JUDGMENT L. MOHAPATRA, J. — The above three appeals are directed against the judgment and order of the learned Ad hoc Additional Sessions Judge, Athagarh in S.T. Case No.287 of 2004. All the appellants stood trial for commission of offence under Section 302/34 of the Indian Penal Code (in short ‘I.P.C.’) on the charge that they in furtherance of their common intention committed murder of one Golakha Pradhan. All the appellants also faced trial for committing offence under Section 323/34 I.P.C. on the allegation of causing voluntary hurt to Subasini Pradhan, P.W.6, Akhaya Pradhan, P.W.9 and Ajaya Pradhan, P.W.10. The trial Court in the impugned judgment found all the appellants guilty of charges under Section 302/323/34 of the I.P.C. and sentenced each one of them to suffer imprisonment for life for offence committed under Section 302 of the I.P.C. and further to suffer imprisonment for six months for their conviction under Section 323 of the I.P.C. Hence these appeals filed by the six appel¬lants. 2. The case of the prosecution is that on 14.9.2003 at about 9.30 P.M. while P.W.9 (informant and son of the deceased) along with the deceased were returning home from Nuapatna Bazar, appellant Sanjay Rout and Chhota @ Prakash Pradhan who were also returning from the market ahead of them, suddenly challenged the deceased in front of the house of appellants Sanjay Rout and the informant protested. In view of such protest by the informant, appellant Chhota and Sanjay caught hold of him and assaulted by slaps, kicks and fist blows. When the deceased intervened, there was hot exchange of words between them and hearing the hullah the other four appellants namely Satyabadi, Bijaya, Bipin and Jitu being armed with iron rod, lathi, wooden Gaja and wooden Dhada came out from their respective houses and surrounded the inform¬ant and the deceased. Appellant Sanjay dealt a blow on the head of the informant by means of a lathi as a result of which he fell down sustaining bleeding injury on his head. Apprehending danger to life when the deceased tried to escape, all the appellants chased him and assaulted in front of the house of Kulamani Jena by means of weapons they were carrying. As a result of such as¬sault, the deceased fell down and shouted for water. Apprehending danger to life when the deceased tried to escape, all the appellants chased him and assaulted in front of the house of Kulamani Jena by means of weapons they were carrying. As a result of such as¬sault, the deceased fell down and shouted for water. P.W.6, the wife of the deceased and P.W.10 the other son of the deceased hearing the hullah came running near the deceased but they were also assaulted by the appellants. P.W.6 shouted for water and by the time wife of Kulamani Jena gave water to the deceased, he had already died. Soon after the incident, P.W.15 came to the spot and shifted the informant to Bindhanima hospital, got him treated and returned to the spot. On the same date at about 0.45 A.M., the O.I.C., Tigiria P.S., P.W.20 along with his staff were on patrol¬ling duty at Nuapatna Bazar and received information about the incident. They rushed the village of occurrence at about 1.00 A.M. in the night and found the dead body of the deceased lying in front of the house of Kulamani Jena. At the spot P.W.20 re¬ceived the written report from P.W.9 having been scribed by P.W.15 and treated the same as F.I.R. Thereafter investigation was taken up and charge-sheet was submitted for commission of offences as stated earlier. The injured persons were treated on police requisition. 3. The prosecution in order to prove the charges examined as many as 21 witnesses and one witness was examined on behalf of the defence. The witness examined on behalf of the defence is appellant Satyabadi Rout himself. Out of 21 witnesses examined on behalf of the prosecution, P.W.9 is the son of the deceased who had lodged the information and had accompanied the deceased from the market. P.W.6 is the widow of the deceased and P.W.10 is the other son of the deceased who rushed to the spot after hearing hullah and were also assaulted. All the three witnesses were examined as eye-witnesses to the occurrence. P.Ws.1 and 2 were also examined as eye-witnesses to the occurrence but they turned hostile. P.Ws.3 and 5 are post occurrence witnesses and P.W.4 is the Amin who prepared the spot map. P.Ws.7 and 8 are the witness¬es to seizure and P.W.12 is a witness to inquest and seizure. P.Ws.13 and 14 are Constables who are also witnesses to seizure. P.Ws.1 and 2 were also examined as eye-witnesses to the occurrence but they turned hostile. P.Ws.3 and 5 are post occurrence witnesses and P.W.4 is the Amin who prepared the spot map. P.Ws.7 and 8 are the witness¬es to seizure and P.W.12 is a witness to inquest and seizure. P.Ws.13 and 14 are Constables who are also witnesses to seizure. P.W.15 is the local Sarpanch who scribed the F.I.R. and is also a witness to the inquest. P.Ws.16 and 17 are the two Doctors who medically examined accused Satyabadi and Prakash. P.W.18 is the Doctor who conducted the postmortem examination. P.W.19 is the District Scientific Officer and P.W.20 is the I.O. P.W.21 is the Doctor who had examined the injured witnesses. The trial Court on the basis of the evidence of P.Ws.6, 9 and 10 coupled with the evi¬dence of P.Ws.18 and 21 found all the appellants guilty of the charges and convicted them thereunder. 4. The learned counsel appearing for the appellants chal¬lenged the impugned judgment on the ground that P.Ws.9 and 10 who are sons of the deceased turned hostile in course of their examination and did not support the case of the prosecution. P.W.6, the widow of the deceased claims to be the only eye-witness to the occurrence but she has admitted in her deposition that due to darkness it was not possible to identify the persons. According to the learned counsel for the appellants, it is admitted by the prosecution witnesses that the night of occurrence was a dark night and there was no sources of light so as to identify the assailants. P.Ws.9 and 10 clearly admitted in their evidences that they were not in a position to identify the assailants. P.W.6 though claimed to have seen the appellants assaulting the deceased, in cross-examination admitted that it was a dark night and therefore, it was not possible to identify anyone. In view of such nature of evidence, it was further contended by the learned counsel for the appellants that no reliance can be placed on anyone of the three witnesses so far as identification of the appellants is concerned. In view of such nature of evidence, it was further contended by the learned counsel for the appellants that no reliance can be placed on anyone of the three witnesses so far as identification of the appellants is concerned. According to the learned counsel due to darkness these witnesses could not have seen anyone of the appellants assaulting the deceased and therefore, if evidence of these three witnesses is not acted upon, there is not other evidence on the basis of which the appellants can be convicted for the alleged offences. Learned counsel for the State referring to the evidence of P.Ws. 6, 9 and 10 submitted that the assault on the deceased and all the three injured is not in dispute. All the three witnesses have specifically stated that the deceased was assaulted and succumbed to the injuries he received in course of such assault and all the three of them also were assaulted and sustained injuries. The only question is with regard to identification of the assailants. According to the learned counsel for the State though P.Ws.9 and 10 could not identify the assailants, P.W.6 has specifically claimed to have seen the assault and it is clear from the evidence of P.W.6 that all the appellants participated for assaulting the deceased by means of weapons they were holding and the injuries caused in course of such assault were of such nature that the deceased succumbed to the said injuries on the spot. The evidence of P.W.6 also gets corrobora¬tion from the evidence of P.W.18 who conducted the postmortem examination who found several injuries on the dead body of the deceased. 5. Though 21 witnesses have been examined on behalf of the prosecution, P.Ws.1 and 2 projected as eye-witnesses to the occurrence turned hostile. P.W.3 also turned hostile. The prose¬cution relies upon the evidence of P.Ws.6, 9, 10, 18 and 21. It is, therefore, necessary to analyse the evidence of these witnesses in order to come to a conclusion as to whether the appellants are guilty of the charges or not. P.W.9 is the inform¬ant and the son of the deceased who was accompanying the deceased from the market. He in his deposition has stated that at about 9.30 P.M. on 14 of September, 2003, he along with the deceased were returning from the market. P.W.9 is the inform¬ant and the son of the deceased who was accompanying the deceased from the market. He in his deposition has stated that at about 9.30 P.M. on 14 of September, 2003, he along with the deceased were returning from the market. In front of the house of appel¬lant Satyabadi four persons all on a sudden assaulted him and his father by means of lathi. Due to assault he fell down and his father also fell down. His mother (P.W.6) rushed at the spot along with his younger brother P.W.10. Due to assault his father died at the spot. The Sarpanch P.W.15 reached the spot and took him to hospital as he had sustained bleeding injury on his head. After getting first aid he returned to the village and on his instruction P.W.15 scribed the F.I.R. which was handed over to the police. He also stated in the examination in chief that due to assault he fell down on the ground and could not be able to see the culprits. At this stage he was declared hostile and was cross-examined by the prosecution. Similarly P.W.10 the other son of the deceased has stated that at about 9 to 9.30 P.M. hearing the voice of his father and brother, he and his mother P.W.6 rushed to a place near the house of Seba Jena P.W.3. He found 4 to 5 persons assaulting his father and brother by means of then¬ga, rod and katuri. When he and P.W.6 tried to save the deceased, they were also assaulted. He further stated that as the accused persons fled away immediately after the assault he could not recognize them and it was also dark. In view of such statement, this witness was also declared hostile and was cross-examined by the prosecution. P.W.6 on whom much reliance has been placed by the learned counsel for the State stated that at about 9 P.M. when she was in her house, she heard the voice of P.W.9 from the Sahi of the accused persons and thereafter she and P.W.10 rushed to the place. P.W.6 on whom much reliance has been placed by the learned counsel for the State stated that at about 9 P.M. when she was in her house, she heard the voice of P.W.9 from the Sahi of the accused persons and thereafter she and P.W.10 rushed to the place. She found P.W.9 with bleeding injury on his head and also saw the accused persons chasing the deceased being armed with lathi, katuri and iron rod and she has further stated that appellant Sanjay assaulted the deceased on his head by means of a thenga as a result of which the deceased fell down. When she and P.W.10 tried to rescue him, they were also assaulted. She has further stated that all the accused persons assaulted the deceased and in spite of the request of P.Ws.1 and 3 not to assault the deceased, all the accused persons continued to assault the deceased as a result of which the deceased sustained injuries and ultimately succumbed to the injuries. In cross-examination on recall she stated that at the time of occurrence it was dark and it was not possible to identify any person. Relying on this statement of P.W.6 it was contended by the learned counsel for the appellants’ that she could not have seen the occurrence in such darkness as claimed by her. In order to come to a conclusion as to whether P.W.6 could have seen the occur¬rence or not reference may be made to the evidence of P.Ws.1 to 3 who have stated in cross-examination that near the house of Kulamani Jena where the occurrence is alleged to have taken place, there was no electric post or light. P.W.3 further stated that it was a dark night and there was no light facility in the surrounding. The evidence of P.Ws.1, 2 and 3 in this regard also gets corroboration from the evidence of P.W.6 and evidence of P.W.10. P.W.6 has stated that it was a dark night and it was not possible to identify any person and P.W.10 has also stated that he could not recognize the assailants as it was dark. The evidence in this regard and other materials create a doubt with regard to the claim of P.W.6 to have seen the appellants assault¬ing the deceased. P.W.6 has stated that it was a dark night and it was not possible to identify any person and P.W.10 has also stated that he could not recognize the assailants as it was dark. The evidence in this regard and other materials create a doubt with regard to the claim of P.W.6 to have seen the appellants assault¬ing the deceased. P.W.6 though stated in examination in chief that appellants were armed with lathi, katuri and iron rod and were assaulting the deceased, in cross-examination she stated that she had no knowledge as to who assaulted on which part except that appellant Sanjaya assaulted on the head of the deceased. She further stated in cross-examination that the accused persons assaulted her husband on his head also by means of katuri. On examination of evidence of P.W.18 who conducted the postmortem examination, we do not find any injury which could be caused by a katuri. All the injuries were lacerated injuries and P.W.18 was of the view that the injuries 1 to 5 which are lacerated injuries could be possible by assault by means of lathi. There being no incised wound, the claim of P.W.6 to have seen the accused per¬sons assaulting the deceased on his head by means of a katuri cannot be accepted to be true. In examination in chief though she stated that appellant Sanjaya assaulted the deceased on his head by means of a thenga, in cross examination she stated that she had seen appellant Sanjay assaulting the deceased with a katuri. Therefore, there is every reason for this Court to entertain a doubt with regard to claim of P.W.6 that she had seen all the appellants assaulting the deceased in the night of occurrence. Prosecution undisputedly relies on P.Ws.6, 9 and 10 to prove its case and out of these three witnesses, P.Ws.9 and 10 specifically admitted that they could not identify the assailants. The version of P.W.6 is not free from doubt because of the reasons stated above. On analysis of evidence of all these three witnesses it appears that the prosecution has been able to prove that the deceased died a homicidal death and in the night of occurrence he was assaulted by means of lathi by some culprits but identifica¬tion of these culprits has not been proved to the satisfaction of the Court. On analysis of evidence of all these three witnesses it appears that the prosecution has been able to prove that the deceased died a homicidal death and in the night of occurrence he was assaulted by means of lathi by some culprits but identifica¬tion of these culprits has not been proved to the satisfaction of the Court. In this connection reference may be made to a decision of the apex Court in the case of Dalbir Singh v. State of Har¬yana, reported in AIR 2008 SC 2389 . Interpreting Section 9 of the Evidence Act, the Supreme Court held that identification is possible from manner of speech, gait and voice. There is nothing in the evidence of P.W.6 or P.Ws.9 and 10 to show that anyone of the appellants was shouting at the time of occurrence and he or they could be identified from their voice/gait or speech. Refer¬ence may also be made to a decision of this Court in the case of Jania Munda @ Gania and four others v. State of Orissa, reported in (2008) 40 OCR 279. In the said reported case, the prosecution relied upon P.Ws.7 and 8 who were the children of the deceased and were examined as eye-witnesses to the occurrence. In course of cross-examination those two witnesses admitted that there was no light in the house and the occurrence took place inside the house and it was dark and that it was not possible to recognize anybody in the darkness. The Court did not place any reliance on evidence of such witnesses and allowed the appeal. Learned counsel for the appellants also relied on a decision of this Court in the case of Bata Munda v. The State, reported in 59 (1985) C.L.T. 370. The Court in the aforesaid decision discussed the circumstances of identification of accused by co-villagers in a moon light from a distance of 30 to 60 feet. Since on facts this decision has no application, we have not referred to the same in detail. 6. Having held that the claim of P.W.6 to have seen the appellants assaulting the deceased is not free from doubt and P.Ws.9 and 10 having admitted in their evidence that they could not identify the assailants the identity of the appellants in commission of the offence has not been proved by the prosecution beyond all reasonable doubt. 6. Having held that the claim of P.W.6 to have seen the appellants assaulting the deceased is not free from doubt and P.Ws.9 and 10 having admitted in their evidence that they could not identify the assailants the identity of the appellants in commission of the offence has not been proved by the prosecution beyond all reasonable doubt. Once the prosecution fails to prove involvement of the appellants in commission of the alleged of¬fences, even if it has succeeded in proving that the deceased died a homicidal death and he was assaulted by some culprits in the night of occurrence, the appellants cannot be convicted for commission of such offence in absence of any material to show that the appellants are those culprits who assaulted the de¬ceased. 7. In view of the discussions made above, we hold that the prosecution has not been able to prove involvement of the appellants in commission of the alleged offences beyond all reasonable doubts and therefore, benefit of doubt has to be extended to the appellants. 8. Accordingly we allow all the three appeals and set aside the impugned judgment, convicting the appellants for com¬mission of offence under Section 302/34 of the I.P.C. The appel¬lants be set at liberty forthwith if their detention is not required in any other case. PRADIP MOHANTY, J. I agree. Appeal allowed.