committing robbery, the appellant/accused had used the deadly weapon and attempted to cause death or grievous hurt to the victim. The exaggerated version of the prosecution witness to the effect that in an attempt to lift up the rear shutter, the fire arm got accidentally triggered causing firing needs to be ignored because at the time of conducting spot panchanama (Exh.40) no marking of bullet was found either on the floor or shutter of the shop. Testimony of PW2 Anil Lakhawani, recitals in the sport panchanama as well as evidence of PW6 Ravindra Chaudhar, Police Inspector is conspicuous silent on this aspect. While conducting spot panchanama on 7th January, 2015, as deposed by PW6 Ravindra Chaudhar that he had inspected the spot minutely and carefully. However, he could not locate the empty jacket from the spot. The same is shown to have been recovered on 9th January, 2015 when after effecting discovery, the appellant/accused was taken to the shop. This obviously is not possible as the incident in question took place on 4th January, 2015 and the empty jacket is shown to be found at the shutter on 9th January, 2015 i.e. after conducting the spot panchanama. This improbable evidence needs to be ignored in the wake of conducting the spot panchanama on 7th January, 2015. In the result, it cannot be said with certainty at the time of committing robbery the appellant/accused used deadly weapon.
