JUDGMENT - BRAHME P.S., J.: - By this appeal, the appellant-accused has challenged the judgment and order passed by the 3rd Additional Sessions Judge, Akola, dt. 1-1-2002 in Sessions Trial No. 11 of 2000, whereunder he was convicted for the offences under sections 328 and 380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for one month for the offence under section 328 of the Indian Penal Code and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for one month for the offence under section 380 of the Indian Penal Code. Both the sentences were to run concurrently. 2. The prosecution case, in brief, is that victim Archana (P.W. 11) was married with one Gajanan Chowdhary (P.W. 12) about six years before the incident that took place on 13-2-1999. However, they were not having any issue. Gajanan's sister Alka Bambai is given in marriage at Amravati where she resides adjacent to the house of one Raju Jawarkar. Some two years before, when Alka had visited the house of Raju Jawalkar, the appellant had come there and had told Raju that he had Ayurvedic medicine for the couples which are issueless. Therefore, Alka gave address of her brother Gajanan Chowdhary and consequently, the appellant-accused reached at the house of Archana at about 9.00 A.M., when Archana was alone in the house. The appellant told her that he was Ayurvedic doctor and Alka had sent him. As Gajanan was in the school, where he was working as Head Master, Alka sent her neighbour witness Sharad Joshi to bring her husband. Gajanan accompanied by Sharad Joshi came home and the appellant told him as to why he paid visit to them disclosing his name as Dr. Chowdhary and later having talked with Gajanan for sometime, left the house. Thereafter, at noon around 12 o'clcok, the appellant again came to the house of Archana when Archana's husband Gajanan had been to village Marki and as such, Archana was alone in the house. The appellant insisted upon Archana to take the medicine for conception. But she refused to take the same and asked him to leave the house. Thereafter, at noon around 12 o'clcok, the appellant again came to the house of Archana when Archana's husband Gajanan had been to village Marki and as such, Archana was alone in the house. The appellant insisted upon Archana to take the medicine for conception. But she refused to take the same and asked him to leave the house. But, the appellant again alongwith one lady by name Rekha Raut came to the house of Archana around 2.00 p.m. and told that said lady Rekha was not conceiving child, but on taking medicine from the appellant she conceived a baby. Thus, the said lady also proposed her to take the medicine from the accused. 3. The appellant-accused took out one bottle from his bag which contained white coloured powder and gave the said bottle to Rekha directing her to administer the powder from the bottle to Archana through water. Archana consumed that medicine and went to prepare tea for the appellant and the lady Rekha Raut. But, at that time, she felt giddiness. The appellant-accused then asked her to take rest on bed. Archana became unconscious. The accused and lady Rekha when had come at the house of Archana, she had wom her Mangalsutra of gold and ear rings, total weighing about 3.50 grams. However, when Archana regained consciousness in the General hospital, at that time, she fond her ear rings and Mangalsutra i.e. Dorle and four gems missing. Their neighbour Sharad Joshi's son asked him to go in the house of Archana to tell her to connect the water connection to the water pump. When he went in the house of Archana, he found that she was alone in the house and was alone lying on the sofa set. He tried to wake up her, but she did not respond. It was found that Archana was unconscious. Therefore, she was taken to the hospital of Dr. Sunil Deshmukh by an auto rickshaw and thereafter, to the hospital of Dr. Dehankar and then, lastly to the General Hospital, Akola as the doctors were not prepared to treat her, it being a police case. 4. On 14-2-1999 Vijay Chowdhary, brother of witness Gajanan, lodged report at Police Station, Civil Lines, Akola alleging that Archana was admitted in the hospital as a poisoning case and he prayed for investigation into the matter. Dehankar and then, lastly to the General Hospital, Akola as the doctors were not prepared to treat her, it being a police case. 4. On 14-2-1999 Vijay Chowdhary, brother of witness Gajanan, lodged report at Police Station, Civil Lines, Akola alleging that Archana was admitted in the hospital as a poisoning case and he prayed for investigation into the matter. On that report, entry came to be made vide Station Diary No. 5 of 1999 and when it was inquired into, police requested the Executive Magistrate to record the statement of Archana and accordingly, her statement was recorded on the same day at about 2.00 p.m. and police proceeded to draw spot panchanama. P.S.I. Shende recorded the statement of Archana in the hospital as per her say and obtained her signature and then, on the basis of her statement, offence was registered vide Crime No. 79/99, under sections 328, 380 read with 34 of the Indian Penal Code. The Investigating Officer visited the place of occurrence to make panchanama of the scene of offence. From there, he seized one pot containing tea. The appellant was arrested on 13-7-1999 in another Crime No. 263 of 1999, under sections 302, 325, 380 etc. of the Indian Penal Code. 5. In this crime i.e. Crime No. 79 of 1999, the appellant-accused was arrested on 19-7-1999. On 22-7-1999, on the basis of interrogation made by the Investigating Officer with the appellant, stolen property was recovered in pursuance of his statement under section 27 of the Evidence Act from the owner of the shop Sandeep Jewellers, Saraf Bazaar, Akola. Identification was held on 11-10-1999 by the Executive Magistrate, Akola in Akola jail, where Archana and her husband Gajanan identified the appellant at the time of identification parade. After completing investigation, the Police Station Officer, Civil Lines, filed charge-sheet against the appellant only in the Court of Chief Judicial Magistrate, Akola, who, in turn, committed the case for trial to the Court of Sessions, Akola by an order, 17-1-2000. Before the learned Sessions Judge, Akola, the appellant-accused pleaded not guilty to the charge and claimed to be tried. His defence was of total denial. 6. At the trial, prosecution examined in all 16 witnesses including Sharad Joshi (P.W. 1), Alka Bambal (P.W. 8), Raju Jawarkar (P.W. 10) who runs Jayashree Tailoring Shop, Archana Chowdhary (P.W. 11), Gajanan Chowdhary (P.W. 12), Dr. His defence was of total denial. 6. At the trial, prosecution examined in all 16 witnesses including Sharad Joshi (P.W. 1), Alka Bambal (P.W. 8), Raju Jawarkar (P.W. 10) who runs Jayashree Tailoring Shop, Archana Chowdhary (P.W. 11), Gajanan Chowdhary (P.W. 12), Dr. Shekhar Khonde (P.W. 2) who examined Archana, Ramakant Nagalkar (P.W. 3) who was Naib Tahsildar and Executive Magistrate-who recorded the statement of Archana, Dr. Vijay Kalne (P.W. 4) Medical Officer who examined Archana on 13-2-1999, Vasant Kaling (P.W. 4) who acted as a panch on discovery panchanama of gold ornaments in pursuance of the statement given by the appellant under section 27 of the Indian Evidence Act, Laxmi Narayan Kejdiwal (P.W. 5) Jeweller to whom the gold ornaments of Archana were sold by the appellants and the same were recovered in pursuance of the statement of appellant, P.S.I. Pundkar (P.W. 6) who interrogated the appellant and seized gold ornaments from the shop of the jeweller in pursuance of the statement made by the appellant, Rameschandra Janurkar (P.W. 9) who conducted identification parade of accused. After accepting the evidence of Archana, her husband Gajanana, witness Sharad Joshi and evidence as to recovery and seizure of gold ornaments of Archana in pursuance of statement made by the appellant on interrogation by P.S.I. Pundkar coupled with medical evidence, the trial Court came to the conclusion that the appellant-accused committed the offence of theft by removing ornaments from the person of Archana after making her unconscious by administering medicine and consequently, convicted him of the offences under sections 328 and 380 of the Indian Penal Code and awarded sentence as stated earlier. Hence, this appeal. 7. Mrs. S. Deshpande, learned Counsel for the appellant-accused, vehemently submitted that there is absolutely no evidence on the record to show that the medicine was administered by the appellant to witness Archana which was poisonous. That the trial Court has already discarded the evidence of identification parade holding that the officer holding identification parade has committed several irregularities showing that identification parade was not held properly adhering to the rules. No traces of any substance containing poison were collected from the place of occurrence. Referring to the medical evidence, the learned Counsel submitted that, at the place of occurrence, when spot panchanama (Exh. 10) was made, no vomited matter was seen. No efforts were made to get the finger prints on the Gadwa. No traces of any substance containing poison were collected from the place of occurrence. Referring to the medical evidence, the learned Counsel submitted that, at the place of occurrence, when spot panchanama (Exh. 10) was made, no vomited matter was seen. No efforts were made to get the finger prints on the Gadwa. No powder was found on the spot. She also submitted that there is no evidence to show that any poison was detected. The evidence as to identification is contrary to what has been stated in the chart (Exh. 30). She, therefore, urged that the appellant has been convicted without there being any evidence on the record against him. She, therefore, urged that the appeal be allowed and the appellant be acquitted. 8. As against that, Mr. Mandape, learned A.P.P. first pointed out that the defence has not challenged the fact that the appellant was claiming to be an Ayurvedic Doctor and he visited the house of the victim. Though the evidence on identification parade was discarded by the trial Court on facts and circumstances attending the case, identification of the appellant at the trial has been clinchingly established. That apart, Sharad Joshi, an independent witness identified the appellant. This witness has an occasion to visit the house of the victim as he was called by the victim and sent to inform victim's husband Gajanan that the appellant has come to their house. The learned A.P.P. submitted that evidence as to identification and recovery of gold ornaments in pursuance of that disclosure statement has been established beyond reasonable doubt. He, therefore, urged that the appeal merits no consideration and the same should be dismissed. 9. The trial Court though rejected the evidence on identification finding that the Authority who conducted identification parade has committed high handed irregularities and has not abided by the guidelines and rules meant for holding identification parade, the learned A.P.P. did not controvert the submission of the learned Counsel for the appellant on this issue of rejection of identification based on test identification parade. I have also found on proper assessment of evidence that the trial Court was right in rejecting the evidence on identification parade. But, as observed by the trial Court, rejection of that evidence on identification parade was not the end of the matter to let the appellant scot free. I have also found on proper assessment of evidence that the trial Court was right in rejecting the evidence on identification parade. But, as observed by the trial Court, rejection of that evidence on identification parade was not the end of the matter to let the appellant scot free. It has come in the evidence on record that witnesses Archana and her husband Gajanan have identified the appellant in the Court and that evidence on identification has not been controverted by the defence. The trial Court considered the submission of the Counsel for the appellant that the appellant was not known to Archana. None of them had opportunity to see the appellant at any time except the alleged visit of appellant to the house of Archana on the date of occurrence. It was on that basis, as vehemently contended by the Counsel for the appellant, that identification of the appellant by the witnesses in the Court for the first time is meaningless and therefore, the appellant is entitled to acquittal. There is no justification to hold so when there is clinching evidence on the record showing that identification of the appellant by the witnesses in the Court was credible and cannot be viewed with suspicion. 10. The evidence of witness Archana clinchingly goes to show that the appellant had haulted for half an hour in the morning on the relevant day and had talked with her. That fact is corroborated by witness Gajanana who happened to visit the house when witness Sharad Joshi had been to call him. This shows that witness Gajanan had also ample opportunity to see the appellant. Witness Gajanan had conversation with the appellant, wherein he specifically told that no such medicine would be required. It is a matter of record that after Gajanan left the house, the appellant came twice on the same day to the house of Archana and it was on the third occasion when he succeeded in administering poison to her by giving her Ayurvedic medicine contained in the bottle. Therefore, the fact remains that till then witness Archana had sufficient opportunity to see the appellant and therefore, her identification in the Court carries credibility. There is evidence of witness Sharad Joshi who had identified the appellant. As could be seen from his evidence, it was he who showed the house of witness Archana to the appellant. Therefore, the fact remains that till then witness Archana had sufficient opportunity to see the appellant and therefore, her identification in the Court carries credibility. There is evidence of witness Sharad Joshi who had identified the appellant. As could be seen from his evidence, it was he who showed the house of witness Archana to the appellant. It was this witness Sharad Joshi who saw Archana lying in unconscious state and therefore, she was removed to the hospital. I do not find any reason to view this evidence of witnesses with suspicion when they have clinchingly identified the appellant as the same person who entered the house and after having much discussion and posing himself to be Ayurvedic Doctor, administered medicine to Archana. 11. It is needless to say that substantive evidence of identification of accused is the evidence as to identification in the Court by the witnesses. The evidence of identification of the accused at the time of identification parade is a corroborative piece of evidence often led by the prosecution to lend assurance to substantive evidence of witnesses on identification of the appellant before the Court. It is true that if the accused is stranger and the witnesses had no opportunity to see the appellant at the time of commission of offence, in such circumstances, identification of the accused for the first time before the Court is impaired and is likely to be viewed with suspicion as doubtful. That is why, identification of the accused by holding identification parade soon after arrest of the accused lends assurance to identification of the accused before the Court. In that situation, holding of identification parade at an earlier opportunity soon after arrest of the appellant is necessary. That is why, if the identification parade is held with inordinate delay vis-a-vis the date of occurrence and arrest of the accused, the factum of identification at the time of identification parade is likely to be viewed with suspicion. That is much more so when the witnesses who are called to identify the accused had an opportunity to see the accused after his arrest. Therefore, the person who conducts the identification parade has to take all possible precautions to see that identity of the accused is not known to the witnesses. That is much more so when the witnesses who are called to identify the accused had an opportunity to see the accused after his arrest. Therefore, the person who conducts the identification parade has to take all possible precautions to see that identity of the accused is not known to the witnesses. That is why, it is mandatory to hold identification parade as early as possible so as to facilitate the witnesses to identify the accused. It is needless to say that if identification parade is not held promptly soon after arrest of the appellant, it is likely that the witnesses may commit mistake in identifying the real culprit as by passage of time the impression about the culprit in the mind of the witnesses might get lost or faded. In the case before hand, as the witnesses had opportunity to see the accused, their identification before the Court admits no error. 12. In this context, it is held by the Apex Court in the case of (Suresh Chandia Bahrl v. State of Bihar)1, reported in 1995(I) (Supp.) S.C.C. 80, that identification of accused by witness in Court is substantial place of evidence, where accused is not previously known to the witness. Test identification parade must be held at the earliest possible opportunity with necessary safeguards and precautions. However, when the accused had been seen by the witness for a quite number of times at different point of time and places, test identification parade is not necessary. The position in the case before hand is more or less the same. The witnesses having had opportunity to notice the accused for sufficient length of time and witness Archana and her husband had talked with the appellant when he visited their house, their claim of identifying the accused before the Court is accepted. 13. It has been stated by witness Archana in her evidence that on the day of occurrence she was having her ornaments namely dorle, four gems and two earrings on her person. She has stated that after the medicine was offered by the appellant and after she actually consumed it, she fell giddiness so that should could not prepare tea for the appellant and just then she fell unconscious. It is further revealed from her evidence that it was in the General hospital when the victim regained conscious and found that her ornaments were not on her person. It is further revealed from her evidence that it was in the General hospital when the victim regained conscious and found that her ornaments were not on her person. It is pertinent to note that the appellant was arrested on 19-7-1999 and while in police custody, when interrogated by P.S.I. Pundkar, he made disclosure statement vide Exh. 19-A in presence of two panchas Vasant Kaling and Keshav Garde that he sold ornaments in Saraf Bazaar and that in pursuance of that statement, the accused led them to the shop named Sandeep Jewellers and on going there, pointed out to witness Laxmi Narayan Kejdilwal who was present in the shop that he sold golden ornaments i.e. Article No. A to said Laxmi Narayan. It is a matter of evidence that witness Laxmi Narayan (P.W. 5) has categorically stated in his evidence that the accused, accompanied by police and panchas came to his shop and seized golden ornaments consisting of dorle, ear tops and four beeds under panchanama Exh. 19-B and 20. It is significant to note that witness Laxmi Narayan has stated in his evidence that accused sold his golden ornaments to him about 2-4 months prior to the day when the appellant made disclosure statement and brought police to his house. It is borne out on the evidence on the record that in fact those ornaments have been seized from witness Laxmi Narayan in pursuance of the statement and discovery made by the appellant. Witness Archana and others have identified these ornaments as the same which belongs to witness Archana and were on her person on the date of occurrence. This evidence has not been successfully challenged and controverted by the defence. The factum of disclosure statement and consequent recovery of the ornaments has been emphatically stated by witness Pundkar and Laxmi Narayan. The disclosure statement was made in the presence of independent witnesses. This evidence clinchingly goes to show that witness Archana had these ornaments on her person on the day of occurrence and on the same day, when she regained consciousness in the hospital, she noticed that these ornaments were not on her person. The disclosure statement was made in the presence of independent witnesses. This evidence clinchingly goes to show that witness Archana had these ornaments on her person on the day of occurrence and on the same day, when she regained consciousness in the hospital, she noticed that these ornaments were not on her person. In my opinion, recovery of ornaments at the instance of the appellant in pursuance of the statement made by him under section 27 of the Indian Evidence Act, the same ornaments being on the person of the victim Archana and absence of those ornaments from her person noticed when she regained consciousness on the same day in the hospital, the accused having visited the house and administered medicine to the victim and then the victim having fallen unconscious, undoubtedly go to show that the appellant was instrumental for making the victim Archana unconscious and then removing ornaments from her person. There is no explanation by the appellants as to how the said ornaments were possessed and then disposed off by him by giving it to witness Laxmi Narayan. It, therefore, stands plausible that the accused designed a plan to get possession of the ornaments from Archana and for that, he pretended himself to be an Ayurvedic doctor treating the couple that is issueless and then by making the patient-victim uncounscious by administending the medicine, the appellant got the opportunity to remove the ornaments from her person. 14. The learned Counsel for the appellant has made much of the fact that no poison has been detected. The trial Court has dealt with that situation. The fact remains that witness Archana became unconscious only after the medicine in the form of powder was administered to her by the appellant. It is clinchingly established that she became unconscious and then she was removed to the hospital and when she regained consciousness she noticed that the ornaments on her person were missing. Therefore, with the medical evidence on record, it is clinching that whatever medicine the appellant administered to the victim, the effect was that the victim fell unconscious. It is clinchingly established that she became unconscious and then she was removed to the hospital and when she regained consciousness she noticed that the ornaments on her person were missing. Therefore, with the medical evidence on record, it is clinching that whatever medicine the appellant administered to the victim, the effect was that the victim fell unconscious. It is in this context that the trial Court rightly observed that non-detection of poisonous substance and absence of the same in the vomit or even absence of vomiting is of no consequence when on fact it is found that unconsciousness of the victim was the result of administering medicine by the appellant. Therefore, the offence under section 328 of the Indian Penal Code is clinchingly brought home to the accused and the trial Court has rightly held him guilty for the offence. The trial Court is also right in holding him guilty for the offence under section 380 of the Indian Penal Code in as much as the stolen goods have been found in possession of the appellant as the same were recovered from witness Laxmi Narayan to whom the appellant had sold them. 15. In the result, there is absolutely no reason to interfere with the findings recorded by the trial Court holding the appellant guilty for the offences under sections 328 and 380 of the Indian Penal Code and awarding substantive sentence for the said offence. The learned Counsel submitted in the alternative that in the facts and circumstances of the case having regard to the age of the appellant, lenient view in the matter of awarding sentence be taken. The learned A.P.P. submitted that as per the record, the accused was absconding and when he was arrested in another offence subsequently committed by him, he came to be arrested in this case. It is submitted with emphasis that since the appellant and indulged into criminal activities even after commission of offence in the case before hand, the appellant does not deserve any sympathy and there is no justification to taken lenient view in awarding sentence. I do not find any reason to ignore submissions of the learned A.P.P. There is no justification to accused to the submissions of the learned Counsel for the appellant. So, no interference in awarding sentence is called for. The appeal merits no consideration at all. As such, the same deserves to be dismissed. I do not find any reason to ignore submissions of the learned A.P.P. There is no justification to accused to the submissions of the learned Counsel for the appellant. So, no interference in awarding sentence is called for. The appeal merits no consideration at all. As such, the same deserves to be dismissed. Hence, the order. ORDER The appeal is dismissed. Mrs. S. Deshpande, Advocate for the appellant being appointed from the Legal Aid Panel, be paid her fees which is quantified to Rs. 2,000/- (Rupees two thousand only). Appeal dismissed. -----