Professional Documents
Culture Documents
In the Court of Sh. Rakesh Kumar Yadav, Addl. Sessions Judge-cumSpecial Judge (CBI) Haryana at Panchkula.
Case No.6 of 2008.
Code No.203600011972013
Filing No.1197/2013.
Date of Institution: 19.08.2008.
Date of Decision: 23.10.2015.
CBI
Versus
JUDGMENT :Stately, accused Vijay Bhardwaj S/o late Sh. Khushi Ram R/o
H.No. 829, Sector-14, Gurgaon was a property dealer and was
maintaining his shop-cum-office on Mehrauli Road, Gurgaon. The
accused was having business relations with Rajbir Singh, ACP in Delhi
Police (since deceased). On 24.03.2008, ASI Pradeep Kumar (PW-16)
received a telephonic call from accused, who informed him that he had
shot a person (ACP Rajbir Singh) dead and wants to surrender. On
statement of ASI Pradeep Kumar (PW-16), FIR was registered vide FIR
117 dated 24.03.2008 (Ex.PW-16/1). Thereafter, ASI along with Shri
taken into police possession by the Investigating Officer Shri Krishan Dev
(PW-17) vide seizure memo (Ex.PW-16/3). The shoes and shirt was
converted into separate parcels, which was sealed by the Investigating
Officer. Thereafter, the aforesaid police officials again went to the place of
occurrence i.e. office-cum-shop of accused Vijay Bhardwaj.
2.
stained newspaper (Ex.P-135 to Ex.P-138), one broken calculator (Ex.P134), two pieces of bullet lead (Ex.P-70), one chair (Ex.P-63), two glass
tumblers (Ex.P-67 to Ex.P-68), two soda water bottles (Ex.P-64 & P-65),
one packet of Lehar Namkeen (Ex.P-66) were taken into police
possession vide seizure memo
Rajbir Singh ACP Delhi Police was taken into possession vide seizure
memo (Ex.PW-17/3), handbag of deceased Rajbir Singh was taken into
possession vide seizure memo (Ex.PW-17/5) and belongings of Rajbir
Singh were taken into possession vide seizure memo (Ex.PW-17/1). The
scene of crime was preserved by the Investigating Officer till arrival of
Ballistics team. It is also a case of the prosecution that Sub Inspector
Krishan Dev (PW-17) when earlier had entered into the office of accused
and found a man lying on the floor. He brought out wallet from right side
back pocket of the trouser worn by the deceased in presence of police
officials. On opening the wallet, one Identity Card having photograph of
Rajbir Singh ACP Delhi and another Identity Card of Special Crime
Branch Delhi and another Identity Card of Government of India Ministry
M.D.
Forensic
Medicines
General
Hospital,
News provided CD of interview of accused to the police as (Ex.PW17/12). During investigation, the case property was sent to FSL
Madhuban for Ballistic opinion and in this regard report dated 02.06.2008
(Ex.PW-60/17) was received by Investigation Officer as well as report
from FSL (Ex.PW-56/1) Madhuban Serology Department was also
received during investigation the material got recovered. At the instance
for the offences punishable under Section 302 Indian Penal Code and
25/27 of the Arms Act to which he pleaded not guilty and claimed trial.
EVIDENCE OF PROSECUTION
13.
Jasbir Singh son of Shri Ram Niwas. This witness has deposed that
accused was known to him for the last about three years. He came into his
contact through one Naresh Kumar. He used to invest money in property
dealing with accused. Others also used to invest money with accused and
the accused used to return the money after a period of 15 days to one
month. On one occasion, he had invested money to the tune of 7.00 lacs
with accused in 2-3 properties. He had also invested a sum of 12.5 lacs
in a plot through Vijay Bhardwaj. When he demanded back his money, a
receipt Ex.PW1/1 was executed by accused and the same was handed
son of Shri Mam Chand. This witness has deposed that he was running a
business of property under the name and style of Vaishno Properties,
Gurgaon and he along with Jasbir Singh were partners. He had advanced
16.00 lacs to accused for purchase of a plot and it was agreed that profit
will be equally divided between him and accused. Accused had given a
blank cheque as security or guarantee. The accused returned 10.00 lacs
to him within 2 months. On the day of incident, he had given a blank call
to the accused and Accused sent SMS that he will call him within 10
minutes. The accused gave him a call at about 3.00 pm informing that he
was out of station, he will get the sale deed executed and return the
money. An amount of 6.00 lacs was outstanding against the accused as
principal sum. On 25.03.2008 he came to know that accused had
borrowed money from others. The blank cheque Ex.PW2/2 signed by
accused was handed over by him to CBI vide memo Ex.PW2/1 and the
amount of cheque was 20 lacs.
15.
of Shri Amar Singh Malik. This witness has deposed that he knows
accused since 2000. He came into contact with accused at the residence of
his brother-in-law (Sadhu) Bhupender Singh who was in the business of
the accused could not locate any suitable plot for 2-3 months. He was
demanding return of money and the accused assured to return the same.
On one occasion, in the month of December 2007 when he went to the
office of accused and found him in a happy mood, on inquiry the accused
told that ACP Rajbir Singh is posted in Special Cell as written in Times of
India Newspaper. The accused also told that he knew ACP Rajbir Singh
since he was studying with him. On 24.03.2008 accused told him to
return the amount. He tried to contact and also sent SMS to him. On this
Vijay Bhardwaj informed him that the money would be returned within a
week or 10 days positively. On 25.03.2008 he came to know from TV
telecast that ACP Rajbir Singh was murdered by accused.
16.
Yadav son of Shri Amar Singh. This witness has deposed that he was
dealing in transport business under the name and style of Amar travels
since 1996 as was also doing car's business. He knew Vijay Bhardwaj.
Vijay Bhardwaj was dealing with the property business and his office was
located near his house. Accused used to take money from him for
investing in his property business ranging from 1.00 lac to 5.00 lac and
used to return the money after 4-5 days. Lastly in the beginning of 2008,
accused borrowed 4 lacs from him. He did not return the money and
kept on putting off him on one pretext or the other. He do not know about
the reputation of the accused. Lastly on 21st and 22nd March, 2008, he had
asked the accused to return the money and the accused assured he would
return the amount within 2-3 days. Accused used to say that ACP Rajbir
Singh was his friend and told him if there is any problem, he can help him
out.
17.
son of Shri Chhatbir Singh. This witness has deposed that he was
working as a property businessman under the name and style of Jatin
Properties for the last 4-5 years. Earlier he was running business of car
sale and purchase in the name of JMD Motors, Delhi Road, Gurgaon. He
knew accused for th last 3-4 years through Mr. Jaggu of Ekta Motors.
Accused had borrowed an amount of 5.00 lacs from him with the
assurance to return the same. He returned 3.5 lacs but did not return rest
of the amount. He had contacted accused Vijay Bhardwaj on his telephone
No.9811444999.
18.
son of Shri S.P.Sharma. This witness has also deposed that he was
property dealer, knows accused Vijay Bhardwaj for the last 15-20 years.
Prasad Gupta son of Shri Mukut Bihari Lal. This witness has deposed
that he was working as Accoounts Assistant in HUDA, Division No.1,
Sector -15, Part II, Gurgaon. The witness was declared hostile and was
cross-examined by the Special Public Prosecutor.
21.
son of Shri Jaswant Singh. This witness has deposed that his brother-inlaw Shri Jagpal Singh's office under the name and style of M/s Ekta
Motors is located at Mehrauli Road,Gurgaon. He was running business
with Sanjay Bhardwaj. Sanjay Bhardwaj brother of Vijay Bhardwaj
accused. He learned from a newspaper that ACP Rajbir Singh has been
murdered and Vijay Bhardwaj has been arrested by the police. This
witness was declared hostile and was cross-examined by the Special PP.
22.
Kumar son of Daya Chand. This witness has deposed that he was
running business of property dealing under the name of Riya Properties
and knows accused from last 8-10 years. He knows Ramesh Malik. The
accused had purchased a Santro Car from from Ramesh Malik for a
consideration of 50,000/- plus installments through him. He was
interested to purchased a plot and advanced 2.00 lacs as earnest money
to accused, however, the deal was cancelled and the accused returned
money to him. This witness was declared hostile and was cross-examined
by the Special PP.
23.
Katariya son of Daulat Ram. This witness has deposed that he was
Sarpanch of Village Basai and was contractor of liquor shop. He was not
having financial dealings with accused. This witness was declared hostile
and was cross-examined by the Special PP.
24.
eyebrows.
2.
3.
the scalp. There was crater like hole in the frontal area underlying
injury No.1. A fissured fracture starting from here extends backwards and
then to the right, it ends at about 7 cm above the right ear area. The skull
showed a circular hole underneath the injury No.3. There was extradural
haematoma. The left cerebral hemisphere was lacerated in the area of
crater hole. There was blood filled communicating track between injuries
No.1 and 3. Frontal base of the skull was fractured.
The board had given following opinion:
Death in this case was due to shock and hemorrhage as
a result of cranio-cerebral damage consequent upon firearm injuries.
Injury No.1 & 3 were firearm entry and exit wounds respectively and
caused by smooth bored firearm ammunition discharge at close range
(most likely tight contact). The injury No.2 was grazed wound.
He also deposed after the postmortem following were
handed over to the police:
1.
2.
3.
4.
5.
6.
injury and death was few minutes to one hour and between death and
postmortem within 24 hours. This witness has proved postmortem report
as Ex.PW12/1. Pictorial diagram showing seat of injuries as Ex.PW12/2.
Inquest report signed by the board as Ex.PW12/3. Skiagrams as
Ex.PW12/4 to Ex.PW12/11. This witness has further proved application
Ex.PW12/12 moved by police and report of Dr. S.K.Sharma as
Ex.PW12/13. This witness has annexed affidavit Ex.PW12/A containing
material facts of postmortem examination.
25.
The
prosecution
has
further
examined
PW-13
Dr.
As per
complaint it was disputed wherein one plot was sold by accused Vijay
Bhardwaj to the complainant after receipt of 32/33 lacs and committing
of cheating by accused. This application was handed over to him for
enquiry. Both parties were called in Police Station. Vijay Bhardwaj had
agreed to return the amount to the complainant and sought time for
making payment. During aforesaid enquiry he was having mobile number
of both the parties i.e. complainant and Vijay Bhardwaj. When payment
was not made by the accused Vijay Bhardwaj, FIR No.390 dated
19.12.2007 under Section 420, 467, 468, 471 of IPC was lodged at PS
Civil Lines, Gurgaon against Vijay Bhardwaj accused. He conducted raid
the meantime, Shri Tahir Hussain SHO PS Civil Lines, Gurgaon, ACP
City Gurgaon Shri Ram Kalan and Shri Rakesh Arya DCP West reached
there. Information was received that accused Vijay Bhardwaj had reached
P.S. City Gurgaon. He along with Shri Krishan Dev, HC Sher Singh
reached P.S. City Gurgaon where accused was arrested in this case.
At the instance of the accused one car make Verna having
registration number issued by the Registration Authority, Delhi was
recovered along with 11,320/- in cash, one mobile set and the
same was taken into possession by the police vide memo Ex.PW16/2.
Cash and mobile Nokia-73 were kept in to sealed parcels vide memo
Ex.PW16/2. From there, they reached P.S. Civil Lines along with the
accused and shirt and the shoes of the accused stained with blood were
taken into possession by IO Shri Krishan Dev vide recovery memo
Ex.PW16/3. The same was attested by him. The case property was
converted into sealed parcels. From there they again went to the place of
occurrence and IO took into possession, the blood stains some newspaper,
one broken calculator, two pieces of bullet lead, one chair, two glasses,
two soda water bottles, one packet of Lehar Namkeen etc. vide seizure
memo Ex.PW16/4 and the same was attested by him as well as HC Sher
Singh and Shri Tahir Hussain SHO P.S.Civil Lines Gurgaon. Except
glasses and chair, the case property was converted into sealed parcels and
recovery memos Ex.PW16/2 to Ex.PW16/4 were prepared and signed by
SI Krishan Dev. Later on they came to know that dead body recovered
29.
accused as Ex.P56. The cloth in which the shoes were wrapped as Ex.P57
vide seal impression Ex.P57/1 to Ex.57/9. This witness has also proved
shirt as Ex.P58 recovered from accused Vijay Bhardwaj and the cloth in
which it was sealed as Ex.P59 and the sealed impression as Ex.P59/1 to
Ex.59/5. This witness has further proved plastic container as Ex.P62 in
which two pieces of lead were there Ex.P60 and Ex.P61 and the same
were taken into possession from the place of occurrence. This witness has
further proved recovery of memo Ex.P17/3 vide which mobile phone
Nokia 6300 stained with blood was taken into possession and proved the
Nokia Phone as Ex.P62. This witness has further proved recovery of
memo Ex.PW16/4 and the same was converted into a sealed parcel. The
blood was lifted from the glass lying on the table, which was also
converted into a sealed parcel. He has also proved chair as Ex.P63, which
was taken into possession. The chair has a torn portion from where the
lead of the bullet was recovered by the Ballistic Expert at the scene of the
crime. This witness has also proved other material objects recovered from
the place of occurrence as Ex.P64 to Ex.P68. He has also proved
recovery of memo
containing 25,000/-, one mobile Nokia 6300, one comb, two keys and
some medicines, one pen and photocopy of D.L. of Basant Kumar, one
statement about principal return and piece of paper having some accounts,
piece of paper with lines having date 30.06.2007 written and the same
were taken into possession vide memo Ex.PW17/5 and was signed by
HC Leelu Ram and ASI Jawahar Singh. The aforesaid articles were
identified to be belongings of deceased Rajbir Singh by HC Leelu Ram
and ASI Jawahar Singh. The bag containing articles proved as Ex.P69.
This witness has further deposed that he had prepared scaled
site plan as Ex.PW15/A through Manoj Kumar Draftsman and recorded
the statement of witnesses Dharamvir Sharma, Editor Zee News Gurgaon.
This witness also deposed that accused Vijay Bhardwaj suffered
disclosure statement Ex.PW16/5 and in pursuance of his statement
accused led the police party to the place and got recovered one revolver in
the bushes with his own hands. It was found that the chamber of revolver
contained two empty cartridge cases and two live cartridges and the same
were sealed. The aforesaid property were taken into possession vide
memo (Ex.PW-16/6). The sketch of the revolver was prepared. This
witness identified the revolver as Ex.P71 and sketch of revolver as
Ex.PW16/7. The rough site plan as Ex.PW16/8. This witness has proved
the case property recovered as Ex.PW71. He has also deposed on return,
the case property was deposited with the MHC of Police Station. He also
deposed that he wrote an application to the office of DCP West to know
about real owner of the revolver. The said application along with covering
letter was sent to Kanpur Ordinance Factory to know about the real owner
of the revolver. He had recorded the statement of servant of accused Vijay
Bhardwaj namely Krishana Kumar under Section 161 Cr.P.C. He has
deposed that accused Vijay Bhardwaj was produced in the court of Illaqa
Magistrate, Gurgaon and police remand was sought which was accorded
for three days.
On 28.03.2008, he interrogated accused Vijay Bhardwaj, who
suffered disclosure statement Ex.PW17/6 and got recovered his
confession note running into 3 pages. The attested copy is Ex.PW17/8.
The same were taken into police possession and were sealed in an
envelope. This witness has proved recovery of material as Ex.P76 to
Ex.P85. All the aforesaid material were taken into possession vide memo
Ex.PW17/9 attested by HC Satish Kumar and Constable Rajesh Kumar.
He also deposed the case property was deposited with MHC PS Civil
Lines, Gurgaon. This witness has also deposed that on 30.03.2008, he
produced the accused Vijay Bhardwaj before Illaqa Magistrate and was
sent to judicial custody. On 31.03.2008, Constable Satish Kumar
produced 14 negatives and 28 photographs of the place of occurrence
which are Ex.P86 to Ex.P127. This witness has deposed that EHC
Kanwar Singh produced one CD containing the videography of the
proceedings of the postmortem examination on the dead body of the ACP
Rajbir Singh. The CD was taken into possession vide memo
Ex.PW17/10. He produced CD as Ex.P128.
On 05.04.2008, he had received report from Kanpur from the
office of DCP
Shri Manoj Shikarwar JWM/CT that Revolver No. A1031 is one among
the 100 revolvers issued to Second Battalion HAP Madhuban Karnal and
was working as a bar man in Hotel Park Plaza at Gurgaon and he has seen
Vijay Bhardwaj and Rajbir Singh coming to Hotel Park Plaza in the bar.
He used to serve them the whisky. Both of them used to take black label.
On one occasion, Vijay Bhardwaj accused came alone. It was Indiapakistan Match and he enjoyed Whisky while sitting in the bar. India won
the match and he had opened 'Champagne'. He has proved statement
Ex.PW18/A.
31.
witnesses from the place of occurrence was taken into possession vide
seizure memo Ex.PW16/4.
32.
Pal son of Shri Mohan Lal. This witness has deposed that on
25.03.2008, he was posted in Special Staff Sector 10, Gurgaon as
computer Incharge. Mr. Sanjeev Kumar Inspector was the Incharge of the
said Special Staff. He further deposed that call details statements
Ex.PW20/2 to Ex.PW20/5 pertaining to mobile phone No. 9873919999
(three pages) of ACP Rajbir Singh, accused Vijay Bhardwaj
(9811444999),
Singh No.16 CIA Sector-17, Gurgaon. This witness has deposed that on
25.03.2008, he was posted as MHC at Police Station Civil Lines,
Gurgaon. On that day, SI Krishan Dev after returning to police station at
about
5.30
accompanied with accused Vijay Bhardwaj after producing him before the
Illaqa Magistrate came and handed over case property which he had kept
in safe custody in malkhana after making entry in register No.19. In this
regard, this witness has proved DDR No.17 as Ex.PW21/A and entry in
register No.19 as Ex.PW21/A-1. This witness has further deposed that
on 26.3.2008, SI Krishan Dev returned to the police station after
conducting further investigation and handed over one revolver of .32 bore
along-with two live cartridges and two cartridge cases/empty shells to him
and same was kept by him in safe custody. In this regard, DD entry No.20
dated 26.03.2008 was proved as Ex.PW21/B and entry in register No.19
as Ex.PW21/B-1. This witness has proved that on 28.03.2008, SI Krishan
Dev returned to the police station after conducting further investigation
of the above-stated case and one confession note of the accused alongwith
7 letter pads papers and visiting cards were deposited with him and he
kept the same in safe custody in the malkhana. He has proved the entry
entry No.19 dated 28.3.2008 in this regard in the DDR register as
Ex.PW21/C and the relevant entry in the register No.19 as Ex.PW21/C1. This witness has further proved that on 4.4.2008, ASI Kanwar Singh
deposited one video cassette of the videography prepared at the time of
conducting the post-mortem examination on the dead-body was deposited
with him and he kept the same in safe custody in the malkhana. He
proved relevant entry No.28 dated 4.4.2008 in this regard in DDR
36.
Rajinder
and he identified his signatures on the same. He further deposed that the
cassette handed over by him to SI Krishan Dev was without any touching.
38.
No. 9799, South East posted at PS Greater Kailash-I, Delhi, who has
deposed that he joined Delhi police in the year 1995 and in the year 200506, he was posted in Security Police and was deputed as one of the PSOs
with Shri Rajbir Singh, ACP Delhi and he used to keep one pistol with
him during the period he used to remain on duty with Rajbir Singh. He
further deposed that he had visited the residence of Rajbir Singh and had
accompanied office of Vijay Bhardwaj. He further deposed that prior to
the occurrence of this case, he had accompanied Rajbir Singh ACP on
duty and had accompanied to Park Plaza Bar. He further deposed that the
money which was received by ACP Rajbir Singh from Vijay Bhardwaj in
the polythene bag, the same was taken by ACP Rajbir Singh to his
residence Andrews Ganj by putting the same in a briefcase. He identified
accused Vijay Bhardwaj.
39.
No.431 Traffic, KHC Circle, New Delhi, who has deposed that he joined
Delhi police on 21.10.1986. He further deposed that in the year 1993, he
was posted in 9th Battalion for security duty and he was deputed as PSO
to ACP Rajbir Singh, Delhi police in the month of January, 2007.
40.
New Delhi. This witness has deposed that he joined Delhi police on
7.12.1989. He was deputed as driver with ACP Rajbir Singh in the year
1999. During the month January or February 2006, ACP Rajbir Singh was
transferred to Special Operation Squad Sunlight Colony, near Ashram
Chowk Delhi. Accused Vijay Bhardwaj used to meet ACP Rajbir Singh
frequently. The office of Vijay Bhardwaj was situated at Mahrauli Road,
Guargaon. ACP Rajbir Singh used to visit the office of accused Vijay
Bhardwaj frequently. On 24.3.2008, he accompanied ACP Rajbir Singh to
police HQ and in the afternoon session they returned to the office. At
about 6.45/7.00 pm ACP Rajbir Singh directed him to accompany him to
Gurgaon and he along with PSO Lillu Ram drove him to Gurgaon. An
escort of one HC and three constables also accompanied them. ACP
Rajbir Singh directed Lillu Ram to ask accompanying escort to stay at
IFFCO chowk. At about 8.00/8.15 pm they reached at the office of Vijay
Bhardwaj and parked their vehicle in front of the office of Vijay
Bhardwaj. After some time servant of Vijay Bhardwaj came and told
them that ACP Rajbir Singh has directed them to park the vehicle near the
petrol pump and then he parked the vehicle at nearby petrol pump. He
further deposed that at about 9.25/9.30 pm SI Davender Singh of SOS
crime branch asked about the position of ACP Rajbir Singh from him on
his mobile phone and it was told by Davender Singh ASI that ACP Rajbir
Singh was not picking his phone. Then Davender Singh gave a message
that ACP Rajbir Singh be asked to talk to DCP Crime Sh.Anil Shukla.
Then he went to the office of Vijay Bhardwaj, but there was no response
from inside the office, then he noted down the number of Vijay Bhardwaj
which was written/displaced at the entrance door of the office of accused
Vijay Bhardwaj and then he contacted Vijay Bhardwaj on that mobile
phone and asked as to convey the message to ACP Rajbir Singh to contact
DCP Crime. Then the accused Vijay Bhardwaj asked them to go to the
residence of ACP Rajbir Singh situated at Sushant Lok and that he along
with ACP Rajbir Singh is coming there. He along with Lillu Ram came to
the vicinity of Sushant Lok where residence of ACP Rajbir Singh is
situated and waited for him there. At about 11.00 pm SI Davender Singh
contacted him on his mobile phone and asked why ACP Rajbir Singh has
not contacted DCP. SI Davender Singh directed them to reach the place
where they had left ACP Rajbir Singh. He informed SI Davinder Singh
that ACP Rajbir Singh is not picking his mobile phone and that Vijay
Bhardwaj had asked him to reach at Sushant Lok but none of them have
turned up at the residence of ACP Rajbir Singh. In the meantime, SHO
police line contacted him on his phone and PSO Lillu Ram and asked
them to reach at the place where they had left ACP Rajbir and they
immediately reached the office of accused Vijay Bhardwaj where they
saw a huge crowd. Till that time they were not aware that ACP Rajbir
Singh had been murdered. PSO Lillu Ram immediately contacted the
escort and called them to arrive at Vijay Bhardwajs office-cum-shop. He
further deposed that on one occasion Vijay Bhardwaj had given money in
a polythene bag to hand over the same to ACP Rajbir Singh, but he do not
know the exact figure of amount. ACP Rajbir Singh never carried his
weapon with him to the office of Vijay Bhardwaj. He used to keep his
pistol in his briefcase and used to leave the same in the vehicle with the
PSO. Five-seven days prior to the festival of Holi in the year 2008 Rajbir
Singh ACP had visited the office of Vijay Bhardwaj at about 1.00/1.30
pm. While on the way he told Vijay Bhardwaj on his mobile in anger that
he is coming to his office and will see him. ACP Rajbir Singh stayed at
the office of Vijay Bhardwaj for about one and half hour. ACP Rajbir
Singh had a private office at C42 Lajpat Nagar II, New Delhi and he used
to sit in his office for long hours. He identified accused Vijay Bhardwaj
present in the Court today who was a frequent visitor to the office of ACP
Rajbir Singh and vice-versa. His statement was recorded.
41.
Sachdeva son of late Shri Daya Nand Sachdeva, who has deposed that
he was having distributorship of Hutch mobile company at Gurgaon and it
remained with him for the year 1998 to 2002. He further deposed there
were about 150 dealers with whom he used to carry on his business of
distributorship. He further deposed that one of the dealer was M/S Cellco.
Shri Anshul Maheshwari was the Proprietor of the said firm M/S Cellcom.
On the receipt of consumer application form from M/S Cellcom, the
company used to issue cell numbers. He had received an application form
from Mr. Sunil Modi, who was the then his employee which was collected
by him from M/S Cellco for issuance of mobile cell number. He further
deposed that the company had issued mobile No.9811444999. He further
deposed that in the year 2002, there was no much requirement of
verification of the particulars of the applicant for issuance of the SIM
card. The application form used to accompanying photograph of the
applicant with ID proof.
42.
Sharma son of Shri Toder Kumar, who has deposed that he know
accused Vijay Bhardwaj for the last more than 20 years. He further
deposed that on 24.3.2008, he received a telephonic call from Sanjay
Bhardwaj brother of the accused and asked him to come his residence. He
inquired from him as to what was the urgency he told him to come
immediately, then he went to his house and saw the mother, sister and
Bhabhi of the accused were found weeping. After some time, he received
a telephonic call from accused Vijay Bhardwaj on his mobile that when he
had gone to his shop then he saw the dead body of Rajbir Singh and he
further told him that he was apprehending that he may not be killed by the
police in a false encounter and that he want to surrender before the police.
This witness was declared hostile at the request of learned PP for the CBI
and was allowed to be cross-examined by him.
44.
Sagar son of Shri Tarsem Lal, who has deposed that he is running the
business of sale of auto parts in the name and style of M/S Dharam Auto
Engineering Works since 1961. He was dealing in the business of property
dealing and the name of his concern was M/S Vijay and Associates and
his office was situated opposite State Bank of India Mahrauli Road,
Gurgaon. In the month of September, 2007, he contacted Vijay Bhardwaj
accused as he was interested in purchasing some property. Thereafter, an
agreement was executed between them for the purchase of two plots
situated at Vyapar Sadan Opposite Groovie Hotel, Mahrauli Road,
Gurgaon. He had paid a sum of 35.5 lacs as earnest money to the
accused against the purchase of said two shops. The agreement was
signed by him and accused Vijay Bhardwaj. He had agreed to return
double of the amount of earnest money in case he failed to execute the
sale deed in his favour. Thereafter, he consulted one Mr. Ashok Bhatia
who was his known and was dealing in the business of property. He told
him that the said two plots have already been sold by Vijay Bhardwaj to
somebody else. Then, he contacted the accused and asked him to return
his money and he also conveyed to him that he has committed fraud with
him and has cheated him but the accused did not return his money.
Thereafter, when the accused failed to return his money inspite of his
repeated requests, then he Shri Mohinder Lal Commissioner of Police
Gurgaon and moved a complaint against the accused and the said
complaint was sent to SHO PS Civil Lines, Gurgaon and a case under
Sections 420,467,468,471 IPC was registered against accused Vijay
Bhardwaj vide FIR No.390 dated 19.12.2007 in Police Station Civil
Lines, Gurgaon. His statement was recorded by the CBI.
45.
The
prosecution
has
further
examined
PW-37
Cellular Ltd. A26/5, Mohan Cooperative, Industrial Area, New Delhi and
proved call details records as Ex.PW39/5 to Ex.PW39/7 of mobile phone
Nos. 981181899,9990050000 and 9891781059.
52.
FGMO Union Bank of India, Gole Market, New Delhi. This witness
was posted as Branch Manager in Union Bank of India, Jharsa Road,
Sector-31, Gurgaon. This witness has proved letter Ex.PW41/1 issued by
him to the IO of CBI. He has proved that vide aforesaid letter, he handed
over record Ex.PW41/2 (9 pages) which were statement of saving
account No.4744 under Banker's Book Evidence Act. He has also handed
over certified copy of account opening form Ex.PW41/3 (6 pages),
statement of account of aforesaid account Ex.PW41/4 (4 pages). He
deposed that this account was of accused and was regular. He also
deposed that from September, 2006, maximum number of cheques issued
by accused Vijay Bhardwaj to different payees were dishonoured and
amount of cheques was in crores. He has also deposed that accused Vijay
Bhardwaj was also maintaining current account in his bank.
54.
collecting the call details record as well as SMS', he took into possession
the call details and the record of SMS' from Sheesh Pal vide seizure
memo already exhibited as Ex.PW20/1 and Ex.PW20/6 and the same
was given to SI Krishan Dev and both the seizure memos bear his
signatures. The aforesaid call details and the SMS were made over to him
by EHC Sheesh Pal 719 of the Special Staff who was deputed by him to
have the call details and SMS from the Cyber Cell. His statement was
recorded during investigation by the CBI Officer.
55.
No.9811321030
in
the
name
of
one
shri
Jaswinder,
Customer agreement form in the name of Atul Goel for the mobile
No.9899999900 including photo copy of form No.60, photo copy of
customer declaration for local address, photo copy of driving license of
Atul Goel and photo copy of postpaid tariff plan enrollment form of above
ssaid mobile number duly attested by him contained in 5 pages which is
collectively exhibited as Ex.PW43/11.
56.
Nodal Officer, Bharti Airtel Ltd. D-184, Okhla Phase-I, New Delhi.
This witness has deposed that he is working as Nodal Officer in the
above-said company since May, 1997. He handed over certified copies of
call details record of mobile No. 9818981809 of one Shri Jitender Kumar
and mobile No.9818325454 of Pardeep Kumar Dagar pertaining to the
period 1.1.2008 to 31.3.2008 vide production-cum-seizure memo dated
9.6.2008 Ex.PW44/1 which bears his signature. He also handed over cell
ID chart of the company, copies of subscriber forms and ID proof
documents through production-cum-seizure memo dated 9.6.2008 which
is now Ex.PW44/2 and bears his signature. The bunch of call details
Kumar Garg son of Late Shri M.L.Garg, resident of B-256, Suraj Mal
Vihar, Delhi. This witness has deposed that he was Chartered Accountant
by profession and was doing share trading business since 1996. Deceased
ACP Rajbir Singh was known to him since 2006. His office was at Lajpat
Nagar, Delhi on second floor on rent @ 40,000/- per month. The said
house was in the name of Shri Mam Chand Yadav, father of deceased ACP
Rajbir Singh. ACP Rajbir Singh wanted to invest money in the share
trading. He had invested money in the name of Ms. Rekha Sengar, his
father Mam Chand Yadav and his wife Narmada Yadav and in the name of
his company M/S Ever Spring Trading Company. On one occasion, ACP
Rajbir Singh called him in his office and on showing inability, he
threatened him with dire consequences but next morning felt sorry. The
witness was declared hostile and was cross-examined by learned Special
PP for the CBI.
58.
Thakur son of Late Shri S.R.Thakur, who has deposed that in the year
2008, he was working as Senior Special Correspondent in TV Channel
Zee News. He had joined the investigation of this case. He identified
memo Ex.PW46/1 dated 16.6.2008 which was prepared in front of him
and it bears his signature. Dharamvir Sharma, who was also working as
reporter in Zee News for Gurgaon and he was reporting to him. On the
day of incident, the exact date he do not remember, Dharamvir Sharma
had informed him about one interview he had taken and later-on, one CD
in original was seized from Dharamvir Sharma by CBI in his presence.
The other CD said to be the copy of the same was also seized for
investigation purpose. The CD was also displayed in the office and
transcript Ex.PW46/2 was also prepared in his presence which bears his
signature.
59.
March, 2006 to January, 2008. The company was having its office at C42, Lajpat Nagar, New Delhi. The company was having two Directors
namely Vinod and Ms. Rekha Sengar. The said company was under
effective control of ACP Rajbir Singh. Vinod was friend of ACP Rajbir
Singh and Ms. Rekha was his second wife. Vinod left the company in the
year 2007 and he was removed by ACP Rajbir Singh (since deceased) and
thereafter, the company almost stopped. He knows accused Vijay
Bhardwaj. Accused Vijay Bhardwaj used to visit office of ACP Rajbir
Singh situated at C-45, Lajpat Nagar, New Delhi. They used to meet at
second floor. In his presence also, accused Vijay Bhardwaj visited in his
office and in the absence of ACP Rajbir Singh. On both the occasions,
accused Vijay Bhardwaj handed over cash to him amounting to 30.00
lacs approx. and same was handed over to him by ACP Rajbir Singh. This
witness was declared hostile.
60.
son of Shri Chander Singh resident of Hari Nagar, New Delhi. This
witness has deposed that he was partner in company of ACP Rajbir Singh.
Deceased Rajbir Singh invested money in the business and asked him to
make his father as partner. One Om Parkash was partner in the firm. He
had resigned from the firm in the year 2007. This witness was declared
hostile and was cross-examined by learned Special PP for the CBI.
62.
made three times by the same person from same mobile number. On third
occasion, the caller told that murder of police personnel had taken place.
He has asked the caller to surrender in front of media and wants to tell
something. He asked him to meet him at Signature Tower at Gurgaon.
Thereafter, he contacted his office situated at Noida and as per advise of
rest officers, reported the matter to the police and thereafter, he contacted
Shri Sumit Kumar, ACP DLF Gurgaon and requested him to reach
Signature Tower within the area of South City Chowk. Thereafter, he
called other press colleagues namely Sanjay Tyagi of UNI and Raj Verma
of Aaj Tak and inquired from them if some murder had taken place in
Gurgaon and they stated that they had no such information. Thereafter, no
conversation took place between him and accused Vijay Bhardwaj on
telephone. Accused informed him about his location and he told that he is
about to reach at South City Chowk. Accused told that if he want, then he
could meet him at border. He refused and conveyed that he will meet only
at South City Chowk. Thereafter, he reached South City chowk alongwith
Manoj, Cameraman. On asking, accused Vijay Bhardwaj informed that he
was coming all alone in 'Verna' car. On further asking, accused told that
the murder had taken place by firing. He asked the accused to come out
from car and would reach at Petrol Pump where there were sufficient
lights. He had no other talk with him at that time and he had not disclosed
anything else to him. Thereafter, he again made a call to ACP Sumit and
thereafter reached Petrol Pump by overtaking the car of Vijay Bhardwaj.
He had asked his Cameraman to switch on the camera and further directed
him to keep on the camera running no matter what happened. When
accused Vijay Bhardwaj reached and came out of the car, he started taking
his interview, recorded in CD. When he had asked Vijay Bhardwaj what
has happened and how it happened, accused asked him to take him to
police station first. At his instance, the accused narrated the entire episode
to him first in following manner:ACP Rajbir Bhai Sahab Hain ACP Delhi Police Main Aur
Mera Aur Usaka Paise Ka Lena Dena Tha. He further told
that Kaphi Paise Ka Lain Den Tha. Mujhe Unki Aaj
Payment Deni Thi, Kaphi Pressure Tha Aur Paise Ikhathe
Ho Nahin Rahe The, Wo Bole Main Tere Ko Mar Dunga Aur
Tere Ghar Walon Ko Bhi Kar Dunga.
He has also deposed that accused Vijay Bhardwaj told him that
there was money dealing of 50-60 lacs. While the interview was
continuing, ACP Sumit came there and took away accused Vijay
Bhardwaj. He had taken him away in Wagon-R in front of the camera
itself. On asking, the senior told that ACP Rajbir Singh encounter
specialist. This fact was also confimred by ACP Sumit.
Thereafter, the team went to the office of Vijay Bhardwaj and
found police already present there. There was no light inside the office.
With use of light of Camera, he denied that dead body of well built person
was lying inside office of Vijay Bhardwaj. He had noticed that it was dead
Ashok
this
witness has deposed that in the year 2008, he was posted as Junior Works
Manager, Civil Trade, Small Arms Factory, Kanpur. He has
seen
record. The
Kumar Gupta son of Late Shri Vshaw Nath, resident of Bharti Ganj,
District Rohtas Sasaram, Bihar. This witness has deposed that in the
year 2005, he was employed at Gurgaon in a private company. On
24.3.2008, as usual he attended his duty. At that time, he was in
possession of mobile No.9818981809. Some people used to come to the
office of Vijay Bhardwaj to meet him here. Rajbir Singh came thereafter
PS Amar Colony, New Delhi. This witness has deposed that earlier he
was posted in 3rd Batalion Vikas Puri in the year 1997-98. Thereafter, he
was transferred to SD and remained posted there up to 2004. He remained
posted as Uniform PSO with Shri Rajbir Singh, ACP for about 2 years.
As per rule, he had to accompany the officer for whom he was employed.
Shri Rajbir Singh always like to have another PSOs with him. As and
when called, he used to accompany him. One Civil PSO always used to
accompany Shri Rajbir Singh, ACP. Usually, he along-with other uniform
PSOs accompany the escort. As and when directed any uniform PSO
accompany ACP Rajbir Singh, Shri Rajbir Singh used to visit his house at
Shivaji Nagar, Gurgaon, where his old parents used to reside. He used to
attend office, police Headquarters and courts. He also used to visit
Sushant Lok, Gurgaon, where his house was under construction. Vijay
Bhardwaj accused used to visit his residence. ACP Rajbir Singh might
have been visiting Vijay Bhardwaj. He came to know from news sources
that ACP Rajbir Singh had been murdered by Vijay Bhardwaj. No
encounter had taken place with the criminals in his presence. This witness
has declared hostile at the request of learned PP for the CBI and was
cross-examined by him.
70.
had also examined the specimen writings and signatures which were
marked by him as S-1 to S-5 and S-1/1 to S-3/1 stated to be of Shri Vijay
Bhardwaj and now Ex.PW58/8 to Ex.PW58/12 and Ex.PW58/13 to
Ex.PW58/15. He further deposed that after the careful and thorough
scientific examination of all the standards and disputed writing and
signatures as well as serrations, he had submitted his opinion FSL H
No.08/DOCS-2068 dated 5th June,2008 which is Ex.PW58/16, which runs
into three pages and bears his signature on all the pages. His report
contained the detailed reasons upon which he had formed his opinion. He
further deposed that in his opinion, (i) the standard writings/ signatures
stamped and marked S1 to S5, S1/1 to S3/1 Ex.PW58/8 to Ex.PW58/15
(stated to be of Vijay Bhardwaj) and questioned writings/signatures
marked Q-1 to Q-6 Ex.PW58/1 to Ex.PW58/6 all have been written by
one and the same person; (ii) Based upon the observations (a) the size of
the holes of folders of page No.s 193 to 204 (loose pages) marked R1
Ex.PW58/1 to Ex.PW58/6 and size of the remnants of pages marked R2
against folder of pages No.192, 205 in the register marked R Ex.PW58/7
fit with each other (b) the size of the sheets in folders bearing Nos. 193 to
204, their thickness, tint, UV fluorescence and rulings are similar to that
of rest of the sheets in register marked R, he is of the opinion that the
sheets in the folders bearing Nos. 193 to 204 (Ex.PW58/1 to Ex.PW58/6)
had formed part of the register marked R (Ex.PW58/7).
71.
retd. IPS resident of House No.727, Sector-8, Karnal. This witness has
deposed that on 29th March, 2008, he was posted as Commandant of 2nd
Batalion HAP, Madhuban. He further deposed that on that day,a
confidential letter was received from DCP (West) Gurgaon asking
information regarding .32 bore revolver No.A1031/SAF made. He
checked the record and found that that revolver was issued to Ashok
Kumar Shorean, DSP along with 30 live cartridges on 10th September,
1998 from DGP, Kot Madhuban. He sent the information to the DCP vide
letter Ex.PW59/1 which bears his signature.
72.
Rough
sketch
of
the
place
of
case/bullet
etc.
but
no
more
projectile.
(4) Nitrite was detected from the shirt of accused Vijay
Bhardwaj contained in parcel No.VII.
After examination, the exhibits were resealed alongwith the
original wrappers with the seal of A.D (Ball) FSL (H). His report in this
case is Ex.PW60/17, which bears his signature.
73.
son of late Shri Umar Singh, retd. Inspector CBI resident of Village
& Post Office Karala Delhi. This witness has deposed that in the year
2008, he was posted as Inspector CBI SCB, New Delhi. He was part of
the investigating team which was investigating this case. During
investigation, he had also recorded the statements of witnesses Sanjeev
Kumar, Inspector, Pradeep Kumar ASI, Sheesh Pal Singh HC, Shiv
Kumar HC, Shibu KP Constable, Rajinder Kumar Meena Driver, Jai
Bhagwan HC, Rajiv Mishra, a police official correctly without any
addition and alteration as stated by them.
74.
DSP Interpol CBI New Delhi. This witness has deposed that during
June, 2008, he was posted as Inspector in Special Crime Branch, CBI,
that
he
Nos.9811444999,
had
seized
9873919999,
documents
pertaining
9999998901,
to
9899999900
mobile
and
Section 161 Cr.P.C. correctly without any addition or omission on his part.
76.
Chander Garvan, DSP CBI Special Crime-III, Delhi. This witness has
deposed that in June, 2008, he was posted as Inspector CBI SCB, Delhi.
He received order from the SP, CBI to assist Shri Nirbhay Kumar, the then
Addl. SP CBI in investigation of RC No.4(S)/2008, SCB, Delhi. He
further deposed that during investigation, he recorded the statements of
Shri Ashok Kumar Paul Ex.PW47/1, Shri Vinod Kumar Ex.PW49/1 and
Pawan Kumar Garg Ex.PW45/1. He had recorded the above statements
correctly, without any addition or alteration as stated by them. He had also
correctly recorded the marked portions in Ex.PW47/1, Ex.PW49/1 and
Ex.PW45/1.
78.
Jaitley, Inspector CBI SC-II, New Delhi. This witness has deposed that
he was member of the investigation team of case RC No.4(S)/2008 and he
partly investigated the case as and when directed by the IO Shri Nirbhay
Kumar. During investigation, he recorded statements of Shri Sandeep
Sharma Ex.PW31/A and SI Sat Pal Singh of Delhi Police Ex.PW38/1
correctly as per the narration of the witnesses without any addition or
alteration.
Ex.PW31/A
and
Ex.PW38/1.
He
further
deposed
that
during
Inspector CBI, New Delhi. This witness has deposed that in the year
2008, he was posted as Inspector in Special Crime Branch, CBI Delhi. He
further deposed that he was member of the investigation team and he
recorded the statements of Dr. Mukesh Ram Pal, HC Lillu Ram and
Sanjay Bhardwaj correctly without addition and alteration as told by
them. He also inspected the spot on 3.6.2008 along with other team
members and CFSL CPWD . He proved the seizure-cum-observation
memo Ex.PW62/3. He further deposed that he also got recorded the
statement of Shri Kishan Kumar Gupta under Section 164 Cr.P.C. He
further deposed that the application for getting the same recorded is
Ex.PW67/1 which is signed by him. He also identified Shri Kishan
Kumar Gupta and his signature in Ex.PW65/C.
80.
Dy.SP CBI SC-III, New Delhi. This witness has deposed that in the year
Kumar and recorded their statements as told by them without any addition
or alteration. He also received one Union Bank of India cheque and two
slips regarding return of said cheque as unpaid due to insufficient funds
vide receipt memo Ex.PW68/1 from Mr. Ramesh Chand, which bears his
signature. He further deposed that the cheque NO.149872 dated 10.7.2007
is mark PW68/A and memos of insufficient funds are mark PW68/B and
PW68/C.
81.
had
82.
Nirbhay
informed that HC Sher Singh has collected the opinion and the exhibits of
FSL experts related to this case and accordingly, he was directed to report
to him in the office. The said FSL report and exhibits were seized vide a
of Shri Hari Singh, Chief Librarian, Zee News, Film City Noida. This
witness has deposed that he has brought the recording of case pertaining
SI Office of DCP Special Cell Lodhi Road, New Delhi. This witness has
deposed that no departmental inquiry is pending in their office against
ACP Rajbir Singh (since deceased). He has also brought letter dated
25.3.2015 from Vigilance office of Deputy Commissioner Delhi. He
further deposed that no complaint, application and inquiry was ever
initiated against ACP Rajbir Singh (since deceased). He produced the
relevant record relating to record summoned by him. He further deposed
that the record before the year 2010 has been destroyed and he is deposing
as per the record available from record 2011 onwards. He has also brought
the record pertaining to destruction of record prior to 2010.
trial, it was not disputed by the accused that the dead body of deceased
Dharambir Sharma, a correspondent from Zee News TV. This witness has
deposed that the accused had contacted him and informed him that murder
of ACP Rajbir Singh has been committed in his office and the accused
want to surrender. Thus, it is clear that accused had contacted PW-51
Dharambir Sharma, a correspondent of Zee News. In order to fortify the
aforesaid fact, the prosecution has produced call details of mobile
No.9811444999 which in fact was used by accused. This fact is clear from
the photographs produced by the prosecution that sign board of shop of
accused found mentioned aforesaid mobile number. Thus, the contact of
accused with PW-51 Dharambir Sharma is fortified by record.
91.
human blood and there is no evidence on part of the accused that there
was any chance of staining shoe of the accused by other means. No injury
on the person of accused was found or claimed. Therefore, from the
aforesaid fact, the presence of accused on the scene of crime is
established. He also argued that as per aforesaid report, it is clear that shirt
of accused was found to be stained with gun powder residue and it is
established beyond reasonable doubt that accused in fact used a gun and
this fact clearly establish that the offence was committed only by the
accused. In these circumstances, no different probable opinion can be
framed.
94.
caused by rifled weapon. Thus, it is also clear that deceased died of the
injuries caused by rifled arm .32 bore revolver which was recovered from
the accused.
95.
tried to create a scene that some unknown persons had entered into the
office of accused and chances of deceased being murdered by those
persons may be there. However this fact has not been proved by the
defence by cross-examination or by examining defence witnesses. He also
argued that PW-55 Krishan Kumar, servant of the accused was in toe with
the accused and claimed in his statement that he had seen two persons
entering into office of the accused but this statement of PW-55 Krishan
Kumar is not reliable. If act and conduct of this witness is to be
considered, it is clear that he is inclined to support the accused by all
means. In case this witness found two visitors entering into the office of
the accused, why he did not inform accused is quite strange. Except this
witness, there was no person to say that any one other than the accused
entered into the office of accused who could be instrumental in killing
ACP Rajbir Singh.
96.
not in a position to pay back the money. Being afraid, he hit upon a plan
to eliminate ACP Rajbir Singh. With aforesaid motive, he fired two shots
on ACP Rajbir Singh and caused his death. Therefore, the aforesaid
evidence is sufficient in nature to convict the accused.
97.
no such question was ever asked by any of the material witnesses. Even
though, PW-55 Krishan Kumar Gupta has turned hostile but his statement
is to be seen in its entirety. His statement clearly reveals that he had
improved the version to show that there were chances to visit another
person to office-sum-shop of accused. If statement of PW-55 Krishan
Kumar Gupta is considered, he has deposed that he was instructed by
accused to leave the office. It is quite strange that he could not give any
description of the person, who were allegedly visitor of the shop-cumoffice. It is quite strange that as per statement of this witness, accused had
directed him not to leave the office but he left the office as per his
statement given in the court. This witness has catapulted to support the
accused. Even other wise, this witness has deposed that after taking
permission from the accused, he left the office leaving ACP Rajbir Singh
(since deceased) there. While going, he saw two persons going to the
shop. But strange enough he did not ask any person as to why they have
visited the shop-cum-office of accused. There, they were overpowered by
accused. This witness has lost his credibility. This witness resiled from his
statement given under Section 164 Cr.P.C. The only reason given by him
to resile from his statement is that he was tutored by CBI and was taken in
illegal detention. Therefore, such type of witness could not be believed
regarding the facts deposed by him in favour of the accused.
98.
the fact that accused and deceased were found together in office-cum-
the fact that weapon with which the deceased was shot dead was
recovered at the instance of accused. As per report of Ballistic Expert, the
bullet used which caused death of ACP Rajbir Singh (since deceased) was
fired from the revolver which was got recovered from the accused.
Consequently, the last seen found theory in company of each other is duly
fortified by recovery of weapon used in the crime. Therefore, this
evidence is sufficient enough to convict the accused. Learned PP also
argued that even if last seen found theory does not appeal to the courts the
recovery of weapon at the instance of accused, which was used for the
crime is a scientific circumstantial evidence, which unerringly points
towards the guilt of accused and therefore also on basis of this piece of
that there was no motive available with the accused to commit murder of
ACP Rajbir Singh. He argued that there is not an iota of evidence
available on file, by which it may be inferred by the court that deceased
Rajbir Singh in his lifetime had given money to the accused. PWs
examined in this regard did not support the case of the prosecution.
Statements of PW-2 Purshottam, PW-3 Anil Malik, PW-4 Om Parkash,
PW-5 Jaibir Singh, PW-6 Ashok Kumar, PW-8 Bhagwan Prashad, PW-9
Mahesh Yadav, PW-10 Mukesh Kumar, PW-11 Ramesh Kataria does not
support the case of the prosecution. The aforesaid witnesses were
examined by the prosecution to prove that the accused was in arrears of
money. However, some of the witnesses did not support the case of the
Dev, there was a street light at the place of incident when he was visiting
the office-cum-shop of the accused in the intervening night of 24.03.2008
and thus, he was able to see that blood was oozing from office-cum-shop
of the accused. Contrary to it, other witnesses have deposed that there was
no electricity at that time. This goes to reflect that PW-17 SI Krishan Dev
or PW-16 Pardeep Kumar were telling lies and they were got up
witnesses. He also argued that as per inquest proceedings started at 3.00
a.m. In presence of PW-27 HC Lillu Ram and PW-28 ASI Jawahar Singh.
However, when both of them have appeared in the witness-box, they have
deposed that from midnight to 7.00 p.m. on 25.03.2008, they were in PS
city Gurgaon. This clearly reveals that both of them are got up witnesses.
He also argued that none of the prosecution witnesses have proved a fact
that accused was in arrears. Nothing has been brought on file that after
bouncing of alleged cheque, any suit or criminal complaint was filed. PW51 Dharambir Sharma did not support the case of the prosecution. PW-32
Dharamvir Sagar did not support the case of the prosecution. Both the
aforesaid witnesses were arrayed by prosecution to prove a fact that
accused was in arrears of huge amount. He also argued that statement of
PW-28 ASI Jawahar Singh that Rajbir Singh (since deceased) had given
threat to accused is an after thought improvement because no such fact
found mention in his statement under Section 161 Cr.P.C.
102.
present case is pure concoction. PW-16 ASI Pradeep Kumar has stated
that at about 11.20 pm, he received phone from accused and it was
disclosed by the accused that he has committed murder. But by no stretch
of imagination this witness is reliable. He is a got-up witness and used as
author of FIR. He argued that as per statement of PW-27 Lillu Ram and
PW-28 Jawahar Singh, they came to know about this incident at about
10.30 pm and reached at the place of occurrence within 10-15 minutes
and found police there. If these two witnesses are to be believed, the
police was already having knowledge of commission of crime, much prior
to 10.30 pm. Therefore, the contention of PW-16 ASI Pradeep Kumar that
he received information of commission of crime at 11.20 pm and
thereafter FIR was lodged is pure concoction.
104.
Therefore, the prosecution has come with two versions and consequently,
by the court the version which is favourable to the accused is to be
considered. He also argued that the statement of PW-16 ASI Pradeep
Kumar and PW-17 Krishan Dev Sub-Inspector are so inconsistent with
each other that complete story of prosecution has becomes doubtful. He
further argued that as per statement of PW-16 ASI Pradeep Kumar, at the
time of his visit, he found that there was light in the shop of the accused
which is the place of occurrence and he found a man lying on the floor.
At about 12.40 night, accused Vijay Bhardwaj surrendered in PS City
Gurgaon and subsequently, he was taken into custody by the PS Civil
Lines Gurgaon. As far as arrest of accused is concerned, PW-17 Krishan
Dev Sub-Inspector has deposed that he did not go to Police Station City
Gurgaon in night and went there at 6.00 am and then accused was arrested
by him. Contrary to it, PW-40 Sumit Kumar DSP has deposed that the
accused was apprehended by him and from there he had taken the accused
to place of occurrence and handed over to the police. If the arrest of
accused is false, the place of arrest of accused is false. It is a factor which
leans towards the accused and accused is entitled to benefit of doubt.
105.
by him and from that point of time, the accused was taken to the place of
occurrence and handed over to the police. Contrary to it, PW-17 Krishan
Dev, PW-16
Kumar, the car of accused was taken into possession in evening hours
whereas the statement of PW-17 Krishan Dev Sub-Inspector, the car was
taken into possession at 7.00 am. It is claimed by the prosecution that
shoe of accused was stained with blood which was taken into possession
but strange enough, the car used by the accused was not subjected to any
analysis to unearth that there was any blood-stains in the car. No footprint
of shoe of accused was found in the shop or stains. No mould was taken.
Therefore, the story of shoe of accused being stained with blood is an
afterthought version of the police to create evidence. He further argued
that PW16 ASI Pradeep Kumar has deposed that the recoveries were
affected from the place of occurrence before team of Forensic reached
there whereas PW-17 Sub-Inspector Krishan Dev deposed that recoveries
were affected after arrival of team of scene of crime. Therefore, also the
story of prosecution becomes unreliable.
107.
has claimed that shirt and shoe of the accused were taken into possession
on 25.03.2008 whereas first police remand does not show that any
recovery from the accused was affected. He also argued that alleged
recovery of weapon is from an open place accessible to common public
and recovery from such a place does not inspire confidence. Regarding
recovery of weapon learned defence counsel pointed out that as claimed
by the prosecution the accused had surrendered himself and thus, there
was every occasion to produce the weapon at the time of surrender.
Learned defence counsel pointed that in fact the recovery memo of gun
was prepared on 25.03.2008 by making alteration in recovery memo, it is
shown to have been affected on 26.03.2008. He also argued that PW-16
ASI Pradeep Kumar had deposed that he received numerous calls from
the accused but fact of receiving call was not incorporated in DDR. He
further argued that in view of statement PW-40 Sumit Kumar DSP
Headquarter, the accused was apprehended by him when he was giving
interview to press on 24.03.2008 at about 11.30 pm and from there he was
taken to shop-cum-office and there he was handed over to
the
side of DSP Sumit Kumar at 6.30 am and it was informed that the accused
was present at Police Station City Gurgaon. Learned defence counsel
further argued that there are material omissions in the statement of PW-16
ASI Pradeep Kumar and PW-17 SI Krishan Dev and these material
omissions amounts to material improvement. If the statement of PW-16
ASI Pradeep Kumar is considered in its perspective, it is clear that he had
not visited the place of occurrence at any point of time. The statement
given by him in the court, does not found any reference in his statement
under Section 161 Cr.P.C and therefore, statement of this witness could
not be believed. He also argued as per statement of PW-16 ASI Pradeep
Kumar, the team of Ballistic Expert (scene of crime) reached at the place
of occurrence and thereafter, the case property was seized from the place
of occurrence at 4.00 pm on next day. Contrary to it, PW-17 Krishan Dev
Sub-Inspector and Tahir Hussain SHO (PW-19) reached at the place of
occurrence at about 12.00 midnight and thereafter, seizure was affected.
He also urged that the prosecution has not been able to prove that the
accused ever used car. In light of the aforesaid circumstances, the fact
raises a finger on recovery of revolver in question. Probability is that
alleged weapon of offence was taken into possession from the spot of
murder and subsequently, the documents were prepared to show that
recovery was affected from the accused.
108.
has been led in this regard that accused and deceased were seen alive
together before the incident. Thus, last seen theory fails. He also argued
that the prosecution has not been able to prove beyond reasonable doubt
that the accused and the deceased were seen alive by any witness in
company of each other. The evidence adduced by prosecution is quite
shaky and untrustworthy. To strengthen his arguments, learned defence
counsel relied upon following authorities:
1975 CAR 264 Supreme Court of India Ram Narain, Jaggar Singh &
Ors Vs. State of Punjab; AIR 1976 Supreme Court 1924 Subhash and
Another Vs. State of U.P.; 2015(1) Criminal Court Cases 221 (S.C.)
Mahamadkhan Nathekhan Vs. State of Gujarat ; 2013(1) RCR
(Criminal) 17 Madan Lal and Another Vs. State of Punjab; 2015(3)
RCR (Criminal) 342 Indra Dalal Vs. State of Haryana; 2015(2) RCR
(Criminal) 452 Nagaraj Vs. State Rep. By Inspector of Police, Salem
Town, Tamil Nadu; 2014(3) RCR (Criminal) 744 Prakash Vs. State of
Karnataka; 2015(1) RCR (Criminal) 678 Tomaso Bruno and Another
Vs. State of U.P.
FINDINGS OF COURT
109.
by the parties that he was ACP in Delhi Police. As claimed by the defence,
deceased was an encounter specialist. It is also not disputed that some
special protection was given to him by Delhi Police. This fact is clear
from the statement of PW-26 Constable Shibu, PW-27 HC Lilu Ram, PW28 ASI Jawahar Singh,
Surinder Kumar, PW-35 ASI Surinder Pal and PW-57 Rajiv Mishra.
Aforesaid witnesses were employed in Delhi Police and they were
escorting and giving protection to deceased ACP Rajbir Singh (since
deceased). Thus to my mind, this fact is clear that ACP Rajbir Singh
(since deceased) was availing special status in Delhi Police. No doubt
documentary evidence pertaining to ACP Rajbir Singh (since deceased)
being encounter specialist is not available on file, but the accused himself
has claimed that he was as such.
111.
in shares. This fact is elicited by PW-47 Ashok Pal who has deposed that
deceased was running a company. Likewise, PW-49 Vinod Kumar has
deposed that deceased had business dealings. Thus, from the aforesaid
facts, there is no doubt that deceased in addition to his professional career
as a Police Officer was dealing with various businesses for earning profit.
The deceased was having business relations with accused and this fact is
also proved by various witnesses. Especially, PW-47 Ashok Pal
has
deposed that one occasion accused Vijay Bhardwaj gave Rs.30 lacs to
deceased. The prosecution has examined PW-26 Constable Shibu from
Delhi police. This witness has deposed that ACP Rajbir Singh (since
deceased) and accused Vijay Bhardwaj were visiting each other very
frequently. He has also deposed that he had visited office of Vijay
Bhardwaj along-with Rajbir Singh (since deceased). On one occasion,
accused and deceased had visited the liquor bar and when they came out,
ACP Rajbir Singh (since deceased) handed over to him one polythene bag
which contains money and said money was carried by ACP Rajbir Singh
(since deceased) to his house after putting the same in briefcase. The
prosecution has also examined PW-28 ASI Jawahar Singh. This witness
has also deposed that accused Vijay Bhardwaj and ACP Rajbir Singh
(since deceased) had visited each other very frequently.
112.
balance in the account of accused was less than Rs.10,000/- and some
time it was in three digits only. PW-41 Subhash Chander also proved
another statement pertaining to the bank account of accused Vijay
Bhardwaj which is Ex.PW41/4. This statement of account shows that
accused Vijay Bhardwaj was not having any considerable amount in the
said bank account. Even though, defence has tried to create an impression
that accused Vijay Bhardwaj was fair in dealings but the aforesaid
statement of accounts completely belies this fact. In addition to aforesaid
bank accounts, the prosecution has produced Ex.PW1/1 proved by PW-1
Jasbir Singh. This receipt of earnest money goes to reflect that PW-1
Jasbir Singh has paid Rs.17,50,000/- to accused Vijay Bhardwaj. On
20.03.2008, there is no evidence adduced by the accused that this amount
was paid back by him to PW-1 Jasbir Singh. The prosecution has also
examined PW-30 Shambir Singh, Advocate from the Gurgaon who has
also proved that the accused was facing a criminal case under Section 138
of Negotiable Instruments Act and this also adds to the evidence led by
aforesaid witnesses. From the aforesaid facts, it is clearly established that
the accused Vijay Bhardwaj was running in losses and his business was
not going smoothly.
114.
Kumar, PW-35 ASI Surinder Pal, PW-47 Ashok Pal, PW-57 Constable
Rajiv Mishra have categorically deposed that deceased ACP Rajbir Singh
(since deceased) was frequently visiting the office of accused. The
prosecution has also examined PW-3 Anil Malik, Assistant Executive
Engineer in Civil Works Sub Div., Rewari HQ, Gurgaon and this witness
has also deposed that the accused claimed before him that ACP Rajbir
Singh (since deceased) was known to him. The prosecution has also
examined PW-47 Ashok Pal who has deposed that on one occasion in his
presence accused Vijay Bhardwaj gave Rs.30,00,000/- to deceased ACP
Rajbir Singh (since deceased). Likewise, PW-49 Vinod Kumar has
deposed that ACP Rajbir Singh (since deceased) has business dealings.
This fact is also supplemented by PW-55 Krishan Kumar was servant of
accused. This witness has deposed that the accused was doing business of
property dealing and deceased ACP Rajbir Singh was frequently visiting
the office of accused Vijay Bhardwaj. From the aforesaid facts established
on file, it is not disputed rather proved that deceased Rajbir Singh was
doing property business through accused Vijay Bhardwaj. The reason of
taking help of Vijay Bhardwaj for property business was on account of
helplessness of deceased ACP Rajbir Singh (since deceased) because he
was a public servant. Thus, I have no hesitation to hold that in previous
years, accused Vijay Bhardwaj and ACP Rajbir Singh (since deceased)
were having business relations with each other. The kind of relations were
that ACP Rajbir Singh (since deceased) was provding money in lakhs to
had taken interview of accused Vijay Bhardwaj. As per transcript PW46/2 duly signed by PW-51 Dharamvir Sharma, PW-46 Neeraj Thakur, it
can be safely concluded that accused Vijay Bhardwaj has admitted that he
was having money dealings with ACP Rajbir Singh (since deceased) from
Delhi Police and ACP Rajbir Singh (since deceased) was exerting
pressure upon him and due to pressure he has tried to commit suicide but
he could not commit suicide as he was consoled by his family. He has also
stated in interview that the debt was increasing day after the other and he
was not in a position to pay back debt to ACP Rajbir Singh (since
deceased) which amounts to Rs.50 lacs to Rs.60 lacs. The reference of
suicide note is duly corroborated by recovery affected by Investigating
Officer. During investigation, suicide note/confession note duly written
by accused Vijay Bhardwaj was recovered from his house. It is mentioned
in the said note that accused Vijay Bhardwaj was in huge arrears of debt
and he was not in a position to pay back the same to his creditors. Out of
the aforesaid creditors, one creditor was ACP Rajbir Singh (RB). The
prosecution has also produced Ex.PW47/2 a letter written by ACP Rajbir
Singh (since deceased) to accused Vijay Bhardwaj. This letter goes to
prove that there were some hot exchanges between accused and deceased
prior to the incident and the same goes to such an extent that ACP Rajbir
Singh (since deceased) wrote a letter. The letter contains apology on part
of ACP Rajbir Singh (since deceased). Consequently, the prosecution has
been able to prove unerringly that the accused was a property dealer and
was in huge arrear of debts. ACP Rajbir Singh (since deceased) one of the
creditor, initially relations between accused and deceased were cordial
which become strained when accused could not gave money back to ACP
Rajbir Singh (since deceased). From the aforesaid facts, it is also clear
that mental state of deceased was to extract his money from the accused
and accused was trying hard to avoid this situation by going to an extent
of commission of suicide. As far as proving of suicide note EX.PW17/9
and letter of ACP Rajbir Singh (since deceased) Ex.PW47/2 is concerned,
it has been established by the prosecution by examining expert PW-58
Gulshan Rai that the aforesaid writing on suicide note was that of accused
Vijay Bhardwaj and the handwriting on letter of apology was that of ACP
Rajbir Singh (since deceased) coupled with report Ex.PW58/16.
Consequently, the events which would have happened on the day
of occurrence i.e. 24.03.2008 are to be seen in aforesaid scenario.
Motive:115.
accused was having any motive to kill ACP Rajbir Singh (since
deceased) . Initially, I have no hesitation to hold that in view of aforesaid
established facts, it is clear that accused was having business dealings
with ACP Rajbir Singh (since deceased). Accused was running in losses
and his customers were pressing hard to pay back their money. ACP
Rajbir Singh (since deceased) was also pressing hard to return his money.
Out of aforesaid pressure, accused once tried to commit suicide and in this
earlier, accused was at the dead end from where he can save himself by
running away from the situation or to convert the situation to his
advantage. Naturally, if he is succeeded in eliminating ACP Rajbir Singh
(since deceased), he got advantage and thus, he need not to pay back any
money. Consequently, I have no hesitation to hold that motive was
available with the accused to kill ACP Rajbir Singh (since deceased). In
view of aforesaid observations, the argument of learned defence counsel
pales into insignificance. The argument of learned defence counsel that
chances of someone committing murder of ACP Rajbir Singh (since
deceased) may be there, does not appeal to reasons in facts and
circumstances of the case. Even though, defence has claimed that ACP
Rajbir Singh (since deceased) was encounter specialist. However, it has
not been brought on file that any criminal complaint of false encounter or
any departmental inquiry etc. against ACP Rajbir Singh (since deceased)
was initiated. Therefore, I do not find any merit in the arguments of
learned defence counsel. I am also of the considered opinion that more
than one person may have motive to kill one person but in such
circumstances, some evidence is to be led by the parties. In this case, the
prosecution has been able to prove successfully regarding dealings
between accused and ACP Rajbir Singh (since deceased), their strained
relations etc. etc. as detailed here-in-before and thus the motive is very
strong with accused to kill a man. At this stage, I will be failing in my
duty if psychological behaviour of the accused is not reflected. Accused
thus after the incident had called PW-16 ASI Pardeep Kumar, PW-51
Dharambir Sharma, a press reporter and by calling both of them, he
wanted to surrender to save his life. This fact clearly reveals that accused
was having an impression that in case he will not satisfy the demand of
ACP Rajbir Singh (since deceased), he will be loosing his life as he was
considering ACP Rajbir Singh (since deceased) as encounter specialist.
116.
evidence.
By passage of time, new piece of evidences are being
developed which are being used in day to day life like means of
communication, means of ascertaining a fact by using information and
technology etc. etc. Thus, any principle which was formulated on basis of
fact in 19th Century may be used as principle on basis of material
available in 21st Century, with pragmatic approach.
It is quite essential to reach at any conclusion as to how
theory of last seen/last found evolved and on what basis. The theory of
last seen/last found was developed with a view that investigation system
and the courts had to be little bit relieved of proof of the burden. When the
principle could be invoked, the burden of proof would be shifted to the
accused to explain any intervening facts after the last seen/last found
together with the victim of any criminal offence. The principal fact or
'factum probandum' may be proved indirectly by means of certain
inferences drawn from factum probans i.e. the evidentiary facts. To put it
differently circumstantial evidence is not direct to the point in issue but
consists of evidence of various other facts which are so closely associated
with the facts in issue that taken together they form a chain of
circumstances from which the existence of the principal fact can be
legally inferred or presumed.
117.
company of deceased and thereafter, the accused was found alive whereas
last seen together theory and last found together theory. To my mind, both
the aforesaid theories are based upon Section 8 and 106 of The Indian
Evidence Act. If both the theories are evaluated in touch stone of
aforesaid principles, it is clear that in case the deceased and accused were
found in company of each other and in close proximity of time thereafter
one of them was found dead, it is the duty of the accused to explain as to
how the events happened. So, the words seen or found may be used
interchangeably. Initially, I would like to deal with the theory of last seen
so that it may be cleared that what is principle lying behind theory of last
seen. Invariably, Hon'ble Apex Court in so many cases applied last seen
theory.
In State of Maharashtra v. Suresh, (2000) 1 SCC 471, Honourable
Supreme Court observed :The accused respondent was already an accused in
another rape case of an 8 years old girl and got acquitted.
He went to the house of deceased Sneha @ Gangu 4 yrs
old. The deceased was then playing near the gate of her
house. After the respondent left the house, no one in that
house had seen Gangu alive. There was evidence that the
respondent took Gangu to the shop of Mahadeo, and later
the
injuries
could
be
because
of
forcible
seen and last found together. Originally, the fact that the accused and
deceased were last found together and thereafter the accused was found
alive whereas his companion was found dead attract last found theory.
This theory is based upon a principle that dead body was found in custody
of the accused at the time of occurrence. At this stage, word custody has a
established
this
rule
assumes
much
importance.
In Gadai Alias Jiten Bouri vs State of West Bengal (2006) 1 CALLT 163
HC Honourable High Court observed:So far the first circumstance above is concerned, it is
undisputed that the victim Jharna who was the legally
married wife of accused Gadai was found murdered by
strangulation lying in the room of the accused on
01.08.90. There is also no dispute that the accused has a
cycle repairing shop with an adjacent room at Paprar
More. According to the defence case, as suggested to P.W.
6, his brother Gadai used to come to house daily in the
evening for taking his meal and used to pass night in his
said cycle repairing shop. Onus to prove alibi is on the
accused, as it is a matter within his special knowledge and
such plea of alibi when taken by an accused must be
proved by him and he is to substantiate and make it
reasonably possible. He must lead evidence to show that
he was so far off at the moment of the crime from the place
when the offence was committed and he could not have
person died or when the accused part with company of deceased. What
were the circumstances which rebut the presumption. Some time, it has
also been observed by Hon'ble Apex Court that in case accused failed to
furnish any explanation or his explanation were found to be false, it is
mitigating circumstance against the accused and aforesaid two theories
are further strengthen heavily casted burden upon the accused to prove a
fact that someone else had committed the crime or there was any
circumstance, which suggests that accused was not involved in any act of
murder.
120.
ascertained if the last found theory is applicable or not. In this case the
prosecution is relying upon some incriminating circumstances sound in
nature against the accused.
I.
II.
III.
IV.
Motive.
V.
Confession/explanation/withdrawal/no explanation.
I.
accused has squarely not challenged a fact that the dead body of ACP
Rajbir Singh (since deceased) was found in shop-cum-office of accused
Vijay Bhadwaj situated at Mehrauli Road, Gurgaon. Thus, from aforesaid
facts, it is clear that dead body was found in the premises of accused.
Even otherwise, there is ample evidence available on file which
unerringly proved that dead body was found at the aforesaid place. In
view of statement of PW-16 ASI Pardeep Kumar, PW-17 SI Krishan Dev,
PW-9 Tahir Hussain SHO, PW-27 Lillu Ram, PW-33 Padam Singh and
PW-34 Surender Kumar, it is clear that dead body was found at the
aforesaid place. In addition to that, from documents prepared during
course of investigation and blood stained objects recovered from the place
of occurrence goes to reflect that dead body was found at the aforesaid
place. In addition to aforesaid evidence, Ex.PW12/3 proceedings under
Section 174 Cr.P.C, Ex.PW17/13 report of team of scene of crime
Ex.PW17/4 recovery memo of place of occurrence, PW17/3 recovery of
mobile of deceased, Ex.PW17/4 recovery of bag of ACP Rajbir Singh
(since deceased), Ex.PW17/1 recovery of belongings of deceased
Ex.PW16/4 recovery of two pallets and recovery of material object vide
memo Ex.PW16/4, are sufficient which unerringly points towards fact
that dead body of ACP Rajbir Singh (since deceased) was found at
aforesaid place.
II.
extended to him regularly off and on and last day was Monday to give
money back. He was double-minded. There was no third person at the
place occurrence. Servant was sent to purchase candle. He had fired two
shots at the head of ACP Rajbir Singh (since deceased) and PSO's of
ACP Rajbir Singh (since deceased) were on petrol Pump nearby. From
the context of aforesaid interview, the behaviour of accused after
occurrence points towards his guilt. From the aforesaid conversation, it
is clear that the accused was bent upon to surrender to the police. In that
conversation, the accused is also referring to the name of deceased with
reference to a fact that he was having money matter with him amounting
to 50-60 lacs and he was under pressure from the last 5 to 6 months on
account of this reason. It is also clear from the aforesaid facts that it was
the accused who for the first time had uttered that ACP Rajbir Singh
(since deceased) was shot dead and his body was lying in his office.
Thus, it is clear that the accused was the person, who for the first time
brought a fact into public that ACP Rajbir Singh was shot dead and his
recovered.
occurrence, two pallets projectiles were recovered and out of them, one
lead projectile was found embedded in headrest of chair which was lying
across the table and second lead projectile was found on glass top of table
from the office-cum-shop of the accused and the same were recovered by
the police and were taken into possession vide recovery memo
Ex.PW16/4.
123.
the prosecution that the weapon recovered at the instance of accused Vijay
Kumar Bhardwaj was used for firing in his office-cum-shop. The pallets
recovered from the place as referred hereinbefore were in fact fired from
the aforesaid revolver. In addition to aforesaid established facts, the
prosecution has also been able to prove that the pallets were fired in the
office. The prosecution has also recovered material object like
newspapers, broken calculator, chair which were effected by firing to
prove that firing took place in shop-cum-office of the accused.
125.
opinion that in case any material object, in present case the revolver and
cartridge cases etc. etc. are recovered in pursuance of disclosure statement
of accused the recovery of weapon is admissible.
127.
9 Supreme Court Cases 386: Nisar Khan alias Guddu and others Vs.
State of Uttranchal wherein it was held,
Recovery of arm from the bank of river is pointed by
accused which was concealed under sand and covered by
stones cannot be considered as recovery from place
accessible to all as it was a common place frequented by
public.
Likewise, my aforesaid view is fortified by law laid down
in 1999 (4) Supreme Court Cases 317: State of Himachal
Pradesh Vs. Jeet Singh wherein it was held,
Test is not where the place was accessible to
others but where it was ordinarily visible to others. In view
of aforesaid observation, authorities in this regard cited by
learned defence counsel are quite distinguishable on fact
and circumstances of the present case.
128.
diagram
129.
132.
entrance, and its edges are regular and evened, but free
from scortching and tattooing. ''
134.
opinions given by identical doctor with regard to entry and exit wound. In
such type of cases if either of the opinion is further supported by relevant
positioning of objects on the spot that opinion is to be considered and
relied upon by the court.
135.
Ballistic Expert who had visited the scene of crime on 25.03.2008 at 1.30
noon. After due deliberation, he has given is opinion Ex.PW17/13. He has
also proved rough sketch of scene of crime as Ex.PW60/1. He has also
proved
Ex.PW60/16. From his opinion the court may not bound to come to any
conclusion, however, the facts which were noticed by him at the scene of
crime may be considered to evaluate a point after the bullet was fired
from the back side of the deceased or from the front side of the deceased.
In this regard, I am of the concrete opinion that in rough sketch of scene
of crime report Ex.PW60/1, one projectile bullet 'BC' was found on the
table and another projectile BC-2 was found to be embedded in headrest
of the chair. It is the same chair which was lying opposite to the deceased
where he was found after being hit by a bullet. Naturally, the height of
table is always lesser than the chair. Likewise in photograph Ex.PW60/7,
it is shown that projectile bullet was found on the table and the calculator
lying on the table was found to be hit by the bullet as per photograph as
Ex.PW60/6. As per photograph Ex.PW60/11, bullet 'BC-2' was found
embedded in headrest of the chair. From the aforesaid facts, it is clear that
the bullet 'BC' and 'BC-2' were found lying at a place which was opposite
to the chair where the deceased was sitting. Thus, from the report of the
Ballistic Export Ex.PW17/13, rough sketch of crime Ex.PW60/1, the
photographs of scene of crime Ex.PW60/2 to Ex.PW60/16, one fact is
quite clear that the chair 'A' as shown in Ex.PW60/1 was the chair upon
which ACP Rajbir Singh was sitting and the bullet 'BC-2' was found on
headrest of the chair 'B' as shown in rough sketch as Ex.PW60/1. Thus, I
am of the considered opinion that the relative positioning of objects found
or recovered from the scene of crime clearly reveals that the bullet was
fired from back side of ACP Rajbir Singh (since deceased) which pierced
through skull of ACP Rajbir Singh and after that it was embedded in the
chair which was lying across the chair of ACP Rajbir Singh (since
deceased).
136.
expert of fire arm mechanism and injuries caused by fire arms whereas the
doctor who has conducted postmortem of the deceased were not expert in
the field of ballistic. Thus, in my opinion PW-13 Dr. S.K.Sharma and PW12 Dr. Mukesh Rampal might have lost sight of the fact as to what are the
reasons on basis of which the opinion was given regarding entry wound
and exit wound. As far as barrel of weapon used as rifled or smooth, I am
of the considered opinion that in this regard also the opinion of ballistic
expert will found credence over the report of doctors who have conducted
postmortem.
137.
wound.
The prosecution has examined Ballistic Expert PW-60
Dr. R.K. Kaushal. However, in his cross-examination no question was put
regarding entry wound or exit wound despite the fact that he was a
Ballistic Expert. Consequently, when no cross-examination has been
conducted with regard to particular facts adverse inference is to be drawn
against accused. I am of the considered opinion that no question was
asked by defence counsel from this witness that the arm used was rifled
arm or smooth bore gun. Consequent upon my aforesaid findings, I found
no force in argument of learned defence counsel in this regard.
The revolver weapon of offence was sent to FSL, Madhuban
for analysis and it was opined by PW-60 Dr. R.K. Kaushal Ballistic
Expert that it was a rifled arm and the bullets recovered from the place of
occurrence as detailed hereinbefore were fired from rifled arm. Therefore,
also the argument of learned defence counsel
regarding bullets fired from rifled arm or smooth arm entitles the accused
to benefit of doubt is of no consequence.
138.
arguments of learned defence counsel who has relied upon Ram Narain,
Jaggar Singhs Case, Subhash and anothers Case (supra) and
Mahamadkhan Nathekhan (supra), I am of the considered opinion that
in case the medical evidence is totally inconsistent with the ocular version
or cause of death, the accused is entitled to benefit of doubt: if medical
point has already been discussed in upper part of judgment. Thus, I have
no hesitation that the accused was having strong motive to commit murder
of ACP Rajbir Singh (since deceased).
139.
16 ASI Pardeep Kumar has deposed that accused Vijay Kumar Bhardwaj
was known to him earlier. He has further explained that FIR No.390 dated
19.12.2007 under Sections 420, 467, 468, 471 of The Indian Penal Code
was registered against accused with the fact that accused was not
returning the money to the complainant and he was investigating the said
case. Thus, both of them were acquainted with each other. On 24.03.2008,
accused made a call to him conveying to him that he had shot dead a man
in his office and his dead body is lying in his office and he wants to
surrender before the police. This witness has also deposed that on
24.03.2008 itself, at about 11.00 a.m., he had received a mobile phone call
from Vijay Bhardwaj and Vijay Bhardwaj stated that he wants to
surrender in case pertaining to FIR No.390 dated 19.12.2007. This witness
has further deposed that accused Vijay Bhardwaj had informed about fact
of shooting a man dead by him at 9.20 p.m. After receiving the aforesaid
information, he got present FIR lodged in Police Station Civil Lines,
Gurgaon as Ex.PW16/1. Now, it is to be ascertained if this confession is
admissible or not. I am of the considered opinion that in earlier FIR,
which was lodged on 19.12.2007, PW-16 ASI Pardeep Kumar had not
arrested him till the day of occurrence despite passage of approximately
four months and therefore, to surrender the accused reposed confidence in
PW-16 ASI Pardeep Kumar. Now, it is to be ascertained if the accused
made his confession before a Police Officer is hit by Section 25 of The
Evidence Act. In this regard, I am of the considered opinion that the
Madan Lals Case (supra) but it is not applicable to the fact of the
present case. In this case the accused himself has relied upon statement
given by him to ABP News and Zee News instead of refuting a fact that
he had not given any statement as claimed by the prosecution as well as
the interview given by him to the press person was under duress or under
any circumstances which weighs in his favour. I am of the considered
opinion that in case prosecution as well as accused is relying upon
interview given by the accused to media, the question of any duress etc.
on accused does not arise. Rather the accused himself has waived his
privilege which he can claim under Section 25 to 27 of The Indian
Evidence Act. On similar principle as discussed hereinbefore, Indra
Dalals case(Supra) is not applicable to the fact of the present case.
Likewise, law cited by learned defence counsel i.e. Pragat Singhs case
(supra) is not applicable to the fact of the present case.
141.
the accused himself has produced DW-3 Hem Raj Negi, who has proved
recording Ex.DW3/A. The accused has also relied upon interview given
by him to ABP News which is Ex.DW2/A. As far as interview the CD of
which Ex.DW3/A is concerned, the accused was not in custody and was
giving interview to press reporter. In his interview, he has admitted that he
was having money transactions with ACP Rajbir Singh (since deceased).
Due to pressure of making payment, he had also decided to commit
suicide. On the day of occurrence, last date was given by ACP Rajbir
Singh (since deceased) for returning of his money and ACP Rajbir Singh
had threatened him to kill. After giving interview to the press reporter, he
was frisked away by a man who is claimed by the defence to be of police.
In aforesaid video, it is clear that on one side the press reporters are
standing and the accused is coming towards them all alone and not
escorted by any policeman. Consequently, the interview given by him to
press persons cannot be considered to be a confession given to a
policeman or given to any other person when he was in custody of police.
As far as interview, the CD Ex.DW2/A is concerned, naturally it is shown
that accused is in police custody and thus, in case accused wants to regal
out from that confession, he could have done so during trial. Not to speak
of withdrawing from the confession or to explain about said confession,
the accused himself has relied upon and produced the CD Ex.DW2/A in
his defence. In this regard, I found support with (2007) 1 RCR Criminal
468 Aloke Nath Dutta and others Vs. State of West Bengal wherein it
was held,
if the confession has come out in natural response to
stressful, stimulus of spur of the movement and found
voluntary, it is a reliable piece of evidence. It was also
held that if the court is satisfied that confession is
voluntary and truth out of any cloud of threat, inducement
or promise and is in consonance with context of the entire
prosecution case and fit into the proved facts and is not
blow hot and cold. On one side, the defence wants to take advantage of
the video portion which goes to reflect that he was wearing a shirt which
was taken into police possession whereas the accused wants to allege that
audio part was under compulsion. I am of the considered opinion if in
confession, the accused himself has relied upon he himself has waived a
privilege given to him by the law and he cannot take any advantage of
Section 25 of The Indian Evidence Act.
143.
stage of the trial has been produced by the accused himself and relied
upon the said confessional statement given by him to media person. Thus,
the confessional statement of accused as reflected in his both the
interviews contained in CD Ex.DW3/1 and Ex.DW2/1 is admissible.
145.
were found in company of each other and thereafter, the deceased was
found dead in office-cum-shop of the accused. The revolver by which
death of accused was caused was recovered at the instance of accused and
by Ballistic Expert a positive opinion was given that the same weapon
was used to commit death of deceased. It was also found that the shoe of
accused was found to be stained with human blood. Consequently, the
fact of accused and deceased found in company of each other coupled
with aforementioned other circumstantial evidence and expert evidence
unerringly points towards guilt of the accused.
146.
PW-16 ASI Pardeep Kumar, PW-27 HC Lillu Ram, PW-28 ASI Jawahar
Singh are got-up witnesses and could not be believed. However, I do not
find the favour with him on the grounds that the difference of time
deposed by them in court is due to lapse of memory. Any witness cannot
be so meticulous about disclosing exact time when the said time is not
remembered by the witness in particular fact of the case. Even otherwise,
if there is some lapses on part of the Investigating Officer while
investigating a case, the prosecution cannot be thrown out. Even though
learned defence counsel has cross-examined the aforesaid witnesses
regarding a fact if police was present at the place of occurrence at about
10 p.m. or not is concerned, the defence counsel had not asked as to
police officials, which were present at the place of occurrence after the
incident were from PS City Gurgaon or from PS Civil Lines Gurgaon. It
counsel that case property was taken into possession after reaching of
Ballistic Expert at 1.30 p.m. whereas PW-16 ASI Pardeep Kumar and
PW-17 Krishan Dev have deposed that case property was seized before
1.30 p.m. is concerned, I am of the considered opinion that in this case,
case property was seized at various points of time from place of
occurrence and from the accused. This fact is clear from the statement of
PW-17 Krishan Dev and PW-19 SHO Tahir Hussain. The defence counsel
during examination of these witnesses had not asked about recoveries
with reference to date and point of time just to create an impression that
recoveries may become doubtful. If any answer given in crossexamination is ambiguous with regard to a fact then no benefit can be
given the accused. Even though learned defence counsel has argued in
view of statement of PW-17 Krishan Dev there was street light at the
place of incident and in these circumstances PW-28 ASI Jawahar Singh
when visited the office he must have noted that the blood was oozing out
from the office. I do find favour with him because other numerous
witnesses including PW-16 ASI Pardeep Kumar, PW-28 ASI Jawahar
Singh have categorically deposed that there was no light. In view of
aforesaid facts the argument of learned defence counsel does not appeal to
my reasons.
147.
Pals Case (supra) on account of reason that in present case last found
theory is duly supported by recovery of weapon at the instance of accused
coupled with staining of his shoe with human blood which remains
unexplained and the confession made by him and relied upon by him as
well as motive available with the accused and previous and subsequent
conduct of the accused.
148.
failed to create any dent regarding fact that dead body of ACP Rajbir
Singh (since deceased) was found at any other place except the shop-cumoffice of the accused. The arguments advanced by learned defence
counsel in this regard carries no weight.
150.
doubt that revolver which was recovered at the instance of accused was
having found in working order as proved by PW-60 Dr. R.K.Kaushal,
been able to prove beyond reasonable doubt that accused and deceased
were found in company of each other in between 8.30/9.00 p.m. in officecum-shop of accused situated in Mehrauli Road, Haryana Gurgaon.
Thereafter ACP Rajbir Singh (since deceased) was found dead, the death
of ACP Rajbir Singh (since deceased) was caused by rifled
armed
offence under Section 302 of The Indian Penal Code and he is held guilty.
The prosecution has also been able to prove that accused
was found in possession of arm without having any license which was
found to be in working order and thus, he has committed offence
punishable under Section 25 (1-B) (a) of The Arms Act,1959. It has
already been held that aforesaid arm was used in commission of murder of
ACP Rajbir Singh (since deceased). Thus, he has committed offence
under Section 27 (1) of The Arms Act,1959 and he is held guilty
accordingly. Let the accused be heard on quantum of sentence on
28.10.2015.
Pronounced:
Present:-
Order on the quantum of sentence:Heard the convict and his counsel and learned PP on the
quantum of sentence. The convict has made separate statement with
regard to the quantum of sentence to be awarded to him. Convict Vijay
Bhardwaj has stated that he has old aged mother, who is suffering from
various old age ailments. His father had expired in the year 1992. He has
three minor daughters and his wife is household lady. He has the liability
of his mother, handicapped and divorce sister, who is residing with him.
He is not a previous convict and not involved in any other criminal case.
The convict has also prayed to take a lenient in the matter of sentence.
2.
Prosecutor for the CBI and learned counsel for the accused, I have come
to the conclusion that the accused had committed murder of Rajbir Singh,
who was ACP in Delhi Police. However, the court cannot lost sight of the
fact that the accused, as claimed is sole bread earners of his family and
not a previous convict and thus the sentence should be consumerate to
advance cause of justice. Facts of this case does not attract punishment
which is awarded in rarest of the rate case of murder. The circumstances
in which the accused has committed murder has background which goes
to reflect that it is not a ghastly act. Therefore, keeping in view the
aforesaid facts in mind, the convict namely Vijay Bhardwaj is sentenced
as under:-
Sr.
No.
Accused
Convicted under
Sections
Sentence of
Imprisonment/Fine imposed.
Vijay
Bhardwaj.
2.
Vijay
Bhardwaj
3.
Vijay
Bhardwaj
Pronounced.
28.10.2015.
RO&AC.
Present:
Present:
heard. Vide separate order of even date, the convict Vijay Bhardwaj has
been sentenced as under:Sr.
No.
Accused
Convicted under
Sections
Sentence of
Imprisonment/Fine imposed.
Vijay
Bhardwaj.
2.
Vijay
Bhardwaj
3.
Vijay
Bhardwaj
Pronounced.
28.10.2015.