Demonstration panchanama is inadmissible under Sections 25 and 27 of the Evidence Act as it does not lead to the discovery of physical facts but rather constitutes a confession made in police presence.

JUDGMENT:

M.W. Chandwani, J.

1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsels for the parties.

2. The petition challenges the orders dated 08.10.2024 and 14.11.2024 passed by the learned Additional Sessions Judge, Buldhana in Sessions Trial No.24 of 2022 whereby, objections to the admissibility of the portion of testimony of PW4-Gajanan Laxman Ambhore raised during his examination-in-chief were overruled.

3. The petitioners are indicted for the offences punishable under Sections 302 , 394, 201 read with Section 34 of the INDIAN PENAL CODE alongwith other provisions of the Arms Act. During trial, the prosecution sought to examine PW4-Gajanan Ambhore, a panch to various memorandum panchanamas and the demonstration panchanama as well. On 08.10.2024, when the testimony of PW4- Gajanan Ambhore was being recorded, the petitioners objected to the admissibility of some portion of the testimony with regard to the Demonstration Panchanama on the premise that it is hit by Section 25 of the Indian EVIDENCE ACT , 1872 (for short “the Act”). The objection was overruled by the trial Court. On 19.10.2024, when his further examination-in-chief was being recorded, the petitioners also objected to another portion of the testimony with regard to the demonstration on the same ground. The trial Court by another order dated 14.11.2024 overruled the said objection as well. Dissatisfied with rejection of the objections by the learned Additional Sessions Judge, this petition came to be filed.

4. Shri Kalwaghe, learned counsel for the petitioners strenuously argued that the demonstration panchanama by virtue of which the prosecution tried to show that the petitioners demonstrated the manner in which the crimes were committed by them does not qualify under Section 27 of the Act so as to make it admissible, since it does not lead to any discovery. According to him, the learned trial Court did not consider this aspect and has erroneously recorded the testimony of PW4-Gajanan Ambhore. The testimony of PW4-Gajanan where he states that the petitioners informed in his presence that they had committed the offence and they will demonstrate the acts done by them by escorting the panchas to the spot as well as the panchanama recording the demonstration made by the petitioners as to how they committed the offence is a confession hit by Sections 25 and 26 of the Act.

5. Shri Kalwaghe would submit that the learned trial Court relied on the portion of the decision in the case of Pulukuri Kotayya and others Vs. King-Emperor , [1946 SCC OnLine PC 47], which was in fact, the submission of the prosecution and not the findings of the Privy Council. On the contrary, the findings in the decision of Pulukuri Kotayya (supra) support the defence. According to him, a demonstration panchanama is not admissible in evidence and therefore, evidence in respect of the said panchanma should not have gone on record. To buttress his submissions, he seeks to rely on the decisions in the case of Pulukuri Kotayya (supra), Perumal Raja alias Perumal Vs. State,