N Criminal Appeal No 166 Of 1976
Appeal by Special Leave from the Judgment and Order dated 21 4 75 of the Allahabad High Court in Criminal Appeal No 2776 74 and Referred No 7674
D P Uniyal and M V Goswami for the Appellant
D Mookherjee O P Tewari section section Srivastava and K C Jain for Respondent No 1
R K Garg V J Francis and D K Garg for Respondent No 2
The Judgment of the Court was delivered by 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
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 3 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
According to the prosecution the deceased along with PWs 1  2 had gone to Atarra to witness a drama in the Ramlila Grounds
The party reached Atarra at about 9 o clock and the drama finished at about 12 o clock
Baura and Chanada PWs 2 and 5 were also with the deceased Budhi Bilas when he was returning from the Natak
It is alleged that at about 1230 am the respondent Ashok Kumar fired a few shots which hit the deceased as a result of which he died instantaneously
The two eye witnesses PWs 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 PW 1 who stated in his evidence that he has given the detail 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 34th distance on the night of occurrence and was to set at 323 am 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 Gross s 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 moonlight 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
 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 eye witnesses to identify the respondents from such a long distance on the night of the 4 occurrence
The prosecution suggested that the witnesses had lighted their torches and it was in the light of torches coupled with moon light that identification was possible
In the first place we find it difficult to believe that after Ashok Kumar had given a call and fired the witnesses would dare to flash the torch light and expose themselves to the risk of being shot themselves
Secondly even if torches were lighted in view of the large distance it would not be possible for the witnesses to identify the respondents with absolute certainty
Another important circumstance which appears to clinch the issue is the medical evidence in the case
It appears from the evidence of Dr Pillay P W 7 who performed the post mortem that the small intestines were distended with gas and in the end of the small intestines liquid faeces was present
The doctor further says that large intestines were empty
Doctor also found the stomach to be empty
These facts are also mentioned in the post mortem report
This clearly shows that the deceased must have been shot at a time when he had either not taken any food at all or the entire food if taken was fully digested and left the stomach
PW1 had stated in his evidence that he along with his uncles and the deceased took tea and ate samosas
The deceased had taken two samosas
This meal was taken by the deceased and the witnesses after the Natak ended that is to say at about 12 O clock in the night because the evidence of PW1 is that the Natak started at 9 pm and continued for three hours
If the evidence of this witness is believed then it is completely falsified by the medical evidence which shows that the stomach was empty
In other words if the witness is believed the position would be that the deceased would have been shot only a few minutes after he had taken two samosas and a cup of tea
In that case the stomach would not be empty
Perhaps realising this difficulty the prosecution through the mouth of P Ws 2 and 3 tried to effect a deliberate embellishment in their evidence by making them depose that the deceased Budhi Bilas had taken only milk when he started
PW 3 goes to the extent of saying that deceased Budhi Bilas was suffering from stomach ulcers and he never took any food at night
The story of the deceased having taken samosas is given a complete go back by other eye witness PW 2
Indeed if these witnesses were present at the time when the deceased has taken something we should not have expected any discrepancy of this kind on this important aspect of the matter
Either deceased took food or he did not take any food
This fact would be known to his son PW 1 and also to PW 2
We cannot understand what is the explanation for the two different versions given by PWs 1  2 unless the idea 5 was to bring the evidence at least of PW 2 in tune with the medical evidence
Until the deposition of PW 1 was complete the prosecution did not realise the gravity of the statement made by PW 1 that the deceased has taken two samosas and a cup of tea shortly before the occurrence
This deliberate attempt to introduce a change on a vital issue is by itself a very important circumstance which throws doubt on the prosecution case
It is manifest that whereas witness may lie circumstances never lie
The evidence of the doctor is based on conclusive circumstantial evidence which cannot be belied and therefore an attempt has been made by the prosecution to introduce improvements in explaining the lacuna present in the case
Apart from this we have gone through the evidence of PWs
I  2 and their evidence also is full of discrepancies as pointed out by the High Court
Taking therefore an overall view of the picture we hold that this is not a case in which we should interfere with the order of acquittal passed by the High Court
For the reasons given above we confirm the order of the High Court and dismiss this appeal
The respondent No 1 who is in jail is directed to be released forthwith and respondent No 2 will be discharged from his bail bonds
PBR Appeal dismissed


Summary:
The respondents were charged with an offence under section 302 IPC The prosecution case was that on the night of occurrence which was a moonlight night the deceased and the prosecution witnesses attended a drama in the Ramlila Grounds of the village and when the deceased after taking two samosas and tea was returning home some time past midnight the respondents shot him dead and that this was seen by them from a distance of 150 yards from the scene of occurrence
The trial court believing the prosecution version convicted the respondents
On appeal the High Court rejected the prosecution story and acquitted both the respondents
The State came in appeal to this Court by special leave
Dismissing the appeal  HELD It is well settled that this Court in special leave would not normally interfere with an order of acquittal 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
2H Having regard to the glaring defects in the prosecution story this is not a case in which this Court should interefere with the order of acquittal
3B In the present case though it was a moon lit night according to the almanac the moon would have covered three fourths distance on the night of occurrence
Even in the moonlight it would have been difficult for the witnesses to identify the assailants even if they did the possibility of mistake in identification could not be completely excluded
According to an authority when the moon is at the quarter it is possible to recognise persons at a distance of from 21 ft in bright moonlight at from a distance of 23 to 33 ft and at the very brightest period of the full moon at a distance of from 33 to 36 ft
In tropical countries the distance for moonlight may be increased
Therefore it would not have been possible for the eye witnesses to identify the assailants from a distance of 150 yards
3E G After the assailants had given a call and fired at the deceased the witnesses would not have flashed the torch light as suggested by the prosecution and exposed themselves to the risk of being shot at
Even if the torches were lighted in view of the distance it would not have been possible for the witnesses to identify the assailants with certainty
4B Secondly the medical evidence had shown that the stomach of the deceased was empty and the large intestines too were empty
Therefore the evidence 2 of the witnesses that the deceased took two samosas after the drama at midnight and before the attack is completely falsified by medical evidence
Another prosecution witness stated that the deceased having had stomach ulcers never took any food at night
Apparently until the deposition of the first witness was complete the prosecution did not realise the gravity of the statement made by him and deliberately introduced a change on a vital issue which by itself is an important circumstance throwing doubt on the prosecution case
While witnesses may lie circumstances would never
Tho evidence of the doctor based on conclusive evidence cannot be belied
4F H