MER VAJA MERAMAN Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
Mer Veja Meraman
STATE OF GUJARAT
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(1.)According to the prosecution the clothes of the appellant stained with blood and he had destroyed them by setting fire to them and the appellant was willing to show that place and also the place where he had left the portion of the rope which was tied to the bullock. According to the prosecution the appellant said that he had himself kept the piece of the rope at that particular spot and he took the Police and the Panchas in a vehicle. According to the prosecution the Investigating Officer and the Panchas wont to the Wadi of the appellant at village Khambhodar and they got down near that Wadi and went near the residential hut of the appellant and the appellant took them at the back of the said hut and took out the piece of rope from amongst the grass heap which was attached by the Investigating Officer in the presence of the Panchas. According to the prosecution that piece of rope was compared in the presence of the Panchas with the piece of rope which was found from over the dead body and it appeared that they were pieces of the same rope. This is what is disclosed in the Panchnama Ex 40. So far as the substantive evidence of the Panch Kala Karsan P. W. 15 Ex. 39 is concerned he only states that the appellant told them that he will produce and the remaining Panchnama was made and that signatures were taken and thereafter the appellant took them to a threshing floor adjoining his Wadi and from there a piece of rope was recovered and ash was also recovered and they were attached by the Police Officer in their presence as per the Panchnama Ex. 40. He admitted that he had signed the Panchnama while the other Panch had put his thumb mark below the Panchnama. In cross-examination be stated that the Police told them that they had to go to the place for making a panchnama of the piece of rope and the ash and that that was told to them after going to the spot but not at the Bagavadar Police Station from where they started. He admitted that the place from where ash was recovered was an open place. He denied the suggestion that the Police pointed out those articles and stated that the appellant had pointed out those articles. He admitted that he did not know what were the contents of the writing which was prepared there. This Panch also admitted that the jeep driver who was with the Police told them that they had to go to the Wadi of the appellant. He had admitted that he had acted as a Panch on five to seven occasions before he acted as a Panch in the present case. He has also admitted that whenever Police calls him to act as a Panch he acts as a Panch. When this Panch has acted as a Panch on 5 to 7 occasions at the instance of Police as admitted by him it will be unsafe to place implicit reliance upon him. But apart from this the substantive evidence of this Panch does not show that the appellant made a statement that he had kept the piece of rope and he was inclined to point out that spot. The substantive evidence does not establish the authorship of concealment of the rope and therefore the evidence of this Panch does not advance the case of the prosecution any further. The contents of the Panchnama Ex 40 can be read only to corroborate the evidence of the Panch The contents of the Panchnama cannot be read as substantive piece of evidence. In view of this all that can be said to have been established by the prosecution is that the accused took the Police and the Panchas to a spot from where the piece of rope was recovered. This would only establish knowledge on the part of the appellant that the piece of rope was lying there and nothing more. This also will not advance the case of the prosecution any further.
(2.)The evidence of the Investigating Officer P. W. 17 Ex. 44 so far as the recovery of the piece of rope at the instance of the appellant is concerned is only to the effect that the appellant was inclined to point out the piece of rope and then he took the Investigating Officer and the Panchas to the spot from where the piece of rope was recovered. Even the evidence of the Investigating Officer does not show that the accused made a statement that he was inclined to show the spot where he had kept the piece of rope. The evidence of the Investigating Officer thus does not advance the case of the prosecution any further so far as the recovery of piece of rope is concerned.
(3.)Before parting with this case we are constrained to observe here that the evidence of the Panch Kala Karsan P. W. 15 Ex. 39 is recorded in a very slip-shod manner. Same is the case with regard to the recording of the evidence of the Investigating Officer so far as the recovery of the rope is concerned. The learned Public Prosecutor who conducted the prosecution before the trial Court did not take pains to bring on record in the substantive evidence of these two witnesses the fact of the accused having made a statement that he had kept the piece of rope and he was inclined to show that spot even though it has been recorded in the Panchnama Ex. 40 that the accused made such a statement. The learned Public Prosecutor does not appear to have realised that there should be substantive evidence on record in this regard and that the Panchnama can be used only to corroborate the evidence of the Panch and not as a substantive piece of evidence. It appears that the Panchnama Ex. 40 was shown to the Panch and he admitted his signature and therefore it was exhibited at Ex. 40. The examination in chief of this witness Kala Karan does not show that he was read over the Panchnama before it was exhibited. This Court has time and again impressed upon the necessity of reading over the Panchnama which can be used as a piece of corroborative evidence. In spite of this it is regrettable that the learned trial Judge did not take pains to see that the Panchnama was read over to the Panch before it was exhibited. A Panchnama which can be used only to corroborate the Panch has to be read over to the Panch and only thereafter it can be exhibited. If the Panch has omitted to state something which is found in the Panchnama then after reading over the Panchnama the Panch has to be asked whether that portion of the Panchnama is correct or not and whatever reply he gives has to be recorded. If he replies in affirmative then only that portion of the Panch can be read to corroborate the substantive evidence of the Panch. If he replies in negative then that part of the Panchnama cannot be read in evidence for want of substantive evidence on record It is therefore necessary that care is taken by the Public Prosecutor who conducts the trial to see that such a procedure is followed while examining the Panch as a witness. It is also necessary that the learned trial Judge also sees that Panchnama is read over to the Panch and thereafter the Panchnama is exhibited after following the procedure as indicated above. If the learned Public Prosecutor and the learned trial Judge had followed this procedure in the present case and if the Panch had stated that the accused-appellant had made such a statement as recorded in the Panchnama then it would have been possible to convict the accused-appellant at least for the offence punishable under Sec. 201 I. P. C. It is unfortunate that the case results in acquittal because of want of care on the part of the learned Public Prosecutor as well as the learned Additional Sessions Judge. Appeal allowed.
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