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3. The PW-1 Nandlal lodged the First Information Report (Exh. 13) at the Andheri Police Station on 11.12.2006 which came to be registered as the FIR No. 91/06 for the offence punishable under Section 302 of the IPC. Upon registration of the FIR the police started with the investigation. In the course of the investigation, statements of various witnesses were recorded. It appears that the discovery panchnama of the weapon of the offence i.e. the hammer (Exh.23) was also drawn on 16.12.2006 under the provisions of Section 27 of the Evidence Act, 1872 (hereinafter referred to, “the Act”).

35. The prosecution examined the PW-4 Amsu Hussain Sayyad (Exh. 21) as one of the panch witnesses to prove the discovery panchnama (Exh. 23).

36. We must first look into the examination-in-chief of the PW-4 in this regard. The PW-4 in his examination-in-chief stated as under:

“The police officers told me that I have to act as a panch witness. In my presence the person who is police custody narrated that, he concealed a weapon adjacent the shoe shop at parla. Accordingly in my presence his statement recorded by the police. Police obtained my signature on the memorandum-cum-statement of the accused. The memorandum-cum- statement now shown to me bears my signature. It contents are true and correct. The said memorandum is exhibited at Exh. 22. Thereafter, I myself, another person, two to three police officers and accused went in Vile Parle East, outside the railway station of Vile Parle East. There was a wooden bench near the shoe shop. The accused in our presence withdrew an iron hammer from the wooden bench and handed over the same to the police. Police recorded the panchnama of said hammer in my presence and took its possession. The panchnama now shown to me is the same. It bears my signature. It contents are true and correct. It is at Exh. 23.”

39. From the aforesaid it is evident that the learned public prosecutor who con- ducted the prosecution before the trial court did not take the pains to bring on record the substantive evidence of the aforesaid two witnesses i.e. the PW-4 and PW-10 resply, the fact of the accused having made a statement that he had con- cealed the hammer and he was inclined to show that spot, even though it has been recorded in the panchnama (Exh. 22) that the accused made such a state- ment. The learned public prosecutor does not appear to have realized 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 substan- tive piece of evidence. It appears that the panchnamas (Exh.22 and 23 resply) were shown to the panch (PW-4) and he admitted his signature and, therefore, it was exhibited at Exhs.22 and 23 respectively. The examination-in-chief of the PW-4 does not show that he was read over the panchnama before it was exhib- ited. 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 the pains to see that the panchnama was read over to the panch before it was exhibited. A panch- nama 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 the affirmative, then only that portion of the panchnama can be read into evidence to corroborate the substantive evidence of the panch. If he replies in the negative, then that part of the panchnama cannot be read in evidence for want of substan- tive evidence on record. It is, therefore, necessary that care is taken by the public prosecutor who conducts the trial that such a procedure is followed while examin- ing the panch at the trial. It is also necessary that the learned trial judge also sees that the panchnama is read over the panch and thereafter the panchnama is exhibited after following the procedure as indicated above.

47. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the Investigating Officer in his evidence, and also without proving the contents of the panchnamas, the trial Court was not justified in placing reliance upon the circumstance of discovery of weapon.

48. Even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Act. The evidence of discovery would be admissible as conduct under Section 8 of the Act quite apart from the admissibility of the disclosure statement under Section 27, as this Court observed in A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714,: