Roofi alias Boby alias Rahat vs State of U.P.

Kant Tripathi, J.—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 u/s 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 u/s 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.

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.

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.

The learned Additional Sessions Judge charged the Appellant under Sections 307 and 386, I.P.C., who denied the charges and claimed to be tried.

The prosecution examined as many as eight witnesses in support of its case.

P.W. 1 Mohd. Wasil Shamshi is the complainant. He has proved the F.I.R. Ex. Ka-1 and also supported the prosecution story. P.W. 2 Nadeep is the injured and P.W. 3 Mohd. Arif Shamshi is an independent eye-witness. These two witnesses have supported the prosecution story and have given eye-witness account of the occurrence. P.W. 4 Chandra Sen, who was posted as Head Constable at the concerned police station, has proved the chick report Ex. Ka-2 and copy of the G. D. Ex. Ka-3. P.W. 5 Dr. R. K. Sharma has proved the fire arm injuries sustained by the injured Nadeem as well as his injury report Ex. Ka-4. Dr. Sharma has further proved that the condition of the injured was critical. His injuries could be caused with a single shot by a fire arm like country made pistol and were fresh. He has further clarified that the fire arm injuries sustained by the injured could have been caused on the day and time alleged by the prosecution. P.W. 6 Sub-Inspector, Ravindra Kumar, who was the Investigating Officer of the case, has proved the fard Ex. Ka-5, site plan Ex. Ka-6 and the charge-sheet Ex. Ka-7. P.W. 7 Dr. Gopal Dutt has proved the medical papers/injury reports and X-ray reports prepared in Shri Ganga Charan Hospital and they are Ex. Ka-9, Ka-10 and Ka-11 on record. He has further proved the x-ray plates Ex. 1 and Ex. 2. Dr. Gopal Dutt has also proved that the fire arm injuries sustained by the injured were dangerous to life. P.W. 8 Dr. Sunit Tandon, Radiologist has proved that x-ray of the chest was held under his supervision. It was revealed on x-ray that metallic density shadows were present on the left side of the chest above the abdomen and there was clotted blood in the peritoneum of lung.

The Appellant was examined u/s 313, Cr. P.C. He has stated that he has been falsely implicated due to enmity.

The Appellant has not adduced any evidence in defence.

The learned Counsel for the Appellant-Roofi alias Boby alias Rahat has not pressed the appeal on merit and submitted that he has nothing to submit against the finding of guilt recorded by the lower court against the Appellant. The learned Counsel, however, submitted that the sentence imposed on the Appellant was excessive and unreasonable.

To prove the charges under Sections 307 and 386, I.P.C. against the Appellant, the prosecution has placed reliance on the ocular testimonies of the injured witness (P.W. 2 Nadeem) and the independent witness (P.W. 3 Mohd. Arif Shamshi). It may not be out of context to mention that P.W. 3 Mohd. Arif Shamshi was also going on the motor cycle of the injured and was accordingly present at the scene of occurrence. These two prosecution witnesses have clearly stated that when they reached in the lane of Pulkaji Wali Gali at about 9.30 a.m. on 18.8.2003, the Appellant met them and asked the P.W. 2 Nadeem as to why the money demanded by him was not paid and further required him to make payment of Rs. 5,000 instantaneously, otherwise he would be killed. When P.W. 2 Nadeem showed his inability to pay the money, the Appellant fired with a country made pistol on his chest, consequently he sustained fire arm injuries. P.W. 2 Nadeem and P.W. 3 Mohd. Arif Shamshi have been cross-examined at length but nothing material could be brought on record to discredit their testimonies. The occurrence in question took place in the broad day light and as such it cannot be said to be a case of mistaken identity of the assailant. The oral testimonies of the aforesaid two witnesses have been corroborated by the medical evidence of P.W. 5 Dr. R. K. Sharma, P.W. 7 Dr. Gopal Dutt and P.W. 8 Dr. Sumit Tandon.

In my opinion, the learned Additional Sessions Judge has not committed any factual or legal error in placing reliance on ocular testimonies of P.W. 2 Nadeem and P.W. 3 Mohd. Arif, which have been duly corroborated with medical evidence and circumstances of the case. The finding of the learned lower court that the charges under Sections 307 and 386, I.P.C. have been proved beyond all reasonable doubts against the Appellant is based on proper appraisal of evidence and requires no interference. The conviction of the Appellant under Sections 307 and 386, I.P.C. is therefore, upheld.

The learned Counsel for the Appellant further submitted that the Appellant is in jail since 2003 and has almost served out the maximum sentence awarded by the learned lower court. It was also submitted that the Appellant being a poor person is not in a position to pay the fine imposed on him and as such the sentence of fine should be set aside.

Keeping in view the facts and circumstances of the case, nature of the crime and complicity of the Appellant, the sentences of five years rigorous imprisonment u/s 307, I.P.C. and four years rigorous imprisonment u/s 386, I.P.C. do not appear to be excessive and unreasonable. So far as the sentence of fine of Rs. 5,000 under each count is concerned, it seems to be excessive. The offences under Sections 307 and 386, I.P.C. are punishable with imprisonment as well as with fine and as such it is not legally permissible to award the sentence of imprisonment only but in view of the fact that the Appellant is in jail continuously since 2003 and has a poor financial background, the amount of fine of Rs. 5,000 each u/s 307, I.P.C. and 386, I.P.C. is liable to be reduced to Rs. 1,000.

The appeal is partly allowed. The conviction of the Appellant Roofi alias Boby alias Rahat under Sections 307 and 386, I.P.C. is confirmed. The sentences of five years rigorous imprisonment u/s 307, I.P.C. and four years rigorous imprisonment u/s 386, I.P.C. are also confirmed. The sentence of fine of Rs. 5,000 u/s 307, I.P.C. as well as Section 386, I.P.C. is reduced to Rs. 1,000 under each count and in default of payment of fine the Appellant Roofi alias Boby alias Rahat shall undergo additional rigorous imprisonment of three months under each count. All the sentences shall run concurrently. The sentence passed by the learned Additional Sessions Judge stands modified accordingly.

The Appellant shall be extended the benefit of set off as contemplated by Section 428, Cr. P.C.