Ravindra Singh, J. - (1.) THIS appli cation has been filed by the applicant Khurshid Akram @ Bhora with a prayer to quash the order dated 3.11.2008 passed by learned Addl. Sessions Judge/FTC-3, Moradabad in S.T. No. 1077 of 2008 whereby the application filed by the appli cant claiming his discharge has been re jected 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 120-B IPC pending in the Court of learned Addl. Sessions Judge/F.T.C.-3, Moradabad.
(2.) THE facts in brief of this case are that the FIR of this case has been lodged by O.P. No. 2 Smt. Mehtab wife of the de ceased Nasim Chaudhary on 25.12.2007 at 7.45 A.M. at P.S. Gulshahid, District Moradabad in case crime No. 1308 of 2007 under section 302 IPC in respect of the in cident which had occurred on 25.12.2007 at about 7.00 A.M., FIR was lodged against two unknown miscreants. After lodging the FIR the statement of the first informant Smt. Mehtab, witness Samir, witness Israil, witness Mohd. Wasim, witness Waris, wit ness Aziz son of Haroon etc. were recorded by the I.O. 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/FTC-3 Moradabad vide S.T. No. 1077 of 2008. THE applicant moved the dis charge application dated 20.10.2008 under section 227 Cr.P.C, the same has been re jected by learned Addl. Sessions Judge/FTC-3, Moradabad on 3.11.2008. Being ag grieved 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 con ferred under section 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 FIR has been lodged against two unknown miscreants, nobody is named in the FIR as accused. It has been mentioned in the FIR that at the time of alleged incident many persons of the locality came at the place of the occurrence and saw the accused per sons who committed the murder of the de ceased 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 FIR, after lodging the FIR the statement of the first informant was recorded, thereafter the statements of the witnesses Samir S/o Is mail, Ismail S/o Mohd. Haroon were re corded by the I.O. on 7.12.2007 but they did not disclose the name of the applicant even they did not disclosed the name of any ac cused person in their statements. The statements of witnesses Mohd. Wasim was recorded by the I.O. on 28.12.2007 but did not disclose the name of applicant and other co-accused persons. The statement of witness Samir son of Israil 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 hasted the con spiracy 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 7.00 A.M. he remained near the house of the deceased Naseem Chaudhary and to show sympathy he came at the place of the oc currence immediately, thereafter he disap peared from there. Thereafter the I.O. re corded the statements of Wasim son of Haroon and Aziz. Statement of witness Waris has been recorded by the I.O. on 20.5.2008. They stated that on 22.12.2007 at about 2.00 P.M. they were taking the meal at Shama Hotel in front of roadways sta tion, 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 Bijnore 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 then it was replied by the applicant the only way left to them to remove the deceased by saying that NA BAANS REHEGA 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 con versation was heard by them and they have committed the murder of the deceased af ter three days in furtherance the conspiracy hatched by them. Thereafter the statement of O.P. No. 2 Smt. Mehtab has also recorded by the I.O. but she did not disclose the name of the applicant and other co-accused persons. Whereas she has dis closed the name of witnesses Samir, Ismail and Wasim. The naming of the applicant is after thought. It is also surprising that the witnesses were closely related with the de ceased. 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 surpris ing 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 ap plicant is after thought. In such circum stances, no reliance can be placed on the statements of the witnesses recorded by the I.O., there is no evidence except the state ments of above mentioned witnesses. The naming of the applicant is after thought and the prosecution story is highly im probable, it is not having any cogent mate rial, 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 appli cation dated 20.10.2008 may be allowed. It is further contended that even on the basis of material collected by the I.O. it appears that the naming of the applicant is after thought, it is too much belated, prima facie no reliance can be placed upon such evi dence and on such evidence the conviction of the applicant is not possible, therefore, the applicant may be discharged otherwise applicant shall suffer irreparable loss.
(3.) 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 I.O. 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. Accord ing to the statements of the above men tioned witnesses prima facie offence under sections 302 and 120-B IPC is made out against the applicant. The I.O. 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 state of meticulous analyses of the statements of the above mentioned wit nesses to ascertain the truth ness etc. cannot be made, their testimony can be tested by the Trial Court when their testimony is de posed 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 dis missed. 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 FIR has been lodged against the unknown persons by O.P. No. 2 in case crime No. 1308 of 2007 under section 302 IPC 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 7.00 A.M. on 25.12.2007, after its investigation the I.O. has submitted the charge-sheet against the applicant and other co-accused persons under sections 302, 120-B IPC, after lodging the FIR 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 appli cant and other co-accused persons subse quently the witnessed Samir and Wasim disclosed the name of the applicant and other co-accused persons in their state ments recorded by the I.O. on 2.5.2008, thereafter the statement of witnesses Waris and Aziz have been recorded by the I.O. 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 120-B IPC is made out against the applicant. The delay in re cording the statements and non- disclosure of the name of the applicant by the same witnesses in their earlier statements includ ing 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 de posed for the purpose of drawing the con clusion at this stage of the framing of the charge or to decide the discharge applica tion. It has to be considered whether the material collected by the I.O. presume it to be true, prima facie any offence is made out or not and it has also be considered whether the material is sufficient to pro ceed further against any person. In the pre sent case on the basis of the statement re corded by the I.O. prima facie offence is made out and there is sufficient material to proceed further against the applicant The learned Trial Court has considered the dis charge 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 illegal ity 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 or der if any is hereby vacated. With the above observations, this application is dismissed.;