Delhi District Court
State vs (1) Shree Gopal @ Mani Gopal on 27 May, 2009
FIR No 98/03
-::1::- PS: Subzi Mandi
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
TIS HAZARI COURTS: (WEST) DELHI
FIR no. 98/03
Police station : Subzi Mandi
U/s 302/307/186/353/332 IPC
State V/s (1) Shree Gopal @ Mani Gopal
(2) Geeta Hazi
(3) Mordhwaj @ Manju Singh
1. Session Case no. : 14/03
2. Name of the accused and : 1) Shree Gopal @ Mani Gopal S/o
parentage Harish Chander R/o WZ-50,
Todarmal Colony, Najafgarh,
Delhi.
2) Geeta Hazi C/o Sheela R/o
J-29, WZ-43, Beriwala Bagh,
Subhash Nagar, Hari Nagar,
Delhi.
3) Mordhwaj @ Manju Singh S/o
Balwan Singh R/o 85-86, Village
Baprola, Najafgarh, Delhi.
3. Date of commission of : 28/4/2003
offence
4. Arguments concluded on : 20/5/2009
5. Date of Judgment : 27/5/2009
6. Date of final order : 05/06/09
JUDGMENT
1. According to the prosecution case on 28/4/2003 at about 3.00P.M HC Ajit Singh of police post Tis Hazari, Delhi who was deputed as PSO of Shri J.P. Singh, Ld District & Sessions Judge, Tis Hazari, Delhi was returning to the police post via first floor Tis FIR No 98/03
-::2::- PS: Subzi Mandi Hazari, Delhi and when he reached near court room no. 119, he heard the sound of firing and noticed that accused Mani Gopal was having a pistol in his right hand and was firing upon Neelam eunuch; at that time Ct. Nand Kishore had grappled with him and in the meantime accused shot Ct. Nand Kishore in his thigh, HC Ajit Singh immediately ran towards accused Mani Gopal and Mani Gopal pointed the pistol at him and before he could fire, he grappled with him and wrestled free the pistol from his hand and overpowered him. In the meantime, SI Sanjay Bhardwaj, Incharge Police Post Tis Hazari, Delhi while on patrolling reached there on hearing the sound of firing and HC Ajit Singh handed over accused Mani Gopal alongwith pistol to him. Inspector Surender Sand, SHO Police Station Civil Lines,Delhi had rushed the injured Neelam eunuch to the hospital whereas injured Ct. Nand Kishore was rushed to hospital by Ct. Aman Kumar. SI Sanjay Bhardwaj recorded statement of HC Ajit Singh, prepared a rukka, the recovered pistol was got checked by HC Omkar Nath, a fingerprint proficient and on checking the magazine of the pistol three live cartridges were recovered and one cartridge was in the chamber of the pistol. On taking cursory search of accused Mani Gopal two live cartridges were recovered from the right side pocket of his pant. All the cartridges and pistol were taken into possession. Before taking into FIR No 98/03
-::3::- PS: Subzi Mandi possession the Arms and ammunition SI Sanjay Bhardwaj had prepared the sketch of the same and kept the same in cloth pullanda sealed with the same seal of SB and gave the pullanda as serial no.1. The six live cartridges were kept in a plastic bottle and a cloth pullanda serial no. 2 was prepared and was sealed with the same seal of SB. The fired cartridges lying on the spot alongwith lead and bullet pieces were kept in a small plastic box and cloth pullanda was prepared and given serial no. 3 and was sealed with the seal of SB. The blood from the spot was taken into possession after smearing a cotton gauge (rui) and the same was kept in a plastic box and was given serial no. 4 and seal of the SB was affixed on it. From the spot three lady's sandals alongwith other articles were taken into possession and kept in a pullanda which was given serial no. 5 and was sealed with the same seal of SB. SI Sanjay Bhardwaj had taken all these pullandas in police possession and thereafter accused was given in the custody of ASI Gopal Singh and the SI Sanjay Bhardwaj then went to Trauma Center where MLC of Neelam eunuch was obtained who had been declared brought dead. The MLC of Ct. Nand Kishore was also collected and the case was registered in Police Station Subzi Mandi under section 302/307/186/353/332 120-B IPC and Section 25/27 of the Arms Act. The accused Shree Gopal was arrested and on the basis of his FIR No 98/03
-::4::- PS: Subzi Mandi interrogation during police custody accused Geeta Hazi and Mordhwaj were also arrested. On completion of the investigation a charge sheet was filed.
2. After completion of proceedings u/s 207/208 CrPC the Ld Metropolitan Magistrate, Delhi committed the case to the Sessions Court on 6/9/2003.
3. On 17/3/2004, a charge under section 302/120-B IPC was framed against all the accused persons and charge u/s 307 IPC alongwith under section 27 of The Arms Act was framed against accused Shree Gopal @ Mani Gopal separately. All the accused persons pleaded not guilty and claimed trial.
4. In support of its case the prosecution has examined in total 22 witnesses.
5. The brief summary of the deposition of the prosecution witnesses is as under:-
1. FORMAL WITNESSES PW1 HC Gyasuddin is the duty officer who deposed that on 28/4/2003 he was working as duty officer from 5.00 P.M to 1.00 A.M (night); at about 6.30 P.M he received rukka sent by SI Sanjay Bhardwaj through Ct. Trilok for registration of FIR; on the basis of the rukka he had recorded formal FIR no. 98/03; handed FIR No 98/03
-::5::- PS: Subzi Mandi over the copy of FIR and original rukka to Ct. Trilok for submitting the same before SHO Rajbir Sharma. He further deposed that he sent the copy of the FIR to senior officers and proved the FIR as Ex.PW1/A. He further deposed that he has recorded the Kayami DD of the FIR as DD no. 19A and 20A which are proved as Ex.PW1/B and Ex. PW1/C. In his cross-examination he has denied the suggestion that the FIR was recorded much subsequently after due deliberation and was ante-time.
PW3 SI Ajay Kumar was posted as Incharge of Mobile Crime team of North-East District, and deposed that on 28/4/2003 at about 3.20 P.M he had received a call from Control Room, North District to the effect that shooting incident had taken place in Tis Hazari and the Crime Team was called there; he went to first floor Tis Hazari in the gallery beside room no.119 and found that human blood was lying in the gallery near the staircase; SI Sanjay Bhardwaj, Incharge, Police post Tis Hazari, Delhi and other police staff met him there; SI Sanjay Bhardwaj had handed over a fired arm mouser made in China and three fired cartridges and three live cartridges, one broken case of empty cartridge and lead pieces; the mouser was given to HC Omkar Nath for developing fingerprints because he was FIR No 98/03
-::6::- PS: Subzi Mandi fingerprint proficient; the remaining articles were examined by SI Ajay Kumar and he had instructed SI Sanjay Bhardwaj to collect the blood from the place of occurrence; accused Mani Gopal present in the court was also apprehended at the spot by SI Sanjay Bhardwaj. He has prepared his report Ex. PW3/A after examination of scene of crime and the articles recovered and examined by him.
PW4 HC Omkar Nath Pandey has accompanied PW3 SI Ajay Kumar as member of his mobile crime team. He has fully corroborated the deposition made by PW3 SI Ajay Kumar regarding the proceedings carried by the mobile team of the scene of occurrence. In addition, he deposed that Incharge Crime Team had handed over pistol/mouser for developing fingerprints; he examined the said pistol/mouser but no fingerprints could be developed either on the handle or on the barrel of the pistol. He prepared his report Ex. PW4/A. PW6 Inspector Surender Sand has deposed that on 28/4/2003 he was posted as SHO, Police Station Civil Lines and was on duty at L.G. House and at about 3.00 P.M he heard a call on his wireless set regarding firing of bullet was going on in Tis Hazari Courts, Delhi; he immediately rushed to Tis Hazari Court, Delhi and found that a Hizra (eunuch) was lying in a pool of blood FIR No 98/03
-::7::- PS: Subzi Mandi near court room no. 119 in between staircases; he immediately removed him to the Trauma center hospital and got him admitted there.
PW7 Ct. Jaiveer Singh deposed that on 28/4/2003 he was posted as photographer at Photo Section, ISBT, Kashmere Gate, Delhi and received a call from the control room that one Neelam was shot in Tis Hazari Courts, Delhi in front of court room no.119 near the staircases; he reached at the spot and took 14 photographs on the directions of Investigating Officer. He has proved the photographs as Ex. PW7/1 to Ex. PW7/14 alongwith negatives as Ex. PW7/15 to Ex.PW7/28.
PW9 Ct. Shishpal had taken 9 parcels duly sealed with the seal of SB, RS, KLS, STC to the FSL, Malviya Nagar vide Road Certificate no. 8/21 and deposited the same there against receipt on the Road Certificate Ex. PW9/A. PW10 HC Bharat Singh had joined the investigation on 20/4/2003 alongwith Inspector Rajbir Sharma and SI Sanjay Bhardwaj and deposed that accused Shree Gopal has been taken to his house and a house search was carried out vide memo Ex.PW10/A but nothing was recovered from his house.
PW12 HC Devi Sahai has proved the DD no. 26 dated 24/6/2002 in respect of Kalandra u/s 107/151 CrPC between the FIR No 98/03
-::8::- PS: Subzi Mandi two parties and copy of DD no. 26 is proved as Ex. PW12/A whereas copy of Kalandra is Ex. PW12/B. PW16 Rameshwar Singh, Incharge (Admissions & Withdrawal) Govt. Boys, Sr. Secondary School-1, Najafgarh, New Delhi who deposed that both accused i.e Shree Gopal and Mordhwaj were students in the school and proved their Admission form/school leaving certificate as Ex. PW16/A, Ex.PW16/B, Ex. PW16/C and Ex. PW16/D. He has also proved the relevant entries in the admission register as Ex. PW16/E and Ex.PW16/F. PW18 Ct. Sebestan Geroge was posted as duty constable at Sushrat Trauma center on 28/4/2003 and deposed that at about 3.30 P.M one Neelam was brought to the Trauma center in an injured condition by Inspector Surender Sand SHO, Police Station Civil lines; another injured Ct. Nand Kishore was also brought to the Trauma center at 3.35 P.M by Ct. Aman Kumar; Neelam was declared brought dead by the doctor on examination; he had handed over a golden coloured Kara, a chain with locket, three rings, a silver coloured Tabiz with black thread and golden chain to the IO vide memo Ex. PW18/A; all these things were sealed into a parcels with the seal of RS and the clothes of the deceased Neelam and injured Ct. Nand Kishore FIR No 98/03
-::9::- PS: Subzi Mandi were kept in two sealed parcels duly sealed and were taken into possession vide memo Ex. PW18/B. PW19 SI Umedh Singh deposed that on 28/4/2003 he had come to the court of Shri R.K. Yadav Ld ASJ, Delhi for giving evidence in a case; at about 3.00 P.M he had heard a noise of shooting and somebody told him that a firing incident had taken place on the first floor; he informed the control room, North- West about the incident from his DN set; he had also stopped the public for going to the first floor; he had heard noise of 4 rounds being fired.
PW20 Mahesh Yadav, LDC, Record Room, Tis Hazari, Delhi has deposed that on 28/4/2003 he was working as Assistant Ahlmad in the court of Shri V.P. Vaish Ld ASJ, Delhi room no. 119, Tis Hazari Court, Delhi; the murder case of Zareena in case FIR no. 808/02, u/s 302/436/108 /120-B/34 IPC Police Station Rajouri Garden was fixed on that day for hearing; on the relevant day, bail applications of accused Geeta and Dharmpal were taken up for hearing and were adjourned for orders on 01/05/2003; in a leading question put to him by Ld APP for the State he has stated that police had recorded his statement in which he has stated that Neelam had come to oppose the bail application on 28/4/2003 and because of lapse of time he has forgotten this fact. FIR No 98/03
-::10::- PS: Subzi Mandi PW23 HC Yogender Singh was working as MHC (M) on 28/4/2003 and SI Sanjay Bhardwaj had deposited with him 5 sealed parcels vide entry no. 2425 in register no. 19. He has proved the entry in the register no. 19 as Ex. PW23/A. He has also proved the deposit of personal search of accused Shree Gopal @ Mani Gopal. He further deposed that on 29/5/2003, 9 sealed parcels were sent to FSL, Malviya Nagar vide RC no. 18/21 through Ct. Shishpal and he had made the entry in that regard vide entry no. 2425 Ex.PW23/B. He further deposed that on 29/9/2003 the sealed parcels alongwith report of the FSL Malviya Nagar were received through Ct. Bhagwan Singh and he made the entry in that regard vide Ex. PW23/C. He further deposed that so long as the sealed parcels remained in his possession the same were intact and were not tampered in any manner.
2. MATERIAL WITNESSES PW2 HC Ajit Singh has deposed that on 28/4/2003 at about 3.00 P.M he was posted as Head Constable at police post Tis Hazari of Police Station Subzi Mandi; on that day he was office PSO of Shri J.P.Singh, Ld District & Sessions Judge, Delhi; on that day he was coming towards police post from the first floor of Tis Hazari and when he reached near room no. 119, Tis Hazari FIR No 98/03
-::11::- PS: Subzi Mandi Courts, Delhi he heard a thunder of firing of a bullet and he saw the accused Shree Gopal @ Mani Gopal who was firing bullet with a pistol on an eunuch. He further deposed that the incident took place in the gallery of staircase near court room no. 119; a Ct.Nand Kishore of Police Post Tis Hazari grappled with the accused; the accused also hit bullet on the leg of Ct. Nand Kishore who sat down while holding his leg; he immediately rushed towards the accused but he pointed his pistol towards him but he apprehended him and snatched his pistol; in the meantime, SI Sanjay Bhardwaj, Incharge of Police Post Tis Hazari, Delhi came from the side of Central Hall; he handed over the pistol to SI Sanjay Bhardwaj and remained holding the accused; the injured was revealed as Neelam Hizra who was removed to the hospital by SHO, Inspector Surender Sand; injured Ct. Nand Kishore was removed to hospital by Ct. Aman Kumar. He proved his statement recorded by SI Sanjay Bhardwaj as Ex. PW2/A. He further deposed that SI Sanjay Bhardwaj had prepared sketch of pistol which was snatched from accused Mani Gopal; in the meantime fingerprint expert HC Omkar Nath came at the spot who checked the said pistol, on checking the magazine three live cartridge were recovered and one live cartridge was recovered from chamber of the pistol; formal search of accused Mani Gopal FIR No 98/03
-::12::- PS: Subzi Mandi was taken by SI Sanjay Bhardwaj and two more live cartridges were recovered from the right side pocket of his wearing pant; sketches of these bullets were also prepared; the recovered cartridges were sealed in a separate parcels with the seal of SB; the pistol was also sealed in a parcel and the parcels were given at serial no.1 and 2 and the same were taken into possession vide memo Ex. PW2/B; from the place of occurrence about 3 fired cartridges exact number he did not remember and some other pieces of bullets were picked up which were fired by the accused and were put in a plastic bottle and sealed in a separate parcel serial no. 3 and the said parcel was taken into possession vide memo Ex. PW2/C; blood of injured was lying on the spot and SI Sanjay Bhardwaj had picked up the blood with the help of a cotton and prepared a sealed parcel serial no.4 which was taken into possession vide recovery memo Ex.PW2/D; three lady's sandals and a chunni, some hair clips and visiting cards were lying on the spot, the same were picked up and kept in a parcel which was given serial no. 5 and taken into possession vide memo Ex. PW2/E. He further deposed that thereafter SI Sanjay Bhardwaj left the hospital he alongwith other police staff remained at the place of occurrence for supervision of scene of crime; SI Sanjay Bhardwaj had prepared a rukka and sent the Police Station Subzi FIR No 98/03
-::13::- PS: Subzi Mandi Mandi through Ct.Ramesh who got the case FIR registered; the accused was arrested and his personal search was carried out by the SHO vide memo Ex.PW2/F; his arrest memo Ex. PW2/G was also prepared; he further deposed that when he snatched the pistol from the hand of the accused, the fired cartridges hit on his chest and black spot occurred on his uniform/shirt and the uniform was handed over to the SHO who had sealed the shirt in a parcel with his seal of RS and the same was taken into possession vide memo Ex. PW2/H; he has also proved the disclosure statement of accused as Ex.PW2/J; he has correctly identified the pistol Ex. P1; the 6 live cartridges were identified as Ex. P2 (collectively); 4 fired cartridges, a bullet head and two brass pieces and lead piece were identified collectively Ex. P3 stating that the same recovered from the place of occurrence and taken into possession. He has further identified the cotton having blood stains as Ex. P4, three piece of sandals, a chunni, hair clips and visiting cards etc were identified as Ex. P5. He has also identified his shirt as Ex.P6 and the uniform shirt was having a black spot on the left side of the shirt near the shoulder and chest and he stated that he was wearing the shirt at the time of occurrence when he apprehended the accused;
In his cross-examination by the Ld counsel for accused FIR No 98/03
-::14::- PS: Subzi Mandi Shree Gopal @ Mani Gopal stated that at the time of occurrence he was at first floor and was not having mobile phone; he made his departure entry in the morning for his duty as PSO and therefore he had to make his return entry and in between there was no such record maintained about his movement by himself or by any other official; the distance between room no. 301 and court room no.119 is about 400 yards consisting of 443 stairs.
PW5 Ct. Nand Kishore has deposed that on 28/04/2003 he was posted as constable at Police Post Tis Hazari, Delhi and on that day he was posted as Security Officer (SO) to Neelam Hizra for his protection vide DD No.22 of Police Post Tis Hazari, Delhi; he went to the court room no.119, Tis Hazari Courts of Shri V.P.Vaish, Ld ASJ, Delhi where murder case of Zareena Hizra was pending and fixed for that day and after hearing at about 3.00P.M, he alongwith Neelam Hizra and her other associates left the court room no.119; accused present in the court i.e accused Mani Gopal (correctly identified) fired three bullets from a pistol on the person of Neelam Hizra; he tried to save her and grappled with the accused; the accused had hit bullet from a short distance; when he was grappling the accused he hit a bullet from his pistol on his right thigh as a result he fell down and in the meantime HC Ajit came there who had also grappled with the accused and FIR No 98/03
-::15::- PS: Subzi Mandi snatched his pistol from his hand; name of the accused was revealed as Mani Gopal and in the meantime SI Sanjay Bhardwaj, Incharge of Police Post Tis Hazari, Delhi had reached there; Neelam Hizra was injured completely and SHO Police Station Civil Line Inspector Surender Sand removed her to a hospital. He further deposed that he was also removed to the Trauma hospital by Ct. Aman Kumar of DAP 3rd Battalion where he was operated upon and his statement was also recorded; his pant of uniform also had the gunshot mark and the same was taken into possession by the concerned doctor and handed over to the police. He has correctly identified the pistol Ex. P1 stating that it was the same with which the accused had hit bullets on his thigh and also on the person of Neelam Hizra. He has also identified his uniform pant Ex. P7 (which was having a cut marks on the point of thigh) and stated that he was wearing the same at the time of occurrence.
In his cross-examination by Ld defence counsel for accused Mani Gopal he has deposed that there were about 70/80 people present in the corridor at the time of incident and none was injured; he did not disclose the factum of his injury to anybody in the court room no. 119; at the time of incident he was not having any danda or fire arm with him; at the time of grappling only, he FIR No 98/03
-::16::- PS: Subzi Mandi received the bullet injury; he received only one bullet injury at the time when he grappled with the accused; he did not snatch the pistol from the accused.
PW8 ASI Baldev Singh deposed that on 28/4/2003 he was posted at police post, Tis Hazari, Police Station Subzi Mandi and on that day he had received DD no. 27 at about 3.20 P.M and reached in front of court room no. 119 in the gallery upstairs where SI Sanjay Bhardwaj met him and Crime team also reached there SI Sanjay Bhardwaj produced the recovered pistol for fingerprint proficient and then he checked magazine of the recovered pistol found containing three live cartridges, one live cartridge in barrel and SI Sanjay Bhardwaj further conducted formal search of accused Shree Gopal @ Madan Gopal; SI Sanjay Bhardwaj prepared sketch of the recovered pistol, magazine and live cartridge found in magazine and barrel of the pistol and two live cartridges recovered from accused Mani Gopal vide memo Ex.PW8/A and taken into police possession vide memo Ex.PW2/B; SI Sanjay Bhardwaj also seized one lead peace of bullet four used bullets and two pieces of bullets from the spot taking the same in plastic bottle and the same were taken into possession vide memo Ex. PW2/C; SI Sanjay Bhardwaj lifted the blood from the spot with the help of gauge and kept the same in plastic jar and taken into FIR No 98/03
-::17::- PS: Subzi Mandi possession vide memo Ex. PW2/D. He further deposed that three sandals and one hair band seven cards of election of Sanjeev Goel, one black and white chunni were also lying on the spot and same were taken into possession vide memo Ex. PW2/E by keeping the same into plastic polythene and sealed with the seal of SB and proved the same. He further deposed that on 13/5/2003 he again joined the investigation with the IO regarding one complaint dated 28/4/2003 received in police post Tis Hazari, Delhi and was marked to him and was pending for enquiry and he sent Ct.Nand Kishore for protection of witness namely Neelam which is Ex.PW8/B which he handed over to the Investigating Officer during investigation.
In his cross-examination by Ld counsel for accused Geeta Hazi he deposed that no DD was lodged in DD register in respect of Complaint Ex. PW8/B. PW11 Ct. Satish Kumar deposed that on 28/4/2003 he was posted at Police Post Tis Hazari,Delhi and was working as DD writer from 8.00 A.M to 8.00 P.M; on that day at about 12.40noon, he received a written complaint from complainant Neelam and accordingly deputed Ct. Nand Kishore for the protection of the complainant and made his departure entry vide DD no. 22. He further deposed that on the same day at about 3.19 P.M he had FIR No 98/03
-::18::- PS: Subzi Mandi received a message from wireless operator that Incharge, Police Post Wazirpur Industrial Area, Delhi had informed that the firing took place at Tis Hazari Courts, Delhi and the same information was recorded vide DD no. 27 Ex. PW11/B and the copy of the same was given to ASI Baldev Singh alongwith Ct. Maninder Nath for taking necessary action and thereafter he had informed the Incharge, Police Post Tis Hazari, Delhi about this information through telephone. He further deposed that he had placed the complaint Ex. PW8/B of Neelam before Incharge, Police Post Tis Hazari, Delhi SI Sanjay Bhardwaj after diaring the same at serial no. 621. He has proved the DD no. 22 as Ex. PW11/A and DD no.27 Ex. PW11/B. PW17 Gopal S/o Sarvan deposed that on 28/4/2003 he had come to Tis Hazari Court in court room no. 119 in Zareena murder case; he came out of the court after hearing, a man came there and shot Neelam who was his Guru Bhai with a pistol; Neelam had fallen down on the floor; police had reached the place within 10-15 minutes and removed Neelam to Sushruta Trauma Center who declared brought dead. He further deposed that he has identified the dead body and made his statement which is Ex.PW17/A. PW22 SI Sanjay Bhardwaj has deposed that on FIR No 98/03
-::19::- PS: Subzi Mandi 28/4/2003 he was posted as Sub-Inspector Police Post, Tis Hazari, Delhi and on that date Neelam Hizra came to Police Post at about 12.40P.M and gave written complaint Ex. PW22/B regarding threat to her life from Geeta, Mordhwaj and others; the said complaint was marked to SI Baldev Singh for necessary protection and he had also directed Neelam (complainant) to first come to the Police Post on court dates, take security from the police post and then to attend her case in the court room no.119 of Shri V.P.Vaish, Ld ASJ, Delhi; Neelam had agreed to abide by those directions and had written in that regard on Ex PW8/B by putting her signature therein at point- B; he had then directed Ct.Nand Kishore to accompany Neelam for her protection to the court and in that regard DD no. 22A Ex. PW11/A was recorded in the Police Post. He further deposed that on the same day, at about 3.00 P.M he was present in the Central Hall, Tis Hazari Courts, Delhi and heard sounds of firing from the Sessions side of Tis Hazari Courts, Delhi and he rushed towards the sound and reached the lift and the staircase adjacent to court room no.119 where he found Neelam bleeding and shot, lying on the ground; Ct. Nand Kishore who was siting on the floor nearby holding his bleeding leg and HC Ajit was having overpowered accused Mani Gopal @ Shree Gopal and he had wrestled free a pistol from FIR No 98/03
-::20::- PS: Subzi Mandi accused Mani Gopal with which he had shot Neelam; simultaneously, SHO Police Station Civil Lines, Inspector Surender Sand reached the spot and removed Neelam to Trauma Center hospital and Ct. Aman took Ct. Nand Kishore to the Trauma Center hospital. In his further examination-in-chief he has supported and corroborated the prosecution story narrated by other material witnesses HC Ajit and Ct. Nand Kishore on the point of inspection of the spot by the Crime team, checking of the pistol by HC Omkar Nath, checking of the live cartridges and used cartridges by the Crime Team, regarding preparation of sketch of live rounds, magazine and the pistol as Ex. PW8/A, regarding seizure of all these articles and sealing of the same on the spot. He has also identified his signature on the seizure memo Ex.PW2/B,Ex. PW2/C, Ex. PW2/D and Ex. PW2/E. He further deposed that after leaving the accused with ASI Gopal Singh and Ct. Ramesh he had left for the trauma center alongwith other staff, after reaching there collected MLC of Neelam and Ct. Nand Kishore; he had recorded statement of HC Ajit Singh and endorsed the same as Rukka as Ex. PW22/A and sent the same to Police Station through Ct. Trilok and also requested to hand over the investigation to SHO Inspector Rajbir Sharma who had also accompanied him to the hospital. He has also identified the FIR No 98/03
-::21::- PS: Subzi Mandi seizure memo Ex. PW18/A and Ex.PW18/B prepared by Inspector Rajbir Sharma. He has also identified seizure memo regarding the uniform shirt of HC Ajit Singh vide memo Ex. PW18/H. He further deposed that he then returned to the spot and accused Mani Gopal @ Shree Gopal was arrested vide memo Ex. PW2/G; accused made a disclosure statement Ex.PW2/J which was recorded by Inspector Rajbir. He further deposed that accused Mordhwaj and Geeta were arrested with the permission of the court on the production warrants vide arrest memo Ex. PW21/G and Ex. PW21/F; the disclosure statement of Accused Mordhwaj was proved as Ex.PW21/H; he had also collected a copy of Kallandra u/s 107/150 CrPC Ex. PW12/B on 01/5/2003 from MHC(R) of Police Station Rajouri Garden. He has correctly identified the pistol with magazine Ex. P1, four live cartridges and two tested cartridges as Ex. P2, four empty cartridges, broken bullet and lead seized from the spot as Ex.P3, blood stained gauge as Ex.P4, three lady's sandals, visiting cards, black and white chunni, hair clip as Ex. P5, uniform shirt having a black spot near the shoulder and chest as Ex. P6. He has also proved the scaled site plan Ex. PW22/X which was prepared by draftsman Tirath Raj Singh who had expired.
In his cross-examination by Ld counsel for accused FIR No 98/03
-::22::- PS: Subzi Mandi Shree Gopal he deposed that on that day he was on patrolling duty and must have left the Police Post for patrolling after 12.40P.M; he reached the spot within 1½ minute of hearing the sound of gunshot/firing and at that time he was near the stairs in the Central hall adjacent to place where the book sellers sells the books at Central hall Tis Hazari; when he was climbing the stairs, public persons were running down stairs; when he reached on the spot, one or two public persons were present near the spot apart from the person whom he had met as mentioned in his examination-in- chief; HC Ajit Singh has sustained injury because he had an injury mark on the lift side of his chest near the shoulder; Inspector Surender Sand had also reached on the spot almost at the same time; Ct. Aman Kumar who had taken Ct. Nand Kishore to the hospital, had reached the spot after about 30 seconds of his reaching on the spot; he remained at the spot till 5.40 P.M and had reached the Trauma center at about 5.50 P.M from where he had sent the rukka .
PW21 Inspector Rajbir Sharma who was SHO Police Station Subzi Mandi has fully supported the material witnesses including SI Sanjay Bhardwaj (PW22) with regard to the investigation carried out by him as well as SI Sanjay Bhardwaj. He has deposed that at about 3.00 P.M on 28/4/2003 on receiving the FIR No 98/03
-::23::- PS: Subzi Mandi information on wireless he alongwith his staff had reached the place of occurrence at first floor between court room no. 119 and 122 near the staircase where SI Sanjay Bhardwaj, ASI Baldev and HC Ajit Singh alongwith other staff were present; SI Sanjay Bhardwaj had conducted the investigation and recorded statement of HC Ajit Singh, collected the exhibits from the spot; he alongwith SI Sanjay Bhardwaj, HC Ajit and Ct. Trilok then went to Trauma Center and collected MLC of Neelam and Ct. Nand Kishore; the Duty Ct. Sebestan George produced two sealed parcels alongwith two sample seal also produced jewellery articles of deceased Neelam and all these articles were taken into possession; he alongwith his staff reached at the spot and on the pointing out of HC Ajit Singh, he had prepared the site plan Ex.PW21/A; Accused Mani Gopal was interrogated and arrested; accused Mordhwaj and Geeta Hazi were arrested in this case vide memo Ex. PW21/F and Ex.PW21/G and the accused Mordhwaj had made disclosure statement Ex. PW21/H; the house search of accused Mordhwaj was conducted vide memo Ex. PW21/I; Khana Talashi of accused Mordhwaj was conducted vide Ex. PW21/J; on his request Ex. PW21/A the subsequent opinion was given by the doctor which is already Ex. PW13/B; the blastic report which was received lateron was Ex. PW21/L. He has correctly identified the FIR No 98/03
-::24::- PS: Subzi Mandi shirt Ex. P6 stating that the same was of HC Ajit Singh and was seized by him.
In his cross-examination by Ld counsel for accused he deposed that he was near the Police Station when he had received the information regarding the incident and had reached the spot straight away at about 3.15 P.M; at that time statement HC Ajit Singh was got recorded and he was present on the spot and was controlling the crowd and also protecting the place of incident; statement of HC Ajit Singh was recorded after about 40 minutes of his reaching on the spot; the Crime Team had worked on the spot for about 2 hours after 3.00 P.M. In his further cross-examination by counsel for accused Mani Gopal he has deposed that after receiving the information on his wireless he had reached the spot within 15 minutes and found a lot of crowd on the spot; he had stayed on the spot for about 1½ hours; Ct. Nand Kishore had sustained bullet injury who was taken to hospital by Ct. Aman Kumar; Ct. Nand Kishore had been deputed for protection of deceased Neelam.
3. MEDICAL WITNESSES AND FORENSIC WITNESSES PW13 Dr. Ashok Jaiswal, CMO, Incharge, CGHS, Subzi Mandi had conducted the postmortem of deceased Neelam FIR No 98/03
-::25::- PS: Subzi Mandi (eunuch). He has found following external and internal injuries on the body of the deceased:-
1. An irregular large stellate shaped lacerated wound 3 cm X 2.2 cm X ? was seen, placed 2 cm. Lateral to right eye, margins everted with lacerated brain tissue seen coming out with burning and blackening around it over an area 1.5 cm X 1.2 cm (entry wound of firearm projectile).
2. An oval punctured wound on posterior half of top of the vault at the junction of partial and occipital bone near mid-line with outward chipping of skull bone with lacerated brain matter seen protruding out mixed with blood. No burning blackening or tattoing seen (Exit wound).
3. An oval shaped punctured wound 1.1 cm X 0.9 cm X ?
margins inverted, present on mid part of right arm post lateral aspect with collar of abrasion around it with blackening and bruising on adjacent area of 1.2 cm X 1.0 cm (entry wound up fire arm projectile).
4. Lacerated wound on antebial aspect of right arm at the junction of middle and lower 1/3rd of size 1.3 cm X 1.2 cm X ?, margins everted with soft tissue seen protruding out mixed with blood. No burning blackening or tattooing seen. On exploring injury no.3, a track was established through the soft tissue of FIR No 98/03
-::26::- PS: Subzi Mandi right arm in the form of a tunnel 1.5 cm X 1.2 cm. Continuing with the external injury no.4, lacerating the soft tissues, vessels and nerves along the track which was filled with blood.
5. An oval shaped punctured wound on right side front of chest, just medial to right breast placed 5.5 cm. Medial to right nipple at 2.30 'O' clock position having a size of 0.9 cm X 0.8 Cm X ? margins inverted with collar of abrasion and blackening around over an area of 1.5 cm X 1.0 cm ( entry wound of fire arm projectile).
6. A split laceration of right side back, 2 cm. Right of mid line placed 19 cm. Below the nape of neck, having a size of 1.3 cm X .8 cm X ? Margins everted with subcutaneous fatty tissue mixed with blood protruding out. No burning, blackening, tattooing seen. (Exit wound).
7. An oval shaped punctured wound 1 cm X 0.8 cm X ? was seen on right lower back placed 2 cm. Above right iliac bone with collar of abrasion around it with blackening around 0.8 cm X 1 cm (entry wound of fire arm projectile)
8. Oblique to transverse split laceration in front of abdomen 1.2 cm X 0.8 cm X ? placed 6 cm. Above umblicus in mid line margins everted with fat mixed with blood seen coming out. No burning, blackening, tattooing seen. (Exit FIR No 98/03
-::27::- PS: Subzi Mandi wound).
INTERNAL EXAMINATION:-
1. Head:-
On exploring injury no.1, a track was established through right zygomatic bone to right side anterior cranial fossa piercing through right frontal right frontal lobe through and through oblique plain below occurred going through the substance of brain making a tunnel 2 cm. Wide filled with blood and lacerated brain tissue, found communicating with external injury no.2. There was comminuted fracture of right zygomatic bone, fracture right side anterior fossa, fracture right frontal bone with bone pieces driven in. There was extra, sub dural haemorrhage all over right side and at base of brain. No remnants of fire arm projectile or foreign body recovered from cranial cavity.
2. Neck:-
Except for pallor, nothing abnormal was detected on the neck.
3. Chest:-
On exploring injury no.5, a track was established through right chest cavity via 5-6 inter costal space, passing through medial border of middle lobe of right lung through and FIR No 98/03
-::28::- PS: Subzi Mandi through tearing hilar vessels, found communicating with the external injury no. 6 in the same line para vertibral region right chest cavity full of free blood. Right lung middle lobe medial side lacerated. No foreign body/remnant of fire arm projectile recovered from the chest cavity.
4. Abdomen and Pelvis :-
On exploring injury no. 7, a track was established directed inward and upward and medially entering the abdominal cavity from right side back passing through and through the intestinal loops and mesentary, tearing mesentric vessels and was found communicating with the external injury no. 8. The track was lying with blood, abdominal cavity was filled with half litre of free blood. No remnants of firearm projectile or foreign body was recovered from the abdominal cavity. All vessels were pale, stomach was empty, bladder was half filled, rectum was empty. No uterus, ovary, fallopian tubes, vagina , cervix, testicles seen ( congenital absent). His opinion regarding the death is as under:-
i) all injuries were anti-mortem in nature; caused by firearm projectile; fired from close range;
ii) injuries no. 1,3,5 and 7 are the entry wounds while injuries no. 2,4,6, and 8 are their exit wounds respectively; FIR No 98/03
-::29::- PS: Subzi Mandi
iii) Death was due to haemorrhagic shock consequent to the injuries.
iv) Injuries no. 1,5 and 7 was/were individually/ collectively were sufficient to cause death in ordinary course of nature.
He has proved his postmortem report Ex. PW13/A and further stated that on 26/6/2003 an application was submitted by Addl. SHO Subzi Mandi with a query whether more than one entry and exit wound is possible by one bullet in this case. He opined that a single fire arm shot may produce more than one entry /exit wounds on the body depending upon:-
i the posture of the body; ii movement of the body; iii movement of body parts at the time of sustaining the
shot occurring as a result of natural preventive/evasive/defensive response by the human body.
In the above mentioned case, if the arm came in adduction position abreast the chest opposite injury no. 5, it might bring injuries no. 3,4,5 and 6 in one line and as such these injuries are possible by a single shot. His detailed opinion in this regard is Ex PW13/B bears his signature at point - X. PW14 Dr. Satender Kumar, has deposed that on 28/4/2003 he working as Casualty Medical Officer in casualty of FIR No 98/03
-::30::- PS: Subzi Mandi Sushrut Trauma Center and at about 3.30 P.M injured Neelam aged about 32 (eunuch) was brought by SHO Civil Lines, Inspector Surender Sand with alleged history of gunshot injury; he examined the patient who was unconscious no peripheral pulse, no blood pressure recordable, no respiratory movement and was accordingly declared brought dead. He has noticed the following injuries on his body as per MLC Ex. PW14/A:-
1. Punctured lacerated wound with irregular marking approx. 3 cm X 2 cm on right cheek approx. 2 cm lateral to right eye. Blackening and tattooing around the wound. Brain matter visible inside the wound (entry wound?)
2. Circular wound ½ cm X ½ cm on high parito occiptial region of the skull. This is probably the exit wound?
3. Circular punctured wound on right anterior and posterior aspect of right arm with blackening and tattooing around the anterior wound marking.
4. Circular wound on medial side of breast with corresponding wound on the right side of back approx. 2 cm lateral to vertebral.
5. Punctured wound on mid abdomen approx. 5 cm above the umblicus.
He further deposed that on the same date he has also FIR No 98/03
-::31::- PS: Subzi Mandi examined Nand Kishore S/o Amir Singh, aged about 30 years brought by Ct. Aman Kumar with alleged history of gunshot wounds as stated by the patient himself and by Ct. Aman Kumar. He found the patient conscious and oriented and following injuries were found on his person as under:-
1. Circular penetrating wound 1 cm X 1 cm anterior aspect of right mid thigh. There is a blackening and tattooing around the wound.
2. Circular penetrating wound on posterior aspect of right mid thigh.
MLC is Ex. PW14/B. He has also proved the death certificate of Neelam as Ex. PW14/C. PW15 Dr. Rajender Kumar has deposed that on 29/4/03 he was working as Casualty Medical officer at Aruna Asaf Ali hospital and at about 1.00 A.M HC Ajit Singh was brought to the hospital by Ct. Muninder Nath for medical examination and he has found following injuries on the person:-
1. Bruise 1 cm X 0.5 cm (3) over the left side of chest about 5 cm below clavical lateral aspect.
He has proved his MLC Ex. PW15/A.
6. The accused person were examined u/s 313 CrPC. Accused Shree Gopal @ Mani Gopal has denied the prosecution evidence FIR No 98/03
-::32::- PS: Subzi Mandi against him stating that he was innocent and has been falsely implicated in this case; he had come to the court, on the day of incident alongwith Neelam Hizra since he used to assist her in the case as he was also prosecution witness in the case of Zareena murder case; he heard the sounds of gunshots and there was stampede as a result the actual assailant ran away and he being present on the spot was falsely implicated; he was forced to make signatures on the blank papers and the recoveries were planted upon him; the witnesses were false and the police has falsely implicated him in order to save themselves because the murder had taken place in the high security court premises. He did not desire to lead evidence in defence. However, lateron his counsel requested to lead evidence in defence on his behalf and accordingly he has examined DW1 Sonia (eunuch) as a defence witness.
7. DW1 Sonia deposed that Neelam deceased was her Guru and she was working with her since 2000; on 28/4/2003, she had come with Neelam to attend a date in court room no. 119 in the case of Zareena murder case; she was witness in the said case and used to attend the court regularly; the accused Shree Gopal present in the court was also witness in that case and he was also attending the said court regularly; they reached the court room no. 119 Tis Hazari, Delhi at 10.30 AM and the matter was to be taken after FIR No 98/03
-::33::- PS: Subzi Mandi lunch; and then at about 2.00/3.00 PM she alongwith other appeared in court room no. 119, court of Shri Rajneesh Bhatanagar, Ld ASJ, Delhi and at about 3.00 PM the date was given; at about 3.00 PM the firing took place in front of court room no. 119 and there was a commotion all around; they saw one personal of large built had fired and the said person went away after throwing the weapon on the floor; after some time police came there and they told the police that Shree Gopal @ Mani Gopal was not assailant who had fired; police did not hear them and they went to hospital but police did not entertain them; police did not pay heed to their talks; after seeing the long tall person firing they raised alarm; after 30 minutes of the incident, she came to know that the police has falsely implicated the accused Shree Gopal @ Mani Gopal for murder of her Guru Neelam.
In her cross-examination by Ld Addl. PP for the State, DW1 stated that they had not made any complaint to any police officer including the ACP or DCP regarding false implication of Shree Gopal @ Mani Gopal by the police. She further stated that she had been coming to the court regularly in the present case and also sitting inside the court room at the time of hearing of this case and voluntarily stated that she had been coming in this case for her evidence. FIR No 98/03
-::34::- PS: Subzi Mandi
8. Accused Gita Hazi in her statement u/s 313 CrPC has denied the allegation of the prosecution stating that she was innocent and falsely implicated in this case and there was no dispute between her and Neelam .
9. Accused Mordhwaj in his statement u/s 313 CrPC had denied the allegation of the prosecution stating that he was innocent and falsely implicated. He has denied the evidence of his being student alongwith accused Shree Gopal @ Mani Gopal in a school stating that he did not know about any such evidence.
10. I have heard Ld counsel Shri R.K. Naseem for accused Mordhwaj who argued that there is no admissible evidence against accused Mordhwaj and the contents of the application of deceased Neelam Ex.PW8/B are not admissible u/s 32 (1) of the Indian Evidence Act. It is further argued that there are no allegation in Ex.PW8/B with regard to the threat if any to deceased Neelam from him and other accused Geeta Hazi. Because the allegation of teasing and the threat to Neelam in the application are against the family members of the accused persons who were facing trial before the court of Shri V.P. Vaish the then Ld ASJ,Delhi in which the deceased was also a formal witness and accused Shree Gopal @ Mani Gopal was also prosecution witness in the said case. It is further contented FIR No 98/03
-::35::- PS: Subzi Mandi that the disclosure statement of accused Shree Gopal Ex. PW2/J is not admissible against the accused Mordhwaj and Geeta Hazi as the same is hit by the section 25 of the Indian Evidence Act. Ld counsel has referred and relied upon State of Gujrat vs. Mohd Atik and others, JT 1998 (3) SC 60, wherein it was held that section 10 of the Indian Evidence Act provides that where there is reasonable grounds to believe that two or more person had conspired together to commit an offence "any thing said, done or written by anyone of such person in reference to the common intention" is a relevant fact that it is well neigh settled that section 10 of the Indian Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made " in reference to their common intention". In other words, a post-arrest statement made to a police officer, whether it is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Indian Evidence Act.
11. It is further argued that evidence of PW16 principal of the school where accused Mordhwaj and accused Shree Gopal had FIR No 98/03
-::36::- PS: Subzi Mandi studied together many years ago does not establish the conspiracy by them in the present case because there is no evidence to the effect that both these accused persons had ever met in near future after their being in school together and preceding the incident, hence the circumstance of both these accused being student together is not sufficient to prove that they were conspirators.
12. The contention of the Ld Addl. PP for the state in that regard is that the contents of complaint Ex. PW8/B made by deceased to the police is relating to the circumstances leading to her death and is admissible u/s 32 (1) of the Indian Evidence Act. Ld Addl. PP for the state further contended that the evidence of PW16 is admissible against both the accused persons and had established the fact of they being conspirators because no suggestion was given to the said witness about the correctness of the school certificate etc proved by him; even no suggestion was given to SI Sanjay Bhardwaj in that regard.
13. Shri Anupam Sharma Ld counsel for accused Geeta Hazi argued that the prosecution has pressed into service Kallandra Ex.PW12/B dated 24/6/2002, u/s 107/150 CrPC showing the differences between the group of accused persons with the group of deceased Neelam before the present incident. It is argued that PW17 Gopal in his cross-examination had admitted that there had been FIR No 98/03
-::37::- PS: Subzi Mandi no differences between the two groups and they were residing peacefully and the proceeding u/s 107/151 CrPC had taken place long ago where after they had settled the dispute among themselves and the Kallanadra Ex. PW 12/B was already compromised. Hence, it is argued that Ex. PW12/B does not establish the differences/disputes between the two groups so as to establish previous enmity between them and motive for murder of deceased Neelam. It is further contented on behalf of accused Geeta Hazi that there is nothing in the complaint Ex.PW8/B regarding threat from Geeta Hazi to deceased Neelam because in the said complaint the deceased Neelam has allegedly named the relative of the accused persons and not the accused who were teasing her and were threat to her security. It is further contended that PW17 Gopal has deposed that Ex. PW8/B was not signed by deceased Neelam. It is further contended that PW8 who has exhibited the complaint Ex.PW8/B has stated that Ex.PW8/B does not bear his signature or writing which shows that he has never acted upon on the said complaint which was marked to him for necessary action and Ct.Nand Kishore had not been sent for the security of the deceased. It is further contended that there is no mention of complaint Ex.PW8/B in the rukka Ex.PW2/A which shows that the complaint Ex.PW8/B has been manipulated later on by SI Sanjay Bhardwaj. FIR No 98/03
-::38::- PS: Subzi Mandi Even SI Sanjay Bhardwaj who was allegedly aware of Ex.PW8/B as he has received the same and assigned the same to SI Baldev Singh PW8, has not mentioned the same in his endorsement Ex.PW22/A of rukka Ex.PW2/A. This fact shows that till the registration of the case there was no such complaint Ex.PW8/B made by Neelam and the same is a procured and manipulated document having no evidentiary value. It is, therefore, argued that there is no admissible evidence against accused Geeta Hazi, hence, she be acquitted.
14. Ld Counsel Shri Anurag Jain, advocate for accused Shree Gopal @ Mani Gopal has assailed the prosecution case while arguing that :-
PW2 HC Ajit Singh on whose statement the case FIR has been registered is the star witness of the prosecution. Ld Counsel argued that this witness has not witnessed the occurrence as he had reached subsequently on the spot from the court of Ld District & Sessions Judge, Delhi where he was posted as Personal Security Officer.
Ld Counsel has given following reasons in support of his arguments:-
(a) PW2 has deposed that he had heard thunder of fire which shows he was not present at the time of firing because had he been present at the time of occurrence, he FIR No 98/03
-::39::- PS: Subzi Mandi would have intervened immediately after the first shot and would not have waited and allowed the accused to cause bullet injury to Ct. Nand Kishore
(b) Difference of two minutes can make a lot of difference. HC Ajit might have reached the spot subsequently.
Neither had Ct. Ajit nor SI Sanjay Bhardwaj has rushed the injured to hospital because admittedly the deceased was rushed to hospital by Inspector Surender Sand who might have taken sufficient time to reach Tis Hazari,Delhi on the spot as he has received the message of firing in Tis Hazari on wifeless when he was posted as SHO Civil Lines. This shows HC Ajit had not reached the spot till the injured was rushed to Hospital.
(c) PW2 is a planted witness because the case has been registered on his statement Ex.PW2/A which was recorded after about 3 hours of the incident and as such the same has been manipulated.
(d) Examination-in-chief of PW2 HC Ajit is contradictory to his statement Ex.PW2/A. Because in his
statement he has stated that he saw the accused firing the deceased but the said fact is not stated by him in his examination-in-chief.
(e) Delay of 3 hours 15 minutes of registration of the
FIR No 98/03
-::40::- PS: Subzi Mandi
case after the incident is not explained by the prosecution.
(f) Reaching of the Crime Team on the spot at 3:30P.M. Within 30 minutes shows there is manipulation in the rukka.
(g) All articles allegedly seized from the spot were sealed on the spot even before the registration of the FIR and SI Sanjay Bhardwaj has himself carried out investigation without registration of the FIR and has mentioned the FIR number on the seizure memo on these documents and there is no explanation in that regard by him as to how the FIR number find mentioned on these documents.
(h) PW3 SI Ajay Kumar Incharge of the Mobile Crime Team who has reached the spot at 3:25 P.M has not stated that HC Ajti Singh was also present on the spot when he reached there. He has simply stated that SI Sanjay Bhardwaj Incharge of Police Post Tis Hazari,Delhi has met him when he reached on the spot. Similarly, PW4 Omkar Nath Pandey, member of the Crime Team has stated nothing about the presence of HC Ajit Singh on the spot.
(i) PW6 Inspector Surender Sand who has reached on the spot and removed the injured to hospital has not stated that HC Ajit Singh was also present on the spot. FIR No 98/03
-::41::- PS: Subzi Mandi (j) PW5 Ct. Nand Kishore who is allegedly injured in
the shooting by accused has deposed that HC Ajit reached when accused had already injured him (Ct.Nand Kishore) which shows that HC Ajit has not seen the accused firing at the deceased and Ct. Nand Kishore.
(k) The presence of HC Ajit Singh has not been shown in the site plan and PW8 ASI Baldev Singh has also not stated that HC Ajit was present on the spot. All the alleged Eye Witnesses has given different version about presence of PW2 HC Ajit Singh on the spot.
(l) The seizure memo Ex.PW2/D and other documents Ex.PW2/C and Ex.PW2/D and their preparation on the spot is not free from doubt because the name of the witness ASI Baldev Singh is written in different hand writing .
(m) Tampering of the case property is not ruled out. It was the duty of the Investigating Officer to deposit the case property as early as possible and there is no evidence to show that as to when the case property was deposited in the malkhana because the MHC (M ) has not examined to prove the said fact.
(n) One independent public witness PW17 Gopal did not support the prosecution case as he has categorically stated FIR No 98/03
-::42::- PS: Subzi Mandi that the accused Mani Gopal @ Shree Gopal was not the person who had fired at deceased Neelam.
(o) The presence of DW1 Sonia (eunuch) on the spot is established and further she had seen the occurrence of the crime and has also explained the presence of the accused on the spot because he had been appearing as a witness in Zareena murder case which was being tried in court room no. 119 and on the said date the bail application of one of the accused persons was heard. The evidence of DW1 is not assailed in cross-examination and she has established that the accused was falsely implicated despite their repeated request to the Police stating that the accused was not involved in the incident of firing.
(p) No fingerprints of the accused was found on the pistol which shows that the accused has not used the pistol allegedly recovered from the spot at the time of the incident. There is no other scientific evidence against the accused so as to link him with the alleged offence.
(q) The DW1 has denied the suggestion regarding complaint Ex. PW8/B given by deceased to the police. Therefore, presence of Ct. Nand kishore as being deputed to protect the deceased is not established and for that reason the FIR No 98/03
-::43::- PS: Subzi Mandi testimony of PW5 Ct. Nand Kishroe is not reliable.
15. Ld counsel for accused Shree Gopal @ Mani Gopal therefore vehementally argued that the presence of both the eye witnesses i.e PW2 and PW5 on the spot at the time of alleged occurrence has not been established beyond reasonable doubt. Their evidence is not reliable so as to link the accused with the offence alleged. The deposition of DW1 is trustworthy and reliable and there is no reason to discard and dis-believe her testimony which has established that the accused was innocent and has been falsely implicated.
16. Ld Addl. PP for the State has further submitted that the deposit of the case property in the malkhana has been duly proved by PW23 HC Yogender Singh who has been examined u/s 311 CrPC. Regarding the presence of the eye witnesses on the spot the Ld Addl. PP for the State has argued that the presence of PW2 HC Ajit and injured witness PW5 Ct. Nand Kishore has been duly established and prosecution has proved its case by direct evidence and the testimony of these witnesses has nowhere been assailed in cross-examination. The complaint Ex. PW8/B has been proved and the same is admissible u/s 32 (1) of the Indian Evidence Act and the prosecution has succeeded in proving the conspiracy by all accused person for committing murder of deceased Neelam. Ld Addl. PP for FIR No 98/03
-::44::- PS: Subzi Mandi the State therefore stated that all the accused be convicted for murder of Neelam Hizra. Ld Addl. PP for the State further argued that the case against Shree Gopal @ Mani Gopal stands proved beyond any reasonable doubt u/s 307 IPC and Section 27 Arms Act also. Hence, the Ld Addl. PP for the State submitted that accused Shree Gopal @ Mani Gopal be convicted for the said offences also.
17. I have considered the rival submissions made at bar and gone through the evidence on record. In order to bring home the guilt of the accused persons the prosecution was required to establish that all the accused persons had entered into a criminal conspiracy to commit murder of Neelam Hizra and in persuasion of that conspiracy the deceased was murdered by accused Shree Gopal @ Mani Gopal. The prosecution was further required to establish by evidence the presence of the two eye witnesses PW2 HC Ajit and PW5 HC Nand Kishore on the spot at the time of firing by accused Shree Gopal @ Mani Gopal as a result Neelam Hizra died and Ct.Nand Kishore sustained bullet injuries and HC Ajit had escaped from the bullet injuries which has left a black spot on his shirt and caused minor bruises on his chest.
18. Let us scrutinize the testimony of the prosecution witnesses to know whether the prosecution has succeeded in establishing the above facts beyond reasonable doubt.
FIR No 98/03
-::45::- PS: Subzi Mandi
19. Criminal conspiracy between the accused persons:
Ld Addl. PP for the State contended that accused Shree Gopal @ Mani Gopal has committed murder of Neelam Hizra in conspiracy with accused Geeta Hazi and Mordhwaj. In order to establish the charge of criminal conspiracy against all the accused persons the prosecution has pressed into service the deposition of PW16 Rameshwar Singh who has proved the admission form/school leaving certificate of accused Shree Gopal and accused Mordhwaj as Ex. PW16/A, Ex. PW16/B, Ex. PW16/C and Ex. PW16/D respectively. He has proved the relevant entry in the admission register of Govt. Boys Senior Secondary School no.1 Najafgarh as Ex.PW16/E and Ex.PW16/F. Ld Addl. PP for the State argued that accused Mordhwaj being known to accused Shree Gopal since the school days had contacted him to murder Neelam Hizra. Ld Addl.PP for the State further argued that the disclosure statement of accused Shree Gopal Ex. PW2/B and disclosure statement of accused of Mordhwaj Ex. PW21/H are admissible in evidence u/s 10 of Indian Evidence Act against all the three accused persons to prove the charge of criminal conspiracy against them. Ld counsel for the accused persons in that regard contended that the disclosure statements of both these accused persons are not admissible u/s 10 of the Indian Evidence Act because these are post-arrest statements made to a FIR No 98/03
-::46::- PS: Subzi Mandi police officer and are not the statements of the conspirators made during subsistence of common intention as between the conspirators and therefore does not fall within the ambit of section 10 of the Indian Evidence Act. It was further contended on behalf of accused persons that the disclosure statement of Shree Gopal @ Mani Gopal Ex. PW2/J was not admissible against him as well as against accused Mordhwaj and accused Geeta Hazi because the same was hit by section 25 of the Indian Evidence Act. The case relied by the Ld defence counsel i.e JT 1998 (3) SC 60 (Supra) is relevant. I agree with the Ld defence counsel that the disclosure statement of accused Modhwaj and accused Shree Gopal are not admissible to prove the charge of conspiracy as the same does not fall within the ambit of section 10 of the Indian Evidence Act.
20. Another evidence which prosecution is relying to prove the charge of criminal conspiracy is the copy of the Kallandara u/s 107/151 CrPC Ex. PW12/B. The said kallandra is dated 24/6/2002 in which accused Geeta Hazi and deceased Neelam hizra were parties opposite to each other. Ld counsel for accused Geeta Hazi has argued that the kallandra Ex. PW12/B does not prove enmity between accused Geeta Hazi and deceased Neelam hizra because admittedly the said kallandra was compromised and no dispute was left between them. I find force in the arguments of Ld counsel in FIR No 98/03
-::47::- PS: Subzi Mandi that regard and there is nothing in that kallandara to establish that accused Shree Gopal has fired at deceased Neelam hizra in conspiracy with accused Geeta Hazi. Another evidence relied by the prosecution to establish the charge of criminal conspiracy is the complaint of the deceased made to Incharge police post Tis Hazari, Delhi on the fateful day which has been proved as Ex. PW8/B. In the said complaint the deceased has alleged threat to her security from the brother and relatives of accused Geeta Hazi and Mordhwaj. The Ld defence counsel has argued that the said complaint is a manipulated and fabricated document because the independent public witness Gopal PW7 in his cross-examination admitted that deceased Neelam had not signed the complaint Ex. PW8/B. It is further contended that the complaint Ex. PW8/B is not proved as per Indian Evidence Act because PW8 who has proved the same had admittedly stated that the said complaint is not bearing his signatures/ writing which shows that he has never dealt with the said complaint and the story of the prosecution that SI Sanjay Bhardjwaj had marked the said complaint to PW8 for necessary action is proved to be false. Ld counsel further argued that the complaint Ex. PW8/B has been fabricated after registration of the case because in case the complaint was there before the actual incident occurred, it should have been mentioned in the rukka. FIR No 98/03
-::48::- PS: Subzi Mandi Further, if the complaint was received and was brought in the knowledge of SI Sanjay Bhardwaj, he should have mentioned it in his endorsement Ex. PW22/A. Ld defence counsel strongly contended that the complaint Ex. PW8/B cannot be pressed into as an admissible piece of evidence because the prosecution even failed to establish that the same was ever signed by the deceased Neelam hizra.
21. Ld Addl. PP for the State on the other hand contended that the complaint Ex. PW8/B was admissible u/s 32 (1) of the Indian Evidence Act because the contents of the same are relating to the circumstance leading to death of complainant deceased Neelam hizra. Ld counsel for accused persons on the other hand argued that nothing is mentioned in the said complaint regarding the threat to the life of deceased Neelam hizra at the hand of the accused persons. For that reason same is not admissible as dying declaration u/s 32 (1) of the Indian Evidence Act. I have gone through the said complaint Ex PW8/B. The contents of the saids complaint are such which does not establish the conspiracy between accused persons to commit murder of deceased Neelam hizra through accused Shree Gopal @ Mani Gopal. The title of the complaint itself states "Threat from the brothers and relatives of accused Dharampal, Geeta, Mordhwaj and others , to Ms Neelam, Gopal and others". There is FIR No 98/03
-::49::- PS: Subzi Mandi force in the arguments of Ld defence counsel that the said complaint is talking about the threat from the brother and relatives of accused persons and does not speak about the ingredient of criminal conspiracy among the accused persons to eliminate deceased Neelam Hizra.
22. Ld Addl. PP for the State on the other hand argued that the conspiracies are not hatched in open as the same are secretly planned and the same can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence. Ld Addl. PP for the State has relied upon the case of E.K. Chandersenen Vs. State of Kerala, AIR 1995 SC 1066 .
23. In order to satisfy myself whether the prosecution has succeeded in proving the charge of conspiracy, I would like to refer the law laid down by Apex Court in V.C. Shukla v. State, 1980(2) SCC 665 wherein it was held that :-
" to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when take together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, FIR No 98/03
-::50::- PS: Subzi Mandi by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offences in furtherance of the alleged conspiracy.
24. On analysing the evidence on record and the arguments made at bar, I am of the considered opinion that the prosecution has not brought on record sufficient evidence to establish meeting of minds of the accused persons resulting into ultimate decision taken by them as per conspirators regarding committing the murder of deceased Neelam by accused Shree Gopal. The evidence brought on record by the prosecution in that regard as discussed above is found to be inadequate for connecting accused Mordhwaj and Geeta Hazi with the commission of crime of criminal conspiracy and the subsequent murder of deceased Neelam Hizra by accused Shree Gopal.
25. Presence of eye witnesses on the spot:
The main contention of the Ld counsel of accused Shree Gopal @ Mani Gopal was that the prosecution has tried to prove its case on the basis of direct evidence of PW2 HC Ajit Singh and PW5 Ct. Nand Kishroe. Ld counsel has argued that PW2 HC Ajit Singh is a planted witness who has reached on the spot after hearing the FIR No 98/03
-::51::- PS: Subzi Mandi thunder of fire and was not present at the time of alleged firing at deceased Neelam because he was supposed to be on duty in court room no. 301 where he was posted as PSO of Ld District and Sessions Judge, Delhi. It was argued that the distance between room no. 301 and the place of incident near court room no. 119 Tis Hazari Court,Delhi was admittedly about 400 yards consisting of 443 stairs. Ld defence counsel therefore argued that HC Ajit has come on the spot after the actual incident of firing had taken place and he has been planted as an eye witness. Ld defence counsel further argued that had he been present on the spot his presence must have been noticed by other witnesses who reached on the spot subsequently and participated during investigation on the spot. It is argued that no witness except Ct. Nand Kishore and SI Sanjay Bhardwaj has stated that the PW2 HC Ajit Singh was found by them on the spot. It was further argued that even the testimony of PW5 Ct.Nand Kishore shows that HC Ajit had reached on the spot after the bullet was already fired on deceased Neelam Hizra because PW5 Ct. Nand Kishore deposed that he was hit at thigh by the bullet as a result he fell down and in the meantime HC Ajit came there and grappled with the accused. Ld counsel argued that this deposition of Ct. Nand Kishore shows that the bullet had already been fired upon deceased Neelam Hijra and Ct. Nand Kishore has already FIR No 98/03
-::52::- PS: Subzi Mandi sustained bullet injury and thereafter HC Ajit Singh might have reached on the spot.
26. PW2 HC Ajit Singh has deposed as under :-
" On 28/4/2003 at about 3.00 P.M he was posted as Head Constable at police post Tis Hazari of Police Station Subzi Mandi; on that day he was office PSO of Shri J.P.Singh, Ld District & Sessions Judge, Delhi; on that day he was coming towards police post from the first floor of Tis Hazari and when he reached near room no. 119, Tis Hazari Courts, Delhi he heard a thunder of firing of a bullet and he saw the accused Shree Gopal @ Mani Gopal who was firing bullet with a pistol on an eunuch. He further deposed that the incident took place in the gallery of staircase near room no. 119; a Ct.Nand Kishore of Police Post Tis Hazari grappled with the accused; the accused also hit bullet on the leg of Ct. Nand Kishore who sat down while holding his leg; he immediately rushed towards the accused but he pointed his pistol towards him but he apprehended him and snatched his pistol; in the meantime, SI Sanjay Bhardwaj, Incharge of Police Post Tis Hazari came from the side of Central Hall; he handed over the pistol to SI Sanjay Bhardwaj and remained holding the accused; the injured was revealed as Neelam Hizra who was removed to the hospital by SHO, Inspector Surender Sand; injured Ct. Nand Kishore was removed to hospital by Ct. Aman Kumar.
He further deposed that when he snatched the pistol from the hand of the accused, the fired cartridges hit on his chest and black spot occurred on his uniform/shirt and the uniform was handed over to the SHO who had sealed the shirt in a parcel with his seal of RS and the same was taken into possession vide memo Ex. PW2/H; he has also proved the disclosure statement of accused as Ex.PW2/J; He has also identified his shirt as Ex.P6 and the uniform shirt was having a black spot on the left side of the shirt near the shoulder and chest and he stated that he was wearing the shirt at the time of occurrence when he apprehended the accused." FIR No 98/03
-::53::- PS: Subzi Mandi
27. The fact that PW2 HC Ajit Singh has sustained bruises on his chest because the fired cartridge has narrowly touched him stands proved by the testimony of PW15 Dr. Rajender Kumar who has medically examined him vide MLC Ex. PW15/A and found bruise 1 cm X 0.5 cm (2) over the left side of the chest abut 5 cm below culvical lateral aspect. There is nothing in the cross-examination of PW2 HC Ajit Singh so as to assail his deposition regarding witnessing accused Shree Gopal @ Mani Gopal firing at deceased Neelam and also causing bullet injury to Ct. Nand Kishore. Even if, the contention of Ld defence counsel wherein he has relied upon the testimony of PW5 Ct. Nand Kishore is believed to be true, HC Ajit Singh had reached on the spot and grappled with the accused and wrestled free a pistol from the hand of accused Shree Gopal @ Mani Gopal. Admittedly, the distance between the place of posting of PW2 and place of occurrence is 400 yards consisting of 443 stairs, therefore, it is not possible for him to reach the spot within such a short period after hearing thunder of fire and to grapple with the accused and to wrestle free a pistol from his hand. The deposition of PW2 Ajit supported and corroborated by PW5 Ct.Nand Kishore and PW22 SI Sanjay Bhardwaj has established the presence of HC Ajit Singh on the spot at that time of firing of bullets by accused Shree Gopal @ Mani Gopal at deceased Neelam hizra and also causing FIR No 98/03
-::54::- PS: Subzi Mandi bullet injury to Ct. Nand Kishore who had been deputed to protect the deceased Neelam hizra as she had complained about threat to her security by making a complaint Ex. PW8/B in the police post Tis Hazari, Delhi before the incident had taken place which has resulted into her death. I do not find any force in the arguments of Ld defence counsel to the effect that Ct. Nand Kishore had stated that HC Ajit was seen by him after he had sustained injury in his leg and had fallen down. In such a situation when the accused had fired at deceased Neelam hizra for whose protection PW5 Nand Kishore was present on the spot, it was not expected from him to look all around as to who was present and what the persons present on the spot were witnessing. Only PW2 Ct. Ajit Singh was competent to state about the occurrence seen and witnessed by him on the spot. PW2 Ajit Singh has successfully with stood the test of the cross-examination and his testimony is trustworthy and reliable.
28. Presence of PW5 Ct. Nand Kishore another injured eye witness to the incident also stands established beyond any reasonable doubt because he had sustained bullet injury in his leg when he tried to save the deceased and grappled with the accused. The relevant portion of his deposition is reproduced as under:-
"On 28/04/2003 he was posted as constable at Police Post Tis Hazari, Delhi and on that day he was posted as Security Officer (SO) to Neelam Hizra for his protection vide DD No.22 of Police Post Tis FIR No 98/03
-::55::- PS: Subzi Mandi Hazari; he went to the court room no.119, Tis Hazari Courts of Shri V.P.Vaish, Ld ASJ where murder case of Zareena Hizra was pending and fixed for that day and after hearing at about 3.00P.M, he alongwith Neelam Hizra and her other associates left the court room no.119; accused present in the court i.e accused Mani Gopal (correctly identified) fired three bullets from a pistol on the person of Neelam Hizra; he tried to save her and grappled with the accused; the accused had hit bullet from a short distance; when he was grappling the accused he hit a bullet from his pistol on his right thigh as a result he fell down and in the meantime HC Ajit came there who had also grappled with the accused and snatched his pistol from his hand; name of the accused was revealed as Mani Gopal and in the meantime SI Sanjay Bhardwaj, Incharge of Police Post Tis Hazari had reached there; Neelam Hizra was injured completely and SHO Police Station Civil Line Surender Sand removed her to a hospital. He further deposed that he was also removed to the Trauma hospital by Ct. Aman Kumar of DAP 3rd Battalion where he was operated upon and his statement was also recorded; his pant of uniform also had the gunshot mark and the same was taken into possession by the concerned doctor and handed over to the police. He has correctly identified the pistol Ex. P1 stating that it was the same with which the accused had hit bullets on his thigh and also on the person of Neelam Hizra. He has also identified his uniform pant Ex. P7 (which was having a cut marks on the point of thigh) and stated that he was wearing the same at the time of occurrence."
29. The presence of PW5 Ct. Nand Kishore on the spot also stands established from the deposition of PW8 SI Baldev Singh who has stated that he had sent Ct. Nand Kishore for protection of Neelam on the basis of complaint Ex. PW8/B dated 28/4/2003. Even PW11 Ct. Satish Kumar who was working as DD writer in police post Tis Hazari on 28/4/2003 and was on duty from 8.00 AM to 8 .00 PM FIR No 98/03
-::56::- PS: Subzi Mandi has stated that at about 12.40 noon he had received a written complaint from Neelam and accordingly deputed Ct. Nand Kishore for her protection and made his departure entry vide DD no.22 Ex.PW11/A He has also deposed that he placed the said complaint Ex. PW8/B of Neelam before Incharge, Police Post Tis Hazari, Delhi SI Sanjay Bhardwaj after diaring the same at serial no. 621. PW22 SI Sanjay Bhardwaj has fully supported and corroborated these witnesses regarding receiving of complaint of Neelam at 12.40 PM and marking the same to SI Baldev Singh for necessary protection. SI Sanjay Bhardwaj deposed that deceased Neelam had signed the complaint Ex. PW8/B by writing in her handwriting at point- B and he had then directed Ct. Nand Kishroe to accompany Neelam for her protection to the court. He further deposed that at about 3.00P.M when he was present in Central hall, Tis Hazari court, Delhi he heard sounds of firing from the Sessions side of Tis Hazari and rushed towards that side and when he reached near the stair case adjacent to court room no. 119, he found Neelan bleeding and shot, lying on the ground; Ct.Nand Kishore who was sitting on the floor nearby holding his bleeding leg and HC Ajit was having overpowered accused Mani Gopal @ Shree Gopal and he (HC Ajit) had wrestled free a pistol from accused Mani Gopal with which he had shot Neelam.
FIR No 98/03
-::57::- PS: Subzi Mandi
30. Thus, the presence of both these eye witnesses on the spot at the time of firing of bullet by accused Shree Gopal @ Man Gopal at deceased Neelam and their witnessing the firing of bullet upon deceased Neelam by accused Shree Gopal @ Mani Gopal stands established beyond any reasonable doubt. Their above deposition in that regard is found to be natural, coherent and worthy of reliance because they have successfully with stood the test of cross- examination.
31. PW17 who was declared hostile even in his cross- examination by Ld Addl. PP for the state has also supported the prosecution case on some important and material points. He has deposed that the incident had taken place near stairs and the person who had shot Neelam had done so from a point blank range. He further stated that Neelam had moved an application before the incident for providing security and on the date of incident, a police constable was present for the purpose of her protection. He has not even categorically denied the apprehension of assailant by the police Constable and sustaining of bullet injury by the Constable deputed for protection of Neelam. He has simply stated that he cannot say about that. When the Ld Addl. PP for the state pointed out towards the accused Shree Gopal @ Mani Gopal this witness stated that the said accused had not short at Neelam in his FIR No 98/03
-::58::- PS: Subzi Mandi presence. Thus, he has not even categorically denied that it was not the accused who had shot deceased Neelam. Thus, presence of PW2 HC Ajit and PW5 Ct. Nand Kishore on the spot at the time of incident stands established even by the deposition of PW16 also. In his cross-examination by Ld counsel for accused Shree Gopal @ Mani Gopal he has denied the suggestion that the person who had shot Neelam had thrown away his pistol on the spot. For these reasons, I do not find any force in the contention of Ld defence counsel that the independent witness PW17 has completely turned hostile and did not support the prosecution case.
32. The fact that the deceased Neelam hizra had died because of sustaining of bullet injury on 28/4/2003 at 3.00 PM outside the court room no. 119 Tis Hazari,Delhi is not in dispute. DW1 Sonia (eunuch) has also confirmed in her deposition the incident of firing and sustaining of bullet injury by deceased Neelam. Her deposition has also further proved the presence of accused Shree Gopal @ Mani Gopal at the time of occurrence. The defence stated by her does not seems to be probable. It is not believable that a man of strong built after firing and killing deceased Neelam, injuring Ct.Nand Kishroe would simply throw away the weapon of offence and ran away from the spot. It is admitted case of the defence through the deposition of DW1 that about 15 disciples of deceased FIR No 98/03
-::59::- PS: Subzi Mandi including DW1 were present at the time of occurrence. There is nothing on record to show that anyone of them had tried to intervene the assailant who caused bullet injury to their Guru and then threw away the weapon and successfully escaped from the spot. These 15 disciples present on the spot has not even tried to see as to what had happened to their deceased Guru after the incident. Rather, the DW1 according to her deposition started convincing the police on the spot that the firing was not done by accused Shree Gopal @ Mani Gopal. There does not seems to be a slight substance of truth in the deposition of DW1 so as to believe her testimony and contention of Ld defence counsel that accused Shree Gopal had not fired at deceased Neelam and Ct. Nand Kishroe at the time of occurrence. Nothing was suggested to the prosecution witnesses including PW2 and PW5, the material Eye witnesses about the defence taken by accused Shree Gopal @ Mani Gopal in his statement u/s 313 Cr.P.C. and also the defence taken in the testimony of DW1 Sonia. The defence taken by the accused Shree Gopal @ Mani Gopal in his statement u/s 313 CrPC is found to be an afterthought and the same is liable to be rejected.
33. The fact that the deceased Neelam has died because of bullet injury sustained by her stands proved from the deposition of PW13 Dr. Ashok Jaiswal who has conducted the postmortem on her FIR No 98/03
-::60::- PS: Subzi Mandi body vide his report Ex. PW13/A. In his opinion regarding death, all the injuries were anti-mortem in nature, caused by firearm projectile fired from close range. Death was due to haemorrhagic shock consequent to the injuries. Injury no. 1, 5 ,7 was/were individually/collectively were sufficient to cause death in ordinary course of nature.
34. The injury on the body of Ct. Nand Kishore because of his sustaining gunshot stands established from the deposition of PW14 Dr.Satender Kumar who has medically examined him vide MLC Ex.PW14/B.
35. From the above discussion I am of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that accused Geeta and Mordhwaj had entered into criminal conspiracy with accused Shree Gopal @ Mani Gopal for committing murder of deceased Neelam hizra. Both these accused are accordingly acquitted. However, evidence on record has sufficiently proved the charges against accused Shree Gopal @ Mani Gopal by establishing beyond reasonable doubt that on 28/4/2003 at about 3.00P.M in the gallery of first floor near court room no. 119 Tis Hazari Delhi he has fired bullets upon Neelam with a pistol and had committed her murder by intentionally causing her death. It is further proved beyond reasonable doubt that accused Shree Gopal FIR No 98/03
-::61::- PS: Subzi Mandi @ Mani Gopal on 28/4/2003 at about 3.00 PM in the gallery of first floor near court room no. 119 Tis Hazari Court, Delhi had fired bullet with a pistol upon Ct. Nand Kishore and caused gunshot injury to him with an intention and under such circumstances by doing an act to cause death of Ct. Nand Kishore. It is further proved that accused Shree Gopal @ Mani Gopal on 28/4/2003 at about 3.00PM in the gallery of first floor near court room no,.119 Tis Hazari Court, Delhi was found in possession of a loaded pistol, one bullet in its chamber and three bullet in its magazine and two bullets in his pocket of his wearing pant and has used the said pistol, a firearm in the commission of murder of Neelam Hizra and also caused bullet injury to Ct. Nand Kishore and has used the said firearm in contravention of provision of Arms Act 1959.
36. For the above reasons, the prosecution has succeeded in proving its case against accused Shree Gopal @ Mani Gopal. I therefore, hold him guilty and convict him for the offence under section 302 IPC, 307 IPC and section 27 of Indian Arm Act, 1959. ANNOUNCED IN THE OPEN COURT ON 27/5/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI`