Judgment

UNTWALIA, J.: - In the night between the 8th and 9th September, 1966, to be precise, at about 1.45 A. M. on the 9th September, a daring robbery was committed at a petrol pump of the Gasolene Service Station on the Mall, Delhi. The robbers who are said to be four in number broke into the office of the Service Station and decamped with Rs. 585/- in cash after locking in the two attendants. After investigation three persons were put on trial in the Sessions Court. One of the culprits, named Sube Singh, absconded. The names of the three are (1) Phool Kumar, (2) Ram Kumar and (3) Dharampal. The latter two were acquitted by the learned Assistant Sessions Judge, Delhi, for want of sufficient evidence against them. The only person convicted at the said trial was appellant Phool Kumar. He has been convicted under Section 397 of the Penal Code and sentenced to undergo rigorous imprisonment for 7 years. A concurrent sentence of 6 months was also imposed for his conviction under Section 342 of the Penal Code. The Delhi High Court maintained his convictions and sentences and dismissed his appeal. He has approached this Court by special leave.

2. Mr. R. Bana, learned counsel for the appellant took pains to submit as many as 8 points in support of this appeal. The first seven points were concerned with the assailing of concurrent findings of fact recorded by the two Courts below and do not merit any specific mention or detailed discussion. The eighth point was a question of law. After briefly referring to the facts found against the appellant to justify his conviction for robbery the point of law will be discussed hereinafter in this judgment.

3. The two eye-witnesses to the occurrence are P. W. 13 Sham Lal and P. W. 16 Ram Sewak. At the time of the occurrence both were discharging their respective duties as the employees of the Service Station. P. W. 16 was working as a Salesman and P. W. 13 was employed as a helper. The prosecution story as broadly told by them is that while they were sitting outside the office of the petrol pump two persons who were identified as appellant Phool Kumar and Ram Kumar (since acquitted) came there. Phool Kumar was armed with a knife while Ram Kumar had a small gun in his hand. The former asked P. W. 13 to hand over the Keys. On being told that the Keys were with P. W. 16 the appellant asked him to hand over the keys. To terrorize P. Ws. 13 and 16 Ram Kumar fired three shots in the air one of which struck the window panes of the office while the other two hit the ground. The appellant and his associates thereafter opened the door of the office, ransacked the drawers of the table and decamped with the money lying in the cash box, after pushing P. Ws. 13 and 16 in the office and bolting its door from outside. It is not necessary for us to mention the details of the information given to the police and the facts leading to the apprehending of the three culprits after getting the clue from the absconding accused Sube Singh. Suffice it to say that the evidence of identification in court against the culprits given by P. Ws. 13 and 16 was not found to be of a kind which could by itself form the basis of the conviction of the accused put on trial. One of the two eye witnesses had not identified the appellant at all at any of the identification parades and one of them identified him at the 4th or the 5th round. The clinching evidence against the appellant was his thumb impression on the kunda of the cash box. It was conclusively proved to be his on the opinion of the expert. The report of the expert was used as evidence by the prosecution without examining him in court. Neither the court thought it fit nor the prosecution or the accused filed any application to summon and examine the expert as to the subject-matter of his report. The court was bound to summon the expert if the accused would have filed any such application for his examination. That not having been done the grievance of the appellant apropos the rep