1. Heard Ms. Somya Chaturvedi, learned counsel Amicus Curiae and Sri Tarkeshwar Yadav, learned A.G.A. for the State.

2. This is a jail appeal preferred by the accused. Briefly stated the facts of the case are that one Mohd. Haneef S/o Aivaz Khan lodged an FIR on 18.9.1999 at 6.15 a.m. alleging that he was sleeping in his house when at about 3' O clock in the morning, he heard knocking sound (Khat-Khat). He woke up and went to the terrace with a lighted torch in his hand and saw the accused Nasim Ahmad who belonged to the same mohalla. The informant asked him, who is there? and immediately thereafter, Nasim Ahmad fired upon him with a country made pistol. The informant raised alarm upon which Shakoor S/o Bashir Ahmad and Raees S/o Bashir residents of the same mohalla also reached there with lighted torches. They saw the accused Nasim running away alongwith two other persons in the torch light. The other two persons were not known to the informant and it is stated that he had seen them in the torch light and could recognize them, if they are produced before him. On the FIR the police registered a case under Section 307 IPC against the accused on the same day. On 18.9.1999 the torches of Mohd. Haneef, the informant and the witnesses Abdul Shakoor and Raees were checked and found to be in running condition. Mohd. Haneef, was examined by the Medical Officer, Primary Health Centre, Kanth, Moradabad at about 7.45 AM on 18.9.1999. The Medical Report is as under:-

“Injuries:

1. Multiple Gunshot injuries .3 cm in diameter present ones the front of chest more on Rt side, Rt side of abdomen, anterior aspect of Rt. arm, one on posterior aspect of Rt forearm (upper 1/3 & lower 2/3 ...) Two ones the forehead and one on upper lip. Bleeds on touching. Probing not done.”

3. The informant has received injuries on the face, chest and hands. His X-ray was also taken and X-Ray report read as under:-

“Three small rounded radio opaque shadow of metallic density seen, fracture left maxilla bone on the left side face.”

4. The trial ensued and ultimately the trial court convicted the accused of the offence under section 307 I.P.C. and sentenced him to undergo seven years R.I. with fine of Rs. 5,000/- with default stipulation. Against the judgment of the trial court, the present jail appeal has been preferred. This court appointed Ms. Somya Chaturvedi as Amicus Curiae.

5. The learned Amicus Curiae has taken the court through the entire evidence on record. The first submission is that the injuries are of simple nature and the medical report itself mentions that there are two pellet shots (chharra) .3 cm in diameter in front of chest on the right side abdomen, on the right side anterior of the right arm, one injury on the posterior of the right fore arm, upper 1/3 and lower 2/3 two injuries on the forehead and one on the upper lip which bleeds on probing. The injuries are stated to have been caused by a fire arm. The X-Ray shows three small rounded radio opaque shadow of metallic density, fractured left maxilla bone on the left side of the face. In the accompanying letter when the accused was sent for X-Ray examination it was mentioned that the pellet injuries were on the face, chest and hands.

6. In the trial Haneef was examined as a witness and he stated that on the night of 18.9.1999 he heard a sound of khat-khat at about 3.00 AM and woke up. He took a torch and went on the terrace. He lit his torch and at that time there was a lighted bulb of the opposite house and in this light he saw Nasim standing and he asked him “Abey tu?”. On his question Nasim fired at him with a country made pistol and 2 or 3 pellets struck him on the forehead, one on the stomach, one in the arm, one on the upper lip and one on the eyebrow including the chest. His neighbour Shakoor and Raees also reached there with their torches on the alarm being raised by him. Both these persons saw the accused in their torch light. Along with the accused there were two or three more people