28. Identification by Voice:- When an identical situation arose, the Kerala High Court in Joseph v. State of Kerala, held thus:
10. In any view identification by voice is a risky thing and I am not prepared to deprive a person of his life relying on such an unsafe test. The following observations made by M.K.A. Khan in his book on the Law of Identification may be noted with benefit (Vide 2nd Edition page 16 - Chapter on Identification by Speech and Voice):'Some persons have got peculiarities of speech, such as stammering, stuttering, lisping, or speaking with a nasal tone, and such a voice can easily be detected. But there are others whose normal way of talking is either affected by some disease or is altered on account of the absence of teeth, or the use of false teeth and, in such a case there is the likelihood of mistake. In the case of persons well-known to us, identification by voice is an every day affair, but this much is also a matter of experience that people can speak in an affected tone and also change their accent to suit the occasion, and there is nothing to prevent a culprit from doing so when committing an offence at night in known quarters.It may be added that there are persons who can successfully imitate another's voice, even though the mimicry may be for the sake of amusement. But amusement or no amusement, the point is whether he can, speaking behind the screen, lead the listeners to mistake him for the real man? If so, remove the screen, make it a dark night, and the result will be the same.Anyhow, identification by voice, has not by itself been held to be either safe or sufficient to establish identity as would appear from the following cases.
IN THE HIGH COURT OF ANDHRA PRADESH
Decided On: 20.12.2001
Hon'ble Judges: Bilal Nazki & Gopalakrishna Tamada , JJ.
JUDGMENT
1. This is an appeal filed by A-1 to A-3 and A-5 to A-10 in S.C. No.21 of 1996 on the file of the Addl. Sessions Judge, Vizianagaram. Originally, charge-sheet was filed against 19 persons and during the course of the trial, A-4 died and as such, the case against him abated. After trial, the learned Sessions Judge came to the conclusion that the offence against A-11 to A-19 was not proved and accordingly acquitted them. But, insofar as the appellants herein are concerned, the learned Sessions Judge found them guilty as follows:
2. A-1 to A-3, A-5 to A-10 were found guilty for the offence punishable under Section 302 read with 149 of the Indian Penal Code and were sentenced to undergo imprisonment for life and also to pay a fine of Rs.2,000/- each in default to suffer simple imprisonment for a period of one year.
3. A-1, A-3, A-5 to A-10 were further found guilty for the offence punishable under Section 3(2) (v) of S.C. & S.T. (Prevention of Atrocities) Act and were sentenced to suffer imprisonment for life and also to pay a fine of Rs. 1,000/- each in default to suffer simple imprisonment for six months.
4. Further, A-2 was convicted under Section 3(2)(vii) of the S.C. & S.T. (Prevention of Atrocities) Act and was sentenced to suffer imprisonment for a period of one year.
5. He further directed all the sentences to run concurrently.
6. The substance of the charge against the accused is that on 29.8.1997 at about 7.00 p.m., all the accused formed themselves into an unlawful assembly in Gopannavalasa village and caused the death of one Bheemapalli Parasuram (Deceased No. 1) and Saketi Parasuram (Deceased No.2) with deadly weapons.
7. The case of the prosecution according to the legal evidence let in during the course of trial is as follows:
8. P.Ws.2 and 5 are the brothers of Bheemapalli Parasuram (Deceased No. 1) and also paternal uncles of Saketi Parasuram (Deceased No.2) P.Ws.3 and 8 are the son and wife respectively of Deceased No.1 whereas P.W.9 is the wife of Deceased No.2. All the accused belong to 'Kapu' caste whereas the deceased 1 and 2 belong to 'Mala' caste. Deceased No. 1 owned two acres of land whereas Deceased No.2 owned 80 cents of land near the tank bund of Venkata Sagaram. Deceased No. 1 raised coconut, teak garden and also gingili crop in his land and two months prior to the date of offence, all the accused removed the crop in the land of Deceased No. 1 during 'Janma Bhoomi' programme, on account of which Deceased No. 1 gave a complaint to the S.I. of Police i.e, P.W.21 on 18.5.1997 who registered a case in Cr.No.23 of 1997 against A-1, A-3 to A-10, A-13, A-14 and A-17 for the offences punishable under Sections 447, 427 read with 34 of the Indian Penal Code. After investigation, the case was referred as false.
9. Subsequently, on 25.5.1997, Deceased No. 1 gave a complaint to P.W.21 and a case in Cr.No.26 of 1997 was registered against A-1, A-4 to A-10, A-13 to A-15 and A-19 for the offences punishable under Sections 447, 427 read with 34 of the Indian Penal Code and Sections 3(v) of SC & ST (Prevention of Atrocities) Act. After investigation, a charge-sheet was filed and the same is pending before the Special Court.
10. On 4.6.1997 at about 11.00 a.m., A-2 gave a report to P.W.21 against the Harijans of Gopannavalasa village alleging that they damaged the plants in the land of P.W.2 P.W.21 registered a case in Cr.No.27 of 1997 against the Harijans under Sections 3447, 427 read with 34 of the Indian Penal Code.
11. While so, on 29.8.1997 at about 12.30 p.m., while P.W.1 was returning from Marrivalasa village, he happened to hear A-11 and A-12 at the house of A-4 advising him to kill the Harijans as they are only 20 families in the village whereas the Kapus are 400 families. Thereafter, P.W. 1 informed the same to Deceased No. 1. but he did not take it seriously. Further, at about 7.30 p.m., on the very same day. when P.Ws. 1, 2 and 4 came to know through P.W.3 that both the deceased did not return home after attending calls of nature, they went in search of the deceased and near Peda Cheruvu, they heard the cries of both the deceased 'Ammo Champakandi'. They recognised A-1, A-3 to A-10 armed with axes, knives etc., beating both the deceased, from a distance of 10 to 15 feet. Thereupon, P.W. 1 informed the same to the Head Constable (P.W. 14), who was on patrolling duty in the village.
12. Later, P.W.2 along with two constables went to P.W. 10 and got drafted Ex.P-1 and at 1.00 a.m. (mid night), he went to Budarayavalasa Police Station and gave Ex.P-1 report to the S.I. of Police (P.W.21), who registered the same as case in Cr.No.42 of 1997 under Sections 148, 302 read with 149, 109 of the Indian Penal Code and 3(2)(v)of SC & ST (Prevention of Atrocities) Act and sent express FIR to all the concerned. The FIR is marked as.Ex.P-60.
13. P.W.21 along with the Sub-Divisional Police Officer (P.W.24) proceeded to the scene of offence at about 4.00 a.m. and took up further investigation. At the scene of offence, he prepared an observation report and a rough sketch of scene of offence, which was marked as Ex.P-62. On requisition, P.W.12, a photographer, and P.W.13, a videographer, went to the scene of offence, took photographs and Exs. P-6 to P-24 are the photographs and the negatives.
14. The Mandal Revenue Officer (P.W. 17) conducted inquest over the dead bodies of the deceased and Exs. P-4 and P-5 are the inquest reports. After inquest was held, the bodies of the deceased were sent for post-mortem examination and the Civil Assistant Surgeons, Government Hospital, Vizianagram, who were examined as P.Ws.22 and 24, who conducted autopsy over the bodies of the deceased, opined that the cause of death would appear to have been due to shock and haemorrhage. Ex.P-59 is the post-mortem certificate relating to deceased No. 1 and Ex.P-61 is the post-mortem certificate relating to deceased No.2.
15. On the very same day, i.e., on 30.8.1997 at about 5.00 p.m., the Sub-Divisional Police Officer (P.W.24) arrested A-2 and in the night at about 10.10 p.m., he arrested A-11. P.W.24 examined P.Ws.4 to 6, 10 and 12 to 15 and recorded their statements. On 2.9.1997, P.W.18 produced A-1, A-3, A-6 and A-9 before P.W.24, who in turn arrested them and recorded their confession in the presence of P.W.15 and their confessional statements are marked as Exs. P-25 to P-28. Basing on their confessional statements, M.Os. 1 to 4 were recovered. Subsequently, the remaining accused were arrested and after investigation, P.W.24 filed the chargesheet.
16. In support of its case, the prosecution examined 24 persons as P.Ws.1 to 24 and got marked Exs. P-1 to P-73. During the course of their examination under Section 313 of the Code of Criminal Procedure, the plea of the accused is one of total denial.
17. The point for consideration in this appeal is as to whether the deceased died homicidal death and if so, the accused are responsible for their death.
18. P.W.17 conducted inquest over the dead bodies of both the deceased in the presence of P.W.11 and one Ramana Raju. During the course of inquest, he examined P.Ws.2, 3, 8 and 9 and recorded their statements and the inquest reports are marked as Exs. P-4 and P-5. Later, P.W.20, the Civil Assistant Surgeon, Government Hospital, Vizianagaram, conducted autopsy over the body of the deceased No. 1 and he found the following external injuries:
(1) An incised wound 2" x 3/4" x 1/2" on the forehead over right eye-brow placed transversely and extending towards right side of head. Clean cut even edges. Dark red blood clots present over wound.(2) An incised wound 1/2"x 1/4"x1/4" over central portion of lower lip. Clean cut even edges, extending towards chin. Dark red blood clots present over wound.(3) An incised wound 2 1/2" x 3/4" x skull deep over occipital region of head 3" above hairline over back of neck. Transversely placed extending towards right side. Clean cut even edges, dark read blood clots present over wound.(4) An incised wound 1/2"x1/4"x1/4" over left side of back of head 2" above injury No.3. Clean cut even edges, obliquely placed, extending towards left and downwards.(5) An incised wound 3/2"x1/2"x1/4"over left side of head, 2"above injury No.4. Clean cut even edges, obliquely placed, extending towards left and downwards, dark red clots present over wound.(6) Contusion 2"x1" over middle 1/3" of front of neck.(7) Red abrasion 2" x 3/4" on the right side of neck over middle 1/3".(8) Red abrasion 1" x 1/2" on the right side of neck 1/2" below lower jaw.(9) Red abrasion over right side of face 1 1/2"x 1/2"x 1/2" above lower jaw.(10) A contusion 2"x 1" over right cheek.(11) A red abrasion 2"x3/4" over upper part of abdomen.(12) An incised wound over right parietal region 2"x 1/2"1/4" obliquely placed -4" above right eye-brow and 3" lateral to midline; brain matter and dark red blood clots present over wound.(13) A red abrasion 3"x1" over upper 1/3rd of front of right thigh.(14) A red abrasion 2"x1/2" over back of left shoulder.
19. On internal examination, he found the following injuries:
On dissecting the above described incised wounds and contusions, dark coloured blood clots present over the underlying subcutaneous tissues.Neck: Dark red blood clots present over subcutaneous tissues, right side upper 1/3" and middle 1/3 rd of neck.Hyoid: Physically intact, Glottis, Larynx, Trachea surface and cut section congested.Chest: Subcutaneous tissues of chest wall normal. Sternum and ribs-no fracture.Heart: Normal. Cut section empty.Bronchi: Cut section congested.Lungs: Normal size and cut section congested.Abdomen: Stomach contains 15 ounces of food particles present. Mucosa normal. Small Intestine: Distended with gas.Liver, Spleen, Kidneys and Pancreas: All normal size cut section pale.Pelvis: No fracture.Urinary bladder contains 100 ML of urine.Head: Skull fracture 21/2" running transversely over right parietar region. Dark red blood clots present over fracture. Fracture 3"x3/4" obliquely placed over left side of occipital bone dark and blood clots present over fracture. Fracture 21/2"x1/2" over left side of occipital region, 1" below the above described fracture dark red blood clots present over fracture.Floor of the Skull: Posterior Cranial fossa left side fracture 1"x1/2". Fracture 1/2"x3/4"x1/2" below the above fracture. Fracture 1"x1/4"3/4" below the above fracture. Right side: Fracture-2"x1/2" Fracture 1"x1/2"-1" below the above fracture.Middle Cranial Fossa: left side: Fracture 2"x1/2.Right side: Fracture 1"x3/4". Fracture 1/2"x 1/2" 1" below the above fracture. Dark red blood clots present over the above fracture described above. Membranes, vessels and brain matter corresponding to above described fractures in the skull are torn. Brain cut section congested. Normal consistency. Spine: Normal.
20. According to P.W.20, the death might have occurred 18 to 24 hours prior to the post-mortem examination and he was of the opinion that the deceased would have died of shock and intra-cranial haemorrhage due to multiple ante-mortem intra-cranial head injuries. Ex.P-59 is the post-mortem certificate relating to deceased No. 1
21. Similarly, P.W.22 is another Civil Assistant Surgeon, Government Hospital, Vizianagaram and he conducted autopsy over the dead body of deceased No.2. According to him, he noticed the following external injuries:
(1) An incised wound 4.5 cm. x 1 cm. x 1/2 cm. on the left side of the lower lip placed transversely and extended towards left, clean and even edges, dark red blood clots present over wound.(2) An incised wound measuring 3 cms x 1 cm. x 1/2 cm. on the left side of the lower lip just below the injury No. 1 placed longitudinally, clean and even edges. Dark red blood clots present over wound.(3) An incised wound 5 cm. x 2.5 cm. x 1/2 cm. of the lower lip left side laternal to the injury No.2 placed irregularly, clean and even edges dark red blood clots present over wound.(4) An incised wound 5 cm. x 2.5 cm. x 1/2 cm. over the left cheek, placed transversely, clean edges extending towards nose. Dark red blood clots present over the wound.(5) An incised wound 7.5 cm. x 2.5 cm. x 1/2 cm. over the right side of the jaw at its angle, placed obliquely directed towards neck, clean edges, dark red blood clots present over the wound.(6) On the anterior surface of the neck 8 small contusions present measuring 3 cm. x 1/2 cm. x 1/2 cm. transverse direction.(7) An abrasion of 2 cm. x 1/2" over the right collar bone red in colour.(8) An incised wound 6 cm.x2 cm. x 1/2 cm. over the left parital area of scalp, directed transversely towards back, clean edges, skull exposed, dark red blood clots present.
22 On internal examination, he found the following internal injuries:
On dissecting the above described incised wounds and contusion, dark coloured blood clots present underlying subcutaneous tissues.Neck: On opening of neck, dark and blood clots present in subcutaneous deep fascia and underlying muscles and vessles, the muscles are bruised major vessles are torn extending from to the supraslerhal region. Laterals to the left side of the neck to the right side of the neck. Larynx, pharynx, trachea are congested and torn. Mucous membrane congested, dark red blood clots present on the lumen.Hyoid bone: Fracture of the left horn in present at the fracture site dark red blood clots present. Thyroid cartilage torn.Jaw: On dissecting the jaw, fracture at angle of the mandible on right side and on left side fracture of base of the mandible present. At the fracture side, dark coloured blood clots present.Thorax: Subcutaneous tissue of the chest wall normal sternum and ribs - no fracture.Heart: Normal cut section empty.Bronchi: Cut section congested. Fine froth present.Lungs: Normal size, congested. On cut section fine froth present. lntra-thoracic cavity 100 ml of fluid blood present.Abdomen: Distended. On opening stomach 10 ounces of food particles present, mucosa normal.Small intestines: Distended with gas. Liver, spleen, kidneys and pancreas are normal size. Cut section congested.Pelvis: No fracture.Urinary bladder empty.Head: On opening of skull normal. No fracture meninges in tact, Brain matter congested. Cut section congested. Spine: Normal. No fracture.
23. According to P.W.22, the time of death is about 12 to 24 hours prior to post-mortem examination and he opined that the deceased would appear to have died of asphyxia due to ante-mortem strangulation. The post-mortem certificate issue by him is marked as Ex.P-61.
24. In view of the inquest reports coupled with the post-mortem certificates as stated above, we have no hesitation to hold that both the deceased died homicidal death.
25. In view of our finding that both the deceased died homicidal death, now it is to be seen as to whether the prosecution has proved the guilt of the accused beyond reasonable doubt and they only are responsible for the death of the deceased.
26. The learned senior counsel for the appellants Sri C.Padmanabha Reddy argued at length stating that admittedly it was a dark night and it is impossible for the alleged eye-witnesses to identify the accused with the aid of torch lights which they were having and similarly it is impossible for them to identify the accused with the aid of torch lights which they were having and similarly it is impossible for them to identify the accused persons by their voice. It is his further submission that even if the alleged eye witnesses are able to see with the aid of torch light, they could have seen only the back portion of the accused as, according to their own evidence, the accused were running away. It is further submitted that P.Ws.2 and 3 would not have been present at the scene of offence on the fateful day in view of the evidence of the Village Administrative Officer, who was examined as P.W. 15, that these two witnesses have come to his place i.e., Marrivalasa at 8.00 p.m. on the fateful day to enquire about the deceased and the case of the prosecution is that the time of offence is 8 p.m. In the light of his submissions, he argued that the prosecution has not brought home the guilt of the accused and as such, they are entitled to benefit of doubt. In support of his submissions, the learned senior counsel relied on the following judgments: Joseph v. State of Kerala 1964 (1) Cri. L.J. 493 ; Panda Nana v. State of Maharashtra, MANU/SC/0143/1978 : AIR 1979 SC 697; State of Orissa v. Chandra Pentia, MANU/OR/0113/1981 : 1981 Cri. L.J. 1060, and Shayamdeo Singh v. State of Bihar, MANU/BH/0258/1987 : 1988 Cri. L.J. 508.
27. In the light of the above submissions, the following points emerge for consideration:- (a) Is it possible to identify the persons by their voice; and (b) Is it possiple to identify the persons in dark night with the aid of torch lights.
28. Identification by Voice:- When an identical situation arose, the Kerala High Court in Joseph v. State of Kerala, held thus:
10. In any view identification by voice is a risky thing and I am not prepared to deprive a person of his life relying on such an unsafe test. The following observations made by M.K.A. Khan in his book on the Law of Identification may be noted with benefit (Vide 2nd Edition page 16 - Chapter on Identification by Speech and Voice):'Some persons have got peculiarities of speech, such as stammering, stuttering, lisping, or speaking with a nasal tone, and such a voice can easily be detected. But there are others whose normal way of talking is either affected by some disease or is altered on account of the absence of teeth, or the use of false teeth and, in such a case there is the likelihood of mistake. In the case of persons well-known to us, identification by voice is an every day affair, but this much is also a matter of experience that people can speak in an affected tone and also change their accent to suit the occasion, and there is nothing to prevent a culprit from doing so when committing an offence at night in known quarters.It may be added that there are persons who can successfully imitate another's voice, even though the mimicry may be for the sake of amusement. But amusement or no amusement, the point is whether he can, speaking behind the screen, lead the listeners to mistake him for the real man? If so, remove the screen, make it a dark night, and the result will be the same.Anyhow, identification by voice, has not by itself been held to be either safe or sufficient to establish identity as would appear from the following cases.'It is never safe to rely on the identification of a person by his voice. One is always liable to make a mistake.In Arshed Ali v. King Emperior,30 Cal. W.N. 166 where the accused was convicted of murder and sentenced to death on the evidence of the injured and a witness who was present close by identifying the accused by voice the High Court acquitted the accused finding it unsafe to rely on their evidence.
17. In short, it began as a case of suspicious death and it remains as such when all is said and done. There are no eye-witnesses to the occurrence and there is not a single telling circumstance to connect the accused with the crime. There is no motive much less an adequate one. The medical evidence is unconvincing and the conduct of the accused is to say that least as compatible with innocence as with guilt. The attempt of P.Ws. 1 and 2 at identification by sight in the moon light, from a distance of 125 and 100 yards-far in excess of the limit of 17 and 12 yards fixed by Tidy and Colonal Barry and incorporated by Modi in his Medical Jurisprudence and of 33 to 36 feet specified by Dr.Vincent in Legrand and Sammel's Legal Medicine-has been rightly discarded by the learned Judge himself.Identification by voice is too fragile a foundation and the superstructure can only tumble when the first principles of criminal law are applied. It is a case in which suspicions exist but at the same time doubts abound. At best it may be to adopt with respect the words of Gajendragadkar, J., a case of 'may be true' and not 'must be true'. The accused's guilt is not proved and the only course open is to acquit him'.
8. After considering the evidence on record and the discrepancy pointed out about the actual words spoken by the accused before firing the gun and the decisions cited I am of the view that it is unsafe to rely on the evidence of P.Ws. 1, 3, 4 and 5. Regarding the identification of the accused, it is also not safe to convict the accused merely on the identification from his voice. In Modi's Medical Jurisprudence also it has been observed that to recognize a person from his voice is an every day occurrence though it is too risky to be relied upon in criminal cases.
It is the case of the prosecution that the miscreants entered into his house also and committed dacoity. This witness claims identification of the appellants by voice. Identification by voice is a weak type of evidence. Prosecution could not show any circumstance to hold that this witness had any occasion earlier to talk to these accused or to hear his voice, making it possible for him to identify either of them by voice, which he heard at the time of commission of dacoity. It has also been pointed out that he had contradicted himself before the police officer so far, this statement is concerned. In the giving circumstance, it would not be safe to rely on the statement of P.W.5 as well. (Para 7).
29. In the light of the above judgments, we have examined the evidence of the eye-witnesses i.e., P.Ws. 1 to 4. The evidence of P.W.1 in his chief-examination is that "then I was peeping towards southern side standing by the side of the bund of the land of A-1. I noticed at a distance of 10 to 15 feet that the accused holding axes, knives and 'kathavaborigas' and sticks in their hands. A-1, A-5, A-6, A-7. A-9, A-3, A-4, A-10 and A-8 beat the deceased B. Parasuram and S. Parasuram and killed them. I identified the above persons on hearing their voice and I also identified them with the help of torchlight". It may be a fact that the accused and the prosecution witnesses belong to the same village and they know each other. It may not be difficult to identify a person by voice if he is known very well and he alone speaks. In the instant case, when all the accused were talking with each other simultaneously, we do not think it is possible for the prosecution witnesses to identify all the accused persons. They may at best identify one or two persons but not all the accused as stated in the evidence. In our considered view also, identification by voice is a very weak piece of evidence and it is not safe to convict the accused on that score.
30. Identification by Torch light-
6. The only evidence that is relied on by the prosecution is that of P.W.7. The testimony of P.W.7 was considered at great length and the Sessions Judge found that it cannot be accepted. P.W.7 was sleeping along with the deceased. As he did not sleep on the previous two nights, he was fast asleep and woke up on the hearing of the shrieks of the deceased. He found the accused running away and called him by name. When he turned back, P.W.7 stated that he could identify the accused as it was moonlit night. So far as this aspect of the testimony of P.W.7 is concerned, the trial court has pointed out that in his statement to the Police under Sec. 162, he did not mention that the accused turned his back and that he was able to identify him then. In the earlier statement, P.W.7 did not mention about the moon light but according to the Almanac, the moon set at 5 a.m., and it is quite likely that the incident took place when there was moon light. But it is very difficult to identify a person who is running and showing only his back.
31. Now, let us examine the evidence of the eye-witnesses P.Ws. 1 to 4. P.W. 2 in his chief-examination has stated that when they were getting down, they heard the cries from the southern side of the tank and immediately they focused torchlights towards southern side and at the same time he also focused the torchlight from eastern side at a distance of 10 or 15 feet from the place where they were standing and all of them noticed the accused persons holding knives etc. According to the evidence of P.W. 1, when they focused torchlights, the accused started running towards western side. Similar is the evidence of P.W.3. According to P.Ws. 1 to 4, the night was a dark night and nothing can be seen without the aid of a torchlight. Further, according to their evidence, they focused torchlights from southern side and eastern side and the accused started running away towards western side. It is highly improbable for the witnesses to say that they saw the accused and identified them. At best, the witnesses could have seen either the back side or the side portion of the accused but not from the front side. When it is impossible to see them from the front side, it is not known as to how they identified the accused. Further, in order to establish the power of the torchlights, with the light of which the prosecution witnesses have allegedly seen the accused, the torchlights are also not marked as exhibits.
32. Further, according to the evidence of P.W.15, he stated that the distance between Gopannavalasa, where the accused are living, and Banam, the village in which he is residing, is one kilometer and on 29.8.1997 at about 8.00 p.m., P.Ws.2 and 3 came to his house and enquired about the deceased and when he informed that they left already PWs.2 and 3 left his village immediately. But, the case according to the prosecution and its witnesses is that the alleged offence took place at 8.00 p.m. In the light of the above, it is not safe to rely on the evidence of P.Ws.2 and 3.
33. In the light of the above discussion that it is not safe to believe the evidence of the eye-witnesses regarding the identification by voice, identification of the accused with the aid of a torchlight in a dark night, and the presence of P.Ws.2 and 3 is doubtful, in our considered view, it is not safe to convict the accused for the alleged offences with which they are charged.
34. Accordingly, the appeal is allowed and the judgment of conviction and sentences recorded by the learned Sessions Judge against the appellants-accused is hereby set aside. All the appellants-accused are acquitted for the offences for which they are charged. They shall be set at liberty if they are not required in any other case.
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