Judgment A.N.MUKHARJI, J. 1. Appellant Narain Baraik has been convicted by the Judicial Commissioner of Chotanagpur Ranchi under S.302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The appellant was further convicted under Sec.201/34 of the Indian Penal Code, but no separate sentence was passed against him under this section. 2. The prosecution case is that Bigan Baraik (the deceased) used to live as Gharjamai with his mother-in-law, Lukhu Baraikin (P.W. 10), and his wife, Upasi Baraikin (P.W. 11), in their house in village Bhurso, police-station Sisai, in the district of Ranchi. The appellant also used to live in the same village; but he had, it is alleged, an evil eye on P.W. 11, and used to tell her to remain with him, P.W. 11 did not agree to this proposal on the ground that her husband, Bigan was alive. The prosecution case further is that, some time before the occurrence, the appellant caught hold of P.W. 11 when the latter was alone. It is further alleged that, when on one night she was returning home after witnessing a dance on the occasion of a marriage in the family of one Jitbahan, the appellant caught hold of P.W. 11 dragged her to his house and outraged her modesty. The appellant is alleged to have threatened P.W. 11 not to disclose this fact to anybody. The prosecution case further is that, on the night of 8th September, 1966, deceased Bigan had taken his meals when appellant Narain, along with one Bandhna Singh, had come to the house of P.W. 10. Lukhu Baraikin and asked Bigan to go out with them for a walk. Thereafter, Bigan is alleged to have gone out of the house along with appellant Narain and the said Bandhna (since acquitted). Bigan did not return home on that night, which was a Thursday. On the following Friday, that is, on the 9th September, 1966. P.W. 2 Gajeya Oraon had gone to cut grass in the field of P.W. 7 Chamku Oraon, who is alleged to be his grand-uncle. At that place, P.W. 2 saw a dead body. He did not go near the dead body, nor could he identify it, as, it is said, it was covered. P.W. 2 Gajeya Oraon had gone to cut grass in the field of P.W. 7 Chamku Oraon, who is alleged to be his grand-uncle. At that place, P.W. 2 saw a dead body. He did not go near the dead body, nor could he identify it, as, it is said, it was covered. On the next day, that is, on the 10th September, 1966, constable Ramkumar Singh (P.W. 5) had gone to the darwaza of the Mukhiya of Bhurso in connection with his round duty. There, he learnt that a servant of the Mukhiya was telling the Mukhiya that a dead body was lying in the field of P.W. 7 and that Bigan was not found in the house of P.W. 10 for the last two days. Thereafter, the constable the Mukhiya and the chaukidar of the village went to the house of P.W. 10, and on enquiry, learnt that Bigan was traceless from the night of 8th September, 1966. All of them then went to the field of P.W. 7; but found only some blood stained earth and some night-soil in the field, but the dead body was not found there. The Mukhiya then asked the chaukidar to take P.W. 11 to the police-station at Sisai to lodge a first information report there. P.W. 11 went to the police-station, and, on her statement. P.W. 12 K.C. Lall, who was the Officer-in charge of the police-station, drew up a first information report (Ext. 3). 3. The constable and the villagers started search for the dead body, and subsequently it was discovered at a distance of about 3 miles from the field of P.W. 7. It was identified to be the dead body of Bigan Baraik. P.W. 12 started investigation in this case. He found the field of P.W. 7 Chamku to contain Gora paddy, which was trampled and he found blood-stains there. He noticed that the dead body of Bigan was lying in a ditch of the Nala at a distance of 3 miles west of the field of P.W. 7. He held inquest over the dead body and sent it for post-mortem examination to Gumla through the constable (P.W. 5). He sent the blood-stained earth collected from the field of P.W. 7 to the Chemical Examiner. He held inquest over the dead body and sent it for post-mortem examination to Gumla through the constable (P.W. 5). He sent the blood-stained earth collected from the field of P.W. 7 to the Chemical Examiner. It may be stated here that that report of the Chemical Examiner and that of the Serologist are on the record, and they show that human blood was found on the earth which was collected from the field of P.W. 7. Of course the blood group of the stains could not be ascertained, as the blood sent for examination was not sufficient for test. 4. Dr. B. Sahu, Civil Assistant Surgeon, Gumla Hospital who held the post-mortem examination on the dead body of Bigan on 11th September, 1966, at 3 p.m. was examined before the committing court and his evidence has been tendered by the prosecution under S.509 of the Code of Criminal Procedure. This doctor was examined as P.W. 6 in the Sessions Court also. The doctor found the following ante mortem injuries on the person of the deceased :- (i) Irregular sized abrasion 4" x 3" on the right leg lower part. (ii) Irregular sized abrasion 6" x 4" on the back of the left knee joint. (iii) Irregular sized abrasion 4" x 21/2" on the front of the right knee joint. (iv) Irregular sized abrasion 4" x 3" on the lower lateral part of the left leg. (v) Irregular sized abrasion 6" x 3" on the back of the left arm. (vi) Irregular sized abrasion 2" x 11/2" on the left lower part of the arm. (vii) Lacerated wound 1" x 1/2" x muscle deep just above the left eyebrow. (viii) Lacerated wound 11/2" x 1/2" x bone deep 1/2" above injury no. (vii). (ix) Lacerated wound 3" x 1" x bone deep, 1" above injury no. (viii). According to the doctor, the injuries were caused by some heavy blunt substance and death was due to shock and haemorrhage as a result of the above mentioned injuries. The doctor has further said that injuries nos. (vii), (viii) and (ix) were sufficient, in the ordinary course of nature, to cause death, because they had resulted in depressed fracture of the frontal bones on both sides. 5. The investigating officer, after completing the investigation submitted charge-sheet against this appellant as also against Bandhna Singh on 20th November, 1966. The doctor has further said that injuries nos. (vii), (viii) and (ix) were sufficient, in the ordinary course of nature, to cause death, because they had resulted in depressed fracture of the frontal bones on both sides. 5. The investigating officer, after completing the investigation submitted charge-sheet against this appellant as also against Bandhna Singh on 20th November, 1966. There was the usual commitment inquiry, found a prima facie case against both the accused under Sections 302 and 201 of the Indian Penal Code made out, and he committed them both to the Court of Session to stand their trial there. In the Sessions Court, the prosecution examined 12 witnesses in all. 6. The defence of the appellant in the Sessions Court was that he is innocent, that he did not commit any offence and that he has been falsely implicated at the instance of the prosecution witnesses, who are inimically disposed towards him. The learned Judicial Commissioner did not accept the case of the appellant. He accepted the prosecution evidence as adduced before him and convicted and sentenced the appellant as indicated above. The learned Judicial Commissioner however was of the view that the charges under Ss.302 and 201 of the Indian Penal Code had not been substantiated against accused Bandhna Singh beyond reasonable doubt. He therefore, gave him the benefit of doubt and acquitted him of the charges levelled against him. 7. Being dissatisfied with the order of conviction and sentence passed against him, the appellant has filed this appeal from Jail, in which Mr. Jawahardhari Singh has appeared as an amicus curiae on behalf of the appellant. Learned Counsel has urged that the prosecution has not adduced any reliable evidence for the purpose of proving the charges against this appellant beyond reasonable doubt, and as such, he should be acquitted. It has further been urged that there is no eyewitness of the occurrence and that the circumstantial evidence, which has been relied upon by the learned Judicial Commissioner, is not sufficient for the purpose of convicting this appellant. 8. I now proceed to discuss, in brief, the evidence of the prosecution witnesses to find out whether the circumstantial evidence, which has transpired from their statements, is sufficient for the purpose of convicting the appellant in the instant case. It may be stated at the very outset that there is no eyewitness of the occurrence in this case. 8. I now proceed to discuss, in brief, the evidence of the prosecution witnesses to find out whether the circumstantial evidence, which has transpired from their statements, is sufficient for the purpose of convicting the appellant in the instant case. It may be stated at the very outset that there is no eyewitness of the occurrence in this case. P.W. 10 Lukhu Baraikin is the mother-in-law of the deceased. She says that the deceased used to live in her house as Ghardamad along with her daughter (P.W. 11). In the month of Bhado, on a Thursday, the deceased was in her house and he had already finished his night meal, when the appellant and Bandhna came to call him from her house for going out for a walk. She states that Bigan went out with them that night and never returned home. She searched for Bigan on the following Friday, but could not get a trace of him. Subsequently, on Saturday, she learnt that her son-in-law had been murdered. But it is strange that she did not go to see the dead body. There is no doubt, some inconsistency in her statement which she made in the court below. Before the Sessions Court, she stated that both the appellant and Bandhna had come to call Bigan from her house that night. The appellant and Bandhna were standing in the angan, which was in dark, but even then P.W. 10 says that she could identify them. It is significant to note that, before the Police, P.W. 10 did not mention the name of Bandhna having accompanied the appellant Narain when the latter had come to call Bigan on that night. P.W. 10 further says that she searched for Bigan in the houses of all the villagers on the following day, but it is important to note that none of the villagers, who have been examined in this case, has supported the statement of P.W. 10 on this point. 9. P.W. 11 Upasi Baraikin, the wife of the deceased Bigan, has also supported the statements made by P.W. 10. She gave statement at the police-station on the basis of which the first information report was drawn up. 9. P.W. 11 Upasi Baraikin, the wife of the deceased Bigan, has also supported the statements made by P.W. 10. She gave statement at the police-station on the basis of which the first information report was drawn up. But it is significant to note that, in the first information report, she did not mention the name of Bandhna having accompanied appellant Narain at the time when the latter had come to call Bigan from the house on that night. She has further stated in the court below about the appellant Narain having molested and threatened her on a previous occasion; but no such allegation has been made in the first information report, which was lodged by her. The statement made by P.W. 11 does not inspire any confidence, because she says that, on the following Friday, she did not tell anybody in the village that the appellant had taken away her husband from the house. She further says that the Mukhiya had asked her to tell at the police-station about the occurrence and to name the appellant. In these circumstances, it is difficult to rely on the statement made by P.W. 11. 10. P.W. 2 Gajeya Oraon has stated that on Friday, that is the 9th September, 1966, he had gone to cut grass in the field of P.W. 7 Chamku Oraon at about 2 p.m. At that time he noticed that a dead body of a person was lying in the tanr land of P.W. 7. He did not go near the dead body, nor could he say as to whose dead body it was. It is significant to note that no witness is coming forward to support the statement of P.W. 2 that the latter had seen a dead body lying in the field of P.W. 7 on Friday noon. As a matter of fact, P.W. 7 is the grand-uncle of P.W. 2, and it does not, appear from the statement of P.W. 7 that P.W. 2 had informed him about a dead body lying in his field on that day. It is also difficult to accept the statement of P.W. 2, because Gora paddy was standing waist high on the land, as will appear from the evidence of the prosecution witnesses. If that be so, it is difficult to accept the statement of P.W. 2 that he had gone to cut grass in that field. It is also difficult to accept the statement of P.W. 2, because Gora paddy was standing waist high on the land, as will appear from the evidence of the prosecution witnesses. If that be so, it is difficult to accept the statement of P.W. 2 that he had gone to cut grass in that field. Further if the paddy was standing waist high and when P.W. 2 did not go near the dead body, it is difficult also to accept the statement of P.W. 2 that he would see body lying in the field some distance from him. 11. P.W. 3 Chanda Mahli is the chaukidar of the village. He has stated that he had been to the house of the Mukhiya on Saturday at about 8 a.m. that is, on the 10th September, 1966, and there he learnt from a servant of the Mukhiya that a dead body was lying in the field of P.W. 7. This servant has not been examined in this case. 12. P.W. 5 Ramkumar Singh constable corroborates the statement of P.W. 3 on this point. There is nothing in the statements of P.W. 3 and P.W. 5 to implicate the appellant with the commission of the crime. 13. P.W. 7 Chamku Oraon has stated that, on a Thursday, he, along with P.W. 8 Ladwa Oraon and P.W. 9 Doma Oraon, who has been tendered, had gone to see their fields. These three witnesses are related to one another, P.W. 7 says that, when they were returning from their fields in the night, they saw two persons carrying a bundle with the help of a bamboo piece. These two persons were coming from village Bhurso, P.W. 7 enquired from them as to who they were and appellant Narain told him that he and Bandhna were going in search of some medicine. He further says that, on the following Friday, at night, he alone was sitting in his straw-hut and he heard some human voice at that time. On enquiry, appellant told him that he and Bandhna were again going in search of medicine. He had no suspicion on them. On the following Saturday morning, he did not find any dead body in his field. He further says that he identified the appellant on that night by his voice. On enquiry, appellant told him that he and Bandhna were again going in search of medicine. He had no suspicion on them. On the following Saturday morning, he did not find any dead body in his field. He further says that he identified the appellant on that night by his voice. He also says that the bundle which the appellant and Bandhna were carrying was covered with white cloth. He had seen these people from a distance of 30-40 steps. 14. P.W. 8 Ladwa Oraon supports the statement of P.W. 7 with regard to the incident on the night of Thursday. He too says that the night was a dark one, the sky was cloudy and it was raining at that time; and rumbling sound of the cloud was being heard on account of the rains. He also alleges that he identified appellant Narain by his voice. 15. From an analysis of the evidence discussed above, it will appear that this case depends entirely on circumstantial evidence. It is well settled by authorities that, in order to justify an inference of guilt from circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and must be incapable of explanation upon any reasonable hypothesis than the guilt of the accused. According to the prosecution, the following circumstances appear against the appellant : (i) The appellant had come to the house of the deceased on the night of 8th September, 1966, which was a Thursday, and had taken the deceased away for a walk and thereafter the deceased never returned home and his dead body was recovered two days thereafter. (ii) On the Thursday night, this appellant, along with another, was seen coming from the side of Bhusro village and carrying a bundle with the help of a bamboo piece. (iii) On the following Friday, that is, on the night of 9th September, 1966, the appellant, along with another, was found going together. (iv) The appellant was not found at his house after the occurrence. It may be observed that, whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved. So, the prosecution has, at first, to prove the different circumstances appearing against the appellant, and thereafter it has to establish that all the circumstances so proved are consistent only with the guilt of the appellant. 16. It may be observed that, whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved. So, the prosecution has, at first, to prove the different circumstances appearing against the appellant, and thereafter it has to establish that all the circumstances so proved are consistent only with the guilt of the appellant. 16. So far as the first circumstance is concerned, it may be stated that this circumstance has not been proved against the appellant, P.W. 11, the wife of Bigan, admits that the appellant used to threaten to kill her as also her husband, if she did not agree to live with him (the appellant). In view of this fact, it is rather improbable that the appellant would go to the house of the deceased on Thursday night and would take him away on the pretext of a walk. In view of the alleged ill-feeling, it is most unlikely that P.Ws. 10 and 11 would allow Bigan to go along with the appellant at night. It is also unlikely that the deceased himself would agree to go out for a walk in that night, when the evidence is that the appellant used to threaten P.W. 11 and the deceased with dire consequences. It is also improbable that these witnesses would not inform any villager on the next day that is on Friday, the 9th September, 1966, that the deceased had been taken away by the appellant on the previous night and that he had not returned home. So, this incriminating circumstance, which is sought to be used against the appellant, has not, in my opinion, been proved beyond reasonable doubt against the appellant. 17. So far as the second circumstance is concerned, it will appear that neither P.W. 7 nor P.W. 8 identified the appellant by face and they identified him only by voice. In my opinion, it is not safe to rely on the identification of the appellant by voice, because such identification appears to be a very weak type of evidence. In support of this contention, reliance may be placed on the case of Nga Aung Khin V/s. Emperor, AIR 1937 Rang 407 in which his Lordship observed that it is unsafe to rely on identification by voice. In support of this contention, reliance may be placed on the case of Nga Aung Khin V/s. Emperor, AIR 1937 Rang 407 in which his Lordship observed that it is unsafe to rely on identification by voice. Learned State Counsel has, no doubt, relied on the case of Kirpal Singh V/s. State of Uttar Pradesh ( AIR 1965 SC 712 ), in support of his contention that their Lordships of the Supreme Court have relied on the identification by voice, and, as such, the evidence of P.Ws. 7 and 8 in the instant case about the identification of the appellant at night by voice should be accepted. In my opinion, the facts of the reported case are not at all similar to the facts of the case in hand. In that case, the witness, who identified the accused, was his father-in-law and it was found as a fact in that case that the witness had, within the last few days of the occurrence, occasion to hear the talk of the accused. Their Lordships observed in that case - "It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial. But the appellant was intimately known to Rakkha Singh (the witness) and for more than a fortnight before the date of the offence he had met the appellant on several occasions in connection with the dispute about the stiff arcane crop." In the instant case, although the appellant and P.Ws. 7 and 8 live in the same village, there is no evidence on the record that the appellant was intimately known to these witnesses, or that they had any conversation prior to the date of occurrence on that night. Further, in the case of Kirpal Singh, AIR 1965 SC 712 the witness stated that the identification was not only done by voice, but by gait also. But that is not so in the instant case. It will appear that the night of occurrence was dark, it was raining and there was rumbling sound of the cloud. In such a situation, it is extremely difficult to accept the statements of P.Ws. 7 and 8 that they had identified the appellant by his voice only. But that is not so in the instant case. It will appear that the night of occurrence was dark, it was raining and there was rumbling sound of the cloud. In such a situation, it is extremely difficult to accept the statements of P.Ws. 7 and 8 that they had identified the appellant by his voice only. Further, the statements of these witnesses do not inspire any confidence, because they do not appear to state the true facts. The night being dark, the witnesses could not identify the face of the appellant, but all the same they claim to have seen the appellant going in the company of another and carrying a bundle covered with white cloth with the help of a bamboo piece. These witnesses appear to have been tutored to make such statements in the court below. It is rather strange that P.Ws. 7 and 8 would not feel any suspicion in seeing the appellant, along with another, carrying a bundle in a lathi and would remain satisfied on getting an answer from him that they were going in search of medicine. It was really no time for a person to go in search of medicine at that unearthly hour. In my opinion, neither of these circumstances has been clearly established against the appellant beyond reasonable doubt. 18 It is true, as stated by P.W. 11 that the appellant was not found in his house on Friday. But this circumstance alone cannot be a decisive factor proving the guilt of the appellant beyond reasonable doubt. It cannot be said that the chain of circumstantial evidence adduced in this case is inconsistent with the innocence of the appellant, and that it shows that the murder must have been committed by the appellant in furtherance of his common intention. It is true that in this case the deceased had been brutally murdered as would appear from the report of the doctor holding the post mortem examination. But this fact alone will not justify the conviction of the appellant when there is paucity of evidence implicating him with the commission of the crime. 19. In view of what has been observed above, I find that there is no sufficient evidence to implicate the appellant with the commission of the crime. In the circumstances of the case, I am inclined to give the appellant the benefit of doubt. 20. 19. In view of what has been observed above, I find that there is no sufficient evidence to implicate the appellant with the commission of the crime. In the circumstances of the case, I am inclined to give the appellant the benefit of doubt. 20. The appeal is accordingly, allowed, the order of conviction and sentence passed against the appellant is set aside and he is acquitted of the charges levelled against him, and I direct that he be set at liberty forthwith, unless required in any other case. M.P.VERMA, J. 21 I agree.