B. N. CHATURVEDI, J.

( 1 ) THE appellant is in appeal against judgment dated 24th January, 2002 convicting him under Section 302 IPC and Section 27 of the Arms Act in Sessions case No. 43/1997 arising out of FIR No. 23/1997 under Sections 394/398/302/212/120-B/34 IPC PS Lahori Gate, Delhi and sentencing him by order dated 29th January, 2002 to imprisonment for life and a fine of Rs. 5000/- under section 302 IPC, in default of payment of fine further RI for one year and RI for three years under Section 27 of Arms Act. The sentences on both the counts were directed to run concurrently.

( 2 ) THE facts of the case, as unfolded by Ketan Kumar, an alleged eye witness, in his statement forming basis of FIR, are that when on 28th January, 1997 at about 1. 45 pm Ketan Kumar, Jaswant Singh, Narottam (deceased) and Manu bhai were present in their office located in premises No. 301 Kucha Ghasi Ram, chandni Chowk, Delhi, two persons aged about 25-30 years came in there to inquire about the location of House No. 3 and 4. Jaswant Singh apparently taking exception to such enquiry interjected to say that they could have better made the inquiry from some place outside. Meanwhile two more persons entered the office and one of them snapped the telephone connection by pulling the wire apart. On Ketan Kumar and others objecting to it, 2/3 out of the said four persons took out pistols. Ketan Kumar, Jaswant Singh Narottam and Manu Bhai got panicky. They started shouting. While Narottam, deceased was shouting facing street, one of the intruders fired at his face thereby killing him instantaneously. Ketan Kumar and Manu Bhai thereupon shouting 'chor CHOR' and holding dandas in their hands started chasing the said persons. On alarm being so raised members of the public also, armed with dandas, hockey sticks and iron rods, joined Ketan Kumar and Manu Bhai in their chase to apprehend the said persons on the run. Ketan Kumar and Manu Bhai, assisted by members of public, eventually succeeded in overpowering the appellant. He was found carrying in his hand a country made pistol. He was the person who had shot dead Narottam. His associates, however, succeeded in making good their escape while firing in the air. The appellant was formally arrested. At his instance his co-accused were also arrested. One of his co-accused namely Mustkeem however, could not be arrested and he was declared as a proclaimed offender.

( 3 ) THE appellant was charged under Sections 302/396/398 IPC as also under section 27 of Arms Act while his co- accused Aas Mohammed was charged under sections 396/398 IPC. Other co-accused namely Rakesh Kumar and Jagdish Prasad were charged under Section 396 IPC and another co-accused Subhash under Section 120 B read with Section 395 IPC. The appellant as well as his said co-accused pleaded not guilty to the respective charges and were thus tried for the same.

( 4 ) THE trial resulted in acquittal of all the four co-accused of the appellant as the learned Trial Court held that the charges of dacoity or attempt to commit the same were not proved. Even the appellant was held not guilty of charges under Section 396 or 398 IPC.

( 5 ) SH. Sumit Verma, learned counsel for the appellant contended that from the statements of Jaswant Singh (PW-5), Ketan Bhai (PW-6) and Manu Bhai (PW-7) in their cross-examination it is evident that they had not witnessed the appellant actually firing at Narottam deceased and that the alleged recovery of the country-made pistol from his possession is rendered doubtful in view of inconsistencies in the statements of the said witnesses in regard to the manner of such recovery. Besides, the learned counsel argued that according to the postmortem report the type of fire arm used was a Rifled one and as the prosecution has failed to establish that the country made pistol allegedly recovered from the appellant has a spiralling grooved barrel, the same could not be held to be the weapon of offence. The learned counsel further co

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