important point
If the prosecution case of attempt to murder by gun-shot injury fails, resultantly, the prosecution under Section 25 of the Arms Act would also fail.

JUDGMENT

S.B. SINHA, J. —

1.Leave granted.

2.Appellant was charged with and convicted for commission of offences under Sections 307 and 353 of the Indian Penal Code as also Section 25(1)(a) of the Arms Act; and sentenced to undergo rigorous imprisonment of five years and fine of Rs. 5,000/-, two years and fine of Rs. 1000/- and three years and fine of Rs. 1000/- respectively.

3.Prosecution case shortly stated is as under :

“Appellant was a driver of a Tata Spacio Car. Three other persons were accompanying him. They were sitting on the back seat. The said car was intercepted by the complainant PSI Babaji Javanji Vaghela (PW-8) and other police officers. The said persons ran away. The complainant Vaghela tried to pull the appellant out of the car. Allegedly, he resisted. Force was applied to take him out of the car. A scuffle ensued, during which allegedly he snatched the service revolver of the complainant and fired at him. Injury suffered by the complainant Vaghela (PW-8) as appearing from the medical report, is as under:

“H/O Firing has (sic) done by accused from the service revolver. (illegible) on right side of loin (illegible) 1 x = cm abrasion (illegible) superficial Black gas seen on cloth and puncture and baniyan occurs”

4. The clothes of the complainant as also the revolver with the cartridges were sent for testing to the Forensic Science Laboratory. It was found:

“Sample-A : It is a pant. On being performing (sic) chemical analysis and microscopic examination of the hole on the pocket of the said pant, it suggests that the hole on sample A has occurred due to fire arms discharge. The hole on the said pant can take place with the help of bullet of sample F.

Sample-B : It is a shirt. On being performing chemical analysis of the black spot that is seen on the right hand side of the waist of the said shirt it is found that the black spot on the right hand side of the waist of the said shirt has occurred due to fire arms discharge.

Sample-D: It is 0.38" revolver of Lama Company made in Spain.

On being analyzing barrel wash (before performing test firing in this laboratory) of the said revolver the presence of residuals of nitrate and lead of the fire arms were seen. It suggests that firing was done from the revolver of the said Sample D before it has been brought to this laboratory.

On being firing from the chamber of the revolver of Sample D by taking two cartridges of 0.38" revolver from the stock of this laboratory, the same has been fired successfully. It suggests that the revolver of the said Sample D is in working condition.

Sample-E : It is empty case of cartridge of K.F. 0.38" revolver. There was indentation mark on the percussion cap of the said empty case of the cartridge. While performing examination and comparison in the microscope about the characteristics of the indentation mark on the percussion cap of the said cartridge and firing pin mark on the percussion cap of the cartridge that was test fired from the revolver of Sample D, they were found similar. It suggests that sample of cartridge of Sample E is fired from the revolver of Sample D.

Sample-F : It is one copper jacketed bullet of 0.38" revolver cartridge. While performing examination and comparison in the microscope about the characteristics of rifling mark on the said bullet and rifling mark on the bullet that was test fired from the revolver of Sample D, they were found similar. It suggests that bullet of Sample F is fired from the revolver of Sample D.

Note : Two cases of cartridge test fired from Sample D and Bullet is enclosed with parcel D.

The test report of blood present on the banyan of Parcel B (Sample B) will be sent separately on being received from the biology department.”

5.The complainant examined himself as PW-8. One Amratlal (PW-2) who is the PSI of CID and had allegedly accompanied the complainant sought to support the prosecution case. However, he did not have any personal knowledge about the incident. He heard thereabout only from the complainant.