Death Ref.No.1/09 & Crl.A. No.528/09 Page 1 of 28 * IN THE HIGH COURT OF DELHI % Judgment Reserved on : 25.08.2009 Judgment Delivered on : 31.08.2009 + DEATH REF. NO.1/2009 STATE Through: Ms.Richa Kapoor, A.P.P. AND SHREE GOPAL @ MANI GOPAL (CONVICT) Through : Pt.R.K.Naseem, Advocate Mr.Nitin Tittal, Advocate and Mr.Manish Kumar, Advocate + CRL. A. 528/2009 SHREE GOPAL @ MANI GOPAL ..APPELLANT Through : Pt.R.K.Naseem, Advocate Mr.Nitin Tittal, Advocate and Mr.Manish Kumar, Advocate VERSUS STATE ….RESPONDENT Through : Ms.Richa Kapoor, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes Death Ref.No.1/09 & Crl.A. No.528/09 Page 2 of 28 PRADEEP NANDRAJOG, J. 1. The entire case of the prosecution is to be found in the statement Ex.PW-2/A of HC Ajit Singh PW-2 and the endorsement Ex.PW-22/A made thereunder by SI Sanjay Bhardwaj PW-22. The statement Ex.PW-2/A has formed the basis of the FIR No.98/2003, Ex.PW-1/A. The endorsement Ex.PW-22/A records the recoveries effected at the place where the crime was committed as also the fact that the convict Shree Gopal was apprehended at the spot by HC Ajit Singh PW- 2. As recorded in the endorsement Ex.PW-22/A, the rukka was dispatched from LNJP Hospital at 6:15 PM on 28.4.2003; a fact recorded beneath the endorsement Ex.PW-22/A. It may be noted at the outset, that as deposed to by SI Sanjay Bhardwaj PW-22, after recording the statement Ex.PW-2/A of HC Ajit Singh and after effecting recoveries at the spot where the crime was committed, he went to LNJP Hospital, where the injured Neelam and Const.Nand Kishore PW-5 were removed from the place of the crime and after collecting the MLC Ex.PW-14/A of Neelam, which recorded that she was declared dead when brought to the hospital and the MLC Ex.PW-14/B of Const.Nand Kishore, he dispatched the statement Ex.PW-2/A after making an endorsement Ex.PW-22/A through Const.Triloka to the police station for FIR to be registered. It Death Ref.No.1/09 & Crl.A. No.528/09 Page 3 of 28 was recorded that the time when the crime was committed was about 3:00 PM and the place where the crime was committed was the gallery between Court No.119 and 122 on the first floor of the Tis Hazari Court Complex. 2. The statement Ex.PW-2/A made by HC Ajit Singh PW-2 and recorded by SI Sanjay Bhardwaj PW-22 reads as under:- “Statement dated 28.04.2003 made by Head Constable Ajit Singh No.33/N, PIS No.28840413 P.P. Tis Hazari, P.S. Subji Mandi, New Delhi. I am posted at P.P. Tis Hazari P.S. Subzi Mandi as Head Constable and I am deputed as office PSO of Sh.J.P.Singh, District Judge. Today in the noon at about 3:00 PM, I was coming from the Office of the District Judge at the First Floor and was proceeding towards the police post and when I reached near Court No.119 I heard a sound of fire. When I looked ahead I saw a boy, whose name I later on learnt, on interrogation, as Mani Gopal S/o Harish Chander, R/o RZ-50, Todarmal Colony, Najafgarh, Delhi, firing with a pistol in his right hand at an eunuch whose name, on interrogation, I learnt was Neelam R/o D-251, Raghibir Nagar, Rajouri Garden, Delhi. At the same time Const.Nand Kishore posted at the police post immediately grappled with the aforesaid boy whereupon the said boy fired a bullet on the thigh of constable Nand Kishore. I immediately ran towards Mani Gopal, who pointed his pistol towards me but I immediately grappled with him before he could shoot and I snatched the pistol from the said boy and over powered him. In the meantime, you also came over there and I handed over the aforesaid Mani Gopal and the said pistol recovered from him, to you. The injured eunuch namely Neelam has been taken to Hospital by Inspector Surrender Sand whereas the injured constable Nand Kishore has been taken to Hospital by Const.Aman Kumar. Legal action may be taken. I have heard the statement and the same is correct. Death Ref.No.1/09 & Crl.A. No.528/09 Page 4 of 28 Sd/- „A‟ (Ajit Singh) (In English) Dated 28.04.2003” 3. The endorsement Ex.PW-22/A made by Inspector Sanjay Bhardwaj beneath the afore-noted statement Ex.PW- 2/A, reads as under:- “To The Duty Officer PS Subji Mandi, New Delhi. Sir, It is submitted that today at 3:00 PM in the noon, I the SI along with staff „checking‟ was present at the Central Hall, Tis Hazari Courts. In the meantime, I heard the firing sound from Sessions side whereupon I rushed and when I reached in the gallery near the stairs situated adjacent to Court room No.119, I found that a eunuch named Neelam was lying in a pool of blood near the stairs and Const.Nand Kishore while holding his leg was also sitting there and I also found that Ajit Singh Head Constable had over-powered Mani Gopal. He handed over to me a pistol snatched from the aforesaid Mani Gopal. In the meantime, Inspector Surrender Sand, SHO, Civil Lines, removed injured eunuch Neelam to the hospital whereas the injured constable Nand Kishore was taken to Hospial by Constable Aman Kumar. After that, I recorded the foregoing statement of HC Ajit Singh and I got inspected the aforesaid recovered pistol from Head Constable Onkar Nath, the finger prints proficient and checked its magazine. There were three live rounds (cartridges) and one round (cartridge) was present in its chamber. On conducting a personal search cursorily of the aforesaid Mani Gopal two live rounds (cartridges) were also recovered from the right pocket of his pant. After that, I took over all the four live rounds (cartridges) from its magazine and chamber and prepared a sketch of the aforesaid pistol on a piece of paper. On taking measurement of the Death Ref.No.1/09 & Crl.A. No.528/09 Page 5 of 28 aforesaid recovered pistol, its total length was found to be 19.4 cms, height 12.7 cms, diagonal length 22.4. The words “Cal……..30 MAUSER MADE AS CHINA BY NORNICO” and a figure „66‟ was found written in a triangle on its butt. Black colour plastic was found fitted on its grip and in the middle, it was star shaped. The aforesaid recovered pistol was having foresight Tip as well as the back side Tip along with a hammer. It is also having a pistol locking button and a release button and a figure „11‟ was found written on its barrel and some characters were found written thereon in Chinese language. After that, the sketch of the magazine was also prepared on that very paper. There were six holes on the upper side of the magazine through which spring coil was visible. The length of the aforesaid magazine from one side was 11 cm and from the cut side its length was 10 cm and the width of its base was found to be 4 cm. Thereafter, the sketch of the aforesaid recovered six live rounds, (cartridges) was also sketched on that very paper. The length of every round (cartridge) was found to be 3.5 cms, and the circumference of its base was found to be 0.8 cms and two English alphabets and a figure i.e. “S&B & 762 x 25” were found written on its bottom. The magazine was fitted with the aforesaid recovered pistol and it was converted into a cloth parcel with the help of a thread and needle and it was allotted serial No.1 and sealed with the seal of S.B. After that, all the six live rounds (cartridges) were kept in a plastic bottle, converted into a cloth parcel with the help of a thread and needle, sealed with the seal of „S.B.‟ and it was allotted serial No.2. After that, both the aforesaid parcels were taken into police possession by means of a memo. The covers of the used cartridges, its lead and bullet pieces which were found lying on the spot were kept in a plastic box, converted into a cloth parcel with the help of a thread and needle and it was allotted serial No.3 after having been sealed the same with the seal of S.B. and thereafter, the same was taken into police possession by means of a memo. The blood lying on the spot was also lifted there-from with the help of a cotton swab, kept in a small plastic box, converted into a cloth parcel with the help of a thread and needle, sealed with the seal of S.B., allotted serial No.4 and taken into police possession by means of a memo. Three ladies sandals, one black and white coloured Head cloth Death Ref.No.1/09 & Crl.A. No.528/09 Page 6 of 28 (chunni), one lady‟s hair elastic and seven election cards of Sanjeev Goyal were kept in a polythene, tied the same with a knot thereon, converted into a cloth parcel with the help of a thread and needle, allotted serial No.5, sealed with the seal of „SB‟ and taken into police possession by means of a memo. I, the SI, after handing over the accused Mani Gopal to Const. Ramesh No.1601/N and ASI Gopal Singh, reached Trauma Centre along with Constable Rajender No.815/N and Constable Trilok No.1605/N where, I obtained the MLC No.39957 belonging to the aforesaid eunuch namely Neelam on which the doctor mentioned “Pt. declared brought dead” and I also collected the MLC No.39959 of and Nand Kishore Singh. On inspecting the spot, MLC and the contents of the foregoing statement reveal the commission of offences, punishable under Section 302/307/186/353/332 of IPC and Section 25/27 of the Arms Act. Hence, this writing is being sent to police station through Constable Trilok No.1605/N for the purpose of registration of a case (FIR). After registration of the case, its further investigation be entrusted to Inspector Rajvir Sharma, SHO PS Subzi Mandi. As per the instructions of the SHO, the special report may please be sent to the Senior Officers through special messenger. Date of hour of occurrence: 28.04.2003 at 3:00 PM approx. Place of occurrence : 28.04.2003, Ist Floor Gallery near Court Room No.119, Tis Hazari Courts, Delhi. Date and hour of dispatch of writing : 28.04.2003 at 06.15 PM Sd/- Sanjay Bhardwaj (In English) (Sanjay Bhardwaj) Sub Inspector No.D/3428 PIS#16940301 Dated 28.04.2003” Death Ref.No.1/09 & Crl.A. No.528/09 Page 7 of 28 4. It is apparent, that to prove its case, the prosecution had to prove that the appellant was apprehended at the spot and fired bullets at Neelam and HC Nand Kishore and that the weapon of offence was taken possession of from his hand by SI Sanjay Bhardwaj as also that the live ammunition was recovered from his person and that the used cartridges were recovered at the spot. The witnesses to which, were obviously, HC Nand Kishore PW-5 who received a bullet injury on his right thigh and HC Ajit Singh PW-2 who witnessed the incident as also SI Sanjay Bhardwaj PW-22 who effected the recoveries and ASI Baldev Singh PW-8 who witnessed the recoveries. We may also note that HC Ajit Singh PW-2 is also a witness to the recoveries i.e. is a co-signatory along with ASI Baldev Singh to the various recovery memos. Further evidence would be of the ballistic expert to connect the four fired cartridges recovered from the spot where the crime was committed, entry whereof stands recorded in the memo Ex.PW-2/C. We may note that as per the report Ex.PW- 21/L, the four fired cartridges recovered from the spot were opined to be fired from the pistol Ex.P-1 recovered from Shree Gopal when he was apprehended at the spot itself. 5. SI Sanjay Bhardwaj PW-22, ASI Baldev Singh PW-8 and HC Ajit Singh PW-2, while deposing as witnesses of the prosecution have proved that the seizure memo Ex.PW-2/B, Death Ref.No.1/09 & Crl.A. No.528/09 Page 8 of 28 Ex.PW-2/C, Ex.PW-2/D and Ex.PW-2/E were prepared pursuant to the recoveries effected at the spot. SI Sanjay Bhardwaj deposed that he prepared the seizure memos after effecting the recoveries. ASI Baldev Singh and HC Ajit Singh deposed that the recoveries were effected in their presence and they had witnessed the same and that the seizure memos were prepared in their presence and they had signed the same as witnesses. 6. Seizure memo Ex.PW-2/B dated 28.4.2003 records the seizure of the pistol Ex.P-1 and six live cartridges; three from the magazine of the pistol, one from the chamber of the pistol and two from the right side pant pocket of the accused. The memo Ex.PW-2/C dated 28.4.2003 records the seizure of four used cartridges, one lead piece and broken pieces of bullet from the spot. The memo Ex.PW-2/D records blood sample being lifted on a cotton swab from the place of occurrence i.e. the gallery space near Court No.119, First Floor, Tis Hazari Courts Complex. The memo Ex.PW-2/E records the seizure of three ladies sandles, a head-cloth (chunni) black and white in colour, one ladies elastic hair band and seven election cards of Sanjeev Goyal. 7. The sketch Ex.PW-8/A of the pistol and the six live cartridges seized as recorded in the memo Ex.PW-2/B has Death Ref.No.1/09 & Crl.A. No.528/09 Page 9 of 28 been proved by all the three witnesses i.e. PW-2, PW-8 and PW-22. 8. Thus, the prosecution has successfully proved the recoveries through the testimony of PW-2, PW-8 and PW-22. During arguments in the death reference and the appeal filed by the convict, after going through the testimony of the three police officers, Pt.R.K.Naseem, learned counsel for the convict, very fairly conceded that there was no blemish in the recoveries and the testimony of the three police officers. 9. The motive for the crime has been proved through the testimony of ASI Baldev Singh, SI Sanjay Bhardwaj and by means of a certified copy of the judgment and order dated 1.5.2008 acquitting all the accused in FIR No.808/2002 under Sections 302/436/108/120-B IPC PS Rajouri Garden in which FIR, Dharampal, Parvesh Kumar, Mordhwaj and Geeta were accused. 10. In a nutshell, the judgment and order dated 1.5.2008 shows that the accused of said case were charged with a conspiracy to murder Neelam, the eunuch who has been murdered by the convict Shree Gopal in the instant case. In furtherance of their conspiracy, the accused in FIR No.808/2002 gave effect to their design, but failed due to mistaken identity. Thinking that Zareena, the deceased in said case, was Neelam i.e. the deceased in the instant case, the Death Ref.No.1/09 & Crl.A. No.528/09 Page 10 of 28 contract killer, Parvesh killed Zareena. The deceased Neelam was a witness in the said case. After Neelam was shot dead, the witnesses in the Sessions Trial pertaining to FIR No.808/2002 turned hostile resulting in the accused thereof being acquitted. 11. As per the testimony of ASI Baldev Singh PW-8 and the testimony of SI Sanjay Bhardwaj PW-22, both of them were posted at the police post Tis Hazari Court Complex on 28.4.2003 and at around 12:40 PM on said date, the deceased Neelam, submitted a complaint Ex.PW-8/B in writing as per which she i.e. Neelam stated that she and one Gopal (examined as PW-17 in the instant case) were witnesses in a murder case pending in the Court of Shri V.P.Vaish, A.S.J., Delhi and used to attend the Court proceedings in said case. The accused of the said case, through the relatives were threatening them and she i.e. Neelam requested for police protection in the Court premises. On receipt of the complaint, ASI Baldev Singh PW-8 deputed Const.Nand Kishore PW-5 to accompany Neelam and Gopal and give them protection. 12. It is apparent that the motive for the crime was to intimidate and kill a witness in the Sessions Trial pertaining to FIR No.808/2002, and in the process, intimidate other witnesses. Death Ref.No.1/09 & Crl.A. No.528/09 Page 11 of 28 13. That Const.Nand Kishore PW-5 received a bullet injury on his right thigh has been proved by him while deposing in Court and independent corroboration to said fact is to be found in his MLC Ex.PW-14/B which records the fact that Const.Nand Kishore was got admitted at LNJP Hospital at 3:35 PM on 28.4.2003 with a firearm wound on his right thigh. HC Ajit Singh PW-2 has also deposed that Const. Nand Kishore was fired on his thigh in his presence. Both have deposed that the convict Shree Gopal had fired the fatal shot. Both the witnesses i.e. PW-2 and PW-5 have deposed that they saw Shree Gopal firing at the deceased. There is further proof of Const.Nand Kishore being present at the spot of the crime. The proof is Ex.PW-8/B which contains an endorsement by ASI Baldev Singh that an escort be provided to Neelam. Further proof is in the form of the DD Entry No.22, Ex.PW-11/A recorded in the daily diary at the police post Tis Hazari that Const.Nand Kishore No.1674-N has been sent to Court No.119, Tis Hazari to provide protection to Neelam. 14. Courts have always given credence to the testimony of injured witnesses since their presence at the scene of the crime is seldom doubtful. Courts have held that it mitigates against human conduct that a person would let go the real assailant and would falsely implicate an innocent person. Death Ref.No.1/09 & Crl.A. No.528/09 Page 12 of 28 15. After going through the testimonies of Const.Nand Kishore PW-5 and HC Ajit Singh PW-2, learned counsel for the convict could not point out any blemish in their testimonies. 16. We accordingly concur with the view taken by the learned Trial Judge that there is no reason why the Court should not believe the said two witnesses who have given an eye-witness account of the manner in which the crime was committed. 17. The convict, Shree Gopal, when examined under Section 313 Cr.P.C. did not deny his presence at the place where the crime was committed, and the time when the crime was committed. In answer to Question No.129, as to whether he wanted to say anything else, he replied:- “I am innocent and have been falsely implicated in this case. I had come to the Court, on the day of the incident along with Neelam Hijra since I used to assist her in the case. I was also prosecution witness in the case of Zareena murder case. I heard the sounds of gunshots and there was stampede. The actual assailant in the melee ran away. I being present at the spot was falsely implicated and the recoveries were planted upon me. My signatures were taken on many papers under pressure. The witnesses are false and by the police in order to save their face and action against them since a murder had taken place in high security court premises.” 18. In view of the testimony of PW-2 and PW-5 as also the testimony of PW-22 and PW-8 and especially the fact that the same are without any blemish and in spite of cross- examination nothing has been brought out to discredit the Death Ref.No.1/09 & Crl.A. No.528/09 Page 13 of 28 witnesses, short of actually conceding to the point, Pt.R.K.Naseem, learned counsel for the accused virtually so conceded i.e. that the prosecution had successfully established its case against the convict Shree Gopal. 19. The motive for the crime has been successfully proved, being to liquidate Neelam, so that she could not depose in FIR No.808/2002 as a witness of the prosecution. 20. The commission of the offence by Shree Gopal has been proved through the testimony of PW-2 and PW-5. The recoveries at the spot from the person of Shree Gopal have been proved through the testimony of PW-22, PW-2 and PW-8. The report Ex.PW-21/L of the ballistic expert proves that the four used cartridges seized from the spot were fired through the pistol Ex.P-1 snatched from the hand of Shree Gopal by HC Ajit Singh. That the deceased Neelam suffered firearm injuries; eight in number, four entry and four exit wounds, stands proved through her post-mortem report Ex.PW-13/A and the testimony of Dr.Ashok Jaiswal PW-13 who proved the same and gave a clarification that one bullet had entered the body through the arm and made an exit on the opposite side of the arm and re-entered the body at the chest and made an exit wound at the back and that the same could have happened if Neelam had kept her arm abreast her chest. Thus, the four entry and four exit wounds on the body of Death Ref.No.1/09 & Crl.A. No.528/09 Page 14 of 28 Neelam stand proved as the result of being hit by three firearm projectiles. This accounts for the three used cartridges recovered at the spot. The fourth used cartridge gets accounted for with reference to the injury on the thigh of Const.Nand Kishore and his MLC Ex.PW-14/B. 21. Thus, we hold that the prosecution has successfully proved its case against Shree Gopal and the impugned judgment and order dated 27.5.2009 correctly holds qua the guilt of the convict Shree Gopal. 22. We note that Geeta and Mordhwaj who were also charged as co-accused have been acquitted by the learned Trial Judge for the reason there was no evidence against them of having entered into a conspiracy to murder Neelam and in furtherance thereof, Shree Gopal executed the plan. The only evidence against Geeta and Mordhwaj is that they were accused in FIR No.808/2002 PS Rajouri Garden and that deceased Neelam was a witness of the prosecution in said case and that Geeta and Mordhwaj had a motive to kill Neelam. Needless to state, adverse inference against an accused on proof of motive is the result of a presumptive logic and by its very nature, presumptive logic is weak logic. 23. The vexed question which now arises for consideration is: Whether the facts of the instant case warrants the imposition of the extreme penalty of death? Death Ref.No.1/09 & Crl.A. No.528/09 Page 15 of 28 24. To attract the penalty of death, it has to be established that the case falls in the category of the rarest of the rare. Thus, the Court has not to stop if it finds the offence to be in the category of being rare. The Court has to see further; whether it is in the category of the rarest of the rare i.e. an extreme form of being extremely rare, within the larger category of rare has to be seen for. 25. In the decision reported as 1983 (3) SCC 470 Machhi Singh vs. State of Punjab it was held that while considering the imposition of penalty in an offence punishable with death, mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. 26. Courts are required to draw up a virtual balance sheet, listing the mitigating and the aggravating circumstances against each other and then forming an opinion as to where does the fulcrum rest. 27. A Division Bench of this Court, of which one of us, namely, Pradeep Nandrajog, J. was a member of, drew up a chart with reference to various judicial pronouncements of what have been considered as mitigating factors and aggravating factors. The decision is dated 8.5.2009 in Death Ref. No.1/2008 ‘State vs. Raj Kumar Khandelwal’. This very Bench Coram: Pradeep Nandrajog, J. and Indermeet Kaur, J. Death Ref.No.1/09 & Crl.A. No.528/09 Page 16 of 28 had summarized the said tabular chart in the decision dated 6.8.2009 disposing of Crl.Appeal No.635/2007 ‘Rajesh Kumar vs. State’ and the connected Death Ref. No.2/2007 ‘State vs. Rajesh Kumar’. In para 72 and 73 of said decision, it was summarized as under:- “72. A bird‟s eye view of various judicial decisions reveal that Courts have considered the undernoted circumstances, as mitigating: lack of any prior criminal record as held in the decision reported as 2006 EWHC 1555 (QB) In Re. Butters’; the age of the offender being too young or too