( 1 ) MR. Barot contended that the learned trial Judge was in error in admitting the Panchnama Ex. 7 in evidence and in relying upon it and contended that the Panchnama Ex. 7 was inadmissible and was hit by the provisions of sec. 162 of the Code of Criminal Procedure. In support of his contention he relied upon the decision of a Division Bench of this Court in Naginlal Nandlal v. The State of Gujarat 1961 G. L. R. 664. Mr. Barot in particular relied upon a passage in that decision occurring at page 673 of the report where it has been stated:- -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 sec. 162 Cri. Pro. Code. If the Panchnama was not made during the course of the investigation. then it would not be hit by sec. 162 Cri. Pro. Code. But we are not dealing with such a Panchnama.

( 2 ) THOUGH these observations and certain other observations in that decision might at first sight appear to assist Mr. Barots contention even Mr. Barot had to concede that in that judgment it has nowhere been laid down that a Panchnama made in a corruption case is necessarily a statement communicated to a police officer and therefore is hit by sec. 162 of the Code of Criminal Procedure. Certain observations in that judgment were evidently made in the context of the Panchnama which was relied upon by the prosecution in that case which as we find from a perusal of that Panchnama did in fact contain several statements which fell under sec. 162 of the Code and which were obviously inadmissible. A Panchnama is essentially a document recording certain things which occur in the presence of Panchas and which are seen and heard by them. Panchas are taken to the scene of the offence to see and hear certain things and subsequently they are examined at the trial to depose to those things and their evidence is relied upon in support of the testimony of an Investigating Officer. A Panchnama recorded on such a occasion is in its turn relied upon in support of the evidence of the Panchas as a statement previously made by them under sec. 157 of the Evidence Act.

( 3 ) IN Emperor V. Mohanlal Bababhai 43 B. L. R. 163 beaumont C. J. and Sen J. observed thus:- -A panchnama is merely a record of what a panch sees. The only use to which it can properly be put is that when the panch goes into the witness box and swears to what he saw the panchnama can be used as a contemporary record to refresh his memory.

( 4 ) AS has been held in several cases sec. 157 of the Evidence Act is controlled by sec. 162 of the Code of Criminal Procedure and therefore if a statement though falling under sec. 157 of the Evidence Act were also to fall under sec. 162 of the Code it would be sec. 162 of the Code that would prevail and such a statement would be inadmissible. Reading sec. 157 of the Evidence Act and sec. 162 of the Code of Criminal Procedure together it is clear that the word statement in sec. 157 of the Evidence Act has a wider connotation than the same word used in sec. 162 of the Code. But in order that a previous statement of a witness falls under sec. 162 of the Code two conditions have to be fulfilled viz. (1) that it is a statement to a police officer and (2) that it is made in the course of investigation under Chapter XIV Criminal Procedure Code. The question therefore is whether a Panchnama is a record of a statement which falls within the ban of sec 162 of the Code ? In a case falling under sec. 161 of the Penal Code or under sec. 5 (1) (d) of the Prevention of Corruption Act an offence thereunder is complete when an illegal gratification is accepted by an accused person. Generally a Panchnama produced in such a case falls into two parts viz. (1) the recording of what occurred before the acceptance of an illegal gratification and (2) what occurred at the time of the accepta