Judgment

FAZAL ALI, J. :- The respondents had been convicted by the Additional Sessions Judge, Banda under Section 302 of Indian Penal Code and sentenced to imprisonment for life. The respondents thereafter filed an appeal to the High Court of Allahabad which after a full and complete consideration of the evidence came to a finding of fact that the prosecution has not proved its case and accordingly acquitted the respondents. The High Court rejected the prosecution case mainly on two grounds. In the first place, it held that having regard to the circumstances and the distance from which the witnesses saw the accused, it was difficult for them to identify the accused. Secondly, the High Court found that in view of the medical evidence which showed that the large intestines of the stomach were absolutely empty, the evidence of the eye-witnesses could not be believed. Against the order of acquittal passed by the High Court the State came up to this Court by special leave and after obtaining the same the case has been placed before us for hearing.

2. The facts of the case have been set out in the judgment of the High Court and it is not necessary for us to repeat them again. It is well-settled that this Court would not normally interfere with an order of acquittal in special leave unless there are cogent reasons for doing so or unless there is a gross violation of any procedure of law which results in serious miscarriage of justice. We have heard counsel for the parties and have gone through the judgment of the Sessions Judge and of the High Court. It is true that High Court has not made an attempt to discuss the intrinsic merits of the evidence of the eye-witnesses but having regard to the glaring defects appearing in the prosecution case, we are in agreement with the ultimate view taken by the High Court.

3. According to the prosecution the deceased along with P.Ws. 1 and 2 had gone to Atarra to witness a drama in the Ramlila Grounds. The party reached Atarra at about 9 Oclock and the drama finished at about 12 Oclock. Baura and Chanda P.Ws. 2 and 5 were also with the deceased Budhi Bilas when he was returning from the Natak. It is alleged that at about 12-30 a.m. the respondent-Ashok Kumar fired a few shots which hit the deceased as a result of which he died instantaneously. The two eye-witnesses P.Ws. 1 and 2 admittedly saw the firing from a distance of about 150 yards, as would appear from an examination of the site plan-Ka-23 and which is endorsed by P.W. 1 who stated in his evidence that he has given the details of the place from where they saw the occurrence to the Investigating Officer at the spot. The first question which falls for consideration is as to whether or not the witnesses would be in a position to identify the respondents from such a large distance at night. It is true that it was a moon-lit night but from a reference to the almanac it would appear that the moon had covered 3/4th distance on the night of occurrence and was to set at 3.23 a.m. Even though there may be some moon light at that night, it is difficult for the witnesses to identify the respondents or even if they did the possibility of mistake in identification cannot be completely excluded. In this connection, we may refer with advantage to the following passage appearing in Dr. Hans Grosss Criminal Investigation at page 185.

"By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from 21 feet, in bright moon-light at from 23 to 33 feet; and at the very brightest period of the full moon, at a distance of from 33 to 36 feet. In tropical countries the distances for moonlight may be increased."

4. The opinion of Gross referred to above fully fortifies our conclusions that it was not possible for the witnesses to have identified the respondents even in moonlight from a distance of about 150 yards. In these circumstances, therefore the High Court was fully justified in holding that it was not possible for the eyewitnesses t