Delhi District Court
State vs Zaki Etc on 10 March, 2025
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT - 01):
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
SC No. 2152/2016
STATE Vs Zaki & Ors.
FIR No.: 403/2012
U/S 302/307/34/174A IPC
& 25 Arms Act
PS : Hazrat Nizamuddin
Particulars of the case
1. Date of offence : 21.11.2012
2. Offence complained of : u/s 302/307/34 IPC, 27(1)
Arms Act & u/s 174A IPC
3. Name of the complainant : SI Ajay Kumar
4. Name of the accused : Zaki
his parentage S/o Sh.Kamal Ahmed,
his residential address R/o: Village Akbarpur Jhojha,
PS Gulawati, UP.
Also at : M-22, Abul Fazal Enclave,
Okhla, Delhi.
5. Plea of accused : Pleaded not guilty
6. Final order : Accused acquitted
7. Date of Institution : 12.04.2013
8. Date of Judgment reserved on : 10.02.2025
9. Date of Judgment : 10.03.2025
10. Ld. Addl. PP for State : Sh. Nischal Singh
11. Ld. Counsel for accused Zaki : Sh. Anil Basoya
SC No. 2152/2016 State v. Zaki & Anr. Pages 1 of 37
FIR No. 403/2012
JUDGMENT
1. CHARGESHEET 1.01 As per charge-sheet, on 21.11.2012 at 10.52 pm a PCR call was received at police station Hazrat Nizamuddin vide DD No.27A regarding firing incident at Alwi Chowk Basti Hazrat Nizamuddin. On this information SI Ajay Kumar along with Ct. Satish reached at House no. T-405, Khusro Nagar, Basti Nizamuddin where he came to know that firing incident had taken place and two injured ladies were rushed to AIIMS Trauma Center by their relatives. The spot was preserved and got inspected by the crime team and two empty cartridges of 7.65 bore were found on the bed of room at first floor of the house. Blood stains were also present near the door of the room. No eye witness was found present at the place of occurrence. SI Dinesh Kumar and HC Dharambir were called on the spot and deputed on the scene of crime.
1.02 SI Ajay along with Ct. Satish reached at AIIMS Trauma Center where vide MLC No. 341263/12 Ms. Yusra aged about 17 years and vide MLC no. 341264/12 Ms. Shadmani aged 35 year were found admitted under treatment. MLCs of both injured were obtained and produced before the doctor who opined that patients were unfit for statement and were having alleged history of gunshot injury. No eye witness was found at the hospital also. Hence, a case u/s 307 IPC and 25/27 Arms Act was got registered suo moto at police station Hazarat Nizamuddin and investigation was taken up.
1.03 Crime team inspected the spot and took its photographs. Incharge Crime team ASI Sajjan Singh handed over the report to SI Dinesh Kumar. Thereafter, IO Inspector Sunil Kumar lifted the SC No. 2152/2016 State v. Zaki & Anr. Pages 2 of 37 FIR No. 403/2012 exhibits i.e. two empty cartridges and blood stains from the scene of crime and seized the same.
1.04 During investigation, IO recorded the statements of Yusuf s/o Moharram, Nasiruddin s/o Late Samsuddin, Amiruddin s/o Late Samsuddin, Yasin s/o Late Vikram Alvi and Razanoor s/o Late Ali Hasan u/s 161 CrPC and in their statements they disclosed the names of accused Zaki and Javed as the persons involved in the incident. 1.05 During investigation, DD No.5A dated 22.11.2012 regarding death of deceased Yusra was received through Ct. Nadeem and section 302/34 IPC was added in the case and IO along with SI Ajay Kumar again reached at AIIMS Trauma Centre and the doctor told that the dead body of deceased Yusra has been transferred to AIIMS mortuary.
Duty constable AIIMS Trauma Center, Jagbir handed over two sealed parcels sealed with the seal of CMO JPNATC AIIMS containing clothes of Yusra and Shadmani who were under treatment at AIIMS Trauma Center at that time and said parcels were seized.
IO along with SI Ajay Kumar and staff reached at AIIMS Trauma Center where inquest papers were completed and after proper identification of dead body of deceased Yusra by her father Aslam Khan and uncle Javed Akhtar, their statements were recorded regarding the said identification. After post mortem, the dead body of deceased was handed over to her father Aslam Khan for last rites.
After post mortem of deceased Yusra, mortuary clerk handed over one plastic small jar with the seal of JPNATC AIIMS Forensic Medicine containing bullet lead and one sealed envelope containing blood in gauze of the deceased sealed with the same seal SC No. 2152/2016 State v. Zaki & Anr. Pages 3 of 37 FIR No. 403/2012 along with sample seal. Said exhibits were seized and deposited in the malkhana of police station Hazrat Nizamuddin . 1.06 During investigation, search of accused persons was made at the address of Zaki at M-22, Abul Fazal Enclave, Okhla, New Delhi but the house was found locked. Further, search of accused was also made in the area of Nizamuddin basti and Shakeela i.e. mother of accused Javed was asked about his whereabouts but he was found absconding from his house.
During investigation, it was confirmed that accused Zaki was permanent resident of village Akbarpur, Jhoja Police station, Gulawati District, Bulandshahar UP and Javed s/o late Raisuddin was a permanent resident of Hazrat Nizamuddin and both of them were absconding and evading their arrest. A team consisting of Inspector Binay Singh and Inspector Om Prakash along with staff were sent to District Bulandshahar, UP for conducting raids and arrest accused persons. They returned to police station Hazrat Nizamuddin and told the IO that as per secret information received during the raid, it has come to their notice that accused Zaki may have surrendered in Bulandshahar court in his old case.
On 23.11.2012 IO along with team reached at Bulandshahar CJM Court and found that accused Zaki s/o Kamal Ahmad had surrendered in case FIR No.225/2011, u/s 307/506 IPC, PS Gulawati, Bulandshahar, UP on 22.11.2012. IO also confirmed the fact from District Jail Bulandshahar.
On 24.11.2012 production warrant of accused Zaki was obtained from the Ld. MM of PS H. N. Din for his production on 26.11.2012 in muffled face. On 26.11.2012 accused was produced SC No. 2152/2016 State v. Zaki & Anr. Pages 4 of 37 FIR No. 403/2012 before the Court in muffled face and an application was moved for his interrogation and formal arrest. After interrogation, accused Zaki was arrested in the case and an application for his TIP was moved but accused Zaki refused to join Test Identification Parade. Hence, accused was remanded to police custody for detailed interrogation, arrest of co-accused and recovery of weapon of offence.
Efforts were made to arrest co-accused Javed and to recover weapon of offence. Accused Zaki disclosed that he had concealed weapon of offence at his residence at Akbarpur Jhoja. Accordingly, IO along with staff and accused and local police of PS Gulawati conducted raids at the instance of accused Zaki and searched his house at Village Akbar Pur Jojha but nothing was recovered. Thereafter, accused again disclosed that he had kept weapon of offence in an under construction house of his uncle in Nizamuddin Basti area. After obtaining further police custody, search was made but nothing was recovered.
1.07 During investigation, wireless messages for the search of accused was flashed throughout the country and hue and cry notices for the search of accused Javed were also flashed but he was still absconding. A team was also sent to Jhansi where Tabassum i.e. sister of accused Javed was residing near Railway Station Jhansi but accused Javed could not traced.
NBWs of accused Javed were obtained from the Court on 15.12.2012 but despite best efforts said accused could not be apprehended.
During investigation, on 12.01.2013 DD No.14B was received at police station Hazrat Nizamuddin regarding death of SC No. 2152/2016 State v. Zaki & Anr. Pages 5 of 37 FIR No. 403/2012 injured Shadmani at AIIMS Trauma Center. IO along with SI Ajay Kumar and HC Dharambir reached at AIIMS Truama Center. Inquest proceedings were carried out and after autopsy the dead body was handed over to family members. The exhibits regarding the postmortem were seized.
Exhaustive efforts were made to apprehend accused Javed but he was still at large and on 14.01.2013 process u/s 82 CrPC was obtained from the Court.
1.08 During investigation, Head Constable Fateh Mohd. was examined regarding PCR call received on 21.11.2012 vide DD No.27A at police station Hazrat Nizamuddin. On 30.01.2013 exhibits of case were deposited in FSL, Rohini through Constable Satish.
On 18.02.2013 accused Javed was declared proclaimed offender and section 174A IPC was also added in the case against accused Javed.
Efforts were made to trace out alleged Zakir from whom accused Javed had purchased weapon of offence i.e. pistol (country made pistol) in Okhla. However, his parentage and address could not be known despite best efforts.
Exhibits of the case were deposited in FSL, Rohini and results were awaited.
1.09 Charge-sheet was filed against accused Zaki. Later on, supplementary charge-sheet was filed against accused Mohd. Javed. As per the same, accused Javed was arrested on 02.03.2013 and his disclosure statement was recorded. He was produced before the Court on 03.03.2013 and his police custody was obtained for 2 days for detailed interrogation and recovery of weapon of offence. Pointing out SC No. 2152/2016 State v. Zaki & Anr. Pages 6 of 37 FIR No. 403/2012 memo was prepared at the instance of accused Mohd. Javed regarding the crime scene/places of offence.
1.10 On 15.03.2013, report was received from the FSL wherein the empty cartridges sent for examination were opined to be ammunition as defined under Arms Act, 1959. However, the biological report was still pending at FSL. Efforts were made to trace the alleged Zakir who had sold the weapon to accused Zaki as per his disclosure but without success.
2. CHARGE 2.1 On the basis of the charge-sheet, charge u/s 302/307/34 IPC and u/s 27(1) Arms Act was framed against accused Zaki and charge u/s 302/307/34 IPC and u/s 174A IPC was framed against the accused Javed. Accused persons pleaded not guilty to the said charges and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
2.2 However, during the trial accused Javed absconded and was declared PO by this Court on 13.01.2023. Hence, the present judgment is only against the accused Zaki who has faced the complete trial.
3. PROSECUTION EVIDENCE 3.01 In support of its case, prosecution has examined 28 witnesses.
S. No. Name of the Nature of the evidence witnesses SC No. 2152/2016 State v. Zaki & Anr. Pages 7 of 37 FIR No. 403/2012 PW-1 Javed Akhtar Formal witness who identified the dead bodies of deceased Yusra and Shadmani PW-2 Nasiruddin Circumstantial witness/local shopkeeper PW-3 Yusuf Circumstantial witness/brother in law of deceased Shadmani PW-4 Rajanoor Circumstantial witness/Local TSR driver PW-5 Yasin Circumstantial witness/local resident PW-6 Amiruddin Circumstantial witness/local shopkeeper PW-7 HC Prem Raj Duty Officer who proved the DD No.27A and 28A regarding the information received about gun firing PW-8 Dr. Thejaswi Doctor who conducted postmortem H.T., Assistant on the dead body of deceased Yusara Professor, Forensic Medicine Dr. RML Hospital PW-8A SI Ajay Kumar Complainant/1st IO who conducted initial proceedings, participated in the investigation and recorded dying declaration of Ms. Shadmani PW-9 Raj Kumar Technician who proved the postmortem of deceased Shadmani by identifying the signatures of concerned doctor PW-10 SI Dinesh Police official in whose presence the Kumar crime team inspected the spot PW-11 Ct. Satish Witness to registration of case and Kumar who also deposited the exhibits at FSL, Rohini SC No. 2152/2016 State v. Zaki & Anr. Pages 8 of 37 FIR No. 403/2012 PW-12 Dr. Saurabh Doctor who prepared the MLCs of Kumar injured Yusra and Shadmani PW-13 Ct. Punit Crime team photographer PW-14 Ct. Nadeem Police official who handed over the DD No.5A regarding death of Ms. Yusra to the IO PW-15 ASI Jayanti Duty Officer who recorded the Prasad present case FIR PW-16 ASI Dharamvir Police official in whose presence crime scene was inspected and in whose presence accused Javed was arrested PW-17 Ct. Jagbir Duty constable at AIIMS who witnessed the seizure of exhibits from the hospital by the IO PW-18 HC Fateh PCR vehicle incharge who reached Mohd. the spot on the PCR call PW-19 SI Sajjan Incharge, Crime Team, South East Kumar who inspected the spot PW-20 ASI Satpal Duty officer who proved the DD Singh No.14-B regarding death of injured Sadmani in the hospital PW-21 Ct. Manoj Duty constable at AIIMS who Kumar telephonically informed the death of Sadmani at PS Hazrat Nizamuddin PW-22 Inspector Draftsman who prepared the scaled Mahesh Kumar site plan of the spot PW-23 Dr. Sanjay Doctor who conducted the autopsy on Kumar the dead body of deceased Shadmani PW-24 Dr. Saurabh Doctor who gave his opinion about Kumar Goyal fitness of injured Shadmani to give statement on 14.12.2012 SC No. 2152/2016 State v. Zaki & Anr. Pages 9 of 37 FIR No. 403/2012 PW-25 Puneet Puri, FSL/Ballistic expert who examined Assistant the case exhibits i.e. the cartridges Director, Ballistics, FSL, Rohini PW-26 Inspector Sunil IO of the case who also witnessed Kumar dying declaration of Ms. Shadmani PW-27 Ms. Imrana Biological/DNA expert who examined the case exhibits 3.02 The prosecution has exhibited following documents/objects in support of its case:-
No.of exhibit Nature of exhibit
Ex.PW1/A Statement of PW1 recorded by the police
Ex.PW1/B Receipt regarding receiving of the dead body
of deceased Yusra
Ex.PW1/C Statement of PW1 recorded by the police
Ex.PW1/D Receipt regarding receiving of dead body of
deceased Shadmani
Ex.PW7/A DD No.27A regarding receiving of
information about gun firing
Ex.PW7/B DD No.28A regarding receiving of
information about gun firing
Ex.PW8/A Post mortem report of deceased Yusara
Ex.PW8/A Rukka
(wrongly
numbered)
Ex.PW8/B Sketch of two empty cartridge cases
Ex.PW8/C Seizure memo of two cartridge cases
Ex.PW8/D Seizure memo of the blood, spilled near the
entrance of the room, lifted with the help of
cotton
Ex.PW8/E Seizure memo of earth control having blood
stains near the entrance of the room
SC No. 2152/2016 State v. Zaki & Anr. Pages 10 of 37
FIR No. 403/2012
Ex.PW8/F DD No.5A regarding receiving of
information from Duty Constable, Trauma
Center AIIMS that injured Yusra had expired
Ex.PW8/G Seizure memo of two sealed pullandas
containing the clothes of deceased Yusra and Shadmani Ex.PW8/G1 Seizure memo of one plastic jar and one envelope in sealed condition with sample seal Ex.PW8/H Arrest memo of accused Zaki Ex.PW8/J Disclosure statement of accused Zaki Ex.PW8/J1 Supplementary disclosure statement of accused Zaki Ex.PW8/K Pointing out memo of place of occurrence Ex.PW8/L Pointing out memo of place of firing where accused fired a shot near transformer while he was being chased by the public Ex.PW8/M Dying declaration of injured Shadmani Ex.PW8/N DD No.14B received from Duty Constable, Trauma Center regarding death of injured Shadmani in the hospital Ex.PW8/P Seizure memo of plastic jar and one envelope Ex.PW8/Q Arrest memo of accused Javed Ex.PW8/R Personal search memo of accused Javed Ex.PW8/S Disclosure statement of accused Javed Ex.PW8/T Pointing out memo of place of occurrence Ex.PW8/U Pointing out memo of place of firing Ex.MO-1& Two empty cartridges Ex.MO-2 Ex.MO-3 Earth control Ex.PW9/A Post mortem report of deceased Shadmani Ex.PW11/A & Acknowledgments received from FSL Ex.PW11/B Ex.PW12/A MLC of injured Yusra Ex.PW12/B MLC of injured Shadmani Ex.PW13/A Acknowledgment regarding collecting of negatives Ex.PW15/A FIR SC No. 2152/2016 State v. Zaki & Anr. Pages 11 of 37 FIR No. 403/2012 Ex.PW15/B Endorsement on the rukka Ex.PW19/A Crime scene inspection report Ex.PW22/A Scaled site plan Ex.PW25/A Detailed report of Balastic Expert regarding examination of cartridges Ex.PW26/A Site plan Ex.PW26/B DD No.5A (receiving of information from the hospital regarding death of injured Yusra) Ex.PW26/C Form 25.35 for conducting inquest proceedings of deceased Yusra Ex.PW26/D Request letter to CMO for conducting the post mortem Ex.PW26/E Application of PW26 Inspector Sunil Kumar moved before Ld. MM for interrogation and arrest of accused Zaki Ex.PW26/F Application of PW26 Inspector Sunil Kumar for conducting TIP of accused Zaki Ex.PW26/G Certfied copy of TIP proceedings Ex.PW26/H Application of PW26 Inspector Sunil Kumar seeking seven days police custody of accused Zaki Ex.PW26/I Certified copy of order of Ld. MM allowing four days police custody remand of the accused Ex.PW26/J Application of PW26 Inspector Sunil Kumar for further five days police custody remand of the accused Zaki Ex.PW26/K Certified Copy of order of Ld. MM allowing one day police custody remand of the accused Ex.PW26/K1 Application of PW26 to Ld. MM for obtaining NBWs against the accused Javed Ex.PW26/L Request letter for conducing the post mortem of injured Sadmani Ex.PW26/M Application of PW26 to Ld. MM for issuance of process u/s 82 CrPC against the accused Javed Ex.PW26/N Application of PW26 for declaring accused Javed as proclaimed offender SC No. 2152/2016 State v. Zaki & Anr. Pages 12 of 37 FIR No. 403/2012 Ex.PW26/O Application of PW26 for police custody of co-accused Javed Ex.PW27/P1 Biological report dated 21.06.2013 prepared by PW27 Ms. Imrana regarding examination of the exhibits Ex.PW27/P2 Serological report dated 21.06.2013 prepared by PW27 Ms.Imrana regarding examination of the exhibits 3.03 Though 28 witnesses have been examined by prosecution but the main witnesses of the case are:
i. PW-3 Yusuf / Circumstantial witness/ brother in law of deceased Shadmani;
ii. PW 2 Nasiruddin / Circumstantial witness / local shopkeeper;
iii. PW-6 Amiruddin / Circumstantial witness / local shopkeeper;
iv. PW-4 Raza Noor / Circumstantial witness / Local TSR driver;
v. PW -5 Yasin / Circumstantial witness / local resident; vi. PW-8A / SI Ajay Kumar / 1st IO who conducted initial proceedings, participated in investigation and recorded dying declaration of Ms. Shadmani;
vii. PW-26 / Inspector Sunil Kumar / IO of the case and witness to dying declaration of Ms. Shadmani; viii. PW24 Dr. Saurabh Goyal / the concerned doctor who gave certificate regarding fitness of injured Ms. Shadmani on the day when her dying declaration was recorded.
SC No. 2152/2016 State v. Zaki & Anr. Pages 13 of 37 FIR No. 403/2012 3.04 PW3 Yusuf has deposed that Shadmani (deceased) w/o Sh. Aslam Khan was his sister-in-law (sister of his wife) and Yusra (deceased) aged about 16 year was daughter of Shadmani. They were residing at T-405, First Floor, Khusro Nagar, Basti Hazrat Nizamuddin, which was situated about 150 meters from his house. On 21st November about three years ago, at about 10.00 pm, he was present inside his house (H. No. T-73, Hazrat Nizamuddin, Delhi) and at that time, his sister in law Shadmani made a telephone call to him and inquired from him as to what he was doing. He told her that he was cooking kabab. She told him to send some kabab for her also. He sent his younger son Faisal at her house with the kabab. Faisal returned after giving kabab to Shadmani. After 20-25 minutes of return of Faisal, one tenant residing at the third floor of the house No. T-405 came to his house and told him that one Javed (who was a tenant at the second floor of the house No. T-405 residing along with his mother, sister and brother in law in the two rooms set) had shot bullet (goli maar di, goli maar di, tumhare kirayedaron main goli chal gayi). On receipt of said information, he along with his elder son Mohd. Faiz reached at house no. T-405, first floor where he saw Yusra/daughter of his sister in law was lying near the door and she had sustained a bullet wound in the chest and Shadmani (his sister in law) was standing near her, who had also sustained a bullet wound in her abdomen region. There was no other person in the house of his sister in law. His sister in law Shadmani told him to urgently take Yusra to the hospital and further told that "Javed ne saara khel kharab kar diya". In the meantime, many public persons and relatives also gathered there. He took Yusra and his younger brother Dilshad took SC No. 2152/2016 State v. Zaki & Anr. Pages 14 of 37 FIR No. 403/2012 Shadmani to the Trauma Center, AIIMS. Yusra died on the way to the hospital and Shadmani expired in the hospital after 52 days of the incident. He deposed that he had not witnessed the incident. He had not seen any person firing any bullet shot towards Shadmani and Yusra. He stated that he was not present at the place of occurrence at the time of firing. 3-4 days after the incident, police made inquires from him and he narrated the facts to the police, as narrated by him during his testimony. He does not know if police recorded his statement.
As the witness resiled from his previous statement given to the police, therefore, leading questions were put to him by Ld. Additional PP. Thereupon, he deposed that it might be correct that the incident occurred on 21.11.2012. However, he denied the suggestion that police had recorded his statement on 22.11.2012. He further denied the suggestion that on 21.11.2012 at about 10.00 pm, he was taking a stroll at Aali chowk and he had gone to the house of Aslam at T-405, where Shadmani and her daughter Yusra were sitting. He denied the suggestion that Shadmani told him that one boy 19-20 years of age who was accompanying Javed residing at second floor, was urinating on the staircase in the gali and when she objected it and scolded him, then Javed became furious and uttered " abhi thodi der main aa kar dhamkane ka maja chakhate hai ". He further denied the suggestion that Shadmani and her daughter Yusra sat on the bed for taking meal and he had gone on the third floor. He further denied the suggestion that at about 10.30/10.45 pm, he heard a loud noise like crackers. He further denied the suggestion that on suspicion he was coming down towards first floor from second floor and then he saw SC No. 2152/2016 State v. Zaki & Anr. Pages 15 of 37 FIR No. 403/2012 that in the room (where Shadmani and Yusra were earlier having their meals) Javed and Zaki were coming out from that room and Zaki was having a weapon in his hand and he was shouting that " Pakdne ki koshish kari to jaan se maar dunga" . He further denied the suggestion that since he was unarmed, he got scared. He denied the suggestion that when Javed and Zaki reached in the gali, then he shouted " pakdo pakdo". He denied the suggestion that Javed and Zakir were running towards Khatte wali gali and the residents of the area were trying to catch them. He further denied the suggestion that near the transformer, Zaki had fired a shot in the air due to which all the public persons who were chasing them stopped whereupon Zaki and Javed ran away towards phool wali gali. He further denied the suggestion that on 07.02.2013 he had come to the Saket Court Complex with Nasiruddin, Amiruddin and Mohd. Yasin and at about 12.00/1.00 pm (noon) he identified accused Javed and Zaki outside Court no.509, while they were in police custody. He denied the suggestion that he told the IO that both the said persons were seen by him on 21.11.2012 while they were coming out from the room of Shadmani or that Zaki was the same person who was having a weapon in his hand and threatened him with the words that if he tried to apprehend him, he will shoot him. He further denied the suggestion that his statement was recorded by the police in this regard on 07.02.2013. He does not know the whereabout of tenants of third floor, who informed him about the incident of firing. He voluntarily stated that after the incident, all the tenants had left the premises no. T-405, Khusaro Nagar, Hazrat Nizamuddin.
He deposed that Shadmani had not told him at the spot anything except "Javed ne khel kharab kar diya". After 4-5 days, when SC No. 2152/2016 State v. Zaki & Anr. Pages 16 of 37 FIR No. 403/2012 Shadmani regained her consciousness, she told him in the hospital that accused Javed had fired a shot on her and on her daughter Yusra.
He denied the suggestion that he had been won over by the accused persons or their relatives. He further denied the suggestion that he was not identifying accused Zaki deliberately and suppressing the true facts in order to save the accused persons. He denied the suggestion that he was deposing falsely.
During his testimony, PW3 identified accused Javed in the court stating that his family was tenant at the Second Floor of House No. T-405 since two years prior to the incident.
Witness was duly cross-examined by Ld. Defence counsel.
3.05 PW2 Nasiruddin has deposed that he is a Car Mechanic and his place of work is situated near Dargha Hazrat Nizamuddin. His family is also having a Parchoon (Grocery) Shop at Alvi Chowk, Basti Nizamuddin, where he also sits in the evening hours. Parchoon Shop is situated on the chowk. As far as he can recollect, it was 21.11.2012, at about 10:00/10:30 pm, he was present at our Parchoon Shop, he saw that few persons were running in the gali near their Parchoon Shop. They were raising alarm "goli maar di". Those people were 50-60 in number and were running behind the person, who were stated to have shot the bullet. He also started running behind those persons for a little distance and thereafter, he came back to his shop. After sometime, his friends told him that the persons, who were being chased had succeeded in running away and had disappeared. He had not seen the persons, who had allegedly shot bullet. He was running behind the persons, who were running behind them. His friends had told him the SC No. 2152/2016 State v. Zaki & Anr. Pages 17 of 37 FIR No. 403/2012 name of Javed as the person who had shot the bullet. Javed was residing in their locality earlier and was known to him. He could not count the number of persons, who were being chased by the other persons. No one had fired in his presence. He does not know anything else about this case. He cannot identify accused Javed, if shown to him. Accused was residing there during childhood of PW2. Now, 10- 12 years have lapsed, therefore he cannot identify him.
As the witness turned hostile to the case of prosecution, Ld. Additional PP for State cross-examined him u/s 154 of Indian Evidence Act. Thereupon, he deposed that police had recorded his statement at his shop in the same night. However, he denied that he had stared to the police that on hearing the noise, he came out from shop and he had seen Javed alongwith a boy, who was bulky, aged 19- 20 years, was running and being chased by public persons. He denied that said bulky boy was having a weapon in his hand and ran away towards phoolwali gali and when they reached near transformer, the said bulky boy, who was associate of Javed had fired a shot or that PW2 had seen him at that time alongwith Javed. PW2 was confronted with statement (mark A) u/s 161 Cr. P. C but he denied having made such statement before the police. He denied that on 07.12.2012, he had identified accused Zaki as the associate of Javed in the Court complex before the IO and stated to the IO that said accused Zaki had fired a shot near transformer on 21.11.2012 at about 10:30/10:45pm. He stated that he can identify accused Javed, if he shown to him. During PW2's testimony, the accused Javed was present in the Court and was shown to witness but on asking PW2 stated that he is not Javed, who was seen by him during his childhood. He denied that he SC No. 2152/2016 State v. Zaki & Anr. Pages 18 of 37 FIR No. 403/2012 is not identifying accused Javed deliberately, being his neighbor or that he is intentionally suppressing the true facts. He denied that accused namely Javed, who was shown to him in the Court was the same Javed who lived in his neighborhood earlier at Alvi chowk, Basti Nizamuddin. He denied that he has been won over by the accused persons and that is why he is not identifying accused Zaki. He denied that he is deliberately not identifying accused persons as the persons whom he had seen while running and firing on 21.11.2012 at about 10:30/10:45pm. He denied that he is deposing falsely.
Witness was briefly cross-examined by Ld. Defence counsel.
3.06 PW6 Amiruddin deposed that he is having a 'parchoon shop' at Alvi Chowk at Basti Hazrat Nizamuddin. He did not know remember the date, month or the year. About one and half years ago, at about 11:00/11:30 pm, he was present at their Parchoon Shop, he saw that many public persons were running in the gali near their Parchoon Shop. On asking, as to what had happened, he was informed that a shot was fired in the Mohalla behind their shop. Since, it was night time and on hearing about the incident, he closed his shop. Public persons had asked for his mobile phone to inform the police. He had given his mobile phone to a person to inform the police. After sometime police reached there. Police inquired from him about the incident. He told the police that a shot was fired in the Mohalla. He had not seen the persons who had allegedly fired the shot. Public persons had told him the name of Javed as the person who had ran away after firing a shot. Javed was residing in their locality earlier and was known to him as he used to visit his Parchoon Shop to purchase SC No. 2152/2016 State v. Zaki & Anr. Pages 19 of 37 FIR No. 403/2012 daily use items. No one had fired in his presence. He did not know anything else about this case. Police had not recorded his statement. As the witness turned hostile to the case of prosecution, Ld. Additional PP for State cross-examined him u/s 154 of Indian Evidence Act. However, he denied that police had recorded his statement (Mark-B). He was confronted with said statement (Mark-B) but he denied having made any such statement before the police. He denied that he had stated to the police that on hearing the noise of 'pakdo-pakdo', he alongwith his brother Nasiruddin came out from the shop and he had seen Javed alongwith a boy who was bulky, aged 19- 20 years was running and being chased by public persons. He denied that said bulky boy was having a weapon in his hand and ran away towards phoolwali gali and when they reached near transformer, the said bulky boy, who was associate of Javed had fired a shot or that he had seen him at that time alongwith Javed. He denied that his brother Nasiruddin had also chased Javed and his companion. He denied that on 07.12.2012, he had identified accused Zaki as the associate of Javed in the Court complex before the IO and stated to the IO that said accused Zaki had fired a shot near transformer on 21.11.2012 at about 10:30/10:45pm. He denied that since Javed was his neighbour, he is intentionally suppressing the true facts. He denied that he had been won over by the accused persons and that is why he is not identifying accused Zaki. He denied that he is deliberately not identifying accused persons as the persons whom he had seen while running and firing on 21.11.2012 at about 10:30/10:45pm. He denied that he is deposing falsely.
SC No. 2152/2016 State v. Zaki & Anr. Pages 20 of 37 FIR No. 403/2012 Witness was briefly cross-examined by Ld. Defence counsel.
3.07 PW4 Raza Noor has deposed that he used to run auto rickshaw. Few months ago, one day at about 10:00/11:00pm, he was sitting in his auto rickshaw at Mirza Galib Auto Stand, Basti Nizamuddin. In the meantime, he saw his friend Yasin was going from there. He called him. Yasin came near his TSR and was standing in front of him. In the meantime, one passenger came there and asked him if he will go to Old Delhi. He did not know the said person/passenger. Yasin had not talked with that passenger. He does not know anything else.
As the witness turned hostile to the case of prosecution, Ld. Additional PP for State cross-examined him u/s 154 of Indian Evidence Act. During his cross-examination, he deposed that he cannot say if it was 21.11.2012. He does not know accused Javed. Police had not recorded his statement in this case. He denied that on 21.11.2012 at about 10:30/10:45 pm, when he was sitting in his auto near Galib Academy, in the meantime, one Javed had come there alongwith one person, who was healthily built. He denied that the height of that person was about 5'5½ inches and was having age about 19-20 years. He denied that Javed was soaked with sweat and told him that his sister-in-law (bhabhi) had died and he had to go to Old Delhi. He denied that he had stated to the police that since Javed was a notorious person so Yasin had asked him to take auto from the main road. He denied that he has been won over by the accused persons or by his relatives. He denied that he is suppressing the true facts deliberately. He denied that he knows Javed but is not identifying him SC No. 2152/2016 State v. Zaki & Anr. Pages 21 of 37 FIR No. 403/2012 deliberately. He denied that Javed had called his companion by the name of Zaki in his presence. He denied that he is deposing falsely.
Witness was cross-examined nil by Ld. Defence counsel. 3.08 PW5 Yasin has deposed that about one and half years ago, one day at about 11:00pm, when he reached at his residence, he came to know that a shot had been fired in the nearby gali. Out of curiosity, he also went there and saw that many public persons had gathered and the police was making inquiry. He does not know anything about the case. He had told the police that he had just reached there after hearing about the firing of shot. Police had not recorded his statement.
As the witness turned hostile to the case of prosecution, Ld. Additional PP for State cross-examined him u/s 154 of Indian Evidence Act. Thereupon, PW5 Yasin deposed that he cannot say if the incident was of 21th November, 2012. He knows accused Javed as he is residing in the same Mohalla since childhood. However, he denied that police had recorded his statement in this case. He was confronted with statement Mark-A but he denied having made such statement to the police. He denied that on 21.11.2012 at about 10:30/10:45 pm, he was standing near Galib Academy alongwith Rajanoor, TSR Driver. Rather, he deposed that Rajanoor, TSR Driver knows him and had met him in the gali, where many other public persons were present. He denied that in the meantime Javed had come there alongwith one person, who was healthily built. He denied that the height of that person was about 5'5½ inches. He denied that Javed was soaked with sweat and he was appearing to be scared and told that his sister-in-law (bhabhi) had died and he had to go to Old Delhi. He denied that he had stated to the police that since Javed was a notorious SC No. 2152/2016 State v. Zaki & Anr. Pages 22 of 37 FIR No. 403/2012 person so he asked him to take auto from the main road. He denied that on 07th February, 2013 he had come to Saket Court and identified accused Zaki and Javed before the police. He denied that his statement was recorded in this regard by the police. He denied that he has been won over by the accused persons or by his relatives. He denied that he is suppressing the true facts deliberately. He denied that he knows Javed and is not identifying him deliberately. He denied that Javed had called his companion by the name of 'Zaki' in his presence. He denied that he is deposing falsely.
Witness was cross-examined nil by Ld. Defence counsel. 3.09 PW8A SI Ajay Kumar has deposed as per the contents of the charge-sheet. More importantly, he has deposed about recording the dying declaration of injured Ms. Shadmani vide Ex.PW8/M. Inter alia PW8A has deposed that "On 14th December, 2012, I along with SHO/Insp. Sunil Kumar went to surgical ward, 6 th floor, bed no.22 at Trauma Centre AIIMS, where the injured Shadmani was under treatment. On asking, the doctor had opined injured Shadmani to be 'fit for statement'. Before inquiry from the injured the IO had made request to the attending doctor to join investigation. The doctor had refused to join the investigation, on the ground that he had to attend some other serious patients. Before recording the statement of injured Shadmani, the IO had put some general questions verbally in order to know her state of mind. After asking general questions, the injured was found fit to make statement. Thereafter, on the instructions of SHO/Insp. Sunil Kumar, I had recorded the statement of injured Shadmani, which is Ex.PW8/M, bearing my signature at point A and the same was attested by the SHO/Inspector Sunil Kumar SC No. 2152/2016 State v. Zaki & Anr. Pages 23 of 37 FIR No. 403/2012 at point B. The injured has also signed her statement at point C in my presence. After recording the statement, I had read over the statement word by word to the injured Smt. Shadmani and she put her signature after hearing the entire statement and considering the same to be true and correct.
In essence the injured Shadmani had stated that on 21th November, 2012, at about 09:00 PM, She along with her daughter Yusra present in her room. Accused Zaki was urinating near main gate of the building. She asked Zaki not to urinate there. On this issue, a verbal altercation taken place between Shadmani and Zaki. Zaki while going said that he will teach a lesson (maza chakha denge). She further stated that thereafter, she along with Yusra were taking meal on the bed, in her room. In the meantime, her relative Yusuf had come there and Shadmani narrated the incident to him. Shadmani had also stated that at about 10:00/10:30 PM, accused Javed and Zaki came in her room. Zaki was having pistol in his hand. On asking of Javed, Zaki had fired a shot upon her. Zaki fired a shot on her, Yusra had put his hand towards Shadmani due to which Yusra had sustained injury on her hand. Shadmani had sustained gun shot injury on her abdomen. She further stated that on asking of Javed, Zaki had further fired a shot which hit Yusra and thereafter, she (Shadmani) became unconscious. I had recorded the statement of Shadmani correctly, whatever she had stated before him. I had not made any addition or correction in her statement. Injured had made her statement voluntarily without any pressure or advise. The statement was recorded in the presence of SHO and after signed the same by the injured, the SHO had SC No. 2152/2016 State v. Zaki & Anr. Pages 24 of 37 FIR No. 403/2012 immediately attested the same at point B. Thereafter he returned to PS where my statement u/s 161 Cr.P.C. was recorded by the IO".
Witness was duly cross-examined by Ld. Defence counsel.
3.10 PW26 Insp. Sunil Kumar was the IO of the case and deposed as per the contents of the charge-sheet. He also affirmed the recording of the dying declaration of Ms. Shadmani in the aforesaid manner.
Witness was duly cross-examined by Ld. Defence counsel.
3.11 The prosecution also examined PW24 Dr. Saurabh Kumar Goyal regarding the fitness of deceased Shadmani at the time of recording her statement. He has deposed that on 14.12.2012 he was working as SR Surgery, AIIMS Trauma Center, New Delhi. On that day, he had opined that patient Shadmani was fit to give statement and endorsed his opinion from point A to A on the MLC Ex.PW12/B. Witness was duly cross-examined by Ld. Defence counsel.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused Zaki was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He stated that he is innocent and has been falsely implicated in the present case. He deposed that the alleged statement given by the deceased is a false statement filed by the IO in the charge-sheet just to fill up the lacuna or to falsely implicate him in the present case. However, he admitted that he surrendered at SC No. 2152/2016 State v. Zaki & Anr. Pages 25 of 37 FIR No. 403/2012 Gulawati Jail, Bulandshehar in some other case and then he was produced at Saket Court and arrested. He claimed that police obtained his signatures on some blank papers but he admitted that he had refused to participate in TIP.
5. DEFENCE EVIDENCE 5.1 Accused chose not to lead defence evidence and matter was listed for final arguments.
6. ARGUMENTS 6.1 Thereafter, arguments of both parties were heard. 6.2 Ld. Counsel for accused has argued that there is no eye- witness to the alleged incident. Further, the alleged circumstantial witness i.e. PW3 Yusuf has turned hostile to the case of prosecution. Even the other circumstantial witnesses regarding the chase of the assailants i.e. PW2 Nasiruddin and PW6 Amiruddin have turned hostile to the case of prosecution. The other circumstantial witnesses i.e. PW4 Raja Noor and PW5 Yasin who were cited as a witness about accused looking for an auto, near the spot of incident, have turned hostile to the case of prosecution. Hence, there is no circumstantial witness against the accused Zaki. No weapon of offence was recovered from or at the instance of accused Zaki. There is no forensic evidence against him. The only evidence against the accused is the alleged dying declaration of deceased Shadmani. However, the said statement was not recorded in the presence of any doctor, nurse or other hospital worker despite the same being allegedly recorded in the hospital. Even no attendant of the deceased Shadmani is a witness to SC No. 2152/2016 State v. Zaki & Anr. Pages 26 of 37 FIR No. 403/2012 such dying declaration. Hence, the circumstances of recording of such dying declaration by two police officials are highly doubtful. Hence, prosecution has miserably failed to prove its case against the accused Zaki.
6.3 On the other hand, Ld. Addl. PP for State has submitted that the circumstantial witnesses have turned hostile to the case of prosecution deliberately. However, medical evidence has been led to prove that both deceased died in consequence of gun shot injuries. Further, PW8A SI Ajay Kumar has proved the dying declaration of deceased Shadmani wherein the whole incident has been mentioned in detail and there are categorical allegations against the accused regarding firing on both deceased. Same even bears the signatures of deceased Shadmani. The prosecution has also proved the certificate given by the doctor regarding the fitness of the deceased Shadmani at the time of recording such statement. It is not the case that the injured Shadmani died immediately on being shot. Rather the incident is of 21.11.2012 whereas Shadmani passed away on 12.01.2013 i.e. after about 50 days of being shot. Hence, the fitness of injured to give dying declaration cannot be doubted. Moreover, there was no previous enmity between the deceased and the accused so as to doubt false implication of the accused. None of the police officials who were witness to the dying declaration had any motive to depose falsely against the accused. Accordingly, Ld. APP has submitted that there is no ground to disbelieve the dying declaration and same is sufficient to convict the accused Zaki for the alleged offence.
SC No. 2152/2016 State v. Zaki & Anr. Pages 27 of 37 FIR No. 403/2012
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in the present case are reproduced herewith:
Section 302 IPC defines "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine"
Section 307 IPC defines "whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
Section 34 IPC provides "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
7.2 Charge was framed against accused persons u/s 302 IPC for committing murder of both ladies and further charge was also framed u/s 307 IPC for attempting to commit murder of the public persons who tried to nab them while they were fleeing from the spot. No evidence, whatsoever, has come on record qua the firing on public persons. However, the fact of murder of deceased Shadmani and Yusra by gun fire has not been disputed by the defence and it is the role of accused which is disputed in the alleged incident. Further, admittedly, there is no eye-witness to the alleged firing on deceased and the case SC No. 2152/2016 State v. Zaki & Anr. Pages 28 of 37 FIR No. 403/2012 is based on circumstantial evidence along with the dying declaration of one of deceased namely Shadmani. Thus, from the facts of the case, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether there is sufficient circumstantial evidence against the accused Zaki?
2. Whether the dying declaration of deceased Shadmani is a reliable piece of evidence to prove guilt of accused Zaki?
3. Whether the accused Zaki is liable to be convicted for the offences charged against him?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 Though there is no eye-witness to the firing on the deceased ladies but prosecution has cited PW3 Yusuf to prove the cause of the incident i.e. the altercation between accused persons and deceased Shadmani on the account of one of accused urinating near the gate of the house. As per prosecution the deceased had informed about said incident to PW3 Yusuf and subsequently, he had heard the gunshot and immediately thereafter he encountered both the accused leaving the room of deceased i.e. the spot of incident/firing. However, to the disappointment of the prosecution, he has turned hostile to the case of prosecution. Despite his cross-examination by Ld. Additional PP, nothing substantial has surfaced against accused Zaki, though he has deposed about the role of accused Javed.
8.2 The next circumstantial witnesses are PW2 Nasiruddin and PW5 Amiruddin. Both of them were local shopkeepers and they SC No. 2152/2016 State v. Zaki & Anr. Pages 29 of 37 FIR No. 403/2012 were cited by the prosecution to prove the escape of accused persons from the spot while firing in the air. However, none of them have supported the case of prosecution. Moreover, nothing incriminating has come against accused Zaki in their cross-examination also. 8.3 The next circumstantial witnesses are PW4 Raza Noor and PW5 Yasin who were cited by Prosecution to prove the escape of accused persons in a hurry while looking for an auto. However, both of them have turned hostile to the case of Prosecution and nothing incriminating has come against accused Zaki in their examination or cross-examination.
8.4 As argued by Ld. Defence counsel there is no physical/forensic evidence against accused Zaki. Admittedly, no weapon of offence was recovered at the instance of any accused. As per the testimony of PW19 SI Sajjan Kumar/the then incharge crime team, no chance print was found at the spot. Further, as per the reports Ex.PW27/P1 and Ex.PW27/P2 of FSL expert/PW27 Ms. Imrana the exhibits sent for examination were the exhibits lifted from the spot and the clothes of females (deceased). There is no reference of any exhibit pertaining to accused i.e. clothes of accused which were examined by the FSL expert. Even otherwise, it is not the case of prosecution that any blood stained clothes of any accused were recovered during the investigation. The accused Zaki refused to participate in TIP during the investigation and such refusal can lead to an adverse inference about his conduct that he was fearful of being identified by the witnesses. However, same becomes relevant only if the witnesses actually identify him during the trial. However, not a single circumstantial witness identified him. Thus, the only evidence SC No. 2152/2016 State v. Zaki & Anr. Pages 30 of 37 FIR No. 403/2012 against the accused is the alleged dying declaration of the deceased Shadmani.
8.5 Let us proceed further to examine the reliability of the said dying declaration.
The counsel for accused has argued that the dying declaration was recorded by police officials and not a Magistrate. Hence, same is not admissible. Further, the alleged statement was recorded in a hospital, however, neither the same was recorded by a doctor nor it was attested/witnessed by any doctor or even a nurse or any attendant of the deceased. Given the medical condition of injured even her fitness to give such statement is highly questionable. Same shows that it has been fabricated.
I have considered the said arguments.
It has been held by Hon'ble Gauhati High Court in Atul Gandhi Vs State of Assam 1990 Criminal Law Journal 1049 that "In regard to dying declaration and the admissibility of such declarations recorded by the police officers, the following propositions emerge:
(i) A dying declaration recorded by a police officer during the course of investigation is admissible in evidence.
(ii) It is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or a doctor.
(iii) It is not prudent to base the conviction on a dying declaration made to an investigating officer.
(iv) The practice of the investigating officer himself recording a dying declaration during the course of the investigation should not be encouraged.
SC No. 2152/2016 State v. Zaki & Anr. Pages 31 of 37 FIR No. 403/2012 In the instant case, from the statement it is clear that doctor was present on the spot when the dying declaration was recorded by the police officer. No attempt was made to get it recorded by the doctor. It is not understandable that when the doctor told that deceased was not expected to survive why the police officer instead of asking him to record the dying declaration, proceeded to do so himself and allowed the doctor to go. Therefore, the dying declaration cannot be taken into consideration and no conviction can be based on it". Thus, the present Court has to scrutinize the alleged dying declaration on the basis of afore-said guidelines.
Firstly, none of police officials have deposed that any effort was made at all to get the dying declaration recorded by any Magistrate.
Secondly, neither the statement was recorded by or in the presence of any doctor despite the statement being recorded in a hospital. During his cross-examination, PW26 Insp. Sunil Kumar has deposed that he requested the doctor to join the proceedings of recording the statement but doctor stated that he is busy in the treatment of other patients. However, admittedly, the injured Shadmani was a victim of gun shot injury and the other victim had passed away immediately after the incident. Further, PW26 has deposed that on 22.11.2012, 25.11.2012 and even on 02.12.2012 the injured Shadmani was declared unfit for statement by the doctors. Admittedly, there was no eye-witness to the incident. In the given circumstances, IO was fully aware that the condition of injured was precarious and her statement could possibly be a dying declaration in the case. Therefore, he could have requested the doctor on duty or in SC No. 2152/2016 State v. Zaki & Anr. Pages 32 of 37 FIR No. 403/2012 case of him being busy, the Head of Department to depute some other doctor for recording the statement of the injured or at least be an attesting witness to the proceedings. Moreover, PW24 Dr. Saurabh Kumar has not deposed anywhere that he was asked by the police to join the proceedings but he was unable to do so.
Thirdly, given the condition of injured Shadmani there must have been some person from her family in the hospital with her but there is no such witness to the dying declaration. PW8A the then SI Ajay Kumar has deposed in his cross-examination that family members of Shadmani used to be present in the hospital when they had gone there various times regarding her fitness to give her statement. Thus, it indeed appears that some family members of injured must have been available in the hospital when the said statement was recorded by the police. However, PW8A SI Ajay Kumar failed to recall in his cross-examination whether any family member/attendant of patient was present when her statement was recorded on 14.12.2012. Though, he also deposed that doctor/SR was asked to join the police proceeding but being busy in their duties they could not join the same, however, he admitted that he did not make any request to the nurses or the other attendants of the hospital to join the police proceedings. Further, he could not tell whether IO had made such request. In regard to joining of any attendant of the patient, PW26 Insp. Sunil Kumar has deposed that he does not remember whether any relative of Shadmani met them when they visited the hospital number of times. He tried to clarify that the attendant was there but the attendant did not remain in the ward with the patient. However, he failed to recall if there was any attendant and if so, which SC No. 2152/2016 State v. Zaki & Anr. Pages 33 of 37 FIR No. 403/2012 attendant was there with Shadmani when they recorded the statement on 14.12.2012.
Fourthly, even the fitness of the injured while giving the statement has been disputed by the Ld. Defence counsel. The prosecution has relied on the certificate given by the doctor PW24 Saurabh Kumar Goyal regarding the same. Though PW24 has proved the said opinion/certificate at point A to A on MLC Ex.12/B, however, during his cross-examination he deposed that he cannot tell the date on which the patient Shadmani gained her consciousness. He also gave another damaging statement stating the he does not even know deceased Shadmani have gained consciousness. He failed to recall whether he had made any enquiries from patient Shadmani about her mental condition. He further deposed that on the basis of the MLC he can say that patient was fit for statement but he cannot say whether patient was medically fit or not. The witness was even re-examined by the prosecution. Therein he deposed that he does not recall whether he had interacted with and examined the patient Shadmani before opining that she was fit to give statement. However, he deposed that he always interacted and examined the patient before opining if patient was fit to give statement. On Court questioning, he affirmed that he must have interacted and examined Shadmani before giving his opinion about her fitness since he always interacted and examined the patient before giving such opinion. However, the answers were given by PW24 during his re-examination regarding general practice but in his cross- examination he has failed to answer the specific queries expected to be answered by a doctor giving fitness certificate to a seriously injured patient for recording his statement by the police. Further, in his cross-
SC No. 2152/2016 State v. Zaki & Anr. Pages 34 of 37 FIR No. 403/2012 examination, PW26 Insp. Sunil Kumar deposed that he had asked general questions from injured Shadmani before her statement was recorded but he admitted that he did not prepare the record of general questioning. Since the statement was being recorded by police officials in the absence of doctor, magistrate or any independent witness, even such general questioning should have been recorded in writing so that the IO should have been sure that the injured was well oriented in regard to time, place and other general factors and the responses were not vague in any manner.
Fifthly, even if the statement of deceased Shadmani is deemed to be recorded correctly by the police officials, the same appears to be at variance with the statement of PW3 Yusuf. Since a person giving dying declaration cannot be called as a witness and cannot be subjected to cross-examination, the Court has to see that the same does not suffer from any serious infirmity. As mentioned by PW8A SI Ajay Kumar the deceased alleged the role of accused Zaki as the person who was having the pistol and who shot her and her daughter. However, PW3 Yusuf has deposed that Shadmani had told him that "Javed ne sara khel khrab kar diya ". More importantly, in his cross-examination by Ld. APP, he also deposed that " after four five days, when Shadmani regained her consciousness she had told me in the hospital that accused Javed had fired a shot on her and on her daughter Yusra" Thus, PW3 has presented another dying declaration in which the categorical allegations were against accused Javed regarding the firing (and not accused Zaki). Moreover, as per the dying declaration Ex.PW8/M, the deceased had told Yusuf about the verbal altercation that preceded the main incident when the accused SC No. 2152/2016 State v. Zaki & Anr. Pages 35 of 37 FIR No. 403/2012 was urinating near the gate of the building and left while extending a threat to the deceased. However, PW3 Yusuf has denied that deceased had told him such facts before the incident. Thus, the dying declaration of deceased fails to get corroboration from her own relative and rather there is contradiction in the facts stated in the dying declaration to the police and the other dying declaration claimed by PW3 Yusuf.
Lastly, Ld. Defence Counsel has also argued that as per alleged dying declaration Ex.PW8/M the deceased Shadmani knew accused Javed as her neighbor but has referred his accomplice as 'Zaki' on the premise that Javed was calling his companion as 'Zaki' during the alleged previous incident about urination. Thus, said 'Zaki' could be any person so named and need not be accused Zaki only.
I have perused the dying declaration Ex.PW8/M. In the said statement, inter alia, it is mentioned that " on 21.11.2012 at around 09:30 PM in the gali along side the stairs, Javed who resides on upper floor of my house was standing with his companion whom he was addressing as Zaki and said companion was urinating in the gali in a disgusting manner and I asked him not to urinate openly in the gali since ladies used to pass in the gali. Thereupon, Javed started arguing and I told him also that such behaviour is wrong. Thereupon, Javed and his companion Zaki said that in a short time he will teach me a lesson and both of the boys left...". In the latter part of the said statement, the incident of firing around 10:30/10:45 PM is mentioned wherein Zaki allegedly fired on Shadmani and her daughter Yusra at the instance of Javed. However, from the initial part of the statement, it is clear that indeed 'Zaki' is not mentioned as a person known to SC No. 2152/2016 State v. Zaki & Anr. Pages 36 of 37 FIR No. 403/2012 deceased and is referred as a name by which accused Javed called his accomplice. Thus, from the said dying declaration, it appears that the accomplice of Javed was one 'Zaki' but the specific identity of said person is not mentioned. Hence, this fact creates another impediment in relying upon the dying declaration against the accused Zaki.
Accordingly, the Court is of the view that it is highly unsafe to rely on the alleged dying declaration Ex.PW8/M.
9. CONCLUSION 9.1 Thus, in view of the above said discussion, prosecution has failed to prove any of the points for determination against the accused Zaki. Accordingly, he has to be given benefit of doubt. Hence, accused Zaki is acquitted from all the offences charged against him. (Announced in the Open Court on 10th March, 2024) Digitally signed by SACHIN SANGWAN SACHIN (Sachin Sangwan) SANGWAN Date:
2025.03.12 10:30:34 Additional Sessions Judge (FTC-01):
+0530 South-East:Saket District Court: New Delhi SC No. 2152/2016 State v. Zaki & Anr. Pages 37 of 37 FIR No. 403/2012