THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 959 of 2001 JUDGMENT: 1. This appeal, under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), is directed against the judgment dated 06.07.2001 in Sessions Case No.1 of 2001 on the file of the VII Additional Sessions Judge (Fast Track Court), Visakhapatnam, whereunder and whereby the appellants/A.1 to A.3 were found guilty of the offence punishable under Section 392 I.P.C., accordingly convicted and sentenced to undergo rigorous imprisonment for a period of three years each and to pay fine of Rs.2,000/- each, in default to suffer rigorous imprisonment for a period of four months each. 2. The case of the prosecution, in brief, may be stated as follows: P.W.1 is a practicing Advocate in Gajuwaka and Vizag. He was residing at Nathayapalem, Gajuwaka mandal, along with his wife, children and mother P.W.2. He used to go to the Court at 10.00 AM and return to the house at 5.00 PM. On 20.7.1999, when P.W.2 was alone present in the house, two unknown persons came and stated that they knew her (P.W.2) daughter-in-law P.W.4 and they belong to the neighbouring village to Bhimadolu, and they also told the names of parents and brothers of P.W.4. On that, P.W.2 opened the lock of the compound gate. The said persons enquired about P.Ws.1, 4 and children. According to P.W.2, one male person was in dark complexion whereas the lady was of fair complexion, and she was unable to recollect who they were. On the next day, she informed about the same to P.W.1. On 21.7.1999 at about 11.00 AM, the male and female persons who visited on the previous day, again came to the house of P.W.2 along with another lady. While she went inside the house to provide tea, all the three persons followed her and demanded to give key so as to open the room of P.W.1. She expressed her inability as the key was not with her. The three persons caught hold of her, squeezed her neck and dragged her from kitchen to bed room. In the bed room, all the 3 persons beat P.W.2 with wooden handle of a knife lying in kitchen, and as a result, she lost her four or five teeth and as there was profused bleeding, they wiped out the blood with a towel and inserted it inside her mouth. They tied her both hands and legs and neck, placed her in bath room and bolted bathroom from outside and went away. As P.W.1 did not take some court files on that day, he returned to the house at 12.30 noon and found two unknown persons in the compound wall. When he enquired them, they informed him that his mother went to the western neighbourer’s house. When he went there, the said house was locked and so he returned back to his house and found that the compound wall of his house was kept open and its lock was found lying on the ground, and the two ladies and one male persons were not found. When he went inside his house and opened bathroom door, he found his mother. After coming to know about the incident, he telephonically informed to Gajuwaka police. Thereafter, the Inspector of Police came to the house of P.W.1 and recorded the statement of P.W.1. On 25.7.1999, A.2 and A.3 were arrested and basing on their confessional statement, M.O.2 from A.2 and M.Os.3 and 4 from A.3, were seized by the investigating officer P.W.14 in the presence of P.W.11 and others under Ex.P10-mediatornama. Similarly, A.1 was arrested on 31.7.1999 and M.O.1 was seized, in the presence of P.W.9 under Ex.P9-mediatornama. As the accused are strangers to the prosecution witnesses, the investigating officer gave requisition to the concerned Magistrate to conduct test identification proceedings. Accordingly, P.W.3 conducted test identification proceedings. P.W.2 did not participate in the test identification proceedings, because, according to the prosecution case, she was completely bedridden by then. P.W.1, who participated in the proceedings, identified A.3 as one of the assailants. He did not identify A.2 as one of the assailants. Police referred P.W.2 to C.D.R. Hospital, Gajuwaka. P.W.10 examined P.W.2 and found loss of four teeth and also fracture of clavicle bone. Police observed the scene of occurrence and seized blood stained towel and other incriminating articles from the scene of occurrence and thereafter observation report was drafted, and after completion of investigation, charge sheet was laid. 3. When charges for the offences punishable under Sections 392 and 411 I.P.C. were framed, read over and explained to the appellants, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 14 and got marked Exs.P1 to P14, besides case properties M.Os. 1 to 9. On behalf of the accused, D.Ws. 1 to 4 were examined and Exs.D1 to D12 were marked. 5. The trial Court, accepting the evidence of P.W.2 coupled with the evidence of P.Ws. 1 and 5, and also the seizure of gold ornaments from the possession of A.2 and A.3, found the appellants guilty of the offence punishable under Section 392 I.P.C., accordingly convicted and sentenced them as stated supra, while acquitting them of the offence punishable under Section 411 I.P.C. Challenging the same, the present criminal appeal is preferred by the appellants/A.1 to A.3. 6. Now, the point for determination is whether the prosecution proved its case beyond reasonable doubt for the offence punishable under Section 392 I.P.C. beyond reasonable doubt ? 7. The learned senior counsel Sri C.Padmanabha Reddy appearing for the appellants contended that, according to the prosecution witnesses P.Ws.1, 2 and 5, they do not know the accused prior to the incident, and as no descriptive particulars of the assailants have been stated either in the complaint or in the statements recorded by the police during the course of investigation, identification of the assailants by P.W.2 in the court for the first time cannot be accepted. that, the nature or description of the injuries allegedly caused has not been noted in the wound certificate; that, the medical evidence is brought into existence falsely to show that P.W.2 sustained some injuries; that, the evidence of P.W.2 cannot be treated as wholly reliable witness. It is his further contention that, the whole case of the prosecution appears to be false for the reason that P.W.1 tried to outrage modesty of A.3 and in order to thwart the attempts of the accused to lodge a complaint, totally a false case is foisted; that, P.W.1 indebted an amount of Rs.50,000/- to A.1 and when the accused went to the house to ask that amount, the false case is foisted; that the whole case appears to be highly improbable; that the trial court committed error in taking the admissions of the accused when they were examined under Section 313 Cr.P.C. in order to find them guilty. It is further contended that M.Os. 1 to 3 belong to A.2 as she purchased the same under Exs.D11 and D12, and that Exs.D11 and D12 are not shown to be fabricated or concocted documents; that the defence evidence is also reasonably possible and it cannot be ruled out, and so, benefit of doubt should be extended to the accused. Hence, he prayed to allow the appeal. 8. On the other hand, the learned counsel representing the Public Prosecutor contended that, as the accused spent some time with P.W.2 on two days, their impressions must have been imprinted in the mind of P.W.2 so as to recollect the same and identify them even after lapse of long time; that, there was nothing unusual for P.W.2 to identify A.1 to A.3 in the court; that, there is absolutely no reason for P.Ws.1, 2 and 5 to speak false against the accused; that, except giving suggestions that P.W.1 indebted some amount to A.1 and that the accused were known to the prosecution witnesses, nothing has been elicited to discredit the testimony of P.Ws.1, 2 and 5; that, mere hurling of some suggestions is not an evidence; that, the trial court, after an elaborate consideration of the evidence on record, rightly found the appellants guilty and there are no grounds to interfere with the same. Hence, she prays to dismiss the criminal appeal. 9. It is the case of prosecution that the accused are strangers to the prosecution witnesses, and prior to the incident in question, the prosecution witnesses 1, 2 and 5 have no acquaintance with the accused and that the accused committed robbery after causing grievous hurt to P.W.2. Whereas, it is the case of the accused that they belong to neighbouring native village of P.W.4, who is daughter-in-law of P.W.2, and that P.W.1, 6 and others performed marriage of A.1 and A.2 and they are not strangers to P.Ws. 1 and 2 and that totally a false case is foisted against them in order to thwart the attempts of A.3 in giving complaint against P.W.1, as P.W.1 misbehaved with her. There cannot be any dispute that the accused can take any number of pleas, because the burden always lies on the prosecution to establish its case beyond reasonable doubt and that burden never shifts on to the accused unless the law says so. In so far as the offence punishable under Section 392 I.P.C. is concerned, the burden is always on the prosecution to prove the same and it never shifts on to the accused. Therefore, the prosecution has to prove the necessary ingredients constituting the offence punishable under Section 392 I.P.C. The admissions or answers given by the accused when they were examined cannot be used as corroborative evidence to the prosecution case. At best, they can be taken into consideration, after the prosecution established its case beyond reasonable doubt, to lend assurance to the prosecution case. 10. One of the essential ingredients to constitute the offence punishable under Section 392 I.P.C. is causing a hurt by the assailants while committing the robbery. According to P.W.2, she lost her four teeth and also sustained fracture of clavicle bone. Similarly, the evidence of P.W.1 would go to show that P.W.2 lost her four teeth and sustained fracture of clavicle bone and she was in unconscious state when he entered into bath room and that P.W.1 untied ropes tied to her hands and legs and took her to bed room and from then he telephoned to concerned Inspector of Police, and that, P.W.14 went to the scene of occurrence (i.e. house of P.W.1), took report from P.W.1 and registered the case. But, according to the evidence of P.W.13-Assistant Sub Inspector of Police, it is clear that P.W.1 lodged Ex.P1-complaint in the police station. This minor variation with regard to the place of lodging the report, can be taken into account while considering the other evidence on record and it cannot be decided in isolation so as to doubt the case of the prosecution. 11. As seen from the evidence of P.Ws. 1 and 2, there was profuse bleeding from the mouth of P.W.2. The evidence of P.W.2 is clear that when there was a profuse bleeding, the accused wiped that bleeding with M.O.7-towel and as P.W.2 was wearing green colour saree it was also stained with blood. It is also specific case of P.W.2 that the accused also caused injury with wooden handle of knife, marked as M.O.5. Police also seized four teeth of P.W.2. Admittedly, M.Os. 6 to 8 have not been sent to the Forensic Science Laboratory to ascertain the group of human blood. Similarly, they have not collected blood stains of P.W.2 so as to compare her group with that of the blood stains found on M.Os.6 to 8. The reason for not sending the material objects to the Forensic Science Laboratory was that the investigating officer thought that it was not necessary. It is not for the investigating officer to decide whether sending a material object to the Forensic Science Laboratory is necessary or not. It is his duty as investigating officer to send the material objects to the Forensic Science Laboratory. To ascertain that the four teeth that were seized at the scene of occurrence were that of P.W.2, the evidence of P.W.9, who is mediator for the observation of scene of occurrence is relevant. According to P.W.9, he saw the four teeth lying on the first bed room and the same were seized under Ex.P9-Mahazarnama. 12. The evidence of P.W.10 is very much important. He is working as Dental Surgeon in K.G. Hospital, Visakhapatnam. He simply stated that on 21.7.1999, he examined P.W.2 and found that she missed two lower central incisors right and left i.e. four teeth missing. The second injury found by him is clavicle bone fracture. He issued Ex.P11-certifying that both the injuries are grievous in nature. He opined that there was no scope for teeth to come back and they are permanently lost. He has given wonderful medical certificate Ex.P11, which has to be extracted as it is. “CDR HOSPITALS MEDICO LEGAL RECORD Casualty No. I.P. No.2255 M.L.C. NO.225 Name of the Patient: Raniyamma, O. Accompanied by PC No. Age 65 years F. Others : Address: Nathayyapalem, Address: B.H.P.V. Post, Visakhapatnam. Identification marks: 1. ABM on the right iliac crust. 2. A black mole on the left wrist joint. Brief history of the case: Informat: Signature/LTI of the Patient General examination of patient: conscious/unconscious/semi conscious/ Responding. Pupils: Pulse: 86 / Mt. B.P. 160/90 /mm. Respiratory rate: /mt Heart: normal; Lungs: Abdomen: Tongue: Treatment given: INJURY CERTIFICATE ------------------------------------------------------------------------------------------- Sl.No. Description of Dimensions Age of Casuative Simple Wound wound weapon grievous ------------------------------------------------------------------------------------------- 1. 21 x 12 expolicated 21.7.99 date of Grievous injury 2. Clavicle right Fracture 21.7.99 Grievous Opinion reserved pending Radiologist/D.S.O.S. Final opinion: loss of teeths 21 x 12 clavicle fracture injury grievous in nature. Sd/-xxx Medical Officer”. Ex.P11 was given in the letter head of C.D.R. Hospitals. It does not contain particulars as to who took P.W.2 to hospital, at what time she was examined and the nature of injuries. No x-rays were taken to confirm that P.W.2 sustained clavicle fracture. P.W.10 is not Orthopaedic surgeon so as to find a fracture of bone. Nature of treatment, the investigations and how she sustained the injuries, have not been noted in Ex.P11. As seen from the evidence of P.W.10, it is clear that the case sheet is also maintained. That case sheet is not marked. He stated that no treatment can be given in respect of injury no.2 as it would subside by itself. The treatment given in respect of injury no.1 is not noted in Ex.P11. Further, according to P.W.10, the injuries 1 and 2 are fresh injuries. That fact has not been mentioned in Ex.P11 and for the first time, P.W.10 was testifying in the Court about the same nearly two years after the incident. It is not known as to how he could be in a position to describe the nature of injuries viz. whether they are fresh or old, for the first time after lapse of two years. Admittedly, at the time of the incident, he was practicing as Dental Assistant Surgeon. Unless a clavicle bone is separated into two pieces, clinically it is not possible even for a Doctor to say about the fracture. It is not the case of prosecution that because of the fracture, there was no continuity of bone in view of break. In the absence of any other details with regard to nature of the injuries sustained by P.W.2 and description of wounds, it is not known as to how P.W.10 could be in a position to ascertain the fracture of clavicle bone. 13. Further more, approximate time of causing of those fractures and the alleged cause of the injuries, the alleged place of causing the injuries/fractures, manner of causing those injuries, are silent in Ex.P11. It is also not elicited from the Doctor that whether the weapon like M.O.5 can cause those injuries as noticed by him. No doubt, those aspects are not relevant for the purpose of knowing the assailant, but they are relevant for the purpose of deciding whether P.W.2 sustained fracture of clavicle bone and lost four teeth in the incident. The way in which the medical evidence was let in, in support of the case of prosecution, is totally unsatisfactory, and it leaves an impression that Ex.P11 was pressed into service to suit the case of prosecution. In these circumstances, it is not safe to place any implicit reliance on the evidence of P.W.10 and the recitals in Ex.P11. Because of this unsatisfactory medical evidence, sending of M.Os.5 to 8 to the Forensic Science Laboratory is very much crucial to decide whether there was any bleeding from the mouth and whether the teeth seized from the scene of occurrence belong to P.W.2. In view of foregoing discussion, non-sending of the material objects to the Forensic Science Laboratory is fatal to the case of the prosecution. 14. Coming to the evidence of P.Ws. 1 and 2 with regard to the incident roper, according to P.W.1, he had only seen the accused on the date of the incident and he had no prior acquaintance with the accused. According to him, on 21.7.1999 at about 12.30 noon, he came to the house as he failed to take two or three court files from his house; that, when he knocked at the gate, two ladies opened the door way and they questioned him as to who he was, for which he stated that he was the house owner; then the two ladies informed him that P.W.2 had been to the house of western neighbourer; that, immediately he went to the western neighbourer’s house and found that it was locked; that, by the time he came back to his house, the two ladies and one male person left that place. P.W.1 identified A.3 only in the test identification parade, and he cold not identify A.2. Though A.1 was arrested on 31.7.1999, the concerned Magistrate was not requested to hold any test identification parade in respect of him. 15. Test identification parade is conducted during the course of investigation to test the memory of a witness, who had no prior acquaintance with the accused prior to the date of the incident. The law is well settled that the test identification proceedings are not substantive piece of evidence so as to convict the accused basing on it. It is equally well settled that identification of the accused in the court is only the substantive piece of evidence. Admittedly, P.W.2 did not participate in the test identification proceedings on the ground that she was completely bedridden. As the case of P.Ws. 1 and 2 was that they do not know the accused prior to the alleged incident, the question is as to how they could be in a position to identify the accused as their assailants even after lapse of long time. The incident is alleged to have taken place on 21.7.1999, whereas they were testifying in the court nearly two years after the incident. P.W.1 had not given any descriptive particulars of the assailants either in Ex.P1 or when P.Ws. 1 and 2 were examined by police during the course of investigation. Except stating that one male person was with lean with dark complexion and the women were of normal height with fair complexion, no other particulars are given. Those descriptive particulars cannot be said to be striking features of an individual. They are common in respect of man and woman. It is not the case of P.Ws. 1 and 2 that because of some striking features of A.1 to A.3, they could be in a position to identify the assailants even after lapse of long time. Though, according to the case of prosecution, A.1 to A.3 spent for about 2 or 3 hours on two days, even in such circumstances, it would be difficult for a person like P.W.2 to identify the assailants for the first time after lapse of two years. Therefore, identification of A.1 to A.3 by P.W.2 for the first time in the Court, in the absence of any striking physical features described in Ex.P1, has to be viewed with suspicion and it is not of much value. 16. Further, so many discrepancies and improvements have occurred in the evidence of prosecution witnesses. The omissions elicited in the cross-examination of P.Ws. 1 to 5 through P.W.14 are as under. “Pw.1 did not state before me about Pw.2 telling him that she has not seen the male person and the female person who came to her house on 20th July earlier. Pw.1 did not state before me about A.2 and A.3 telling him that the gate key is with PW.2 and he did not also tell me about the gate lock lying on the ground. Pw.1 did not state before me about Pw.2’s unconsciousness and about her becoming consciousness in 10 min. later. Pw.1 did not state before me that two teeth of the upper jaw and two teeth of the lower jaw of Pw.2 have fallen but only stated fourth teeth have fallen. …” “PW.2 did not state before me that she took about 10 min. to ascertain the particulars of A.1 and A.2 but only stated that after ascertaining the particulars she opened the gate. Pw.2 did not specifically state before me that the male person was tall and of dark complexion and the lady was of fair complexion, but only gave their ages and as of medium complexion. PW.2 did not state before me about A.1 and A.2 bringing A.3 for the purpose of introducing A.3 to Pw.2 but only stated that they introduced A.3. Pw.2 did not specifically state before me about the accused enquiring her regarding the return of her daughter-in-law and grand children but only stated that they enquired about them. Pw.2 did not state before me about A.1 and A.2 going around on the terrace of Pw.1’s house on 20th July and about A.1 to A.3 going around on the same terrace on 21st July. Pw.2 did not state before me about A.1 to A.3 demanding her the key of Pw.1’s bed room failing which they threatened to kill her. Pw.2 did not state before me about herself being dragged by the accused from the kitchen to the bathroom and about her requesting the accused not to beat her but she stated that she was placed in the bathroom. Pw.2 did not specifically state before me that she was beaten indiscriminately by the accused and that the bathroom door was bolted from outside but she stated that she was beaten by the accused. ..” “Pw.4 did not state before me about her questioning Pw.2 as to why Pw.2 did not ask the male and the female person who came on 20th July to wait till Pw.1’s return. P.W.4 did not state before me about herself finding Pw.2 with blood and about the loss of four teeth. Pw.4 did not state before me that by the time of her return, the articles were in pelmel condition and that one silver patti was on cot and the door lock was lying. ..” “Pw.5 did not state before me about her coming out of her house while giving food to her child and seeing one male and one female person on 20th July, but only stated that she saw one male and one female person at the gate of Pw.1’s house. Pw.5 did not state before me about herself noticing about 30 persons gathering at the house of Pw.1 at 3.00 pm. ..” These omissions cannot be brushed aside lightly. A material omission amounting to contradiction merits careful consideration in determining whether a witness is truthful and reliance can be placed on his evidence. 17. Further more, according to P.W.1, after receipt of telephonic information, the Inspector of Police came to his house and recorded his statement, which is marked as Ex.P1. But, the investigating officer P.W.14 did