the panchars which proves the factum of abscondance. If in the, at the time of abscondance if he's found with the possession of the properties which are stolen or which are the subject matter of the offense. Again, one more evidence has been created. See, that is the role of the pancharama. That is the purpose for which it is. So you should understand that that whatever evidence he collects and a memorandum is prepared with regard to that it relates to the relevant facts which ultimately should be proved or required to be proved during the trial. So it is, but you should know that when this material is collected and a panchanamas are prepared these panchanamas themselves are not evidence. They are only a corroborative piece of evidence. What is evidence is because we said that in the course of the investigation he collects the evidence in proof of the material fact. And then whatever evidence he collects he prepares a memorandum of it or a record of it in the form of a pancharama that by itself does not prove the offense. That is not an evidence. It is only a corroborative evidence. What is evidence is what the witnesses speak before the court. So now we're coming to the proof of it. So the evidence is what the witnesses or the pancha witnesses go before the court and state what has taken place before them. That is they should step into the box and state what they have seen and heard. That is evidence. If you really see what is evidence under the evidence act. Evidence is the evidence means and includes all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry to all documents including electronic records produced for the inspection of the court. Such documents are called documentary evidence. So by merely by preparing the pancharama it cannot be translated into any evidence. This pancharama I've got a limited value and what is the limited value? It is only a record of the past transaction. A transaction or the events that have taken place in the presence of the pancharama have been recorded. They have got a relevance to the facts which ultimately lead to the proof. So how to prove that? To prove that pancharama, the evidence, the pancharama by itself does not prove it. It is a document. The contents of it has to be proved. So therefore the witnesses have to step into the witness box and they have to state what they have seen and heard. And then only the pancharama can be taken as corroborating evidence even before the court. But the problem here arises if the panchas disown the pancharama and that is generally it happens. They are called to the witness box because with all seriousness, let us say the police officer has collected this evidence and he relies on the punch witnesses. Now a stage has come because all this evidence relates to the material facts or the relevant facts. Now, it is not a substantive evidence. It is just a corroborative piece of evidence in the form of a pancharama. Evidence is what is given before the court. But when it's called to give an evidence, he disowns it. He disowns his presence or involvement in the preparation of the pancharama. And in such generally what you see is that how a pancharama is sought to be produced before the court. When a witness is called before the court, the public prosecutor asked him generally, yes, have you been called as a punch in this case? The witness may be knowing whether what is this case or whether he remembers. If he says yes, then he will say, then is it your signature? Yes, he asked two questions and the signature is marked and he has admitted that he has acted as a punch and the pancharama is admitted in evidence. Whether is it a proof of the document? See, what is the evidence? See, what the investigating officer collects material and produce before the court. Evidence is what the court permits the witnesses, the party to state before the court. So what has transpired during the course of the investigation has to be stated before the court, then only it becomes an evidence or the document itself has to be produced. If the document, when it is primary document itself is produced, the document itself is not proof. Even the document has to be proved. The contents of the document has to be proved only by the testimony of the maker, one who can vouchsave, guarantee to the truth of the contents of these documents. Without that having not been done, he is simply the public prosecutor. If he admits, if it disowns it, he just treats him as a style and then ask him whether you have an opportunity, he totally denies it. Without resorting to the procedure that is without knowing for what purpose this pancharama was prepared, what is the nature of this document when it comes before this court. So the first thing every public prosecutor I really advocate should know, this is a document prepared in the course of the investigation. It is only a memorandum of the transaction that has taken place in the presence of the panchas. It contains the record what the panchas has seen. It is not an evidence. Evidence is that pancha should come before the court. You should speak about that's the pancharama. Then only it gets screwed. And I could, instead of directing on this, I could give you one decision of our own. I quote, it was rendered by Justice Somanath Iyer as it then was, which is reported in Mysore Law Journal 1965 page 400, where I think very succinctly he has explained it. When a pancha witness like PW 10 is examined, he should be asked to give evidence before the court about all the matters which were observed by him at the spot to which he was taken. If he's not able to remember the details, he should be allowed to refresh his memory with the aid of the pancharama after. And that's the very purpose for which what is the, you make a record of the events that has taken place with the object that at the later stage that could be used as an aid to refresh your memory without that having not been done. If you follow perfectly, of course, the preparations also of the pancharama has come later, that very perfectly you do it. Even in the proof of it also very perfectly, if the evidence, the very purpose of the pancharama will be defeated. So here what he says, so he says that if he's not able to remember the details, he should be allowed to refresh his memory with the aid of the pancharama. That is the purpose. After he refreshed his memory in that way, the prosecution should elicit from him in court what were the various matter and facts which he observed before the pancharama were prepared. See, just understand that. So what has to be elicited? So even you just give this document, you refresh him, but still he has to speak, he has to state without missing any words what he has stated. Not that the public prosecutor has to go, he has to speak, the document is used only to refresh his memory. Instead of eliciting the information in that way, it is not permissible for the prosecution to read out the pancharama to the witness and to make the witness say that the contents of the pancharama are true. This is exactly what is happening in the court of law. Just the public prosecutor, he does not know how to prove a pancharama. He just asks whether if he says that, have you read it? You are very present as in pancharama. Yes, is it your signature? Yes, that is not the mode of proof. This is a document prepared in the course of the investigation. It contains the previous statements of the party. So it should be proved that every contents of it should be spoken to by the parties. So every important fact or matter which was observed by the witness when the pancharama was written should be elicited from him in the course of the evidence before court and it is not enough for the prosecution to merely make the witness say that what was stated in the pancharama is true. Since the pancharama itself has value only as a corroborative piece of evidence and is not substantive evidence. Substantive evidence is what the witness gives before the court. And at that time to corroborate his evidence, this pancharama is used. That is the only purpose for which the pancharama is prepared. So that should be understood by every legal practitioner. But now another question that may arise while admitting this pancharama in evidence is that this pancharama, as we said, contain the previous statement. And it is recorded in the course of the investigation. A general objection is raised by the defense council that it is said by section 162 of O, the CRPC. What is the position of law? See, if you see section 162 of O, CRPC, what it prohibits section 162 of CRPC? No statement made by any person 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, nor shall any such statement or record thereof whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as here in after provided. So if a statement is recorded by the police officer two requirements are to be satisfied to say that the statement recorded or the produced before the court falls within the mischief of section 162, it should have been recorded in by the police officer in the course of the investigation. Then it shall not be used except it says that for the purpose of contradicting and that also by proving the previous statement, I think that's the later part of this. What is the nature of the Pancanama or the document or the Pancanama that is produced before the court or that has been put, that was prepared in the course of the investigation? What is the nature of this document? I think instead of, there's a full bench decision of the Bombay High Court, which instead of me dilating on this point, which is directly on the point, it is just in the case of Vishnu, Krishna, Balukar and another versus the state of Arastra. 1975, criminal law journal 517. The primary and essential purpose of making such Pancanama is to make a record of things which occur in the presence of Pancas and which are seen and heard by them. And the purpose is never to convey or impart knowledge to the police officer about the things that are seen or heard by them. So here the question that was before the full bench was whether the statement contained in the Pancanama is hit by section 162. The court said the test is whether it is prepared, whether it is recorded by the, whether it is made before the police officer and recorded by him in the course of the investigation. No doubt in the instant case, the Pancanama is prepared in the course of the investigation. But it is not a statement made to him. It is rather what is recorded are the events or the things that are seen by the, that are seen or witnessed by the Pancas. That distinction, because if you see how a Pancanama is prepared, though a Pancanama is prepared by the police officer, it is prepared as if it is the statement of the witnesses only. A Pancanama starts stating that on such a set date, the police officers, the witnesses says that, the witnesses, the name of the, the name and address and details of the witnesses are given, then the particulars of the police officer, then the witnesses themselves say that the particular police officer, summoned us to act as Pancanamas and we agreed. And in our presence, the complainant showed the place of the offense and we entered the house and we saw that it was a room. And one side we saw, we found that some cloth hanging from the rafter. See all these facts, now how it is written, it might have been scribed by the police, but in effect, in substance, it is the statements of the, it is the statement or the narration of the panchas itself. It is not intended to be made or intended to give a statement before the police as in section 161. In 161, the witnesses give a statement. Now, for example, in a inquest mahasar, an inquest was conducted by the executive magistrate. He notes all the conditions of the body, the conditions of the dead body and other surroundings and all other things. Then, in the other onlookers or the immediate relatives or some persons who are know of the things, they are questioned about the immediate cause or the probable cause of the dead body. There, what he does is that he questions either what has been entered or recorded in the panchana or the statement of the witnesses regarding the immediate cause of the, such statements may fall within the mischief of 162, but a memorandum or the details entered or made details or the facts detailed in the panchana, they are not made to the police officer as if it is a statement of the, statement made to the police officer to inform him about the offense or to incriminate or to inculpate the offender. That is not the intention. Therefore, in this decision, what it says is that even if, but if the document styled as panchana, it is in reality is in substance, a mere record of the things that occur in the presence of the panchas and of what the panchas have seen and heard, the mere fact that such record has been scribed by the police officer or a police scribe will not convert the recitals thereof into any statement communicated to the police officer within the meaning of section 162 of CRP. Similarly, the further fact that such record is retained by the police officer with him till it is produced at the trial also will not affect the position nor will the fact that the panchas have subscribed or offended their signature at the foot of the panchas will make any difference. So therefore, this, what has been laid down here is the statement made therein are not hit by section 162 of the evidence. But in a, but in a later decision, that is in AR 1971 Supreme Court 2566, statement in Panchanama can be used in evidence only for contradicting witnesses whose statement is contained in Panchanama, but for so contradicting him, his attention must, before the writing can be so used, called so used, be called to parts sought to be used for contradicting him. So, see this situation is arised, for example, in a trap Panchanamas. Under the Prevention of Corruption Act, am I exceeding the time limit? Yes? No, sir. The most engaging part is that the total subscription is over, I am receiving messages that you're not allowing us to log in. The participation level is full. On the YouTube, it is downing the highest viewership as on date, though we have done more than 325. I can say that odours to the way you are pressing it, people are just logging in. The YouTube subscription to the viewership is more than double than what we normally have. Yes, that is pretty anyhow. Thank you. But see this, sir. Yes. So it is not a statement recorded therein, are not hit because the reasoning therein was that it is a statement, though made in the course of the investigation, it was not made to the police officer with the intention to make any allegations or to give any evidence against the accused in proof of or in support of the offense. That was not the intention at all. That's why I said, first itself I said, this pancheramas fall within the realm of the investigation, which arises subsequent to the commission of the offense. It's not a witness to the commission of an offense or to the occurrence at all. So therefore, that is the reasoning with which it has been held. But in the later decision, if you see, what has been held is that statement in pancherama can be used in evidence only for contradicting witness in whose statement is contained in the pancherama. See, in this case, what has been said, it may be pointed out that any statement made in the pancherama cannot be used in evidence except for the purpose of contradicting the witness whose statement is contained in pancherama, 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 which which are to be used for contradicting. In other words, here, we have said that the main purpose of the pancherama is to corroborate the testimony of the witnesses during the trial. And if you see that, if the, I'll just give an example in a trap cases. See, in the trap cases, you may be knowing there are two pancheramas. One is called this entrustment pancherama. So for example, if a public servant demands an illegal gratification and the complainant wants action, he goes and the lodges a complaint and that the police officer, he makes a preliminary inquiry, sends him, gives him a tape recorder just to ascertain whether it's not a prevalence complaint, there is some substance. And after ascertaining that, of course, it is a true and genuine complaint, then he calls two witnesses. And in the presence of those two witnesses, he explains in the entire trap procedure. He gives the thing that he spares the notes, that is the intended bribe money with some Hanupthillion powder and then hands it over to the person and ask them to go and hand it over to the public servant. And he also instructs the shadow witness. He's also generally is another public servant and ask them to accompany and to watch all the events. See, all the detailed instructions are given and they are reduced into a pancherama, what is called is trap pre-entrustment pancherama or pre-trap pancherama. As per these instructions, they proceed there. They go to the public servant. Then as a trap is successful, he receives the amount, then in police or investigating office, when a signal has been given, of course, I'm going to cut it short of all that it is, the investigating officer comes in and he asks, he asks the complainant as to what happens. Now the complainant gives the details. So this person asked me, I just came there, he asked me whether he have brought the money which I had demanded. Then I handed over the money, he received it and kept it in the chest of the drawer. Then he asked the punch witness, what has happened? Now the shadow witness, punch witness or the shadow witness. Now he also states, he may corroborate the same thing and that is recorded. The question is whether this is a statement made to the police officer, is it hit by section 162? This is, it is the, if you follow the decision of the full bench of the Bombay High Court, it says, no, it is not intended to give you information about the commission of the offense. The witness, punch witness has narrated the facts what has taken place before him. But here in this decision, it says, statements in the Panchanama can be used. Now, what happened in this case is that when the witness contradicted himself. See the witness, in the full bench decision, I'll give that, see that the case of the prosecution was that the demand was made by a case number one and two. That is the case of the prosecution till the pre-trap Panchanama. But when the complainant and the shadow witness go to the public servant, the accused number one and two says you give the money to, he calls accused number three another beyond or another clerk and tells you just signed this document, you hand over the document and collect the money, whatever he pays. So this complainant and this transfers during the trap Panchanama. The complainant also is there, the shadow witness is there and the money is received by the third person that is accused number three. Now the complainant tells before the investigating officer that the accused number three asked me to hand over the money the Saheb demanded. Saheb means accused number two demanded. But this punch witness does not say so in his statement in the Panchanama. So there is a omission in his statement in the Panchanama. And this omission amounts to material contradiction because the case till then was that the amount was demanded and received demanded by accused number one and two. Now here in the absence of this evidence or there is a contradiction in the evidence of this witness, it looks as if the demand one acceptance was made by accused number three or at least the evidence of the complainant is now contrary to the evidence of the punch witness. It is in this context what the Honorable Supreme Court has said that when the witness contradicts himself then though it is a previous statement, the general use of the previous statement is to corroborate the testimony. It says you can make use of, you can impeach the credit of that witness by request to section 156.3. Section 156.3, section 155 sub plus three impeaching the credit of witness by proof of former statement inconsistent with any part of his evidence which is liable to be contradicted. So we should know that the Panchanama is generally used only to corroborate the evidence. If it is only for corroboration, it falls under section 156 to 158. So that means it can be used to refresh the memory. But when the witness or the punch witness, the evidence of the punch witness is contrary to what is recorded in the Panchanama or contradicts himself, then it can also be used the former statements which is inconsistent to the evidence. Even now here there's an inconsistence that the material contradiction which is liable to by proof of the former. So then by proof of former statements inconsistent with any part of his evidence which is liable so the witness can be impeached by use of his former statement. Then you have to take request to section 145 of the Indian Evidence Act. You have to prove what is the inconsistent or the contradictory statement that has been made. And that relevant portion has to be marked and later has to be proved as you know it through the IO. So the purpose of the position of law now you should know that it is the statement that has been made in the course of the evidence not intending to be to incorporate the accused but not with regard to the commission of the offense or occurrence. It is a record of the past transaction but if the statement or the evidence given by the punch witness is contrary to what is recorded therein then by use of section 155.3 he can be contradicted and if he's not contradicted whatever says in the evidence has to be accepted and that is exactly what has been laid in this decision what it says it may be pointed out that any statement made in the Panchanama cannot be used in evidence except for the purpose of contradicting the witness whose statement is contained in the Panchanama but if it is intended to contradict him by writing is by drawing his attention must before the writing can be proved is called to those parts that means he should resort to section 145 he must draw his attention to that part, mark it then prove it and then contradicting and that is how we have to impeach the credit of a witness and this is later followed in Binaikumar Singh versus state of Bihar 1997 one SCC 283 the credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence import. See that where now you see the, what in the full bench decision what has been held is that the statement that you made is not with an intention to not with an intention to give a statement before the police under section 162 of the but this decision says a credit of a witness can be impeached under 155, 3 by proof of any statement so even if that statement finds place even in the Panchanama even that also could be used to discredit so therefore if he contradicts if a punch witness gives an evidence contrary to what is recorded in the Panchanama then the course to be adopted is to read a style, prove the argument and impeach his credibility and that is what he says but if the witness disowns having made any statement which is inconsistent with his present stand his testimony in court on that score would not be initiated until the cross examiner proceeds to comply with the procedure prescribed in the second limb of section 145 so here this witness comes and says there's a punch witness though he has not stated in the Panchanama in the witness box that's a substantive evidence in the witness box he says that in my presence the accused number the accused number three asked the complainant to hand over the money demanded by the Sahib it is not there in this previous statement then if the defense counsel if it does not treat him does not cross examine him with reference to that omission which amounts to a material contradiction by resorting to the procedure under section 145 then his evidence will be believed so therefore what it means is that if an inconsistent statement could be contradicted also so the Panchanama could be used to refresh the memory for corroborating if the witness contradicts this previous statement he can be his credit could be impeached by taking request to under 155 bracket three am I clear or is there any confusion in this? say the first you should know the nature of this document it is essentially prepared as a memorandum during the memorandum of what things take place in the course of the evidence in the course of the investigation its main purpose is to create a memorandum or a record so as to refresh the memory of the witness in the of the witness in the course of the trial and therefore it can be used to refresh his memory under section 156, 157 but if he contradicts it what is there in his previous statement even he could his credit could be impeached by proving this previous statement which is inconsistent to the evidence given before the court I think that is the evidentiary value for the Panchanama I think with this I will Thank you sir Yes I was asked Mr. R.M. Ganjikati he had participated he is very well connected with the police academy Yes, yes he is the person with whom I was saying that he wanted to connect we will ask him to unmute himself share his ideas Sir kindly unmute, yes Sir, good evening sir Good evening, good evening The today's session is very good and nice and informative our probationary device about 20 have also joined the session they gain knowledge from you sir it will help them in the future how to collect the evidence and how to draw Panchanama and how to secure the Panchanama in fact I am grateful to you on behalf of Karnataka Police Academy sir now I am working here as a law officer senior in the Karnataka Police Academy I am taking the criminal procedure code you are Yes, yes and also personally I saw you and I heard your lecture and in the public prosecutor's conference two years back in the Bangalore so thank you sir, thank you very much Thank you and also I extend my gratitude to Mr. Vikas Chattaratha he recognized these functions this is the free one number of advocates and police officers gained the knowledge even our officers one of my probationary device he will share his experience he will share his experience His name should have been known Dr. Sivinath asks excellent introduction is there any consistency that the police complain need not be signed and the signature by way of Panchanama Yeah, is there Is there inconsistency that the police complain need not be signed and the signature by way of Panchanama or the police complain he says police complain is not to be signed whereas the signature is there to be on the Panchanama Is there any consistency that is why he said that even though a Panchanama it is made as if it is prepared by the police officer in effect it is the statements of the witnesses only it is drafted in such a way that is what in the full bench decision what I read out to the later portion and that is how that procedure they follow apparently to get over section 162 see if it is if a statement is made to the police officer then that cannot be made use of except for the in the course of the trial for the purpose of contradictions otherwise it cannot be made use of there is a total embargo so to get over that a Panchanama how it is drawn Panchanama is drawn as if the author is are the Panchas only so every Panchanama if you see a spot Panchanama or seizure Panchanama on such a such a date the police inspector such as such a police inspector of such as such a police station called us or summoned us to be the Panchas and we agreed and accordingly in our presence in our presence the complainant took us showed us the place of of and so somebody showed us then ultimately they sign it the signature is of the Panchas and the investigating officer you may just counter sign it or you may say that is before me that's all so it goes under the signature of it not only goes under the signature of the Panchas it is got goes under the dictation of the Panchas it is drafted in such a way therefore the rigorous of section 162 is done away with but only things that it contains a previous statement what is its evidential value a previous statement it can be used here is a Panchanama since it is prepared in the course of it it is only to corroborate the witnesses but the later the decisions say that even the statements there in if they are contradictory you can that is the only change otherwise this the nature of this document is it is not an statement return or they prepared or recorded by the police under section 162 162 does not require signature so this does not protect the nature of a 162 statement at all so that's why it gives you the you will understand that very beautifully this is explained that is the Bombay full bench decision we will share the full bench judgment in the group yes before we take the next question I will say that those who have missed our previous webinars can like, share and comment our YouTube channel of Beyond Law CLC because all those previous webinars including the present one the present one is life they can connect on Beyond Law CLC and this is by Dharitri Akash is there any difference between a punch witness and a testing witness punch is the attesting witness is he just attest he need not have the knowledge of the contents of the document the author of the document is someone else he attest the that such a document has been executed by such a person whereas Panchas are the witnesses to the transactions that take place in their presence it is in a way this Panchanama is a document of the Panchas itself that makes all the difference whereas an attestor is a just a signatory who attest the execution of a document by the author so no way we can compare an attestor no attestor is required here he need not attestor need not know the contents of the here the contents themselves are proceeding from the Panchas so that is the see this procedure has been adopted to give sanctity to the investigation conducted by the police so if a search why the under section 100 and 173 why they insist the do respectable inhabitants see they say that because whatever you do see anything is possible in that because a police officer of course you can be a sincere but the possibilities are there if a search has been let us say a search has been made in the house and the police if they want they can plant anything while searching therefore before a search is made the law requires that the person who searches all himself has to be searched so that the possibility of anything is planted before the search is ruled out and when you during the search or during the seizure there can be 10 items you can make a list of any items of who you want therefore you want an independent persons a respectable persons in whose presence you make all this search you make an entry in an inventory a list and soon thereafter you subject it to the property for see all the safeguards ensure that a censor a fair play so that the accused is protected and the police do not play mischief in the course of the evidence in the course of gathering the evidence see this is the purpose and why that this one what you call that is not necessary yes the next question is in a Panchnama all witnesses deposed in front of the court that they didn't even know they didn't even have the knowledge that they have witnesses to such Panchnama how can you contradict the investigation officer in this case contradict the investigating officer see this is the really a pathetic situation see what I told you that a Panchnama what a serious business it is and what is the purpose that you are collecting the evidence in the course of to prove the relevant facts relevant facts which ultimately will support the substantive evidence in proof of the fact and issue but why these witnesses turn hostile I think that was the Mr. who is that Ganjigate Ganjigate told me that many of the police officers are there I think in reality what happens is these witnesses there are those who are called to act as punch may not be knowing what at all what is taking place I think that is the main reason we don't call them these witnesses are false witness the manner they depict and that's exactly what happens I'll tell you one example for example an accident taken place the vehicle accident some years back of some of my relatives so immediately we went to the police station now the police do not record the first information the only thing what they do is they take the key and the wait and the next day the other vehicle owner goes and then I think some kind of settlement thereafter the FIR is registered and the spot Panchanama is prepared thereafter see the law requires under section 100 also section 174 whatever it may be to immediately to rush to the spot because the telltale evidence will be there you do not do that you do not allow the evidence to go and later you call these witnesses they are not even made aware for what purpose they are called if they it may be that they may tell them that is you have to act as a witness and they immediately take them to the police station take their signature see Panchanama has to be prepared at the spot not in the Panchanama and the reality it happens is that that signature and that is what the witnesses suppose so you can't blame them why these witnesses are there I think to be fair you must tell them it should do you should read over the context that's also one of the requirement once you prepare the Panchanama you should read over the Panchanama and when only thereafter you should sign then they know it when you do not know all these things do not do all these things and simply take their signatures naturally the witnesses deny their presence and participation in such situations what has to be done what I told you is the first decision what I told you of Justice Aiyan what is the role then the evidence recorded in the Panchanama can be used to refresh his memory you have to because he has not contradicted or anything he totally denies it so then he is treated hostile and then this could be used only under 156 and 158 to refresh his memory not under 156 3 you can't impeach his evidence there his credibility you want to be proved so then you have to refresh his memory you can either give this Panchanama to him ask him to read it but thereafter through his own mouth he has to repeat it he has to say what all things that is evidence evidence is what the court permits you the statement what the court permits one to make in the court of law so it is not that you refresh his memory then if he says even thereafter if he denies there is nothing no way out that this evidence this evidence cannot be considered at all you have to take recourse to the other punch witness or you have to prove this execution through the IO but the contents are not proved unless the contents are not proved the document is not proved that Panchanama is of no value at all so therefore this confronting the signature is only this statement what I referred it in the later two decisions last two decisions is when there is a contradiction here there is no contradiction is a total denial so this Panchanama could be used only to refresh the memory and if the public prosecutor is not successful that is the end of it he has to give up and we have to say that this Panchanama the other witness also says that it is the same thing we have to discredit I am reminded of two issues one was in such a situation one was made to sign in an English language but actually he knew only Punjabi I am talking of Punjabi it was said that once he is not understanding the language in which it was the contents are there but he is signing this there is no sanctity another was they say that you cannot have the Panchanama's witnesses etc just like Parit they do not even know what is written so before we take the next question I will ask Mr Ashwini Taneja who is an expert in the PMLA and white collar crimes he has joined a totally show speaks volume of your popularity also I will ask Mr Taneja to show his how their session he liked it Mr Taneja Sir I must congratulate first of all Vikas because he has chosen such a topic which is of great importance and sir to you and kudos to you sir the way you explained it because what happens in our life we make lot of progress intellectually also in all box of life but we tend to forget the fundamentals and in any matter any proceeding whether it is civil proceeding it is criminal proceeding I mean Panchanama always remain before us that is where the proceedings start in fact without Panchanama Panchanama is the soul of any proceeding if you take out the Panchanama from the proceedings there is nothing the case collapses just remove the Panchanama from there and we do not even know what Panchanama is if my law student today ask from me sir what is Panchanama I will not be able to explain immediately what is Panchanama so what Panchanama is where from this word has come what is its entity I mean to what extent it can be accepted as an evidence to what extent it can be known these are such I mean these are such ticklish issues that we have never pondered over it and the way you explained it I mean all kudos to you sir I am really marvellous and so I would request Vikas ji now you have explained the fundamentals there are very ticklish issues which are still left to be I mean covered so after a month or so another session can be planned on this whereby definitely in fact I would share that he just demitted the office and probably it is our first session after his demitting of the office that Justice Kuna could say probably it is his first session out here and we are enamoured by the fact that he is accepted and his popularity I just kept on receiving messages that we should be allowed to log in in the way people have garnered and Mr. Taneja has also done three different webinars on white collar crime on our platform and where it is coming from him is a testimony of the fact that all all participants are missing so before we part and we ask the participants to join tomorrow webinar again we have a very popular speaker and a resource person again from Karnataka trial of suits for declaration of title injunction and possession that is by Mr. Esar Somasekar a former district judge and he is also taking classes in the Karnataka judicial academy he has already done few sessions with us they have all garnered more than 6000 views so do stay connected with us tomorrow at 6pm and I would ask Mr. Atravikram who is also getting you connected on third to share his experience Atravikram good evening Mr. Vikas am I audible yeah perfect good evening sir good evening we are blessed to have sir with us today he is like a ocean of knowledge especially with regard to criminal law and it was always a pleasure and a learning learning curve especially for us and we were privileged to appear before his lordship for high court and definitely we are missing sir in our high court now and I would always remember two things sir used to be very quick and secondly sir used to never differentiate if it was a noice who has just joined the bar or if it was a senior advocate sir used to only go with the merits of the case that is something that we can never forget with sir and as rightly said by our honorable chief justice sir always served judiciary without any fear or favor and supreme court also honorable supreme court has summed up sir's contribution I would like to just reiterate those exact words the trial court was meticulous sensitive vigilant judicious in approval of evidence these are the exact words of the honorable supreme court in the judgment so I have no more words to say about sir sir thank you so much we have appraised us and you have given us so much of knowledge thank you so much sir and I wish you a safe and a happy retired life sir thank you so much thank you very much before we part for the day to the participants they are saying that kindly upload it it's already uploaded we are live on the youtube channel and even otherwise all sessions of beyond law on the youtube channel and like what he said that he is an ocean of knowledge but I can say that from that entire ocean he has given us some pearls to be cherished for today and we will continue to have sharing ask request him that he should continue to share his pearls of wisdom with us and that ocean and combination of pearls of wisdom would always be down the line perpetrated which people would cherish for all times to come and we are also thankful to our knowledge partners Dax legal somehow Basuraj wanted to join it but what I said now we have a room space in the building he said that he continued to try for login but he couldn't log in because there was the room was already full and that's what Trivekram was also trying he shared with me that kindly now then I called him up that the room is available join it immediately thank you everyone stay safe stay blessed we are masked healthy society at large do not create the ruckus as well as fear the COVID-19 situation as they say this too shall pass but for that they say that the positive energy is also great a positive immunity so one has to remain positive but not COVID positive positive in thoughts and positive emotions thank you sir once again and I can only say slum from everyone thank you