Shri Kant Tripathi, J. - (1.) THE appellant Roofi alias Boby alias Rahat, has preferred this appeal against the judgment and order dated 31.10.2005 passed by the Additional Sessions Judge, Fast Track Court No. 2, Bareilly in S. T. No. 487 of 2004, whereby the learned Additional Sessions Judge has convicted and sentenced the appellant under Section 307, I.P.C. to undergo rigorous imprisonment of five years and also to pay a fine of Rs. 5,000 and in default of payment of fine to undergo additional rigorous imprisonment of one year. He has further convicted and sentenced the appellant under Section 386, I.P.C. to undergo rigorous imprisonment of four years and also to pay a fine of Rs. 5,000 and in default of payment of fine to undergo additional rigorous imprisonment of one year. Both the sentences were directed to run concurrently.
(2.) I have heard the learned counsel for the appellant and the learned A.G.A. and perused the record. The prosecution story, in brief, is that the complainant's son P.W. 2 Nadeem has a shop in Ikbal Market, Nainital Road, Bareilly, in which he runs a business in the name of Navin Opticals. On 18.8.2003, at about 9 a.m., the complainant's son Nadeem went to open the shop. When he reached alongwith P.W. 3 Arif Shamshi in the Pulkaji Wali Gali at about 9.30 a.m., the appellant stopped the motor cycle of the complainant's son Nadeem and asked him why the demanded money was not paid by him and further asked him to pay the amount of Rs. 5,000 instantaneously otherwise he would be killed. The complainant's son replied that his business was not giving proper response and as such he was not in a position to make the payment. On hearing this reply, the appellant assaulted the complainant's son Nadeem with a fire arm, consequently, he sustained fire arm injuries. The complainant, on getting information regarding the incident from P.W. 3 Mohd. Arif Shamsi, went to the place of occurrence and took the injured Nadeem to a Government Hospital for treatment. After that, the complainant lodged the F.I.R. at police station Kotwali on the same day at about 12.15 hours. The police registered the case and proceeded to make investigation. The injured Nadeem was medically examined on 18.8.2003 at about 10.30 a.m. The doctor found the following injuries on his person : (i) Lacerated wound 3 cm. x 2 cm. x cavity deep left side chest, 6 cm. below left nipple margin inverted and black ; (ii) Mulitiple fire arm wound of entries in area 15 cm. x 15 cm. x depth not proved surrounding injury No. 1, margin inverted, black.
(3.) THE doctor further noted that detail examination was not possible due to low condition of the injured. He had however, opined that the injuries were caused by fire arm and were fresh. A similar medical examination of the injuries of the injured was done in Shri Ganga Charan Hospital, where too fire arm injuries on the chest were noted. On X-ray, multiple pellets on the left upper abdomen and lower chest region with left sided pleural effusion-Hemothorax, were found. THE X-ray was done in Shri Ganga Charan Hospital. The Investigating Officer, after completing the investigation, submitted charge-sheet under Sections 307 and 386, I.P.C. against the appellant.;