Khursheed Akram alias Bhoora vs State of U.P. and Another

Ravindra Singh, J.—This application has been filed by the applicant Khurshid Akram alias Bhoora with a prayer to quash the order dated 3.11.2008, passed by learned Addl. Sessions Judge/F.T.C.-3, Moradabad in S. T. No. 1077 of 2008 whereby the application filed by the applicant claiming his discharge has been rejected and to allow the application dated 20.10.2008 filed by the applicant claiming his discharge in S.T. No. 1077 of 2008 under Sections 302 and 120B, I.P.C. pending in the court of learned Addl. Sessions Judge/F.T.C.-3, Moradabad.

The facts in brief of this case are that the F.I.R. of this case has been lodged by O. P. No. 2 Smt. Mehtab wife of the deceased Nasim Chaudhary on 25.12.2007 at 7.45 a.m. at P. S. Gulshahid, district Moradabad in Case Crime No. 1308 of 2007 u/s 302, I.P.C. in respect of the incident which had occurred on 25.12.2007 at about 7 a.m., F.I.R. was lodged against two unknown miscreants. After lodging the F.I.R. the statement of the first informant Smt. Mehtab, witness Samir, witness Ismail, witness Mohd. Wasim, witness Waris, witness Aziz son of Haroon etc. were recorded by the Investigating Officer and submitted the charge-sheet against the applicant and other co-accused persons, on which the learned Magistrate concerned has taken the cognizance and thereafter the case has been committed to the Court of Sessions, the same is pending in the court of learned Addl. Sessions Judge/F.T.C.-3, Moradabad vide S.T. No. 1077 of 2008. The applicant moved the discharge application dated 20.10.2008 u/s 227, Cr. P.C., the same has been rejected by learned Addl. Sessions Judge/F.T.C.-3, Moradabad on 3.11.2008. Being aggrieved from the order dated 3.11.2008 the applicant has filed this application with a prayer to quash the impugned order dated 3.11.2008 and allow the application dated 20.10.2008 by exercising the powers conferred u/s 482, Cr. P.C.

Heard Sri L. S. Yadav, learned Counsel for the applicant and learned A.G.A. for the State of U. P.

It is contended by learned Counsel for the applicant that in the present case the F.I.R. has been lodged against two unknown miscreants, nobody is named in the F.I.R. as accused. It has been mentioned in the F.I.R. that at the time of alleged incident many persons of the locality came at the place of the occurrence and saw the accused persons who committed the murder of the deceased by way of discharging the shots and they saw the accused persons when they ran away from the place of the occurrence, they were chased by them also. But it is surprising that the names of the witnesses have not been disclosed in the F.I.R., after lodging the F.I.R. the statement of the first informant was recorded, thereafter, the statements of the witnesses Samir S/o Ismail, Wasim S/o Mohd. Haroon were recorded by the Investigating Officer on 7.12.2007 but they did not disclose the name of the applicant even they did not disclose the name of any accused person in their statements. The statement of witness Mohd. Wasim was recorded by the Investigating Officer on 28.12.2007 but did not disclose the name of applicant and other co-accused persons. The statement of witness Samir son of Ismail and Wasim son of Haroon were again recorded on 2.5.2008 in which they disclosed the name of co-accused Ikram and Rajeev Tomar who committed the murder of the deceased. They disclosed the name of the applicant also by alleging that he had hatched the conspiracy and provided the assistance to other co-accused persons in committing the murder of the deceased and at the time of the alleged incident, i.e., 25.12.2007 at 7 a.m., he remained near the house of the deceased Naseem Chaudhry and to show sympathy he came at the place of the occurrence immediately, thereafter he disappeared from their. Thereafter the Investigating Officer recorded the statements of Wasim son of Haroon and Aziz. Statement of witness Waris has been recorded by the Investigating Officer on 20.5.2008. They stated that on 22.12.2007 at about 2 p.m., they were taking the meal at Shama Hotel in front of roadways station, Moradabad where applicant and two boys were also taking the meal, they were having the conversation, at that time they were on their back side, the applicant was saying that since the deceased who are resident of Bijnor had taken the contract of slaughtering house, they have become workless, it is very difficult to meet out the expenses, they were having the monopoly there but the outsider had prevailed upon them if he was not removed from the way, they would be without work. Thereafter the accused Ikram stated that his brother co-accused Rajeev Tomar was sitting there on which date he would be used (sic) then it was replied by the applicant the only way left to them to remove the deceased by saying that na baans rahega na bansuri bajegi, na yah zinda bachega na hi pareshan karega. Thereafter they shall run slaughter house. He further stated that the deceased had taken in his confidence and he was relying upon him, he asked the co-accused Ikram for purchasing the fire arms, its cost shall be paid by him and some of the money was given by him to co-accused Ikram. It was also said by the applicant that the location of the deceased would be told by him by telephone and he would be there at a distance so that the suspicion may not be caused. He further told that this work to be done within two or three days. This conversation was heard by them and they have committed the murder of the deceased after three days in furtherance of the conspiracy hatched by them. Thereafter the statement of O. P. No. 2 Smt. Mehtab has also been recorded by the Investigating Officer but she did not disclose the name of the applicant and other co-accused persons. Whereas she has disclosed the name of witnesses Samir, Ismail and Wasim. The naming of the applicant is afterthought. It is also surprising that the witnesses were closely related with the deceased. The statements of the witnesses Samir and Ismail were recorded on 7.12.2007 and statement of witness Waris was recorded on 28.12.2007. The statements were too much belated, even then they did not disclose the name of the applicant and other co-accused persons. It is also surprising that they did not disclose the name of the applicant and other co-accused person to the first informant. But first of all after expiry of more than four months on their first statement they disclosed the name of the applicant and other co-accused persons and thereafter the allegation of hatching conspiracy has also been made on 20.5.2008 by way of recording statements of Waris and Aziz, it shows that naming of the applicant is afterthought. In such circumstances, no reliance can be placed on the statements of the witnesses recorded by the Investigating Officer, there is no evidence except the statements of above mentioned witnesses. The naming of the applicant is afterthought and the prosecution story is highly improbable, it is not having any cogent material, in such circumstances, the filing of the charge-sheet is illegal, on such evidence no charge can be framed. The learned trial court has committed a manifest error by rejecting the discharge application vide order dated 3.11.2007, the same is illegal, it may be set aside and the discharge application dated 20.10.2008 may be allowed. It is further contended that even on the basis of material collected by the Investigating Officer it appears that the naming of the applicant is afterthought, it is too much belated, prima facie no reliance can be placed upon such evidence and on such evidence the conviction of the applicant is not possible, therefore, the applicant may be discharge otherwise applicant shall suffer irreparable loss.

In reply of the above contention, it is submitted by learned A.G.A. that in the present case the statements of the witnesses Samir and Ismail were recorded on 7.12.2007 but they did not disclose the name of the applicant and other co-accused persons, there may be so many reasons for not disclosing the name of the applicant and other co-accused persons and it shall be subject-matter of the cross-examination during trial but they disclosed the name of the applicant and other co-accused persons on 2.5.2008, thereafter the witnesses Waris and Aziz have also been interrogated by the Investigating Officer on 20.5.2008 who have disclosed the name of the applicant and other co-accused persons and they are eye-witness of the conspiracy of the applicant and other co-accused persons three days prior the commission of the alleged offence. According to the statements of the above mentioned witnesses prima facie offence under Sections 302 and 120B, I.P.C. is made out against the applicant. The Investigating Officer has not committed any error in submitting the charge-sheet against the applicant and other co-accused persons. The learned trial court has also not committed any error in dismissing the discharge application vide impugned order dated 3.11.2008 because at the stage of meticulous analyses of the statements of the above mentioned witnesses to ascertain the truthness etc. cannot be made, their testimony can be tested by the trial court when their testimony is deposed before the Court for the purpose of drawing the conclusion. The impugned order is not suffering from any illegality or irregularity and there is no reason to allow the discharge application dated 20.10.2008, therefore, the prayer for quashing the impugned order dated 3.11.2008 and allowing the discharge application dated 20.10.2008 may be refused. The present application is devoid of merit, the same may be dismissed.

Considering the submissions made by learned Counsel for the applicant, learned A.G.A. for the State of U. P. and from the perusal of the record it appears that in the present case the F.I.R. has been lodged against the unknown persons by O.P. No. 2 in Case Crime No. 1308 of 2007 u/s 302, I.P.C. at P. S. Gul Shahid on 25.12.2007 at 7.45 a.m. in respect of the incident in which the deceased Naseem Chaudhary was shot dead at about 7 a.m. on 25.12.2007, after its investigation the Investigating Officer has submitted the charge-sheet against the applicant and other co-accused persons under Sections 302 and 120B, I.P.C. after lodging the F.I.R. the statement of witnesses Samir, Ismail and Wasim were recorded on 7.12.2007 and 28.12.2007 respectively but they did not disclose the name of the applicant and other co-accused persons, subsequently the witnesses Samir and Wasim disclosed the name of the applicant and other co-accused persons in their statements recorded by the Investigating Officer on 2.5.2008, thereafter the statement of witnesses Waris and Aziz have been recorded by the Investigating Officer on 20.5.2008 and claimed themselves to be eye-witness of the conspiracy hatched by the applicant and other co-accused persons. According to the statement of the above mentioned witnesses prima facie offence under Sections 302 and 120B, I.P.C. is made out against the applicant. The delay in recording the statements and non-disclosure of the name of the applicant by the same witnesses in their earlier statements including the possibilities may not be the ground of discharge. At this stage the meticulous analyses to ascertain the truthness may not be done, it may be at the stage of the trial when the testimony of the witnesses is deposed for the purpose of drawing the conclusion at this stage of the framing of the charge or to decide the discharge application. It has to be considered whether the material collected by the Investigating Officer presume it to be true, prima facie any offence is made out or not and it has also to be considered whether the material is sufficient to proceed further against any person. In the present case on the basis of the statement recorded by the Investigating Officer prima facie offence is made out and there is sufficient material to proceed further against the applicant. The learned trial court has considered the discharge application dated 20.10.2008 and rejected the same by well-reasoned order dated 3.11.2008. The impugned order dated 3.11.2008 is not suffering from any illegality or irregularity, therefore, the prayer for quashing the impugned order dated 3.11.2008 is refused. The discharge application dated 20.10.2008 is rightly rejected by the trial court, there is no ground for allowing the same, therefore the prayer for allowing the discharge application dated 20.10.2008 is also refused. The interim order if any is hereby vacated.

With the above observations, this application is dismissed.