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. 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 a