JUDGMENT 1. - Appellant Halkey was one of the two persons who were tried by the learned Addtional Sessions Judge, Gangapur City, under section 307 I. P. C. By his judgment dated April 20, 1977, the learned Judge acquitted the co-accused Kishori but convicted the appellant Halkey under section 307 to under go rigorous imprisonment for 5 years and to pay fine of Rs. 500/-, or in default, to undergo further rigorous imprisonment for six months. 2. The case of the prosecution which resulted in the conviction and sentence of the appellant, as aforementioned, is that on receipt of information that Halkey accused and other dacoits would be coming to Kailadevi along with a particular Nala, the S. H. O. Khemsingh, P. S. Kailadevi, posted his men at three different places to intercept the dacoits. It is alleged that the police party, consisting of 8 persons headed by Head Constable Nathuwalal, lay in ambush behind the embankment of the Nala near Lalman's house in village Kaser. The party saw the dacoits coming down the Nala towards them. They challenged the dacoits when they were at a distance of nearly 40 or 50 yards from them. It is alleged that from that distance the dacoits fired at the members of the police party who were laying in ambush behind the trees. The police party returned the fire. The dacoits ran away. The police party then chased them for some distance, but without any success. 3. It is alleged that Head Constable Nathuwalal and constables Parasram, Ramkarandas and Ramsingh, were able to see the bandits in the moonlight from a distance 40 or 50 years and thus discovered that they included the appellant as well. The first information report, which was recorded the same night, at the instance of Nathuwalal, mentioned the names of all the four culprits including the appellant Halkey. 4. Relying on the evidence of P. Ws. Nathuwalal, Parasram, Ramkarandas and Ram Singh, the learned trial Judge held the appellant guilty of the charge under section 307 I. P. C. and convicted and sentenced him as mentioned above. 5. In this appeal on behalf of Halkey, the learned counsel has pointed out that all the four witnesses have admitted that before the night of this occurrence, they had never talked to the appellant and did not have any opportunity dealing with him in any case etc. 5. In this appeal on behalf of Halkey, the learned counsel has pointed out that all the four witnesses have admitted that before the night of this occurrence, they had never talked to the appellant and did not have any opportunity dealing with him in any case etc. registered with the police. They would have us believe that they had casually known the appellant as a bad-character since on occasions they had seen him visiting the police station. It was on that basis that they claimed to have identified him among the bandits on April 13, 1976, at 10 p.m. from a distance of 40 or 50 yards. Assuming that there was any moonlight at that time, as the witness claimed, it would be difficult if not impossible to believe the that they could have seen the face of Halkey in sufficient details in moonlight from a distance of 40 or 50 yards. Modi, in his "Medical Jurisprudence and Texicology" 20th edition, 1977, has mentioned at page 61 that according to Tidy, even the best known person cannot be recognised in the clearest moon-light beyond a distance of 17 yards. If so, the four witnesses in the instant case, who do not claim to have known Halkey so as to describe the latter to be "the best known person" to them could not have possibly recognised him in moonlight from a distance of 50 yards. 6. I am, therefore, of the considered opinion that it would not be safe to convict Halkey on the basis of the testimony of the aforementioned four witnesses. Giving him the benefit of doubt, I would allow this appeal, set aside the order of conviction and sentence and instead acquit him. He shall be released forthwith if not required to be detained in any other case.Appeal allowed. *******