KAJAJI RAMJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant was convicted under Section 19 (e) and (f) of the Indian Arms Act, and this conviction is challenged in appeal. The prosecution case was that on 2-8-1982, on suspicion the police searched certain persons in the compound of the Courts of the City Magistrates, Ahmedabad, and the appellant was found in possession of five live cartridges on his person. A Panchnama was made, In appeal, it is contended that one of the Panchas does not support the prosecution and according to him nothing was found from the appellant. It is contended that the evidence of the second Panch that five live cartridges were found from the appellant is hearsay evidence because the second Panch has deposed that the police told him that five cartridges were found from the appellant. The panchnama was read over to this witness Navinchandra and he admitted having signed it and that the contents are correct. But he added that he stated that the cartridges were found from the appellant as he was there and the police told that the cartridges were found. It is, therefore, contended that the evidence of both the panchas does not support the prosecution. The prosecution case is proved by the evidence of P. S, I. , Motising and the Police Head Constable Dilawarsing. According to the learned Government Pleader, the evidence of the Panch also supports the prosecution case because he admits that he signed the panchnama and that the contents of the panchnama, which was read over to him, are correct.

(2.) THERE is no provision in law for reading over the contents of a document when the con-tents of the document are not a matter in issue, and it is not necessary to prove the contents of the document as such. The examination of a witness consists of putting questions to him and taking out answers from him. But in some cases when a signature has got to be proved, the signature can be shown to the witness and he can be asked whether that signature is his, because that is a case in which the signature has got to be proved. But in the case of a Panchnama, the contents of the Panchnama are not required to be proved as such, and therefore the contents of a Panchnama cannot be read over to the witness. By reading over the contents of a Panchnama to a witness and making him answer that the contents are correct, the contents of the Panchdama are being proved as substantive evidence. The contents of a Panchnama are not required to be proved and they should not be proved. The panchnama in such a case is a statement made by the Panchas in the course of the police investigation of a cognisable offence about which the police have reasonable suspicion. Such a panchnama should not, therefore, be signed by the panchas and should not be admitted in evidence, unless the other requirements of Section 182, Cr. P. C. are satisfied that is, unless the Court gives special permission for admitting a previous statement in evidence. A panchnama is, in fact, a note made by the panchas of what they had seen or what they had heard, and they can themselves refresh their memory under Section 159 of the Evidence Act by themselves reading the document. In order to refresh their memory, they themselves should read a document and the document should not be read over to them, because there is no such provision in Section 159 of the Evidence Act. The answers elicited from such witnesses are therefore contrary to the provisions of the Evidence Act and must be ignored.

(3.) THE result is that the prosecution case is not supported by either of the Panchas. But this is not a case in which Panchas are necessary. Sections 102 and 103 of the Criminal P. C, refer to the search of a place, and Sub-Section (3) of Section 102, Cr. P. C. provides as follows: Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made such person may be searched. If such person is a woman, the directions of Section 52 shall be observed. In these circumstances, a person may also be searched. This is not a case in which a place has been searched and the provisions of Section 103, Cr. P. C. would not apply, and it is not obligatory to keep Panchas.