Delhi High Court
State vs Shree Gopal @ Mani Gopal on 31 August, 2009
Author: Pradeep Nandrajog
* 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 1 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
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.
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
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
(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"
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,
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
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
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.
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.
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
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
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?
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.
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 old as held in the
decision reported as AIR 1974 SC 799 Ediga Anamma
vs. State of Andhra Pradesh; the character of the
offender i.e. how the offender is perceived in the
society by men of social standing; the probability of
the offenders‟ rehabilitation, reformation and re-
adaptation in the society; whether the offence was
committed under a belief by the assailant that he was
morally justified in doing so; or that the accused acted
under the duress or domination of another person as
held in the decision reported as 1982 (3) SCC 24
Bachan Singh Vs. State of Punjab; commission of the
offence at the spur of the moment without any pre-
meditation; or the offender being provoked (for
instance by prolonged stress) in a way not amounting
to the defence of provocation, as held in the decisions
reported as 2008 EWHC 36 (QB) Re. Rahman and AIR
1998 SC 2821 A.Devendran vs. State of Tamil Nadu; a
belief by the offender that the murder was an act of
mercy as held in the decision reported as 1994
(Supply) 3 SCC 143 Janki Dass Vs. State (Delhi
Administration); a guilty plea by the offender or his
voluntarily surrendering before the authorities and his
being genuinely remorseful as held in the decisions
reported as (2008) EWHC 92 (QB) In Re. Rock and
(2006) EWHC 1555 (QB) In Re. Butters'; that the
offender acted to any extent in self defence; that his
intention was merely to cause serious bodily harm
rather than to kill; that the victim provoked or in any
way contributed to the crime, as held in the decision
reported as AIR 1999 SC 1699 Kumudi Lal vs. State of
U.P. Lastly, in the decisions reported as AIR 2007 SC
2531 Swami Shradhanand @Murali Manohar Mishra vs.
State of Karnataka and 2007 Cri.L.J. 1806 Shivu & Anr.
vs. High Court of Karnataka & Anr. it was held that in
cases of conviction being based on circumstantial
evidence a lenient view should be taken on the issue
of sentence.
73. Aggravating factors/circumstances have been
opined to be; the accused having undergone previous
convictions and his proving to be a future
danger/threat or menace to the society considering
aspects like criminal tendencies, vagabond lifestyle,
drug abuse etc. as per the decision reported as (2008)
EWHC 719 (QB) In Re. Miller; offender being in a
dominating position to the victim or in a position of
trust and has abused the trust; anti social or socially
abhorrent nature of the crime i.e. where the offence
arouses social wroth and shakes the confidence of the
people in any social institution; a crime committed for
a motive which evinces total depravity and meanness
for instance, a financial gain; where the magnitude of
the crime is large i.e. there are more than one victims;
where the crime is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so
as to arouse extreme indignation of the community as
held in the decision reported as 1983 (3) SCC 470
Machhi Singh Vs. State of Punjab; significant degree of
planning or premeditation and lack of remorse as held
in the decision reported as AIR 2005 SC 2059 Holiram
Bordoli Vs. State of Assam; the victim being vulnerable
due to age or physical infirmity as held in the decision
reported as 2008 (110) Bom.LR. 373 State of
Maharashtra Vs. Haresh Mohandass Rajput; mental or
physical suffering inflicted on the victim before the
death; victim being a public service provider or
performing a public duty at the time when the crime
was committed, as held in the decision reported as
(1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the
offender attacking sovereign democratic institutions
as held in the decision reported as 2003 (6) SCC 641
Navjyot Sandhu @ Afsan Guru Vs. State."
28. Vide order dated 5.6.2009, the learned Trial Judge
has held that the instant case falls in the category of the rarest
of the rare, justifying imposition of the extreme penalty of
death.
29. Four mitigating circumstances have been noted by
the learned Trial Judge as under:-
"I. There are no alleged bad antecedents of the
accused as he was not known to be previously
involved in any other offence.
II. The accused is aged about 34 years and at the
time of commission of offence he was married having
a family comprising his mother, unmarried sister, wife
and elder brother.
III. There is probability that the accused would not
commit criminal acts of violence and would not be a
continuing threat to the society.
IV. There is probability that the accused can be
reformed and rehabilitated."
30. Eleven aggravating circumstances have been noted
against the appellant as under:-
"I. The offender has committed the offence of
murder for the purpose of receiving money and is thus
proved to be a hired killer.
II. The murder has been committed in gruesome
and diabolic manner without any immediate
instigation because the deceased was shot at three
times from a point blank range and because of his
acquaintance and intimacy with the deceased, he
succeeded in coming so close to the deceased for the
purpose of perpetrating the crime.
III. While committing murder, the accused knowingly
created a great risk of death to the general public
present outside the court room or in the court
premises, by means of a weapon hazardous to the life
of more than one person.
IV. The murder has been committed in a pre-
meditated and planned manner because the accused
was armed with the deadly weapon and after killing
the deceased by causing three gunshot injuries to her,
the weapon was still having one loaded cartridge in its
chamber, two live cartridges in its magazine and two
live cartridges were in the pocket of the trouser of the
accused.
V. The deceased was a material witness of the
murder trial in case FIR No.808/02 Police Station
Rajouri Garden under Section 302/356/120-B IPC. In
that case the deceased Zareena was an acquaintance
of Neelam eunuch and was residing at her residence
for the last about one month and was killed because of
her mistaken identity as the assailant had come to
murder Neelam eunuch.
VI. The murder of Zareena in the above case took
place at the residence of Neelam eunuch (deceased in
the present case) and the material eye-witness was
Veena who was working as domestic servant with
Neelam eunuch.
VII. By committing murder of Neelam eunuch the
accused persons in the above case (two of whom are
also accused in the present case Geeta Hazi and
Mordhwaj) have succeeded in terrorizing all the
witnesses of the said case because all of them
including material eye witness Veena had turned
hostile and the accused persons succeeded in
ensuring their acquittal vide judgment Ex.C-1 dated
1/5/2008.
VIII. The murder has been committed for a material
witness of a murder trial outside the Court room when
she had come out the court room after opposing the
bail applications of the accused persons in case FIR
No.808/02 under Section 302/356/120-B IPC Police
Station Rajouri Garden.
IX. While committing murder of the said witness, the
accused had also caused gunshot injury to Const.Nand
Kishore who was deputed to protect deceased Neelam
because about three hours before the incident she had
approached the police post Tis Hazari, Delhi and
sought protection apprehending threat to her security.
X. After committing murder of Neelam eunuch and
injuring Const.Nand Kishore, the accused was well
prepared and determined for causing danger to lives
of public persons present outside/inside the court
room including lawyers and litigants and in case HC
Ajit Singh had not timely intervened and snatched the
pistol from his hand, the accused might have killed
some more persons present there.
XI. The act of the accused is such which shows that
he has no concern for law and human life because he
has committed murder for money, of a witness without
having any enmity with the deceased and just outside
the court room which shall adversely affect the faith of
a common man in the administration of the justice and
a common man would be discouraged and dissuaded
from approaching the court of law or to depose
against criminals."
31. Though eleven aggravating circumstances have
been noted by the learned Trial Judge, but a meaningful
reading thereof would reveal that the learned Trial Judge has
actually found four aggravating circumstance; being: (a) that
the crime was committed for a monetary consideration i.e. the
accused was a contract killer; (b) the murder was committed in
a gruesome and diabolic manner without any instigation; (c)
the crime was committed with full planning; and (d) by killing a
witness the accused had polluted the stream of justice and
that the crime was committed in a building where justice was
administered.
32. Every case of homicide is deplorable and is also
morally depraving. To be gruesome and diabolic there has to
be something more than mere homicide. The body of the
deceased being chopped to pieces; ten to fifteen stab wounds
being inflicted i.e. the victim being treated with bestiality and
cruelty and subjected to pain are instances of what can be
classified as gruesome and diabolic nature of crime. To be
labeled as a gruesome and diabolic murder, the features of the
murder must be such that he who sees the crime or hears
about the same, grimaces. An ugly, twisted expression on the
face of the person witnessing or hearing about the crime,
expressing disgust and pain must instantaneously be formed,
if the murder is to be labeled as gruesome and diabolic. The
bones of the listener of the crime must chill. Tested on the
anvil aforesaid, the instant murder has no such specific
feature. It is akin to every murder where a firearm is used.
The manner of commission of the crime is of the general
category of all such crimes of murder by use of a firearm.
Thus, one aggravating circumstance noted by the learned Trial
Judge i.e. that the crime is diabolical is non-existent. Since the
charge of conspiracy has failed and there is no evidence that
Shree Gopal was paid money by co-accused Mordhwaj and
Geeta, who have been acquitted, there is no evidence that
Shree Gopal has acted as a contract killer. He may well have
acted as a friend or a sympathizer of the accused of FIR
No.808/2002 PS Rajouri Garden. Thus, another incriminating
circumstance i.e. the crime being the result of a financial gain
as held by the learned Trial Judge is also not established.
33. That Shree Gopal has polluted the stream of justice
by murdering Neelam who was a witness of the prosecution in
FIR No.808/2002 is indeed a serious matter. Witnesses are the
eyes and the ears of a Court.
34. The Constitution of India is the solemn pledge of its
citizens to secure justice, liberty, equality and fraternity to all
the citizens. Justice, liberty, equality and fraternity are four of
the many values held in reverence by the citizens of India.
Rightly, the Preamble to the Constitution lists the four in the
priority of Justice being first, followed by Liberty, Equality and
Fraternity in the said order. We have used the expression
„rightly', for the reason, unless justice is secured the other
three values i.e. liberty, equality and fraternity can never be
achieved. So high has the society placed justice as a value,
that whenever it comes into conflict with other values
recognized by the society, primacy has been accorded to
justice. For example, in the law pertaining to defamation,
absolute privilege has been recognized as a defence, to
protect witnesses to speak without fear while deposing in
Court at the cost of sacrificing a competing value i.e. the
dignity of an individual. Even defamatory statements made by
witnesses in Court, subject to the statement being relevant to
the inquiry before the Court, have been held to be non-
actionable, even if the maker of the statement cannot make
good the same. The right to tell through print and visual
media as also the radio and the right of the citizens to know;
i.e. the freedom of speech and expression, recognized as a
value by the society, has been treated as subservient to the
right of the citizens to have access to justice without fear and
without being polluted as also a decision by a Judge, on
evidence properly brought before the Judge and admissible as
per law, in the form of the law of contempt by making
actionable press reportings on matters which are sub-judice
and tend to interfere in the administration of justice.
Jurisprudence pertaining to administration of justice shows the
concern of the citizens to secure for themselves unpolluted
justice and wherever other values, equally cherished by the
society, have come into conflict with the value of securing
justice, primacy has been accorded to the latter.
35. Witnesses being suborned, threatened, intimidated
or bought over has been plaguing the criminal justice delivery
system in India to such an extent, that in the eyes of the
public, the system itself has come under trial. The existence
of the State is dependent upon a good, effective and efficient
criminal justice delivery system, for if the same fails, the
citizens would settle their disputes in private and the rule of
law would cease to exist. Lawlessness would prevail and the
State shall perish.
36. It is indeed an aggravating circumstance to be
weighed appropriately where the offence of murder relates to
a victim who is a witness in a pending trial. By killing the
witness, the eyes and ears of a Court are under attack. The
stream of justice gets polluted.
37. The latest decision of the Supreme Court pertaining
to imposition of a sentence of death i.e. JT 2009 (7) SC 249
Santosh Kumar Satishbhushan Bariyar vs. State of
Maharashtra, decided on 13.5.2009 has highlighted another
important facet pertaining to the sentencing procedure; being
the consideration of alternative options.
38. Discussing the nature of the content of the rarest of
rare dictum, the Supreme Court observed, that a real and
abiding concern for the dignity of human life postulates
resistance to taking a life through the instrumentality of law.
That ought not to be done, save in the rarest of rare cases,
when the alternative option is unquestionably foreclosed.
39. Imprisonment for life as a penalty entails that the
accused must remain in prison till his life i.e. would never be
set free from jail. However, the executive has the power of
remission under Section 433 Cr.P.C., which is subject to the
restriction imposed by Section 433-A Cr.P.C. as per which a
person sentenced to imprisonment for life or one whose
sentence of death has been commuted to imprisonment for life
cannot be released from prison unless he/she has served at
least 14 years of imprisonment.
40. The alternative option considered by the Courts, is
to pass a direction that the accused, who has been held guilty
would not be released from prison, till a sentence more than
14 years imprisonment has been suffered by the accused, who
has been sentenced to undergo imprisonment for life.
41. We need not note many and varied authorities
taking resort to said alternatively; save and except a few. The
option was exercised in the decision reported as AIR 2002 SC
143 Jayawant Dattatraysuryarao & Ors. vs. State of
Maharahstra. The decision pertains to the infamous shooting
by gangsters at J.J.Hospital, Mumbai. Lethal firearms were
procured; being AK-47 rifles, hand grenades, revolvers etc. At
midnight, shooting took place at J.J. Hospital, a government
hospital, having 1500 beds in Mumbai. The target was one
Shailesh Haldenkar under police protection. Rival gangs were
involved. Shailesh Haldenkar belonged to one such gang and
was in judicial custody. Three persons were shot dead; being,
Shailesh Haldenkar, HC Chaintaman Gajanan Javsen and
Const. Kawalsingh Baddu Bhanawat. Six other persons, being
a patient and his relatives, the ward watchman and two other
policemen were grievously injured. The Supreme Court, while
upholding the conviction of the accused, did not concur with
the sentence of death which was imposed, and under the
alternative option, directed that the accused would not be
entitled to any commutation or premature release. In the
decision reported as 2008 (13) SCC 767 Swami Shraddhanand
vs. State of Karnataka same alternative option was availed of
i.e. it was directed that the convict would not be released from
prison till the rest of his life.
42. In some of the decisions, noted in Swami
Shraddhanand's case (supra), in paras 60 to 63 of the said
decision, i.e. the decisions reported as Shri Bhagwan vs. State
of Rajasthan 2001 (6) SCC 296, Prakash Dhawal Khairnar
(Patil) vs. State of Maharashtra 2002 (2) SCC 35, Ram Anoop
Singh vs. State of Bihar 2002 (6) SCC 686 and Mohd. Munna
vs. Union of India 2005 (7) SCC 417, it was directed that the
accused shall not be released before completing an actual
term of 20 years‟ imprisonment.
43. We may only add that the said decisions throw light
of drawing distinctions between what would be rare and what
would be the rarest of the rare. A sentence of life
imprisonment can thus be classified in two categories i.e. the
ordinary category whereby the Court leaves the exercise of
executive power at the discretion of the executive, to be so
exercised after 14 years of imprisonment and grant remission;
and a higher category, where the Court, in a rare case, but not
the rarest of the rare, would clip said benefit being extended
by directing that the accused shall undergo an actual sentence
for a higher period or even for the remainder of his life. Such
kinds of cases can be put in the category of rare cases with
appropriate direction of not being entitled to the benefit of
remission till a fixed term of imprisonment is undergone. Only
after carrying out such an exercise should the Court take
resort to the extreme action in a case which would be in the
category of the rarest of the rare.
44. Tested on the anvil aforesaid and keeping in view
the fact that the crime committed by Shree Gopal is more than
a murder of an ordinary category; having an aggravated
content of polluting the stream of justice and noting the
primacy placed by the society to the value of justice, we hold
that the instant case falls in the category midway between i.e.
of a category where the appropriate sentence to be imposed is
of imprisonment for life with a direction that Shree Gopal
would not be considered for being granted remission till he
undergoes an actual sentence of 20 years.
45. The appeal and the death reference stand disposed
of confirming the conviction of Shree Gopal but modifying the
sentence of death imposed upon him. We impose the
sentence to undergo imprisonment for life with further
direction that Shree Gopal would not be considered for being
granted remission till he undergoes an actual sentence for 20
years.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
August 31, 2009
Dharmender
