JUDGMENT
L. Rath, J.
1. These two appeals arise out of Sessions Trial No. 125/10 of 1981/85 before the Additional Sessions Judge, Sambalpur and hence are disposed of by this common judgment. Criminal Appeal No. 221/85 has been preferred by Piyus Ekka and Criminal Appeal No. 244/85 has been preferred by Tarkeswar Prasad Sah, Rambabu Sah and Harbans Singh. All the four appellants were made to stand trial Under Section 394/397, IPC and Under Sections 25 and 27 of the Indian Arms Act. Besides, appellant Rambabu Sah was also further charged under Sections 279/337, IPC. They were convicted Under Section 394 read with Section 397, IPC and sentenced to undergo R.I. for seven years each. All the appellants except Rambabu Sah were also convicted Under Sections 23 and 27 of the Indian Arms Act and sentenced to undergo R.I. for one year Under Section 25 and two years Under Section 27 of the Indian Arms Act. Rambabu Sah has also been convicted Under Section 337, IPC and sentenced to R.I. for six months and though he was convicted Under Section 279, IPC no separate sentence was passed. All the sentences were directed to run concurrently.
2. The case against the appellants, as alleged by the prosecution, was that on 27-7-83 they hired a jeep bearing No. 058/4411 belonging to the brother of P.W. 10, the informant, of which P.W. 16 Bijoy Kumar Biswas was the driver. That day at about 6 to 7 p.m. P.W. 16 met P.W. 10 at the petrol pump near the Burla has stand with all the appellants in the jeep and informed him that he had been hired by the appellants to bring a patient to Burla Hospital from Sasan for treatment and requested P.W. 10 to accompany him. P.W. 10 agreed and himself took the steering. P.W. 16 sat by the left of P.W. 10. Appellants Rambabu Sah and Harbans Singh sat on the front seat of the jeep next to P.W. 16 and the other two appellants, Piyus Ekka and Tarkeswar Prasad sat on the rear seats. While the vehicle was moving towards Sasan on the State Highway, at a lonely place near Lamdungri the appellants sitting on the near seats suddenly struck P.W. 10 on his head with some very object which abusing him in filthy language and commanded him to stop the jeep. P.W. 10 having stopped the jeep, the appellants got down and two of them attacked P.W. 26 and the other two attacked P.W. 10 and assaulted them. Appellant Harbans snatched away the wrist watch (M.O. XX) from the hand of P.W. 10 due to which the band of the watch snapped. Appellants Harbans and Rambabu searched the pocket of P.W. 10 but did not find any cash. The appellants also took away from the person of P.W. 16 a hundred rupee note which they had given as advance to him towards hiring of the jeep. After assaulting P.Ws. 10 and 16 all the appellants except appellant Rambabu Sah sat along with P.Ws. 10 and 16, on the rear seats of the jeep and appellant Rambabu Sah drove the jeep at a high speed recklessly. As P.Ws. 10 and 16 were raising hulla, they were threatened by the three appellants sitting at the back with two pistols to remain silent. While P.W. 10 was struggling and shouting, appellant Harbans asked Rambabu to drive the jeep in high speed and asked the other appellants to clasp tie the mouth of P.W. 10 with his turban so that he would be prevented from shouting. Due to the threat of being so tied, P.W. 10 threw away the turban which was later on seized and was marked as M.O.V. Since the jeep was being driven at reckless speed, it went out of control and dashed against a mango tree. After the accident the appellant Piyus Ekka was caught hold of by P.W. 10, but appellants Harbans and Rambabu fled away. Appellant Tarkeswar Prasad was lying unconscious in injured condition. Hearing the shouts of P.Ws. 10 and 16 as “Chor Chor, Bachao Bachao”, the members of the public caught hold of Tarkeswar. The police arrived at the spot, and took appellants Piyus Ekka and Tarkeswar Prasad to the police station. Appellant Harbans was arrested from Sasan bus stand and from him a country made pistol (M.O.XVI) three crackers and a wrist watch (M.O.XX) were seized. Appellant Rambabu Sah was arrested at the Sambalpur Railway Station. From appellant Tarkeswar one rifle, cartridge (M.O.XV) and one cracker were seized. One country made pistol (M.O.XVII), three twelve-bore cartridges, one 303 cartridge and one country made cracker were seized from appellant Piyus Ekka. After investigation charge-sheet was submitted.
3. The prosecution examined in all sixteen witnesses of whom P.Ws. 10 and 16 are the eye-witnesses. P.Ws. 4 and 5 are the witnesses to the accident of the jeep and besides, P.W. 4 is also the witness to the seizures made under seizure lists Exts. 6, 7, 8, 9, 10, 11 and 12 under which amongst other things, the pistols M.O.XVII, cartridges, one rifle cartridge etc. were seized. P.W. 1 is the M.V.I., who examined the jeep after the accident. P.W. 2 is the doctor who examined appellants Piyus Ekka, Tarakeswar Prasad Sah and Harbans Singh. P.W. 3 is the doctor who examined P.W. 16. P.W. 7 is the witness to the arrest of Harbans and seizure of the pistol M.O. XVI, the crackers and the wrist watch from his possession under the seizure list Ext. 14. P.W. 8 is the hotel owner to whose hotel appellant Harbans had gone at 9 a.m. on the date of the occurrence and who harbouring suspicion from his blood stained dress, had informed the police about him. P.W. 9 is stated to have seen the jeep moving at a high speed on the date of occurrence at about 7 p.m. and to have heard a Punjabi boy shouting inside the jeep. P.W. 11 was the Controller of Explosive, Rourkela who examined the explosives and submitted his report Ext. 13. P.W. 12 is the witness to the arrest of appellant Rambabu Sah and seizure of a Safari suits (M.O. XXI) from him. P.W. 13 is the O.I.C., Town P. 5, Sambalpur who arrested appellant Harbans and made the recoveries from him. He also apprehended appellant Rambabu on 28-7-83 from the Railway platform at Sambalpur. P.W. 14 is the O.I.C., Sasan P.S. who completed the investigation and submitted the charge-sheet. P.W. 15 is the officer who had received the FIR, and had conducted the preliminary investigation but had subsequently handed over charge of the investigation to P.W. 14.
The appellants took the plea of denial with appellant Rambabu Sah taking a further plea that he was a jeep driver and on his way back home he was arrested and his driving licence had been taken away by the police.
4. For an offence Under Section 394, IPC, the essential fact which has to be estabished is that while committing or attempting to commit robbery, a person must have voluntarily caused hurt and if such fact is established, the person who has caused hurt and all others who are concerned with him in either committing the robbery or attempting to commit it are guilty of the offence. So far as Section 397, IPC is concerned, the ingredients to be established are that the accused must have, while committing the robbery or dacoity, either used any deadly weapon or must have caused or attempted to cause grievous hurt to any person or must have attempted to cause the death of any person. Since the appellants have been convicted Under Sections 394 and 397, IPC it is to be seen as to how far the prosecution has been able to establish such offences against them.
5. In the FIR which was lodged almost immediately after the occurrence P.W. 10 stated all the essential details. He stated therein the fact of his driving the jeep and two of the appellants sitting along with the driver in the front seat and two of them sitting as the back. One of the appellants who was sitting in the front had put on a black pant and a red shirt. P.W. 10 informed his father who was standing at the Ainthapalli Chhak that he would be coming back. The person who was sitting at the back and had put on a white safari struck him on the head very hard saying “Sala Madarchod Sardar Gadi Roko”. He stopped the vehicle and thereafter all the appellants dragged him to the rear seat and they also dealt fist blows on chest and back of P.W. 16. The person who had put on the red shirt forcibly took away his watch in which process the band of the watch snapped. The watch was a Titus one with a centre second hand which had a red tip. Inside the cover of the watch the make of the watch as Titus appeared. Those persons also searched his pocket but he informed them that he had no money. Then the white Safari clad person drove the vehicle at a great speed towards Jharsuguda. He and the driver sitting at the back were shouting loudly at which two out of the three persons sitting at the back threatened them with pistols in their hand and one of them fired a shot to the rear of the vehicle and directed the jeep to be driven at a greater speed. One of the persons told others to clasp tie his mouth with his turban for which he threw away the turban out of fear on the road. After the jeep crossed Sasan P. S., it went out of control and dashed against a mango tree and all the occupants of the vehicle were thrown out. Because of the accident, the man who was wearing white Safari and the man who was putting on red shirt fled away but he had caught hold of one of them and shouted loudly hearing which the boys of the hotel came and helped him to arrest him. The name of that person was Piyus Ekka and he informed that he was a resident of Ranchi. There was a pistol and cartridges with him. Another person was badly injured and was lying near the jeep. He was also caught hold of by the public. That person informed his name as Tarakeswar Singh of Chhapra. In the FIR he also stated that he could identify the two other persons. Because of the assault on him and dragging him by the tuft of hair, he had bleeding injuries on the head on the right side and there was a cut injury on the right (Bhujuni) eyebrow also. In his statement in court P.W. 10 gave out a fairly consistent story as stated to in the FIR. P.W. 16 who is the only other eye-witness also stated the very same facts though however there was some discrepancy regarding his description of the persons who were sitting in the front of the jeep while it was being driven by P.W. 10. According to him appellants Tarkeswar and Piyus were in the front seat of the jeep and appellants Harbans and Rambabu were in the back. Besides he also stated that while P.W. 10 was driving the jeep, Harbans sitting at the back assaulted P.W. 16 on his front head and forehead with the butt-end of a rifle and that Harbans and Tarkeswar dragged him to the rear seat of the vehicle while the vehicle was going at 80 k.m. speed. Such statement of P.W. 16 appears to be somewhat confused and he also appears to have made an embellished statement in saying that he was dragged from the front seat to the back while the vehicle was at a high speed. But barring such statements his version is also consistent with that of P.W. 10 and hence it can be fairly said from the evidence of these witnesses that the appellants in a group attempted to commit robbery of the jeep and of the watch of P.W. 10. Though the evidence of P.Ws. 10 and 16 is that they were also assaulted and injured in the process of commission of the robbery, yet it was the statement of both P.Ws. 3 and 6, the doctors who had examined P.Ws. 10 and 16, that the injuries sustained by them were also possible by the accident. Since it is the very case of P.W. 10 in the FIR that all the persons were thrown out of the vehicle when the accident took place, it is possible to say that the injuries were sustained by them in that process and hence it cannot be unequivocally said that the injuries sustained by them were not as a result of the accident. Because of such fact it is not possible to conclusively say that any of the appellants had voluntarily caused hurt to P.W. 10 or P.W. 16 during their attempt to commit the robbery and hence offence Under Section 394, IPC would not be attracted.
6. However, except such facts, the evidence of P.Ws. 10 and 16 also receives corroboration from the evidence of P.Ws. 4 and 5, both of whom saw the accident to have happened. P.W. 9 saw the jeep being driven in a very rash manner and a Punjabi boy shouting from inside the jeep as “Bachao Bachao”. P.Ws. 10 and 16 had no previous acquaintance with the appellants and were absolutely independent witnesses. There is nothing to disbelieve their version. The fact of seizures from the respective appellants has been amply proved by the evidence of P.Ws. 4 and 7. The learned counsel for the appellants strenuously urged that since appellant Rambabu was arrested next day of the occurrence from Sambalpur and no T.I. Parade was ever held and he was identified for the first time in court, no credence should be attached to such identification. The submission would have been otherwise found force but for the fact that his driving licence, M.O. IX, was discovered at the spot of the accident. If he was an unconnected person, there was absolutely no reason as to why his driving licence would be recovered from the spot of the accident.
Such fact lends corroboration to his identification in Court. Similarly, the seizure of the watch (M.O. XX) from Harbans would also lend corroboration to his identification in Court.
7. Even though such facts are established, yet it also cannot be said that the charge Under Section 397, IPC, has been brought home against them. It is the prosecution case that the appellants made use of country made pistols and cartridges in the commission of robbery, but it has never been established that in fact the seized articles were firearms or that the cartridges were ammunitions within the meaning of the Arms Act. Section 397, IPC requires, so far as is relevant for the present purpose, the use of deadly weapons during the commission of robbery. Hence unless it is established that the country made pistols recovered were in fact firearms, they would not be deadly weapons. It has been contended by Mr. H.S. Misra, learned counsel for appellant Piyus Ekka that there is absolutely no proof of such pistols and the cartridges being firearms or ammunitions. On an analysis of the evidence, the submission appears to be correct. To bring home a charge under the Arms Act, the onus is upon the prosecution to establish that the possession of the article is in fact possession of a firearm or ammunition and that such possession without licence being in violation of Section 3, is punishable Under Section 25 of the Arms Act. So far as Section 27 of the Arms Act is concerned, it is to be further established that such arms or ammunication had been used. However, barring the mere statement of the I.O. P.W. 5, there is nothing to conclude that the seized articles were country made pistols or cartridges. P.W. 15 only stated that revolvers and pistols are the same thing and both the M.Os. XVI and XVII were hand made revolvers. He further explained that a firearm weapon having a revolving chamber is called a revolver. He admitted that M.Os. XVI and XVII did not have any revolving chambers. Hence he contradicted himself in identifying these articles as country made revolvers whereas in fact they were not revolvers at all. Beyond his visual impression of the two articles, there has been no attempt to otherwise establish that in fact the seized articles were country made pistols and the cartridges were ammunitions and were capable of being used. In AIR 1955 Allahabad 700 : (1954 All LJ 659) (The State v. Mohammad Ali) it was held, dealing with the provisions of the old Act, that in judging whether a particular weapon is a firearm or not the test is not whether that particular weapon is serviceable at that time, but whether it has lost its specific character and has ceased to be a firearm which onus is on the prosecution and that where doubts are entertained about it, it is necessary for the prosecution to satisfy the court that the weapon still possesses its specific character. In 1976 Cri LJ 205 (Guljarsingh v. State of Maharashtra) it was observed that though an article that looks like a weapon may be seized from the accused, it may still not be an ‘arm’ within the definition of the Act. A thing that looks like a gun or pistol must possess, to be an arm, the potentiality of a weapon, for it must be shown that it has capacity to eject the ammunition by its very design. Unless the evidence is forthcoming, the matter should not be allowed to rest on mere visual examination, for though an article presents a look of ‘an arm’, it may on test prove to be a useless gadget or a mere show piece. Since absolutely no steps were taken by the prosecution to establish the fact that the seized articles were either arms or ammunitions, it must be held that the charges Under Section 397, IPC as also Under Sections 25 and 27 of the Arms Act fail.
8. Even though the charges Under Section 394 and 397, IPC fail, yet there is overwhelming and conclusive evidence of the appellants having been party to the robbery of the jeep as also of the watch of P.W. 10 on the State Highway and hence their conviction would be properly made Under Section 392, IPC. Besides, appellant Rambabu Sah had also rightly been convicted Under Sections 279 and 337, IPC.
9. In the result, the conviction of the appellants Under Sections 394 and 397, IPC is modified to Under Section 392, IPC and they are sentenced to R.I. for six years each. The conviction of the appellants Piyus, Ekka, Tarkeswar Prasad Sah and Harbans Singh Under Sections 25 and 27 of the Arms Act is set aside. Subject to such modification of the conviction and sentence, the appeals are dismissed.