JUDGMENT & ORDER (ORAL)
01. This is a revisional petition filed by the petitioners under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C in short) against the judgment and order dated 24.11.2006 delivered in Criminal Appeal No. 12 (3) of 2006 by the Addl. Sessions Judge, West Tripura, Sonamura whereby the conviction and sentence as returned by the Judicial Magistrate, 1st Class, Sonamura, West Tripura in G. R. No. 135 of 2003 by the judgment and order dated 12.06.2006 has been affirmed. The petitioners have been directed to suffer RI for 3 years and to pay fine of Rs. 5,000/- for committing offence punishable under Section 394 of the IPC.
02. It surfaces from the record that the investigation against the complicity of the petitioners had started on the basis of a complaint filed by one Ashima Chakraborty where she had disclosed that her father-in-law (PW-6) was attacked by the petitioners and others with sharp cutting weapon. They had caused grievous hurt to her father-inlaw. After culmination of the investigation, the charge-sheet was filed and the charge against the petitioners was framed under Section 394 of the IPC, to which both of them pleaded not guilty and claimed to face the trial.
03. The entire case of the petitioners hinges on one aspect-whether acceptance of the voice identification by the trial court or the appellate court is tenable or not.
04. Mr. Sarkar, learned counsel for the petitioners having referred to the FIR has submitted that the assailants' faces were covered by cloths and the occurrence took place in the dead hour of night. Even from the FIR, names of the petitioners do not surface. PW-6, Nripendra Chakraborty who had suffered the grievous hurt has stated in the trial that the persons standing in the dock had assaulted him with sharp cutting weapon and he received grievous hurt with bleeding injuries. Immediately after the occurrence he was rushed to the hospital and he had to undergo prolonged treatment at the GBP Hospital, Agartala. He did not state in the examination in chief how he could identify the petitioners' inasmuch as the face of the accused persons were covered by cloths. The night was dark and deep. When confronted on that issue he has stated in the cross examination that “I identified the two accused persons by their voice since I know them very well.” He has also stated that he had spoken several times with the persons on earlier occasions. One Ashima Chakraborty, daughter-in-law of PWs 6 and 7 was not examined in the trial. PW-7, Smti. Sushanta Bala Chakraborty, wife of PW-6 has stated that she saw two people entering into her room with torch light in their hands pointed towards her. The accused persons threatened her of dire consequences, if she cried. But she cried out desperately for help and those two persons assaulted her also. She has further stated that her son Bhabesh Chakraborty had also sustained severe injury. Her daughter-in-law Ashima Chakraborty who filed the FIR was also present at that place of occurrence. She has stated that her husband told her the names of the two assailants who were Kader Miah and Shahalam Miah. But in the cross examination she has acceded by stating that she had not stated to the IO that her husband told her the name of the accused persons. Furthermore, she has stated that she had heard the voice of about 13/14 persons.
05. Mr. Sarkar, learned counsel for the petitioners has pointed out that from the evidence as led by the prosecution what surfaces is that first PW-6 was attacked by the assailants thereafter the assailants entered into the room of his wife, PW-7 and at the end of transaction they assaulted their son in presence of their daughter-in-law. Mr. Sarkar, learned counsel has contended that the daughter-in-law who had submitted the FIR has categorically stated that the faces of the assailants were covered by cloths. His further contention is that PW-7 could not identify the assailants by their voice. No other witness from that family was examined by the prosecution. Mr. Sarkar, learned counsel in his last lap of submission has submitted that there is no evidence that the assailants had either talked to each other or they had any exchange of words with PW-6 at the relevant point of time. Even PW-6 did not state what the source of the voice was, whether he had recognised their voice from the threat or from any other source. Mr. Sarkar, learned counsel has, while making submission on this aspect of the matter, submitted further that unless the source of voice is brought in the evidence, the question of identification is rendered irrelevant. He has further submitted that identification by voice is not reliable evidence. In support of that contention, he has referred to a decision of the apex court in Nilesh Dinkar Paradkar v. State Of Maharashtra reported in (2011) 4 SCC 143 where the apex court in para 31 has enunciated as under:
“31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.”
06. In that case, a recorded voice was under consideration by the court. But the principle would be similar to some extent. Mr. Sarkar, learned counsel for the petitioner has taken support from another decision in Inspector of Police, T.N v. Palanisamy @ Selvan reported in 2009 AIR SCW 108 where the apex court has held that in a dark night identification of the offenders from their voice is a arduous task, even though in some cases that is possible, but where there is no evidence to show that the witnesses were closely acquainted with the voice it would be highly risksome to rely on such piece of evidence that too from a very short reply given.
07. While responding to the submissions made by Mr. Sarkar, learned counsel for the petitioners, Mr. Debnath, learned Addl. PP has pointed out to certain features of the prosecution case. He has contended that PW-6 was a tailor by vocation and he has categorically stated that the petitioners were acquainted to him from before. Mr. Debnath, learned Addl. PP has emphasised on the statement made by PW-6 that he could identify the assailants by their voice. Mr. Debnath, learned Addl. PP has emphasised further that by this statement, it has to be presumed under Section 114 of the Indian Evidence Act that there was some conversation or use of voice. He has also placed reliance on a decision of the apex court in Kirpal Singh . v. State Of Uttar Pradesh reported in AIR 1965 SC 712 (V 52 C 120) where the apex court has held that it cannot be stated as a matter of rule that identification by voice is so improbable that someone cannot identify a person by his voice or such identification cannot be relied by the Court. He has also referred a decision of the Bombay High court in State of Maharashtra v. Harishchandra Tukaram Awatade reported in 1997 Cri.L.J 612 where the said High Court has held as under:
“That being so there was no difficulty on the part of the informant in recognising the two responsible or their nephews (respondent Nos. 3 and 4) by their gait or the timbre of their voice. The learned trial Judge also lost sight of the dictum laid down by the apex Court in the case of Kripal Singh v. State of Uttar Pradesh, reported in AIR 1965 SC 712: (1965 (1) Cri.L.J 636. In paragraph 4 of the said judgment Their Lordships of the apex Court have accepted that known persons can be recognised by the timbre of their voice and gait. They rejected the submission to the contrary which appears was canvassed, by the defence counsel.”
08. Having scrutinized the records wholly and on appreciation of the submissions of the learned counsel appearing for the parties, this Court is of the considered opinion that the prosecution has failed to lay down any evidence as regards the generation of voice during the transaction of the offence. Unless that element is established on evidence the recognition of voice becomes unreliable. Only when there is exchange of words in any form, meaning the generation of voice, in that case a Court can weigh whether identification by voice can be relied on whether it shall go further for corroboration for returning the finding of conviction of the accused. Identification by timbre of voice or gait, in the parlance of the criminal jurisprudence has been all the time taken with an amount of uncertainty. The courts usually require further corroboration to return the finding of conviction. The courts are to find other corroborative pieces in the evidence, so far the identification of the accused by voice is concerned, not wholly relying on timbre of voice or gait. However, this is not a universal rule. In some cases when the accused or the witnesses or the victim of the offence are known to each other, the witness or the victim can recognize the offender/s by timbre of voice or gait with certainty. For the purpose of identification by voice, three elements are to be proved viz. (1) element of generation of voice, (2) acquaintance with that voice and (3) the manner of reception of voice and none of these elements are mutually exclusive. In this case, the first element i.e generation of voice is entirely absent in the record and as such the identification of the accused may be an element of suspicion but it cannot provide the necessary basis to convict someone inasmuch as the petitioners have only been claimed to have identified by their voice.
09. Having held so, the impugned judgment and orders are interfered with and set aside. The accused are acquitted from the charge on benefit of doubt. Their sureties are discharged from their obligation. In the result, this petition stands allowed.
LCRs be returned forthwith.