Identification of accused in dark night is impossible.

JUDGMENT :

J.M. Mahapatra, J. - The revision is directed agains the judgment and order dated, 26-7-1986 of the learned Second Additional Sessions judge, Cuttack allowing the appeal and acquitting the opposite parties of the offences' Under Sections 436, 427, 447 and 379, I, P. C.

2. Briefly stated, the prosecution case is that on 3. 5. 1983 at about 10'. Clock in the night the opposite parties went in a group to the house of the informant, P. W. 1, called him from out side to come out. As the informant, P. W. 1, did not come out they pelted brickbats and stones to the tiled and asbestos roof of his' house which were consequently damaged. The opposite parties are also alleged to have set fire to the thatched roof of his house and to have entered into the bari of the informant by breaking open the fence and removing the bullock cart therefrom. After the fire was extinguished, P. W. 1 lodged F. I. R. Ext 1 at Baramba police station at 10. 45 A. M. on 4-5-1933. A case was registered, investigation followed and eventually charge sheet Under Sections 447/436/427 and 379, I. P. C. read with Section 34 I. P. C was placed against the opposite parties.

3. The plea of all the opposite parties at the trial was one of total denial. It is specifically pleaded that they have been falsely implicated.

4. In suport of its case prosecution has examined as many as eight witnesses of whom P. W. 1 is the informant, P. W. 2 is his father, P. Ws. 3, 4 and 5 the eye witnesses, P. Ws. 6 and 7, witnesses to seizure, while P. W. 8 is the investigating Officer. The learned Court relied on the ocular testimory of the eye-witnesses. P. Ws. 1 to 5 accepted the prosecution case and found all the opposite parties guilty of the offences indicated earlier, and has convicted them and sentenced to rigorous imprisonment for one year u/s 446 and rigorous imprisonment for two months Under Sections 427, 447 and 379, I. P. C. on each count. The learned appellate Court has disbelieved the prosecution case mainly on the ground that in the dark night the witnesses could not at ail have identified the opposite parties, and for this he has relied on the authority of a Bench decision of this Court reported in (Rama Chandra Jama and three others v. State of Orissa). He has also found that opposite party Nos. 5 and 6 Sukiri Naik and Maguni Naik were not named in the F. I. R. and that opposite party No. 3 Keshab Panda has been wrongly described and as- such his identity was in great doubt. On these grounds, he set aside the conviction and sentence of opposite party Nos. 3, 5 and 6.

5. Mr. Rao, learned counsel appearing for the petitioner has strenuously contended that the occurrence having taken place on the 6th day after the new moon, the visibility of the witnesses could be said to have been open to any doubt. The learned Court below has found that the 6th day after the new moon at about midnight would be a time when the moon would not be in the sky any more and would have gone beyond the horizon, and in the pitch dark night the witnesses P. Ws. 1 to 5 could not have been able to identify the culprits from the distance from which they claimed to have seen them. In the Bench deivision of this Court (supra) the question of visibility of a witness came up directly for decision and quoting Dr. Han's Gross Criminal Investigation, Firth Edition, at page 159 it was held that even if the eye sight is normal and the light is good by moonlight one can recognize a person at a distance from 21 feet when the moon is at the quarter and from a distance of 23 to 33 feet in the bright moon light. Referring to Modis' Medical Jurisprudence and Toxicology, 13th Edition, page 60. it is observed as follows :

"According to Tidy, the best known person cannot be recognised in the clearest moon light beyon a distance of seventeen yards. Colonel Barry, I. M. S. is of opinion that at distances greater than 12 years the stature of outline of the feature alone is available as a means of identification. To defin