S. I. JAFRI, J. ( 1 ) APPELLANT Anant Ram has filed this appeal against his conviction and sentence recorded by Sri V. S. Agarwal, II Addition District and Sessions Judge, Budaun by his judgment order dated 12-4-1977. The appellant Anant Ram was convicted under Sections 364 Indian Penal Code, 302 Indian Penal Code and 201 Indian Penal Code and sentenced to four years R. I. under Section 364 Indian Penal Code; to life imprisonment under Section 302 Indian Penal Code and to two years R. I. under Section 201 Indian. Penal Code respectively. The Sessions Judge had acquitted the co. accused Sewak Ram, Sant Ram and Ashok Kumar of the charges under Sections 364 Indian Penal Code, 302 Indian Penal Code and 201 Indian Penal Code. The appellant Anant Ram and co-accused San too Ram are the sons of Sewak Ram while the accused Ashok Kumar was closely related to the appellant, and all the appellants are Brahmins by caste. ( 2 ) THE prosecution case is that there was one Laxmi in the village Risauli in the district of Budaun against whom two criminal cases were registered. In one of the cases Sewak Ram accused, the father of the appellant Anant Ram, had stood surety for him and in the other case Thakuri, the father of the deceased Khubi Singh, had stood surety for him. It is said that sometime after the release of Laxmi from jail, Laxmi died and Sewak Ram accused put his lock in his house on the ground that he had stood surety for him. It is alleged that about 8 or 10 days before the murder, Khubi Singh was sitting at his door when Sewak Ram, along with his sons Anant Ram and 8antoo Ram and also Ashok Kumar were returning back from the jungle and when they came infront of the house of Khubi Singh, Khubi Singh remarked that his father had also stood surety for Laxmi so he was also entitled to get possession over the house of Laxmi. This remark of Khubi Singh enraged Sewak Ram who threw stone on Khubi Singh which in return was thrown on Sewak Ram by Khubi Singh and after some exchange of hot words the parties were separated on the intervention of the people of the village. This remark of Khubi Singh enraged Sewak Ram who threw stone on Khubi Singh which in return was thrown on Sewak Ram by Khubi Singh and after some exchange of hot words the parties were separated on the intervention of the people of the village. The prosecution case further is that on 7th April 1976, Khubi Singh had gone to answer the call of the nature along with Jagan (P. W. 2) at about 8 or 9 P. W. and while they were washing their hands at the well of Jandel Singh, the four accused persons overpowered Khubi Singh. At that time the appellant Anant Ram and the co-accused Santoo Ram were armed with guns while the accused Ram Sewak and Ashok Kumar were armed with lathis. P. W. Jagan entreated the accused to spare Khubi Singh but they refused and forcibly took away Khubi Singh with them towards northern side in the jungle. Jagan then immediately came back to the village and informed Thakuri. the father of Khubi Singh about the happening. Thakuri (P. W. 1) along with Jagan (P. W. 2) and P. W. 3 Pokhey rushed towards the place from Khubi Singh was abducted in search of Khubi Singh. Jagan (P. W. 2) and Pokhey (P. W. 3) had torches with them and when they reached the grave yard they heard the voice of Khubi Singh who was saying, Panditji do not kill me and I will not go to take possession over the house of Laxmi. P. Ws. Jagan and Pokhey at once flashed their torches on hearing the voice of Kbubi Singh and in the light of torches they bad seen the four accused standing there and at that moment the appellant Anant Ram fired at Khubi Slogh with his gun and he fell down on the spot. Thakuri. Jagan. Pokhey and Jogender raised alarm but the accused threatened them and also proceeded towards the witnesses whereupon on account of fear P. W. Thakuri. Jogender, pokhey and Jagan had run away to the village. After returning to the village P. W. 1 Thakuri collected some persons and returned to the placet where Khubi Singh had fallen down in search of Khuoi Singh but neither Khubi Singh nor the accused were found there and Thakuri and others had again returned to the village. Jogender, pokhey and Jagan had run away to the village. After returning to the village P. W. 1 Thakuri collected some persons and returned to the placet where Khubi Singh had fallen down in search of Khuoi Singh but neither Khubi Singh nor the accused were found there and Thakuri and others had again returned to the village. It is further stated that the next morning Thakuri and others went to the jungle in search of Khubi Singh and they found some blood near the tube well of Sushil Kumar. Following the trial of blood, they reached the field of Ram Beti where they found underwear Ex. 1 of Khubi Singh deceased, Baniyan Ex. 2 and Shirt Ex. 3 belonging to Khubi Singh were also found in the field of Soran Singh and ultimately at a distance of one and half miles from there, the dead body of Khubi Singh was found in the well of Narain Singh. P. W. Thakuri went to the police station Bilsi and dictated an oral report of the occurrence to P. W. 6 Rajendra Kumar, Head Constable who prepared the chik report copy of which is Ex. Ka -I. He also registered the case in the General Diary of the Police Station. Girish Chandra, S. I. was entrusted with the investigation of the case. According to P. W. Girish Chandra the case was registered in his presence at the Police Station and he recorded the statements of P. Ws. Thakuri and Kunwar Singh at the Police Station and then he proceeded to the place of occurrence along with the complainant and got the dead body of the deceased taken out from the well of Narain Singh and Prepared the Inquest Report on the dead body of Khubi Singh and the said report is Ex. Ka-4. The S. I. then sent the dead body of Khubi Singh to the mortuary through Constable Qudrat AU (P. W. 5 ). He then,prepat:ed the site plan of the place where the dead body of Khubi Singh was recovered which is Ex. Ka-7. He, then, recorded the statements of P. W. 3 Pokhey and P. W. 7 Jagannath Singh. He also inspected the place where Khubi Singh was fired at and prepared site plan which is Ex. Ka-8. The dead body of Khubl Singh which was taken out from the well of Narain Singh was headless and nacked. Ka-7. He, then, recorded the statements of P. W. 3 Pokhey and P. W. 7 Jagannath Singh. He also inspected the place where Khubi Singh was fired at and prepared site plan which is Ex. Ka-8. The dead body of Khubl Singh which was taken out from the well of Narain Singh was headless and nacked. The S. I. also took the plain and the blood stained earth from the place of occurrence. He had also taken possession of underwear, shirt and baniyan of Khubi Singh. ( 3 ) DR. E. A. K. Tewari (P. W. 4) conducted the autopsy on the dead body of Khubi Singh on9. 4. 76 in the District Hospital. The doctor found the following ante-mortem injuries on. the person of Khubi Singh. 1. Abrasion 21/2 cm x 0. 5 cm-9 cm below left nipple of 5 QT Clock position. 2. Multiple abrasions in an area of 7 cm x 3 cm x 5 cm from the left nipple of 7 Oclock. 3. Abrasion 3 cm x 1. 9 cm on dorsum of left hand. 4. Abrasion 4 cm x 1. 5 cm on outer side of upper part of left thigh. 5. Abrasion 1. 5 cm x 0. 5 cm on left knee. 6. Multiple abrasions in an area of 15 cm x 4 cm on the skin and outerside of left leg. 7. Multiple abrasion in an area of 3 cm x 1 cm x 3 cm below injury No. 5. 8. Multiple abrasions in an area of 30. cm x 26 cm involving both buttocks. 9. Incised wound 11 cm x 9 cm with a circumference of 34. 5 cm at the leval of upper part of last servical vertebra severing all the structers of neck. 10. Gun shot wound of entry 1. 5 cm x 1 cm with an area of 3 cm x 2. 5 cm on the lower part of back of left side of chest surrounded with blackening. 11. Six gun shot wounds of exit in an area of 7 cm x 5 cm at 9 Oclock position left nipple of 4 cm away from it. ( 4 ) ACCORDING to the doctor the death was caused due to shock and haemorrhage due to ante-mortem injuries. ( 5 ) THE investigation of the case was taken over by Badan Singh (P. W. 9) on 15. 5. ( 4 ) ACCORDING to the doctor the death was caused due to shock and haemorrhage due to ante-mortem injuries. ( 5 ) THE investigation of the case was taken over by Badan Singh (P. W. 9) on 15. 5. 76 from the earlier Investigating Officer, Girish Chandra (P. W. 8) and after completing the investigation he submitted the charge sheet against the appellant in the court which is Ex. Ka-12. ( 6 ) WE have heard Sri P. N. Misra, learned counsel for the appellant at a great length and also the Government Advocate for the State and we are of the view that the conviction recorded by the trial court cannot be sustained and this appeal must be allowed. ( 7 ) IN support of the prosecution case three witnesses were examined, namely Thakuri (P. W. 1), lagan (P. W. 2) and Pokhey (P. W. 3) as eye-witnesses of the occurrence. 8. P. W. 1 Thakuri is the father of the deceased. He stated that he got the information from lagan (P. W. 2) that his son Khubi Singh was forcibly taken away by the appellants from near the well of Jandel Singh while he was returning after easing along with Jagan. He along with P. W. 2 Jagan, P. W. 3 Pokhey and Jogendra Singh proceeded towards the aforesaid well of Jandel Singh in search of his son Khubi Singh and when they reached the grave yard they heard the voice of Khubi Singh saying Panditji do not kill me and I will not go to take possession over the bouse of Laxmit and at that time torches were flashed by P. W. 2 Jagan and P. W. 3 Pokhey and he saw all the four accused standing there and appellant Anant Ram had fired with his gun at Khubi Singh who fell down on the spot. He further stated that on account of fear they along with P. W. Jagan, Pokhey and Jogendra went back to the village and, thereafter, waiting for some time, they again went in the jungle in search of Khubi Singh but neither the deceased nor the accused were seen and consequently, they again returned back to the village. He further stated that on account of fear they along with P. W. Jagan, Pokhey and Jogendra went back to the village and, thereafter, waiting for some time, they again went in the jungle in search of Khubi Singh but neither the deceased nor the accused were seen and consequently, they again returned back to the village. The next morning be again along with others went to the jungle in search of his son Khubi Singh and the underwear, baniyan and shirt of the deceased Khubi Singh were found lying in the fields of Soran Singh and others and ultimetely the dead body of Khubi Singh was found in the well of Narain Singh. Thereafter, he went to the Police Station and lodged the report there. ( 8 ) IN this case it may be noted that admittedly the place from where the deceased was abducted by the appellants and the co-accused is about 600 yards from the village of the complainant and the place where the deceased was alleged to have been fired at near the Qabrastan is alleged to be about 200 yards from the village of P. W. 1 Thakuri. The complainant has also admitted that there are several Khaliyans near the Qabrastan and Khaliyans are continued upto the village abadi. It is surprising that not a single person had come forward amongst the persons who had kept their Khaliyans near the place of occurrence in support of the prosecution case. No blood was also found at the place where Khubi Singh was alleged to hace fallen down after receiving the injury near the Qabrastan. Thakuri (P. W. 1) did not mention in his report Ex. KA-1 lodged at the police station that lagan (P. W. 2) had gone for easing along with the deceased Khubi Singh. Therefore, his subsequent statement in the court that Jagan (P. W. 2) had gone with Khubi Singh. for easing is an after thought and Thakuri had stated as such in order to make the Statement of P. W. lagan Singh probable at the alleged time of abduction of the deceased. Therefore, his subsequent statement in the court that Jagan (P. W. 2) had gone with Khubi Singh. for easing is an after thought and Thakuri had stated as such in order to make the Statement of P. W. lagan Singh probable at the alleged time of abduction of the deceased. Thakuri has also admitted that after returning to the village on seeing the firing on Khubi Singh due to fear, he remained in his village for about one hour and, then he agaia went to the jungle in search of his son Khubi Singh with few persons who were not armed with guns. He had also admitted in his evidence that there are 9 or 10 gun licencees in the village but he did not take the help of the licencees of his village. If Thakuri had really seen the firing on his son Khubi Singh, he would have taken the help ,of gun licencees of his village. The conduct of Thakuri in not taking the help of gun licencees in search of his son after his son was fired at by the appellant is highly unnatural and improbable. ( 9 ) THERE is also undue delay in lodging of the F. I. R. at the police station i. e. the next day at 12. 30 P. M. though the village Risauli is at. a distance of only 9 miles from the police station Bilsi. P. W. Thakuri after seeing the firing at his son Khubi Singh at about 8 or 9 P. M. did not rush to the police station for lodging the report had for taking the help from the police in finding out his son. Re also did not send any body on his behalf or any member of his family for lodging the report at the police station. Early in the next morning, be could also have gone for lodging the report at the police station but it appears that it was not purposely done on account of consultation and delebration by Thakuri and this undue delay in lodging the first information report has not been explained and, therefore, the prosecution case is doubtful. ( 10 ) THE other two witnesses of the occurrence are Jagan (P. W. 2) and Pokhey (P. W. 3 ). They are highly partisan. ( 10 ) THE other two witnesses of the occurrence are Jagan (P. W. 2) and Pokhey (P. W. 3 ). They are highly partisan. P. W. Jagan is the cousin of the deceased while P. W. 3 Pokhey is the uncle of P. W. 1, Thakuri. The learned Sessions Judge has rightly disbelieved their part of evidence to the effect that they had torches with them at the time of occurrence as these witnesses did not state before the Investigating Officer that they had torches with them at the time of firing by the accused at Khubi Singh. After holding that these two witnesses, namely P. W. 2 Jagan and P. W. Pokhey had no torches with them at the time of assault on the deceased Khubi Singh. the learned Sessions Judge came to the conclusion that the three witnesses, namely P. W. Thakuri, P. W. Jagan and P. W. Pokhey had recognised the appellant and the three co-accused Sewak Ram, San too Ram and Ashok Kumar in the light of the moon and they had also seen the appellant Anant Ram firing at the deceased. Khubi Singh in the light of the moon. It is in the evidence that it was the 7th day of the lighted half of the month and the moon must have been there on the sky when the present occurrence occurred and, therefore, in view of the moon light available at the time of occurrence, the trial court placed reliance on the evidence of P. W. 5 Thakuri, lagan and Pokhey that they had recognised the appellant and the three accused, namely Ram Sewak, San too Ram and Ashok Kumar in the light of the moon. The learned Sessions Judge had come to the conclusion that the distance between the witnesses and the accused at the time of firing was 27 paces and according to him the witnesses could have recognised the appellant and the three co-accused in the light of the moon from a distance of 27 paces. ( 11 ) WE have given our anxious thought to this aspect of the matter regarding the sufficiency of moon light at the time of occurrence for the recognition of the accused by the witnesses. ( 11 ) WE have given our anxious thought to this aspect of the matter regarding the sufficiency of moon light at the time of occurrence for the recognition of the accused by the witnesses. The learned Sessions Judge had come to the conclusion that the witnesses had seen the accused from a distance of 27 paces but this assessment of distance given by the learned Sessions Judge accordingly to us is incorrect. According to the statements of the. witnesses and the statement of the Investigating Officer P. W. 8 Girish Chandra who had actually given the distance in the site plan prepared by him comes to 37 paces. We have also taken pains in thoroughly going through the statements of witnesses and the distance given in the site-plan and we have come to the conclusion that the witnesses were at a distance of about 37 paces from the assailants at the time of alleged firing on the deceased and if we take one step equal to one a half feet, then, the witnesses were at a distance of 551/2 feet from the assailant at the time of firing at the deceased. According to the book Criminal Investigation by Dr. Mans Gross who at page 159 has mentioned his opinion regarding the sufficiency of moon light for the recognition of known persons which is quoted below ; by moon light one can recognise when -the moon is at its quarter, persons at a distance of twenty one feet, in the bright moon light at from twenty three to thirty three feet; and at the very bright period of the full moon, at a distance of from thirty-three to thirty six feet. In tropical countries the distance for moon light may be increased. mr. J. N. Modi in his book Modis Medical Jurisprudence and Toxicology in 20th Edition mentioned at page 61 that according to Tidy The best known person cannot be recognised in the clearest moonlight beyond a distance of seventeen yeards. Mr. N. J. Modi had also quoted the of Colonel Bary (I. M. S.) opinion/about recognition of known persons in moon light which is given below ; that at distances greater than 12 yards, the stature of outline of the figure alone is available as a means of identification. To define the feature even at shorter distance is practically impossible by moon light. To define the feature even at shorter distance is practically impossible by moon light. T therefore considering the over all opinion to the experts regarding the sufficiency of moon light for the recognition of known persons based on experiments conducted by Dr. Mans Gross, Tidy and Colonel Bary we safely hold that the recognition of known persons in the bright moon light is not possible from a distance of fifty feet. ( 12 ) IN the present case we have come to the conclusion that the witnesses were at a distance of 37 paces or about 55-1/2 feet from the accused at the time of firing on Khubi Singh deceased and as such they could not have recognised the assailants in the moon light and, therefore, no reliance could be placed that the prosecution has failed to prove the charge against the appellant. In the result, the appeal is allowed, the conviction and sentence recorded by the Sessions Judge is set aside. The appellant is on bail. He need not surrender. Appeal allowed .