BEHERA, J. ( 1 ) THE order of conviction under Section 302 read with Section 34 of the Indian Penal Code has been recorded against the appellants by the Court of Session, sentencing them to undergo imprisonment for life, after holding the case of the prosecution established that in the evening of November 3, 1979, the four appellants, one of them, namely, Puma Chandra Jena, being armed with a bicycle chain and the other three appellants, namely, Rama Chandra Jena, Ghanashyam Jena and Sindhu Jena, being armed with lathis, assaulted Sidhanath Mohanty (hereinafter described as the deceasedt) under a banyan tree near the Gangadharpur U. P. School in the district of Cuttack which resulted in his death and they took to their heels. The deceased was carried to Jaipur and he was treated by the doctor (P. W. 9), but he succumbed to the injuries where after another doctor (P. W. 8) conducted the autopsy. On the first information report being lodged by P. W. 2, the investigation proceeded and on its completion, a charge-sheet was placed and the appellants were prosecuted. ( 2 ) OF the ten witnesses examined for the prosecution to bring home the charge under Section 302 read with Section 34 of the Indian Penal Code, P. Ws. 2 to 4 did not support it and were put leading questions under Section 154 of the Evidence Act. The prosecution-J: had relied on the testimony of P. W. 1 who claimed to have witnessed the occurrence of assault, that of P. Ws. 1, 5 and 6 who had seen the appellants going away from the place of occurrence soon after the assault on the person of the deceased, the medical evidence and the recoveries of a Dhoti (M. O. I) and a Punjab; (M. O. II) from the person of the appellant Rama Chandra Jena, a lathi, a cut portion of which had been marked M. O. III, from a paddy field on the basis of the statement made by the appellant Ghanashyam Jena, a Dhoti (M. O. IV) on production by the appellant Sindhu Jena and a Dhoti (M 0. VI) on production by the appellant Puma Chandra Jena in the course of investigation which, on chemical examination and serological test, were found to contain human blood. There was, in addition, a dying declaration said to have been made by the deceased before P. Ws. VI) on production by the appellant Puma Chandra Jena in the course of investigation which, on chemical examination and serological test, were found to contain human blood. There was, in addition, a dying declaration said to have been made by the deceased before P. Ws. 1 and 5 to 7. ( 3 ) THE learned trial Judge held that no motive for the commission of the offence had been established. The evidence with regard to the dying declaration was rejected because of serious differences in the testimony of the witnesses. The evidence of P. W. 5 that the appellants had been seen going away from the spot was not relied on, as this important statement had not been made by P. W. 5 in the course of investigation. The learned Sessions Judge relied on the ocular testimony of P. W. 1 with regard to the occurrence and that of P. Ws. 1 and 6 who had seen the appellants going away from the spot. Besides, reliance had been placed by him on the recoveries of the incriminating articles referred to above which contained human blood. ( 4 ) MR. Dhal, appearing for the appellants, has taken us through the relevant evidence and has contended that the evidence of P. W. 1 was not worthy of credence and the evidence of this solitary witness was not of such a character as could be the basis of an order of conviction. He has submitted that all was not well between P. W. 6 on the one hand and the appellants on the other hand he had strained relationship with them. In such circumstances, it would not be safe and proper to unreservedly accept his evidence and hold that he had seen the appellants going away from the spot. The learned Standing Counsel bas not seriously pressed into service the evidence ofp. W. 6 and in our view, justifiably so. He bas submitted that the evidence of P. W. 1 was true and trustworthy. According to him, if the evidence of P. W. 1 with regard to the occurrence is not accepted by this Court, the order of conviction cannot be sustained. ( 5 ) AS regards the recoveries of incriminating articles, we notice a very disquieting feature in the examination of the appellants by the trial court. According to him, if the evidence of P. W. 1 with regard to the occurrence is not accepted by this Court, the order of conviction cannot be sustained. ( 5 ) AS regards the recoveries of incriminating articles, we notice a very disquieting feature in the examination of the appellants by the trial court. A composite question regarding the recoveries from all the appellants was put to each one of them and the finding of human blood in all the articles was also put in another composite question. The criticism of the defence that such composite questions should not have been put to the appellants as such questions would tend to mislead and would prejudice the accused persons appears to us to be legitimate. Mr. Sahoo has submitted for the State that separate questions with regard to the recoveries from each of the accused persons ought to have been put so that the appellants could have properly answered with regard to the recoveries said to have been made from their possession either from their person or on production. Even assuming, however, that this made of examination of the appellants had not caused prejudice to them, as has been submitted by the learned counsel for both the sides, these circumstances, by themselves, would not be of any consequence and could only support if the other evidence would point to the guilt of the appellants. The question for consideration, therefore, is as to whether the evidence of P. W. 1 could safely be accepted and acted upon. ( 6 ) EVIDENCE is to be weighed and not counted. In order to base a conviction on the evidence of a solitary witness such evidence must be clear, cogent and consistent and should be above reproach and of an unimpeachable character. ( 7 ) THE occurrence had taken place on November 3, 1979 at about 7 p. m. It was a wintry evening and there had been night-fall. The witness claimed to have seen the occurrence not by means of any light which he had, but because if was a moon-lit night. As deposed to by him in his examination-in-chief, he had seen the occurrence while he was at a distance of about two hundred cubits although he shifted his stand in his cross-examination and reduced the distance to about fifty cubits with the evident purpose of making his evidence probable. As deposed to by him in his examination-in-chief, he had seen the occurrence while he was at a distance of about two hundred cubits although he shifted his stand in his cross-examination and reduced the distance to about fifty cubits with the evident purpose of making his evidence probable. His evidence was that the appellant Puma Chandra was assaulting the deceased by means of a bicycle chain and the other appellants were assaulting him with Kilos (lathis ). According to him, he raised a hulla which drew the attention of others including P. Ws. 5 and 6. It is important to, keep in mind that P. W. 5 had not stated about the presence of P. W. 1 on the spot when be came to the scene. P. W. 6 seems to be an unreliable witness and no part of his testimony can be accepted. There was no evidence in support of that of P. W. 1 that he came to the scene whereafter he had seen the appellants going away from the spot. ( 8 ) THE evidence of P. W. 1, apart from its infirmities and suspicious features referred to above, would not stand a scientific test. In this connection, we may refer to an extract from Criminal Investigation by Dr. Hans Gross, Fifth Edition, at page 159. We quote: It is appropriate here to call attention to what has been said about the distance at which we can recognise persons. Presuming the eye-sight to be normal and the light good, one is able in broad day-light to recognise: (b) Persons whom one knows very well, at a distance of from fifty to ninety yards; when there are particular and very characteristic signs, 110 yards; in exceptional cases upto 165 yards. (c) Persons one does not know very well and has not often seen, from twenty-eight to thirty-three yards. (d) People one has only seen once, sixteen yards. By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from twenty-one feet, in bright moonlight at from twenty-three to thirty-three feet; and at the very brightest period of the full moon, at a distance of from thirty-three to thirty-six feet. (d) People one has only seen once, sixteen yards. By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from twenty-one feet, in bright moonlight at from twenty-three to thirty-three feet; and at the very brightest period of the full moon, at a distance of from thirty-three to thirty-six feet. In tropical countries the distance for moonlight may be increased In Kunnummal Mohammed and another v. State of Kerala,1 a Division Bench of the Kerala High Court had referred to Modi's Medical Jurisprudence and Toxicology-l3th Edition and extracts from some authorities which we quote: TTModi (vide Modi's Medical Jurisprudence and Toxicology-l3th Edition page 60) while dealing with the amount of illumination required for identification observes: According to Tidy, the best known person cannot be recognised in the clearest moonlight beyond a distance of seventeen yards. Colonel Barry, I. M. S. is of opinion that at distances greater than 12 yards the stature or outline of the figure alone is available as a means of identification. define the features even at a shorter distance is practically impossible by moonlight. Dr. Vincent in Legrand and Saule's Legal Medicine says that:. presuming the eye-sight to be normal by moon-light one can recognise, when the moon is at the quarter, persons at a distance, of 21 ft. , in bright moonlight at from 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 from for moon-light may be increased. Even giving an allowance for a longer distance for identification of persons in the moonlight night in a tropical country like ours, we find that it would not be possible physically and scientifically on the part of P. W. 1 to have identified thet appellants assaulting the deceased from the distance and in the manner testified by him. ( 9 ) WE thus find that the evidence of P. W. 1 was not worthy of acceptance. The charge had not been brought home to the appellants and they were entitled to an acquittal. ( 10 ) IN the result, the appeal is allowed and the order of conviction and sentences passed against the appellants are set aside. The appellants be set at liberty forthwith. .