JUDGMENT Sunil Kumar Sinha, J. (1) These appeals are directed against the judgment dated 23rd of April, 2012 passed in Sessions Trial No. 49/2008 by the Sessions Judge, Korba, District Korba (C.G.). By the impugned judgment, the appellants have been convicted and sentenced in following manner, with a direction to run the sentences concurrently:- Conviction Sentence u/S 450 IPC R.I. for 5 years and fine of Rs.3000/- with default sentence of R.I. for 1 year u/S 394 r/w 397 IPC R.I. for 7 years and fine of Rs.3000/- with default sentence of R.I. for 1 year u/S 302 IPC Life imprisonment and fine of Rs.5,000/- with default sentence of R.I. for 1 year (2) The facts, briefly stated, are as under:- 2.1 Keshav Prasad Gupta (PW-1) was a Sub-Engineer in Municipal Corporation, Korba. He was residing with his family in Qr. No. G/25, SADA Colony, Niharika, Korba. Deceased-Sadhana Gupta was wife of Keshav Prasad (PW-1). Rohit Gupta (PW-2) is son of Keshav Prasad (PW-1). On 17.1.2008, Keshav Prasad (PW-1), as usual, left his quarter at 9.30 a.m. Rohit Gupta (PW-2) had also left for school at 7.15 a.m. Keshav Prasad (PW-1) returned his quarter at 3.45 p.m. He found that the door of the quarter was closed from inside. When he tried to open the door, it could not be opened. He, then, entered into the quarter from the back side. He saw that his wife (deceased) was lying in pool of blood on a chair in the bed-room. She had sustained multiple serious injuries. Rohit (PW-2) was also tied with a chair in the bed-room. His mouth and eyes were covered by cloths. Keshav Prasad (PW-1) immediately took his wife (deceased) to the District Hospital, where she was declared dead. Rohit Gupta (PW-2) was also taken to the hospital. He was frightened. Later on, he narrated the incident to his father, Keshav Prasad (PW-1), that at about 1.00 p.m., when he returned from the school, a girl who was wearing salwar-suit and a fair coloured boy, who was wearing fullpant and white-yellow strap shirt, had caught him, his eyes were covered and he was tied by rope on the chair. He also told that the said 2 persons had committed murdered of his mother (deceased) and they had also looted certain property. 2.2 Merg intimation (Ex.-P/4) was recorded. He also told that the said 2 persons had committed murdered of his mother (deceased) and they had also looted certain property. 2.2 Merg intimation (Ex.-P/4) was recorded. Inquest (Ex.-P/23) was prepared and the dead body was sent for postmortem. The postmortem examination was conducted by Dr. R.K. Divya (PW-10). He found following injuries on the dead body of the deceased:- (i) Incised wound of 2 x ½ x 1 cm, horizontally placed on the left portion of neck; (ii) Incised wound of 1 x ½ x ½ cm horizontally placed on the right portion of the neck; (iii) Incised wound of 2 x ½ x ½ cm on the right portion of the neck; (iv) Two incised wounds of 6 x ½ cm and 8 x ½ cm, horizontally placed, reddish in colour, on the cheek; (v) Two incised wounds of 6 x 2 ½ cm and 3 x 1 cm both skin deep on the right forearm; (vi) Three incised wounds of 2 ½ x 1 ½ cm, 4 x 1 ½ cm and 2 x 1 cm, all horizontally placed on right forearm; (vii) Two incised wounds of 2 ½ x 1 cm and 1 x ½ cm, both bone deep on the left portion of chest; (viii) Incised wound of 1 x ½ x ½ cm, horizontally placed on the right portion of chest; (ix) Three incised wounds of 3 x 1 cm, 3 x 1 cm and 2 x 1 cm on the left scapular bone; (x) Three incised wounds of 3 x 1 cm, 3 x 1 ½ cm and 3 x 1 cm all parallel to each other on the back of the chest, the injuries were placed between both scapula bone; (xi) Incised wound of 2 x 1 cm on the right iliac fossa; & (xii) Incised wound of 5 x 3 cm horizontally placed on the anterior aspect of the right leg. All the injuries were ante-mortem caused by hard and sharp object and the cause of death was haemorrhagic shock on account of above injuries and it was homicidal in nature. The postmortem report is Ex.-P/18. 2.3 Dehatinalishi (Ex.-P/1) was lodged by Keshav Prasad Gupta (PW-1) at 7.30 p.m. on 17.1.2008, based on which F.I.R. was registered against two unknown persons (one boy and one girl). In dehatinalishi, details of property stolen were also mentioned. The postmortem report is Ex.-P/18. 2.3 Dehatinalishi (Ex.-P/1) was lodged by Keshav Prasad Gupta (PW-1) at 7.30 p.m. on 17.1.2008, based on which F.I.R. was registered against two unknown persons (one boy and one girl). In dehatinalishi, details of property stolen were also mentioned. According to dehainalishi, one mobile-set, one Fixed Deposit Receipt (FDR), cash Rs.10,000/-and cloths etc. were stolen by the assailants. 2.4 On the telephonic information, GRP-Champa apprehended the appellants in Champa railway station and information was sent to out-post Rampur, Korba, where the offence was already registered. The Investigating Officer came to Champa railway station and seized various articles from the possession of the appellants. The seizure memo relating to Shivshankar Shukla (A-1) is Ex.-P/8 and seizure memo relating to Ku. T. Tejasvani (A-2) is Ex.-P/10. After the seizure, they were arrested at railway station Champa. 2.5 The appellants were put for identification by Rohit Gupta (PW-2) on 12.2.2008. The Test Identification Parade (TIP) was conducted in District Jail, Korba. It was conducted by Executive Magistrate, Paras Nath Saha (PW-19). According to TIP memo, (Ex.-P/2), Rohit Gupta (PW-2) had rightly identified both the appellants. The TIP memo is Ex.-P/2. 2.6 Prior to this, the appellants were put for identification by Manoj Mishra (PW-5) and Imtiyaz Ali (PW-6). These TIPs (Ex.-P/6 & P/7) were conducted by Executive Magistrate, Sudhir Khalko (PW-27). According to the TIP memos (Ex.-P/6 & P/7), these witnesses had also rightly identified the appellants. Perhaps these identifications were on the pretext that they had seen the appellants roaming in the locality of the house of the deceased at the relevant time. 2.7 Seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex.-P/34) was received. According to the FSL report, blood stains were found on the knife and cloths seized from the possession of the appellants. These articles were sent for further examination to Serologist Laboratory. The Serologist Report is Ex.-P/38. According to the Serologist Report, human blood was found over the pieces of farsh seized from the place of occurrence and T-shirt of the appellant (A-1). However the origin and blood group of the blood stains found over the other articles including knife, dastana etc. could not be determined on account of their disintegration. 2.8 The learned Sessions Judge mainly relied on the evidence of Rohit Gupta (PW-2). However the origin and blood group of the blood stains found over the other articles including knife, dastana etc. could not be determined on account of their disintegration. 2.8 The learned Sessions Judge mainly relied on the evidence of Rohit Gupta (PW-2). It was held that Rohit Gupta (PW-2) had seen the faces of the appellants at the time of the incident and he also identified them on the ‘dock’ which was duly corroborated by TIP (Ex.-P/2), therefore, it was proved beyond all reasonable doubts that the appellants had committed murder of the deceased. The Sessions Judge also relied on the seizure of FDR of the deceased from the possession of one of the appellant (A-2) taking that the stolen property belonging to the deceased was seized from her possession while both were apprehended which also proves their involvement. The appellants, thus, were convicted and sentenced as above. Hence these appeals. (3) Learned counsel for the appellants have firstly contended that omission of name of Shivshankar Shukla (A-1) in dehatinalishi and dairy statement of Rohit (PW-2) was fatal to the prosecution. They also contended that omission of names of the appellants in the FIR was also fatal and for these reasons evidence of Rohit (PW-2) becomes unreliable. (4) The incident took place in between 1-1.30 p.m. to 3.45 p.m. On the date of incident, Rohit (PW-2), son of the deceased, had gone to the school. He was student of 9th standard. He came from school at about 12.45 – 1.00 p.m. When he knocked the door, one young boy (one of the assailants) opened the door. His face was covered by handkerchief. According to the Rohit (PW-2), he could not identify him. He was taken to the bed-room, where he saw a girl (other assailant) who had also covered her face by handkerchief. In bedroom his mother (deceased) was sitting on a chair. Her hands and legs were tied and tape was affixed on the mouth. Eyes were also closed by patti. Thereafter he (PW-2) was also tied with a chair. According to him, assailants had closed his mouth by a tape and a patti was tied over his eyes. Thus, he was unable to see anyone. Rohit (PW-2) in the second Para of his examination-in-chief has clearly deposed that he had not seen the faces of the assailants at that time. Thereafter he (PW-2) was also tied with a chair. According to him, assailants had closed his mouth by a tape and a patti was tied over his eyes. Thus, he was unable to see anyone. Rohit (PW-2) in the second Para of his examination-in-chief has clearly deposed that he had not seen the faces of the assailants at that time. According to him, thereafter the assailants were asking for keys of almirah and they were demanding jewelry etc. from his mother. They were also threatening his mother. Then the assailants took out the jewelry and money from the almirah. The money was counted by the girl who said that it was 4,000/-. The assailants were asking about more money from his mother. The assailants then got the locker opened and they took out the paper relating to a joint account from the locker. Rohit (PW-2) very specifically mentioned in Para-3 that the boy wanted to keep the jewelry, but the girl was saying not to keep them. However he could not see as to whether the jewelry was kept by the girl or not. According to Rohit (PW-2), he could see all these activities from the lower side of the patti when he kept his head upward. Rohit (PW-2) then witnessed that his mother (deceased) was assaulted by knife by the assailants. In Para5 of the examination-in-chief, he deposed that his father, Keshav Prasad (PW-1) came to the house just after the assailants had gone. His father came from the back side because the front door was closed from inside and they were not in a position to open it. His father removed the tape from his mouth and he also removed the patti from his eyes. He immediately narrated the incident to his father saying that one girl and Chotu (A-1) had come there. He had seen their faces while they were taking meals after removing the cloths by which they had covered their faces. This is what Rohit (PW-2) broadly deposed before the court in his examination-in-chief. (5) Rohit (PW-2) in his cross-examination, in first paragraph, clearly admitted that Shivshankar (A-1), who was also known as Chotu, was well known to him since his childhood. Members of both their families are visiting to the house of each other and he was calling Shivshankar (A-1) as bhaiya. (5) Rohit (PW-2) in his cross-examination, in first paragraph, clearly admitted that Shivshankar (A-1), who was also known as Chotu, was well known to him since his childhood. Members of both their families are visiting to the house of each other and he was calling Shivshankar (A-1) as bhaiya. A note has been mentioned in Para-11 of the cross-examination that the defence counsel wanted to show some photographs of A-1 and Rohit (PW-2) to show previous acquaintancy, but the same was not permitted. Rohit (PW-2) further deposed that he had identified Shivshankar (A-1) in TIP because he had seen his face at the time of the incident. Rohit (PW-2) has further admitted that when his father came to the house and untied his hands, legs and removed his patti and tape, he narrated the entire incident to his father (PW-1) saying that Shivshankar (A-1) had come with a girl and had assaulted his mother. He very clearly stated that after knowing all this, his father took his mother to the hospital. Not only this he denied the suggestion of the defence that he had not told the name of Shivshankar @ Chotu (A-1) to his father when he reached to the house and he also denied the suggestion that at that time, he had only told one boy and one girl had come to his house. (6) The above version of Rohit (PW-2) would show that he had identified Shivshankar @ Chotu (A-1) during the course of the incident and as soon as his father came to the house, he had immediately narrated the incident to him taking the name of Shivshankar @ Chotu (A-1). (7) Rohit (PW-2) further deposed in Para-12 that he had narrated some part of incident to his father (PW-1) in the hospital and thereafter he again narrated the entire incident to him when he was taken to the house of Akhilesh Shukla. He very clearly deposed in last line of Para-12 that he had told the name of Shivshankar @ Chotu (A-1) to his father in the hospital as also in the house of Akhilesh Shukla. (8) Diary statement (Ex.-D/2) of Rohit (PW-2) u/S 161 Cr.P.C. was recorded on 18.1.2008. In diary statement, Rohit (PW-2) had not taken the name of Shivshankar @ Chotu (A-1) and it was an omission. (8) Diary statement (Ex.-D/2) of Rohit (PW-2) u/S 161 Cr.P.C. was recorded on 18.1.2008. In diary statement, Rohit (PW-2) had not taken the name of Shivshankar @ Chotu (A-1) and it was an omission. It was also not mentioned in the diary statement that he could see the faces of the assailants from the lower portion of the patti by putting his head upward while the assailants were taking food. Rohit (PW-2) asserted to give these statements to the police and he could not give any reasonable explanation for the omissions of the above facts in his diary statement. (9) Rohit (PW-2) was examined before the Magistrate u/S 164 Cr.P.C. on 21.1.2008. His statement recorded before the Magistrate as Ex.-P/3. In the said statement also, he had not mentioned the name of Shivshankar @ Chotu (A-1) and that he had seen the faces of the assailants. It is in this background, we have to examine effect of omission of the name of Shivshankar (A-1) in dehatinalishi (Ex.-P/1) and in the FIR. If Rohit (PW-2), in fact, had seen the faces of the assailants and could have identified Shivshankar (A-1) and had told his name to his father (PW-1), his father must have mentioned the name of Shivshankar (A-1) in dehatinalishi, Ex.-P/1, which was recorded at 7.30 p.m. on the same day. Para-25 of the evidence of his father, Keshav Prasad (PW-1), is very important in this regard, in which he deposed in clear words that Rohit had stated the name of the assailant to him and if the name of the assailant is not mentioned in dehatinalishi (Ex.-P/1) and his diary statement (Ex.-D/1), he cannot tell reason for that. That is to say that according to Rohit (PW-2) and Keshav Prasad (PW-1), both the witnesses, Rohit had identified one of the assailants namely Shivshankar (A-1) and he had also seen the other assailant (girl) and had narrated the name of Shivshankar (A-1) to his father (PW-1), but we find from dehatinalishi and FIR that even the name of Shivshankar (A-1) was not mentioned in these documents and the dehatinalishi & FIR both were registered against 2 unknown persons. (10) We are of the view that if Shivshankar (A-1) was identified by Rohit (PW-2), and Rohit (PW-2) had stated about him to his father, in normal circumstances, his name must have been mentioned in the above documents. (10) We are of the view that if Shivshankar (A-1) was identified by Rohit (PW-2), and Rohit (PW-2) had stated about him to his father, in normal circumstances, his name must have been mentioned in the above documents. Thus, in the above facts and circumstances of the case, omission of name of Shivshankar @ Chotu (A-1) in dehatinalishi and FIR was fatal to the prosecution. (11) Learned counsel for the appellants have next contended that the seizure(s) made from the possession of the appellants were false and fabricated. This was vehemently opposed by the State counsel. Now we appreciate the said argument on facts. According to the prosecution, the appellants were caught in railway station Champa and Rampur police was informed. Thereafter the Investigating Officer, Maqbul Khan (PW-26) went from Rampur, Korba to Champa and seized different properties from the possession of the appellants. According to seizure memo, Ex.-P/8, certain cloths, 2 mobile-sets, knife, book and Rs.7,000/-were seized from the possession of Shivshankar (A-1). Likewise cloths, knife, mobile-set and Rs.3,830/-were seized from the possession of T. Tejasvani (A-2) vide seizure memo Ex.-P/10. These seizure memo(s) were prepared at 5.50 – 6.00 p.m. (12) S.N. Tiwari (PW-24) was Sub-Inspector in GRP, Champa. According to him, he had received information from Rampurchowki on 17.1.2008 at 5.30 p.m. when Maqbul Khan (PW-26) told him that a boy and girl, after committing murder, had fled away by Vishakhapattnam Link Express. Thereafter the appellants, on suspicion, were taken into custody in railway station Champa and were kept in GRP Thana and information was sent to Rampurchowki.. The manner in which the appellants were searched after watching their activities (See evidence of PW-24) and detained in Champa railway station, would show that it must have taken at least 30 to 45 minutes and information must have sent thereafter. It is after all this, Maqbul Khan (PW-26) reached to GRP Thana, Champa and prepared the 2 seizure memo(s) of the articles allegedly seized from the possessions of the appellants. It is after all this, Maqbul Khan (PW-26) reached to GRP Thana, Champa and prepared the 2 seizure memo(s) of the articles allegedly seized from the possessions of the appellants. It is an admitted position that Champa is at distance of about 50 Km from Rampur, Korba and looking to the road condition, the police party must have taken 1-1.30 hours for reaching to Champa and in that situation, they could have reached Champa at about 7-7.30 p.m. Thereafter, some time must have been consumed for completion of seizure and in these circumstances seizure(s) at 5.30 & 6.00 p.m. was not possible. (13) Learned State counsel has contended that the message received from I.O. (PW-26) was recorded in Roznamchasana of the GRP Champa vide Ex.-P/29 which would show that the said message was received at 4.50 p.m. Even if we take that the message was received at 4.50 p.m., it will not make much difference because the entire evidence of S.N. Tiwari (PW-24) would show that much time had elapsed in taking the appellants into custody. Therefore, in all possibility seizure(s) at 5.30 & 6.00 p.m., being much closer in proximity, was not possible. (14) So far as the merits of the seizure(s) are concerned, the 2 witnesses of seizure(s) are Manoj Mishra (PW-5) and Imtiyaz Ali (PW-6). Both these witnesses were residents of SADA Colony, outpost Rampur, Korba. According to the prosecution these witnesses had accompanied the police party from Korba to Champa. However their evidence is totally contrary to it. According to the prosecution they were with the police at Korba while the preliminary investigation was going on, but these witnesses have denied all these facts and have also denied the factum of seizure of various articles from the possession of the appellants in GRP Champa. It is for all these reasons, they were declared hostile and were allowed to be cross-examined by the Public Prosecutor. These witnesses were also the witnesses of 2 TIPs (Ex.-P/6 & P/7). Their evidence on that account and the effect thereof, we would discuss later on. Manoj Mishra (PW-5) has deposed that on the fateful day at 6.00 p.m., he came to know about commission of murder of the deceased. The police called him in Chowki and took his signature on few documents. Some documents were blank and some were written. Their evidence on that account and the effect thereof, we would discuss later on. Manoj Mishra (PW-5) has deposed that on the fateful day at 6.00 p.m., he came to know about commission of murder of the deceased. The police called him in Chowki and took his signature on few documents. Some documents were blank and some were written. Though he admitted his signatures on the seizure memo(s), but the outcome of his evidence remains that his signatures were taken in out-post Rampur and not in GRP Champa. (15) Imtiyaz Ali (PW-6) has also deposed in similar fashion. According to him, he also knew about the incident in the evening. He had gone to the place of occurrence, where he met Manoj Mishra (PW-5), Sarfraj Ali (PW-25) and Chhedilal Sahu (PW-11) etc. At that time, the deceased was already taken to the hospital. Later on K.P. Gupta (PW-1) met him in the locality and asked him to go to Rampur out-post saying that his wife has been murdered. There the police people took his signatures on few blank documents. Thereafter he returned to his house. He has also deposed about TIPs. Thus, he neither deposed about seizure of the articles from the possession of the appellants nor about the alleged seizure memo(s) (Ex.-P/8 & P/10) in that behalf. These 2 witnesses (PW-5 & PW-6) were put to lengthy cross-examinations by the Public Prosecutor, but nothing material could be elicited in favour of the prosecution. (16) In appreciation of evidence of these 2 witnesses (PW-5 & PW6) it would appear that they had never gone to Champa along with the police party, therefore, there was no question of any seizure before them, which according to prosecution had taken place in GRP Champa. (17) I.O. (PW-26) has deposed about seizure of the properties from the possession of the appellants vide seizure memo(s) Ex.-P/8 & P/10. According to him, he had taken 3 private persons, including the 2 witnesses (PW-5 & PW-6), in his Jeep from Korba to Champa, whereas these persons had denied to go to Champa. That apart in cross-examination, I.O. (PW-26) deposed in Para-23 that when he reached to GRP Champa, the in-charge officer told him that 2 suspects have been detained in GRP Thana and articles were also kept in Thana. In-charge told that those articles were seized from the possession of the appellants. That apart in cross-examination, I.O. (PW-26) deposed in Para-23 that when he reached to GRP Champa, the in-charge officer told him that 2 suspects have been detained in GRP Thana and articles were also kept in Thana. In-charge told that those articles were seized from the possession of the appellants. It is after this, the seizure memo(s) (Ex.-P/8 & P/10) were prepared by him in GRP Thana itself. Thus from the evidence of I.O. (PW-26), in Para-23, it is clear that he himself had not seized the articles from the possession of the appellants as has been shown in seizure memo(s). According to his own evidence, the said articles were seized by GRP and it was already kept at a place in police station. It is important to note that except the alleged seizure memo(s), Ex.-P/8 & P/10, no other seizure memo has been filed by the prosecution. Thus in the instant case, the alleged articles were seized by I.O. (PW-26) which were already lying in GRP Champa and not that he seized them from actual physical possession of the appellants. (18) S.N. Tiwari (PW-24) has clearly mentioned in the last para of his cross-examination that Maqbul Khan (PW-26) had never prepared any seizure memo in Champa GRP and he simply took the properties and the suspects with him. Thus, the seizure(s) said to be made from the possession of the appellants in GRP Champa are doubtful. (19) Learned counsel for the appellants have contended that there is no evidence to show that the alleged articles were sealed after the seizure. The contention appears to be correct as it is not mentioned in the seizure memo(s) that the articles allegedly seized from the appellants were sealed after the seizure. Even the I.O. (PW-26) did not depose about sealing of the articles after the seizure. (20) In Amarjit Singh Alias Babbu –Vs- State of Punjab, 1995 Supp (3) SCC 217, the appellants was found in possession of a revolver with two cartridges. The seizure was made on 27.6.1990 and the weapon was tested by expert on 28.8.1990. The police officer who seized the weapon did not seal it on the spot, but handed over it to another person. It was held that the non-sealing of the revolver on the spot was a serious infirmity as the possibility of tampering could not be ruled out. The police officer who seized the weapon did not seal it on the spot, but handed over it to another person. It was held that the non-sealing of the revolver on the spot was a serious infirmity as the possibility of tampering could not be ruled out. In the instant case, certain weapons were seized on which blood stains were also found, therefore, to rule-out a possibility of tampering it was necessary for the police to seal those articles and to send them for expert examination with intact seal. But nothing like that was done. Mr. Singh has drawn our attention that these articles were sent for FSL examination after about 2 months. There is no evidence on record to show as to where these articles were kept in between this period. That apart Constable, Jawahar Singh, who took the articles to the FSL was not examined. This was also an infirmity in the prosecution case. (21) Learned counsel for the appellants have argued that why the appellants would take FDR belonging to the deceased. According to them, it was planted by the police to falsely implicate the appellants. The evidence on record would show that the 2 appellants were regular students of IInd Year Engineering Course in Bhilai Institute of Technology (BIT), Durg. Thus, it was not a case in which it can be said that they were not aware of the fact that the FDR on the name of other person can never be encashed by them without taking her signature and without putting it to the Bank. Why an accused of murder would take a risk of putting FDR of the deceased before the Bank. This does not appear to be logical at all. Evidence of Rohit (PW-2) would show that the assailants were very clever. It comes in his evidence that cash and jewelry both had been taken out by the boy from the almirah and the boy had given cash to the girl for counting which came as Rs.4,000/-. The cash was taken and the jewelry was left by them. That is to say that the assailants were choosy and clever and even were not taking risk of taking jewelry. How it can be held to be true that such assailants, who were not taking the valuable articles which could have been identified, would take the receipt of Fixed Deposit (FDR) belonging to the deceased. That is to say that the assailants were choosy and clever and even were not taking risk of taking jewelry. How it can be held to be true that such assailants, who were not taking the valuable articles which could have been identified, would take the receipt of Fixed Deposit (FDR) belonging to the deceased. It is difficult to believe that the appellants would take the FDR as has been claimed by the prosecution. Moreover, we have disbelieved the seizure of the articles from the possession of the appellants. (22) The Sessions Judge has believed the ‘dock’ identification and TIPs. State counsel has contended that even if the seizure of articles from the possession of the appellants was not established, it would make no difference because the appellants were duly identified on ‘dock’ by Rohit (PW-2) who had also identified them in TIP. (23) In the instant case, the appellants were taken into custody on 17.1.2008 and the 2 TIPs (Ex.-P/6 & P/7) were conducted on 22.1.2008. In the above TIPs, the appellants were put for identification by Manoj Mishra (PW-5) and Imtiyaz Ali (PW-6). According to the TIP memo(s) both these witnesses had identified the appellants in District Jail, Korba. This TIP was conducted on the pretext that the I.O. (PW-26) had information that these 2 witnesses had seen the appellants roaming in the locality of the house of the deceased at the relevant time. We note that these 2 witnesses (PW-5 & PW-6) were also the witnesses of seizure(s) (Ex.-P/8 & P/10). That is to say that even according to the prosecution, they had seen the appellants on 17.1.2008 when the seizure memo(s) were allegedly prepared in GRP Champa. Thus even if we take all this to be correct, the TIPs held on 22.1.2008 by same witnesses who were the witnesses of seizure(s) was meaningless. We would not go into further details regarding the TIPs and their effect because the above 2 witnesses (PW-5 & PW-6) have completely turned hostile. As we have already said, they have neither supported the seizure(s) nor the identification of the appellants in TIPs. Even they have not identified the appellants on ‘dock’. According to their evidence, these witnesses had seen the appellants for the first time while examination before the Court. Thus the alleged evidence of identification of the appellants by these 2 witnesses was neither meaningful not favourable to the prosecution. Even they have not identified the appellants on ‘dock’. According to their evidence, these witnesses had seen the appellants for the first time while examination before the Court. Thus the alleged evidence of identification of the appellants by these 2 witnesses was neither meaningful not favourable to the prosecution. (24) About the identification by Rohit (PW-2), learned counsel for the appellants have argued that there was inordinate delay in conducting the TIP. The contention is factually correct. The appellants were taken into custody on 17.1.2008 and this TIP (Ex.-P/2) was conducted on 12.2.2008. Thus there was a delay of 25 days in conducting the TIP. The prosecution has not offered any explanation regarding such inordinate delay. (25) In State of Andhra Pradesh –Vs-Dr. M.V. Ramana Reddy and others, AIR 1991 SC 1938 , it was held that if delay in holding identification parade was not explained, evidence of prosecution regarding identity of accused was not absolutely reliable. In Rajesh Govind Jagesha –Vs-State of Maharashtra & connected matters, AIR 2000 SC 160 , the identification parade was conducted after about 5 weeks from the arrest of the accused and the explanation for delay was not found trustworthy. It was held that in such situation, a possibility of witnesses having seen the accused between date of arrest and TIP could not be fully ruled out. The law has always insisted on the quick identification so that a possibility of seeing the accused by the witnesses is not there. (26) It is a known law that after the arrest, the accused are sent on remand for 15 days and they are produced before the Court for further remand. If they are not brought ba-parda, everyone gets an opportunity to see their faces and a possibility that they were seen by the person who ultimately identified them always remains. In the instant case, there is time gap of 25 days between arrest and TIP, and thus, a possibility of the accused being seen by the witness (PW2) cannot be fully ruled out. (27) We have carefully seen TIP memo (Ex.-P/2). The contents of the TIP memo would show that for Shivshankar (A-1) who was aged about 20 years, the persons of age group of 24-33 years were mixed. Likewise, for Ku. T. Tejasvani (A-2), who was aged about 19 years, women of the age group of 22 to 46 years were mixed. (27) We have carefully seen TIP memo (Ex.-P/2). The contents of the TIP memo would show that for Shivshankar (A-1) who was aged about 20 years, the persons of age group of 24-33 years were mixed. Likewise, for Ku. T. Tejasvani (A-2), who was aged about 19 years, women of the age group of 22 to 46 years were mixed. These women were aged about 22, 33, 34, 35 & 46 years. All these women were married women. Why not an educated boy reading in Class 9th would identify one unmarried girl of 19 years among the 5 married women, who in this locality normally put sindoor etc. on their head. (28) Rohit (PW-2), though has deposed that he had seen the faces of the assailants in which one was Shivshankar @ Chotu (A-1), but we have found his this version to be suspicious, because the name of Shivshankar (A-1) was not mentioned in dehatinalishi lodged by his father (PW-1) to whom he allegedly stated his name. Name of Shivshankar (A-1) was also not in the diary statement (Ex.-D/2) of Rohit (PW-2). In his statement before the Magistrate (Ex.-/P/3), Rohit has clearly deposed that he could not identify the girl because she had covered her face by a cloth. If Rohit (PW-2) did not mention in his police statement that he had identified the assailants and he also did not mention in his statement before the Magistrate that he had identified Ku. T. Tejasvani (A-2), then how his TIP would assume importance. According to Rohit (PW-2) his eyes were covered by patti and the assailants had also covered their faces by cloths. Though he claims that he had seen the assailants from the lower portion of patti after keeping his head upward, but these facts are omission in his statement recorded u/S 161 Cr.P.C. These are the infirmities in the evidence of Rohit (PW-2), who had identified the appellants in TIP and on ‘dock’. (29) The case of the prosecution is mainly based upon the eyewitness account of Rohit (PW-2). On appreciation of his evidence, we find many omissions in his diary statement as also statement made before the Magistrate. (29) The case of the prosecution is mainly based upon the eyewitness account of Rohit (PW-2). On appreciation of his evidence, we find many omissions in his diary statement as also statement made before the Magistrate. Two important omissions in the diary statement are that he was able to see the assailants from the lower portion of the patti after keeping his head upward and the assailants had removed the cloths from their faces while they were taking food and that he had identified that the boy was Shivshankar @ Chotu (A-1) who was well known to him. (30) In Subhash –Vs-State of Haryana, (2011) 2 SCC 715 , it was held that if a significant omission is made in statement of a witness recorded under S. 161 Cr.P.C., same may amount to a contradiction and whether it so amounts is a question of fact in each case. The above principle is based on the explanation to Section 162 Cr.P.C. which says that an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. (31) In Sampath Kumar –Vs-Inspector of Police, Krishnagiri, AIR 2012 SC 1249 , it was held in Para-9 as follows:- 9. In Narayan Chetanram Chaudhary & Anr. –Vs-State of Maharashtra, AIR 2000 SC 3352 , this Court held that while discrepancies in the testimony of a witness which may be caused by memory lapses were acceptable, contradictions in the testimony were not. This Court observed: “Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person”. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person”. (32) In the instant case, as we have already held, Rohit (PW-2) has made the above significant omissions in his diary statement (Ex.-D/2) and statement before the Magistrate (Ex.-P/3). There is no explanation of the above omissions. In appreciation of his entire evidence, it does not appear that he, in fact, had seen the faces of the assailants. Even if we ignore the omissions for the sake of argument and take that he was able to see the faces of the assailants in the manner he tried to depose before the Court and had identified one of them (A-1), who was in visiting terms with his family being son of old family friend of Keshav Prasad (PW-1), at least he should have told his (A-1) name to his father who must have mentioned it in the dehatinalishi. There are also significant omissions in the diary statement (Ex.-D/1) of PW-1. Therefore, neither the evidence of Rohit (PW-2) nor his father (PW-1) were wholly reliable so as to rest the conviction of the appellants on the evidence of ‘dock’ identification by Rohit (PW-2). (33) We are of the opinion that in the above facts and circumstances of the case, the identification of the appellants being assailants was not established beyond all reasonable doubts so as to hold them guilty of the offences punishable u/Ss 450, 394 r/w 397 and 302 IPC. (34) For the foregoing reasons, we allow these appeals and set-aside the conviction and sentences imposed against the appellants u/Ss. 450, 394/397 & 302 IPC. The appellants are acquitted of the charges framed against them. The appellants are continuously in jail since 18.1.2008. They shall be released forthwith, if not required in any other offence.