- (1.) Heard Sri Kameshwar Singh, learned counsel for the applicant, learned A.G.A.for the State of U.P. and Sri Satya Prakash Srivastava, holding the brief of Sri Kamal Kishor Mishra for O.P.Nos. 2 and 3.
(2.) This application has been moved by the applicant Maroof Rana invoking the section 482 Cr.P.C.with a prayer to quash the order dated 14.5.2012 passed by learned Additional Sessions Judge/Special Judge ( S.C./S.T. Act), Meerut in S.T.No. 1206 of 2007 whereby the application moved by the applicant for not producing P.W.2 Maroof Rana and P.W.3 Mohd. Riyazul because there was no need to recall them in respect of the added charge under section 147 I.P.C., has been rejected.
(3.) The facts, in brief , of this case are that the FIR in Case Crime No. 2273 of 2006 under sections 148, 149, 302, 323, 307, 427 I.P.C.has been lodged by the applicant at Police Station Kotwali Nagar, District Muzaffar Nagar in respect of the incident allegedly occurred on 28.10.2006 from 3.30 P.M. to 3.40 P.M. in which deceased Muzaffar Rana has been killed, the applicant and Riyazul Hasan ( Mohd. Riyazul) sustained injuries, after completing the investigation the charge sheet has been submitted against Kadir Rana, O.P.No.2, Noor Salim O.P.No. 3, Mohd. Gauri and Pappu. In the said incident two unknown miscreants also participated in commission of the alleged offence. The learned Magistrate concerned took the cognizance on the charge sheet submitted by the I.O., thereafter the case was committed to the court of session. The trial court framed the charge under sections 148, 302/149, 307/149, 323/149, 427/149 I.P.C.against the accused Kadir Rana O.P.No.2 and Noor Salim O.P.No.3 and the charge under section 147, 302/149, 323/149 and 427/149 has been framed against the accused Mohd. Gauri and pappu, thereafter P.W.1 Constable Subodh Kumar, P.W.2 Maroof Rana ( injured/complainant), P.W.3 Mohd. Riazul ( injured), P.W.4 Dr.Mukesh, P.W.5 Constable Baljore, P.W.6 Dr. Ajay Kumar, P.W.7 Dr. Karan Singh have been examined, the examination in chief of P.W.8 SSI Deepak Malik was recorded but his cross examination was deferred, thereafter an application dated 8.8.2011 has been moved by Sri Mamnoon, the brother of the first informant Maroof Rana, P.W.2 with a prayer that charge under section 147 I.P.C.may also be added against O.P.No.2 Kadir Rana, O.P.No.3 Noor Salim, it was not objected by the counsel for the defence with a condition the right to cross examine to the witnesses already examined, be provided. The trial court allowed the above application No. 419 Kha by adding additional charge of section 147 I.P.C.against O.P.No. 2 and O.P.No.3 also, immediately thereafter an application for re-cross examination of P.W.2 Maroof and P.W.3 Riyazul was moved on behalf of O.P.Nos. 2 and 3, the same was allowed and P.W.2 and P.W.3 were recalled for re-cross examination for added charge under section 147 I.P.C. The applicant move an application dated 15.2.21012 in the court of leraned Additional Sessions Judge/Special Judge (S.C./S.T.Act) Meerut with a prayer that P.W.2 Maroof Rana and P.W.3 Mohd. Riazul may be discharged from giving their evidence as the complainant does not want to furnish any additional evidence in support of section 147 I.P.C.as it is already covered under section 148 I.P.C., no extra evidence is needed for it in which it has been further prayed that P.W.8 SSI Deepak Malik may kindly be called for his remaining cross examination so that the case may be concluded expeditiously. The above mentioned application dated 15.2.2012 has been moved on the following grounds : 1.That this is a hight profile murder case of district Muzaffarnagar and was transferred to Meerut by the Hon'ble High Court after the recording of statement of PW-1 Const.Subodh Kumar who had turned hostile despite being a public servant under the political pressure of accused persons. 2.That charge under sections 148, 302/149, 307/149, 323/149 & 427/149 I.P.C.were framed against all the accused persons 1.9.2007. That the Court earlier had framed charge u/s 147 I.P.C.on 12.6.2007 against accused persons Mohammad Gauri and Pappoo @ Gulfam. 3.That during trial the statements of prosecution witnesses namely PW1 Const.Subodh Kumar, P.W.2 Maroof Rana ( injured/Complainant), PW 3 Mohd. Riajul, P.W.4 Dr. Mukesh, PW 5 c/c Baljore, PW-6 Dr. Ajay Kumar, PW 7 Dr. Karan Singh have already been recorded. The cross-examination of PW 8 SSI Deepak Mali ( IO-1) is pending. 4.That the accused No.1 Qadir Rana is Member of Parliament belonging to ruling state government party BSP. The accused Qadir Rana has relentlessly and continously applied pressure on the Injured/Complainant PW 2 Maroof Rana and PW 3 Mohd. Riajul enter into compromise with him. 5.That the accused No.1 Qadir Rana had got a case framed against the complainant Maroof Rana and Mohd. Riazul at P.S.Korthore (Meerut) at case crime No. 192/11 u/s 498-A, 452, 504, 307, 506 I.P.C.& D.P.Act in connivance with his relative Munquad Ali ( another MP, Rajya Sabha) who hails from Kithore to coerce them into compromise. 6.That as the complainant PW-2 Maroof Rana was in jail in case crime No. 192/11, P.S.Kothore, the accused persons forced the family members to enter into a compromise in this Sessions Trial, otherwise he would be kept languishing in jail. 7.This forced the brother of complainant Mamnoon s/o Mohd. Ali to move an applicaton for getting a charge under section 147 I.P.C.added against accused persons Qadir Rana and Noor Salim respectively. This was done with an unterior motive to get the prosecution witnesses of fact namely PW-2 & PW 3 re-examined and get them to resile from their earlier statements. 8.The accused persons Qadir Rana and Noor Salim were additionally charged under section 147 I.P.C. on 8.8.2011. 9.That in the aforesaid trial the accused persons Qadir Rana was carrying a Pistol and accused Noor Salim was carrying a country made pistol at the time of offence. The accused persons Mohammad Gauri and Pappoo @ Gulfam were carrying Lathis. 10.That the said Mamnoon S/o Mohd. Ali had no locus to move an application to add or alter charge what so ever. This application was also drafted by the accused with legal help. An affidavit of Mamnoon is annexed herewith this application as annexure-1 11. That there was no need to get the charge u/s 147 I.P.C.added as the ingredients of Section 147 I.P.C.are already covered under section 148 I.P.C. The sections are reproduced below: 147. Punishment for rioting- Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 148. Rioting, armed with deadly weapon- Whoever is guilty or rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 12.That the motive behind recalling the witnesses namely PW-2 Maroof Rana and injured PW 3 Mohd. Riajul is to force them to go hostile. Interestingly, it is also pertinent to note that another already hostile withness of fact PW-1 Const. Subodh Kumar has not been recalled. 13.That under the aforesaid circumstances the above witnesses i.e.PW 2 Maroof Rana and injured PW-3 Mohd. Riajul may be discharged from giving their evidence as the complainant does not want to furnish any additional evidence in support of section 147 I.P.C.as it is already covered under section 148 I.P.C.and no extra evidence is needed for it. 14.That the witness PW-8 SSI Deepak Malik may kindly be called for his remaining cross-examination.;