Honourable Vinod Prasad, J. - (1.) THE above two proceedings have been initiated by co accused in the same S.T. No. 126 of 2009, State Vs. Dev Sharma and others, relating to crime no. 69 of 2000, under Sections 307, 120-B I.P.C., P.S. Rabupura, District G.B. Nagar pending before Additional Sessions Judge / F.T.C. Court No. 3, G.B. Nagar and since relief sought in both the above proceedings relates to framing of charge and/or discharge hence both the cases were clubbed together and are being decided by this common order.
(2.) GRIEVANCE of the petitioner Naresh is against the order of framing charge dated 5.2.2010, u/s 307/120 B, I.P.C. whereas in Criminal Revision No. 512 of 2010, five revisionists(Dev Sharma, Jugal Kishore, Nahar Singh, all real sibling brothers, being son of late Chaturbhuj Sharma), Kanchhi Lal Sharma and Hari Kishan( both the real brothers, being son of late Murari Lal Sharma) are aggrieved by the impugned order dated 18.1.2010 passed by the trial Judge by which he has refused to discharge them from aforementioned offences, which revisionist had claimed through their discharge application Paper No. 6 Kha. Before proceeding further, background factual matrix indicate that on 26.6.2000 at 8.45 a.m., informant Harish Chandra accompanied with his brother Govardhan Sharma (injured) were proceeding on their bicycles from their village Bhaipur towards Rabupura, hamlet and when they reached near Rajwaha Khera, culvert they were surrounded by co-villagers Naresh, Girish Kumar and Chhotu accompanied with another accused Netra Pal, resident of village Sauda, Habibpur, Khurja Dehat all armed with country made pistols. Shouting instigation Naresh along with Chhotu and Girish Kumar shot at Govardhan Sharma with an intention to murder him and thereby caused him three fire arm injuries. Informant Harish Chandra raised hue and cry, which attracted Balli, Bhajan Lal, Udai Chand towards scene of the incident and spotting approaching witnesses shooters escaped from the crime spot towards Rustampur brandishing their country made pistols. Injured was rushed to the police station Rabupura, where, the same day at 9.15 a.m., informant eye witness Harish Chandra lodged a FIR against four named accused Naresh, Netra Pal, Girish Kumar and Chhotu as crime no. 69 of 2000, under Section 307 I.P.C., P.S. Rabupura, District G.B. Nagar. Investigation into the crime commenced, and in their interrogatory statements U/S 161 informant and injured named only above four accused, Naresh, Chhotu, Girish Kumar and Netra Pal, as the main malefactors, who had committed the crime because of motive that wheat crop on a disputed agriculture field was got harvested by the informant and injured. In respect of that agricultural field, there was a litigation going on between Nahar Singh, Dev Sharma and Kanchhi Lal Sharma on the one side and informant and his brother on the other side. Another eye witness, Balli also supported informant's case and named only aforementioned four accused as the culprits, who had orchestrated the crime. It transpires that during investigation, investigatory statement of the informant was inked for the second time, under Section 161 Cr.P.C., who in this second round exonerated Girish Kumar S/o Kanchhi Lal Sharma from his complicity in the crime and denied his involvement into the offence. It further transpires that pending investigation, two affidavits, vide Annexure No. 5, were filed before S.O., P.S. Rabupura, District G.B. Nagar on 15.7.2000 by Ram Niwas S/o Momraj and Dinesh Kumar S/o Murari Lal in which they testified that on 11.6.2000, fifteen days prior to the incident at 6-7 p.m. when they were passing by in front of the house of Dev Sharma, they were called by his son Chhotu. At that moment, they witnessed that on an erected platform in front of house of Dev Sharma, he (Dev Sharma), Nahar Singh, Jugal Kishore, Kanchhi Lal Sharma, Hari Kishan, Chhotu, Girish Kumar, Naresh and Netra Pal (revisionist) were conspiring amongst themselves in a very loud voice that Govardhan Sharma (injured) is very clever and after instituting prosecution, he had got their crop harvested because of his influence and he will not allow them to succeed in the court case and, therefore, there is no way out but to remove him from their way. They were also yelling out that Govardhan Sharma got their enormous money wasted in the litigation and if he is done to death, they will not have to go to the court. They were also yelling that after death of Govardhan Sharma, they will get back their agriculture land and if he remains alive they will never regain it. It was further testified in those affidavits that those persons were shouting simultaneously that they will get rid of Govardhand Sharma because their sons have now lost patience and they have got sufficient arms with them. It was also testified that because of faux pas and temerity they allowed Govardhan Sharma to live. Both the affidavits of Dinesh Kumar and Ram Niwas are of identical contents. After these affidavits were tendered statements of Dinesh Kumar and Ram Niwas, under Section 161 Cr.P.C. were recorded wherein they not only repeated their versions mentioned in their affidavits but went a head by stating that when they tried to overhear the conversations further then they were threatened by them with dire consequences. In their statements under Section 161 Cr.P.C., they therefore stated that because of the aforesaid reason, they have not divulged the said utterances to anybody in the village. In such factual background initially after concluding investigation, I.O. laid a charge sheet, on 9.8.2000, against six accused Naresh, Chhotu, Netra Pal, Nahar Singh, Jugal Kishore and Hari Kishan but subsequently, he filed a supplementary charge sheet on 7.11.2000 against rest of the two accused Dev Sharma and Kanchhi Lal Sharma. What is important and noticeable is that in none of the two charge sheets, Ram Niwas and Dinesh Kumar were cited as prosecution witnesses who had given affidavits regarding the alleged conspiracy hatched up by the accused revisionists.
(3.) SINCE I.O. had charge sheeted all the accused persons, they were summoned by the Magistrate and their case was committed to Session's Court for trial where it was registered as S.T. No.126 of 2009, State Vs. Deo Sharma and others and was allotted to Additional Sessions Judge, FTC No.3 Gautam Budh Nagar for trial. Under Section 227/228 Cr.P.C. five accused namely Dev Sharma, Nahar Singh, Jugul Kishore, Hari Kishan and Kanchhi Lal, all the revisionists claimed discharge through an application paper No. 6 Kha. Trial Judge, by impugned order dated 8.1.2010, rejected their discharge prayer and hence challenge to the said order has been made in Criminal Revision No.512 of 2010. Trial Judge thereafter charged all the accused persons U/Ss 307/120-B IPC on 5.2.2010 and therefore another named accused Naresh challenged that charge by preferring Criminal Misc. Writ Petition No.9038 of 2011. In the revision injured Govardhan Sharma on behalf of informant as well as learned AGA for the state have filed counter affidavits to which rejoinder affidavit has also been filed. In the writ petition an impleadment application on behalf of injured Govardhan Sharma was filed, wherein he has stated that informant is in hand and gloves with the accused and hence his impleadment application was allowed and his counsel Sri Raj Kumar has been heard in opposition in both the proceedings as he stated that his counter affidavit in revision be considered in this writ petition and therefore, in joint agreement with both the sides and learned AGA, both the above case were heard finally and are being decided by this common order. In the aforesaid background facts, I have heard Sri Deepak Srivastava, learned counsel for the petitioner Naresh, Sri M.K. Singh Sengar, learned counsel for the revisionists in Criminal Revision No.512 of 2010 and Sri Raj Kumar, learned counsel for the informant and the injured in both the cases- Writ Petition and Criminal Revision,and Sri Sangam Lal Kesharwani, learned AGA in opposition.;