Delhi District Court
State vs 1. Naeem Qureshi @ Tyagi on 11 February, 2010
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In the Court of Ms. Shalinder Kaur
Additional Sessions Judge-FTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 13/08
State versus 1. Naeem Qureshi @ Tyagi
S/o Sh. Yusuf Qureshi
R/o 695, South Khalapur,
Mujaffar Nagar, UP.
2. Parvez Khan
S/o Sh. Kasim Khan
R/o 712, South Khalapur,
Mujaffar Nagar, UP.
3. Abul Hassan
S/o Sh. Mohd. Shamshad
R/o 621, Nai Abadi,
Behind Basant Cinema,
Khatauli, Mujaffar Nagar, UP.
4. Ikrar Ahmad
S/o Sh. Zulfikar Ahmad
R/o 525, South Khalapur,
Mujaffar Nagar, UP.
5. Shahnawaj S/o Sh. Mehtab
R/o D-90/5A, Gali No.10,
Vijaya Park, Mohan Puri,
Mauzpur, Delhi.
6. Shah Alam @ Toni
S/o Late Mumtaz
R/o Khaddarwala
Mujaffar Nagar, UP.
(Declared PO on 10.12.08)
7. Arshad S/o Akhtar
R/o 420, Kenchi Wali Gali,
Bagpat Road, PS Delhi Gate,
Meerut, UP.
(Declared PO before committal proceedings)
SC: 13/08 Naeem Qureshi & Ors.
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Case arising out of:
FIR No. : 237/00
Police Station : Karol Bagh
Under Section : 396/302/120-B/412 IPC
Judgment reserved on : 27.01.10
Judgment pronounced on : 11.02.10
JUDGMENT
Case History:
1. Accused persons namely Naeem Qureshi @ Tyagi, Parvez Khan, Abul Hassan, Ikrar Ahmad, Shahnawaj, Shah Alam (PO) and Arshad (PO) have been charge sheeted for offence punishable U/s 396/302/120-B/412 IPC. The prosecution case in brief is that on 04.07.00, on receipt of DD No.16A, Station House Officer along with staff reached the place of occurrence at M/s.
Udal Singh & Sons Jewelers in Karol Bagh. They found the door of the shop was open and inside the shop, three dead bodies were lying on the floor. The hands of the dead bodies were tied at the back and feet of two of the dead bodies were also tied. Behind the counter in the shop, a fourth dead body was also found lying. All the dead bodies bore stab wounds on the neck and on left side of the chest, which appeared to have been caused by a sharp edged weapon. The locks of the safe were tried to be cut with gas. In front of the shop, there was shop of another jeweler by the name of M/s. N.M. Jewelers. The police found two gas cylinders, SC: 13/08 Naeem Qureshi & Ors.
:3:rubber pipe and nose lying in front of the said jewelery shop. At that time, Sh. Naresh Kumar Sharma, owner of M/s. N.M. Jewelers came and got his statement recorded to the police. He stated that on 02.07.00, at 7.45 PM, he went home after closing his shop. 03.07.00 was a weekly holiday in the market. On 04.07.00, he came to his shop at routine time i.e at 10 AM. He found that shutter of his shop was half open and the middle lock of the shutter was cut with gas. The door of the shop of M/s. Udal Singh & Sons Jewelers was also found open. The complainant had found four dead bodies lying inside the shop of M/s. Udal Singh & Sons Jewelers. On checking inside his shop, the complainant found the weighing scales and artificial jewelery i.e four bangles and two necklaces missing.
2. On the basis of the complaint, the investigations were initiated. The dead bodies were got identified from the relatives of the deceased persons. One of the dead body was identified to be of Sh. Anil, an employee of Sh. Udal Singh, another was of Sh. Rajnish @ Raju, driver of M/s. N.M. Jewelers. The third dead body was identified as of Sh. Surender Kumar who was phupha of deceased Raju and the fourth dead body was of Sh. Navratan who was employed as Security Guard during day time in Gaffar Market. Sh. Udal Singh who had also come to the spot, had found his fax machine, one briefcase, one telephone instrument, four karas and two chains missing. Postmortem was got conducted. Exhibits were lifted from the place of occurrence and sent to CFSL. On completion of the investigations, charge sheet was laid SC: 13/08 Naeem Qureshi & Ors.
:4:in the Court of Learned Metropolitan Magistrate. Accused Arshad was declared Proclaimed Offender before committal proceedings. Whereas accused Shah Alam was declared Proclaimed Offender during the trial on 10.12.08.
3. After the case was committed for trial to the sessions, Charge for offence punishable U/s 412 IPC was framed against accused Ikrar Ahmad and charge for offence punishable U/s 120- B/395/396/302 IPC was framed against accused Naeem Quereshi, Parvez Khan, Abul Hassan, Shahnawaj and Shah Alam (PO). The accused persons pleaded not guilty to the charge and claimed trial. The prosecution has examined 23 witnesses in order to substantiate the charge against the accused persons.
Evidence:
4. PW1 Sh. Naresh Kumar Sharma is the complainant on whose statement, the FIR was registered. He has proved his complaint as Ex.PW1/A. He further proved the seizure memos Ex.PW1/B & Ex.PW1/C vide which the blood samples were lifted from the place of occurrence. He has also proved the seizure memo Ex.PW1/D vide which the earth control and another blood sample was lifted from the spot. Ex.PW1/F & Ex.PW1/H are the seizure memos vide which the blood stained clothes and lock of shutter of the shop of the witness were seized, both these memos were proved by the witness.
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:5:5. PW2 Sh. Balbir Singh S/o Sh. Bahadur Singh, PW6 Sh.
Indresh Singh, PW7 Sh. Om Prakash, PW8 Sh. Daya Ram, PW9 Matadin and Sh. PW16 Balbir Singh S/o Sh. Budu Singh are the witnesses to identification of the dead bodies. PW2 & PW7 had identified the dead body of deceased Anil who is the brother of PW2 and after postmortem, he had received the dead body of Anil vide receipt Ex.PW2/A. PW6 had identified the dead body of Rajnish @ Raju vide his statement Ex.PW6/A. PW8 had identified the dead body of deceased Navratan being his father vide statement Ex.PW8/A. PW9 also identified the dead body of Navratan being his brother. PW16 had identified the dead body of Surender Singh as he was his brother -in-law. He had also identified the dead body of Rajnish which he received vide receipt Ex.PW16/B. He also received the dead body of Surender Singh vide receipt Ex.PW16/D.
6. PW4 Dr. Yogender Bansal had conducted the postmortem on the dead body of deceased Navratan and he proved the postmortem report, prepared by him as Ex.PW4/A.
7. PW5 Dr. Aakash Jhanjee has proved the postmortem report Ex.PW5/A vide which postmortem was conducted on the dead body of deceased Anil Kumar.
8. PW14 Dr. Anil Aggarwal had conducted the autopsy on the dead body of deceased Rajnish. The witness proved his report as Ex.PW14/A. SC: 13/08 Naeem Qureshi & Ors.
:6:9. PW18 Dr. Anil Kumar Mittal had conducted the autopsy on the dead body of deceased Surender. He has proved the report, given by him in this regard as Ex.PW18/A.
10. PW3 Sh. Prem Kalra was an employee at J.K. Paul Engineering Mills Pvt. Ltd. He deposed that in the year 2000, 2-3 persons came to his shop and purchased gas cutter pipe and oxygen regulator. However, the witness could not identify those persons.
11. PW10 Sh. Harish Kumar, PW11 Sh. Inder Mohan Bhandari are the witnesses to last seen evidence. Both these witnesses did not identify the accused persons.
12. PW12 Constable Rajbir deposed that on 04.07.00, he had gone to Sarin Bhawan, Karol Bagh and had taken 12 photographs of the place of occurrence. The witness proved the photographs as Ex.PW12/A-1 to A-21 and their negatives collectively as Ex.PW12/B.
13. PW13 Sh. Udal Singh Verma is the owner of the shop M/s. Udal Singh & Sons Jewelers from where the four dead bodies were recovered. The witness deposed that four karas and two chains were looted from his shop. He identified these articles in the Court as Ex.P-1 to Ex.P-6.
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:7:14. PW15 Constable Anil deposed that on 04.07.00, he was posted with Dog Squad police station Mandir Marg. At about 10.45 AM, he along with his dog Jumbo reached the spot at Hardhayan Singh, Karol Bagh. The dog could not gather the scent of any of the culprit.
15. PW17 HC Surender Singh and PW24 SI Sushil Kumar are the witnesses to the arrest of accused Abul Hassan, Naeem Qureshi, Shahnawaj, Shah Alam (PO) and Parvez Khan. They proved the arrest memos and the personal search conducted of these accused persons. The witnesses also deposed that four bangles and two chains were got recovered by accused Naeem Qureshi from an almirah in his house. He also got recovered his car. Both the witnesses have also proved the disclosure statement recorded of accused Shahnawaj as Ex.PW17/K1.
16. PW19 Sh. Anil Goel has proved the document Ex.PW13/A vide which a fax machine was sold by him to Sh. Udal Singh on 14.11.96.
17. PW20 Constable Sudhir Kumar, PW22 HC Sansar Pal and PW23 SI Sanjay Kumar were the members of the police team which had gone to place of occurrence on 04.07.00 after receiving DD No.16A. All these three witnesses have deposed that inside the shop namely M/s. Udal Singh & Sons Jewelers, four dead bodies were found. The scene of crime was inspected and various exhibits were lifted.
SC: 13/08 Naeem Qureshi & Ors.
:8:18. PW21 SI Mahesh Kumar was the Draftsman who has proved the scale site plan, prepared by him as Ex.PW21/A.
19. PW25 Sh. Rakesh Sayal deposed that he was posted as Metropolitan Magistrate on 11.10.00 at Tis Hazari Court. The Test Identification Parade of accused Naeem Qureshi, Parvez Khan Abul Hassan and Shah Alam (PO) were marked to him. All the accused persons were produced in custody in muffled faces in the Court. All the accused persons refused to participate in Test Identification Parade. The witness proved the proceedings, conducted by him as Ex.PW25/A to Ex.PW25/D. The witness had also conducted the TIP of the seized artificial jewelery, which were identified by the witness Sh. Udal Singh. The TIP proceedings conducted by the witness are proved as Ex.PW25/J.
20. PW26 SI Subodh Anand had joined the investigations with Inspector Roshan Lal who has been examined as PW28. Both the witnesses have proved the investigations conducted by Inspector Roshan Lal.
21. Dr. Dhruv Sharma, Senior Scientific Officer from Lucknow has been examined as PW27. He has proved the report prepared by him with respect to blood exhibits sent to FSL as Ex.PW27/A. He further proved a detailed Serological Report, prepared by him as Ex.PW27/B. SC: 13/08 Naeem Qureshi & Ors.
:9:22. PW29 ASI Om Prakash has deposed that he was posted as MHC(M) in police station Karol Bagh in the year 2000. The witness has proved the various entries made by him in register no.19 vide which the case property was deposed in the Malkhana on different dates and was sent to CFSL on different dates. The entries proved by the witness are Ex.PW29/A-1 to A-8.
23. PW30 ASI Rajbansh Singh had taken two sets of pulandas, containing various exhibits of the case which he deposited at FSL, Malviya Nagar. The witness deposed that till the parcels remained with him, no one tempered with the same.
24. The accused persons have denied the case of the prosecution in their statements, recorded U/s 313 Cr.P.C. They have alleged their false implication in this case and claimed to be innocent. Accused Ikrar Ahmad examined Smt. Jamila Banu as DW1 in his defence. Accused Shahnawaj has examined HC Kiran Pal as DW2 and Sh. Mehtab Khan as DW3 in his defence. The other accused persons did not lead any evidence in defence.
Contentions:
25. Learned APP submitted that the police had arrested the accused Abul Hassan on the basis of an information that he had sold the fax machine and gold weighing scale which were looted from the shop of M/s. N.M. Sharma Jewelers and M/s. Udal Singh & Sons Jewelers to accused Ikrar Ahmad. Accused Abul Hassan SC: 13/08 Naeem Qureshi & Ors.
:10:was arrested who led to the arrest of accused Naeem Quereshi and from his possession, the looted artificial jewelery from the said shops was recovered. Accused Naeem Qureshi was staying in a tenanted premises along with accused Parvez Khan and Shah Alam (PO) who were also arrested at the same time. Moreover, the stolen fax machine had been recovered from the possession of accused Ikrar. Similarly, accused Shahnawaj was also arrested thereafter. The recovered stolen jewelery as well as the car in which the accused persons had gone to commit dacoity and murder had also been recovered from the possesion of accused Naeem Qureshi. Thus, the prosecution case has been established beyond doubt against the accused persons.
26. On behalf of the accused persons, it was urged that the case of the prosecution rests on circumstantial evidence. The witnesses to the last seen evidence have not supported the prosecution case. Thus, the prosecution case merely hinges on the recovery of stolen articles which cannot connect the accused persons with the alleged commission of offence of dacoity and murder. Moreover, the prosecution has not been able to prove the recovery at the instance of the accused persons as the prosecution did not join any public witness at the time of recovery. Further more, the witnesses have admitted that the alleged recovered jewelery did not have any specific identification mark and the same is easily available in the market being artificial jewelery. It was submitted that even the recovery of the alleged fax machine from the possession of accused Ikrar Ahmad does SC: 13/08 Naeem Qureshi & Ors.
:11:not stand established as the owner of the fax machine Sh. Udal Singh was not able to identify the same. Thus, there is no evidence, available on the record to connect the accused persons with the alleged commission of offence.
Findings:
27. Admittedly, in this case, there is no direct evidence against the accused persons. The prosecution is relying upon the circumstantial evidence in order to prove the guilt of the accused persons. It has been consistently laid down by the Apex Court in number of cases that where a case rests squarely on circumstantial evidence from which the guilt of the accused is to be proved, has to be fully established and same should be of conclusive nature being consistent only with the hypothesis of the guilt of the accused. These circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused. Moreover, the chain of evidence must be so complete that it does not leave any reasonable ground for being consistent with the innocence of the accused.
28. In the light of the above settled principle of law, let us examine the circumstances, put forth by the prosecution which are as follows :-
(i).Homicidal death of four persons, Dacoity in the shop M/s. N.M. Jewelers and Dacoity with murder committed in the shop M/s Udal Singh & Sons Jewelers.
SC: 13/08 Naeem Qureshi & Ors.
:12:(ii).Refusal of Test Identification Parade.
(iii).Recovery of case property at the instance of accused persons.
(iv).Last seen evidence.
(i) Homicidal death of four persons, Dacoity in the shop M/s. N.M. Jewelers and Dacoity with murder committed in the shop M/s Udal Singh & Sons Jewelers.
29. PW1 Sh. Naresh Kumar Sharma has deposed that he was running a business in the name of M/s. N.M. Jewelers at Sarin Bhawan, in Shop No.2228/29, Hardhayan Singh Road, Karol Bagh on the first floor. The business was of gold and diamond jewelery. When he came to his shop on 04.07.00 at 10 AM, he found the shutter of his shop partially open and its lock was cut with gas. He also found gas cylinder and gas cutter lying there. The shutter of the shop of M/s. Udal Singh & Sons Jewelers which is in front of his shop, was also lying open. Four dead bodies were found lying in the said shop out of which one dead body of an employee Sh. Rajesh Kumar who used to work as his driver as well as at his shop. Another dead body was of Sh. Anil who was an employee of M/s. Udal Singh & Sons Jewelers. The witness had found ornament's weighing scale and some artificial jewelery missing from his shop. The testimony of this witness is unchallenged.
30. PW13 Sh. Udal Singh Verma owner of the shop M/s. Udal Singh & Sons Jewelers has corroborated the testimony of SC: 13/08 Naeem Qureshi & Ors.
:13:PW1. The witness also deposed that he had found one fax machine, one briefcase, one telephone instrument, four karas and two chains missing from his shop.
31. PW20 Constable Sudhir Kumar, PW22 HC Sansar Pal, PW23 SI Sanjay Kumar, PW26 SI Subodh Anand and PW28 Inspector Roshan Lal are the members of the police team which had arrived at the scene of crime on 04.07.00 after receiving DD No.16A. These witnesses have also corroborated the testimony of PW1 to the effect that shutters of both the shops were found broke open. Four dead bodies with stab injuries were found inside the shop M/s. Udal Singh & Sons Jewelers. These witnesses have also proved the investigations done at the place of occurrence.
32. PW2 Sh. Balbir Singh S/o Sh. Bahadur Singh, PW6 Sh. Indresh Singh, PW7 Sh. Om Prakash, PW8 Sh. Daya Ram, PW9 Sh. Matadin and PW16 Sh. Balbir Singh S/o Sh. Budu Singh are the relatives of the deceased persons who had identified the said dead bodies.
33. PW4 Dr. Yogender Bansal, PW5 Dr. Aakash Jhanjee, PW14 Dr. Anil Aggarwal and PW18 Dr. Anil Kumar Mittal have proved that the deceased had met with homicidal death. These doctors had conducted autopsy on the dead bodies of the deceased persons and had opined the injuries to be ante-mortem and the cause of death was due to hemorrhage and shock consequent upon multiple injuries. Injuries were found to be stab SC: 13/08 Naeem Qureshi & Ors.
:14:injuries caused with sharp weapons and some of the injuries on the dead bodies were found to be sufficient to cause death in ordinary course of nature. Thus, from the evidence of the above mentioned witnesses, the prosecution has been able to establish that deceased persons namely; Anil Kumar, Rajnish @ Raju, Surender Singh and Navratan had met with homicidal death and dacoity was committed in the shop of PW1 & PW13 in between the evening of 02.07.00 to the morning of 04.07.00 which was detected in the morning on 04.07.00 at about 10 AM. The prosecution witnesses have also been able to prove that a dacoity was committed in the shop of M/s. N.M. Jewelers and dacoity with murder was committed in the shop of M/s. Udal Singh & Sons Jewelers.
(iv) Refusal of Test Identification Parade
34. PW25 Sh. Rakesh Sayal Learned MM has deposed that accused Naeem Qureshi, Parvez Khan, Abul Hassan and Shah Alam (PO) were produced before him in muffled faces on 11.10.00. All the four accused persons had refused to participate in TIP Proceedings. These proceedings have been proved by the witness as Ex.PW25/A to Ex.PW25/D. The testimony of PW25 is unchallenged.
35. As per the statement recorded of accused Naeem Qureshi before the Learned MM, he had refused to participate in TIP as police had already taken his photographs. Accused Parvez SC: 13/08 Naeem Qureshi & Ors.
:15:Khan had stated that police had shown him to witnesses at police station and had also prepared his video film. Similar plea was taken by accused Shah Alam (PO). Whereas accused Abul Hassan did not assign any reason for not participating in TIP.
36. PW28 Inspector Roshan Lal has deposed that after the arrest of the accused persons, they were produced in muffled faces before the concerned MM. The application for TIP was moved. On 11.10.00, they were again produced in the Court and they refused to participate in TIP.
37. As per Ex.PW25/F, SI Subodh had produced the four accused persons before the concerned MM on 10.10.00 at 6.45 PM for holding their TIP which was fixed for 11.10.00. On the said day, the accused persons were again produced in muffled faces before the Learned Link MM i.e PW25 who had conducted the TIP proceedings of these accused persons. But PW26 SI Subodh Anand has not deposed anything regarding producing of accused persons for their TIP in the Court.
38. From the testimony of prosecution witnesses, it is evident that accused Abul Hassan was arrested from his residence in Mujaffar Nagar on 09.10.00 at about 5 PM and accused Naeem Quresh, Shah Alam (PO) and Parvez Khan were arrested at 3 AM on 10.10.00 from Kankerkhera, Meerut. They were produced before Learned MM on 10.10.00 at about 6.45 PM SC: 13/08 Naeem Qureshi & Ors.
:16:and they were produced before the Learned Link MM for holding their TIP on 11.10.00.
(v) Recovery of case property at the instance of accused persons.
39. PW17 HC Surender Singh, PW24 SI Sushil Kumar, PW26 SI Subodh Anand and PW28 Inspector Roshan Lal are the witnesses of recovery. From the testimony of these witnesses, it emerges that a secret information was received that accused Abul Hassan was in possession of fax machine and a weighing machine, pertaining to this case. It came to be known that he resided in Yogender Puri, Numaish Camp, Mujaffar Nagar, UP and he had sold the fax machine to one Ikrar. The police party went there and on the pointing out of secret informer, accused Abul Hassan was overpowered. Accused Abul Hassan was arrested and his disclosure statement Ex.PW17/M was recorded. Thereafter the accused led the police party to a house in Om Nagar, Kankarkhera, Meerut where he claimed that accused Naeem Qureshi, Parvez Khan and Shah Alam (PO) were residing as tenant. The police team stationed outside the said house and accused Naeem Qureshi, Parvez Khan and Shah Alam (PO) were overpowered while they tried to escape. These accused were interrogated and arrested. Their disclosure statements were recorded vide Ex.PW17/F, Ex.PW17/G & Ex.PW17/H. Accused Naeem Qureshi got recovered four bangles and two chains from an almirah in his house which articles were seized vide seizure SC: 13/08 Naeem Qureshi & Ors.
:17:memo Ex.PW17/J. He also pointed towards a blue colour car bearing registration No.UP12 8423 which was parked outside the house and the said car was seized vide seizure memo Ex.PW17/J-1.
40. PW24 SI Sushil Kumar, PW26 SI Subodh Anand and PW28 Inspector Roshan Lal are also the witnesses to recovery of the fax machine. From the evidence of these three witnesses, it emerges that on 14.10.00, accused Ikrar had purchased a fax machine which was sold to him by accused Abul Hassan. The fax machine was seized vide seizure memo Ex.PW24/D. The case property recovered from the house of Naeem had been correctly identified in the Court by the witnesses. Bangles are as Ex.P-1, P- 2, P-3 & P-4, Chains are as Ex.P-5 & P-6 and the fax machine has been identified as Ex.P-15.
41. During the course of arguments, various discrepancies were pointed in the testimony of recovery witnesses. It was submitted that PW17 HC Surender Singh has deposed that accused Naeem Qureshi was apprehended from the right side room after entering the house and no writing work was done in the house. In contradiction to his testimony, PW24 SI Sushil has deposed that he could not tell about the location of the room from where the recovery was effected. He has deposed that the accused was apprehended from back side of his house outside the boundary of the house. He also deposed that the recovery was effected from a room at the back side of the house and the SC: 13/08 Naeem Qureshi & Ors.
:18:writing work was done while sitting on the floor of the porch. PW17 has deposed that they had remained in the house for about 30 minutes whereas PW24 testified that they remained there for about 3 ½ hour.
42. It was argued that the testimony of PW26 SI Subodh is further contradictory to the testimony of the above two witnesses. This witness has deposed that the room from which the recovery was effected was on the left side after entering the house. The writing work was done while sitting on a cot, lying in the verandah of the house. Police team had remained in the house for about 1 ½ hour. It was also argued that no public person was joined at the time of recovery. So much so, the landlord of the house was also not made a witness. In view of these discrepancies appearing in the testimony of the prosecution witnesses, the recovery of the artificial jewelery appears to be doubtful. So much so, the landlord of the house was not made a witness to the recovery.
43. PW28 Inspector Roshan Lal has deposed that Sh. Brijpal was the owner of the house who told that accused Naeem Qureshi, Parvez Khan and Shah Alam (PO) were his tenants. Brij Pal was not present during recovery proceedings. He had left as he got scared on being told about the background of the accused persons and the case against them. He did not return back till the police team had left the house with the accused persons. Thus, it explains about non-joining of landlord Brijpal as a witness at the time of recovery of articles.
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:19:44. PW13 Sh. Udal Singh Verma has deposed that on 07.12.00, he had gone to the Court where he identified four karas and two chains before the Magistrate. He identified these articles as being the same which were looted from his shop as Ex.P-1 to Ex.P-6. The witness also deposed that these articles were not of gold but were artificial which were purchased by him. He was informed by the police after three months of the incident that his articles had been recovered. Except for the fax machine, no other article was shown to him in the police station. PW25 Sh. Rakesh Sayal, Learned MM has proved the TIP proceedings qua these articles. He has deposed that the articles were identified by the witness Sh. Udal Singh on 07.12.00 before him and the TIP proceedings are Ex.PW25/J.
45. It was vehemently argued that the case property is not the gold jewelery but artificial. Moreover, the same is easily available in the market and PW13 did not give any description of the said case property to the police, therefore, this recovery cannot be believed. PW13 has clarified the said fact and has deposed that the police did not ask him about the description of the said articles. No suggestion was given to the witness that these articles are easily available in the open market. PW26 has not been cross-examined with respect to TIP of these articles before the Learned MM. Although PW28 was questioned about the details of the articles which were purchased for mixing with the case property for TIP but PW28 deposed that the same were brought by PW26 SI Subodh Anand.
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:20:46. PW13 Sh. Udal Singh has also deposed about stealing about his fax machine from his shop on the fateful day and he had identified the fax machine in the police station. However, in the Court, the witness could not identify whether the fax machine Ex.P-15/P-15/A was the one which was stolen from his shop. He deposed that it is of the same company i.e Panasonic but he could not say if it was the same fax machine which was taken away from his shop on the day of the incident.
47. PW19 Sh. Anil Goel has deposed that he had sold the said fax machine to Sh. Udal Singh on 14.11.96 vide Ex.PW13/A. The witness admitted that every fax machine has a specific number allotted it apart from the make of the machine. The number " KX-F-230-BX" is mentioned in Ex.PW13/A denotes the model number of the machine. He also admitted that there would be hundreds of fax machine in the market with the said model number. Thus, from the testimony of above witnesses, it appears that prosecution has been able to prove that accused Naeem Qureshi was found in possession of stolen artificial jewelery Ex.P- 1 to P-6 but the recovery of stolen fax machine Ex.P-15 is doubtful. The discrepancies in the testimony of the recovery witnesses as pointed out are minor in nature which are bound to occur due to lapse of time.
(vi) Last seen evidence
48. To establish the identity of the accused persons involved in the said crime, the prosecution has examined PW3 Sh. Prem SC: 13/08 Naeem Qureshi & Ors.
:21:Kalra, PW10 Sh. Harish Kumar and PW11 Sh. Inder Mohan Bhandari. From the evidence of PW3, it emerges that he was employed as Counter Sales Man with J.K. Paul Engineering Mills. In the year 2000, 2-3 persons had gone to his shop and purchased gas cutter pipe and oxygen regulator. The witness deposed that in the police station Karol Bagh, he was asked to identify the said persons out of the persons who were sitting in the police station but he could not identify anyone of them. The witness did not support the case of the prosecution qua the identity of the accused Shahnawaj even though he was declared hostile by Learned APP and was cross-examined in detail.
49. PW10 Sh. Harish Kumar also did not identify the accused persons. The witness deposed that he had found one Maruti car stationed outside Sarin Building and 3-4 persons quickly sat in the car. On the next day, the witness came to know a robbery was committed near Sarin Building and some persons were murdered. The witness could not tell about the colour or the number of the car. He further deposed that he cannot identify those persons whom he had seen sitting in the Maruti car. The witness specifically denied for having made a statement Mark A to the police on 14.10.00 or that he had identified accused Parvez Khan and Shah Alam (PO) in Tis Hazari Courts on 08.11.00. Learned APP could not shake the stand taken by the said witness during his cross-examination.
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:22:50. Same is the fate of the witness PW11 Sh. Inder Mohan Bhandari. As per the testimony of this witness, he had seen one blue colour car which came and stopped at Hardhayan Singh Road. The witness at that time was going to sleep on a Rheri. He had seen 3-4 persons alightening from the car and two of them were having cylinders in their hands. They went inside a building and thereafter he slept. At about 4 AM, the witness came to know that murder of 3-4 persons had taken place in the jewelery shop. The witness deposed that his statement was not recorded by the police nor he had identified those persons before the police. He did not identify any of the accused persons even in the Court. The witness was cross-examined by Learned APP after getting him declared hostile but the witness denied for having made statement Mark X-1 to the police or having identified the accused Naeem Qureshi and Abul Hassan in police station Karol Bagh on 14.10.00. He further denied that on 08.11.00, he had identified the accused Parvez Khan and Shah Alam (PO) in Tis Hazari Court. Thus, prosecution has not been able to adduce clinching evidence to connect the accused persons with the alleged commission of dacoity and murder as well as with the conspiracy to commit the alleged offence. As the witnesses to last seen have not supported the case of the prosecution, even if the accused had refused to participate in TIP also become inconsequential.
51. The prosecution has failed to establish that the fax machine Ex.P-15 was the one which was looted by the dacoits while committing dacoity at the shop of M/s. Udal Singh & Sons SC: 13/08 Naeem Qureshi & Ors.
:23:Jewelers. Thus, it has not been proved beyond reasonable doubt that the accused Ikrar Ahmad was having possession of the fax machine which a stolen property having been transferred to him while committing dacoity in the jewelery shop of M/s. Udal Singh & Sons Jewelers.
52. Moreover, the offence is alleged to have been committed between 02.07.00 to 04.07.00 whereas accused Abul Hassan was arrested on 09.10.00 i.e after three months of the incident and on his pointing out, the accused Naeem Qureshi, Parvez Khan and Shahnawaj and Shah Alam (PO) were arrested on 10.10.00. Accused Ikrar Ahmad was arrested on 14.10.00. Even if the prosecution has been able to establish that the stolen articles were recovered from the possession of Naeem Qureshi who was arrested at the instance of accused Abul Hassan, still there is no further evidence to connect even both these accused persons with alleged commission of offence of dacoity and murder or its conspiracy. As the prosecution has not been able to establish its case beyond reasonable doubt against the accused persons, the evaluation of the evidence led by the defence is not required.
53. However, the prosecution has been able to prove beyond reasonable doubt that on the disclosure statement, made by accused Abul Hassan, accused Naeem Qureshi, Parvez Khan and Shah Alam (PO) were arrested. The prosecution has also proved that from the possession of accused Naeem Qureshi, the stolen artificial jewelery Ex.P-1 to Ex.P-6 was found.
SC: 13/08 Naeem Qureshi & Ors.
:24:54. To sum up, the prosecution has failed to establish the charge for offence punishable U/s 395/396/302/120-B IPC against any of the accused i.e accused Abul Hassan, Naeem Qureshi, Parvez Khan and Shahnawaj and also failed to establish the charge for offence punishable U/s 412 IPC against accused Ikrar Ahmad. However, since the prosecution has been able to prove the recovery of the stolen articles from the possession of accused Naeem Qureshi who has been arrested at the instance of accused Abul Hassan. Thus, accused Abul Hassan and Naeem Qureshi are convicted for a lesser offence punishable U/s 411 IPC. Accused Abul Hassan, Naeem Qureshi, Parvez Khan and Shahnawaj are accordingly acquitted from the charge as framed against them for offence punishable U/s 395/396/302/120-B IPC after giving them benefit of doubt. Accused Ikrar Ahmad is acquitted from the charge of offence punishable U/s 412 IPC after giving him benefit of doubt.
Announced in the Open Court On 11.02.2010.
(Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 13/08 Naeem Qureshi & Ors.
:25:State Vs Naeem Qureshi & Ors.
FIR No. 237/00PS : Karol Bagh SC No. : 13/08 11.02.10 Present : Sh. Mohd. Ikrar, Learned APP for State.
Accused Naeem Qureshi in JC produced from Saharanpur Jail.
Accused Parvez, Abul Hassan, Ikrar Ahmad and Shah Nawaj on bail.
Accused Shah Alam and Arshad are PO.
Sh. R.P. Tyagi - Counsel for accused Abul Hassan and Naeem Qureshi.
Vide judgment announced of even date on separate sheets, accused Abul Hassan and Naeem Qureshi are convicted for a lesser offence punishable U/s 411 IPC. Accused Abul Hassan, Naeem Qureshi, Parvez Khan and Shahnawaj are accordingly acquitted from the charge as framed against them for offence punishable U/s 395/396/302/120-B IPC after giving them benefit of doubt. Accused Ikrar Ahmad is acquitted from the charge of offence punishable U/s 412 IPC after giving him benefit of doubt.
Put up for Order on Sentence on 16.02.10.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 13/08 Naeem Qureshi & Ors.
:26:In the Court of Ms. Shalinder Kaur Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 13/08 State versus 1. Naeem Qureshi @ Tyagi S/o Sh. Yusuf Qureshi R/o 695, South Khalapur, Mujaffar Nagar, UP.
2. Parvez Khan S/o Sh. Kasim Khan R/o 712, South Khalapur, Mujaffar Nagar, UP.
3. Abul Hassan S/o Sh. Mohd. Shamshad R/o 621, Nai Abadi, Behind Basant Cinema, Khatauli, Mujaffar Nagar, UP.
4. Ikrar Ahmad S/o Sh. Zulfikar Ahmad R/o 525, South Khalapur, Mujaffar Nagar, UP.
5. Shahnawaj S/o Sh. Mehtab R/o D-90/5A, Gali No.10, Vijaya Park, Mohan Puri, Mauzpur, Delhi.
6. Shah Alam @ Toni S/o Late Mumtaz R/o Khaddarwala Mujaffar Nagar, UP.
(Declared PO on 10.12.08)
7. Arshad S/o Akhtar R/o 420, Kenchi Wali Gali, Bagpat Road, PS Delhi Gate, Meerut, UP.
(Declared PO before committal proceedings) SC: 13/08 Naeem Qureshi & Ors.
:27:Case arising out of:
FIR No. : 237/00 Police Station : Karol Bagh Under Section : 396/302/120-B/412 IPC Judgment pronounced on : 11.02.10 ORDER ON SENTENCE
1. Heard on the point of sentence.
2. It is submitted on behalf of convict Abul Hassan that he is not a previous convict and he has spent more than four years in custody.
Convict Naeem Qureshi submits that he has been in custody since 13.10.2000 and in between he had been on bail for a short period.
It is also submitted that the convicts have been acquitted from the charge of graver offence.
3. Learned APP submits that even though the convicts have been acquitted from the charge of graver offence, still maximum punishment be given to them.
SC: 13/08 Naeem Qureshi & Ors.
:28:4. In view of the submissions made, both the convicts are sentenced to RI for three years for offence punishable under Section 411 IPC. Copies be given free of cost to the convicts.
Announced in the Open Court On 16.02.10 (Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 13/08 Naeem Qureshi & Ors.
:29:State Vs Naeem Qureshi & Ors.
FIR No. 237/00PS : Karol Bagh SC No. : 13/08 16.02.10 Present : Sh. Mohd. Ikrar, Learned APP for State.
Convict Naeem Qureshi in JC produced from Saharanpur Jail.
Convict Abul Hassan in person.
Sh. Mohd. Arif - Counsel for both the convicts. Accused Shah Alam and Arshad are PO.
Arguments heard on point of Sentence.
Vide Order on Sentence announced of even date on separate sheets, both the convicts are sentenced to RI for three years for offence punishable under Section 411 IPC.
As the convicts have submitted that they have already been in custody for more than the period of three years, Reader to verify and state the period for which they have been in custody in this case.
Reader has reported that accused Abul Hassan was in custody in this case w.e.f.09.10.00 to 22.03.05 and accused Naeem Qureshi was in custody in this case w.e.f.10.10.00 to 14.03.05. He was released on bail on 15.03.05. Thereafter on 25.05.05, NBWs against convict Naeem Qureshi were issued and subsequently he was produced on production warrants in another case. It is submitted SC: 13/08 Naeem Qureshi & Ors.
:30:on behalf of convict Naeem Qureshi that his NBWs have not been cancelled thereafter and since then he is again in custody.
As it has been reported that both the convicts had been in custody for more than the period for which they have been sentenced, thus, convict Abul Hassan not be taken in custody and convict Naeem Qureshi be released forthwith in this case, if not wanted in any other case.
File be consigned sine die to Record Room and be revived as when the accused Shah Alam or Arshad shall be arrested.
(Shalinder Kaur) ASJ- FTC (Central) : Delhi.
16.02.10 SC: 13/08 Naeem Qureshi & Ors.