JUDGMENT 1. - This appeal arises out of the judgement of the learned Additional Sessions Judge, Baran, dated 31st October, 1972. I have heard arguments and perused the record of the case. 2. The substance of the prosecution story is that on the night falling between 24th and 25th August, 1971 complainant Chittar was working in his field in village Bewdiya. The fields of accused, namely, Mohan, Raghunath, Mangilal, Ramchandra and Ghasilal are also near the field of the complainant. Some 4-5 days before the day of the occurrence, Chhitar and accused Mohan and Ramchandra had some exchange of words. The accused alleged that the complainant was grazing his cattle in their fields. It was said that it was on account of this enmity that on the aforesaid night at about 2.30 a.m. all the five accused persons attacked Chhitar. Mohan and Raghunath were armed with swords and the rest of them had lathies with them. All the five accused persons hit him on the hands and on the stomach. Hearing his cries Kanhaiya and Gokul Gujar came there and rescued him. 3. A report of this incident was ledged in the Police Station, Baran on 25.8.1971 at 11 A.M. 4. The medical examination of Chhitar was conducted by Dr. Thanmal Jain who found the following injuries on his person:- 1. Incised wound 5"x 1" x 21/2" on the posterior aspect of the left elbow 1/2" distal to olcernon process cutting the radius and ulna bone vessel and posterior cutaneous nerve and capsule of the joint. Nature of the injury was grievous and dangerous to life. It was caused by sharp weapon. 2. Incised wound of 21/2" x 1/2" x 3/4" in size on the lateral aspect of the right forearm 1/2 above the lower end of the ulna cutting the ulna bone about 1/2" deep. Injury was simple and was caused by sharp weapon." X-Ray examination disclosed that there were comminate fractures of the shafts of both the bones of left forearm at the junction of upper ⅕th and lower ⅘th. 5. After investigation the accused were challaned and finally came to be tried by the learned Additional Sessions Judge, Baran. Injury was simple and was caused by sharp weapon." X-Ray examination disclosed that there were comminate fractures of the shafts of both the bones of left forearm at the junction of upper ⅕th and lower ⅘th. 5. After investigation the accused were challaned and finally came to be tried by the learned Additional Sessions Judge, Baran. Accused Raghunath and Mohan were charged with the offences under sections 148, 307, 308, 326 and 324 read with section 149 Indian Penal Code while accused Ghasilal, Mangilal and Ramchandra were charged with the offences under sections 147, 307, 308, 326 and 324 read with section 149 Indian Penal Code. 6. The learned Additional Sessions Judge after trial acquitted accused Mohan and Raghunath of the offences under sections 148 and 149 Indian Penal Code and accused Ramchandra, Ghasilal and Mangilal of all the offences. However, he convicted accused Raghunath under section 324 Indian Penal Code and Mohan under section 326 Indian Penal Code and further convicted both of them under Section 307, 326, 324 read with section 34 Indian Penal Code. He sentenced each of them to 3 years rigorous imprisonment together with a fine of Rs. 200/-, in default whereof to undergo rigorous imprisonment for one month. 7. Upon a perusal of the record, it shows that Chhitar and Gokul both turned hostile to the prosecution. The learned Additional Sessions Judge, therefore, convicted the appellants on the basis of their statement made before the committing Magistrate and which were transferred to the file of the Court of Sessions under section 288 Criminal Procedure Code. The finding of the learned Judge was that these witnesses indulged in falsehood of the trial but not before the committing Magistrate. 8. The learned counsel for the appellants invited my attention to Sharnappa Mutyappa Halke v. The State of Maharashtra, AIR 1964 SC 1357 . In that case it was observed by the Supreme Court that where a witness has resiled from his evidence in the committing court and the evidence has been brought in under section 288 Criminal Procedure Code, then before such evidence is accepted, satisfaction about its being true and reliable is necessary. In that case it was observed by the Supreme Court that where a witness has resiled from his evidence in the committing court and the evidence has been brought in under section 288 Criminal Procedure Code, then before such evidence is accepted, satisfaction about its being true and reliable is necessary. In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime, is true. We have, therefore, to examine the statements of Chhitar and Gokul which they made before the committing court. 9. Chhitar in his statement before the committing court deposed that a few days before the occurrence an exchange of words had taken place between him on the one hand and Mohan, Ramchandra and Raghunath on the other on account of the cattle. On the night of occurrence, he was keeping watch over his field and when he went to drive away buffalo, he saw the accused standing there. He wished them Ram Ram and as soon as he did so, Mohan armed his sword on his head which he warded off on his hand. Thereupon Raghunath also armed his sword on his head which also he warded off on his right hand. The remaining accused continued to bear him with lathies. Now the first question that arises is whether it is statement of Chhitar is a reliable piece of evidence and can be acted upon. I can at once be stated that Chhitar has talked of 5 injuries. This discrepancy was also noticed by the learned Judge but he bought that the statement of Chhitar was corroborated as far as two injuries were concerned. The approach of the learned Judge to my mind is not correct. In a case of this kind if the medical evidence does not support the complainant then it cannot be said that the testimony has received medical corroboration and extrinsic support. 10. The learned counsel for the appellants then pointed out that the occurrence took place on Bhadwa Sudi 3 which was a dark night and it was not possible for the complainant and his witness to identify his assailants. 10. The learned counsel for the appellants then pointed out that the occurrence took place on Bhadwa Sudi 3 which was a dark night and it was not possible for the complainant and his witness to identify his assailants. To get over this difficulty, Chhitar deposed before the committing Magistrate that the night was a moonlit night which is nothing but pre-variation. Gokul in his cross examination (Ex. P/6) has clearly deposed that at the time of occurrence the sky was even cloud cast. The learned Public Prosecutor submitted that since the accused were known to the complainant and they were also his neighbours it was quite easy for him to identify them by their voice. He further pointed out that Gokul had a torch which he flashed and thus was able to see the appellants in its light. Firstly, it is not very safe rather very risky to base conviction upon identification by voice. Secondly, the story of torch seems to be unreliable. In his cross examination Chhitar stated that he was able to see the sword and the sticks without any torch light because dawn was approaching. He was confronted with his police statement where he had omitted to say that he had flashed the torch and seen the accused persons. Thus, he appears to have made an improvement upon his previous statement in order to confirm that he was able to identify the accused persons which he did not appear to have done. The learned Judge has also referred to this part of the statement of Gokul. He also found that Gokul had initially admitted that he had a torch and flashed it. In cross examination he denied that he had any torch but on further cross examination he again stated that he had a torch and used it. but the learned Judge, however, was of the view that it was not difficult for the witnesses to recognise the appellants in star lit night which was not the case put forward by any of the two witnesses. 11. The learned counsel for the appellants then urged that it was a case of over implication. Initially Chhitar began that the quarrel started between Mohan and Ramachandra and then he introduced Raghunath and finally he added two more that is Mangilal and Ghasilal. The learned trial Judge found that no case was made out against three persons. 11. The learned counsel for the appellants then urged that it was a case of over implication. Initially Chhitar began that the quarrel started between Mohan and Ramachandra and then he introduced Raghunath and finally he added two more that is Mangilal and Ghasilal. The learned trial Judge found that no case was made out against three persons. Clearly, therefore, this was a case in which Chhitar was trying to rope in as many persons as he could. 12. Viewed in this analysis of the evidence,it cannot be said that the statements of Chhitar and Gokul under section 288 Criminal Procedure Code were corroborated by any extrinsic evidence both in respect of the occurrence by the lower court. 13. I, therefore, find that it is very difficult to uphold the judgement of the learned trial Judge and the convictions of the appellants. As a matter of fact when the injured Chhitar himself had no grievance to make qua the accused persons before the trial Judge it is rather difficult to convict the accused persons simply on the basis of his previous statement from which he categorically raised in the trial court. 14. Consequently, I accept this appeal, set aside the convictions of the appellants. They are acquitted of all the charges levelled against them. Their sentences are also quashed. They are on bail, they need not surrender. Fine if paid, shall be refunded to them. *******