Santosh Duggal, J.
(1) The present appeal filed by convict Victor Paul @ Raju is directed against his conviction for offences under section 307 Ipc as well as section 27 and section 25 of the Arms Act. By consolidated judgment dated 5th February, 1987, recorded by Shri V.P. Bansal, then Addl. Sessions Judge, New Delhi, the appellant was sentenced to R.I. for three years for offence under section 307 Indian Penal Code and to R.I. for two years on account of conviction under section 27 of the Arms Act and another R.I. for one year under section 25 of the Arms Act by separate order recorded on 7th February. 1987. The sentences were, however, directed to run concurrently.
(2) The present criminal appeal was filed from jail while the convict was undergoing the sentence and the plea is that of failure on the part of the trial court to take note of the vital and glaring discrepancies in the statements of the prosecution witness, rendering the case as not worthy of conviction. Some details of the alleged discrepancies in the statements of the material witnesses are also set out in the grounds of appeal. Reference is also made to the opinion of the Cfsl expert who failed to depose about certain material facts such as the evidence whether the weapon bad been used. It is pleaded that the oral evidence cannot be relied upon in the absence of the opinion of the expert whether this weapon was fit to be operated upon. Although the criminal appeal was admitted but the prayer for bail was declined.
(3) Mrs. Usha Kumar, an advocate of this Court was appointed amices curiae for the appellant. The appeal was today talked up for hearing when Mrs. Kumar appeared as amices curiae for the appellant and Miss R. Wasu for the State. Both the learned counsel very ably assisted the Court in going through the trial court judgment and the records.
(4) The gravamen of the charge against the appellant that on the night of 9th October, 1985 some time between 8.30 and 9 p.m. became to the shop of Public Witness 1 Amar Nath who is having a betel-cum-cigarette shop near Odeon Cinema, Connaught Place, New Delhi and firstly picked up a betel leaf and thereafter one packet of cigarettes of 'Classic' brand and moved away without making any payment. The prosecution story goes on to allege that the owner of the shop in his anxiety to recover the money. followed the said person whose name was subsequently discovered as Victor Paul (namely the present appellant) and he was able to stop him somewhere near the petrol pump but the appellant instead of acceding to the demand for payment of money, picked up a row. In the meantime a consble, named, Hans Raj who was on petrol duty in the area, also came on the scene and he along with Public Witness I Amar Nath chased the appellant and when the constable made effort to make the appellant either to return the cigarette packet or make the payment, the latter took out a country made revolver from the dub of his pocket and while trying to escape, fired a shot at them but both of them escaped having kneeled down but still chased him when Pw 2 Radhey Shyam had also joined them and allegedly another shot was also fired by the appellant which these persons were able to escape. A police party also reached there and Si Hukam Chand Rana, then posted at P.S. Connaught Place, New Delhi along with others allegedly chased the accused and they were able to apprehend him at Royal Restaurant. Connaught Circus, New Delhi were a revolver was recovered from his possession.
(5) In view of the statement given by Wp I Amar Nath, a case under section 307 Indian Penal Code was registered vide Fir No. 961 of 1985 on the basis of statement Ex. PW1/A containing endorsement of Si Hukam Chand Rana, Ex. PW6/A, and a separate case under section 27/25 of the Arms Act was registered vide Fir No. 962 of 1985 because of the alleged possession and use of the country made revolver.
(6) The learned Addl. Sessions Judge on the basis of the oral evidence produced .namely, those of the three eye witnesses, namely, PW1 Amar Nath, PW2 Radhey Shyam and PW3 Constable Hans Raj and also on account other evidence showing the recovery of the revolver and taking note of the Cfsl report about the revolver being in the nature of a fire arm and the cartridges recovered there from coming in the definition of 'ammunition' held the charges proved against the appellant on all the counts and as noted above, recorded separate sentences.
(7) It is argued by Mrs. Usha Kumar, appearing for the appellant today, that the prosecution evidence suffers from very serious and material discrepancies which make the whole case of the prosecution doubtful, and not worthy of reliance, inasmuch as Pwi Amar Nath has given an entirely different version as to now PW2 Radhey Shyam got associated with the incident as against the account given by Radhey Shyam himself and further that Public Witness Amar Nath neither could identify the revolver nor give any positive statement as to the recovery of the cigarette packet and that in face of this, vital lacuna, the whole base of the prosecution case is crumbled down. She has further pointed out that the places of apprehension of the accused are also differently given which cast a doubt about the presence of all the witnesses at the scene of occurrence in the manner stated by the prosecution and further that there being no corroborative evidence as to the use of the revolver by the appellant, the charge under section 307 Ipc cannot be said to have been established. She has taken me through the evidence to highlight the material discrepancies in the statements of the witnesses which, according to her, give a lie to the whole prosecution case.
(8) Ms. R. Wasu, replying to the contentions advanced by Mrs. Kumar, pleaded that the basic case of the prosecution about possession, recovery and use of the revolver stands proved and that the alleged discrepancies in the statements of the witnesses were not of such vital nature so as to take away the truth of the prosecution and that there is sufficient Explanationn for the so-called discrepancies, and in any case. the report of the expert of Cfsl is a corroborative evidence for the prosecution case.
(9) I have very carefully analysed the evidence brought on record as also the case as set up by the prosecution. The main charge against the accused appellant is that of an offence under section 307 IPC. The prosecution case is that the accused was possessed of a country made revolver and when intercepted by the witnesses with the help of the police constable and compelled to give back the packet of cigarettes or make the payment. he while trying to escape, fired at them twice. The witnesses may be able to escape being hurt, having kneeled down, but the fact remains that once the shot was fired from the revolver, there had to be a spent bullet somewhere at the scene of occurrence. The investigating officer as well as the other witnesses did not say a word about this fact and there is no expla'nation as to why no spent bullet was recovered from anywhere. In view of the fact that there is no physical injury to any one, the best evidence could be that of recovery of the spent bullets from or near the scene of occurrence. The learned Addl. Sessions Judge does not seem to have adverted to this basic lacuna in the prosecution case, which to my mind is a very relevant fact, to be considered in respect of the charge under section 307 IPC. The report of the Cfsl is also ambiguous in so far as this aspect is concerned, because apart from the fact that no clear cut opinion has been given in report Ex. PW8/D as to one of the two fired cartridges cases allegedly recovered from the revolver, no spent bullet has been referred for opinion as to whether, those, if any. bad been fired from the same revolver. This evidence, if brought on record, would have been a very important link in the chain to bring home the charge under section 307 Indian Penal Code to the accused. In the absence of such an evidence, the chain gets broken and I am of the considered opinion that there is error in the judgment of the learned Addl. Sessions Judge in so far as the conviction under section 307 Indian Penal Code is concerned.
(10) In view of this glaring missing link, I do not find it necessary to discuss in detail the other discrepancies pointed out by the learned counsel for the appellant. I, thereforee, find it to be a case where charge under section 307 Indian Penal Code has been erroneously held to have been established. The judgment to that extent is liable to be set aside. II. For the same reason, the charge under section 27 of the Arms Act cannot be said to have been proved beyond reasonable doubt, as the firing from the revolver, in the manner stated above, has not been satisfactorily proved. Accordingly, the conviction under section 27 of the Arms Act is set aside.
(12) However, the possession of the country made revolver Ex. Pi is sufficiently proved by oral evidence as also by the fact that the recovery is proved at the time of arrest of the appellant vide seizure memo Ex. PW1/C as well as arrest memo Ex. PW2/A and the copy of the entry from the Malkhana register Ex. Public Witness 11/A. On the basis of this evidence.I have no hesitation in holding that the conviction under section 25 of the Arms Act has been rightly recorded.
(13) In the result, the appeal is partly accepted and whereas the conviction and sentence for offences under section 307 Indian Penal Code and Section 27 of the Arms Act are set aside, the same is maintained for offence under section 25 of the Arms Act. The sentence of R.I. for one year for this offence under section 25 of the Arms Act was also adequate. The appellant has obviously served this sentence. It is directed that he be released forthwith if not required in any other case.