ORDER
(1) This is a reference by the learned Sessions Judge, Kaira at Nadiad, recommending that the conviction of one Raijibhai in Summary Case No. 1164 of 1959 tried by the III Joint Civil Judge, J. D., and Judicial Magistrate, First Class, Nadiad, under Section 69 of the Bombay Prohibition Act, and sentence of fine of Rs. 200/- in default rigorous imprisonment for 3 months should be set aside.
(2) The prosecution case was that when the house of Raijibhai in the village of Dabhan was raided by the Head Constable of Nadiad Rural Police Station at about 7 A.M. on 9-7-1959 in the presence of two Panchas, 25 seers of Mhowra flowers in a gunny bag were found inside the house, and as he had no pass or permit for the possession of Mhowra flowers, he was prosecuted. At the trial, the evidence of the head constable was not supported by the two panchas both of whom were treated as hostile. According to the two Panchas, the Mhowra flowers were not found inside the house but outside the house of the accused. Following the principles laid down by the Bombay High Court in Emperor v. Shanwar Manu Koli : AIR1950Bom267 and Emperor v. Kisan Narayan : AIR1951Bom186 , the learned Magistrate observed that no court should convict the accused on the uncorroborated testimony of the Police Officer whenever it was obligatory to make a search in the presence of the Panchas. He however held that in the case tried by him there was corroboration in the fact that the Mhowra flowers were lying outside the house of the accused and that in the certificate appended to the Panchanama it was stated that the Mhowra flowers were found in the house of the accused. He therefore held that there was sufficient corroboration to the evidence of the Police Head Constable, and he thereupon convicted Raijibhai under S. 69 of the Bombay Prohibition Act for having been in possession of Mhowra flowers.
(3) In revision, the learned Sessions Judge realised that the case turned on appreciation of evidence, but according to him the appreciation of evidence by the Magistrate was so unreasonable that it amounted to miscarriage of justice. According to the learned Sessions Judge, the search in this case was one to which section 103, Criminal P. Code applied and therefore it was obligatory on the police to make the search in the presence of two independent Panchas. It was conceded before the learned Sessions Judge by the learned Public Prosecutor appearing before him, that in this case the presence of the Panchas at the time of the search was obligatory. But as the Panchas did not support the prosecution case, the learned Sessions Judge was of the view that unless there was corroboration to the Police Officer's evidence, the latter cannot be accepted by the Court. The learned Sessions Judge then considered the view taken by the learned Magistrate that there was corroboration to the Police Officer's evidence in the fact that the Mhowra flowers were outside the house of the accused in the fact that the Panchnama was signed by the Panchas and in the fact that the certificate was appended to the Panchanama stating that the Mhowra flowers were that the certificate was appended to the Panchnama stating that the Mhowra flowers were taken from the house of the accused. In the view of the learned Sessions Judge, these circumstances did not amount to corroboration of the evidence of the Police Officer, He also held that the certificate had not been proved by the prosecution and was inadmissible in evidence. For these reasons, the learned Sessions Judge took the view that the learned Magistrate was wrong in bolding that the evidence of the Police Head Constable had been corroborated. The learned Sessions Judge was of the view that a Panchnama is nothing but a statement made by the Panchas to the Police Officer and cannot be used to corroborate the Police Officer's evidence, but it can be used only to corroborate the evidence of Panch witnesses. The learned Sessions Judge therefore held that the learned trial Magistrate had wrongly observed that the Police Head Constable's evidence had been corroborated, while in fact it had not been. For these reasons he was of the view that the conviction resulted in miscarriage of justice and he therefore made a reference to the High Court recommending that the conviction be set aside.
(4) Before me, the learned Assistant Government Pleader stated that he does not support the reference, and he mainly relied upon the following observations of one of the Judges of the Supreme Court in Aber Raja Khima v. State of Saurashtra : 1956CriLJ426 ,
'It is the duty of the Court not to presume misconduct on the part of the Police Officer, and the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect the Police Officer without good grounds therefor.'
As regards the two Bombay cases : AIR1950Bom267 and : AIR1951Bom186 , it is argued that in those cases searches had not been made in the presence of the Panchas, whereas in the instant case the search was made in the presence of the Phantasm who however did not support the prosecution when they gave evidence at the trial. His contention is that the principles laid down in the two Bombay cases do not apply to a case where a search was made in the presence of the phantasm even if they do not support the prosecution case. It is also contended that in the Bombay cases, no rigid rule has been laid down that where the presence of the Panchas is obligatory at the time of the search, the sole testimony of a Police Officer should not be acted upon. These are the only grounds on which the Assistant Government Pleader does not support the reference.
(5) The Supreme Court judgment in : 1956CriLJ426 , was delivered by three judges and his Lordship Venkatarama Aiyar, J., was in a minority. The other two judges held that the appeal should be allowed, whereas Venkatarama Aiyar, J., was of the view that the appeal should be dismissed and the order of conviction passed by the High Court in appeal from acquittal should be confirmed. But the case before the Supreme Court was not a case of a search. It was a case where an are which was alleged to be the weapon used for the commission of a murder had been recovered from the house of the accused after he had pointed it out. In his examination under Section 342 of the Code of Criminal Procedure, the accused admitted the recovery of the axe, but stated that there was no blood on it when he showed it to the police, and the argument urged before the learned Sessions Judge was that the evidence of blood stains on the axe were fabricated by the police subsequently. The learned Sessions Judge held that there was some suspicion on this point. But his Lordship Venkatarama Aiyar, J. held that the learned Sessions Judge had been taken up an attitude of distrust towards the police. The majority judgment of the Supreme Court was delivered by Bose, J. The majority judgment, however, differed from the view of Venkatarama Aiyar J. and their Lordships decided that the appeal should be allowed and the conviction by the High Court in an appeal from acquittal should be set aside. They did not make any observations with regard to the distrust shown by the learned Sessions Judge towards the police. They rejected the prosecution case on the ground that even though there were blood stains on the axe, there was no proof that the stains were of such a nature as to be incompatible with the innocence of the accused. Their Lordships were not considering a case in which it was obligatory on the part of the police to keep Panchas at the time of a search. That was not a case of a search under Section 103, Criminal Procedure Code. The observations of his Lordship Venkatarama Aiyar, J. do not apply to the facts of the present case, which is concerned with a search made by a Police Officer, to which provisions of Section 103, Criminal Procedure Code, apply. In certain cases, the Legislature has thought fit to make special provisions with regard to the police; for instance section 25 of the Evidence Act. Again, in section 103, Criminal Pro. Code, the Legislature has provided that when a search is made, to which the section applies, it is obligatory on the police to keep two respectable Panchas. In : AIR1950Bom267 , the following principles were laid down:-
'Where the law makes it obligatory for a search to take place in presence of panchas and the only evidence on which the prosecution ask for a conviction of the accused is police evidence, the Court will not ordinarily act on that evidence.' This case was followed in : AIR1951Bom186 , by two other judges of the Bombay High Court. who made similar observations. It is true that the word `ordinarily' has been used in both these cases. What they have laid down is that where the law makes it obligatory for a search to take place in presence of Panchas and the only evidence on which the prosecution ask for a conviction of the accused is police evidence, the Court will not ordinarily act on that evidence. With respect, I agree with this view. It is true that this rule is not a rigid and inflexible rule to be applied in all cases. Even in cases where the presence of the Panchas is obligatory, for special reasons such as the high rank of the Police Officer, the evidence of the Police Officer may be accepted even if there is no corroboration, but ordinarily in such cases there must be corroboration of the evidence of the Police Officers. Both the learned Magistrate and the learned Sessions Judge were aware of this principle.
(6) There is no merit in the contention of the learned Assistant Government Pleader that the principles laid down in the two Bombay cases do not apply where a search has been made in the presence of Panchas even if the Panchas did not support the prosecution. The real principle is that where the presence of the Panchas is obligatory at the time of search, the evidence of the Police Officer conducting the search must ordinarily be corroborated, and that if there is no such corroboration, ordinarily, a conviction should not rest solely on the uncorroborated testimony of the police Officer who conducted the search. The real question is whether there is corroboration or not. The absence of corroboration may be due to two factors, the failure of the police to keep panchas or the fact that panchas do not support the prosecution. Whatever be the reason, if there is no corroboration then ordinarily conviction should not rest on the uncorroborated testimony of the police officer conducting the search in ouch cases. There is therefore no merit in the connection of the learned Assistant Government Pleader that no corroboration is necessary in cases where a search had been made in the presence of panchas. In this case, the search had been made in the presence of the Panchas, but as the Panchas did not support the prosecution case that Mhowra flowers were found inside the house of the accused, the evidence of the Police officer, who made the raid, lacks corroboration.
(7) Although the learned Magistrate was alive to the principles of law that when a search is made in the presence of the Panchas it is necessary that there should be corroboration of the Police Officer's evidence, he erred in applying this principle. He held that there was corroboration of the Police Officer's evidence. The fact that Mhowra flowers were lying outside the house of the accused cannot corroborate the police officers evidenced that the Mhowra flowers were found inside the house of the accused. Nor can the fact that the Panchnama was signed by the Panchas or by the police officer amount to corroboration of the evidence of the police officer that the Muawra flowers were inside the house of the accused. The learned Magistrate also thought that the Police Officer's evidence was corroborated by the certificated appended to the Panchnama to the effect that Mhowra flowers were found in the house of the accused. The learned Sessions Judge observed that the certificate had not been proved as the second panch who was the only person to the asked about the certificate had denied having written the certificate which in the opinion of the learned Sessions Judge was a repetition of the panchnama. The learned Sessions Judge also rejected the contention of the Public Prosecutor that the panchnama corroborated the evidence of the Police Officer, The learned Sessions Judge observed that on first principles a panchnama is nothing but a statement made by the Panchas to the Police Officer as to what they had seen in company of the Police Officer. He also observed that the signature of a Police Officer on the panchnama only means that it has been written and signed in his presence and that a Panchnama can be used to corroborate the parch witness and none else.
(8) His view that panchnama cannot be treated as corroboration of the evidence of a Police Officer is correct. The corroboration that would justify a conviction in cases where it is obligatory to make a search in the presence of Panchas, is usually the evidence of one of the Panchas. At any rate the corroboration must be from a source independent of the Police Officer who made the search. Further a Panchnama is not an does not purport to be a statement made by the Police Officer to Panchas. If a Panchnama is regarded as a statement made by the Panch to the Police Officer, it may, in many cases, be hit by section 162, Criminal Pro. Code, because in the course of investigation the police make Panchnama. If it is a statement made by a Panch to the Police Officer in the course of investigation, it cannot be signed by the Panchas in view of section 162, Cri. Pro. Code. A careful analysis will show that a Panchnama is neither a statement made by the Panchas to the Police Officer nor a statement made by the Police to the Panchas. Panchas can make a panchnama of a scene of offence in the absent of any Police Officer. It is therefore, clear that a Panchnama is not a statement but a note made by the Panchas of what they had seen at the time of the Panchnama. Sections 159 to 161 of the Evidence Act would apply to a Panchnama and a Panch witness can refresh his memory by referring to the Panchnama as provided in sections 159 to 161 of the Evidence Act. A panchnama cannot be used either to corroborate the evidence of the Police officer or the evidence of the panch. A certificate attached to the Panchnama by the Panchas is part of the Panchnama and cannot be used to corroborate.
(9) There was therefore no corroboration to the evidence of the Police Officer that Mhowra flowers were found inside the house of the accused. The learned Sessions Judge was right in observing that therefore there has been a failure of justice. I therefore agree with the learned Sessions Judge and hold that fundamental principles of criminal law have been misapplied in this case resulting in a miscarriage of justice.
(10) I therefore, accept the reference and set aside the conviction and sentence passed on Raijibhai Chaturbhai Solanki.
(11) Conviction set aside.