John Beaumont, C.J.
1. This is an appeal by the accused against his conviction under Sections 454 and 380 of the Indian Penal Code by the Presidency Magistrate, Fourth Court, Bombay.;
2. The story of the complainant is that the accused was brought to his flat by a mutual friend on September 14, 1939, and on the 18th the complainant went to Surat, and left the accused and a relation of the complainant named Kodarlal in the flat. Part of the flat was locked up; the rest was left open. The complainant returned to Bombay on October 23, and then found the locks on the doors of the flat and cupboards broken, and some of his goods missing. He went round to the police at once and gave information. He gave a list of the articles which, he said, he had lost, which) were articles of no great value, worth about Rs. 50 or Rs. 60 and he stated that he had no suspicion against anybody. Police Sub-Inspector Harris went round to the flat and found that things were disturbed, and it looked as if there had been house-breaking. The complainant says, and that no doubt is true, that the police asked him not to touch anything because they hoped to find some fingerprints. The next day, the complainant says, after the police allowed him to touch his things, he looked into a secret drawer, and then discovered for the first time that he had lost some pearl necklaces and pearl bangles of the value of over Rs. 7,000. He says that when he went to Surat he left these articles in the secret drawer, and having discovered their loss, he made a supplemental statement to the police. The accused could not be found for some time, and eventually on March 1, 1940, he surrendered to the police, and he is charged with having stolen all these articles.
3. The learned Magistrate seems to have accepted the whole of the complainant's story, but a good deal of it seems to me to be, on the face of it, absurd. The complainant is a gentleman who has suffered from thieves before, according to his own story, and it is inconceivable that he would go off for a month to Surat, leaving valuable jewels in his flat in some secret drawer, the secret of which could no doubt be discovered by any thief, and with the accused whom, he says, he knew nothing about in occupation of his flat. If he had done so incredibly foolish a thing, I am quite certain that on his return from Surat and on discovering that his flat had been broken into, the first thing he would have done would have been to go to the secret drawer and find out whether the pearls were there. It is absurd to suggest that he never looked into the secret drawer until the next day, and only then discovered the loss of these pearls of very substantial value. I am perfectly certain that the pearls were not lost at all; but, on the other hand, probably somebody did break into the flat. I should think it unlikely that the whole thing was stage-managed, although that is conceivable. There is no doubt that when the police went to the flat, it showed signs of having been broken open.
4. Now, the evidence against the accused is, first of all, that he was admittedly left in the flat. He says that he remained there for some time. He wrote two letters, which are in evidence, asking the complainant for money to enable him to continue to live in the flat, and as the complainant did not send any money, he says that he left, throwing the key into the flat through a window. At any rate he was at one time in charge of the flat, and the evidence that he committed the house-breaking is that of two witnesses, Gopal, who was a bhaiya employed on the first floor of Kansara Chawl, the complainant's flat being on the third floor, and a locksmith named Hasanali. Gopal says that he had seen the accused and a ghati, who was a servant of the complainant, and whom he had known as a servant of the complainant for seven months previously. He saw these two people removing various articles from the flat, and he was asked by Hasanali, the locksmith, whether these two people were servants of the complainant, because they had asked him to break open certain locks in the flat. Hasanali says that the ghati called him up to the complainant's flat, where was the accused, and they asked him to make keys for some of the locks, but he said that he could not do that, but would break them open, and accordingly, he says, he did break open the locks. Now, if the accused and the ghati got the locks broken open, it is no doubt a fair inference that they probably stole anything which was stolen. But I may point out that it is not the usual practice for house-breakers to send for an expert locksmith to help them in their work. I find it very difficult to suppose that, if they were minded to break open the locks, two men would not have done it without seeking the assistance of somebody who could afterwards identify them. But it is obvious that the value of the evidence of these two witnesses, assuming their main story to be true, must depend on their identification of the accused. So far as Gopal is concerned, his evidence is obviously wrong in respect of the ghati, because the complainant says that he never had a ghati in his employ, and yet Gopal says that he knew him as the employee of the complainant for seven months. It is difficult to see why, if the evidence as to the ghati is entirely false, the evidence as to the accused should be accepted as entirely true. There is no such criticism of Hasanali's evidence, but he had not seen the accused before and the evidence of identification of the accused is most unsatisfactory. Deputy Inspector Kale, who was in charge of the case, says that he held an identification parade at which Hasanali and Gopal at once identified the accused, and he then produced a panchnama of the identification parade, which was put in as exhibit E.
5. Now, this Court pointed out some years ago in Emperor v. Rustom Lam (1931) 34 Bom. L.R. 267, that if the police relied on a panchnama, they must call a panch to prove it, and that the practice of Presidency Magistrates; in allowing a panchnama to be put in by a police witness was wrong. The object of having panch witnesses is to provide evidence which is independent of the police. In searches under Ch. VII of the Criminal Procedure Code or the City of Bombay Police Act it is necessary to call pahchas, but Section 103(2) of the Code provides that they need not be called as witnesses unless they are specially summoned. That does not mean that the panchnama can be used if no panch is called. Apart from searches, it is, of course, not a rule of law or practice that police evidence must be corroborated; but where one is dealing with an identification parade, and where it is of vital consequence to show that the accused was duly identified, it is obviously desirable, as the police recognize themselves, to have some independent evidence that the parade was properly and fairly held, because there is nothing easier than for the police to stage an unfair identification parade, in which the witness is shown the accused before he identifies. I do not suggest that the police often hold unfair identification parades, but it is obviously desirable that there should be independent evidence to show that a parade has been properly held, and Deputy Inspector Kale recognized that in this case and summoned panchas; but if the prosecution wish to prove by independent testimony what happened at the parade, they must call the independent witness. The panchnama is merely a record of what a panch sees, and the only use to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchnama can be used as a contemporary record to refresh his memory. But a police-officer is not entitled to give evidence of what the panch told him, that he saw, and that is what it comes to if a police-officer is allowed to put in the panchnama. A police witness may state that he held a panchnama and offer to produce the record if the accused asks for it, but he cannot bring it on record in his evidence-in-chief. If the police hold a panchnama, and do not offer to call the panch, an inference may be drawn against them from the fact that the panch is not submitted for cross-examination. The putting in of a panchnama without calling the panch is not only an infringement of the rules of evidence against the admission of hearsay evidence, but it is unfair to the accused, because it enables the police to get the advantage of evidence in corroboration without putting that evidence to the test of cross-examination. Such cross-examination might show that the panch was nothing but a police; agent, and that his evidence is worthless. If the practice of allowing the prosecution to put in a panchnama without calling the panch is still in force despite the decision of this Court, I hope that Magistrates will see that it is stopped.
6. Having regard to the extreme importance in this case of the identification of the accused by Gopal and Hasanali, and to the fact that evidence on this point was improperly admitted, the appeal must be allowed. I am not prepared to act on the uncorroborated testimony of the police-officer as to what took place at this identification parade, particularly as evidence in corroboration was available and not called.
7. The accused must, therefore, be acquitted. Fine, if paid, to be refunded.