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11. It is to be considered what exactly a I Panchnama is Panchas see certain things and I hear certain things and what they see and [hear is recorded in a Panchnama. A Panchnama is generally but not always written by a police constable and is signed by Panchas and also by the police officer who is present at the time of the making of the Panchnama. A police officer is generally present at the time when the incidents are seen or heard by the Panchas. A Panchnama can be regarded either as a statement made by the Panchas to the police officer present or as a note made by the Panchas regarding what they had seen or heard. It is not suggested that it should be regarded as a statement made by one Panch to another. If a Panchnama is a states ment made by the Panohas to the P.S.I. or to the police officer present at the time of the making of the Panchnama then the next question is whether the Panchnama was made during the course of investigation under Chap. XIV of Cr.P.C. Some Panchnamas may be Panchnamas which are not made in the course of the investigation of a cognisable offence under Chap. XIV, Criminal Procedure Code, for example, some Fanchnamas may be made under Section 103, Cr.P.C. which provides that before a search is made under Chapter VII, Cri. Pro. Code, the officer Or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate, and in their presence the search is made, 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. Such a Panchnama made under Section 103 may not be hit by Section 162, Cri. Pro. Code if it was not made under Chapter XIV. In the instant case, however, the Panchnama is not one made under Section 103, Cri. Pro. Code, 'but it is admittedly a Panchnama made in the course of the investigation of a cognisable offence. Section 162 of Cr.P.C. provides that no statement made by any person to a police officer in the course of an investigation under Chapter XIV shall, if reduced to writing, be signed by the person making it nor any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose (save as provided in the section) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The section therefore prohibits the person making the statement from signing the statement. It also prohibits the use of the statement except in the manner indicated therein. Admittedly in the instant case, the Panchnama was made in the course of the investigation of a cognizable offence, and when the Panchnama is to be regarded as a statement made by the Panchas to a police officer, then it should not be signed by the Panchas and it should not also be used for any purpose other than the one indicated in Section 162, Cr.P.C. It is not contended before us by the learned Assistant Government Pleader that Section 157 of the Evidence Act overrides the provisions of Section 162 Cr.P.C. and that notwithstanding Section 162, Cr.P.C. a statement made to a police officer in the course of the police investigation can be used for corroboration under Section 157 of the Evidence Act. Section 157 of the Evidence Act deals with the use for corroboration of all previous statements. Section 162, Cr.P.C. deals with a particular. type of statements, namely the statement made to a police officer in the course of the police investigation of a cognisable offence under Chapter XIV of the Code of Criminal Procedure. Section 162, Cr.P.C. is a special provision and overrides the provisions contained in Section 157 of the Evidence Act. The same view has been taken in Rakha v. The Crown ILR 6 Lahore 171 : AIR 1925 Lah 399 where it has been held that the rule laid down in Section 157 of the Evidence Act is controlled by the special provisions contained in Section 162 of the Criminal Procedure Code. In Emperor v. Najibuddin AIR 1933 Pat 589 it has been observed that Section 162, Cri. P.C. repeals, by implication, Section 157, Evidence Act, so far as concerns statements made to a police officer in the course of an investigation.

12. As observed by their Lordships of the Supreme Court in Ramkishan v. Bombay State , a Panchnama cannot be treated as a statement made to the Panch witnesses and not to the police officers as Otherwise it would be easy for the police officers to circumvent the provisions of Section 162, Cr.P.C. by formally asking Panch witnesses to be present and contending that the statements, were made to the Panch witnesses and not to themselves. Their Lordships were there dealing with the statement made by an identitying witness in the presence of the police and the Panchas, and they observed that such a statement must be regarded as a statement made to the police officer and not to the Panch witnesses. For similar reasons, a Panchnama made by the police cannot be regarded as a statement made by one Panch witness to another. It can be regarded as a statement made by the Panch witness to the police officer, and, if so, it would be hit by Section 162, Cr.P.C. If the Panchanama was not made during the course of the investigation, then it would not be hit by Section 162, Cri. P.C. But we are not. dealing with such a Panchnama.

A witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although h@ has no specific recollection of the facts themselves if he is sure that the facts were correctly recorded in the document.
It is also clear from this section that in the case of a writing used by the witness to refresh his memory, the writing itself cannot be admitted in evidence. Even in cases where the witness has no specific recollection of the facts the witness has to testify to the facts mentioned in the document used by him to refresh his memory. It is therefore clear from this section that the writing used by the witness to refresh his memory cannot be admitted in evidence. But, as provided in Section 161 of the Evidence Act, any such writing must be produced and shown to the adverse party if he requires it, and such party may, cross-examine the witness thereupon, and in cross-examination the adverse party may prove the writing to contradict the evidence of the witness. Therefore, if a Panchnama is a statement made in the course of the police investigation under Chapter XIV, Cr.P.C. then it would fall within the scope of Section 162, Cr.P.C. If the Panchnama is a note, a writing or a record made by the witness to refresh his memory, it can be used as provided by Sections 159, 160 and 161 of the Evidence Act, and the document itself cannot be produced in evidence by the party calling the witness, 'finis view has been taken in Mohanlal Babaibhai v. Emperor 43 Bom LR 163 : AIR 1941 Bom 149 where it was observed by Sir John Beaumont, C.J. at pp. 166 a d 167 (of Bom LR) : (at p. 151 of AIR) as follows: