JUDGMENT - SAHAI VISHNU, J.:---The appellant aggrieved by the Judgment and order dated 26th June, 1995 passed by the Additional Sessions Judge, Dhule in Sessions Case No. 76 of 1991 convicting and sentencing him (i) under section 328 read with 34, Indian Penal Code to 5 years R.I. and a fine of Rs. 500/- in default to further undergo two months R.I. and (ii) under section 379 read with 34, Indian Penal Code to one year R.I. and to pay a fine of Rs. 500/- in default to further undergo two months R.I., the substantive sentences to run concurrently has come up in appeal before me. 2. The prosecution case in brief runs as follows :- The informant Sumanbai Shankarrao Borase. P.W. 1 was a resident of Andheri, Bombay. On 23-5-1991, she was to proceed from Shirpur to Vikharan for attending a marriage. At about 10-10.30 a.m. while she was at the S.T. Bus Stand at Shirpur, waiting to catch a bus for Vikharan, two unknown persons came near her and enquired from her as to where she was going. She replied that she was proceeding to Vikharan to attend a marriage. On that they told her that they were also going to attend the same marriage and started talking sweetly to her. All of them were sitting on a bench at the bus stand. While the appellant was sitting by her side his companion Ravindra Arjun Patil went and brought two glasses filled with sugarcane juice. Ravindra offered one glass to the informant and the other was consumed by him and the appellant. After the informant drank her glass of sugarcane juice Ravindra, the companion of the appellant, brought within five minutes another glass filled with sugarcane juice. The informant again started drinking the sugarcane juice. After she had consumed half the glass she started feeling uneasy and stopped drinking the juice further. She began losing consciousness and when she regained some of it, she found herself on the bridge, situate in village Bhamte and the appellant and his companion near her. At that time she was in a condition to comprehend as to what was happening. She saw the appellant and his companion removing the golden chapalahar and Mangalsutra, which she was wearing on her neck. She recognised them but, could not say anything as she was not fully conscious. At that time she was in a condition to comprehend as to what was happening. She saw the appellant and his companion removing the golden chapalahar and Mangalsutra, which she was wearing on her neck. She recognised them but, could not say anything as she was not fully conscious. At that time, a rickshaw puller came and asked the appellant and his companion whether they wanted to board the rickshaw to which, they replied in the negative. The rickshaw puller went away towards village Bhamte (old). Within two minutes, he returned and noticed that the appellant and his companion were removing something from the neck of the informant. However, before the rickshaw puller could reach to her rescue, the appellant and his companion ran away. The rickshaw puller asked her as to where she wanted to go and on her telling him that she wanted to attend a wedding at Vikharan in Patil community, the rickshaw puller dropped her at the place of marriage. There she told some persons that two unknown persons had stolen away her golden ornaments. Some amongst them left her to the house of her relation Balu at Shirpur. Meanwhile, the same day at about 2.30 p.m. in the taxi of Magan Ramchandra Bari (P.W. 3) the appellant and his companion Ravindra Patil left for Jalgaon along with the ornaments which they had stolen from P.W 1 Sumanbai. At Jalgaon, in the jewellery shop of Rajmal Lakhichand at about 5 or 5.30 p.m. the same day, they sold the said ornaments and came back in the same taxi. On the way back, Ravindra Patil got down at village Savkheda and the appellant at the bifurcation of the road known as Bhatpura Phata. 3. The F.I.R. of the incident was lodged by Sumanbai on 24-5-1995 at about 11 a.m. at Police Station Shirpur. In the F.I.R. the description of the appellant and that of his companion has also been mentioned. On the basis of the F.I.R. Crime No. 62 of 1991, under section 379 read with 34, Indian Penal Code was registered. 4. The investigation of the case was conducted by PSI Dilip Nikam P.W. 7. Immediately, after the lodging of the F.I.R. he proceeded to the place of the incident and prepared the spot panchanama. He recorded the statements and supplementary statements of some witnesses under section 161, Criminal Procedure Code. 4. The investigation of the case was conducted by PSI Dilip Nikam P.W. 7. Immediately, after the lodging of the F.I.R. he proceeded to the place of the incident and prepared the spot panchanama. He recorded the statements and supplementary statements of some witnesses under section 161, Criminal Procedure Code. On 3-6-1991, both the appellant and his companion Ravindra Patil were arrested in another crime by Dhule police. On a transfer warrant, they were taken into custody. On interrogation, they confessed their involvement in the present incident. They told PSI Dilip Nikam that they had sold the golden ornaments in a Jewellery shop at Jalgaon. The police along with them went to the shop of Rajmal Lakhichand at Jalgaon. There, the appellant and his companion showed P.W. 7 Dilip Nikam the person to whom they had sold the ornaments. The aforesaid ornaments had been melted and converted into a gold bar weighing 57 gms. The aforesaid bar was seized by PSI Nikam under a panchanama Exh. 22. On the panchanama the signatures of Radheshyam Sharma P.W. 4, the accountant of the Firm Rajmal Lakhichand were obtained. P.S.I. Nikam also recorded the statements of Radheshyam Sharma and Subhash Vispute P.W. 5, a servant of said shop. Unfortunately, the witnesses pertaining to the sale of ornaments turned hostile and the prosecution tendered some portions of their statements recorded under section 161, Criminal Procedure Code with which they were confronted during the course of their examination in the trial Court. After completing the investigation, PSI Dilip Nikam filed a charge sheet under sections 328/379 read with 34, Indian Penal Code against the appellant and his companion Ravindra Patil. 5. The case was committed to the Court of Session in the usual manner. It appears that prior to the framing of charge, Ravindra Patil died. A charge under sections 328 read with 34, Indian Penal Code and 379 read with 34, Indian Penal Code was framed against the appellant to which he pleaded not guilty and claimed to be tried. In the trial Court, prosecution examined as many as seven witnesses and also tendered some material exhibits. On behalf of the appellant, no witness was examined. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. Hence, this appeal. 6. I have heard Mr. R.V. More for the appellant and Mr. On behalf of the appellant, no witness was examined. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. Hence, this appeal. 6. I have heard Mr. R.V. More for the appellant and Mr. I.S. Thakur, Additional Public Prosecutor for the State of Maharashtra. I have also perused the depositions of the witnesses examined in the trial Court; the material exhibits tendered in the trial Court; and the impugned Judgment. After giving my anxious consideration to the matter, I am constrained to observe that there is no substance in this appeal and it deserves to be dismissed. 7. The crucial piece of evidence which clinches the participation of the appellant in the instant case is that of the informant Sumanbai Borase PW 1. After going through her statement, I have not even an iota of doubt that she is a wholly reliable witness. The averments made in her examination-in-chief in the trial Court are incorporated in paragraph 2 wherein I have narrated the prosecution story. Hence, no useful purpose would be served by repeating the same. In the F.I.R. she has given the description of the appellant which resembled the appellant when he appeared in the trial Court on the various dates. During the course of investigation, when the police called her at the police station, she identified the appellant. She also identified him in the trial Court. The manner of the incident as disclosed by her appears to be natural and probable. After perusing her statement she impressed me as a very simple and innocent lady; only such a lady would have believed the claim of the appellant and that of his companion Ravindra Patil when they met her at the Shirpur bus stand where she was waiting to catch a bus for Vikharan for attending a marriage, that they were also going to attend the same wedding and drank the sugarcane juice brought by Ravindra Patil. She very fairly stated in her statement that she identified the appellant and his companion while they were removing the chapalhar and mangalsutra from her neck but, could not do anything as she was not fully in her senses. She very fairly stated in her statement that she identified the appellant and his companion while they were removing the chapalhar and mangalsutra from her neck but, could not do anything as she was not fully in her senses. A reading of her statement has convinced me beyond any shadow of doubt that her solitary statement by itself would be a sufficient and safe foundation for sustaining the conviction of the appellant on both the counts. The principle which law Courts follow in our country is that evidence has to be weighed and not counted. It is on this salutary principle that the provisions contained in section 134 of the Indian Evidence Act are based. The aforesaid section reads thus :- “No particular number of witnesses shall in any case be required for the proof of any fact.” 8. However, in the instant case in support of at least some parts of the prosecution story, there is plurality of evidence and this doubly reassures me. There is the statement of P.W. 2 Ramesh Baliram Patil, the rickshaw puller who saw the appellant and his companion on the bridge in Bhamte removing the ornaments from the neck of P.W. 1 Sumanbai Borase. The aforesaid witness identified the appellant in the Court. 9. Again reassurance is forthcoming in the form of the statement of Magan Bari P.W. 3 the taxi driver on whose taxi the appellant and his companion, on the date of the incident itself at about 2.30 p.m. left from Shirpur to Jalgaon, where they disposed of the gold ornaments at the shop of Rajmal Lakhichand and returned back on the same taxi. P.W. 3 Magan Bari also identified the appellant in the Court. 10. It needs to be emphasised and with some vehemence too, that none of the aforesaid three witnesses had any malice or ill will against the appellant. Had he not been the real culprit they would not have falsely identified him in the Court. Had the informant not been duped and relieved of her ornaments by the appellant and his companion, there was no reason for her to falsely fix them in the instant case. 11. It is true that the witnesses of the firm Rajmal Lakhichand where the appellant and his companion sold the gold ornaments became hostile. Had the informant not been duped and relieved of her ornaments by the appellant and his companion, there was no reason for her to falsely fix them in the instant case. 11. It is true that the witnesses of the firm Rajmal Lakhichand where the appellant and his companion sold the gold ornaments became hostile. However, it is too late in the day to argue that the testimony of hostile witnesses is wholly useless. Even a portion of the testimony of a hostile witness can be relied upon if the same inspires confidence. I am fortified in my view by the decision of the Apex Court reported in A.I.R. 1989 S.C. 1543, (State of U.P. v. Chetram and others)1 wherein paragraph 13, Their Lordships observed thus:- “The High Court has failed to hear in mind that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration.” In the present case, I find that Radheshyam (P.W. 4) an accountant in the firm Rajmal Lakhichand admitted in his statement in the trial Court, when confronted with the portion Exhibit D of his statement recorded under section 161, Criminal Procedure Code which reads that the appellant and his companion had sold the ornaments at his shop; he had purchased the same from them; and made a gold bar after melting them, that this portion of his statement is true. 12. In my view, the statement of the informant Sumanbai Borase P.W. 1 coupled with that of P.W. 2 Ramesh Patil. P.W. 3 Magan Bari and a part of that of P.W 4 Radheshyam is sufficient, beyond any shadow of doubt, for sustaining the conviction of the appellant. 13. Mr. R. V. More, learned Counsel for the appellant made the following three submissions before me :- (1) In the absence of any test identification of the appellant it would not be safe to accept his identification in the Court by P.W. 1 Sumanbai Borase. PW 2 Ramesh Patil and P.W 3 Magan Bari. (2) The offence committed by the appellant would not fall in the ambit of section 328, Indian Penal Code because the prosecution has failed to adduce evidence to the effect that any poison was either administered by the appellant or his companion Ravindra Patil to the informant Sumanbai. PW 2 Ramesh Patil and P.W 3 Magan Bari. (2) The offence committed by the appellant would not fall in the ambit of section 328, Indian Penal Code because the prosecution has failed to adduce evidence to the effect that any poison was either administered by the appellant or his companion Ravindra Patil to the informant Sumanbai. (3) At any rate, the sentence awarded to the appellant is on the side of undue severity and warrants to be reduced. 14. I now propose considering each of the aforesaid submissions. To back up his first submission, namely that in the absence of any test identification of the appellant, it would not be safe to accept his identification in the Court by P.W. 1 Sumanbai Borase, P.W. 2 Ramesh Patil and P.W. 3 Magan Bari. Mr. More placed reliance on two decisions of Supreme Court reported in A.I.R. 1983 S.C. 367, (Mohd. Abdul Hafiq v. State of Andhra Pradesh)2 and A.I.R. 1992 S.C. 2100, (State of Maharashtra v. Sukhdev Singh and another)3. The facts found in the aforesaid two cases are distinguishable from those of the present case and none of those decisions would have any application in the present case. The case reported in A.I.R. 1983 S.C. 367 (supra) was one of robbery and in that case, neither the test identification of the accused person who was not known to the victim prior to the incident was done and neither the victim gave any description of the accused in the FIR. It was in such a situation that the Supreme Court refused to attach any weight to the evidence of identification of the accused person by the victim in the Court. This decision has no application to the facts of the present case because here we find that in the FIR itself, the informant has given description of the appellant. Further, in broad day light for a very long time, she was with the appellant and thus had plenty of time to recognise his features etc. This decision has no application to the facts of the present case because here we find that in the FIR itself, the informant has given description of the appellant. Further, in broad day light for a very long time, she was with the appellant and thus had plenty of time to recognise his features etc. The decision reported in A.I.R. 1992 S.C. 2100 (supra), is also distinguishable because, in the aforesaid decision, Their Lordships of the Apex Court held that the trial Court was justified in rejecting the identification of an accused for the first time in the Court by the witnesses because, they only had a fleeting glimpse of the accused during the time of the incident; they had no particular reason to remember the accused, and the evidence was that accused persons had changed their appearance (earlier they were clean shaven later they were attired like Sikhs). This is not the case here. Here the informant Sumanbai Borase and Ramesh Patil P.W. 2, particularly the former had all the time in the world to recognise the appellant during the incident and Sumanbai Borase had a particular reason to remember the appellant because he had removed the gold ornaments from her neck. 15. It needs to be emphasised that there is no immutable proposition of law or of practice having universal application to all cases that it is imperative to hold test identification of accused persons who are not known to the witnesses prior to the test identification and the absence to do so would vitiate the evidence of identification of the accused persons by the witnesses, for the first time in the Court. Whether weightage should be given to the evidence of identification of witnesses who have identified the accused for the first lime in Court is a question of fact and no strait jacket formula applicable to all cases can be laid down. It would all depend on the facts peculiar to each case. 16. Having said this, let me make it clear that it is always preferable and fair for the prosecution to have the test identification done during the course of the investigation itself because then the memory of the witnesses is fresh and if they identify an accused person, it gives tremendous reassurance to the Court and enhances the value of the identification in Court. A greater value and weightage is always attached by Courts to such an identification. Absence of test identification during the course of investigation certainly detracts from the value to be attached to the evidence of identification for the first time in the Court. As a result of this the loser is the prosecution and it should squarely blame itself for the same. In this connection, it would be useful to refer to some of the observations made by Their Lordships of the Apex Court in the decision reported in A.I.R. 1958 S.C. 350, (Kantaprasad v. Delhi Administration)4. In paragraph 5, Their Lordships have observed thus :- “As for the test identification parade, it is true that no test identification parade was held. The appellants were known to the police officials, who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance. It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.” 17. For the reasons stated above, I find the first submission of Mr. More to be devoid of substance and reject the same. 18. I now propose considering the second submission raised by Mr. More namely :- the offence committed by the appellant would not fall in the ambit of section 328, Indian Penal Code because, the prosecution has failed to adduce evidence to the effect that any poison was administered by the appellant or his companion Ravindra to the informant Sumanbai. 18. I now propose considering the second submission raised by Mr. More namely :- the offence committed by the appellant would not fall in the ambit of section 328, Indian Penal Code because, the prosecution has failed to adduce evidence to the effect that any poison was administered by the appellant or his companion Ravindra to the informant Sumanbai. Section 328, Indian Penal Code reads thus :- Section 328: “Causing hurt by means of poison etc., with intent to commit an offence, whoever administers to or causes to be taken by any person any person or any stupefying, intoxicating, or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” A perusal of the aforesaid section would show that the following elements are essential to constitute an offence under section 328, Indian Penal Code - (i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing; and (ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned person. Both these elements should exist conjunctively. Then and then alone would the offence be complete and the person or persons as the case may be, would be guilty of the offence contained in this section. An analysis of the provisions contained in the section exposes the fallacy of Mr. More's contention that in order to constitute an offence under section 328, Indian Penal Code, it is incumbent that some evidence should be led by the prosecution to prove that any poison was administered to the victim. An analysis of the provisions contained in the section exposes the fallacy of Mr. More's contention that in order to constitute an offence under section 328, Indian Penal Code, it is incumbent that some evidence should be led by the prosecution to prove that any poison was administered to the victim. The language of the section clearly shows that the act of administering any stupefying, intoxicating or unwholesome drug or any other thing with the intention to cause hurt to a person or with intention to commit or to facilitate commission of an offence or knowing it to be likely that hurt would be caused, would also fall within the mischief of the section. In the instant case, it appears from the statement of the informant, that some stupefying or intoxicating or unwholesome drug or some other thing was given to her with the intention to commit theft of her ornaments by Ravindra Patil in furtherance of common intention of the appellant and therefore, an offence under section 328, Indian Penal Code read with section 34, Indian Penal Code is made out against the appellant. It needs to be emphasised that administering of poison is only one of the modes by which an act may fall within the mischief contemplated by this section. 19. For the reasons mentioned above, I find no merit in the contention of Mr. More and reject the same. 20. I now propose taking up the third and final contention canvassed by Mr. More namely that the sentence awarded to the appellant errs on the side of undue severity and warrants to be reduced. I regret that I find it to be also devoid of any merit. A simple, innocent lady aged about 50 years, in a planned and calculated manner, in a public place, namely a bus stop was administered some stupefying or intoxicating or unwholesome drug or any other thing by Ravindra Patil in furtherance of the common intention of the appellant. The appellant and his companion Ravindra Patil cheated the confidence of the victim when they told her that they were also going to attend the same wedding at Vikharan, for which she was proceeding. Accepting their statement on the face value the victim Sumanbai Borase who was unaware of the guile and cunningness of human nature fell a prey in their trap and consumed sugarcane juice at their insistence. Accepting their statement on the face value the victim Sumanbai Borase who was unaware of the guile and cunningness of human nature fell a prey in their trap and consumed sugarcane juice at their insistence. The act of the appellant and his companion in administering the stupefying or intoxicating or unwholesome drug or some other substance to the informant in sugarcane juice and thereafter taking of the ornaments which she was putting on was a foul, cold blooded and ruthless one. It steals all sympathy of the Court. In fact, the Court has to guard itself of its antipathy being provoked against it. Persons guilty of performing such depraved acts do not deserve any sympathy. If the sentence of such persons is reduced, it would be a case of misplaced sympathy resulting in the society losing confidence and faith in our criminal Justice delivery system; a faith which I may dare say is happily still intact. The act of the appellant deserves the sternest of punishments. For the aforesaid reasons, I am not inclined to reduce the sentence of the appellant and reject the third contention canvassed by Mr. More. 21. I had half a mind to suo motu issue a notice for enhancement of the sentence to the appellant. However, on second thoughts, I refrained from doing this for three reasons :- Firstly because, the incident took place nearly 4½ years ago and much time has flown since then; secondly because the Code of Criminal Procedure contains a provision in the form of section 377, Criminal Procedure Code wherein it has been provided that the State Government may file an appeal for enhancement of the sentence and this the State for reasons best known to it, has not done; and thirdly because the Apex Court, in its decisions reported in 1955 Cri.L.J. 1642, (Bed Raj v. State of Uttar Pradesh)5 and A.I.R. 1953 S.C. 364, (Dalip Singh v. The State of Punjab)6 has held that the question of sentence is primarily a question of discretion of the trial Court and unless that discretion has been exercised in a patently erroneous or capricious manner and the sentence imposed is grossly inadequate the appellate Court would not be justified in enhancing it. In the case reported in A.I.R. 1953 S.C. 364 (supra), the Apex Court has gone to the extent of saying the fact that left to itself the appellate Court would have imposed a greater penalty would be no ground to enhance the sentence. Judged by the above yardstick the sentence awarded in this case cannot be faulted as being said to be manifestly inadequate warranting the issuance of a suo motu notice for enhancement of the sentence to the appellant. 22. The fall out from the above discussion is that there is no merit in this appeal. Accordingly, I dismiss the same. I am informed that the appellant is in jail. He shall only be released therefrom after serving out the sentence in this case and then too only if not wanted in any other case. Appeal dismissed. -----