Identification of a person based solely on voice, especially in a dark night, is unsafe and cannot be relied upon for conviction.

JUDGEMENT

1. The accused-respondent was tried in the court of C. J. M. cum-Assistant Sessions Judge. Jeypore, for having committed offences u/ss. 307/337/338 I.P.C. The learned Judge acquitted the respondent. Hence this Government Appeal.

2. The case of the prosecution is as follows :-

In the night of 3-11-75, after night meals, Sunadhar Machu (P.W. 1) and his brother Bhakta Machu (P.W. 4) were going on the P.W. D. road (that passes through their village) to see their land. P.W. 1 was holding a torchlight (M.O. II). While proceeding on the road P.W. 1 focused the torchlight which fell on the face of the accused who got annoyed and a quarrel ensued between them. P.W. 4 pacified both of them and thereafter all returned to their respective houses. After about half an hour while P.Ws. 1 and 4 and their family members were in their house they heard the accused shouting and abusing P.W. 1 by standing on the back side of their house. He was in a challenging mood and was asking P.W. 1 to come out. P.W. 1 in order to know what was the hullah about, came out of his house being followed by his brother (P.W. 4), daughter Jamuna Machu (P.W. 3) aged about 13 years and son Nilakantha Machu (P.W. 5) aged about 10 years. Seeing P.W. 1 the accused fired a loaded S. B. M. L. gun (M.O. I.) aiming at P.W. 1. As a result of the firms of the gun P.W. 1 sustained a gun shot injury on his left leg below the knee. P.W. 4 received an injury on his right side chest, P.W. 3 sustained a fracture on her right thumb and P.W. 5 sustained an injury on his right thigh. P.Ws. 1 and 4 fell down unconscious as a result of the injuries received by them. The accused thereafter left the place. P.W. 3 along with their field servant (P.W. 8) went to Ronaspur and reported the occurrence to Laxmikant Tanti (P.W. 2), the Sarpanch of Ronaspur Gram Panchavat. P.W. 2 visited the house of P.W. 1. saw the injured and thereafter reported the matter at the police-station. The police took up investigation and sent the injured for medical examination. On a search of the house of the accused, the gun (M. O. I) and some gun powder were recovered which were seized as per seizure list (Ext. 5). The gun was sent to the ballistic expert who gave his opinion as per Ext. 11. After completion of investigation charge-sheet was submitted against the accused-respondent.

3. The plea of the accused was a complete denial of the incident. His further plea was that in the night of 3-11-76 he was going to his land and at that time the was assaulted by P.W. 1 due to some previous enmity. After being assaulted he went to his house. Subsequently P.Ws. 1 and 4 influenced the Sarpanch (P.W. 2) and the police and falsely implicated him in this case after taking out the gun (M.O. I) from the house of one Ganga Poria to whom the gun belongs. He further pleaded that he was not in possession of the gun at any point of time nor he fired the said gun in an attempt to kill P.W. 1.

4. In order to prove the case the prosecution examined 12 witnesses. P.Ws. 1, 3, 4 and 5 are the injured persons who have stated that they recognised the accused by his voice, P.W. 2 is the Sarpanch who reported the matter to police, P.Ws. 6 and 7 are the witnesses to the seizure of the gun and gun powder, P.W. 8 is the servant who accompanied P.W. 3 to the house of P.W. 2, P.W. 9 is the A. S. I. of police who conducted the preliminary investigation, P.W. 10 is the S.I. of Police who took over the charge of investigation from P.W. 9, P.W. 11 is the S.I. of Police who completed the investigation and submitted charge-sheet and P.W. 12 is the Doctor who examined the injured. The defence did not examine any witness. The learned trial court after considering the entire evidence on record came to hold that the prosecution has failed to prove the case against the accused beyond reasonable doubt and acquitted the accused-respondent.

5. The learned Additional Government Advocate appearing for the State submitted that P.Ws. 1, 3, 4 and 5 have asse