JUDGMENT 1. - This appeal arises out of the judgment of the learned Additional Sessions Judge, Alwar dated 10-9-71 by which he convicted the appellant under section 352 Indian Penal Code and sentenced him to rigorous imprisonment for three months and to a fine of Rs. 500/- in default of payment whereof to undergo rigorous imprisonment for three months. 2. The facts of the prosecution case are that Mahesh Chand PW 7 was a constable in police station Thanagazi and was on guard duty from 2 p.m. to 6 p.m. on 25-6-69. Accused appellant Raj Bahadur Singh came to relieve him at about 5-55 p. m. when they changed their duties under the supervision of Laxmi Sahai PW 8. They both Mahesh Chand and the accused have had a quarrel earlier in the day because Mahesh Chand PW 7 had broken a china cup belonging to Raj Bahadur. It is alleged that when Raj Bahadur Singh took the charge of the rifle, cartridges and other articles from Mahesh Chand and Mahesh Chand turned his back to leave the barrack, he heard the sound of the loading of the rifle, he turned round and saw that the accused was aiming the rifle at him. He caught hold of the barrel and turned it aside. But the accused managed to pull the trigger. The rifle went off. The bullet did not however hit any one, The occurrence was watched by witnesses Mishri Lal PWl, Jagdish Prasad PW 2, Surendra Singh PW 3, and Laxmi Sahai PW8. Mishri Lal PW 1 was the station house officer who rushed towards the place of occurrence and snatched the rifle. Mahesh Chand also reached there. A report of this incident was recorded by Rarodan- PW 9 and a case was registered against Raj Bahadur Singh, Ramdan took the rifle and the remaining cartridges in his possession. The rifle and empty cartridge was sent for examination to Ballistic Expert CD. Gandhe PW 4. Asa result of investigation, the accused was tried for an offence under section 307 Indian Penal Code He was acquitted of this charge but convicted and sentenced as aforesaid under section 352 Indian Penal Code In his judgment the learned Additional Sessions Judge referred to the statement of Laxmi Sahai PW 8 who said that the constables on guard duty were supplied with blank S. P. A. cartridges. These cartridges are meant only to frighten. The learned Additional Sessions Judge, therefore, held that the accused loaded the rifle with blank cartridges which were meant to scare people. He disbelieved the evidence of Mishri Lal PW 1 and Ramdan PW 9 that the S.P.A. cartridges were deadly. It was not proved beyond reasonable doubt that a cartridges with bullet was issued to the accused. No bullet was found on the spot or any where near it. Only a jacket covering the cartridge and no bullet was found in the police station premises. Ramdan PW 9 has deposed that he had opened the chamber of the rifle and had found discharged cartridge therein. The seizure memo of the rifle is Ex. P4. 3. Mr. C.D. Gandhe PW 4 Ballistic Expert has deposed that he had received a 303 rifle with a discharged cartridge inside its chamber. The fire pin marks on the disputed cartridge Ex. 3 tallied with the marks on the cap of the test cartridges and therefore he was of the view that the cartridge Ex. 3 was fired from the rifle received by him. He stated that such cartridges contain only 1 lead bullet. When the jacket recovered from the spot was shown to him he stated that the jacket can be of a bullet of rifle cartridge. He could not say whether the jacket was of the bullet which was fired from the rifle Ex. 1 as he had no opportunity to examine it under a microscope. He admitted however, that blank cartridges of rifle 303 are available. He was unable to say whether the cartridge Ex. 3 that was fired from the rifle, was the blank one, or contained a bullet. In these circumstances, the learned lower Court was justified in holding that only a blank cartridge was supplied and fired. The evidence of the eye witnesses no doubt proved that Raj Bahadur fired at Mahesh Chand but the cartridge was a blank one. 4. The learned counsel for the appellant however, referred to a passage in the judgment of the lower court at para 7, from which it appears that a departmental inquiry was held against the accused in which a charge-sheet and a statement of allegation were served upon him. 4. The learned counsel for the appellant however, referred to a passage in the judgment of the lower court at para 7, from which it appears that a departmental inquiry was held against the accused in which a charge-sheet and a statement of allegation were served upon him. In the charge-sheet it is stated that it was he and not Mahesh Chand who was on guard duty from 3 p. m. to 6 p.m. and if this version were accepted, then the whole case of the prosecution was falsified because the prosecution case was that it was Mahesh Chand, who was on guard duty between 2 p.m. and 6 p.m. A request was made to the learned Additional Sessions Judge to summon the Superintendent of Police, Alwar with the record of the Departmental inquiry. The learned Judge, however, called the departmental file and upon a perusal thereof found that the entire inquiry proceeded on the basis that Mahesh Chand was guard and a mention in the charge and allegation that the accused was on duty was made Inadvertently. The learned Judge rejected this request because he thought it was an exercise in futility. The learned counsel for the appellant submitted that the learned lower Court should have summoned the Superintendent of Police to clarify the position and remove all doubts in respect of the facts of the case. I am unable to understand how the then Superintendent of Police could throw light upon the case. What the defence should have done was to cross-examine the witnesses with regard to the statements that were made by them, if any, before the Departmental Inquiry Authority if there were any contradictions. Mere statement in the charge-sheet or the statement of allegations or even the statements of the witnesses in the departmental inquiry cannot be of any avail to the defence until the prosecution witnesses were cross-examined with reference to them. Therefore, by non-summoning of the Superintendent of Police, no prejudice of any kind is caused to the accused. 5. The next challenge was directed against the evidence of Laxmi Sahai PW 8 who was not an eye witness. But it is not only Laxmi Sahai who, witnessed the occurrence and there were other witnesses present in the police station premises which were believed by the learned Additional Sessions Judge. 5. The next challenge was directed against the evidence of Laxmi Sahai PW 8 who was not an eye witness. But it is not only Laxmi Sahai who, witnessed the occurrence and there were other witnesses present in the police station premises which were believed by the learned Additional Sessions Judge. The prosecution came with the case that the accused pulled the trigger intentionally, while the case that was made out was that the gun went off accidentally when Mahesh. Chand grappled with the accused. The learned Additional Sessions Judge concluded that the statement of Mishri Lal and Laxmi Sahai lent credence to the .testimony of Mahesh Chand that the gun went off when he grappled with the accused. 6. Thus the finding of the learned Judge seems to be that the gun went off accidentally when Mahesh Chand grappled with the accused and that was why he held that it was only a case of show of criminal force. I see no ground to defer from this finding of the learned Additional Sessions Judge. 7. As regards punishment, the learned Judge observed that the accused was not entitled to a lighter sentence because he was a police official on duty and could not be permitted to take law in his own hands and wreak vengeance upon his colleagues. If so is allowed, it would set a bad precedent. The learned counsel for the appellant however submits that the accused has already lost his job as a consequence of the departmental Inquiry and if probation was not granted, he might be let off on the sentence already undergone. 8. I have considered over this matter. It appears that after conviction the accused did not serve the sentence though he remained in pre-conviction detention for about one month. The appellant fired just a blank cartridge for scaring. It is true that the accused should not have done what he did but it does not involve any question of precedent. These facts entitled him to be released on probation. 9. I, therefore, partly accept this appeal, maintain the conviction but set aside the sentence and instead direct that the accused appellant shall be enlarged on probation provided he furnishes personal bond in the amount of Rs. 1000/- and surety bond in the like amount to the satisfaction of the learned Additional Sessions. 9. I, therefore, partly accept this appeal, maintain the conviction but set aside the sentence and instead direct that the accused appellant shall be enlarged on probation provided he furnishes personal bond in the amount of Rs. 1000/- and surety bond in the like amount to the satisfaction of the learned Additional Sessions. Judge No. 1 Alwar, undertaking to appear and receive sentence when called upon to do so within a period of one year and in the meantime to keep the peace and be of good behaviour. He is allowed to furnish bonds within one month from today. If he fails to do so, the appeal shall be deemed to have been dismissed. *******