The Evidentiary Status of Panchnama in Indian Criminal Jurisprudence: Substantive or Corroborative?

I. Introduction

The Panchnama, a document frequently encountered in the annals of Indian criminal investigation and trial, holds a peculiar and often debated position in the hierarchy of evidence. Prepared during searches, seizures, inquests, or other investigative processes, it purports to be a contemporaneous record of events observed by independent witnesses, known as 'Panchas'. The critical legal question that perennially arises pertains to its evidentiary value: Is a Panchnama, by itself, substantive evidence capable of proving the facts stated therein, or does it merely serve a corroborative purpose, lending credence to the oral testimony of its makers? This article undertakes a critical analysis of this question, drawing upon statutory provisions of Indian law, judicial pronouncements, and the insights provided by the reference materials.

The discourse will navigate through the definition and procedural aspects of a Panchnama, delve into the core issue of its characterization as substantive or corroborative evidence, examine its interplay with key provisions of the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1872, and consider the impact of judicial scrutiny and procedural lapses on its admissibility and weight. The objective is to provide a comprehensive understanding of the legal standing of Panchnama in the Indian legal system.

II. Understanding Panchnama: Definition, Purpose, and Procedure

A. Defining Panchnama

The term 'Panchnama' is not explicitly defined in the CrPC or the Indian Evidence Act. However, judicial interpretations have provided clarity. A Panchnama is essentially a written record of observations made by Panchas. As observed in C. Ramaiah Reddy v. Assistant Commissioner Of Income-Tax (Imv) (Karnataka High Court, 2010) [11], "The documentation of what they [Panchas] witness is known as the panchnama... So panchnama is a written record of what the panch has witnessed." This understanding is echoed in Commissioner Of Income-Tax v. S.K Katyal (Delhi High Court, 2008) [13], which, citing Mohan Lal v. Emperor (AIR 1941 Bom 149), stated that "the panchnama is merely a record of what a panch sees." The Gujarat High Court in Valibhai Omarji v. The State (1962 SCC ONLINE GUJ 28, Gujarat High Court, 1962) [4] noted that a Panchnama is "essentially a document recording certain things which occur in the presence of panchas and which are seen and heard by them." Similarly, Shivam v. State Of U.P. (Allahabad High Court, 2021) [12] describes it as a document stating "things which were found at a particular place and at a particular time," holding great value in criminal cases.

B. Purpose of Panchnama

The primary purpose of preparing a Panchnama is to ensure transparency, fairness, and credibility in the investigative process, particularly during searches and seizures. It serves as a safeguard against potential allegations of misconduct or fabrication by investigative agencies. By having independent members of the public witness the proceedings and attest to the accuracy of the recorded events, the Panchnama aims to provide an unbiased account. It documents the scene, the articles found, the manner of their discovery, and other relevant particulars, thereby creating a contemporaneous record that can be referred to during the trial. As indicated in Achyutrao Dattatraya v. The State Of Maharashtra (Bombay High Court, 1992) [17], particularly in trap cases, the evidence of Panchas, and by extension the Panchnama, assumes "crucial significance" as a safeguard.

C. Procedural Requirements

The CrPC, particularly Section 100, outlines the procedure for searches, which implicitly governs the preparation of Panchnamas in such contexts. Section 100(4) CrPC mandates that a search shall be made in the presence of "two or more independent and respectable inhabitants of the locality" (Panchas). If such inhabitants are not available or willing, inhabitants of another locality may be called. These Panchas are required to witness the search and sign the list of things seized (the Panchnama). C. Ramaiah Reddy [11] and Shivam v. State Of U.P. [12] reiterate this requirement. The Panchnama should meticulously record the proceedings, including details of the place searched, items found and seized, and the signatures of the Panchas and the officer conducting the search. The accuracy and detail of the Panchnama are vital, as deficiencies can undermine its evidentiary value, as seen in the context of an identification parade Panchnama in Motilal Gajarbhai Chasisiya v. State Of Gujarat (1987 SCC ONLINE GUJ 43, Gujarat High Court, 1987) [23].

III. Panchnama: Substantive or Corroborative Evidence?

A. The General Rule: Panchnama as Corroborative Evidence

The preponderant view in Indian criminal jurisprudence is that a Panchnama, by itself, is not substantive evidence of the facts recorded therein. Substantive evidence is that which is adduced to prove a fact in issue, such as the direct testimony of a witness in court. Corroborative evidence, on the other hand, is evidence that tends to support or strengthen other evidence. The Supreme Court of India has clarified this position in several landmark cases. In Murli And Another v. State Of Rajasthan (2009 SCC 9 417, Supreme Court Of India, 2009) [21], the Court unequivocally held:

"The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box."

This principle was reiterated by the Supreme Court in RAMANAND @ NANDLAL BHARTI v. THE STATE OF UTTAR PRADESH (Supreme Court Of India, 2022) [25]. The Allahabad High Court in Mamata Soni And Others v. Union Of India Thru G.M (2019 SCC ONLINE ALL 5013, Allahabad High Court, 2019) [20] also cited Murli to affirm this stance.

A Panchnama's utility lies in its ability to corroborate the testimony of the Panch witnesses (or other witnesses to the search, like the Investigating Officer) when they depose in court. If a Panch witness testifies to the facts observed by him during the search and seizure, the Panchnama prepared at that time can be used under Section 157 of the Indian Evidence Act, 1872, to corroborate his testimony as a former statement made by him at or about the time when the fact took place. This was noted in Valibhai Omarji v. The State [4] and Vishnu Krishna Belurkar v. State Of Maharashtra (Bombay High Court, 1974) [15].

B. The Panch Witness: The Source of Substantive Evidence

It is the oral deposition of the Panch witnesses in court that constitutes substantive evidence of the facts recorded in the Panchnama. The Panchnama document itself merely records what the Panchas are supposed to have seen and heard. Its contents must be proved by the testimony of the Panchas. As emphasized in Mer Veja Meraman v. State Of Gujarat (1988 GLR 2 1057, Gujarat High Court, 1988) [22], the substantive evidence of the Panch is what matters. If the Panch's testimony in court does not support the contents of the Panchnama, the document loses its evidentiary force with respect to those unproven contents. The credibility and independence of Panch witnesses are paramount, as highlighted in Achyutrao Dattatraya [17]. A Panch who frequently acts for the police may be viewed as unreliable (Mer Veja Meraman [22]).

The statement in Shivam v. State Of U.P. [12] that "Panchas need not necessarily be called as witnesses" must be understood in context. While Section 100(5) CrPC allows the person searched to have a copy of the seizure memo and does not mandate the examination of every Panch, if the prosecution relies on the facts stated in the Panchnama (e.g., recovery of an article) and these facts are disputed by the accused, the failure to examine the Panchas to prove these facts can seriously weaken the prosecution's case regarding those specific contents of the Panchnama.

C. Addressing Contradictory Perspectives

A notable deviation appears in Collector Of Customs Madras v. D Bhoormul (CESTAT, 2014) [14], where it was stated, "The panchnama is a substantive piece of evidence." This assertion, particularly from a tribunal dealing with customs matters, requires careful consideration. It is possible that in the context of departmental adjudications under customs or excise laws, which may have different evidentiary standards or presumptions compared to criminal trials, a Panchnama might be accorded a more direct evidentiary role. Alternatively, the phrase "substantive piece of evidence" might have been used to emphasize its crucial importance and direct relevance to the proceedings, rather than classifying it as "substantive evidence" in the strict legal sense, which can form the sole basis of a finding without further oral testimony proving its contents. Given the consistent pronouncements of the Supreme Court in criminal cases (*Murli* [21], *Ramanand* [25]), the general rule remains that a Panchnama primarily serves a corroborative function in criminal trials.

IV. The Interplay between Panchnama and Statutory Provisions

A. Panchnama and Section 162, Code of Criminal Procedure, 1973

Section 162 CrPC bars the use of statements made to a police officer during an investigation for any purpose (except by the accused for contradiction), if such statement is reduced to writing. A concern sometimes raised is whether a Panchnama, often dictated by a police officer and signed by Panchas, falls foul of this provision. However, courts have generally held that a Panchnama which is a record of facts and circumstances witnessed by the Panchas, and not a narration of statements made by them *to* the police officer, is not hit by Section 162 CrPC. As held in Valibhai Omarji v. The State [4], if the Panchnama "merely records facts witnessed by the Panchas and does not include any statements communicated to a police officer, it falls under Section 157 of the Evidence Act and is not barred by Section 162." Vishnu Krishna Belurkar v. State Of Maharashtra [15] further clarified that the mere fact that such a record is scribed by a police officer or retained by him does not convert its recitals into statements to the police under Section 162 CrPC, provided it genuinely reflects what the Panchas observed.

B. Panchnama and Section 27, Indian Evidence Act, 1872

Panchnamas often document recoveries made pursuant to disclosure statements by an accused person, admissible under Section 27 of the Indian Evidence Act. The portion of the accused's statement that distinctly relates to the fact thereby discovered is admissible. The Panchnama would record the fact of such discovery. The Supreme Court in State Of Rajasthan v. Teja Ram And Others (1999 SCC 3 507, Supreme Court Of India, 1999) [5] clarified that the prohibition under Section 162(1) CrPC (regarding obtaining signatures on statements made to police) does not apply to memos recording discoveries under Section 27 of the Evidence Act. The Panchnama detailing such a discovery, when proved by the Panchas and the Investigating Officer, becomes crucial evidence of the discovery itself. The case of State Of Maharashtra v. Damu (2000 SCC CRI 1088, Supreme Court Of India, 2000) [9] also dealt with confessions and recoveries, where Panchnamas play a role in documenting the latter.

C. Panchnama and Section 100, Code of Criminal Procedure, 1973

As discussed earlier, Section 100 CrPC lays down the procedural backbone for conducting searches and, by implication, for preparing Panchnamas of search and seizure. The emphasis on "independent and respectable inhabitants of the locality" (Section 100(4)) is crucial for the credibility of the Panchnama. Compliance with these procedural safeguards is essential for the Panchnama to serve its intended purpose of ensuring fairness and transparency.

V. Judicial Scrutiny and the Impact of Procedural Lapses

A. Hostile Panch Witnesses

It is not uncommon for Panch witnesses to turn hostile during trial and resile from the contents of the Panchnama. In such situations, the prosecution's case regarding the facts recorded in the Panchnama is weakened. However, the evidence of the Investigating Officer who conducted the search and seizure can still be relied upon by the court if it is found to be credible and trustworthy. The Supreme Court in Mohd. Aslam v. State Of Maharashtra (2001 SCC 9 362, Supreme Court Of India, 2000) [1] considered an argument where the evidence of an official witness (PW 34) was contended to be unsupported due to hostility of panch witnesses, implying that the official witness's testimony could still be considered. The court will scrutinize the IO's testimony with greater care in the absence of support from independent Panchas.

B. Irregularities in Panchnama

Minor irregularities or omissions in a Panchnama may not necessarily render it entirely useless or inadmissible, especially if the core facts are otherwise satisfactorily proved. For instance, in Kuber Tobacco Products Ltd. v. Commissioner Of C. Ex., Delhi (CESTAT, 2012) [10], it was held in a CESTAT matter that non-mentioning of certain details of the premises did not discredit the Panchnama. However, significant flaws or non-compliance with mandatory procedural requirements can severely undermine its evidentiary value and even the legitimacy of the search itself. State Of Punjab v. Balbir Singh (1994 SCC CRI 634, Supreme Court Of India, 1994) [3], dealing with the NDPS Act, emphasized that non-compliance with mandatory provisions (like Section 50) can vitiate a trial. Conversely, State Of H.P v. Pirthi Chand And Another (Supreme Court Of India, 1995) [18] observed that an illegal search does not automatically render the recovery of articles irrelevant or inadmissible, but the evidence must be scanned with care. The court in Motilal Gajarbhai Chasisiya [23] found an identification parade Panchnama lacking due to procedural deficiencies, weakening its value.

C. The Importance of Due Process

The entire process of preparing a Panchnama is rooted in the principles of due process and fair play. As underscored in Achyutrao Dattatraya v. The State Of Maharashtra [17], "it is essential that the requisite procedural precautions be adhered to at all stages relating to the recording of the panchanama in question." Any deviation that casts doubt on the genuineness or accuracy of the Panchnama can have serious repercussions for the prosecution's case, as the Panchnama is often a cornerstone of evidence relating to searches, seizures, and discoveries.

VI. Conclusion

In conclusion, the legal position in Indian criminal jurisprudence predominantly treats the Panchnama not as substantive evidence in itself, but as a contemporaneous record whose contents must be proved by the substantive testimony of the Panch witnesses (or other competent witnesses) in court. Its primary evidentiary function is corroborative, lending credence to the oral depositions of those who witnessed the events it documents, under Section 157 of the Indian Evidence Act. While a Panchnama is a document of considerable importance in criminal investigations, ensuring transparency and providing a detailed account of investigative steps like searches and seizures, its contents do not become automatically proved merely by its production before the court.

The value and weight attached to a Panchnama are contingent upon several factors: the credibility and independence of the Panch witnesses, the consistency of their court testimony with the Panchnama's contents, the meticulousness with which the Panchnama has been prepared, and the adherence to statutory procedures, particularly those enshrined in Section 100 CrPC. While certain tribunals or specific legislative contexts might appear to accord it a more direct evidentiary role, the overarching principle in criminal trials, as laid down by the Supreme Court, is that the substantive proof of the facts mentioned in a Panchnama comes from the mouths of the witnesses who depose in court, not from the document per se. The Panchnama remains an indispensable tool for the administration of criminal justice, but its evidentiary status must be correctly understood within the established framework of Indian evidence law.