Point of Law: There cannot be any dispute that when persons are known to each other, a person can certainly identify the other person by voice.

JUDGMENT AND ORDER

M. Zothankhuma, J.

Heard Mr. K. Goswami, learned Senior Counsel and Amicus Curiae, appearing for the appellant (in jail) as well as Ms. S. Jahan, learned Addl. P.P., Assam appearing for the State respondent.

2. This appeal has been filed against the judgment dated 21.12.2019, passed by the Court of learned Additional Sessions Judge, Sivasagar, in Sessions Case No.74(S-S)/2018, whereby the appellant has been convicted under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life with a fine of fine of Rs.2,000/- (Rupees two thousand), in default, simple imprisonment for one month.

3. The prosecution case in brief is that the uncle of the deceased Hemo Saikia, who is PW.2, submitted an FIR dated 07.12.2017, before the Officer-in-Charge of the Sivasagar to the effect that at around 9:00 P.M., on 06.12.2017, his nephew was found dead with multiple injuries at Dighal Dariali Missing Gaon, under the jurisdiction of Disangmukh Police Outpost. In pursuant to the FIR, Sivasagar P.S. Case No.1025/17 under Section 302 IPC dated 07.12.2017 was registered.

4. After completion of the investigation, the Investigating Officer (I.O.) submitted a charge sheet, on finding a prima facie case under Section 302 IPC, against the appellant.

5. The learned Trial Court thereafter framed the charge under Section 302 IPC against the appellant for the murder of the nephew of PW.2, to which the appellant denied the charge and claimed to be tried.

6. The learned Trial Court, thereafter examined 8 prosecution witnesses and after examination of the appellant under Section 313 of CrPC, came to a finding that the appellant was guilty of having committed the murder of the deceased person. The appellant was thereafter convicted under Section 302 IPC and sentenced accordingly, as stated in the earlier paragraph.

7. Mr. K. Goswami, learned Amicus Curiae submits that PW.6 was an eyewitness to the act of the appellant beating the deceased with a bamboo. Further, the evidence of PW.3, 4, 5 & 7 corroborated the evidence given by PW.6. He also submits that the statements made by the prosecution witnesses Nos.3-7, under Section 161 CrPC and Section 164 CrPC, is in the same vein as the testimonies given by them before the learned Trial Court. He further submits that the evidence of PW.2 is to the effect that the PW.2 had noticed four stab injuries on the backside of the head of the deceased with bleeding from the ear, nose and head of the deceased. The evidence of the Doctor (PW.1) also corroborated the fact that the deceased had died as a result of the injuries inflicted upon him and as such, it was proved that the deceased had died due to the act of the appellant. However, there is nothing to show that there was any motive on the part of the appellant to kill the deceased or that there was any enmity between the parties. On the contrary, the evidence of the prosecution witnesses shows that the appellant and the deceased were friends and used to occasionally drink together. Further the deceased used to occasionally stay in the house of the appellant. As such, the action of the appellant could not have been done with the intention of killing the deceased. Accordingly, the offence of murder may not be attracted to the facts of the case.

8. Ms. S. Jahan, learned Addl. P.P., Assam submits that the evidence recorded by the learned Trial Court clearly points to the fact that the death of the deceased was due to the act of the appellant in hitting the deceased with the bamboo and the dao. Ms. Jahan further submits that the evidence of the PW.6 shows that PW.6 had seen the appellant with the bamboo and a dao. PW.6 has seen the appellant hitting the deceased. Further, the voice identification of the appellant by PW.5 and PW.7, at the time of the incident clearly proved the guilt of the appellant. She thus submits that there being no ground to interfere with the judgment of the learned Trial Court, the appeal should be dismissed.

9. We have heard th