JUDGMENT 1. - Appellant Kishna along with five co-accused persons faced trial before the learned Additional Sessions Judge, Ajmer, who by his judgment dated 11.8.81 found him guilty U/ss. 302 & 201 IPC and sentenced him to life imprisonment and a fine of Rs. 100/- in default to further undergo R.I. for three months on the first count and to R.I. for two years and a fine of Rs. 100/- in default to further undergo 3 months R.I. on the second count. However co-accused Badri, Chotu and Ratna, who were charged for the offences U/s. 302/34 and Section 201 IPC as also co-accused Panchu and Bajrang who faced trial for the offence u/s. 201 IPC were acquitted. 2. Briefly the relevant facts for the disposal of this appeal are that, in the night of 17.4.1979 PW 7 Sheoram, PW 8 Ramdeo and deceased-Ghasi were returning to their village Rajpura from Kekri. They were on two bicycles. Ramdeo was driving one cycle and on the pillion seat thereof Sheoram was sitting. Ghasi was riding another cycle. He was about 5/6 paces behind them. It was a dark night. When they reached on the Kacha path way near village Duhari, four assailants, who were hiding behind a `ker' bush and armed with lathis sprang up. It is alleged that appellant Kishna inflicted a lathi blow on the head of Ghasiram, who fell down from the cycle, and that thereupon PWs Sheoram and Ramdeo also alighted from their cycle and came back near Ghasi. It is alleged that those assailants hurled abuses and threatened Sheo Ram and Ramdev, who identified those assailants by their voices. Sheoram and Ramdeo riding on the cycles came to village Duhrai, where they informed PW 4 Ranjit Singh about the said incident. They also requested him and other villagers to accompany them to the place of occurrence, but they did not oblige them. It is further alleged that thereafter Sheoram and Ramdeo again came to the place of occurrence, but they did not find Ghasiram there. However, his blood stained turban was found lying there. Thereupon they again went to Ranjit Singh, who advised them to lodge a report in the Police Station. It is the case of the prosecution that thereafter they went to village-Rajpura and informed PW 28 Madhuram; the brother of Ghasi and other villagers. However, his blood stained turban was found lying there. Thereupon they again went to Ranjit Singh, who advised them to lodge a report in the Police Station. It is the case of the prosecution that thereafter they went to village-Rajpura and informed PW 28 Madhuram; the brother of Ghasi and other villagers. It is further the case of the prosecution that Sheoram alongwith PW 9 Hinglaj Dan, Madhu Ram and others reached the Police Station Sarwar and lodged an oral report on 18th April, 1979, at 3.30 A.M. PW 27 Ram Singh, SHO, drew the formal FIR and registered a case u/ss. 307, 201 r.w. 34 IPC. Ram Singh rushed to the place of occurrence and in the morning prepared site-plan Ex.P13. He seized and sealed blood stained soil and the control sample of soil and blood stained turban from the place of incident vide seizure memos Ex.P. 14 & 15 respectively from the place of incident. 3. It is alleged that on 18.4.79 at about 8.00 a.m. PW 25 Kishan Lal Jat found an injured person lying at a distance of about 35 yards away from the Kekri-Deoli road, who was unconscious though he was gasping. Kishan Lal informed about it to PW 24 Bhoop Singh S.H.O., Police Station, Kekri, who in turn recorded roznamcha report Ex.P 45 in General Diary. He went to the place where the said injured person having injuries on his head was lying unconscious. Blood was oozing out from his head. Bhoop Singh immediately sent him to Government Hospital, Kekri where he breathed his last at about 9.45 a.m. the same day. PW 17 Dr. N.K. Nuwal, Medical Officer, Kekri vide his letter Ex.P 28 intimated about the death of the said injured persons to the S.H.O. Police Station, Kekri. It is alleged that one Ram Dhan identified that the dead body was that of Ghasi Ram. 4. It is the case of the prosecution that on the same day at about 10 a.m. PW 27 Ram Singh, SHO, Police Station, Sarwar, had come to Kekri, where he was informed by Bhoop Singh about the death of Ghasi. Thereupon, the case was converted for offence under Section 302, IPC. 5. Dr. N.K. Nuwal, conducted the post mortem examination of Ghasi and vide post mortem report Ex.P 30 found the following injuries : 1. Thereupon, the case was converted for offence under Section 302, IPC. 5. Dr. N.K. Nuwal, conducted the post mortem examination of Ghasi and vide post mortem report Ex.P 30 found the following injuries : 1. Lacerated wound 3.5" x 1" x brain deep bleeding severely on right parietal region. 2. Bruise, reddish 4" x 1" on the left parietal region, with sensation of bony injuries. On dissection, he noticed that the skull was broken into pieces and brain matter was coming out. All skull bones except the occipital were broken into small pieces. There was a large haematoma on the occipital region and clotted blood on the frontal region. 6. The doctor opined that the cause of death of Ghasi was multiple fractures of the Skull bones causing injuries to brain and brain vessels and that those injuries were ante-mortem and sufficient to cause death in the ordinary course of nature. 7. During investigation, it transpired that appellant Kishna, who was working as a Khalasi on truck No. RJR 1265 along with co-accused persons, had lifted and transported injured Ghasi Ram from the place of occurrence in the said truck and placed him in a ditch about 35 yards away on the Kekri-Deoli road at a distance of about 6 Kms. from the place of occurrence, with an intention to cause disappearance of the evidence of crime and to screen themselves. The Investigation Officer seized the drive-side cabin window of the said truck having some blood stains, blood stained plank of that truck and a tarpaulin. The appellant was arrested on 23.4.79. It is alleged that in pursuance to his information Ex.P 49 he took the Investigation Officer to the place of occurrence and that in pursuance to his another information dated 27.4.79 Ex.P 53, he also got recovered a blood stained lathi from his house vide recovery memo Ex.P 16. It is alleged that blood stained `baniyan' of the appellant and garments of co-accused persons were also seized and sealed from them at the time of their arrests. Blood stained lathis were also recovered at the instance of co-accused Chhotu, Badri, Ratna and Panchu. All the recovered articles were sent to the State Forensic Science Laboratory, Rajasthan, Jaipur for examination. However, the report of the FSL was not tendered in evidence. 8. Blood stained lathis were also recovered at the instance of co-accused Chhotu, Badri, Ratna and Panchu. All the recovered articles were sent to the State Forensic Science Laboratory, Rajasthan, Jaipur for examination. However, the report of the FSL was not tendered in evidence. 8. After completion of the investigation a challan was filed against the appellant and five co-accused persons in the court of learned MJM, Kekri, who in turn committed the case to the court of Sessions, from where it was transferred to the learned Additional Sessions Judge. 9. The appellant and co-accused persons denied the indictment and claimed trial. To prove its case, the prosecution examined as may as 28 witnesses. The appellant and other co-accused persons in their plea recorded u/s. 313 Cr.PC denied all the circumstances appearing against them in the prosecution evidence and asserted that a false case has been foisted against them. In defence two witnesses were examined. 10. The learned trial Judge acquitted co-accused persons for the offences u/ss. 302/34 and 201 IPC. The learned trial Judge held that, though at the time of incident it was dark night but since Sheoram and Ramdeo knew the appellant, being residents of the same village, they had identified him by recognising his voice. He further held that the statements of Sheoram and Ramdeo were corroborated by the testimony of Hinglaj Dan and Madhu to whom they had informed about the said incident. The learned trial Judge held that as per FSL Report blood was detected on the baniyan of appellant and the lathi, which was recovered at his instance, that though as per Serologists Report their blood group could not be ascertained, due to disintegration still then the said recoveries incriminated the appellant with the crime. He therefore, relying on the statements of PW 7 and PW 8 and the aforementioned circumstances convicted and sentenced the appellant in the manner indicated above. Hence this appeal. 11. We have heard Shri N.C. Chaudhary the learned counsel for the appellant and Shri Goyal the learned Public Prosecutor at length and carefully perused the record of the trial court. 12. Hence this appeal. 11. We have heard Shri N.C. Chaudhary the learned counsel for the appellant and Shri Goyal the learned Public Prosecutor at length and carefully perused the record of the trial court. 12. Shri N.C. Chaudhary the learned counsel for the appellant has vigorously canvassed that admittedly the alleged incident took place in darkness, that appellant Kishna was generally living out from his village as he was working as a Khalasi on a truck, that the alleged eye-witnesses PW 7 Sheoram and PW 8 Ramdeo have admitted that they did not see or meet appellant Kishna on the day of alleged occurrence, that as per their version all the four assailants had shouted and threatened the said witnesses collectively and that in such circumstances, it was not at all possible for Sheoram and Ramdeo to have identified the appellant by his voice. He has contended that the actual words allegedly uttered by the appellant at the time of the incident have not been disclosed by these witnesses, that the Investigation Officer also did not take care to get any test identification Parade conducted by the Magistrate on the basis of the voices of the assailants and, therefore, the prosecution has miserably failed to prove that Sheoram and Ramdin had identified the appellant by his voice. He has pointed out that as per testimony of Sheoram and Ramdeo they heard the sound of a blow of lathi, which was dealt on the head of deceased Ghasi, but as per statement of PW 17 Dr. Nawal Kishore, he had found two external injuries on the head of the deceased; and that the fracture of the skull was the result of both the injuries. Therefore, in such circumstances, it is highly doubtful as to which of the assailants had inflicted those injuries. He has asserted that there is material variance between the ocular evidence and the medical evidence. Shri Chaudhary has argued that the motive for the alleged crime has also not been proved. He has vehemently asserted that the learned trial Judge has acquitted co-accused Chhotu, Badri and Ratna dis-believing the prosecution evidence but, on the self-same evidence he has found appellant Kishna guilty for the offence u/ss. 302 and 201 IPC, and has thus committed manifest illegality of law and fact in convicting him. 13. He has vehemently asserted that the learned trial Judge has acquitted co-accused Chhotu, Badri and Ratna dis-believing the prosecution evidence but, on the self-same evidence he has found appellant Kishna guilty for the offence u/ss. 302 and 201 IPC, and has thus committed manifest illegality of law and fact in convicting him. 13. On the other hand, Shri M.L. Goyal, the learned Public Prosecutor has asserted that there is no material in consistency in the statements of PW 7 Sheoram and PW 8 Ramdeo, who have categorically deposed that appellant Kishna, who had hurled abuses and threatened them, that they and appellant Kishna reside in the same village and that they knew each other previously and as such, they had identified him by his voice. Shri Goyal has supported the impugned judgment and reiterated the reasonings given by the learned trial Judge. 14. We have bestowed our most anxious consideration to the rival submissions. The whole case rests on the statements of alleged eye-witnesses PW 7 Sheoram and PW 8 Ramdeo. These witnesses have clearly admitted that on the ill-fated evening, when they proceeded from the town of Kekri to their village Rajpura it had already grown dark, that deceased-Ghasi had also accompanied them, and that when they reached near the place of occurrence on the kachha path way deceased Ghasi was coming behind them on an another bicycle. Sheoram stated that at that time the deceased was at a distance of about 4-5 spaces behind them. On the other hand according to PW 8 Ramdeo this distance was about 10 spaces. Sheoram deposed that four persons had come out from the "Ker" bush, that appellant Kishna had hurled abuses and inflicted a lathi blow on the head of Ghasi, that he had heard the sound of that lathi blow, that thereupon Ghasi fell down from his cycle, that he along with Ramdeo also got down from their bicycle and came near him, that at that time Ghasi was gasping and had become unconscious, and could not speak that blood was oozing out from his head, and that thereupon Ramdeo had wrapped Ghasis turban on his head. He deposed that at that time co-accused Badri, Chhotu, Ratna and appellant Kishna hurled abuses, threatened them and shouted that they would also be finished and that thereupon they ran away towards village-Duhari. He deposed that at that time co-accused Badri, Chhotu, Ratna and appellant Kishna hurled abuses, threatened them and shouted that they would also be finished and that thereupon they ran away towards village-Duhari. He further stated that all the four assailants were armed with lathies. However, in his cross-examination he specifically admitted that he had last seen the appellant in the village about a month prior to the said incident and that he had met co-accused Badri, Ratna and Chhotu in Kekri on the date of the alleged incident, but, did not have any conversation with them. He told that the place of incident was at a distance of about 1-11/4 kos (about 3.5 Kms.) from Kekri bus stand. He deposed that he had also identified co-accused Ratna, Chhotu and Badri by their voices, but, admitted that their voices are almost similar and those resemble with the voice of their fourth brother Amra. He specifically admitted that at the time of the incident he did not have any conversation with appellant Kishna, who was also hurling abuses and that he even did not ask him as to why he had inflicted the injury to Ghasiram. He further admitted that all the four assailants were hurling abuses collectively. It may be pointed out that in FIR Ex.P 12, it has been mentioned that Sheoram and Ramdeo had asked the assailants, who had struck lathi blow on the head of Ghasi to disclose their identity, that Sheo Ram and Ram Dev had identified appellant Kishna by his voice, who had hurled abuses and threatened them to run away art that thereafter other assailants had also threatened and asked them to run away. But, during trial Sheoram has abandoned his initial story detailed in FIR Ex.P 12 and clearly admitted that all the four assailants had simultaneously shouted hurled abuses and collectively threatened them and not individually. 15. PW 8 Ramdeo deposed that he was driving the cycle, while Sheoram was sitting on the pillion seat, that deceased Ghasi was coming behind them on another cycle, that he was at a distance of about ten spaces from them, that it was a dark night, that when they reached the place of occurrence, the appellant abused and told the deceased, "Ghana din ho gaya", and that at the same moment of time he also heard the sound of a lathi blow. He further deposed that he alongwith Sheoram got down from the cycle, turned back and reached neat Ghasi, who was lying injured and unconscious. Ramdeo stated that thereafter sheoram chased towards the appellant. But, Sheoram has not stated likewise. Ramdeo further stated that since blood was oozing out from the head of Ghasi, he wrapped Ghasis turban on his head and that by that time, Sheoram returned after chasing the assailants and informed him that those assailants were 4-5 in number and advised him to run away and that thereupon they went to village Duhari on two bicycles. Ramdeo admitted that appellant did not meet him on that day in Kekri and that appellant Kishna and Sheoram also did not have any exchange of words in his presence. He also admitted that appellant was working as a truck driver and that he used to stay in the village for short periods only and that he did not know as to whether any other person had a voice similar to that of appellant Kishna. This witness has also failed to give any explanation as to why in his police statement Ex.D. 2 and the statement recorded u/s. 164 Cr.PC Ex.D. 3 he did not mention that the appellant had also hurled abuses while giving a lathi blow to the deceased. Apparently, Ramdeo has unsuccessfully tried to improve his earlier version and invented a new story to the effect that the appellant while inflicting lathi blow to the deceased had also hurled abuses. Hence, the statements of PW 7 Sheoram and PW 8 Ramdeo are replete with material and substantial contradictions and improvements. They have deposed that all the four assailants had collectively shouted, hurled abuses and threatened them. These witnesses have not pointed out any peculiarity or characteristic of the voice of appellant Kishna. According to them, they had neither seen the appellant nor, had any conversation with him on the day of incident and that they had last seen him about a month ago. PW 27 Ram Singh, SHO, Police Station, Sarwar, has admitted that he did not get the identification Parade of the appellant conducted on the basis of his voice. According to them, they had neither seen the appellant nor, had any conversation with him on the day of incident and that they had last seen him about a month ago. PW 27 Ram Singh, SHO, Police Station, Sarwar, has admitted that he did not get the identification Parade of the appellant conducted on the basis of his voice. In such circumstances, in our considered opinion, it was not at all possible for Sheoram and Ramdeo to have identified appellant Kishna on the basis of his voice especially when it was a dark night and when all the four assailants were allegedly shouting and hurling abuses together. To identify or recognise a person in a dark night merely by modulation of his voice that too along with three other assailants is definitely a difficult affair and such an evidence is positively a very weak type of evidence. Therefore, it is neither safe nor prudent to rely on such type of identification of a person by voice, because one is always liable to make a mistake. 16. In Nag Aung Khin v. Emperor (AIR 1937 Rangoon 407) and in Jamser Ali v. The State of Tripura (AIR 1954 Tripura 11) it has been held that it is not safe to rely on the identification of a person by his voice alone and that such an experiment becomes risky when a culprit is allegedly identified in a pitch dark night. 17. 17. In Kirpal Singh v. State of Uttar Pradesh ( AIR 1965 SC 712 ) it has been observed that 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 some what risky in a criminal trial, but where the accused is intimately known to the witness and for more than a fortnight before the date of the offence he had met the accused on several occasions in connection with the dispute, it cannot be said that identification of the assailant by such witnesses from what he had heard and observed, was so improbable that the Supreme Court would be justified in disagreeing with the opinion of the trial Court, which had seen the witness and formed its opinion as to his credibility and of the High Court which considered the evidence of such witness against the appellant and accepted his testimony. However, such are not the acts of the instant case. Here, the appellant was working as a driver/khalasi on a truck. He used to stay in the village for a short period. He even did not meet or had any conversation with PW 7 Sheo Ram and PW 8 Ramdeo on the day of the alleged incident. On the other hand, he was last seen by these witnesses about a month ago. These witnesses have also not disclosed the exact words allegedly uttered by the appellant. The appellant along with three other assailants is alleged to have collectively shouted, hurled abuses and threatened Sheoram and Ram Dev. Therefore, in such circumstances, it can not be conclusively held that these witnesses had identified the appellant simply by recognising his voice. The facts of Kirpal Singh's case (supra) are thus clearly distinguishable. 18. In Joseph v. State of Kerala (1964 (1) Cri. L.J. 493) its has been reiterated that identification by voice is a risky thing and a person cannot be deprived of his life by relying on such an unsafe test. 19. It is true that there is no inflexible rule that in no case can the evidence of a witness, who has identified the assailant through his voice, may form the basis of conviction. 19. It is true that there is no inflexible rule that in no case can the evidence of a witness, who has identified the assailant through his voice, may form the basis of conviction. But, the question whether such evidence is safe to support the conviction depends upon the facts of each case and on a multitude of factors. If the prosecution evidence is acceptable and trust-worthy regarding the identification of a person by voice and the same is corroborated by other independent evidences then it may from the basis of conviction. But, when the prosecution evidence it vague, inconsistent, contradictory, incomplete and unreliable and not corroborated by any other circumstantial evidence then positively on such lame and lifeless evidence, a person cannot be convicted on the basis of identification by voice. In this case the prosecution evidence is insufficient, in-consistent and unworthy of credence. Therefore, in our considered opinion, the learned trial Judge has not correctly scanned, examined and assessed the evidence and committed an illegality of fact as well as of law in holding that the appellant was the author of the fatal injury sustained by Ghasiram. 20. Even if it is assumed for arguments sake, that appellant Kishna was identified by Sheoram and Ramdeo by his voice but still then since it was a dark night and there were as may as four assailants, who were armed with lathis. PW7 Sheo Ram & PW 8 Ramdeo were proceeding towards their village Rajpura on a bicycle while deceased Ghasi was following them at a distance of about 5 to 10 space, therefore, in such circumstances, it was practically impossible for these witnesses to have seen or ascertained as to who of those assailants had inflicted the lathi blow on the head of the deceased-Ghasi. Hence the statements of these witnesses to the effect that appellant-Kishna had inflicted the said fatal blow to the deceased cannot be believed. 21. Beside this, as per testimony of Sheoram and Ramdeo only one lathi blow was dealt on the head of deceased Ghasiram. But, as per statement of PW 17 Dr. Nand Kishore, He had found a lacerated wound 3.5" x 1" x brain deep on the right parietal region and a reddish bruise 4" x 1" on the left parietal region of the deceased. The doctor has deposed that sensations of broken bone pieces were felt on the injured portions. But, as per statement of PW 17 Dr. Nand Kishore, He had found a lacerated wound 3.5" x 1" x brain deep on the right parietal region and a reddish bruise 4" x 1" on the left parietal region of the deceased. The doctor has deposed that sensations of broken bone pieces were felt on the injured portions. He has specifically stated that the skull fracture was the result of aforementioned both injuries and that the major portion was contributed by the lacerated wound. The doctor has also emphatically stated that, both the said head injuries could not have been caused by one stroke. Thus there is material variance between the ocular testimony and the medical evidence. The learned Sessions Judge has conveniently ignored this material aspect of the matter and acquitted co-accused Chhotu, Badri and Ratna but on the self-same evidence has held that the author of the fatal injury was appellant kishna. In our considered opinion, this approach of the learned trial Judge in appreciating the evidence is patently perverse and against the record, which can not be sustained. 22. There is not a fringe of evidence to establish that the appellant in order to destroy the evidence of the crime had lifted injured Ghasiram in a truck and thrown him away at a distance of about 6 Km. from the place of occurrence on the Kekri-Deoli road from where he was found by PW 25 Kishan Lal. As mentioned earlier the prosecution did not care to tender in evidence the FSL Report. Beside this no human blood was found on the driver window and the plank of the truck and the tarpaulin, which were seized by the Investigation Officer. The blood-group on the blood stains found on the lathis alleged to have been got recovered at the instance of the appellant, could not be determined due to dis-integration. In such circumstances, the alleged recovery of the said articles is also meaningless and the same does not connect the appellant with the crime. 23. As per prosecution story, PW 7 Sheoram and PW 8 Ramdeo had informed Ranjit Singh about the alleged incident. According to Sheoram, when they informed Ranjit Singh, Ramnath Kumhar and Dhanna Gurjar were also sitting there. But the prosecution has not cared to examine Ramnath & Dhanna. 23. As per prosecution story, PW 7 Sheoram and PW 8 Ramdeo had informed Ranjit Singh about the alleged incident. According to Sheoram, when they informed Ranjit Singh, Ramnath Kumhar and Dhanna Gurjar were also sitting there. But the prosecution has not cared to examine Ramnath & Dhanna. PW 4 Ranjit Singh has clearly deposed that Sheoram did not inform him that he had identified that assailant, who had inflicted the injury to Ghasi Ram and that there were 2-4 assailants and that Sheoram did not disclose their names. Thus, Ranjit Singh has not corroborated the statements of Sheoram and Ramdeo. Non-production of Ramnath Kumar and Dhanna Gurjar by the prosecution also raises an aberse inference. Thus, the learned trial Judge has also committed an error in holding that the statements of Sheoram and Ramdeo find due corroboration from the testimony of prosecution witnesses regarding the implication of the appellant. 24. The motive for the crime has also not been established by the prosecution against the appellant. 25. Hence for the reasons mentioned above, the prosecution has miserably failed to successfully bring home any offence beyond reasonable doubt against the appellant-Kishna and, therefore, his conviction and sentence can not be sustained. 26. In the result, this appeal succeeds and the conviction and sentence of the appellant-Kishna are hereby set-aside and he is acquitted of the offences u/ss. 302 and 201 IPC. The appellant is on bail. His bail bonds are hereby discharged.Appeal allowed. *******