JUDGMENT : C.R. Dash, J. The present Jail Criminal Appeal is directed against the judgment of conviction and order of sentence dated 14.10.2009 passed by the learned Ad hoc Addl. Sessions Judge, Fast Track Court No.II, Khandhamal, Phulbani in S.T. Case No.24 of 2009/S.T. No.112 of 2008. 2. The appellant was found guilty for the offence under Section 394 IPC and he was sentenced to suffer R.I. for four years and to pay a fine of Rs.500/-, in default to suffer a further R.I. for one month. 3. The occurrence happened at about 9.30 P.M. on 15.01.2006. Immediately after half an hour, F.I.R. was lodged in Baliguda Police Station and investigation was taken up by P.W.6. The informant-victim (P.W.2) was also medically examined on the same day by the Medical Officer (P.W.7) on Police requisition. The gist of the F.I.R. is that the informant (P.W.2) was returning to his house after collecting money from different persons towards cost of meat he had supplied. At that time, the present appellant restrained him and demanded “Dada Bati” of Rs.500/-. The informant (P.W.2) replied that he has no money to pay him. Hearing such reply, the appellant gave him 2/3 fist blows resulting in uprooting of one of his tooth, then he gave him kick blow. When the informant (P.W.2) left the place by running out of fear, the appellant gave him a hot chase by holding a knife. Seeing the witnesses coming to the spot, the appellant decamped. On completion of investigation of P.W.6 filed charge sheet implicating the appellant in the offences under Sections 394/397 IPC. 4. The prosecution has examined as many as 7 witnesses to bring the charges to home as against the appellant. Out of the witnesses already introduced, P.Ws. 1, 3, 4 & 5 are immediate post occurrence witnesses, but all of them did not support the prosecution case. 5. The defence plea is one of complete denial and false implication due to the enmity between the father of the informant and father of the appellant. 6. Learned trial court, on the basis of the evidence of P.W.2 and the corroborative evidence of the Medical Officer (P.W.7) found the appellant guilty under Section 394 IPC, though he acquitted him of the charge under Section 397 IPC. 7. 6. Learned trial court, on the basis of the evidence of P.W.2 and the corroborative evidence of the Medical Officer (P.W.7) found the appellant guilty under Section 394 IPC, though he acquitted him of the charge under Section 397 IPC. 7. Learned counsel for the appellant submits that the occurrence having happened in a dark night, there was no possibility of the informant (P.W.2) identifying the appellant especially when there is no assertion to the effect that in the darkness, the informant could identify the appellant by his voice. Learned Addl. Standing Counsel supports the impugned judgment. 8. Admittedly, all the independent witnesses except P.W.2 have turned hostile. Their evidence is of no avail to either the prosecution or the defence, especially in view of the nature of the evidence adduced by them. P.W.2 in his evidence has very fairly admitted that no street light was there in the Chhak and as such, the spot was dark. The Investigating Officer (P.W.6), in his cross-examination, has testified that it is true that the place of incident was dark, as there is no provision of light-post in the Chhak. So far as the possibility of identification through voice is concerned, from the evidence of P.W.2, it is found that during the entire transaction, the appellant has uttered five words. The evidence of P.W.2 shows that at the spot, the appellant restrained him, all of a sudden put his hand inside his shirt pocket and snatched away a sum of Rs.500/-and he having held his hand tightly gave a fist blow on his face saying that “Dada Bati Tu Kana Janinu” and decamped with the money. So, during the entire transaction, the appellant is shown to have uttered the above five words only. It is settled principle of law that the offence by an accused is to be proved beyond reasonable doubt. P.W.2 nowhere has testified about his proximity with the appellant, though they are co-villagers. He has also not asserted about the fact that, though there was darkness, he could identify the appellant from his voice. In absence of such positive evidence, it is difficult to come to a conclusion that, from the conversation as deposed to by P.W.2, he must have identified the appellant by his voice. Such a conclusion as arrived at by the learned trial court is more a presumption than a conclusion based on evidence. 9. In absence of such positive evidence, it is difficult to come to a conclusion that, from the conversation as deposed to by P.W.2, he must have identified the appellant by his voice. Such a conclusion as arrived at by the learned trial court is more a presumption than a conclusion based on evidence. 9. There is no doubt regarding the settled law that, as a matter of fact, in case of a known person, existence of light is not essential for their recognition and known persons can be recognized by their gait, timbre of their voice, etc. But it is also the settled judicial view that identification by voice is a risky thing. It is never safe to rely on the identification of a person by his voice. But there is no inflexible rule that in no case could the evidence of a witness, who has identified the appellant through his voice, form foundation of a conviction. The question whether such evidence is or is not sufficient to support the conviction must depend upon facts and circumstance of each case. In the present case there is nothing on record to show the proximity of the appellant with the victim (P.W.2). P.W.2 nowhere has testified that he could identify the appellant by his voice. The appellant, according to P.W.2, has uttered only five words. It is difficult to conclude that, from those five words the victim (P.W.2) could have identified the appellant, especially in absence of a positive assertion to the effect that he (P.W.2) could identify the appellant by his voice. Added to the above features, there is no corroborative evidence to show that immediately after the occurrence the victim (P.W.2) told to only witness about the fact that he could recognize the appellant in the darkness by his voice. In absence of any corroboration, it is difficult to accept the evidence of P.W.2 to record a conviction against the appellant. 10. In view of such reasoning, I humbly differ from the finding arrived at by the learned trial court. In absence of any corroboration, it is difficult to accept the evidence of P.W.2 to record a conviction against the appellant. 10. In view of such reasoning, I humbly differ from the finding arrived at by the learned trial court. The medical evidence cannot be taken as a corroborative evidence so far as P.W.2 is concerned inasmuch as P.W.2 might have sustained injury due to fall, he might have sustained injury owing to assault by some other person or he might be taking the name of the appellant, taking into consideration his conduct, which has not been proved and which could not have been proved as a habit, in view of bar under Section-8 of the Indian Evidence Act. Had it been proved by the prosecution that, it was the appellant and none else, who had assaulted the informant (P.W.2), then only the evidence of the Medical Officer (P.W.7) could have been taken as a corroborative evidence so far as assertion of P.W.2 regarding the assault part is concerned. 11. In absence of evidence regarding proper identification of the appellant, his conviction, under Section 394 IPC is not sustainable in the eye of law. Accordingly, the appeal is allowed. The conviction of the appellant under Section 394 IPC is set aside. Appellant-Bandu @ Meghanad Naik be released from custody forthwith, if his detention is not required in any other case. The JCRLA is accordingly allowed.