JUDGMENT - J.A. PATIL, J.:The appellant was tried by the Additional Sessions Judge, Osmanabad on the charge that firstly he attempted to commit murder of two persons, namely, Shankar Deodinga and Dinesh Sheeti by firing shots of his revolver at them and secondly in the course of the same transaction after sometime he again attempted to commit murder of A.P.I. James Ambildhage and the police party with him by firing three shots of his revolver and thirdly, for possessing the revolver in contravention of the provisions of section 3 of the Arms Act. The learned Judge acquitted the appellant on the first and third count but convicted him on the second count and sentenced him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/- in default, to suffer further rigorous imprisonment for one year. Being dissatisfied with the said order of conviction and sentence, the appellant has preferred this appeal. 2. The facts which are relevant for the decision of this appeal are, in brief, to the effect that on the night between 20-5-1995 and 21-5-1995 at about 00.30 hours, A.P.I. James Ambildhage (P.W. 9) and his party were chasing the appellant in their jeep on road leading to village Gunjoti. It is alleged that at that time the appellant, who was armed with a revolver, fired three shots at the police party with the intention to commit murder of A.P.I. Ambildhage and other policemen. It is the prosecution case that by way of defence A.P.I. Ambildhage fired 4 shots of his gun at the appellant and asked him to surrender himself. Thereafter, the appellant laid down the arm in his hand and the police party then apprehended him in a field. On personal search of the appellant, a revolver of Webley and Scott Company was found with him. On checking the said revolver it was found that there were 5 empty cartridges in the chambers of the revolver. In addition, it was found that the appellant had in all 8 live cartridges. The appellant did not hold any licence for possessing the revolver as well as the cartridges. Therefore, the revolver and the cartridges found with him were seized under a panchanama. Thereafter, A.P.I. Ambildhage filed his complaint (Exhibit 27) in the Police Station and registered a case against the appellant. The appellant did not hold any licence for possessing the revolver as well as the cartridges. Therefore, the revolver and the cartridges found with him were seized under a panchanama. Thereafter, A.P.I. Ambildhage filed his complaint (Exhibit 27) in the Police Station and registered a case against the appellant. In the course of investigation the revolver and the cartridges were sent to the ballistic expert who opined that the revolver was in working condition and that it was used for firing prior to its receipt in the laboratory. The ballistic expert further opined that the characteristic features of the firing pin impressions on the empties showed that they had been fired from the same revolver. In due course the investigation was completed and the appellant came to be charge-sheeted. 3. In the Sessions Court, the appellant pleaded not guilty to the charge. His defence was one of total denial. He denied to have fired any shot at the policemen. He also denied that any revolver or live cartridges were found in his possession. According to him, the police apprehended him at the Police Station at Omerga. 4. In support of its case the prosecution examined in all 10 witnesses. Out of whom, the witnesses regarding the first incident turned hostile. The learned trial Judge, however, found that the evidence of A.P.I. Ambildhage (P.W. 9) and two policemen namely Head Constable Undre (P.W. 4) and Constable Khune (P.W. 5) was acceptable and that there was no reason for the police to file a false case against the appellant. However, as pointed out above, the learned Judge convicted the appellant only on the second count of the charge, namely, attempt to commit murder of A.P.I. Ambildhage and his police party. It is this order which is the subject-matter of this appeal. 5. We have heard Shri S.S Choudhari, the learned Advocate for the appellant-accused and Shri S.B. Bakhariya, learned Additional Public Prosecutor for the respondent-State. Shri Choudhari submitted before us that the learned Judge was in error upon placing reliance on the evidence of the A.P.I. Ambildhage and the two policemen as they were interested witnesses. He pointed out that the independent witness Jagannath Dudhbhate (P.W. 1) who had accompanied the police party in their jeep did not support the prosecution case. Shri Choudhari submitted before us that the learned Judge was in error upon placing reliance on the evidence of the A.P.I. Ambildhage and the two policemen as they were interested witnesses. He pointed out that the independent witness Jagannath Dudhbhate (P.W. 1) who had accompanied the police party in their jeep did not support the prosecution case. Shri Choudhari further submitted that the panch witnesses have not supported the prosecution case, the recovery of revolver and cartridges from the person of the appellant cannot be believed. Shri Choudhari then submitted that even assuming that the appellant had fired shots at the policemen, there was no requisite intention to commit murder. He pointed out that there is no evidence on record to indicate that the alleged shots by the appellant were fired from an effective range. Besides, no attempt was made by A.P.I. Ambildhage, who investigated the case, to recover the used cartridges. Shri Bakhariya, learned A.P.P., supported the order of conviction and submitted that there is no reason to discard the evidence of the policemen that the appellant had fired shots at them. 6. With the help of Shri Choudhari we have gone through the oral evidence of the witnesses. The relevant witnesses are P.W. 1- Jagannath Dudhbhate, P.W. 4-Head Constable Undre, P.W. 5-Constable Khune and P.W. 9- A.P.I. James Ambildhage. It is true that the P.W. 1- Jagannath, who is an independent witness and who is said to have accompanied the police while they were chasing the accused in their jeep, did not support the prosecution case. However, all the 3 above mentioned Police Officers have clearly stated that the appellant fired 3 rounds at them while they were chasing him. It is true that, there are minor variations in their versions to which we will later on refer. But the core of their evidence is common and there is unanimity in their evidence that they had chased the appellant and at that time the appellant fired 3 rounds at them and that after the appellant was apprehended, a revolver with empty and live cartridges was found with him. We do not accept the argument of Shri Choudhari that the Police Officers being interested witnesses, their evidence should not be accepted. It is inconceivable that A.P.I. Ambildhage would foist the foreign made revolver worth Rs. 50,000/- to involve the appellant falsely in such type of case. We do not accept the argument of Shri Choudhari that the Police Officers being interested witnesses, their evidence should not be accepted. It is inconceivable that A.P.I. Ambildhage would foist the foreign made revolver worth Rs. 50,000/- to involve the appellant falsely in such type of case. If he wanted to involve the appellant then he would have properly foist a country made pistol which was sufficient for that purpose. The station diary entry (Exhibit 26) shows that on receiving information from Sudarshan Hotel, A.P.I. Ambildhage along with the above mentioned two Police Constables and others proceeded to the spot on the same night at 00.15 hours. Taking these facts into consideration, we do not see any good reason to discredit the prosecution evidence so far as the fact that the appellant was chased and at that time he fired shots at the policemen is concerned. 7. The material question to be considered now is whether the appellant would be said to have committed an offence punishable under section 307 of the Indian Penal Code. Section 307 reads as under: “307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” It will, thus be seen that in order to prove a case of attempt to murder, the prosecution has to prove two things. First that the accused had intention or knowledge to commit murder and secondly that the act done by him was capable of causing death. It, therefore, becomes necessary to examine the evidence of the above mentioned 3 witnesses for ascertaining whether the above ingredients of the offence could be said to have been proved. 8. First that the accused had intention or knowledge to commit murder and secondly that the act done by him was capable of causing death. It, therefore, becomes necessary to examine the evidence of the above mentioned 3 witnesses for ascertaining whether the above ingredients of the offence could be said to have been proved. 8. The story made out in the F.I.R. (Exhibit 27) is to the effect that while the police party was chasing the appellant in their jeep the appellant was seen at a distance of about 2 or 3 furlongs and that he was running away by concealing himself. He was given a signal to stop but he fired shots from his revolver at the police party. Thereafter, A.P.I. Ambildhage in order to protect himself and other policemen with him, fired 4 rounds. It is further stated in the F.I.R. that the appellant was thereafter encircled and asked to lay down his weapon. On his doing so, he was apprehended. In his evidence before Court, A.P.I. Ambildhage (P.W. 9) has, however, made a material departure from the story stated in the F.I.R. Before the Court he has stated that the police party reached near the appellant who was running away. Thereafter, the jeep was stopped and the police party started getting down from it. He has further stated that the police party then encircled the appellant and at that time the appellant with intention to kill A.P.I. Ambildhage and other policemen fired three rounds from the rifle with him. A comparison of his version before the Court with that in the F.I.R. (Exhibit 27) makes it clear that he has changed the sequence of the events. In this connection it may be pointed out that Constable Khune (P.W. 5), who was one of the members of the party, does not speak that the appellant fired shot at the police party after they got down from the jeep. On the contrary, his version is that the jeep was being driven in the direction of the appellant and when the appellant saw the police jeep he fired 3 rounds at them. The same thing is with regard to the evidence of Head Constable Undre (P.W. 4). He has stated that the police party was proceeding in a jeep chasing the appellant with the help of search light. The same thing is with regard to the evidence of Head Constable Undre (P.W. 4). He has stated that the police party was proceeding in a jeep chasing the appellant with the help of search light. According to him, at that time the appellant fired 3 rounds towards police party and that thereafter A.P.I. Ambildhage fired 4 rounds from his revolver in order to save the lives of the policemen. Nowhere in the examination-in-chief Head Constable Undre indicates that police party got down from the jeep, encircled the appellant and at that time the appellant fired shots at them. However, in the cross-examination Head Constable Undre appears to have deviated from his version in the examination-in-chief and stated after they got down from the jeep the appellant started firing at them. 9. From the evidence of the above mentioned witnesses it is clear that none of them has stated as to what was the distance between the appellant and the police jeep when the former is said to have fired rounds at the latter. It is important to note that neither A.P.I. Ambildhage nor any member of his party received any bullet injury. The evidence does not disclose that any of the 3 bullets fired by the appellant hit any part of the jeep which was chasing the appellant. There is no recovery of bullets alleged to have been shot by the appellant. What is more important to note is the fact that none of the witnesses has stated that the appellant while running away, turned round and fired shots at the police. The evidence on this point would have been material to ascertain the intention of the appellant as well as the nature of his act. For instance, if the shots were fired from beyond the effective range of the revolver then it cannot be said that the act of the appellant was capable of causing the death of A.P.I. Ambildhage or any policemen of his party. 10. In this connection it would be advantageous to make reference to the decision in (Sk. Mansuri v. The State)1, A.I.R. 1955 Patna 330 wherein the facts were that the accused who was a stranger in the village was accosted by 3 persons. The accused then took out his pistol and pointed it at the witnesses who stepped back some distance. In this connection it would be advantageous to make reference to the decision in (Sk. Mansuri v. The State)1, A.I.R. 1955 Patna 330 wherein the facts were that the accused who was a stranger in the village was accosted by 3 persons. The accused then took out his pistol and pointed it at the witnesses who stepped back some distance. Thereafter while running away the accused fired some shots from his country made pistol at the witnesses but none of them was injured. There was no specific evidence as to the distance between the accused and the witnesses who were chasing him but one of the witnesses stated in the cross-examination that they were at a distance of about 100 yards when the accused fired at them. The High Court observed: “.........The prosecutor, unfortunately, did not take from the witnesses the distance from which the accused is said to have fired his pistol both at the time when he was accosted by the villagers at Chianki and at the time when he was being pursued by them and other villagers. Thus, he should have done. He should have also extracted expert opinion from P.W. 15 regarding the distance which this country made pistol was able to reach with the projectiles fired with it.” Therefore, in the peculiar state of circumstances, the High Court held that the accused had fired shot not with the intention of committing murder of any of the witnesses but in order to scare away the villagers. These observations fittingly apply to the facts of the present case, because in this case also there is no evidence regarding the distance between the appellant and the police party when the shots were fired. It is material to note that the appellant was being chased and he fired the shots while running away. It is not the prosecution case that during chasing the appellant had stopped for a while and that after turning round towards the police jeep, he fired shots from his revolver. In the absence of any such evidence it will have to be held that the shots fired by the appellant were at random and without any specific aim. The intention of the appellant in doing so therefore clearly appears to be to scare away the police who were chasing him in the jeep. In the absence of any such evidence it will have to be held that the shots fired by the appellant were at random and without any specific aim. The intention of the appellant in doing so therefore clearly appears to be to scare away the police who were chasing him in the jeep. Moreover, in the absence of any evidence that the shots were fired from an effective range of the revolver it cannot be concluded that the act of firing by the appellant was capable of causing death in the natural and ordinary course of things. Matter would have been different if there had been specific evidence as to the effective range of the revolver of Webley and Scott Company and the approximate distance from which the appellant fired 3 shots at the police party. 11. Therefore, taking into consideration the above mentioned aspect of the case, we are of the opinion that the learned trial Judge was not right in holding the appellant guilty of the offence punishable under section 307 of the Indian Penal Code. Consequently, the order of conviction and sentence passed against the appellant deserve to be set aside. 12. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellant-accused is hereby quashed and set aside and the appellant-accused is acquitted of the offence punishable under section 307 of the Indian Penal Code. He be set at liberty forthwith in case he is not required for the purpose of any other case. Fine, if any already paid by the appellant-accused, be refunded to him. Appeal allowed. -----