JUDGMENT : Nanavati, J. ? The appellant has been convicted by the Special Court, Ferozepore for the offence punishable under Section 397 Indian Penal Code and sentenced to suffer RI for seven years. He has also been convicted for the offence punishable under Section 307 read with Section 34 Indian Penal Code and sentenced to suffer RI for two years. He is challenging the said order of conviction and sentence in this appeal, filed under Section 14 of the Terrorist Affected Areas (Special Courts) Act, 1984. His conviction is based upon the evidence of Balwant Ram (PW) and Ram Lubhaya (PW 2). 2. Balwant Ram (PW 1) in his evidence has stated that he has been working as a mechanic in the workshop of Surinder Kumar at Abohar. On 31-5-1984 one person from Vinod Bus Service came to that workshop as one tyre of his motor cycle got punctured near Rajpur and he wanted it to be repaired. He, therefore, took the scooter of Vinod and left for that place. He found that the tube was almost torn and it was necessary to change it. While he was returning on that scooter to get a new tube and had reached the railway crossing on the way, two persons stopped him by pointing a revolver at him. It was about 6.30 p.m. The revolver was in the hand of the appellant. Due to the threat given to him he got down from the scooter. The appellant and his companion then took it away. So he went to the police station and lodged a complaint. The police then took him to the place of offence and thereafter all of them went in search of the accused. At about 9 p.m. they found the appellant and his companion standing near the scooter on the Sito-Malout Road. The police inspector ordered the accused to remain there and alighted from the jeep with other policemen. At that time the accused fired one shot at the police and tried to run away through the fields. Even while doing so they went on firing at the police who were chasing them. The police had also fired a few shots at the accused. After the accused were chased for a distance of two to three kilometres, the police was able to apprehend the appellant but his companion escaped. 3. Even while doing so they went on firing at the police who were chasing them. The police had also fired a few shots at the accused. After the accused were chased for a distance of two to three kilometres, the police was able to apprehend the appellant but his companion escaped. 3. Ram Lubhaya (PW 2), who was then the Inspector-in-charge of Abohar Police Station has stated in his evidence that at about 7.00 p.m., Balwant Ram (PW 1) came to the police station and informed him about the incident of robbery. So he recorded his complaint and along with some policemen and Balwant Ram (PW 1) went first to the place of offence and then in search of the accused. At about 9.00 p.m. they spotted the scooter on Sito-Malout Road. When he asked the two persons standing by the side of the scooter to remain there, they started running away from that place. One of the accused fired at them. He and other policemen left the jeep and ran after the accused. While running away the accused fired about 10 shots at them and they also fired a few shots in return. While running accused Bhupinder Singh fell down and was caught, but his companion escaped. 4. As the other accused was absconding, only the appellant was put up for trial. The learned Special Judge believed the evidence of the said two witnesses and convicted the appellant. He disbelieved the defence of the appellant that while he was returning after seeing his relative, Sukhchain Singh residing at Village Mani-Khera, he noticed that one person was killed by the police; and, therefore, he asked the police as to why they had killed him. This was not liked by the police and, therefore, he was falsely involved. The learned Special Judge also disbelieved Sukhchain Singh (DW 1) who was examined by the defence. 5. The contention raised on behalf of the appellant is that the trial court has not properly appreciated the evidence of Balwant Ram (PW 1) and Ram Lubhaya (PW 2) and that this is a case where the FIR was prepared after the scooter was found and the appellant has been falsely roped in. 6. 5. The contention raised on behalf of the appellant is that the trial court has not properly appreciated the evidence of Balwant Ram (PW 1) and Ram Lubhaya (PW 2) and that this is a case where the FIR was prepared after the scooter was found and the appellant has been falsely roped in. 6. On careful examination of the evidence, we are of the opinion that in all probability the FIR was prepared after the scooter was recovered by the police and that the appellant was not arrested in the manner and under the circumstances narrated by the witnesses. 7. Balwant Ram (PW 1) in his cross-examination admitted that he had not mentioned the letters of the English alphabet preceding the number 3688 of the scooter to the police while he had given his complaint. He admitted that he had not stated these letters as it was not possible for him to do so; possibly, that was because he was not knowing the English language. Yet we find that in the FIR the number of the scooter was mentioned as CHD 3688. The scooter did not belong to this witness. Only some time before the incident it was given to him and that too for the purpose of going to the place where the motor cycle with a punctured tyre was lying. It is, therefore, doubtful if the witness really gave the number of the scooter when he first went to the police station. Another circumstance which creates a doubt regarding the genuineness of the FIR is that therein while giving description of one of the two accused it is stated that he has a small ulcer mark on his left forehead and that he was wearing a blue turban. In his cross-examination he had to admit that it was not visible in the court because of the turban on the head of the appellant. He also admitted the turban was worn by the appellant in same manner on the day of the incident. Therefore, this witness could not have seen the said mark on the forehead of the appellant at the time when both the accused took away his scooter. The scar in all probability was noticed by this witness only after the appellant was apprehended by the police and brought to the police station. Therefore, this witness could not have seen the said mark on the forehead of the appellant at the time when both the accused took away his scooter. The scar in all probability was noticed by this witness only after the appellant was apprehended by the police and brought to the police station. Once we find that the FIR was brought into existence at a later stage, it creates a serious doubt regarding the veracity not only of this witness but also of Ram Lubhaya (PW 2). 8. We also find that this witness has made a material improvement on a vital point. In his examination-in-chief he stated that the appellant stopped him by pointing a revolver at him, threatened him and therefore he left the scooter. In his cross-examination he stated probably in view of his earlier version, that the accused first asked for a lift, then sat on the rear seat and thereafter threatened him with a pistol and told him to part with the scooter. This improvement clearly appears to have been made with a view to make his version more probable and his claim of having seen the scar on the forehead of the appellant acceptable. His naming the appellant as the person who was having a revolver in his hand and who had threatened him is not without any significance and appears to be a deliberate attempt to connect him with the crime. 9. Both the witnesses have stated that at about 9.00 p.m., they saw the scooter lying on the Sito-Malout Road, that both the accused were standing nearby and that the mudguard of the scooter was kept on the road. They have also stated that they further noticed that the plug was removed from the engine and was lying nearby and a screwdriver was kept on the footboard of the scooter. Thereby they suggested that the scooter had gone out of order and therefore the accused could not successfully run away. This version clearly appears to be a clever attempt on the part of these two witnesses to establish presence of the accused near the scooter and that too at a short distance even after a lapse of two and a half hours. If the scooter had gone out of order, it is highly improbable that the accused would have continued to remain standing near it. If the scooter had gone out of order, it is highly improbable that the accused would have continued to remain standing near it. If it had stopped running only some time before they were seen by the police, then they could not have been found at a short distance as they could have covered a much longer distance by that time. In any case, they would not have kept the scooter on the road and remained standing there but would have taken care to see that they were not seen by the police. 10. Their evidence with respect to chasing of the accused and apprehending the appellant is also doubtful. The time was 9.00 p.m. and it was a dark night. There was no source of light except the stars in the sky. Balwant Ram (PW 1) has stated that because of darkness it was not possible to see who out of the two accused had a revolver and was firing shots at them. They say that the accused were chased for about three kilometres. Though the witnesses have stated in evidence generally that a number of shots were fired, from the contradiction proved it appears that Balwant Ram had stated in his statement that thirteen shots were fired by the police. Even though a number of shots are stated to have been fired by the police, not a single shot had hit the persons running away. That would indicate that either these persons were at a considerable distance and that would create a doubt whether they could have been seen running away through the fields for such a long distance on a dark night or that there was no such chasing and firing at all. Not a single bullet or empty gun was recovered from that place. According to PW 1 Ram Lubhaya, the accused having a revolver had fired about 10 shots. He admitted that chamber of a revolver can carry maximum 7 rounds. It is doubtful if that accused could have reloaded his revolver while running, particularly when the policemen were so near and firing at both of them. The revolver could not have been reloaded without taking out the empties. Not a single policeman who had accompanied PW 2 Ram Lubhaya and had fired a shot was examined by the prosecution. 11. It is doubtful if that accused could have reloaded his revolver while running, particularly when the policemen were so near and firing at both of them. The revolver could not have been reloaded without taking out the empties. Not a single policeman who had accompanied PW 2 Ram Lubhaya and had fired a shot was examined by the prosecution. 11. In view of the infirmities pointed out above, no reliance can be placed upon the evidence of these two witnesses. The learned trial Judge has either not considered or not properly appreciated the effects of the said infirmities. We, therefore, allow this appeal, set aside the impugned order of conviction and sentence and order that his bail bond be cancelled. 12. From the Judgment and Order dated 16-4-1983 of the Special Court at Ferozepur in Case No. 209 of 1984 and Trial No. 31 of 1985