JUDGMENT M.M. Lal, J. - This is an appeal against the judgment and order dated 15.6.90 passed by Sri S.K. Agnihotri, the then VI Additional Sessions Judge, Agra by which he has convicted Aijaz appellant under Sections 307 I.P.C. and 25 and 27 of the Arms Act and has sentenced him to undergo R.I. for three years, R.I. for .wo years and R.I. two years respectively thereunder. 2. On 30.1.1976 at about 9.00 p.m. head constable Sahab Singh received an information through an informer that at a crossing known by the name of 'Naubasta' within the police circle Shahganj, District Agra two persons carrying arms and ammunition's were sitting in the nearby graveyard with a view to commit crime. Taking along with him Brijendra Singh constable, Moti Lal constable and two public witnesses, including P.W. 2 Wali Mohd. the said head constable Saheb Singh proceeded towards the aforesaid graveyard. At about 9.30 p.m. the said party spotted two persons sitting in the said graveyard. When they were challenged, one of the miscreants, namely, Aijaz appellant fired a shot at the said party but the same did not hit anybody. The miscreants then tried to run away but they were chased. At a short distance in the graveyard itself Aijaz appellant, was arrested and unlicensed country made pistol with three live cartridges was recovered from his possession. His companion, however, succeeded to escape. 3. In order to prove its case the prosecution examined P.W. 1 Saheb Singh, Head Constable, P.W. 2 Wali Mohd. and P.W.3 Brijendra Singh besides the Investigating Officer P.W. 4 Sri Niwas Agarwal. 4. The appellant in his statement recorded under Section 313 Cr.P.C. denied the case of the prosecution. He further stated that he was arrested by the police from his residence at about 9.00 p.m. and that he had been falsely implicated due to "parti-bandi" and enmity. The appellant, however, did not produce any evidence in defence. 5. The learned trial court accepted the case set up and the evidence produced by the prosecution and has accordingly convicted and sentenced the appellant as aforesaid, Aggrieved by the same the appellant has filed this appeal. 6. I have heard the learned counsel for the appellant and the state and have perused the record carefully. 7. 5. The learned trial court accepted the case set up and the evidence produced by the prosecution and has accordingly convicted and sentenced the appellant as aforesaid, Aggrieved by the same the appellant has filed this appeal. 6. I have heard the learned counsel for the appellant and the state and have perused the record carefully. 7. The learned counsel for the appellant has urged before me that the entire case against the appellant was fabricated and that the only public witness examined in this case, namely, P.W. 1' Wali Mohd. was not only a pocket witness of the police but also is a got up witness. The said argument does not appear to be without force. 8. P.W. 2 Wali Mohd. has admitted at the end of his evidence that he has already appeared from the side of the police in two three cases. When this so, I am of the view that his evidence has to be examined very carefully. 9. Whereas P.W. 1 Head Constable Saheb Singh and P.W. 3 Brijendra Singh have stated in the evidence that when they had gone to the place of occurrence, i.e. where this incident took place, the police party included only three police officials, i.e. Saheb Singh P.W. 1 constable Brijendra Singh P.W. 3 and one more constable named Hoti Lal. As against the same P.W. 2 Wali Mohd. stated in his evidence that there were four police officials in the said police party including a "Daroga". He made a mention of 'Daroga' not at one but at two places in his evidence. This witness is not an ordinary innocent witness but he is an experienced witness inasmuch as, as already observed, he has appeared as a witness from the side of the prosecution in two three other cases. Therefore, he must have been aware of the distinction and difference between Constable, Head Constable and a "Daroga". The discrepancy and contradiction as to whether the police party consisted of merely Head Constable and two constables or four police officials, including a "Daroga", is material and shakes confidence of the court in the truthfulness of P.W. 2 Wali Mohd. His evidence does not inspire confidence. He appears to be a fake witness. Before parting with this witness it shall be relevant to point out at this place that there were some other glaring discrepancies as well in his evidence. His evidence does not inspire confidence. He appears to be a fake witness. Before parting with this witness it shall be relevant to point out at this place that there were some other glaring discrepancies as well in his evidence. Whereas it has come in the evidence of the others witnesses that public witnesses were taken from Naubasta crossing away from the bazar at some distance, P.W. 2 Wali Mohd. had deposed that he was taken by the police from a sweet meat shop in the bazar itself. Again, this witness deposed that there were two gates in the graveyard and there were wooden frames fitted in both the gates. He has also tried to give distance between these two gates. As would be seen from the site plan prepared by the Investigating Officer and the evidence of other witnesses there is only one gate in the aforesaid graveyard. Therefore, to repeat, I am of the opinion that P.W. 2 Wali Mohd. was a fake witness. 10. This incident had not taken place at a deserted place. It has come in evidenced that some shops were situate near the aforesaid graveyard where this incident took place. The site plan prepared by the Investigating Officer shows very many shops just near the graveyard across the road. Besides according to the case of the prosecution P.W. 1 Saheb Singh had received information through an informer that two miscreants with a view to commit crime were sitting in the aforesaid graveyard , at the crossing Naubasta from where the police outpost and the bazar were not far way. P.W. 1 Saheb Singh has specifically admitted in his cross-examination that from Naubasta crossing the police outpost and the shops were situate at distance of about two furlongs only. Therefore, independent public witnesses could have been procured with case. The fact that no independent witness was procured and examined in this case and the fact that a got up witness P.W. 2 Wali Mohd. has been examined instead thereof makes it difficult to believe and place reliance on the only public witness examined in this case. 11. The information received by P.W. 1 Saheb Singh had revealed that two persons carrying arms were sitting in the aforesaid graveyard with a view to commit crime. has been examined instead thereof makes it difficult to believe and place reliance on the only public witness examined in this case. 11. The information received by P.W. 1 Saheb Singh had revealed that two persons carrying arms were sitting in the aforesaid graveyard with a view to commit crime. In my opinion, when a positive information had been received that both the aforesaid persons were carrying arms, then as a matter of precaution, and otherwise too, Saheb Singh, who was a head constable of police, would have immediately thought of carrying some arms himself. As already observed above, the police outpost was only situate at a distance of two furlongs. The police party did not arm itself with any weapon. P.W. 1 Saheb Singh has frankly admitted in his evidence that the police party had not carried any weapon with itself. This fact also shows. hollowness of the case of the prosecution . 12. Constable Brijendra Singh was posted as a clerk constable but he too was taken along with him by head constable Saheb Singh to the aforesaid place of occurrence. This witness was not able to tell either the date, month or even the year when the aforesaid incident took place. Therefore, I am not impressed with the evidence of P.W. 2 Brijendra Singh. 13. For the reasons stated above, I am of the opinion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. 14. Before closing this case I am of the opinion that in any view of the matter it was not a case where the appellant could now be sent to jail. 15. With regard to the case under Section 307 I.P.C. it was not made out against the appellant in any view of the matter. The incident had taken place on a dark night at about 9.30 p.m. The case of the prosecution is that the appellant was seen firing from the light of an electric pole. It may be noted from the site plan prepared by the Investigating Officer that whereas the aforesaid police party was standing towards west of the miscreants, the electric pole which could have spread light was situate towards east of them. From the said position the light would have been spread on the back of the miscreants and not on their faces. From the said position the light would have been spread on the back of the miscreants and not on their faces. In such a situation the police party or any member thereof could not have been an6 recognise as to who among the aforesaid two miscreants had actually fired at the police party, whereas P.W. 1 Wali Mohd. did not state as to who was the particular miscreants, who had fired a shot on the police party, P.W, 2 Brijendra Singh simply stated that it was the accused (Mulzim) who had fired the shot at the police party. Reference to the accused did not mean that he was Aijaz appellant and not the other miscreants. Any way the said shot did not hit anybody. The said shot may have been fired to scare away the police party and not to kill any body. Therefore, it cannot be said at all that the case under section 307 I.P.C. was made out against the appellant. 16. As regards the offence under the Arms Act, the appellant would have been released on the basis of' imprisonment which he has already undergone. It has been noted in the order sheet of the lower court that the appellant was in custody in this case as early as 10.11.78. He was in custody even on 15.6.79 when the judgment was pronounced. An order releasing the appellant on bail was passed by this court on 5.7.79. Therefore, had any offence under the Arms Act been made out against the appellant he would have been sentenced to the imprisonment he had already undergone at least from 10.11.78 to 5.7.79. However, there is no question of doing the same because the case against the appellant was not proved. 17. To conclude, I am of the opinion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. He is, therefore, liable to be acquitted. 18. This appeal is accordingly allowed and the appellant Aijaz is held not guilty of the offences under Section 307 I.P.C. and Sections 25 and 27 of the Arms Act and he is acquitted therefrom. He is on bail. He need not surrender to his bail bonds which hereby stood discharged.