JUDGMENT Kuldip Chand Sood, J.—This appeal of the appellant Rai Singh (accused for short) is directed against his conviction recorded by the learned Sessions Judge, Kangra at Dharamshala in Sessions Trial No. 11 of 1996 for an offence punishable under Section 376 of the Indian Penal Code vide his judgment dated August 23, 1996. The accused has been sentenced to suffer rigorous imprisonment for four years and to pay a fine of rupees 2,000. In case of default in the payment of fine, the accused is to suffer further rigorous imprisonment for one year. Prosecution case 2. On August 4, 1994, Rai Singh accused alongwith Dhani Ram, Prem Chand, Badri Nath and Bishan Chand formed an unlawful assembly and at about 9.30 p.m./tress passed into the house of Sali Ram in village Sapera of Tehsil JKhundian in District Kangra after having muffled their faces. The lights of the house were switched off. Sali Ram was given beatings. Neelam Kumari, maternal granddaughter of Sali Ram was sexually assaulted and subjected to rape and attempt was also made to commit rape on Chanchala Devi, daughter of Sali Ram. On the next day, Chanchala Devi and Neelam Kumari came to Dharamshala where report about the incident was lodged with the Superintendent of Police, Kangra at Dharamshala. This report forms basis of the formal FIR Ext. PW5/A, recorded with Police Station, Jawalamukhi for offences punishable under Sections 354, 509, 376, 450 and 506 of the Indian Penal Code. 3. The investigation of the case was entrusted to A.S.I. Jodha Mull (PW 14). Both Neelam Kumari (PW 5) and Chanchala Devi (PW 4) were medically examined. All the persons named above, including the accused, were tried by the learned Sessions Judge for offences punishable under Sections 147, 450 read with Section 149 of the Indian Penal Code. In addition, accused Bishan Dass was charged for offences punishable under Sections 325 and 376 of the Indian Penal Code, accused Badri Nath was charged for offences punish ble under Sections 354 and 376 read with Section 11 of the Indian Penal Code, accused Dhani Ram was charged for offences punishable under Sections 354 and 323 of the Indian Penal Code, accused Prem Chand for offences punishable under Sections 354 and 323 of the Indian Penal Code and accused-appellant Rai Singh for an offence punishable under Section 376 of the Indian Penal Code. 4. 4. Learned Sessions Judge by his impugned judgment, acquitted all the accused except Rai Singh on the ground that identity of the accused, who are acquitted, at the place of occurrence is not established. 5. It may be noticed at the out set that State has not filed any appeal against the acquittal of Dhani Ram, Prem Chand, Badri Nath and Bishan Chand. 6. I have heard Ms. Rama Mehta, learned Counsel for the appellant and Mr. B.B. Sharma, learned Additional Public Prosecutor and Assistant Advocate General. I have also been taken through the evidence and record by the learned Counsel. 7. The conviction of the appellant is assailed on the ground that identity of the accused-appellant at the place of occurrence too is not established. Ms. Rama Mehta contends that accused has been convicted on the basis of voice identification. This identification submits Ms. Mehta is open to doubt and therefore cannot form basis for the conviction of the accused in the facts and circumstances of this case. 8. There is no scope of dispute that Kumari Neelam was subjected to sexual inter-course on the late evening of August 4, 1994. Dr. Rita Pathania (PW 6), a Medical Officer of Zonal Hospital, Dharamshala, medically examined Kumari Neelam on August 6, 1994. She found the following injuries on the person of Kumari Neelam : 1. A circular area of ecchymosis of 3.5 cm. diameter, reddish blue in colour. More marked at the periphery and feding towards the center, situated on left side of face near the left angle of mouth. 2. A similar area of bluish ecchymosis lighter than No. 1, situated on the same place but on the right side. 3. Area of irregular ecchymosis of reddish blue in colour. Tenderness present on the left upper arm. 4. An abrasion on right elbow and left elbow and an irregular abrasion on left knee. 9. The fact that external genitalia of Kumari Neelam were found to be red, swollen and tender to touch, Hymen was found lacerated, red and swollen and bled on touch, the further fact that vagina admitted one finger with difficulty, formed basis for opinion by Dr. Rita Pathania that Kumari Neelam was subjected to forcible sexual inter-course. 9. The fact that external genitalia of Kumari Neelam were found to be red, swollen and tender to touch, Hymen was found lacerated, red and swollen and bled on touch, the further fact that vagina admitted one finger with difficulty, formed basis for opinion by Dr. Rita Pathania that Kumari Neelam was subjected to forcible sexual inter-course. There is nothing material in the cross-examination of this witness except that clothes after the incident were washed by Kumari Neelam and labia majora could be injured by the foreign substance. This evidence of Kumari Neelam as supported by Dr. Pathania leaves no doubt that Kumari Neelam was subjected to forcible sexual inter-course by one of the persons who entered their house. 10. The evidence of Sali Ram (PW 7) and Chanchala Devi (PW 4) has been rejected by the learned Sessions Judge so far identity of the persons who entered the house is concerned. Therefore, this evidence which has been rejected against the other co-accused cannot be read against the appellant-accused. 11. Learned Sessions Judge noticed that in the earliest version given by Kumari Neelam in terms of Ext. PW5/A, a complaint addressed to the Superintendent of Police, forming basis of the FIR Ext. PW 11/A, only two persons, namely, the accused and one Bishan are named. She categorically states in her complaint that as all the persons had muffled their faces, therefore, she could not identify any person except Raju whom she identified from his voice. She also records in her complaint that an attempt was also made to commit rape on Chanchala Devi. Now this version has been disbelieved by the learned Sessions Judge, who found that Chanchala Devi was not subjected to any sexual inter-course, yet in her evidence she claimed to have been sexually molested. The statement was found to be totally in contradiction to the version given in the complaint lodged with the Police by Kumari Neelam in the presence of Chanchala Devi. Learned Sessions Judge found that Chanchala Devi in her evidence complained that she was subjected to forcible inter-course by Bishan Chand but presence of Bishan Chand was ruled out by her father Sali Ram (PW 7) himself. The rape on Chanchala Devi was also negatived by Dr. Neelam Mehta (PW 1) who medically examined her. Learned Sessions Judge found that Chanchala Devi in her evidence complained that she was subjected to forcible inter-course by Bishan Chand but presence of Bishan Chand was ruled out by her father Sali Ram (PW 7) himself. The rape on Chanchala Devi was also negatived by Dr. Neelam Mehta (PW 1) who medically examined her. Learned Sessions Judge concluded that all the accused had muffled their faces, therefore, it was not possible to identify any one of them, more so, when there was no light. It is in these circumstances, the learned Sessions Judge concluded that presence of accused Bishan Chand, Badri Nath, Dhani Ram and Prem Chand is not proved at the place of occurrence. Learned Sessions Judge, however, on the basis of the evidence of Neelam Kumari (PW 5), that she identified Rai Singh appellant from his voice, concluded that it was Rai Singh who committed sexual assault on Kumari Neelam. 12. It is admitted position and not disputed before me that all the persons who entered the house of Sali Ram had muffled their faces. It is also not in dispute that Sali Ram had a problem with his eye sight and, therefore, could not have recognised the accused, particularly when they had muffled their faces. It is the case of the prosecution that immediately after entering the house, one of the persons switched off the light by taking out the fuse. It is in evidence of Chanchala Devi that it was dark night and, therefore, it was almost impossible to identify the persons who entered the house with muffled faces. Kumari Neelam in her complaint to the Superintendent of Police (Ext. PW5/A), which is the earliest version, unambiguously states that she was lying on a cot at about 9.30 p.m., when the electricity went off and her maternal grand-father cried that he has been beaten. Chanchala Devi went out. She also got up from the cot and started going out when one person named Raju picked her up, brought her out. There were two other persons with him. All the persons, including Raju, had muffled their faces. Raju threatened that if she raised alarm, she would be killed. She wTas brought out of the house. The string of her salwar was broken forcibly. She was made to lie down and subjected to sexual inter-course by Raju. The other two persons also gave bites on her cheeks. All the persons, including Raju, had muffled their faces. Raju threatened that if she raised alarm, she would be killed. She wTas brought out of the house. The string of her salwar was broken forcibly. She was made to lie down and subjected to sexual inter-course by Raju. The other two persons also gave bites on her cheeks. In the meanwhile, her masi Chanchala Devi came and on her raising alarm, all of them fled away. It is her evidence that she identified the accused Raju nay Rai Singh from his voice alone. 13. It is to be noticed that complaint Ext. PW 5/A was prepared by Kumari Neelam in consultation with Chanchala Devi who had accompanied Neelam to the Superintendent of Police. It is the evidence of Kumari Neelam that she scribed the report at the instance/dictation of one police official who was sitting outside the office of the Superintendent of Police. She states, "application Ex. PW 5/A was drafted at the instance of the police official who was sitting outside the office of the S.P. One application was written by me at our house. Ext. PW5/A was written while sitting in the office of the S.P. PW Chanchala Devi had also narrated the incident to me which was happened with her before writing the application........" 14. Now had Chanchala Devi been subjected to any. rape, it would have been mentioned in this complaint. It is evident from this complaint that neither Sali Ram nor Chanchala Devi nor Kumari Neelam identified any of the persons who entered their house. Neelam indeed claims to have identified the accused-appellant on the basis of his voice. Evidence of Kumari Neelarn has to be examined in the light of the fact that three of the accused are their relatives with whom they are not on cordial terms and relations between them are admittedly inimical. Therefore, implication of the accused including the appellant, on suspicion cannot be entirely ruled out. 15. This apart, voice identification is inherently a weak type f or evidence and an accused, in my view, can only be convicted on the identification of voice if other evidence on record lend assurance to such identification. Now there is no dispute that the accused was not intimately known to Kumari Neelam. 15. This apart, voice identification is inherently a weak type f or evidence and an accused, in my view, can only be convicted on the identification of voice if other evidence on record lend assurance to such identification. Now there is no dispute that the accused was not intimately known to Kumari Neelam. It is the evidence of Kumari Neelam that she had seen the accused only twice before this occurrence that too when he used to come to supervise the laying of water pipes outside the house of her maternal grand-father. It is the evidence of Sali Ram (PW 7) that Rai Singh and Bishan Chand had come to his house about "four months" prior to the incident. Kumari Neelam came to the house of her maternal grand-father Sali Ram six days prior to incident that too after about one year from her earlier visit to his house. It can also be relied upon if the witness is familiar with the voice of the accused. In the words of Sali Ram", Rai Singh and Bishan Chand had come to our house in order to see the pipes four months prior to the incident. Neelam had come to my house about six days prior to the incident. Neelam had come to my house after about one year prior to the date of occurrence.” 16. It, thus, is apparent that Neelam Kumari, even if her statement is taken at its face value, had seen Rai Singh one year prior to the incident and not thereafter. In the circumstances, it cannot be said that she was familiar with the voice of Rai Singh. 17. A Division Bench of Patna High Court in Narain Baraik v. State, 1972 Cri LJ 177, relying upon Nga Aung Khin v. Emperor, AIR 1937 Rangoon 407, observed that it is not safe to rely on the identification of an accused by voice as such identification is of a very weak type of evidence. A Single Judge of Madhya Pradesh High Court in Abdul Haqua Ali and another v. State of M.P., 1983 Cri LJ NOC 122, held that in case of admitted enmity between the parties, conviction of the accused on the basis of identification of voice is unsustainable. 18. Reference may also be made to Nathu Singh and another v. State of Bihar, 1985(2) Crimes. 18. Reference may also be made to Nathu Singh and another v. State of Bihar, 1985(2) Crimes. In that case, the accused were identified in the light of lantern but on examination of evidence it was found that dacoits were at different places and, therefore, single burning lantern was not sufficient for the witnesses to identify the dacoits at different places. Identification by voice, it was held was not acceptable. The accused were given benefit of doubt and acquitted. 19. In Shyamdeo Singh and etc. v. State of Bihar, 1988 (2) Crimes 351, witnesses claimed to have identified the culprits by voice. There was no evidence that witness had any occasion earlier to talk with the culprits or to hear their voice making it possible for the witness to identify either of them by voice. In these circumstances, the identification of voice was rejected. 20. In Josephv. State of Kerala, 1964 (1) Cri LJ 493, a Division Bench of Kerala High Court observed thus : "(10). In any view identification by voice is a risky thing and I am not prepared to deprive a person of his life relying on such an unsafe test. The following observations made by M.K.A. Khan in his book on the law of Identification may be noted with benefit (Vide 2nd Edition page 16—Chapter on Identification by Speech and voice): "Some persons have got peculiarities of speech, such as stammering, stuttering, lisping, or speaking with a nasal tone, and such a voice can easily be detected. But there are others whose normal way of taking is either affected by some disease or is altered on account of the absence of teeth, or the use of false teeth and, in such a case, there is the likelihood of mistake. In the case of persons well known to us, identification by voice is an every day affair, hut this much is also a matter of experience that people can speak in an affected tone and also change their accent to suit the occasion, and there is nothing to prevent a culprit from doing so when committing an offence at night in known quarters."(Emphasis supplied) 21. Mr. Mr. B.B. Sharma, learned Additional Public Prosecutor, to be fair to him, relying upon Kedar Singh and others v. State of Bihar, AIR 1999 Supreme Court 1481, contended that identification of a culprit can be made by a shape of body, gait, manner of. walking or even by voice. In Kedar Singh (supra) it was contended that in a dark night, with light of single electric bulb of high power was not enough to identify the assailants. Kedar Singh is distinguishable on facts. In that case the assailant was identified by the witnesses in the light of high powered bulb. It is in this context that Their Lordships observed: "There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc. etc. Identification possible by voice too. That apart, we have the positive evidence that the temple light was on with the aid of which PW 2 claims to have identified the assailants." (Emphasis supplied) 22. In the present case, it is not the case of the prosecution that Kumari Neelam identified the appellant by his gait or shape of his body. She could not have because she had only seen him twice that too one year prior to the occurrence. She could not, as already pointed out, have been familiar with the voice of the appellant. 23. Reference may also be made to Kirpal Singh v. State of Uttar Pradesh, AIR 1965 Supreme Court 712. In that case, the witness saw the assailants running away and he recognised them by their "gait and voice". The witness Rakha Singh in that case was father-in-law of the accused and had during the last few days seen the assailant frequently. Even, few days prior to the incident, there was a quarrel between the assailant and one Karam" Singh about delivery of sugarcane crop and on the intervention of witness Rakha Singh, assailant and his brother retired from the scene. In this view of the evidence, Their Lordships observed: "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 recognizing is not familiar with the person recognised may be somewhat risky in a criminal trial. In this view of the evidence, Their Lordships observed: "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 recognizing is not familiar with the person recognised may be somewhat risky in a criminal trial. But the appellant was intimately known to Rakha Singh 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 sugarcane crop. Rakha Singh had heard the appellant and his brothers calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the shooting referring to the dispute about sugarcane." 24. In the present case, as already noticed, Kumari Neelam had not known the accused least intimately. .She had occasion to see him only twice that too one year prior to the incident. There is no evidence that on earlier occasion, she had any conversation with the appellant. Therefore, voice identification of the accused by Kumari Neelam alone is not sufficient to establish the identity of the accused as culprit. 25. At the most evidence of Kumari Neelam raises suspicion against the accused, but suspicion is no substitute for proof. 26. Learned Sessions Judge fell in error in convicting the accused on the basis of voice identification by Neelam Kumari in the absence of any other corroborative evidence, moreso, when relations between the accused and the complainant were found to be inimical and the other accused have been acquitted by the trial Court. 27. The inevitable conclusion is that accused is entitled to the benefit of doubt. His conviction on the basis of voice identification is not sustainable in the facts and circumstances of this case. 28. In result, the appeal is accepted, judgment of the trial Court convicting the accused is set aside. The accused stands acquitted. His bail bonds are discharged. Fine, if realized, shall be refunded back to him. Appeal allowed.