Delhi District Court
State vs Arvind Azad on 22 May, 2024
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IN THE COURT OF MS. SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI
COURTS, DELHI
CNR No. DLWT01- 00092-2011
Sessions Case No. 56235/2016
FIR No.57/2011
PS Khyala
U/S 302/328/364 IPC
State
v.
Arvind Azad
S/o Sh. Subhash Chand Azad
R/o RZ-C-59, Nihal Vihar, Delhi.
Date of Institution : 13.07.2011
Date of committal : 29.08.2011
Date of Charge : 22.03.2012
Charge framed under section : Against accused
Arvind Azad for the
offence punishable u/s
364/328/302 IPC.
Date of reserving Judgment : 23.04.2024
Date of Decision : 22.05.2024
Final Judgment : Accused Arvind Azad is
acquitted of the Charges u/s
364/328/302 IPC.
FIR No: 57/2011 Page No. 1 of 145
State v. Arvind Azad
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JUDGMENT
Brief facts of the case:
1. Accused Arvind Azad has been facing trial of the charge u/s 302/364/328 IPC on the basis of allegations as put forth by the prosecution that on 31.03.2011 at 04:15 pm at B-2, Government School, Second Shift, within the jurisdiction of PS Nihal Vihar, the accused abducted Sh. Vijay Solanki (now deceased) and committed his murder by administering some stupefying substance to him.
2. The case of prosecution is that the state machinery came into force on the basis of statement of father of deceased as on 31.03.2011, Sh. Harbir Singh (father of deceased) made a complaint in the police station, wherein he has stated that his son Vijay Solanki who is a primary teacher in Govt. School, Chand Nagar, B-2 II-
Shift, went to the school that day but at about 04:15 PM, one of the teachers namely Arvind Azad made a call to him from the mobile phone of his son Vijay Solanki and informed that his son Vijay Solanki was not well and they took him to Park hospital but now as he is feeling well, they are coming to their house. However, he told Arvind Azad to come at District Centre, Janak Puri along with his son Sh. Vijay Solanki and he will also reach there. Thereafter, the complainant kept waiting at District Centre, Janak Puri for about 15-20 minutes but till 06:30 PM, accused Arvind Azad did not reach there. In the meantime, other teachers FIR No: 57/2011 Page No. 2 of 145 State v. Arvind Azad :3: of the school namely Sh. Rakesh and Sh. Vikash Kumar reached at District Centre, Janak Puri and asked about Vijay Solanki. They gave the vehicle registration number of the accused Arvind as DL- 9C-J-7347 of make Maruti 800 of white colour and informed that accused Arvind Azad took Vijay Solanki in the abovesaid car. The said teachers also informed the complainant that they also wanted to sit in the car but before they could sit, accused Arvind Azad drove the car along with Vijay Solanki. They also informed about the mobile phone number of accused Arvind Azad and also that on that day, there was a lunch party in the school however, Vijay Solanki did not eat any food and consumed juice only, which was arranged by accused Arvind Azad. After consuming the juice, the health of Vijay Solanki become deteriorated. They further informed that they also tried to contact the accused and deceased on their mobile phones however, no response was received. They also visited the house of accused Arvind Azad but the whereabouts of accused Arvind Azad are not known.
Registration of FIR and investigation conducted:
3. After recording statement of complainant Harbir Singh, prima-
facie an offence u/s 365 IPC was made out and accordingly an FIR was registered and the investigation was handed over to ASI Rajender Singh.
4. On 02.04.2011, Sh. Mahabir Solanki reached at the Police Station and informed vide DD no.11A that one dead body was seen in the FIR No: 57/2011 Page No. 3 of 145 State v. Arvind Azad :4: area of Police Station Sampla, Haryana. Thereafter Sh. Mahabir Solanki went at the spot and identified the said dead body as of his nephew Vijay Solanki. Then Inspector Anil Kumar had collected DD no. 23 dated 01.04.2011, DD no. 4 dated 01.04.2011 and DD no. 10 dated 02.04.2011 from Police Post Kharawar and went to mortuary, PGI Rohtak and got the dead body identified. Photographs of the dead body were got clicked by him. Postmortem examination of the dead body was conducted vide PM No. 11/4/6 dated 02.04.2011. Accordingly, sections 364/302/201 IPC were added in the present case.
5. During investigation, Maruti Car bearing no. DL-9CJ-7347 was recovered from the area of Police Station Adarsh Nagar, Delhi and was deposited in the malkhana. The articles which were recovered from the said car were sent to the FSL, Rohini. Statement of Sh. Vikas Kumar (teacher/ colleague of the deceased) was recorded u/s 161 Cr.P.C. Notice u/s 91 Cr.P.C. was given to the bank from where the accused had taken loan. Meanwhile, the brother of accused namely Vikas Azad and father of deceased namely Sh. Harbir Singh received letters in which accused Arvind Azad informed about the present incident. Investigating Officer took the said two letters in his possession. Thereafter, on the information of secret informer, accused Arvind Azad was arrested from the area of Karampura, Delhi. Investigating Officer recorded the disclosure statement of accused wherein he disclosed about his involvement in the present offence. His personal search was FIR No: 57/2011 Page No. 4 of 145 State v. Arvind Azad :5: conducted and his mobile phone was seized. Thereafter, pursuant to his disclosure statement, accused took the police party to the places ie. the cyber cafe where he surfed the internet to know about the party drug; from where he purchased the real juice for deceased; the shop from where he purchased the Ketamine drug and injection. The accused also led the police party to the different guest houses where he stayed after committing murder of deceased. Investigating Officer also recorded the statements of the witnesses u/s 161 Cr.P.C. Accused also led the police party to the place where he stationed his car. Thereafter, the investigation was handed over to Insp. Randhir Singh Khatri and then to Insp. Yashpal Singh, who collected the PM report of deceased, crime team report, FSL report and after completing the investigation, charge sheet was filed under section 302/364/365/201 IPC against accused Arvind Azad.
Charge:
6. Vide order dated 22.03.2012, charge was framed against accused Arvind Azad under section 364/302/328 IPC to which he pleaded not guilty and claimed trial.
The Trial Prosecution evidence:
7. The prosecution in order to prove its case against the accused examined 47 witnesses, viz. PW-1 Ct. Ankur (DD writer), PW-2 HC Raj Kumar (duty officer), PW-3 HC Mast Ram (MHCM), PW-
FIR No: 57/2011 Page No. 5 of 145State v. Arvind Azad :6: 4 Sh. Harbir Singh (father of deceased), PW-5 Sh. Chittar Singh (produced the Car record from the Licensing Authority) , PW-6 Sh.M.N. Vijayana (Nodal Officer, Tata Teleservices), PW-7 Sh.Amar Nath Singh (Nodal Officer, Idea Cellular Ltd.) , PW-8 Sh. Israr Babu (Alternate Nodal Officer, Vodafone Mobile Services Ltd.), PW-9 Sh. S.K. Goel (retired Sr. Manager, Oriental Bank of Commerce), PW-10 Sh. Anand Parkash Arora ( Owner of Cyber Cafe, Paschim Vihar), PW-11 Sh. Brahmanand Sharma (Receptionist at Shiv Ganga Jaipuria Bhawan Guest House at Haridwar), PW-12 Sh. Jagat Singh (Manager of Lotus Guest House, Haridwar), PW-13 Ms. Anita Goyal (Primary teacher at Nagar Nigam Prathmik Vidyalaya, Khyala, Delhi) , PW-14 Sh. Rajnikant (teacher at Nagar Nigam Prathmik Vidyalaya, Khyala, Delhi), PW-15 Sh. Sumit Bouri (Owner of Lotus Guest House, Haridwar), PW-16 ASI Bal Krishan (duty officer), PW-17 SI Hans Raj (proved the DD no. 37A recorded regarding search of accused), PW-18 Ct. Jaibeer (DD writer, PS Khyala), PW-19 Sh.Vikas Kumar (teacher at Nagar Nigam Prathmik Vidyalaya, Khyala, Delhi), PW-20 Dr.Ashok Kumar (examined the deceased at Park hospital), PW-21 Ct. Jai Pal (witness of investigation), PW-22 HC Om Prakash (duty officer and proved the DD no.5B), PW-23 Sh. Jai Bhagwan (public witness), PW-23 Dr. Saroj Dahiya (Sr.Scientific Officer, FSL, SP Office, Rohtak) , PW-25 ASI Jai Kanwar (witness of investigation), PW-26 Dr.Jitender Kumar Jakhar (conducted postmortem on the body of deceased), PW-27 FIR No: 57/2011 Page No. 6 of 145 State v. Arvind Azad :7: Insp. Sandeep Kumar (witness of investigation at Rohtak, Haryana), PW-28 Sh. Bhagat Singh (Patwari Village Kharwar, Tehsil Sampla, District Rohtak, Haryana), PW-29 Ct. Parvinder (photographer in Crime team), PW-30 Sh. Anuj Gupta (shopkeeper who dealing in Lubricants), PW-31 Sh. Nitin Aggarwal (owner of Lucky Lodge in Buland Shahar), PW-32 Sh. M.D. Meena (retired Inspector who inspected the abandoned Car) , PW-33 Sh. Vijender Singh Bisht (Manager in Paramount Hotel, Kotdwar, Uttarkhand), PW-34 Sh. Anoop Kumar Barthwal (owner of Paramount Hotel in Kotdwar), PW-35 Sh. Dwarika Prasad (Chief Manager, Corporation Bank, Tilak Nagar, Delhi), PW-36 Sh. Yogender Sharma (Manager, Delhi Nagrik Sehkari Bank, Tri Nagar Branch) , PW-37 SI Ashok Kumar (witness of investigation), PW-38 SI Rajesh Kumar (joined the investigation with IO/Insp.Anil Kumar Chauhan), PW-39 Sh. Rambir Singh (Uncle of deceased), PW-40 Insp. Anil Kumar Chauhan (Investigating Officer), PW-41 HC Ashok Kumar (took the exhibits from MHCM PS Sampla and deposited in FSL, Madhuban, Haryana), PW-42 ASI Kuldeep (witness of investigation at PP Kharawad, PS Sampla), PW-43 ASI Shri Bhagwan (MHCM PS Sampla), PW-44 Insp. Yashpal Singh (2nd Investigating Officer), PW-45 Sh. Anurag Sharma (Assistant Director, FSL, Rohini), PW-46 Sh. Bharat Bhushan (Senior, Scientific Officer, FSL, Madhuban, Karnala) and PW-47 Insp. Avdesh Kumar (Finger Print Bureau, PS Kamla Market).
8. PW-1 Ct. Ankur/ DD writer deposed that on 31.03.2011, at about FIR No: 57/2011 Page No. 7 of 145 State v. Arvind Azad :8: 11:50 PM, DD no. 69B proved as Ex.PW-1/B (OS&R) was recorded on the basis of written complaint of PW-4 Sh. Harbir Singh proved as Ex.PW-1/A (OS&R), who had come to the Police Station.
9. PW-2 HC Raj Kumar is the duty officer and deposed that on 02.04.2011, at about 08:20 AM, DD no.11A, Ex.PW-2/A (OS&R) was recorded by him on the basis of statement of Sh. Mahavir Solanki, who came to the police station.
10. PW-3 HC Mast Ram/MHC(M) has deposed that on 01.04.2011, three pullandas duly sealed with the seal of AKC and Car bearing no. DL-9CJ-7347 were deposited in the malkhana of PS Janak Puri by IO/Insp. Anil Kumar Chauhan and entry to that effect was made at srl.no. 498 in register no. 19 proved as Ex.PW-3/A. On 17.04.2011, a container and a bag were deposited by Insp. Anil Kumar Chauhan in the malkhana of PS Janak Puri and entry to that effect was made at srl.no. 517 in register no.19 proved as Ex.PW-3/B. Again on 24.06.2011, six pullandas were deposited in the malkhana, out of which four pullandas were sealed with the seal of FSL and two pullandas were sealed with the seal of SK and entry to that effect was made at srl.no. 642 in register no.19 proved as Ex.PW-3/C. He further deposed that documents were handed over to MHC(M) by IO/Insp. Yashpal Singh and the said documents were sent to FSL through SI Rajesh Kumar vide RC no. 62/21/11, Ex.PW-3/D and acknowledgment of FSL to that effect is Ex.PW-3/E. FIR No: 57/2011 Page No. 8 of 145 State v. Arvind Azad :9:
11. PW-4 Sh. Harbir Singh, Complainant/ father of deceased Vijay Solanki has deposed that that deceased Vijay Solanki was his son, who was employed as a primary teacher in a Govt. school at Chand Nagar, Delhi and used to teach in the second shift. That on 31.03.2011, his son/deceased Vijay Solanki had left the house for his school in the afternoon at 12:30 PM and at about 04:15 PM, accused Arvind Azad telephoned him from the mobile phone of his son/deceased and informed him that his son Vijay Solanki has got ill and he had taken him to nearby Park hospital from the school, which was within the area of one km. from the school. He further deposed that accused was also employed as a teacher in the same school, where deceased Vijay Solanki used to teach. That the accused also informed him that he was bringing his son Vijay Solanki to their house from the hospital as Vijay Solanki was all right at that time and he also asked the accused to drop his son Vijay Solanki at his house. He further deposed that after about 5/7 minutes of the first call, he made a call at the mobile phone of his son/deceased Vijay Solanki bearing no.9211378005, which was attended by the accused and he told the accused to come to District Centre, Janak Puri, where he would also be reaching and the accused agreed for the same.
11.1. He further deposed that he reached at District Centre, Janak Puri within 15 or 20 minutes after the call and kept waiting for accused and his son/deceased Vijay Solanki at District Centre, Janak Puri till 06:30 PM, but accused and his son did not turn up.
FIR No: 57/2011 Page No. 9 of 145State v. Arvind Azad : 10 : At about 06:30 PM, two other teachers from the same school namely Vikas and Rakesh reached at District Centre, Janak Puri, met him and asked him whether Vijay Solanki (deceased) came or not, but he told them that he has not come. Thereafter, he called at the mobile phone of his son Vijay Solanki (deceased), however, the phone was found switched off. He further deposed the teachers namely Vikas and Rakesh gave him the mobile number of accused, which was 9911555411 and then he also made a call on the said mobile number, however, the same was also found 'switched off'. Thereafter, on suggestion of both the teachers namely Vikas and Rakesh to visit nearby hospitals to trace Vijay Solanki/deceased, he alongwith them made efforts to search for his son Vijay Solanki in nearby hospitals, but no clue was found. Vikas and Rakesh also informed him that while the accused was taking the deceased from Park Hospital in the Maruti Car bearing registration no. DL-9CJ- 7347, they had also shown their willingness to go alongwith accused and Vijay Solanki by sitting in the same car with Vijay Solanki to help him and drop him at his residence, but the accused did not let them sit in the Car, locked the car from inside and fled away from there alongwith Vijay Solanki.
11.2. He further deposed that Vikas and Rakesh also informed him that on 31.03.2011, accused had organized a lunch in the school as he had completed five years of service in the school. The deceased was offered juice by accused as the deceased never used to have outside food and after drinking the said juice, the health of the FIR No: 57/2011 Page No. 10 of 145 State v. Arvind Azad : 11 : deceased deteriorated and he was taken to Park hospital. Thereafter, he alongwith his family members visited Police Station Khyala and made a complaint which is Ex.PW-1/A. 11.3. That on 02.04.2011, one police official came at his house from Police Station Bindapur and informed his brothers that one male dead body was found lying in the area of Sampla, near Village Kharawat, Haryana and thereafter, his brothers Mahavir Singh and Chand Singh visited the spot alongwith one police official and identified the dead body of his son/Vijay Solanki. He again deposed that he is not aware whether his brother Chand Singh or other brother Rambir Singh had accompanied his brother Mahavir Singh or not, as he was not told by them regarding their visits.
11.4. He further deposed that after about a week of recovery of the dead body of his son/deceased Vijay Solanki, he received a letter from accused by post at his residential address, wherein it was mentioned that his son/deceased Vijay Solanki had taken loan of Rs. 12 lakhs from him and also mentioned that "I did not want to do the same and it happened under some compulsion and you repay these Rs.12 lakhs". Thereafter he informed the police regarding the receipt of the said letter and the said letter Ex.PW- 4/B/Mark X was taken into possession vide seizure memo Ex.PW- 4/A. He further deposed that it was written in letter Ex.PW-4/B/Mark X, that "Uncleji you do read this letter. The details which are mentioned in the letter, those papers are in the FIR No: 57/2011 Page No. 11 of 145 State v. Arvind Azad : 12 : briefcase. What I am writing in the letter, you will not believe the same as such circumstances have taken place. I have taken Rs.12 lakhs loan and given the same to Vijay" . Thereafter, he searched the said attachi (briefcase) in his house, however, no such documents as mentioned in the letter were found in the house. He has further deposed that in the letter, accused had mentioned that he had got sanctioned a loan of Rs.12 lacs. He also received a letter from Sehkari Bank, Janak Puri and thereafter, he came to know that documents of property of his brother Rambir were transferred in the name of accused and the accused transferred the said document in the name of his mother and thereafter those documents were mortgaged by the accused in Sehkari Bank, Janak Puri for obtaining loan. He has further deposed that accused had got sanctioned a loan of Rs. 10 lakhs by forging the papers of his brother Rambir by obtaining the original copy of GPA and the said loan was taken from Sehkari Bank, Janak Puri as accused intended to grab the property of his brother Rambir Singh and therefore, accused killed his son/deceased Vijay Solanki.
12. PW-5 Sh. Khacheru Singh has deposed that Car bearing registration no.DL-9CJ-7347 is registered in the name of Subhash Chander Azad, resident of 66 Block, RZC Nihal Vihar, Nangloi, Delhi, as per record of State Transport Authority and the said vehicle was registered with the State authority on 11.11.2004, the record of that authority to that effect is Ex.PW-5/A.
13. PW-6 Sh.M.N.Vijayana, Nodal Officer, Tata Tele Services has FIR No: 57/2011 Page No. 12 of 145 State v. Arvind Azad : 13 : deposed that mobile phone number 9211378005 is in the name of Vijay Solanki, son of Sh. Harbir Singh, R/o 46, Matiala Village, Uttam Nagar, Delhi. The customer application form for that number is Ex.PW-6/A (OS&R), copy of driving licence of customer which was supplied by the customer alongwith the application is Ex.PW-6/B, Call details record of the said mobile from 15.03.2011 to 01.04.2011, running into 20 pages is Ex.PW- 6/C (colly.), location chart of the said phone is Ex.PW-6/D and the Certificate u/s 65B of the Indian Evidence Act given by Nodal Officer/PW-6 is Ex.PW-6/E. He has further deposed that on 31.03.2011 at 16:34:07, a call was made from mobile phone no. 9211378005 to mobile number 9250377227 for a period of 33 seconds from Cell ID no. 27936 situated at Plot no. 113, Chaukhandi, DDA Residential Scheme, Meera Enclave, behind Park hospital, New Delhi-18. He further deposed that on 31.03.2011 at 16:35:34, a call was received from mobile phone no. 9250377227 on mobile number 9211378005 for a period of 60 seconds from Cell ID no. 27936 situated at Plot no. 113, Chaukhandi, DDA Residential Scheme, Meera Enclave, behind Park hospital, New Delhi-18. He has further deposed that on 31.03.2011 at 16:39:37, a call was received from mobile phone no. 9250377227 on mobile number 9211378005 for a period of 30 seconds from Cell ID no. 27936 situated at Plot no. 113, Chaukhandi, DDA Residential Scheme, Meera Enclave, behind Park hospital, New Delhi-18. He further deposed that the desired FIR No: 57/2011 Page No. 13 of 145 State v. Arvind Azad : 14 : documents/information was sought by the police vide letter Ex.PW-6/F and the same was supplied to the police vide letter Ex.PW-6/G.
14. PW-7 Sh. Amar Nath, Nodal Officer, Idea Cellular Ltd. has deposed that mobile phone number 9911222844 is in the name of Arvind, S/o Sh. Subhash Chand Raja R/o H.no. R2-66, Block No.C, Nihal Vihar, Nangloi, Delhi. The customer application form for that number is Ex.PW-7/A (OS&R), copy of election I-card and office I-card of the customer which were supplied by the customer alongwith the application is Ex.PW-7/B and Ex.PW-7/B- 1, Call details record of the said mobile from 20.03.2011 to 01.04.2011, running into 03 pages is Ex.PW-7/C (colly.) and the Certificate u/s 65B of the Indian Evidence Act given by Nodal Officer/PW-7 is Ex.PW-7/L. He has further deposed that there is no call record of mobile no. 9911222844 in the name of accused Arvind after 31.03.2011 and the last call from this number was on 31.03.2011 at 02:57:50 PM of 25 seconds. He has further deposed that mobile phone number 9911555411 is in the name of Arvind S/o Sh. Subhash Chand Raja R/o H.no. R2-66, Block No.C, Nihal Vihar, Nangloi, Delhi. The customer application form for that number is Ex.PW-7/D (OS&R), copy of election I-card and office I-card of the customer which were supplied by the customer alongwith the application is Ex.PW-7/E and Ex.PW-7/E-1, Call details record of the said mobile from 20.03.2011 to 01.04.2011, running into 04 pages is Ex.PW-7/F (colly.) and the Certificate u/s FIR No: 57/2011 Page No. 14 of 145 State v. Arvind Azad : 15 : 65B of the Indian Evidence Act qua mobile nos.9911222844 and 9911555411 given by Nodal Officer/PW-7 is Ex.PW-7/L. He has further deposed that the last call from the number 9911555411 was on 01.04.2011 at 18:09:34 for 34 seconds made to 09410330338 from cell ID no. INDEU-580-62441 situated at Idea Cellular (U.P.West). He has further deposed that the desired documents/information regarding mobile numbers 9911222844 and 9911555411 were sought by the police vide letter Ex.PW-7/1 and the same were supplied to the police. He has further deposed that mobile phone number 9891973636 is in the name of Vikas Kumar S/o Sh. Dharam Pal R/o A-21, DDA Colony, Chaukhandi, Tilak Nagar, New Delhi. The customer application form for that number is Ex.PW-7/G (OS&R), copy of office I-card of the customer which was supplied by the customer alongwith the application is Ex.PW-7/H, Call details record of the said mobile from 01.04.2011 to 03.04.2011, running into 04 pages is Ex.PW- 7/J (colly.), location chart of the said phone, running into 43 pages, is Ex.PW-7/K and the Certificate u/s 65B of the Indian Evidence Act given by Nodal Officer/PW-7 with respect to this phone number is Ex.PW-7/M. He has further deposed that the chart of Cell ID of TADIG code running into two pages is mark Ex.PW- 7/N. He has further deposed that a call from mobile number 8447917909 was received on this mobile no. 9891973636 on 02.04.2011 at 22:28 for duration of 290 seconds to cell ID no. 40404-127-26472 (cell ID of mobile no. 9891973636). He further FIR No: 57/2011 Page No. 15 of 145 State v. Arvind Azad : 16 : deposed that the desired documents/ information regarding mobile no. 9891973636 was sought by the police vide letter Ex.PW-7/2 and same were supplied to the police.
15. PW-8 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services has deposed that mobile phone number 8447917909 was issued in the name of Subhash Chander Azad S/o Sh. Nang Ram R/o Block RZC, Nihal Vihar, Nangloi, Delhi by Vodafone mobile services. The customer application form with respect to that mobile number is Ex.PW-8/A (OS&R) and the copy of election I- card of the customer filed by him alongwith the application is Ex.PW-8/B, the Call details record of the said mobile from 01.04.2011 to 03.04.2011, are Ex.PW-8/C, location Chart is Ex.PW-8/D and the Certificate u/s 65B of the Indian Evidence Act issued by PW-8 Sh. Israr Babu Alternate Nodal Officer, Vodafone Mobile Services qua the above mentioned details of the said mobile number is Ex.PW-8/E. He has further deposed that on 02.04.2011, at 22:25:21 a call was made from mobile no. 8447917909 to mobile no. 9891973636 for a period of 289 seconds from UP West Circle. He further deposed that mobile phone having IMEI No. 352738010693680 was used for making a call from mobile number 8447917909. He further deposed that the desired documents/ information was sought by the police and the same were supplied to the police vide letter Ex.PW-8/F by then Nodal Officer Sh. Anuj Bhatia and PW-8 had identified the handwriting and signatures of Sh.Anuj Bhatia before the Court.
FIR No: 57/2011 Page No. 16 of 145State v. Arvind Azad : 17 :
16. PW-9 Sh.S.K.Goel (Retired), Sr. Manager, Oriental Bank of Commerce, Ambala Road, Saharanpur has deposed that letter dated 08.04.2011, Ex.PW-9/A was written by him in order to provide information required by police from them pursuant to notice u/s 91 Cr.P.C. and as per record of dated 08.04.2011, the bank had provided the video footage of ATM transaction no. DA- 0020 Card no. 5576840525003242 on 01.04.2011 for Rs.2,200/- and the CD of the same provided by PW-9 to the police is Ex.PW- 9/P1.
17. PW-10 Sh. Anand Parkash Arora has deposed that he used to run Cyber Cafe at A-5/84A, Janta Flats, Paschim Vihar, New Delhi and had kept 08 computer systems at his Cyber Cafe, he had also maintained a register in the Cafe wherein he used to make entries in his own hand and used to take the copy of I/D of user which he used to keep with his records. He further deposed that accused Arvind was brought by the police to his Cyber Cafe and he correctly identified you before the Court. He further deposed that accused Arvind had used computer at his Cyber Cafe from 06:00 PM to 07:00 PM on 28.03.2011 and the relevant entry duly signed by accused is at point A in the register Ex.PW-10/P1, maintained by him. He further deposed that register Ex.PW-10/P1 was seized by the police vide seizure memo Ex.PW-10/A. He further deposed that he also used to make alphabetic entry regarding keeping I/D record of users of computer and the original register having entry of you accused at page no. 37, srl.no.10 is Ex.PW-10/B and the FIR No: 57/2011 Page No. 17 of 145 State v. Arvind Azad : 18 : photocopy of I/D of user is Ex.PW-10/C.
18. PW-11 Sh. Brahmanand Sharma has deposed that he works as a receptionist at Shiv Ganga Jaipuria Bhawan, Guest House, Haridwar, Chitra Talkies wali gali and in the month of April, 2021, Delhi police had come to their guest house alongwith one person who had stayed at their guest house and had verified the records of their guest house regarding the stay of that person. He correctly identified the accused before the Court as the person who was brought by the police at their guest house and who had stayed at their guest house. He further deposed that the police had checked the visitor's book maintained at the reception regarding the stay of guest at the guest house and had also checked the I/D records and Bill book of the guest house. He further deposed that he had provided the photocopies of the relevant records to the police and had brought before the Court the original visitor's register, provided to hotel by Nagar Palika Parishad, Haridwar for the period w.e.f. 31.03.2011 to 02.09.2011 from srl.no. 4001 to 6000 and the photocopy of Check-in entry no. 4129 dated 09.04.2011 at 03:00 AM by Arvind Azad s/o Sh. Subhash Chand Azad vide which he was allotted room no. 107 and he checked-out the guest house on 10.04.2011 at 12:20 PM is Ex.PW-11/A, running into two pages and his signatures are also on the register at points A & B. He has further deposed that the photocopy of the last page of register bearing attestation of the health department is Ex.PW-11/B (OS&R), the copy of I/D which was provided by the accused FIR No: 57/2011 Page No. 18 of 145 State v. Arvind Azad : 19 : Arvind Azad to the guest house is Ex.PW-11/D. Ex.PW-11/B also bears signatures of the accused at point A. He further deposed that he had brought before the Court the bill book/cash bill no. 2701 to 2800, wherein carbon copy of bill no. 2745 regarding allotment of room no. 107 to Arvind Azad and payment of Rs.450/- is recorded and the copy of the same is Ex.PW-11/C and the same also bears his signatures at point A.
19. PW-12 Sh. Jagat Singh has deposed that he used to work as Manager at Lotus Guest House, located at 101, Niranjani Akhara, Kankhal Road, Mayapur, Haridwar, Uttrakhand and was also looking after the said guest house since 2009, whereas Sh. Sumit Bauri was the owner. PW-12 had brought before the Court the Visiting register and other summoned record of Lotus guest house from the period 10.04.2011 to 11.04.2011 and as per entry dated 10.04.2011, person namely Arvind s/o Sh. Subhash Chand Azad, 27 years R/O RZC-59, Nihal Vihar, Nangloi, Delhi having mobile number 9911222844 checked-in the Lotus guest house at 02:14 PM on 10.04.2011 and checked-out from the guest house at 09:30 AM on 11.04.2011 and was given room no. 102 at the guest house and the relevant entry in this regard in the visitor's register made by the owner of the guest house Amit Kumar is at srl.no. 562 and the photocopy of the same is Ex.PW-12/A, running into four pages. (original visitor's register seen and returned). He has further deposed that at the time of taking room at the guest house, the visitor has to make entry in the visitor's register and has to provide FIR No: 57/2011 Page No. 19 of 145 State v. Arvind Azad : 20 : his identity proof and visitor Arvind had given photocopy of his I- card of Delhi Nagar Nigam Ex.PW-12/B. He had again deposed that the photocopy of Ex.PW-12/B was prepared by him from the original and the original of Ex.PW-12/B was returned by him to Arvind Azad. He has further deposed that three years prior to his deposition, Delhi police officials had come alongwith Arvind Azad, though he does not remember the face of Arvind Azad and cannot identify him. He has further deposed that room no. 102 was alloted to accused Arvind Azad in Lotus Guest House and he paid Rs. 200/- and receipt was also issued to him in this regard by Sh. Sumit Bauri Ex.PW-12/C (OS&R). Accused had also given copy of his ID proof at the time of booking of the room in the said guest house Ex.PW15/A. He further deposed that he had brought the original office receipt book and carbon copy of receipt no. 593 issued to Arvind Azad before the Court, issued by Sh. Sumit. He further deposed that after 7-10 days, Delhi police officials came to the Lotus guest house and Sumit Bauri handed over documents to them including verification done by the Tourism department and the police officials further procured the photocopy of visitor's register and receipt book from him and seized the same vide seizure memo Ex.PW-12/D, bearing the signatures of Sh. Sumit Bouri.
20. PW-13 Ms. Anita Goyal has deposed that since 17.04.2006, she was working as primary teacher at Nagar Nigam Prathmik Vidalaya, B-II, Chand Nagar, Khyala and though she did not FIR No: 57/2011 Page No. 20 of 145 State v. Arvind Azad : 21 : remember the exact number of teachers in the said school, however, Sanjay Kumar, Rajni Kant, Suraj Kumar, Mukesh Joshi, Madhav Singh, Om Prakash Dahiya, Renu, Bharat Lal Meena, Shalu, Vikas Kumar, Vijay Solanki and Arvind Azad were also working as teachers along with her in that school. She further deposed that on 31.03.2011, a small party was organized in the school on the occasion of completion of five years of service of accused Arvind Azad, Renu, Mukesh Joshi and her. The arrangements of the party were made by the accused and the eatables were brought by the accused and Vijay (deceased). Since on that day, results were delivered to the parents of the students, therefore, the teachers were free by 03:00 PM and thus, they went to have meal in the party. That in the said party, there was Naan (bread), Rice, Dal, Rajma etc. in menu but she did not recollect exactly what drinks were arranged however, she saw one juice packet on the bench. After she took food, she alongwith other ladies sat in a separate room, whereas the male staff remained in that very room, where arrangements of the party were made and therefore, she could not say as to who ate what food and who did not eat any food. After taking food, she alongwith others went back to do their work and were completing entries in the register while sitting in the library. Meanwhile, one of them went outside and stated "what has happened to Solanki, he is being taken" . They all immediately came out from library room and saw that 2-3 teachers were helping/extending support to Vijay Solanki to stand FIR No: 57/2011 Page No. 21 of 145 State v. Arvind Azad : 22 : and Vijay Solanki was made to sit in a Maruti 800 car, which belonged to accused Arvind Azad. She has further deposed that thereafter, she went back to her work, however, some of the male teachers went to the hospital and thereafter, she was informed by other staff members that Vijay Solanki was taken to another hospital and afterwards, she came back to her house.
21. Other teacher/ colleague of the deceased from the school has been examined as PW-14 Sh. Rajnikant, who has deposed that on 31.03.2011, he used to work as teacher at MCD school and on that day, a party was organized in the school on the occasion of completion of five years of service by 3-4 teachers and he was also present in the said party alongwith Vijay Solanki. He has further deposed that Vijay Solanki never used to take outside meal due to health reasons and in that party also, he did not eat anything and accused Arvind Azad who was also a teacher in their school brought a packet of juice for Vijay Solanki and Vijay Solanki consumed the said juice. He further deposed that after consuming the juice, Vijay Solanki was not feeling well, he was sweating, feeling perplexed and could not stand properly and they tried to make him comfortable. Accused Arvind Azad took out his Maruti 800 car and he helped Vijay Solanki to lie down on the back seat of the car. He further deposed that he also accompanied accused Arvind Azad and Vijay Solanki to Park hospital, which was nearby the school and other staff members also reached at the hospital. He further deposed that the doctor at the hospital advised to admit FIR No: 57/2011 Page No. 22 of 145 State v. Arvind Azad : 23 : Vijay Solanki and somebody informed the father of Vijay Solanki.
22. PW-15 Sh. Sumit Bouri has deposed that he is the owner of Lotus Guest House located at 101, Niranjani Akhada, Kankhal Road, Mayapur, Haridwar, Uttrakhand and he is also looking after management of this Guest House since 2009. He further deposed that on 10.04.2011 at around 02:14 PM, Arvind s/o Sh. Subhash Chand Azad came to his guest house and asked for a room and he has given his address as RZ-C/59, Nihal Vihar, Nangloi, Delhi and all the details except the room number and check out time is in the handwriting of Arvind, copy of the said record is Ex. PW-12/A. He further deposed that he has also issued a receipt in the name of accused Arvind against room no. 102 for Rs. 200/-, copy of the same is Ex.PW-12/C. The accused had also given a copy of ID proof at the time of booking the room in his guest house, copy of the same is Ex.PW-15/A. He further deposed that after some days i.e. 7/10 days, some police officials from Delhi came to his guest house and he handed over all these documents to them including the verification done by Tourism department and the same were seized by the police vide seizure memo Ex.PW-12/D.
23. PW-16 ASI Bal Krishan has deposed that on 01.04.2011, at about 07:15 PM, he received one rukka given by Reader to the SHO, sent by Insp. Randhir Singh Khatri, SHO for registration of FIR and on the basis of same, he got FIR no. 57/2011 recorded U/s 365 IPC, Ex.PW-16/A and endorsement was made by him on rukka vide DD no. 43A, Ex.PW-16/B (OS&R) and certificate issued by FIR No: 57/2011 Page No. 23 of 145 State v. Arvind Azad : 24 : him u/s 65B of the Indian Evidence Act to that effect is Ex.PW- 16/C.
24. PW-17 SI Hans Raj has deposed that on 03.04.2011, he on the instructions of Insp. Anil Kumar had left the police station vide DD no. 37A, Ex.PW-17/A (OS&R) in search of accused Arvind Azad, however he could not be found.
25. PW-18 Ct. Jaibeer has deposed that on 01.04.2022, at about 08:00 AM, information regarding missing of Arvind Kumar was recorded vide DD no. 14B, Ex.PW-18/A (OS&R), which was given by his brother Vikas Yadav S/o Sh. Subhash Chand Azad R/o RZC-66, Nihal Vihar, Nangloi, Delhi.
26. PW-19 Sh. Vikas Kumar has deposed that that he was posted as Primary School Teacher in MCD Primary School, Chand Nagar, B-II, Khyala from the year 2009 till 2011 and at that time, other teachers namely Sanjay, Rajnikant, Kiran, accused Arvind Azad, Vijay Solanki (deceased), Suraj Prasad, Mukesh Joshi, Madhav Singh Meena, Bharat Lal Meena, Om Prakash Dahiya, Shalu Rohilla, Renu, Anita Goel were also posted in the said school. PW- 19 has correctly identified accused Arvind Azad before the Court and deposed that accused and deceased were having good friendship with each other and used to remain together in the school very often and though he is not sure but perhaps accused and Vijay Solanki used to talk in respect of the property and deceased Vijay Solanki was of introvert nature. He further deposed that deceased Vijay Solanki never used to eat outside food and FIR No: 57/2011 Page No. 24 of 145 State v. Arvind Azad : 25 : most of the time, he used to take lassi and juice only. He further deposed that on 31.03.2011, he was present in the school and on that day, teachers had to declare results and some teachers in the school had completed five years of their services and had planned to host a party. Thereafter, accused Arvind Azad alongwith Vijay Solanki and Rajni Kant went out of the school for arranging rice, Naan, Rajma daal, cold drinks and juice for lunch and Rajni Kant & Vijay Solanki (since deceased) brought eatable items and Rajnikant told PW-19 that accused was bringing Juice and cold drinks. He further deposed that all eatable items were placed in the adjoining room and female teachers opened the boxes and called other teachers for lunch in their room and he alongwith other teachers went to the room, where lunch was arranged and they started taking lunch in plates, however, deceased Vijay Solanki did not eat anything as he did not eat outside food. In the meantime, accused Arvind Azad came in the room and put a juice pack on the desk of deceased Vijay Solanki. He further deposed that after taking lunch, he alongwith some other teachers went to the Principal's room and was not aware whether Vijay Solanki had consumed juice or not but Vijay Solanki also came in the Principal's room where he alongwith other teachers were preparing registers for new sessions. At that time, the eyes of Vijay Solanki were red and tears were coming from his eyes. One of the teachers checked the eyes of Vijay Solanki and they advised him to pour water in his eyes. After sometime, Vijay Solanki started FIR No: 57/2011 Page No. 25 of 145 State v. Arvind Azad : 26 : sweating badly and it appeared that he turned unconscious. He further deposed that accused Arvind Azad brought his Maruti 800 Car and deceased Vijay Solanki and Rajni Kant sat in the rear seat of the Car and thereafter, accused Arvind Azad took the deceased in his Car to Park hospital and he (PW-19) and some other teachers also reached at Park hospital on their motorcycles. In the Park hospital, doctor checked BP of Vijay Solanki and also advised to admit him in the hospital. One of the teachers suggested to inform the father of Vijay Solanki and accused told him that he (accused) had talked with father of Vijay Solanki, who had asked him to bring Vijay Solanki at District Centre, Vikas Puri. 26.1 PW-19 further deposed that Vijay Solanki was brought on wheel chair to his car and accused had already opened the front door of his Car. The persons present there including PW-19 wanted to make sit Vijay Solanki in the rear seat of the Car but accused asked them to make sit Vijay Solanki in the front seat and thereafter, the deceased Vijay Solanki got seated in the front seat of the Car and accused fled away from there speedily with his Car. Though they were astonished that why he had speeded the car but thought that as they are good friends, accused was in a hurry to shift him to hospital to save his life. After reaching the school, PW-19 had telephoned accused and Vijay Solanki twice, but both the phones were responding switched off and father of deceased Vijay Solanki informed that accused and deceased Vijay Solanki had not reached at District Centre, Vikas Puri and he (father of FIR No: 57/2011 Page No. 26 of 145 State v. Arvind Azad : 27 : deceased) had also asked about the address of accused. Thereafter, PW-19 alongwith Sh. Rakesh Kumar reached the house of accused, where his mother met them and she disclosed that she did not know about the whereabouts of accused. Thereafter, they both (PW-19 & Rakesh Kumar) reached at District Centre, Vikas Puri and informed to father of deceased that he was not found in his house. PW-19 further deposed in the leading question put by the State that the juice was brought for Vijay Solanki as Vijay Solanki never used to take outside food.
26.2. He has further deposed that on 02.04.2011, at about 10:30 PM, PW-19 received call from accused on his mobile number 9891973636 and told that he was planning something but different things had happened. On the asking of PW-19, accused informed that he was present nearby and deceased Vijay Solanki had taken his car to Nangloi. On inquiry by PW-19 that whether Vijay Solanki was all right, accused told that parents of deceased Vijay Solanki were harassing his (accused) parents. Accused also asked PW-19 that whether he had attended the funeral ceremony of deceased Vijay Solanki. PW-19 also asked the accused to disclose his location, so that he can visit him and accused told him that he will go to his friend Vijay Solanki and then he will come to know by tomorrow. Thereafter, he disconnected the phone. Thereafter, PW-19 went to PS Khyala alongwith his family members and gave an application Ex. PW-19/A to the SHO. From the PS Khyala, PW-19 also made a call to father of deceased Vijay Solanki and FIR No: 57/2011 Page No. 27 of 145 State v. Arvind Azad : 28 : father of accused about receiving of phone from the accused. He further deposed that his correct mobile phone number in Ex.PW- 19/A was 9891973636 and call was received from mobile number 8447917909.
27. PW-20 Dr. Ashok Kumar has deposed that on 31.03.2011, he was working at Park hospital as Consultant in department of medicine and on that day at about 04:15 PM, one patient namely Vijay Solanki, 25 years male was brought at Park hospital by the person namely Arvind and he had examined the patient Vijay Solanki and advised the patient and the accompanying person Mr. Arvind (accused) for admitting Vijay Solanki in hospital, however, accused was not ready to get Vijay Solanki admitted in the hospital. The examination findings of PW-20, written on letter head are Ex.PW-20/A from portion X to X. The writing on the left of point X to X on Ex.PW-20/A was recorded by his Jr. Resident on his dictation. He had also put his signatures on Ex.PW-20/A at point B. 27.1. However, he could not identify accused Arvind as the patient Vijay Solanki was not admitted in the hospital and the incident was of about three years back from the date of his deposition in the Court.
28. PW-21 Ct. Jai Pal has deposed that on 02.04.2011, as per instructions of IO/Insp. Anil Kumar, he went to PS Adarsh Nagar and obtained one Maruti Car bearing no. DL-9CJ-7347 with key which was deposited in malkhana of PS Adarsh Nagar u/s 102 FIR No: 57/2011 Page No. 28 of 145 State v. Arvind Azad : 29 : Cr.P.C. vide DD no. 38A dated 02.04.2011 alongwith RC and insurance papers vide RC no. 13/21. He brought the said car to PS Khyala and handed over the abovesaid articles alongwith Maruti Car to the IO. He further deposed that the abovesaid car was inspected in his presence. One solar film with stand, one water bottle, one empty bottle which smell of petrol, one match box, one plastic cane (containing engine oil kind material), one rod, Jack, Pana, Stepny, one Sun-shade, two bottles from the back side of the car were recovered which were converted into pullanda and were sealed with the seal of AKC. The abovesaid articles alongwith the Car, Insurance, RC and Key were seized vide memo Ex.PW-21/A. PW-21 had correctly identified the case property i.e. 5 pieces of Sun-shade, roll of solar black film Ex.PW-21/P.1, one empty plastic bottle of green colour having label of Mountain Dew Ex.PW-21/P.2, one empty plastic bottle having label of Fanta Ex.PW-21/P.3, one match-box make 'Home Lites' with some match-sticks Ex.PW-21/P4. He had also correctly identified the photographs Mark PW-21/A.1 to Mark PW-21/A.7 of Car no. DL- 9CJ-7347, which was released on superdari to Subhash Chander Azad and Panchnama containing seven sheets, one CD and seven photographs vide order dated 03.10.2015.
29. PW-22 HC Om Prakash has deposed that on 03.04.2011, at 12:45 AM, one person namely Vikas came to PS and produced a written complaint, Ex.PW-19/A before him and he recorded DD no. 5B, Ex.PW-22/A in this regard and handed over the complaint to Insp.
FIR No: 57/2011 Page No. 29 of 145State v. Arvind Azad : 30 : Anil Chauhan for action.
30. PW-23 Sh. Jai Bhagwan has deposed that on 16.04.2011, Sh.Harbir Singh had given a letter to police Ex.PW-4/B (alongwith envelope) and the same was seized in his presence vide seizure memo Ex.PW-4/A and PW-23 had also identified his signatures at point B on Ex.PW-4/A.
31. PW-24 Dr. Saroj Dahiya (Sr.Scientific Officer, FSL, SP Office, Rohtak) has deposed that on 01.04.2011, a telephonic message was received from SHO PS Sampla at around 09:00 AM and accordingly, he reached at the spot i.e. place in front of Mahendra Fastier Factory, Main Rohtak Delhi Road and inspected the spot where dead body of a male was lying in the lower area of the road. The dead body was wearing a grey colour check paints and blue colour underwear. The body was having partial burn injuries including mouth, hair, front upper portion and back side. Tongue of the deceased was in protruded condition between teeth. The spot was photographed and the IO was directed to lift the burn remnants for analysis. The report has been proved as Ex.PW-24/A.
32. PW-25 ASI Jai Kanwar has deposed that on 01.04.2011, he was deputed to work as motorcycle driver and was on patrolling duty with PSI Sandeep and on that day, at around 06:00 AM, chowkidar Surender S/o Banwari of Village Kharabar met them on the road during patrolling and informed that one dead body was lying in burnt condition by the side of the road near Mahindra Fastner Factory and several persons had gathered there. He alongwith PSI FIR No: 57/2011 Page No. 30 of 145 State v. Arvind Azad : 31 : Sandeep and chowkidar Surender reached the informed place and saw that a dead body of male was lying there in a burnt condition and by that time, dead body was not identified. He has further deposed that on observation of the dead body, the vest (baniyan) worn by the deceased was also burnt and Saleti colour pants was worn by the deceased, wherein phone number of National Tailor and size number of the pants was found written on the slip tagged on the pant. PSI took the piece of pant and bottle of oil from which smell of kerosene oil/petrol was coming. The same were sealed by the PSI with the seal of SK and seized vide memo Ex.PW-25/A, he also signed on the seizure memo and photographs of the spot were also taken. He correctly identified the case property i.e. one empty plastic bottle having label of 'Fanta' Ex.PW-25/P.1, which was found near the dead body and one piece of cloth of Saleti colour having burnt signs, wherein National Tailor, phone no. 2856343 was printed Ex.PW-25/P.2, which was seized by the IO after cutting from the pants.
33. PW-26 Dr. Jitender Kumar Jakhar, Asstt.Professor, Department of Forensic Medicine, Pt.B.D. Sharma PGIMS, Rohtak has deposed that on 02.04.2011, on the request of In-charge, PP Kharawar, District Rohtak, he conducted the postmortem of the dead body of Vijay Solanki s/o Sh. Harbir Singh, male aged 26 years. The dead body was identified by Rambir S/o Sh. Bhagat Singh and Rajinder. During the postmortem, he observed that the length of the dead body was 178 cm, wrapped in white cloth sheet and body was FIR No: 57/2011 Page No. 31 of 145 State v. Arvind Azad : 32 : wearing a grey colour pants having hook and zip open. The pants was having a trade mark of word 'National Tailor 28583743' over the inner aspect of the waist. He was also wearing a blue colour underwear having elastic waist. Both eyes of the deceased and mouth were closed. Rigor-mortis present over both lower limbs. Greenish discolouration present over the anterior abdominal wall. 33.1. He further deposed that during postmortem examination, the injuries i.e. superficial to deep burns present over the skull, face, neck, both upper limbs, front of the chest and part of the back; red line of demarcation present between healthy and burnt area; carbonaceous soot particles present in the tracheae, surface area of the burnt area was 40-45%; an abrasion of size 16 x 9 cm present over the front of the chest and front of the right side of abdomen; on deep dissection underlying tissues were found ecchymosed; an abrasion of size 3 x 2.5 cm present over the front of the right ankle joint. On deep dissection underlying tissues found ecchymosed. During postmortem examination, the age findings were also observed on the dead body of deceased i.e. all permanent teeth present and show mild to moderate grinding; ends of all long bones fused including medial end of clavicle; sternum Body fused, xiphoid not fused, menubrium not fused; sacrum fused. Scalp described, scalp hair singed Skull. vertebrate, membranes, brain and spinal cord were healthy, Walls described, ribs, cartilages & pleurae were healthy. Larynx and tracheae contain carbonaceous soot particles. Both lungs were congested. Pericardium was FIR No: 57/2011 Page No. 32 of 145 State v. Arvind Azad : 33 : healthy. Right side of heart contain blood left side empty. Large vessels were healthy. Stomach contain hemorrhagic fluid and mucosa was congested. Small intestine contains digested food material. Large intestine contains fecal matter and gases. Liver, spleen and kidneys were congested. Bladder was empty. Organs of generation-external and internal were healthy. 33.2. After postmortem examination, he had handed over (1) the duly stitched body after completing autopsy; (2) a copy of the post mortem report No. PME/11/4/6 dated 02.04.2016; (3) police (inquest) papers 14 in number, duly initiated by him ; (4) a sealed parcel bearing 3 seals containing clothing of deceased; (5) a sealed jar bearing 2 seal containing a swab containing blood ; (6) a sealed packet bearing 10 seals containing viscera for chemical analysis in separate bottles each being duly labeled & sealed to be sent to Director, FSL, Madhuban, Karnal ; (7) an envelope bearing 5 seals containing (1) a forwarding memo addressed to the Director, FSL, Madhuban (Karnal) & (ii) a copy of the postmortem report of this case ; (8) a sealed packet bearing 3 seals containing sternum + molar teeth for DNA profile, if needed ; (9) samples of the seal used (Fm). After A conducting the autopsy, he opined that the cause of death in this case will be given after receipt of chemical analysis report of viscera. The probable time that elapsed between death and autopsy was 24-48 hours. His original postmortem report running into 5 pages is Ex.PW-26/A. 33.3. He has deposed that on 09.07.2011, HC Ved Prakash, PS-
FIR No: 57/2011 Page No. 33 of 145State v. Arvind Azad : 34 : Khyala, New Delhi produced the chemical analysis report of viscera and request letter of Yashpal Singh, Inspector, PS- Khyala for final opinion in this case and on that application, after perusal of postmortem report, chemical analysis report No. FSL/11/Chem/2079 dated 17.06.2011, Chem. No. CH-672/11, he opined that the cause of death in this case was burns and their complications in deceased in which ethyl alcohol found positive and he made his remarks from portion B to B on the application of Inspector Yashpal Ex.PW-26/B.
34. PW-27 Insp. Sandeep Kumar has deposed that on 01.04.2011, he was on patrolling duty on official motorcycle alongwith ASI Jai Kawar and when they reached near Hanuman Mandir, Chowkidar namely Surender of village Kharawar came to him and informed that he had gone to meet his friend near Mahendra Fastener Factory situated in village Kharawar itself and had noticed that the people had gathered near the factory and came to know that a young male dead body was lying there in semi burnt condition. Thereafter, he alongwith ASI Jai Kawar and chowkidar Surender went to the informed place and there he noticed that a young male of about 20-21 years old was found dead in burnt condition. The shirt worn by the deceased was found burnt, he was found wearing white under shirt and grey colour pants.
34.1. He has further deposed that on inspection of the site as well as the dead body, he found that the pants worn by the deceased was wearing label of 'National Tailors' reading telephone number FIR No: 57/2011 Page No. 34 of 145 State v. Arvind Azad : 35 : of the tailor and particulars of the pants viz size, serial number etc. One 2 Ltrs. 'Fanta' pet bottle was found lying at the spot. The bottle was empty except for couple of drops of kerosene oil. He had called the crime team as well as informed his senior officers, who reached at the spot within one hour. Crime team had inspected the site. Photographs were clicked by the photographer from different angles. The bottle found lying at the spot was smelling kerosene. He had seized the bottle after placing it in a cloth pullanda and had sealed it with the seal of SK. The portion of pants of deceased, bearing particulars of the tailor, was cut out from the pants and was kept in a cloth pullanda which was similarly sealed. He had prepared the site plan and had recorded statement of chowkidar Surender. He had seized both the pullandas vide seizure memo Ex.PW-25/A, which was attested by chowkidar Surender and ASI Jai Kawar/PW-25. The dead body was got preserved in Mortuary of PGI, Rohtak and the said information was got recorded in PS Sampla on 01.04.2011 vide DD no.23. The exhibits were deposited in sealed intact condition in malkhana of PS Sampla. He had taken steps to establish the identity of the deceased by way of flashing messages through PRO, Rohtak and the residential address of deceased was ascertained through the National Tailor to whom he had talked on telephone number available on the label of the pants and the person had ascertained the telephone number of deceased available with him on the basis of serial number mentioned on the label of FIR No: 57/2011 Page No. 35 of 145 State v. Arvind Azad : 36 : the pants. Thereafter, he had attempted to contact on that telephone number, which responded as 'switched off'. On 02.04.2011, Delhi Police contacted them about the dead body and the family members of the deceased also accompanied Delhi police to their village. He has further deposed that the dead body was identified by Rambir and Rajender, relatives of the deceased and carbon copy of proceedings conducted by him u/s 174 Cr.P.C. including statements of witnesses recorded by him and seizure memo Ex.PW-25/A are collectively Ex.PW-27/A. It was discovered that an FIR regarding missing of the deceased had already been registered in PS Khyala, Delhi and the postmortem examination of the deceased whose name was discovered as Vijay Solanki was got conducted from PGI, Rohtak. He had prepared the site plan Ex.PW-27/B and the photographs which were clicked at the spot by the photographer of crime team are Ex.PW-27/P1 to Ex.PW- 27/P8. Thereafter, his statement was recorded by Insp. Yashpal from PS Khyala.
34.2. PW-27 had correctly identified the case property i.e. bottle bearing 'Fanta' label Ex.PW-25/P.1, recovered from the spot near the dead body and portion of cloth Ex.PW-25/P.2, as the piece of the pant which was cut off and seized from the pants of the deceased, before the Court.
35. PW-28 Sh. Bhagat Singh, Patwari, Village Kharawar, Tehsil Sampla, District Rohtak, Haryana has deposed that site plan dated 25.06.2011, Ex.PW-28/A was prepared by him and the same is in FIR No: 57/2011 Page No. 36 of 145 State v. Arvind Azad : 37 : his handwriting. He had prepared the same under the directions of the then Tehsildar, Tehsil Sampla and at the instance of CIC/Sh. Yashpal of PS Khyala, Delhi. Site plan Ex.PW-28/A indicates National Highway no.10, where point A in blank Ink is indicated as the place where the incident took place. 'Nishandehi' was got done by local Chowki Incharge SI Sandeep Kumar in the morning on 25.06.2011, which was reflected at point X on site plan Ex.PW- 28/A.
36. PW-29 Ct. Parvinder/Photographer, crime team that on 02.04.2011, on receipt of information from the control room, North West District, he alongwith SI M.D.Meena (Incharge Crime Team) and Ct. Ram Kishan (Finger Prints Proficient) had visited near bus stand of route no. 100 (DTC) near Sai Tyre Company, Rama Road in the area of PS Adarsh Nagar and found one car Maruti 800, which was inspected by the members of the crime team. ASI Ashok Kumar from PS Adarsh Nagar was also present there. He had clicked seven photographs of the car from his official camera from different angles, which was having negative film in it. The positives were developed from Crime Bureu Lab, Kamla Market and the same were handed over to the IO. He proved the negatives Ex.PW-29/A.1 to Ex.PW-29/A.7 before the Court. Ct. Parvinder admitted in the cross-examination by the State u/s 154 of Indian Evidence Act that the car which was inspected on 02.04.2011 was having registration no. DL-9CJ-7347 and he also admitted that the area where they had inspected the car FIR No: 57/2011 Page No. 37 of 145 State v. Arvind Azad : 38 : was of Azad Pur.
37. PW-30 Sh. Anuj Gupta has deposed that in the year 2011, he was dealing in Lubricants and was having a shop under the name & style of Sai Tyres company situated at A-15, Rama Raod, Adarsh Nagar, New Delhi. He made a call at 100 number from his mobile phone number 9868063749 regarding an abandoned car which was parked outside his shop for the whole night. Thereafter, police had come and took the car.
38. PW-31 Sh. Nitin Aggarwal has deposed that he runs a hotel in the name & style of Lucky Lodge situated opposite roadways bus stand, Buland Shahar and police from Delhi had visited at his place alongwith one person and they made inquiries about stay of that person in his lodge on a particular date. He had checked the hotel visitor's register and informed the police that on the given date, one person by that name had stayed in his lodge and due to passage of time, he do not remember the name of that person. He had provided the photocopy of the relevant entry in the register to the police. He had taken photocopy of I.D Proof of the Guest, Mark PW-31/C and had provided the said copy to the police alongwith extract of Guest Register Mark PW-31/B, which was seized by the police vide seizure memo Ex.PW-31/A, which bears his signatures at point A. He has admitted in the cross-examination conducted by ld. Addl.P.P. for the State that police had made inquiries about the guest who had stayed in his hotel on 02.04.2011 and whose name is entered vide srl.no. 1941 as Arvind FIR No: 57/2011 Page No. 38 of 145 State v. Arvind Azad : 39 : (accused). The guest who stayed in reference entry at srl.no. 1941 had submitted copy of I.Card of Electoral registration office, which is at point X in Mark PW-31/C.
39. PW-32 Sh.M.D.Meena has deposed that on 02.04.2011, he had received message from District Police Control room at about 08:30 PM regarding inspection of an abandoned Car at Bus stop Route no. 100, Azad Pur and he had reached there alongwith his team namely Ct. Parvinder (Photographer) and Ct. Ram Kishan (Finger Prints Expert) and found one Maruti Car bearing no. DL- 9CJ-7347, which was parked outside shop namely Sai Tyres Company. He had inspected the car vide inspection report Ex.PW- 32/A and had lifted one chance print form inside rear view mirror of the Car. He had got the photographs of the Car clicked from different angles through Ct.Parvinder. The photographs of the Car included photographs Mark PX, Mark PY and Mark PZ.
40. PW-33 Sh. Vijender Singh Bisht has deposed that he had worked as Manager in Paramount Hotel, Station Road, Kotdwar, U.K. in the year 2011 for about six months and during that period, police from Delhi had inquired from him in the present. On 02.04.2011, he had gone for dinner to his house and accused had visited his hotel during that time and had himself made an entry in the Visitor's register and when he visited in the hotel, staff from room service had attended the accused and provided the room. Accused had stayed in the said hotel till 03:00 PM on 03.04.2011 and the check-out time in the hotel used to be at 12:00 noon. He further FIR No: 57/2011 Page No. 39 of 145 State v. Arvind Azad : 40 : deposed that on 03.04.2011, he had directed hotel staff to remind all the guests staying in the hotel about the check-out time and accused had not responded to the door knock of the hotel staff. Later on, he alongwith other staff members had knocked the door of room no. 18, where accused was staying and after considerably knocking, accused opened the door. At that time, he was apparently under the influence of medicine or some intoxication and he was reminded about check out time and consequently, accused left the hotel by 03:00 PM. He had also produced the visitor's register before the Court, pertaining to the relevant period and entry at page no. 51, which was made by accused in his own handwriting is Ex.PW-33/A and according to the record, the accused checked in at 09:30 PM on 02.04.2011 and checked out at 03:00 PM on 03.04.2011. He has further deposed that when police had made inquiries from him, he had also called the owner of the hotel namely Sh. Anoop Kumar Barthwal. At the time of the stay of accused in the hotel, he had also provided the copy of his identity card issued by Delhi Municipal Corporation, Mark PW- 33/B.
41. PW-34 Sh. Anoop Kumar Barthwal has deposed that he runs a hotel in Kotdwar under the name & style of paramount Hotel and in April, 2011, Sh. Vijender Singh Bisht/PW-33 was working as Manager in his hotel. On 20.04.2011, Sh. Vijender Singh Bisht/PW-33, the Manager of the said hotel telephonically called him in the hotel, where Delhi police had brought the accused and FIR No: 57/2011 Page No. 40 of 145 State v. Arvind Azad : 41 : made inquiries about his stay in their hotel. He alongwith Sh. Vijender Singh Bisht had checked the hotel visitor's register and found that accused had stayed in their hotel from 02.04.2011 to 03.04.2011 and he had provided the copy of his (accused) identity card issued by Delhi Municipal Corporation at the time of lodging in the hotel and police seized the copy of relevant entry (Ex.PW- 33/A) about stay of accused in the said hotel alongwith copy of his identity card Mark PW-33/B vide seizure memo Ex.PW-34/A.
42. PW-35 Sh. Dwarika Prasad Chief Manager, Corporation Bank, Tilak Nagar Branch, Delhi had produced the summoned record before the Court and had deposed that letter mark Ex.PW-35/A dated 05.04.2011 was issued on behalf of their bank and he had brought the statement of account referred to in the said letter Mark PW-35/A. Record pertaining to saving bank account no. SB/01/008621 (latest account no. 520101056845541) in the name of Arvind Azad for the period from 22.09.2005 to 03.03.2018 (running into 49 pages) is Ex.PW-35/B (colly.) and the said statement is duly certified under the Banker's Book Evidence Act and the Certificate u/s 65B of Indian Evidence Act in support of electronic record contained is Ex.PW-35/B & Certificate is Ex.PW-35/C.
43. PW-36 Sh. Yogender Sharma Manager, Delhi Nagrik Sehkari Bank Ltd., Tri Nagar Branch that he had brought the summoned record and had issued letter dated 04.04.2011, Ex.PW-36/A. He had also brought fresh print outs of account no. 43008995602 in FIR No: 57/2011 Page No. 41 of 145 State v. Arvind Azad : 42 : the name of accused Arvind Azad s/o Subhash Chand. It was a loan account. The account statement for the period from 01.01.2000 to 01.03.2018, running into two pages is Ex.PW-36/B and the other record referred to in his letter Ex.PW-36/A is preserved in the Hon'ble Delhi High Court in W.P(C) no.7921/2016. He had produced certificate u/s 65B of I.E.Act, in support of account statement, Ex.PW-36/B and the certificate is Ex.PW-36/C. He has also clarified that the customer I.D. number is 89956 and account I.D. number is 43008995602. He has also produced before the Court the copies of documents pertaining to the ownership of property bearing no. 54, 100 sq.yds. forming part of Khasra no. 61, Village Matiala, New Delhi alongwith copies of payment receipts of House tax, Electricity bill, GPA, Will etc. Ex.PW-36/D (colly.) (running into 40 sheets). He had also produced before the Court copy of Banker's Cheque/Cash order of disbursement of loan of Rs. 10 lacs in favour of accused Arvind Azad and copy of the same is mark PW-36/1. He has also produced before the Court the remaining copies of the customer ID No.89956 regarding the same Loan Account, which included application for membership in the bank submitted by Arvind Azad, specimen signature sheet of Arvind Azad, application for loan submitted by Arvind Azad, Valuation Report of Plot No.54, Khasra No. 61, Village Matiala, letter of Lien and Set off, Bond for the borrower in service, borrower's consent Note, surety's consent Note, Salary Certificates of Surety and Borrower, copies of Photo FIR No: 57/2011 Page No. 42 of 145 State v. Arvind Azad : 43 : ID of borrower, surety and estimate and copies of Debit/Credit Vouchers, marked as Mark PW-36/2 (colly.) (37 sheets). The originals of these documents are seized in WP (C) 7921/2016 titled as Anil Kumar Gaur Vs. Reserve Bank of India & others pending before the Hon'ble High Court of Delhi. Internet downloaded Copy of the relevant Order passed by the Hon'ble Delhi High Court is Mark PW-36/3 (running into 2 sheets). He has further deposed that the property no. 54, Khasra no. 61, Village Matiala measuring 100 sq.yds was mortgaged by accused by way of deposit of Title Deeds, Ex.PW-36/D (colly.).
44. PW-37 SI Ashok Kumar has deposed that on 02.04.2011, on receiving telephonic information by the then duty officer regarding unattended car near A-15, Rama Road, Adarsh Nagar, he alongwith Ct. Pradeep reached at the informed place and found one Maruti car bearing no. DL-9CJ-7347, white colour, parked near A-15, Rama Road, Adarsh Nagar. He found that the car was locked and tried to trace the owner of the said car through PCR and surroundings and thereafter, with the help of some local mechanic, he opened the said Car as no clue about the owner could be found despite sincere efforts. After opening the Car, he checked its documents and found the documents of the car lying in its dash board. A key of the Car was also found lying there. As per the RC found in the car, it stood registered in the name of Subhash Chand Azad. One plastic bottle smelling petrol was found lying on the rear seat in the Car. Telephone number of registered owner was FIR No: 57/2011 Page No. 43 of 145 State v. Arvind Azad : 44 : also found written on some paper lying in the car. He contacted the owner and asked him about the reason for parking the car there. He informed that his car is wanted in case FIR no. 57/2011 (i.e. the present case) registered in PS Khyala. He called the crime team at the spot to get the car inspected and SI M.D.Meena/PW- 32, Incharge crime team alongwith his team comprising photographer and finger print proficient reached at the spot, who took photographs and chance prints. He seized the Car u/s 102 Cr.P.C. vide seizure memo Mark PW-37/A. Photographs of the Car are already marked as Mark PX.
45. PW-38 SI Rajesh Kumar has deposed that on 03.04.2011, Ct.Jaipal had handed over one car make Maruti 800 white colour to Insp. Anil Kumar Chauhan and the car was stated to have been found abandoned in the area of Adarsh Nagar. Certain articles were found lying in that car which IO had seized after keeping the same in pullanda. The pullanda was sealed by Insp. Anil Kumar/PW-40 with the seal of AKC and the seal after use was handed over to him.
45.1. On 17.04.2011, he alongwith IO and Ct. Rajesh Kumar went to Karam Pura Terminal alongwith driver Ct. Praveen and Ct. Kaushan in govt. vehicle when an information was received by IO regarding the presence of accused in the area of Karam Pura Terminal and when they reached there, a secret informer had met the IO and pointed out towards accused Arvind Azad. He has further deposed that accused was found standing near bus terminal FIR No: 57/2011 Page No. 44 of 145 State v. Arvind Azad : 45 : and on the directions of the IO, they had apprehended accused and as it was raining at that time, they brought accused in PS Khyala. At PS Khyala, he on the asking of the IO, returned the seal of the IO to him which the IO had handed over to him on 03.04.2011. The IO took the seal vide seizure memo Ex.PW-38/A. He has further deposed that PW-40 interrogated accused and arrested him vide arrest memo Ex.PW-38/B, pursuant to his personal search vide memo Ex.PW-38/C. Accused was interrogated and his disclosure statement was recorded vide memo Ex.PW-38/D. During the personal search of accused, one mobile phone, one I.Card, one ATM card and one metro card were recovered. The Sim card and battery were taken out from the mobile phone, were separately sealed and seized vide memo Ex.PW-38/E. The articles recovered from his personal search except I.Card, Ex.PW-33/B were sealed by the IO with the seal of AKC. Accused was carrying a Pithhu bag which was checked and the same was containing one T.shirt, three shirts, one jeans pant, two shorts, five towels and one bed-sheet and the same were taken into possession vide seizure memo Ex.PW-38/F. 45.2. He further deposed that accused disclosed that he had made search on the Internet regarding ketamine drug in a Cyber Café situated at A Block, Paschim Vihar, and thereafter, he led the police party to that Cyber Café and disclosed that he had made an entry in the register maintained in the Café. IO met owner Anand Prakash Arora who handed over the documents to the IO. The FIR No: 57/2011 Page No. 45 of 145 State v. Arvind Azad : 46 : register was checked by the IO and the same was found containing the said entry. The register containing the said entry dated 28.03.2011, was seized by the IO vide memo Ex.PW-10/A. The photocopy of the User's register is Ex.PW-10/B, the user ID of accused is Ex.PW-10/C, the original user ID register is Ex. PW- 10/P1, containing entries at page no. 24 & 25 dated 28.03.2011 at srl.no.2 and ID record register is Ex.PW-10/B, containing name of accused at srl.no.10. IO/PW-40 also prepared pointing out memo of the said Cyber Café Ex.PW-38/G. Thereafter, on 18.04.2011, they alongwith Ct. Rajesh and accused went to Khyala bus stand of route no. 830, where accused pointed towards Super Bakery, which was closed at that time, from where he had purchased 'Tetrapack of Real Juice' and IO prepared pointing out memo of Super Bakery shop Ex.PW-38/H. After obtaining 05 days PC remand of accused from the Court, accused led the police party to Bagirath Palace and pointed out towards the Chemist shop namely Krishna Medicos from where he purchased injections of Ketamine drug and other medicines on 29.03.2018 and 02.04.2018 and IO prepared pointing out memo of the said chemist shop Ex.PW-38/I. IO also met owner of the said shop namely Sham Sunder. Accused also took the police party to the office of Sub Registrar, Kapashera and disclosed that he and deceased had purchased a piece of land and got registered the documents of said land in the office of Sub Registrar, Kapashera. It is further deposed by PW-38 that IO checked the said entries in the record maintained in the FIR No: 57/2011 Page No. 46 of 145 State v. Arvind Azad : 47 : office of Sub-Registrar regarding registration of documents of said land, however, no such entry was found existing in the said record and it is deposed by PW-40 that the dealing clerk was not found. 45.3. On the next day of PC remand i.e. on 20.04.2011, they alongwith Ct. Rajesh took accused from PS in a private vehicle and reached near traffic signal, Peera Garhi where accused disclosed that he had purchased one solar film and five sun-shades from vendor/hawker on footpath. IO prepared pointing out memo of this place Ex.PW-38/J. Thereafter, after crossing a distance of about 500 meters towards Bahadurgarh, accused disclosed that he had given injection of Ketamine drug to the deceased and also affixed solar film and Sun-shades in his Maruti 800 car. Thereafter, they reached near a petrol pump before Sampla, where accused disclosed that he had purchased petrol in two bottles from this petrol pump. Accused also pointed out the place ahead of some distance from the petrol pump where he had thrown the dead body and ablazed the dead body after pouring the petrol on the same after taking out the purse of the deceased, his ID card, PAN card, ATM card, his shoes and socs. IO prepared the pointing out memo of the abovesaid places Ex.PW-38/K. Thereafter, after crossing about 10-12 kms. on the road from Rohtak towards Sonepat, after 2-3 kms. from village Hastal Bhore accused disclosed that he had thrown the shoes, socks, the I.cards of the deceased in the bushes. Thereafter, IO stopped the vehicle there and they got down from the car and accused got recovered the FIR No: 57/2011 Page No. 47 of 145 State v. Arvind Azad : 48 : PAN card Ex.P-38/3 of the deceased which was lying in the bushes. IO prepared pointing out memo and recovery memo of PAN card which is Ex.PW-38/L. IO also prepared the site plan of that place which is Ex.PW-38/M. Thereafter, they went to Haridwar where accused took them to Jaipuria Guest house and disclosed that he reached to this guest house after committing the offence and stayed there from 09.04.2011 to 10.04.2011. IO checked the record maintained in the said guest house and found that there were entries showing the arrival and stay of accused in this guest house and he seized the photocopies of the said entries made in the relevant register i.e. photocopy of visitor's register alongwith the copy of his I.Card which was given by accused at the time of his stay in the guest house and the same were seized vide seizure memo Ex.PW-38/N and the pointing out memo Ex.PW-38/O was prepared. IO also gave directions to the Manager Sh. Brahmanand Sharma for safe keeping of record vide letter Ex.PW-40/K. Thereafter, accused took them to Lotus Guest house situated in Haridwar, which he had disclosed that he had stayed in this guest house after staying in Jaipuria guest house and stayed there from 10.04.2011 to 11.04.2011. IO checked the record maintained in the said guest house and found that there were entries showing the arrival and stay of accused in this guest house and he seized the photocopies of the said entries made in the relevant register alongwith the copy of his I.Card which was given by accused at the time of his stay in the guest house vide memo FIR No: 57/2011 Page No. 48 of 145 State v. Arvind Azad : 49 : Ex.PW-12/D. The relevant record is Ex.PW-12/A and the pointing out memo prepared by the IO at the instance of accused is Ex.PW- 38/P. IO had taken the said documents from Sumit Bouri, Manager cum Receptionist and had given directions in writing vide letter Ex.PW-40/L to him for safe keeping of records. Thereafter, accused led the police party to Har Ki Pori and disclosed that he had thrown the mobile phone of the deceased there, however, accused could not identify the exact place where he had thrown the said mobile phone. Thereafter, on 20.04.2011, accused led the police party to Saharanpur Bus Stand and pointed out towards the ATM of Oriental Bank of Commerce and disclosed that he had withdrawn money i.e. Rs. 2,200/- from the ATM card of deceased from the said ATM. IO/PW-40 prepared the pointing out memo of this ATM, Ex.PW-38/Q at his instance. Thereafter, accused led the police party to Kotdwar and led them to Paramount Hotel and disclosed that he had reached in this Hotel on 2.4.2011 and stayed there in the intervening night of 2/3.4.2011. IO checked the record maintained in the said Hotel and found that there were entries showing the arrival and stay of accused in the said Hotel. IO seized the photocopies of entries made in the relevant register and copy of ID Card of accused vide memo Ex.PW-34/A. PW-38 further deposed that the relevant records are Ex.PW-33/A and Ex.PW-33/B. IO also prepared pointing out memo of the said Hotel, Ex.PW-38/R which was prepared at the instance of accused. IO took those documents from Anoop Kumar, Manager cum FIR No: 57/2011 Page No. 49 of 145 State v. Arvind Azad : 50 : Receptionist and gave directions in writing to the Manager vide letter Ex.PW-40/M for safe keeping of records. 45.4. On the next day during the period of his PC remand i.e. on 21.04.2011, they came to Bulendshahar from Kotdwar, where accused pointed towards Laxmi Lodge and disclosed that he had stayed there for 2-3 hours during afternoon of 2.4.2011. IO checked the record maintained in the said Lodge and found that there were entries showing the arrival and stay of accused in the said Lodge and he seized the photocopies of entries made in the relevant register and copy of ID Card of accused vide seizure memo Ex.PW-31/A. The relevant records are Ex.PW-31/B & Mark PW-31/C and the IO had also prepared the pointing out memo of this Lodge, Ex.PW-38/S at his instance. IO/PW-40 also gave directions to the Manager of Laxmi Lodge Sh. Nitin Aggarwal for safe keeping of the records vide letter Ex.PW-40/N. Thereafter accused took them to Agra, however, he could not identify the place/hotel where he stayed in Agra. Then accused took them to Rewari and led them to Nayi Mandi and pointed a shop of "Khetibaari Beej Bhandar" and disclosed that from that shop, he had purchased the tablets of Sulphas. IO prepared the pointing out memo Ex.PW-38/T of that shop at his instance and thereafter, they came back to Delhi. On the next day during his PC remand i.e. on 22.04.2011, accused took them near Adarsh Nagar Metro Station and from there, he took them in a street and pointed out the place i.e. near one Paan Shop and Sai Tyre Company and FIR No: 57/2011 Page No. 50 of 145 State v. Arvind Azad : 51 : disclosed that he had left his Maruti Car No. DL-9CJ-7347 at that place on 31.3.2011 after committing the offence. IO prepared the pointing out memo of that place Ex.PW-38/U at his instance. On the next day during PC remand of accused i.e. on 23.04.2011, he took them to MCD Primary School, Chand Nagar, Khyala, where accused and deceased both used to work and accused disclosed that he had got issued one SIM card in the name of father of a Mohammedan boy studying in his class and the name of that Mohammedan boy was perhaps Akhlaq.
45.5. On 28.6.2011, he took the questioned documents alongwith, specimen hand writing of accused from the IO and took the same to FSL and deposited these documents in FSL and obtained the acknowledgment receipt and thereafter, he handed over the receipt to MHC(M). PW-38 had correctly identified his signatures on the seizure memo Ex.PW-21/A of Maruti Car, articles lying therein including the Sun-shades and roll of solar black film, Ex.PW-21/P1, one empty plastic green bottle with label of Mountain Dew, Ex.PW-21/P2; One empty plastic Fanta bottle, Ex.PW-21/P3; Match box of Homelite, Ex.PW-21/P4, before the Court. PW-40 also correctly identified the said articles i.e. Ex.PW- 21/P1, Ex.PW-21/P2, Ex.PW-21/P4, Ex.PW-38/1. He also correctly identified the Car bearing no. DL-9CJ-7347 (already released on superdari to Subhash Chand Azad on 03.10.2015), 7 sheets, one CD and 7 photographs, Ex.PW-38/A1 to Ex.PW-38/A7 (earlier marked as Mark PW-21/A1 to PW-21/A7). He also FIR No: 57/2011 Page No. 51 of 145 State v. Arvind Azad : 52 : identified black colour duffel bag containing clothes as mentioned in seizure memo Ex.PW-38/F, exhibited as Ex.PW-38/1; one mobile phone make Nokia with separate battery and SIM card of Airtel in an empty match box, recovered during your personal search, Ex.PW-38/2 and PW-38 also identified PAN card of deceased Vijay Solanki Ex.PW-38/3.
46. PW-39 Sh. Rambir Singh has deposed that deceased Vijay was his nephew and he was working as a teacher in a govt. school at Chand Nagar. He knew accused as he was also working as teacher in the same school and therefore, he correctly identified accused Arvind Azad before the Court. He has further deposed that on 31.03.2011, deceased Vijay went to school to attend his duty and at about 04:00 PM or 04:30 PM, accused gave a telephonic information to his brother PW-4 Harbir that Vijay was not feeling well, so he was taking him to Park hospital. After some time, accused again made call on the phone of his brother PW-4 Harbir and informed him that he (accused) would come alongwith Vijay (since deceased) to District Centre and asked PW-4 Harbir to reach there. Thereafter, he alongwith PW-4 Harbir and his two other brothers reached at District Centre and waited for Vijay and accused but they both did not reach there. There two other teachers of the same school met them and handed over the keys of the car of Vijay to them and informed that accused had forcibly taken Vijay with him in his car. Thereafter, they made search for Vijay (since deceased) in the school and in the hospital but could not FIR No: 57/2011 Page No. 52 of 145 State v. Arvind Azad : 53 : trace Vijay. In the night, they visited the house of accused but neither accused nor Vijay were found there and on the next day i.e. 01.04.2011, a telephone call was received by his brother PW-4 Harbir from police official of Haryana and he informed about the recovery of a dead body and asked them to identify the said dead body. He has further stated that he alongwith his cousin Rajender and 2-3 other brothers went to PGI, Rohtak. There they saw the dead body and identified the body as that of his nephew Vijay. His statement was recorded by the concerned police official at Haryana. He identified his signatures on the postmortem report dated 02.04.2011 Ex.PW-26/A at point B, however, they received the dead body of Vijay after the postmortem.
46.1. After some days of the above incident, his brother PW-4/Harbir received phone call from a Bank, Janak Puri Branch and it was informed that accused Arvind Azad had taken a loan on the documents pertaining to the ownership of the house of PW-39 constructed at Plot no. 54, Khasra no. 61, Village Matiala, Delhi. Thereafter, he alongwith his brother PW-4/Harbir went to bank to check the documents and the bank officials produced the file of loan taken by accused before them. He found that the documents of his property bearing no. 54, Khasra no. 61, Village Matiala, Delhi were lying in the bank and accused had taken loan on the said documents. The bank gave information to his brother PW-4/Harbir as the installment of the loan was not paid by accused. He has further deposed that accused used to visit house of FIR No: 57/2011 Page No. 53 of 145 State v. Arvind Azad : 54 : PW-4/Harbir alongwith his nephew Vijay. The documents of his (PW-39) abovesaid property were lying in the house of his brother Harbir as his house no. 21 was under construction at that time. As accused wanted to grab his abovesaid property, he induced Vijay to hand over the documents of his property to him. Accused prepared false documents of his (PW-39) property by transferring his property in his name and then accused again transferred the documents in the name of his (accused's) mother Bimla Devi. He further deposed that he was having only GPA of the abovesaid property in his name and did not know the description of transfer documents by which accused got transferred his property in his own name and then further transferred the same in the name of his mother. After seeing the copy of GPA, Ex.PW-39/A annexed in the judicial record PW-39 further deposed that he never executed this GPA in the favour of accused and denied his signatures at point A on every page of the said GPA and deposed that the GPA was a false document and his signatures were forged on the same. After seeing the copy of agreement to sell, affidavit, possession letter, receipt and Will, Ex.PW-39/B to Ex.PW-39/F, PW-39 further deposed that the said documents also do not bear his signatures and were forged and false documents. PW-39 further deposed after seeing the documents annexed in the judicial record i.e. copy of GPA, agreement to sell, receipt, affidavit and Will executed by Chhattar Singh in favour of Rambir of property bearing no. 54, Khasra no. 61, Village Matiala, Delhi, Ex.PW-39/G to Ex.PW-
FIR No: 57/2011 Page No. 54 of 145State v. Arvind Azad : 55 : 39/K that these documents are genuine documents and he had purchased this property from Chhattar Singh on the basis of these documents.
47. PW-40 Insp. Anil Kumar Chauhan is the investigating officer and had deposed in consonance with the final report and qua various aspects of investigation conducted by him. He deposed to have went to the place where the dead body of Vijay Solanki was recovered by PSI Sandeep and inspected the spot. The postmortem examination on the dead body of Vijay Solanki got conducted. Car bearing no. DL-9C-7347 belonging to accused was recovered and the same was inspected by the IO and certain articles were recovered from the said Car. Details of bank accounts maintained in the name of accused was got collected. IO met the teachers of the school where accused and deceased were working. Accused was arrested and his personal search was conducted. His disclosure statement was recorded pursuant to which he led the police party to the places. He had correctly identified accused Arvind Azad and the case properties, that is, five sunshades and on roll solar black film Ex.PW-21/P1; one empty plastic green bottle/Mountain dew Ex.PW-21/P2; one match box of homelite Ex.PW-21/P4; one black colour bag containing clothes Ex.PW- 38/1 as mentioned in seizure memo Ex.PW-38/F; one black colour purse with Rs.600/- in denomination of demonetized currency note of Rs.500/- and one GC note of Rs.100/-, one ATM of Corporation Bank, one metro card, one driving licence in the name of accused FIR No: 57/2011 Page No. 55 of 145 State v. Arvind Azad : 56 : which are the personal search articles of accused as per Ex.PW- 38/C; one mobile phone make Nokia with separate battery, Sim- card of Airtel in empty match box, i.e., the articles recovered in personal search Ex.PW-38/2; Photographs of Maruti Car bearing no. DL-9CJ-7347, Mark PW-21/A to A.7.
48. PW-41 HC Ashok Kumar has deposed that on 13.04.2011, MHC(M) PS Sampla handed over four sealed parcels to him alongwith RC no. 64/21/11 for depositing the same at FSL, Madhuban, Haryana and he took the parcels to FSL, Madhuban and deposited the same and obtained receipt from the FSL and handed over the same to MHC(M). So long as the parcels remained in his custody, same were not tampered with in any manner.
49. PW-42 ASI Kuldeep has deposed that on 02.04.2011, IO PSI Sandeep handed over the inquest papers to him for conducting the postmortem examination on the dead body at PGI Mortuary, Rohtak and he went to PGI, Rohhtak and got conducted the postmortem examination and after the postmortem examination, doctor handed over four sealed parcels to him alongwith postmortem report, Ex.PW-26/A. He handed over the P.M. report and sealed parcels to the IO PSI Sandeep. On the same day, police officials came from Delhi to PP Kharawar and inquiries were made from him. PW-42 ASI Kuldeep has admitted in the leading questions put to him by the Ld. Addl. P.P.for the State that name of deceased was Vijay Solanki and postmortem examination was got FIR No: 57/2011 Page No. 56 of 145 State v. Arvind Azad : 57 : conducted by him on his dead body. He also admitted in the question put to him by the Ld. Addl. P.P. for the State that inquiries were made from him by Delhi police officials at PS Sampla.
50. PW-43 ASI Shri Bhagwan, MHC(M), Sampla has deposed that on 03.04.2011, IO PSI Sandeep PP Kharawad deposited seven sealed parcels in the malkhana in connection with DD no. 23 dated 01.04.2011, u/s 174 Cr.P.C. PS Sampla and entry to that effect was made at srl.no. 55 in register no. 19A, Ex.PW-43/A. On 13.04.2011, he handed over three sealed parcels sealed with the seal of PGI Rohtak and one sealed parcel sealed with the seal of SK to Ct. Ashok Kumar vide RC no. 64/21/11, Ex.PW-43/B for depositing the same in FSL, Madhuban, Haryana and he made endorsement in this regard in register no. 19A in the encircled portion X on Ex.PW-43/A. After depositing these exhibits in FSL, Ct. Ashok handed over receipt Ex.PW-43/C to him. He has further deposed that on 22.06.2011, FSL result and sealed exhibits were received from the FSL and on 24.06.2011, all the sealed exhibits alongwith FSL result were handed over to HC Ved Prakash from PS Khyala vide RC No. 112/21/11, Ex.PW-43/D.
51. PW-44 Insp. Yashpal Singh has deposed that on 13.06.2011, he went to PGI hospital, Rohtak and obtained carbon copy of PM report of deceased Vijay Solanki and the inquest papers from Dr. Jitender. Thereafter, he collected the crime team report alongwith the photographs taken by crime team officials from the head of crime team namely Ms. Saroj Dahiya from SSP office, Rohtak on FIR No: 57/2011 Page No. 57 of 145 State v. Arvind Azad : 58 : 13.06.2011. He has further deposed that on 23.06.2011, he moved an application for obtaining specimen hand writing and signatures of accused as he was in J.C. as a letter had already been seized by the previous IO allegedly written by accused. On 24.06.2011, he again went to PS Sampla and met Sh. Bhagat Singh, Halka Patwari and requested him for preparing the scaled site plan, Ex.PW-28/A of the place from where the dead body was recovered. On 28.06.2011, he was given copy of site plan at PS Sampla by the Halka Patwari Bhagat Singh and on the same day, he made an application to Dr. Jitender of PGI hospital, Rohtak for obtaining subsequent opinion on the cause of death and thereafter subsequent opinion Ex.PW-26/B was obtained by him. He has further deposed that on the same day i.e. 28.06.2011, SI Rajesh was sent to FSL, Rohini alongwith letters which were seized vide memo Ex.PW-40/J for obtaining opinion thereupon alongwith specimen writing of accused. Thereafter, he had recorded statement of witnesses and filed the charge-sheet.
52. PW-45 Sh. Anurag Sharma, Asstt. Director (documents), FSL, Rohini, Delhi as also posted at RFSL, Chankya Puri, New Delhi has deposed that on 28.06.2011, documents were received in their laboratory in 19 sheets bearing markings Q.1 to Q.16, Q.9A ( as questioned documents) and S.1 to S.4 (as specimen handwriting and signatures of accused) in unsealed condition and same were marked to him for examination. He had examined all the documents thoroughly and scientifically with the help of various FIR No: 57/2011 Page No. 58 of 145 State v. Arvind Azad : 59 : scientific instruments mentioned in his detailed report Ex.PW- 45/A and after examination, he opined that the person who wrote the red encircled writings and signatures in documents Mark S.1 to S.4 also wrote the red enclosed writings and signatures of the documents mark Q.1, Q.2, Q.4 to Q.6, Q.8 and Q.16. He has further deposed that regarding the other questioned documents i.e. Q.3, Q.5, Q.7 and Q.9 to Q.15 and Q.9A, he opined that it has not been possible to express any opinion on the basis of material at hand and in the absence of further standard Hindi/English extensive writings and signatures as well as corresponding original documents of reproduction copies and he gave his detailed report dated 22.08.2012 Ex.PW-45/A. He further deposed that the questioned documents Mark Q.1, Q.2 (which is a letter, Ex.PW- 40/I), Q.3 (an envelope, Ex.PW-45/B), Q.4 to Q.6 (a letter Ex.PW- 4/B), Q.7 (an envelope Ex.PW-45/C) and Q.9 & Q.9A (photocopies of both are Ex.PW-11/B), Q.10 to Q.15 (photocopies Ex.PW-45/D.1 to Ex.PW-45/D.6) and Q.16 (an original letterhead of Park hospital Ex.PW-20/A) bear his stamp at point A and the specimen handwriting and signatures of accused Arvind Azad marked as S.1 to S.4 also bear the stamps of FSL at point A. The specimen handwriting and signatures marked S.1 to S.4, Ex.PW- 45/E.1 to Ex.PW-45/E.4 bear the stamps of FSL at points A and these are the same questioned and specimen documents which were examined by him. After examination and report, all the original documents alongwith original report were handed over to FIR No: 57/2011 Page No. 59 of 145 State v. Arvind Azad : 60 : the authorized messenger of the forwarding authority.
53. PW-46 Sh. Bharat Bhushan, Sr. Scientific Officer, Chemistry, FSL, Madhuban, Karnal has deposed that he had worked with Sh. Loveleen K.Katyal, Sr. Scientific officer, Chemistry, FSL, Madhuban, Karnal during the period of 11.06.2012 to 31.07.2013 and therefore, he can identified his handwriting and signatures. He has proved the report no. 11/Chem-2079 dated 17.06.2011, Ex.PW-46/A, before the Court, which was prepared by Sh. Loveleen K. Katyal and bearing his signatures at point A & B on Ex.PW-46/A.
54. PW-47 Insp. Avdesh Kumar has deposed that on 26.08.2019, he was posted as Finger Prints Expert at Finger Prints Bureau, PS Kamla Market and on that day, copy of scene of crime examination report bearing serial no. 219/11 dated 02.04.2011 alongwith lifted chance print marked as Q-1 (alongwith negatives) and specimen finger prints of accused was received in connection with the present case for comparison and same were assigned to him for examination. He has further deposed that he examined chance prints marked as Q-1 which was lifted by the crime team vide SOC No. 219/11 on 02.04.2011 and specimen finger prints of accused and found that the chance print marked as Q-1 is identical with left thumb impression marked as S-1 of accused. After examination, he prepared his detailed report dated 04.09.2019 as Ex.PW-47/A. During examination, he also prepared enlarged photographs of the chance print as well as of the specimen finger FIR No: 57/2011 Page No. 60 of 145 State v. Arvind Azad : 61 : prints/thumb impression of accused, Ex.PW-47/B; details of ridge characteristics between identical points, Ex.PW-47/C; the specimen finger prints marked as S-1 which were examined by him, Ex.PW-47/D. After examination, he submitted his report to the Director of Finger Print Bureau, Delhi Police.
55. Prosecution evidence was closed vide order dated 24.02.2022 on submissions of Ld. Addl. PP for the State that all the prosecution witnesses have been examined.
Statement of accused:
56. Statement of accused under section 313 Cr.P.C was recorded on 17.05.2023, wherein all the incriminating material on record was put to the accused however he denied the same. He admitted the sanction of loan of Rs 10 lakhs however, denied the forgery of any of the document and stated that he bought the property from Sh. Rambir Singh. It was also stated that in order to usurp the property false allegations have been made against him. He and deceased were good friends as they were working in the same school as teachers. The family of deceased used to deal in property. After the marriage of deceased in February, 2010, the deceased and his family were in heavy debt. They had taken loan from different persons as informed by the deceased to him. The house of uncle of deceased was also under construction and the uncle of the deceased was also in need of money. In April, 2010, the deceased approached the accused with a proposal to purchase the plot of his FIR No: 57/2011 Page No. 61 of 145 State v. Arvind Azad : 62 : uncle Sh. Rambir Singh. The market price of the said plot was around Rs. 32 lakhs and they offered him to purchase the property for Rs.25 lakhs. He was reluctant to purchase the said property, however, the deceased and his uncle assured him that this property is free from any encumbrances. After much insistence, accused agreed to purchase the property. Accordingly, the transfer documents ie. GPA, Agreement to Sell, Affidavit, Possession letter, Receipt, Will etc. were prepared by the deceased and his uncle and on 17.07.2010, after receiving the entire sale consideration of Rs. 25 lakhs, they handed over all the original documents alongwith the entire chain of the said property to the accused. The transfer documents were signed by the deceased as a witness and his uncle Sh. Rambir Singh as a seller. The possession was also handed over to the accused. After few days, deceased told the accused that they can earn profit by investing in the properties. Accused showed his incapability, however, he asked the accused to get loan against property from Delhi Nagrik Sehkari Bank Ltd. The loan was got sanctioned and the deceased assured that he will be making the payment of installments. The loan amount was taken by the deceased for further investment in the property. The deceased also applied for another loan in his name and Rs. 7 lakh was sanctioned. The loan was sanctioned by the bank in August, 2010. The installments towards loan taken in the name of accused were also being paid by the deceased. In January, 2011, the deceased planned a bigger investment and paid back the previous FIR No: 57/2011 Page No. 62 of 145 State v. Arvind Azad : 63 : taken loans and applied for a new loan of Rs. 10 lakhs each in his name, in the name of his wife as well as in his (accused) name. The loans were sanctioned in February, 2011. They trusted each other and signed the loan documents for each other and as a guarantor for the deceased's wife. The wife of the deceased was knowing the complete truth. The deceased was regularly making the payments of the installments of the loans. He also handed over a cheque of Rs.10 lakhs to the accused towards the loan taken in his name. They were not having any kind of dispute with each other and helping each other in needy times. He does not know if the deceased was having any kind of dispute between his family or with any person.
56.1 On 31.03.2011, a lunch was organized in the school by the staff on the occasion of completing of five years of some teachers. He alongwith the deceased and Rajnikant brought the food and drinks for the lunch. They all had the lunch and drinks. On the same day, the condition of the deceased went unwell and on the asking of someone, he immediately brought his car and took the deceased to the hospital which was located nearby. The doctor examined him and when his condition become stable, the deceased told the accused that he had talked to his father and he is feeling alright. He asked the accused to take discharge. Accused insisted for admission but he said that he does not want to get admitted in the hospital. Accused asked the deceased to drop him and he alongwith deceased left the hospital. The deceased had telephonic FIR No: 57/2011 Page No. 63 of 145 State v. Arvind Azad : 64 : call with his father but he did not remember if he also used his mobile phone. On the way from hospital, accused alongwith the deceased firstly went to the house of accused where accused asked the deceased to take rest however, the deceased told him that he is fine and he is leaving. The deceased asked him to handover the keys of his car and he did so.
56.2. On the late hours of 31.03.2011, some family members of the deceased came to the house of accused with police officials and started shouting and used abusive language with his family members. They were saying that the deceased was missing and he had not returned to home. His father pacified them and they returned. On the next day, accused came to know that the deceased was missing and accused was being suspected. Accused knew this fact that the deceased is from the Jaat community and they may kill him without any reason, he contacted the lawyer who advised him to switch off the phone, leave the city and not to contact anyone. He also told the accused that when the deceased will be found, he may come back. Accused believed him and left Delhi and resided at different places. Accused also wrote letters to the father of the deceased by informing him that he has not done anything wrong. On the other hand, his father was continuously being harassed. Father of deceased had contacted to his father who asked him to come to Delhi as police had got the actual offender and he is free now. Accused came to Delhi on 17.04.2011 and went to PS Khyala with his father where he was arrested in the FIR No: 57/2011 Page No. 64 of 145 State v. Arvind Azad : 65 : present case and came to know that a false case has been concocted against him. It might be due to the reason that the family of deceased including his uncle wanted to grab the property which was already sold to the accused. He did not know as to how the deceased had died and who had committed the murder of the deceased or he had committed the suicide. He has not done this crime. The uncle of the deceased had also filed a civil suit in respect of the property which was sold to him. He lastly stated that he is innocent and has been falsely implicated in this case.
Defence evidence:
57. While giving his statement u/s 313 Cr.P.C the accused also preferred to lead evidence in his defence, however, on 05.08.2023, Ld. Counsel for the accused submitted before the Court that accused does not want to lead any evidence in his defence and prayed that DE be closed. Accordingly, on that day, defence evidence on behalf of the accused was closed.
Final arguments (oral):
58. Ld. Counsel for the Ld.Addl. P.P. for the State well assisted with Ld. Counsel for the complainant submitted that though the case is based on circumstantial evidence but the chain of circumstances is complete in all respect as it has been proved on record that the accused got the deceased discharged from Park hospital on LAMA; the accused abducted the deceased; the accused was the FIR No: 57/2011 Page No. 65 of 145 State v. Arvind Azad : 66 : last person seen with the deceased soon before his death; the abundant car of accused was recovered by the police; the accused fled from the city and hide himself at different places in State of UP and Uttrakhand for almost 17 days soon after commission of crime; the accused wrote two letters confessing his crime to the father of deceased and his own real brother and the recoveries made from the car of the accused only point towards his guilt that after committing murder of deceased Mr.Vijay Solanki, he was burnt by the accused in order to demolish the evidence against him.
59. Per contra, Ld. Defence counsel submitted that the case of the prosecution is very weak as for the charge u/s 328 IPC, the juice packet which was stated to be contaminated by the accused with stupefying substance was never seized by the police; no witness has stated that he saw the accused mixing some substance in the juice packet; it has also not been stated whether the opened juice packet was offered to the deceased by the accused or it was sealed pack when it was kept on the bench for the consumption of the deceased and even in the PM/viscera report of the deceased, no stupefying substance specifically Ketamine medicine was found, though it is alleged by the prosecution that party drug namely Ketamine was administered to Mr.Vijay Solanki by the accused during the lunch party organized in the school by mixing the same in the juice packet brought by the accused for Mr. Vijay Solanki.
FIR No: 57/2011 Page No. 66 of 145State v. Arvind Azad : 67 : He also argued that there is no treatment of Park hospital mentioning that after examination of the patient Vijay Solanki, it was the case of poisoning or for that matter even food poisoning, which could be due to many reasons one of it can be that the juice packet had expired. Even during investigation, police has prepared pointing out memo of the Cybers Cafe where allegedly the accused made Google search for Ketamine party drug but no login entry or chat history from the said computer was recovered and filed on record, so it remains only disclosure by the accused without any recovery of fact, hence it is inadmissible in evidence. Therefore, the prosecution has been miserably failed to prove the charge under 328 IPC against the accused.
60. For the charge framed under Section 364 IPC, it has been argued that there is no MLC filed on record regarding urgent admission of Mr.Vijay Solanki needed by the doctor, no admission ticket has also been ever filed on record that he was admitted in the hospital and the accused took his discharge on LAMA. Even the deceased was conscious, oriented as per the medical examination report of OPD and the medical report only states stiffness of body whereas all the vital statistics of Mr. Vijay Solanki have been proved to be stable at the time when he left the hospital. No illness of the deceased at the time of leaving the hospital could be proved on record and the accused left the hospital to take the deceased to his father at Janak Puri District Centre on his request itself as he had FIR No: 57/2011 Page No. 67 of 145 State v. Arvind Azad : 68 : spoken to his father regarding meeting at the District Centre. Hence, no case of abduction is made out against the accused.
61. It has been argued by the Ld. Counsel for the accused that regarding charge under section 302 IPC that the last seen theory putforth by the prosecution is too far fetched as considerable time was there between last seen of the accused with the deceased by the prosecution witnesses and the recovery of dead body of the deceased Mr. Vijay Solanki which was the next day in the morning. In order to substantiate his arguments, he has filed catena of case Laws on this point which will be discussed later in the relevant portion.
62. Ld. Defence counsel has further argued that the clothes stated to be worn by the deceased at the time when he went to the school/hospital as reported in the missing report filed before the police by the family members of deceased are totally different from the one stated to be found on the dead body of the deceased as in the missing report, Mr. Vijay Solanki was stated to have been wearing black pants whereas the dead body of deceased Mr. Vijay Solanki was found wearing grey (सलेटी) colour pants.
63. Ld. Defence Counsel has further argued that Ethyl alcohol is found in the viscera as per the report though no internal organs of the deceased were burnt so no question arises of Kerosene going in the viscera of the deceased formulating Ethyl Alcohol in the body. This is also clear from the fact discovered as per report that Ethyl Alcohol was found in the liver/spleen which only can be by FIR No: 57/2011 Page No. 68 of 145 State v. Arvind Azad : 69 : consumption. So if the accused had been not well, he would not have consumed liquor. It only leads to a conclusion that before Mr.Vijay Solanki died, he consumed liquor with someone else hence, third party intervention cannot be ruled out. He also argued that there was digested food found in the PM report hence, after the deceased was last seen with the accused, he has separated from him and had eaten food and consumed liquor with someone other than the accused.
64. It is further argued that knowledge about recovery of dead body by family members of the deceased remains a mystery as it is under question as to how the family members of the deceased Mr.Vijay Solanki came to know that a dead body has been found at Village Kharawar, District Sampla, Haryana since the father of deceased examined as PW-4 has stated that the local police of their area came to him and informed him about the same whereas the police of PS Khyala has recorded a DD that they were informed about recovery of dead body by the uncle (Chacha) of the deceased and they accordingly, went to State of Haryana for further investigation.
65. He has further argued that no motive at all could be established by the prosecution for commission of alleged offence by the accused since no loan transaction whatsoever have been proved between the deceased and the accused. It has only been the case of the prosecution that in order to grab the property of the uncle (chacha) of the deceased, the accused prepared forged documents of the FIR No: 57/2011 Page No. 69 of 145 State v. Arvind Azad : 70 : property citing the deceased as a witness and hence, this crime was committed with this ulterior motive but the said property papers have never been sent to FSL for examination of handwriting or signatures of the accused or the other party in order to prove forgery. Therefore, without any motive, the circumstantial evidence cannot be proved against the accused.
66. He has further argued that the letters written by the accused to the father of deceased and to his father, no where states that he has murdered the deceased and they are not extra judicial confession. It has been further argued that the subsequent conduct of absconding by the accused is a natural conduct of any person who scared of police and does not necessarily means the culpability of the person in the alleged crime. He has further argued that the subsequent conduct of absconding by the accused has been well explained by him in his statement u/s 313 Cr.P.C.
67. It is further argued that the dead body of deceased Mr. Vijay Solanki was recovered from the fields in semi burnt condition but no footprints or tyre marks of Car have been lifted from or near the spot by the crime team/police. Even no marks of dragging have been lifted or shown by the police on record. He had argued this on the basis that the deceased was a long height person and to take his dead body in between the fields for burning the same in order to demolish the evidence, the accused either would have taken him in the Car which will lead to tyre marks or the accused would have dragged him till the middle of the fields which would have led to FIR No: 57/2011 Page No. 70 of 145 State v. Arvind Azad : 71 : pull/drag marks. Even if it is assumed that the deceased was alive at that time and was taken forcibly or otherwise by the accused, it would have left footprints on the soil. However, none of the marks have been lifted or assessed or shown on record by the Prosecution. This indicates that investigation was carried out in a routine manner without collecting essential evidence.
68. It is further argued that it is the case of the prosecution that after abducting Mr.Vijay Solanki, the accused took him in his car to Village Kharawar, District Sampla, Haryana but in order to cross the Delhi border, there are various Tolls which exists on the highway but police failed to seize the Toll Tax receipt or the CCTV footage that the accused took the deceased in his car from Delhi to State of Haryana. Even no efforts have been made by the police to get the said record. Therefore, possible evidence connecting the accused with the present crime has not been collected by the Investigating Officer.
69. It has been further argued that it is stated by the Prosecution that the Car of the accused was found in abundant condition within the area of Police Station Adarsh Nagar and it was seized by the said police. However, the report of chance prints lifted from the Car has not been filed. It is the case of the prosecution that a bottle was found in the car of the accused which was smelling Petrol but no chance prints were lifted from the bottle or was sent for chemical analysis in order to prove the prosecution case.
70. He has further argued that the CCTV footage of the ATM alleged FIR No: 57/2011 Page No. 71 of 145 State v. Arvind Azad : 72 : to be used by the accused by transacting with the debit card of the deceased has neither been sent to FSL nor the original DVR has been seized on record. Even the certificate U/s 65B of the Indian Evidence Act has not been filed on record.
71. He has lastly argued that the investigation is a biased and manufactured one which is reflected from the fact that even after the transfer of the IO examined as PW-40, he collected the FSL reports without authority. He has also placed reliance upon major contradictions of prosecution witnesses alongwith numerous case Laws on the point which will be discussed later on in the Judgment.
Written arguments filed by the prosecution/ complainant :
72. Written submissions have been filed on behalf of the complainant wherein the facts and relevant portion of the evidence of prosecution witnesses have been mentioned in detail. In support of his arguments, he has also placed reliance upon the following Judgments :
(i) Siddiqua v. Narcotics Control Bureau, 2007(1) AD (Delhi) 364 :
"A perusal of the statements of the prosecution witnesses would show that on material aspects, there were no contradictions. A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses, parrot like repeat the same statement, one after another, such FIR No: 57/2011 Page No. 72 of 145 State v. Arvind Azad : 73 : statements would not be natural statements. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each person shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there were minor discrepancies or contradictions."
(ii) Krishna Pillai v. State of Kerala, AIR 1981 1237 :
"11. It is no doubt true that the prosecution evidence does suffer from in consistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof."
(iii) State of T.N.Rajenderan, AIR 1999 SC 3535 :
"if in a case the accused takes a false plea then the same becomes an additional link in the chain of circumstances."
73. It is further state that the Katemine is a dissociative anesthetic that has some hallucinogenic effect and it distort the perception of sight and sound and makes the user feel disconnected and not in control. The postmortem report( Ex.PW-26/A) and FSL report (Ex.PW-46/A) also points that the death of the deceased was cause due to burning in which the Ethyl alcohol was found positive. It is also submitted that the Katemine was not the cause of death of deceased. It is also submitted that the cause of death due to burning in which Ethyl Alcohol was found positive was not that FIR No: 57/2011 Page No. 73 of 145 State v. Arvind Azad : 74 : the deceased had consumed Alcohol as it is very well documented from various studies within toxicological literature that severally burned postmortem bodies frequently produce "endogenous alcohol". One study of Toxocology Consultants & Assessment Specialists is also annexed herewith for the kind perusal of the Hon'ble Court to reach just and proper decision of the present case. It is also submitted that even in the cross examination of the PW-26 who conducted the postmortem of the deceased it was not asked whether the Ethyl Alcohol found positive means that the deceased had consumed alcohol before death.
74. With respect to the lapses and omission in the investigation of the case conducted by the police officials it is submitted that if the prosecution case is established by the evidence adduced, any failure or omission on the part of the IO cannot render the case of the prosecution doubtful. (Reliance placed upon the Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam AIR 2010 SC 3300). If the evidence adduced before Court is credible, failure, defect or negligence in investigation cannot adversely affect the prosecution case, though the Court should be circumspect in evaluating the evidence (Reliance placed upon cases titled as Ram Bihari Yadav vs. State of Bihar AIR 1998 SC 1850, Paras Yadav vs. State of Bihar AIR 1999 SC 644, Dhanraj Singh vs. State of Punjab AIR 2004 SC 1920, Ram Bali vs. State of U.P. AIR 2004 SC 2329). It is further stated that an accused cannot be acquitted on the sole ground of defective investigation;
FIR No: 57/2011 Page No. 74 of 145State v. Arvind Azad : 75 : to do so would be playing into the hands of the IO whose investigation was defective by design. (Reliance has also placed upon the case Law titled as Dhanaj Singh vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial. (Reliance has also placed upon the Judgment titled as Paramjit Singh vs. State of Punjab AIR 2008 SC 441).
75. That no independent witnesses were associated with recovery (discovery) under Section 27, Evidence Act is not sufficient to create doubt regarding truth of the prosecution version. (Reliance has also placed upon the Judgment titled as Sanjay alias Kaka vs. State (NCT of Delhi) AIR 2001 SC 979).
76. It is further submitted that there are no rigid rules regarding appreciation of evidence. Effect of shortcomings on the part of the officer registering a case or the IO, are part of the task of Judge in appreciation of Evidence; it is the Judges who has to appreciate the evidence, and while doing so, assess the effect of such defects. Such defects become marginal in case where the main testimony of eyewitnesses or witnesses proving circumstantial (or basic or primary) facts inspire confidence and appears truthful. If such evidence is of a shabby nature or does not inspire confidence, such assessment of evidence is strengthened by serious defects in FIR or investigation. An accused cannot be acquitted merely the ground of such defects; such defects do not the affect the decision adversely if the evidence in the main is credit worthy. Of course, serious defects which, in the assessment of the Court, have lead to FIR No: 57/2011 Page No. 75 of 145 State v. Arvind Azad : 76 : serious prejudice to the accused or to failure of justice stand on a different footing.
77. It is further stated that the defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not end to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded. (Reliance has also been placed upon the case Laws titled as C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567: (2010) 3 SCC (Cri) 1402 Chandrakant Luxman v State of Maharashtra (1974) 3 SCC 626: 1974 SCC (Cri) 116: State of Karnataka v. K Yarappa FIR No: 57/2011 Page No. 76 of 145 State v. Arvind Azad : 77 : Reddy (1999) 8 SCC 715: 2000 SCC (Cri) 61 Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57: 2002 SCC (Cri)
519).
78. The failure by the Investigating Officer to collect evidence during the investigation may entitle the court to hold the investigation to be perfunctory or tainted affecting the entire trial. But in case of failure of the police to produce the evidence collected during the investigation, the Court can draw an inference in accordance with Section 114, illustration (g) of the Evidence Act. But when there is sufficient evidence that one vegetable knife was used by one person, the failure of the Investigating Officer to seize that knife is not fatal for prosecution. (Reliance has also been placed upon the Judgments titled Chand Khan v State of U.P. AIR 1995 SC 2140:
(1995) 6 SCC 448: 1995 SCC (Cri) 915: 1995 Cr.LJ 3675 11).
79. The recoveries and memos made by the police officials at the instance of accused also points out the meticulous conspiracy hatched by the accused in order to commit the murder of the deceased because of the reason that he had induced the deceased and forged the property documents of property bearing no. 54, 100 Sq. Yds. forming part of Khasra No. 61, Village Matiala, New Delhi(Ex. PW-36/D colly) which belongs to the uncle (PW-39) of the deceased in his favour on 17.07.2010 and within 6 days of execution of the same documents he executed one registered will dated 23.07.2010 (Ex.PW-39/DA) and later on took loan (PW-
FIR No: 57/2011 Page No. 77 of 145State v. Arvind Azad : 78 : 36/1) on the same documents the accused took loan from the cooperative bank. It is pertinent to mention that the bare deposition and cross examination of PW-39 dated 17.08.2018 at page 9 it was specifically put to the witness by the defence counsel that the same amount was given to the deceased by the accused. The deposition of PW-36, PW-39 and PW-4 proves that the above said loan was disbursed to the accused, which was the motive of commission of offence.
Written arguments filed by the accused :
80. In addition to oral arguments, it has been stated that in the written submission besides, contradictions highlighted of prosecution witnesses are :
(i) Story of Ketamine administration remains uncorroborated and unestablished vis-a-vis inconclusive medical and forensic evidence;
(ii) Recoveries and pointing out memos inadmissible; Section 25 & 27 of Indian Evidence Act, 1872;
(iii) Last seen theory not established by the prosecution; possibility of any third person meeting with deceased;
(iv) Absconding of accused not proved and letters written by the accused not incriminating in nature;
(v) Arrest of accused uncorroborated vis-a-vis recording of disclosure statement in doubt;
(vi) Unclear and vague motive attributed to accused vis-a-vis FIR No: 57/2011 Page No. 78 of 145 State v. Arvind Azad : 79 : motive available to family members of deceased; prior knowledge of whereabouts of body of deceased and
(vii) Lapses and omissions in the investigation of the case conducted by the IO/police.
81. Ld. Counsel for the accused has also placed reliance upon the following Judgments :
(1) Rajesh v. The State of Madhya Pradesh, 2023 SCC Online SC 1202;
(2) Krishnetgowda v. State of Karnataka (2017) 13 SCC 98; (3) Krishan v. State of Haryana, 2024 SCC Online SC 70; (4) Jaikham Khan v. State of Uttar Pradesh (2021) 13 SCC 716; (5) Bijay v. The State (GNCT of Delhi), Crl.A.No. 700/2005; (6) Anvar P.V. v. P.K. Basheer & others (2014) 10 SCC 473; (7) Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178; (8) Kuldeep Singh v. State NCT of Delhi, Crl.A.500/2016; (9) Krishna Kumar v. State of haryana, 2023 SCC Online SC 1180;
(10) Jabir v. State of Uttarakhand, 2023 SCC Online SC 32; (11) Mohd. Rashid v. State, 2015 SCC Online Del 12093; (12) Raju @ Ranthu @ Raju KR v. State, Crl.A. 700/2011; (13) SK.Yusuf v. State of West Bengal, (2011)11 SCC 754; (14) Md. Firoz Ala @ Firoj Alam V. State of West Bengal, 2022 SCC OnLine 1508;
(15) Darshan Singh v. State of Punjab, Criminal Appeal No. 163 of 2010;FIR No: 57/2011 Page No. 79 of 145
State v. Arvind Azad : 80 : (16) Surender @ Dheeraj v. State, 2018 SCC Online Del 7506; (17) Nandu Singh v. State of Madhya Pradesh, 2022 SCC Online SC 1454;
(18) Ramanand @ Nand Lal Bharti v. State of Uttar Pradesh, 2022 SCC Online SC 139;
(19) Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra, 2023 SCC Online SC 666;
(20) Ankush Maruti Shinde v. State of Maharashtra, (2019) 15 SCC 470;
(21) Dinesh Kumar v. State of Haryana, 2023 SCC OnLine SC 564 and (22) Sheikh Wahid Sheikh Hamid v. The State of Maharashtra, Crl.Appeal No. 1907 of 2011 Appreciation of evidence :
82. The present case is based on circumstantial evidence. It is established principle of law that a witness may lie but not the circumstances. In the present case, there is no eye witness of the alleged incident. The guilt of the accused can also be proved through the circumstantial evidence. The circumstantial evidence has to be appreciated as per the established principles of law laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi. The standard of proof required for conviction in cases of circumstantial evidence is that the circumstances relied upon in support of conviction must be fully established and the FIR No: 57/2011 Page No. 80 of 145 State v. Arvind Azad : 81 : chain of evidence proved by the prosecution must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
83. The Hon'ble Supreme Court of India in Judgment titled as Sharad Bridhichand Sarda Vs. State of Maharashtra cited as (1984) 4 SCC 116 has laid down the five golden priciples for appreciation of circumstantial evidence and has termed the same as Panchsheel of the Proof of Case based on circumstantial evidence. The said 5 golden principles are as follows: -
(i) The circumstances from which the conclusion of the guilt is to be drawn should be and not merely 'may be' fully established.
(ii) The facts so established should be consistent only with the hypotheses of the guilt of accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty.
(iii) The circumstances should be of conclusive nature and tendency.
(iv) They should exclude every possible hypothesis except the one to be proved.
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all probability the act must have been done by the accused.
84. Thus, before recording the conviction of any accused the abovesaid five conditions must be satisfied. The prosecution has to establish its case on the basis of abovesaid five golden Principles and to secure conviction of any accused, the prosecution must FIR No: 57/2011 Page No. 81 of 145 State v. Arvind Azad : 82 : fulfill the following requirements:-
(i) The circumstances from which the inference of the guilt of the accused is to be drawn must be firmly established.
(ii) The established circumstances must be of such definite tendency that points out towards the guilt of accused.
(iii) The chain of the circumstances must be so complete and there should not be any snap in the chain of circumstances.
(iv) The chain of circumstances must be so complete and incapable of any other hypotheses then that the guilt of the accused and same should also be inconsistent with the innocence of the accused and must exclude every other possible hypothesis except with the hypotheses pointing out towards the guilt of the accused.
85. Accordingly, in order to prove the guilt of the accused for the charges framed against him in the present matter the prosecution needs to prove the following offences and circumstances:
(i) A stupefying substance was administered to the deceased Mr. Vijay Solanki soon before his death by the accused;
(ii) The deceased Mr. Vijay Solanki was taken to Park Hospital by the accused due to his ill health but was taken away against the medical advice (LAMA);
(iii) The accused abducted Mr. Vijay Solanki from the hospital in order to murder him;
(iv) The deceased was last seen with the accused FIR No: 57/2011 Page No. 82 of 145 State v. Arvind Azad : 83 : only before his death;
(v) Recovery of dead body of the deceased;
(vi) Spot inspection and collection of evidence against the accused;
(vii) Recovery of abandoned vehicle of the accused;
(viii) Subsequent conduct of fleeing by the accused;
(ix) Confession letters written by the accused;
(x) Motive of the accused to commit the offences;
(xi) Scientific & Medical evidence against the accused;
86. Now analyzing each of the circumstance one by one in detail in the succeeding paragraphs in order to ascertain the completion of the chain of circumstances against the accused.
(i) A stupefying substance was administered to the deceased Mr. Vijay Solanki soon before his death by the accused
87. This circumstance is of vital importance as from this the entire chain of events started and a separate charge u/s 328 IPC has been framed against accused Arvind Azad for the said offence. However, it is pertinent to reproduce the relevant provision of Law on the point first, which is as under:
Section 328 IPC reads as under :
"Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt FIR No: 57/2011 Page No. 83 of 145 State v. Arvind Azad : 84 : to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
88. The aforesaid circumstance which needs to be proved by the Prosecution is divided into three components for better analysis as follows:
(a) Ocular Evidence;
(b) Medical Evidence and
(c) Scientific/Chemical Evidence
(i) (a) Ocular Evidence:
89. In order to prove the said circumstance, the prosecution has examined the colleagues of the accused & deceased i.e. the teachers of the school that on the fateful day a lunch party was organized during which the accused administered a stupefying substance to the deceased. The testimony of the said witnesses is discussed as hereinafter.
90. PW 13 Ms. Anita Goel deposed that on 31.03.2011, a small party was organized in the school on occasion of completion of five years of service of some of the teachers, including the accused. The arrangement of the party was done by the accused and the eatables were brought by the accused as well as the deceased Mr. Vijay Solanki. They all had lunch together, and during the said lunch, she observed that one juice packet was kept on the bench.
FIR No: 57/2011 Page No. 84 of 145State v. Arvind Azad : 85 : After finishing their food, all the female teachers sat in a separate room and after sometime there was hue and cry that something has happened to Vijay Solanki, who was one of the teachers of the school. They all immediately rushed out to see as to what has happened and witnessed that some teachers were helping and extending their support to Mr. Vijay Solanki to stand and he was made to sit in Maruti 800 car, which belonged to the accused. Some of the male teachers went to the hospital along with Mr. Vijay Solanki and the rest returned to their work.
91. PW 14 Mr. Rajnikant, who was also one of the teachers at the school deposed that on the fateful day, a party was organized in the school on the occasion of completion of five years of service by three/four teachers and he was present in the party along with deceased Vijay Solanki. He further deposed that Vijay Solanki never used to take outside food due to health reasons and therefore he did not eat anything in the party but accused Arvind Azad, who was also teacher in the school with them brought a packet of juice for Vijay Solanki and Vijay Solanki consumed the said juice. After consuming the said juice, Vijay Solanki started feeling unwell. He started sweating, feeling perplexed and could not stand properly. They all tried to make him comfortable. In the meantime, accused Arvind took out his Maruti 800 car and PW-14 helped Vijay Solanki to lie down on the back seat of the car. PW-14 also accompanied accused Arvind Azad and deceased Vijay Solanki to nearby Park hospital. The doctor at the hospital advised to admit FIR No: 57/2011 Page No. 85 of 145 State v. Arvind Azad : 86 : Vijay Solanki. In the meanwhile, accused told him that he has informed the father of Mr Vijay Solanki and he was to be taken to Apollo hospital, while the father of accused will meet him at District Centre, Janak Puri, Delhi.
91.1. However, during cross-examination by defence, PW-14 has deposed that he alongwith Mr.Vijay Solanki and accused Arvind Azad brought eatables for the party and kept the same in the room of the school. However, he also deposed that though the eatables were brought by him, accused and the deceased first but thereafter, accused had brought the juice.
92. Another teacher, Mr. Vikas Kumar has been examined as PW-19, who deposed that accused and deceased were having good friendship with each other and used to remain together in the school. He also deposed that the deceased Vijay Solanki never used to eat outside food. On 31.03.2011, he was present in the school as there was a party hosted by some of the teachers, who completed five years of their service. Accused along with deceased Vijay Solanki and other teacher namely Rajnikant went out of the school for arranging the lunch and cold drinks for the staff members. Accused had brought juice and cold drinks; however, deceased Vijay Solanki did not eat anything, therefore accused Arvind Azad came in the room and put a juice packet on the desk of the deceased Vijay Solanki. Thereafter he alongwith other teachers went to the principal's room, but after sometime, Mr. Vijay Solanki also came to the principal's room and at that time FIR No: 57/2011 Page No. 86 of 145 State v. Arvind Azad : 87 : eyes of Mr. Vijay Solanki were red and tears were coming from his eyes. Mr Vijay Solanki also started feeling unwell and was sweating badly. It appeared that he turned unconscious. In the meantime, accused brought his Maruti 800 car and deceased Mr. Vijay Solanki and other teacher Mr. Rajnikant sat in the back seat of the car. Then accused took the deceased Mr. Vijay Solanki in his car to nearby Park hospital. Thereafter, some of the teachers of the school also reached Park hospital. In the hospital, Doctor checked the vital statistics of Mr. Vijay Solanki and advised to admit him in the hospital. However, accused informed the father of Mr. Vijay Solanki, who had asked him to bring Mr. Vijay Solanki at District Centre, Vikas Puri.
93. As per the ocular evidence of three witnesses, i.e. PW-13, PW-14 and PW-19, there was a lunch party hosted by some of the teachers in the school on 31.03.2011 and since Mr. Vijay Solanki never used to eat outside food, the accused Arvind Azad brought juice for him and kept the same on the bench. However, PW-13 did not see Mr. Vijay Solanki consuming the said juice. Further, PW-19 has categorically affirmed during his testimony that 'he is not aware whether Vijay Solanki had consumed the juice or not'. Though PW-14 deposed during his examination that Mr.Vijay Solanki consumed the juice which was brought by the accused but the witness failed to state specifically whether the juice packet was sealed or opened when it was offered to Mr.Vijay Solanki for consumption. He has also failed to specify that the juice packet FIR No: 57/2011 Page No. 87 of 145 State v. Arvind Azad : 88 : which was stated to be brought by the accused was in the sealed condition or not at the time when it was put on the bench of the deceased.
(i) (b) Medical Evidence:
94. As per the prosecution, after consumption of Juice by Mr. Vijay Solanki, which was brought by the accused, Mr. Vijay Solanki started feeling unwell hence, he was taken to nearby Park hospital by the accused in his car and other school teachers also accompanied him. The said fact has been testified by PW-20 Dr. Ashok Kumar who was working as consultant in the department of Medicine at Park hospital and on 31.03.2011, he examined the patient Mr. Vijay Solanki at about 04:15 PM who was brought by the accused Arvind Azad. He deposed to have advised admission of the patient but the accompanying person i.e. the accused was reluctant to get him admitted in the hospital. He has proved the examination findings of patient Vijay Solanki as Ex.PW-20/A and also deposed that as per the said document, there was no history of seizure or loss of consciousness. There was no history of fever and observations regarding RBS, Pulse, blood pressure, temperature and SPO2 mentioned on Ex.PW-20/A indicate the normal state of health of the patient. He also deposed that there was no mention that patient was brought in emergency on Ex.PW- 20/A.
95. There is no other medical evidence on record indicating that Mr. Vijay Solanki was in unstable state of health on 31.03.2011 after FIR No: 57/2011 Page No. 88 of 145 State v. Arvind Azad : 89 : consumption of Juice brought by the accused or that the juice consumed by the deceased was contaminated or that it was carrying a stupefying substance which lead to ill health of the deceased, as observed by the doctor since there is no mentioning of apprehension of poisoning or consumption of any stupefying kind of substance or any kind of drug etc.
(i) (c) Scientific/Chemical Evidence :
96. Even the pack of Juice which was of vital important to prove that some stupefying substance was mixed in the said juice by the accused and subsequently, consumed by Mr. Vijay Solanki leading to his deteriorated state of health, was never seized by the police. Though the police was under duty to seize the said juice packet soon after the complaint was received by the police in the police station made by the father of the deceased mentioning all the facts clearly on the same day of the incident. This laxity on the part of the police has led to destruction of the vital piece of evidence to prove this circumstance against the accused. Hence the same could not be sent for scientific evidence on order to get the report of chemical expert.
97. The Ld. Defence Counsel has specifically argued during final arguments that without seizing the packet of Juice, allegation that it was contaminated by stupefying substance mixed by the accused cannot be proved. He has further argued that the packet of juice could have been expired and there is every fair possibility of food FIR No: 57/2011 Page No. 89 of 145 State v. Arvind Azad : 90 : poisoning suffered by Mr. Vijay Solanki due to consumption of expired juice.
98. With this gross negligence by the police of not seizing the packet of juice for its chemical analysis, in order to prove that the juice which was consumed by the deceased Mr. Vijay Solanki was having stupefying substance mixed by the accused, the case of the prosecution has fallen flat on the ground.
99. In these present facts and circumstances, in view of the ocular, medical and scientific evidence read together, the prosecution has not been able to prove the circumstance and charge against the accused that stupefying substance was administered to the deceased Mr. Vijay Solanki soon before his death by the accused.
(ii) The deceased Mr. Vijay Solanki was taken to Park Hospital by the accused due to his ill health but was taken away against the medical advice (LAMA) :
100. As per the prosecution story which has been duly corroborated by public witnesses i.e. PW-13, PW-14 and PW-19, the accused took the deceased Mr. Vijay Solanki in his car to nearby Park hospital immediately after Mr. Vijay Solanki started feeling unwell and was sweating badly with perplex condition. Even PW-14 Mr. Rajnikant accompanied Mr. Vijay Solanki and accused in the Car of the accused which was Maruti 800, from the school to Park hospital.
101. PW-19 Mr. Vikas Kumar had also followed Mr. Vijay Solanki and FIR No: 57/2011 Page No. 90 of 145 State v. Arvind Azad : 91 : accused to Park hospital. Hence, it is not under dispute as also admitted by the accused under his statement u/s 313 Cr.P.C. that Mr. Vijay Solanki was taken to Park hospital by the accused in his Car soon after Mr. Vijay Solanki started feeling unwell at the school itself.
102. However, as per testimony of PW-20 Dr. Ashok Kumar, the patient Mr. Vijay Solanki was brought by the accused Arvind Azad in the Park hospital on 31.03.2011 at around 04:15 PM but despite his advice to the patient and accused to admit Mr. Vijay Solanki in the hospital for medical treatment, the accused was not ready to get Vijay Solanki admitted in the hospital.
103. On perusal of Ex.PW-20/A, which is the medical examination report of the deceased, it is clear that the vital statistics of Mr. Vijay Solanki were stable at the time of his medical examination and there was no history of seizure, loss of conscious or fever and there was only history of stiffness of body for which he was advised MRI, head and EEG with directions for review and report. Nowhere in the said document, exigency for admission has been shown but it has been mentioned that 'advised admission but refused admission', which is signed by the accused as colleague. But the signatures of the patient Mr. Vijay Solanki were not obtained on Ex.PW-20/A for his denial for admission in the hospital, though it has been specifically deposed as well as mentioned on the medical examination Ex.PW-20/A that the patient was in normal state of health. PW-20 Dr. Ashok Kumar FIR No: 57/2011 Page No. 91 of 145 State v. Arvind Azad : 92 : even failed to identify the accused due to lapse of time, though his signatures on the said document are admitted.
104. The accused in his statement u/s 313 Cr.P.C. has explained the circumstance that on 31.03.2011, he alongwith the deceased Vijay Solanki and Rajnikant brought food and drinks for the lunch party organized in the school. However, somehow the health of Vijay Solanki got unwell and on asking of someone, he immediately brought his car and took Vijay Solanki to nearby hospital. The doctor examined him and when his condition became stable, Vijay Solanki told him that he has spoken to his father and he is feeling alright. Vijay Solanki asked him to take his discharge though he insisted for his admission but Vijay did not want to get admitted in the hospital. Accordingly, he alongwith Vijay Solanki left the hospital to drop him as per his telephonic conversation with his father.
105. It is admitted case of the prosecution that it was the accused himself who rushed Vijay Solanki to the nearby hospital and he was the one who was in a hurry to give medical assistance to Vijay Solanki at the earliest as admittedly, he took out his car immediately from the school and rushed to the school. Hence, it is surprising that he would be the one to get Vijay Solanki discharged on LAMA with some ulterior motive.
106. With this evidence on record, which shows no exigency for immediate admission; that Mr. Vijay Solanki was in stable health & conscious and his consent for admission was not taken by the FIR No: 57/2011 Page No. 92 of 145 State v. Arvind Azad : 93 : doctor though he was an adult. Therefore, even this circumstance has not been proved by the prosecution beyond shadow of doubt that the accused with ulterior motive, took the patient Vijay Solanki on LAMA though his condition required urgent admission.
(iii) The accused abducted Mr. Vijay Solanki from the hospital in order to murder him:
107. As per the story putforth by the Prosecution, the accused abducted Mr. Vijay Solanki from Park hospital after getting him discharge on LAMA. In order to prove this circumstance, prosecution has examined PW-14 and PW-19.
108. PW-14 Sh. Rajnikant deposed that he accompanied Vijay Solanki to Park hospital for his medical treatment and after medical examination, the doctor advised to admit Vijay Solanki. However, accused told him that he has spoken to the father of Mr. Vijay Solanki and he shall be taken to Apollo hospital and his father will meet him at District Centre, Janak Puri, Delhi. Thereafter, accused took Vijay Solanki in his Maruti 800 Car alone. Accused also did not allow anybody to accompany him and they were under the impression that since there is an emergency that is why accused is in a hurry to take Vijay Solanki to hospital.
109. PW-19 deposed that he also reached Park hospital following Mr. Vijay Solanki and Vijay Solanki was examined by the doctor. However, he was not got admitted in the hospital. One of the FIR No: 57/2011 Page No. 93 of 145 State v. Arvind Azad : 94 : teachers suggested to inform father of Vijay Solanki but the accused told him that he has already spoken to him and he had asked him to bring Vijay Solanki at District Centre, Vikas Puri. Vijay Solanki was brought on a wheel chair to the Car of accused and accused Arvind Azad opened the front door of his car. They were willing to sit with Vijay Solanki in the rear seat of the Car but accused asked them to make Vijay Solanki sit in the front seat. Vijay Solanki got seated in the front seat of the car and accused Arvind Azad fled away with his vehicle. They were astonished as to why Arvind Azad had speed up his car but they thought accused was in a hurry to shift Vijay Solanki in a hospital to save his life since they were good friends.
109.1. PW-19 further deposed that since District Centre, Janak Puri was only 10 minutes away from the hospital, they all returned to the school after that. He made call on the mobile numbers of accused as well as deceased Vijay Solanki but both were found 'switched off'. He further deposed that on that day, Sh. Rakesh Kumar, another teacher of the school was also present and had the phone number of father of Vijay Solanki, as accused made a call to him and at that time, Sh. Rakesh Kumar noted down the number. They made call to the father of deceased who conveyed that the accused and the deceased had not reached at District Centre, Janak Puri. Therefore, he alongwith Sh. Rakesh Kumar went to the house of accused but he was not found there and his mother was not aware about the whereabouts of the accused. Thereafter, they FIR No: 57/2011 Page No. 94 of 145 State v. Arvind Azad : 95 : went to the District Centre, Janak Puri and told father of Vijay Solanki that accused is not present at his house.
110. It is pertinent to mention here the relevant Section for which accused has also been charged for abduction of Mr. Vijay Solanki, i.e. under Section 364 IPC which is reproduced as under:
"Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with either [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
111. However, the definition of abduction is mentioned under Section 362 IPC, which is reproduced as under:
"Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person."
112. Hence the abduction is when one is either forcefully compelled or by deceitful means induced to move from any place. However, in the present matter, Mr. Vijay Solanki was not forcibly compelled to go with the accused from Park hospital. Hence it is required to be proved that he was induced to go from Park Hospital with the accused by adopting deceitful means.
113. The deceased who was an adult and in conscious state of health as per the medical record, left the hospital on his own and sat in the car of the accused, though with the help of his colleagues. Though it is put forth that on account of taking the deceased to his father at Janakpuri, District Centre, the accused took the deceased from the FIR No: 57/2011 Page No. 95 of 145 State v. Arvind Azad : 96 : hospital by deceitful means but admittedly as per record, the phone from which call was made by the accused allegedly to the father of the deceased was the phone of the deceased himself.
114. It is also not the case of prosecution that the accused did not help the deceased to be taken to hospital when he felt unwell at the school rather the accused was the one who took out his car and immediately shifted the deceased Mr. Vijay Solanki to the nearby hospital for his medical treatment when he started feeling perplexed and restless in the school. The same has been noticed by several teachers of the school as deposed by prosecution witnesses ie. PW-13, 14 and 19. It is very unlikely that a man who wanted to murder the deceased by administering stupefying substance to him was in a haste to take him to the hospital for his medical treatment and was the only one in the school to take out his car for taking the deceased to the hospital at the earliest.
115. Even the said fact has been admitted by the father of deceased examined is PW-4, who deposed that he received a call from the mobile phone of his son made by the accused that as his son was not feeling well, accordingly he was taken to Park hospital but as he was alright by then, the accused would drop him at his house. However, the father of the deceased himself deposed to have called back at the same number after 5-7 minutes and told the accused to bring the deceased at Janakpuri District Centre without specifying any reason in his examination in chief as to why he called his son to District Centre Janakpuri, when he was offered to FIR No: 57/2011 Page No. 96 of 145 State v. Arvind Azad : 97 : be dropped at his residence by the accused. The father of deceased has also not stated in his testimony that the deceased was unwell at the time when call was made to him and hence, he wanted to take him to some other hospital/ doctor, rather he stated that he asked the accused to bring the deceased at Janakpuri District Centre and he shall also reach there.
116. Even if, the court believes the version of PW-4 that it was the accused who called him from the mobile phone of his son telling him that his son was unwell and hence was taken to Park hospital and now since he's alright and the accused shall drop him to his residence, there was no occasion for the father of deceased to tell him to drop his son at Janakpuri District Centre when the accused was dropping the deceased comfortably in his car. The version of PW-4 hence remains incomplete as to the reason why the deceased and accused were called at District Centre, since the Court is not required to assume or presume things or to connect dots, not specifically deposed and cannot fill in the gaps left by the prosecution.
117. Even if, this is also taken on its face value then also there was no occasion for the accused to specifically call the father of the deceased and apprise him about the situation when he already had plans to abduct the deceased by deceitful means, as he could have done it secretly.
118. Hence this circumstance also is not free from doubts and could not be proved by the prosecution beyond shadow of doubt. Therefore, FIR No: 57/2011 Page No. 97 of 145 State v. Arvind Azad : 98 : this circumstance and charge under section 364 IPC is also not proved against the accused beyond reasonable doubt by the prosecution.
(iv) The deceased was last seen with the accused only before his death;
119. It has been put forth by the prosecution vide the testimony of PW- 14 Mr. Rajnikant and PW-19 Mr. Vikas Kumar that after the deceased Mr. Vijay Solanki was taken to Park hospital and was medically examined, the accused got discharge of the deceased on LAMA and told them that he is taking the deceased Mr. Vijay Solanki to Janakpuri District Centre, as he has spoken to the father of Mr. Vijay Solanki who will meet them at the Janak Puri District Centre. Thereafter, the accused took out his car and opened the front door of the car for the deceased to sit and while they wanted to sit in the car, the accused fled away with the deceased by speeding up his car.
120. PW-14 and PW-19 have also deposed that since the Janak Puri District Centre was near the Park hospital, they returned to the school but when they tried to contact the accused and deceased to know about the well-being of Vijay Solanki, mobile phones of both of them were found "switched off". Thereafter PW-19 along with one another teacher Mr. Rakesh Kumar went to the house of accused but the accused not found present at his house and his mother was not aware of his whereabouts. Then PW-19 went to Janak Puri District Centre alongwith Rakesh Kumar, where they FIR No: 57/2011 Page No. 98 of 145 State v. Arvind Azad : 99 : met the father of deceased and on inquiry they came to know that the deceased and the accused have not reached at the Janak Puri District Centre.
121. Hence as per testimony of PW-14 and PW-19, the deceased was last seen with the accused while they left Park hospital at around 4:15 PM on the fateful day of the incident and on the next day in the morning at about 06:00 AM, the dead body of the deceased Mr Vijay Solanki was found in burnt condition at Village Kharawar, District Sampla, Haryana, as per the testimonies of PW-24, PW- 27, PW-28, PW-29, PW-41, PW-42 and PW-43 etc.
122. Ld. Prosecutor as well as Ld. Counsel for the complainant have argued that the accused and deceased were last seen together at around 04:15 PM on 31.03.2011 and thereafter the dead body of the deceased was found in burnt condition in the next morning on 01.04.2011 at Village Kharawar, District Sampla, Haryana. Hence the last seen theory is perfectly applicable in the present matter and this circumstance has been proved against the accused beyond reasonable doubt, which mainly point towards the guilt of the accused for the murder of deceased Mr. Vijay Solanki.
123. However, the Ld. Defence Counsel has argued that in the present matter, the last seen theory cannot be relied upon as the time gap between accused & deceased last seen together and recovery of the dead body of the deceased is so long that the intervention of third person cannot be ruled out. In order to substantiate his arguments, he has filed and relied upon various case laws on the point FIR No: 57/2011 Page No. 99 of 145 State v. Arvind Azad : 100 : discussed hereinafter.
124. He has specifically argued that the present case is similar to the one relied by him whereby the Hon'ble Delhi High Court in Crl. A. No. 700/2011 titled as Raju @ Ranthu @ Raju Kumar (supra) has held as under:
"5. Mr. Vivek Sood, and Ms. Saahila Lamba, learned counsel for the Appellants, argued that the Trial Court's impugned judgment is not sustainable. It is contended that the findings with regard to the "last seen" circumstance had not been proved in this case. It was urged that the deceased was allegedly taken away by the Appellants around 04.30 P.M. on 10.08.2008. His body was found the next morning around 07:00 AM. According to counsel, for the prosecution to have established the "last seen" circumstance, the time gap ought to have been so narrow as to rule out the possibility of anyone other than the accused being the perpetrator of the crime. In this case, contended both counsel, the canvas was large since the time gap was nearly 12 hours. Furthermore what cast serious doubts about the role of the Appellants was that the post-mortem report fixed the time of death to be about seven days from the time the procedure was commenced i.e. 12:00AM on 17.08.2008. This brought in considerable uncertainty about the time of death. Even if it was assumed that the death took place between 12 midnight and 01:00 AM in the night intervening 10/11.08.08, the gap between the last seen time, and the time of death was eight hours. Being daytime, it could not be said with certainty that the deceased was only with the present FIR No: 57/2011 Page No. 100 of 145 State v. Arvind Azad : 101 : Appellants and none else.
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17. As discussed previously, the prosecution's burden was to prove each circumstance conclusively and beyond reasonable doubt as well as the proof which linked all circumstances by the same degree of proof and establish beyond any doubt that it was the accused alone who could be the author of the crime and that every hypothesis of his innocence had to be ruled- out. This is a case where the prosecution cannot be said to have discharged it. For these reasons, this Court is of the opinion that the judgment and order impugned in this appeal cannot be sustained. It is accordingly set-aside. The appeals are consequently allowed. The Appellants shall be released forthwith."
125. Ld. Defence Counsel has also relied upon judgment whereby the Hon'ble Supreme Court of India in Krishna Kumar (supra) has held that:
"8. When once it is found that the death involved in the case is culpable homicide amounting murder, the next question would be who is/are the culprit(s)? It is to establish that the appellants are the culprits and for that the prosecution had relied on the circumstantial evidence referred to hereinbefore. As noticed hereinbefore the appellants were found guilty based on the circumstantial evidence and the first link in the chain of circumstantial evidence is the 'last seen' evidence. 'Last seen' as a link in the chain of circumstantial evidence, would suggest existence of oral testimony of at least one witness to establish FIR No: 57/2011 Page No. 101 of 145 State v. Arvind Azad : 102 : that the deceased was last seen in the company of the accused. In this context it is relevant to refer to the following decisions: -
9. In the decision in State of UP Vs. Satish (2005) 3 SCC 114, this Court held thus:
"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and then the deceased is found dead is so small that possibility of any person other than the accused being a part of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long- time gap and the possibility of other person coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." (Emphasis added)
10. This position was reiterated by this Court in Hatti Singh v. State of Haryana (2007) 12 SCC 471 . A survey on the authorities on this issue, would reveal that this position is being followed with alacrity. Bearing in mind the said position regarding the applicability of the 'last seen' theory we will have to examine the evidence of last seen available in the case on hand."
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22. We have absolutely no hesitation to answer it in the negative as otherwise the application of the theory of 'last seen' in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together would be hazardous, as held in Satish' case (supra). Its indirect application is also FIR No: 57/2011 Page No. 102 of 145 State v. Arvind Azad : 103 : impermissible. In this context, the decision of this Court in Hatti Singh's case (supra) also has relevance. In that case it was held that unless the time gap between the deceased having been seen lastly in the company of the accused persons and the murder, is proximate it would be difficult to prove the guilt of the accused only on that basis. Furthermore, it was held that the last seen theory would come into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased was found dead is so small that a possibility of any person other than the accused being the author of the crime would become impossible. Above all, it was held that even in such a case Court should look for some corroboration. The same view was reiterated by this Court in the decision in Chattar Singh & Anr. v. State of Haryana. AIR 2009 SC 378/ (2008) 14 SCC 667"
126. Another judgment relied by the defence whereby the Hon'ble Supreme Court in case titled as Jabir & Ors. (supra) has observed as under:
28. This Court is also of the opinion that apart from the above serious infirmities, there is no evidence, oral or any material object, which connects the appellant-
accused with the crime. It has been repeatedly emphasized by this court, that the "last seen" doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow;
furthermore, the court should not convict an accused only on the basis of the "last seen"
FIR No: 57/2011 Page No. 103 of 145State v. Arvind Azad : 104 : circumstance.
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29.Recently, in Rambraksh vs. State of Chhattisgarh, (2014) 12 SCC 279 this court after reviewing previous decisions, stated as follows:
"10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.
11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil (2014) 12 SCC 279, held as follows:
21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372) , it has been held that "31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19-7-
1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that FIR No: 57/2011 Page No. 104 of 145 State v. Arvind Azad : 105 : they were there it would at best amount to be the evidence of the Appellants having been seen last together with the deceased.
But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
22. This Court in Bodhraj v. State of (2002) 8 SCC 45 held that:
"31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible." It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.
23. xxxxxxxx
24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438), this Court held that in the absence of any other links in the chain of circumstantial evidence, the Appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed." Again, in Nizam & Ors. v State of Rajasthan,2016 (1) SCC 550 it was held as follows:
"Courts below convicted the Appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the Appellants on FIR No: 57/2011 Page No. 105 of 145 State v. Arvind Azad : 106 : 23.01.2001. Undoubtedly, "last seen theory"
is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty.
The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."
127. It has also been argued by the defence that the Hon'ble Delhi High Court in Crl. Appeal No. 120/2000 titled as Mohd. Rashid (supra), it has been held that:
22.The"last seen" theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible.
It would be difficult in some cases, to positively establish and apply the principle of last seen per se and/or as a weighty factor when there is a long gap and possibility of other person(s)coming in between exists. In cases where positive evidence to conclude that the accused and the deceased were last seen together till the crucial moment is not coming forth, it would be hazardous to come to a conclusion of guilt. At best, it would indicate presence of the accused at the time and place so proved. [State of U.P. vs. Shyam Behari and Anr., (2009) 15 SCC 548, Bodhraj @ Bodha and Ors.
vs.State of Jammu and Kashmir, (2002) 8 SCC 45, State of U.P. v. Satish,( 2005 ) 3 SCC 114, FIR No: 57/2011 Page No. 106 of 145 State v. Arvind Azad : 107 : Ramreddy Rajesh Khanna Reddy vs. State of A.P, ( 2006 ) 10 SCC 172, Venkatesan vs. State of Tamilnadu, (2008) 8 SCC 456]
128. Even during arguments the Ld. defence counsel has stated that as per the Call Detail Records of the deceased filed by the prosecution itself there was a message which was sent by the deceased to some unknown lady by name Pooja, hence intervention of any third person cannot be ruled out in these circumstances. However, it is the case of the prosecution that since the time the deceased felt unwell and was taken to hospital, the phone of deceased remained with the accused. Hence, it cannot be said with preciseness as to who messaged from the mobile number belonging to the deceased late at night. As per record proved as Ex.PW-6/C, which is the CDR of mobile phone no. 9211xxxx005 belonging the deceased Vijay Solanki, there has been an SMS which was sent on 01.04.2011 at 00:34:35 hours from the phone of deceased to the number bearing 9958xxx304. Further, perusal of the CDR reflects that there has been numerous calls exchanged between the deceased and this mobile number 9958xxx304 on previous occasions also specifically on 18.03.2011, four times on 19.03.2011, 21.03.2011, four times on 22.03.2011, on 25.03.2011, twice on 26.03.2011, four times on 27.03.2011, 28.03.2011 and five times on 30.03.2011. Hence, it is clear that this mobile number belong to someone known to the deceased and in all probability, it was the deceased himself who sent the message to this number at 00:34:35 hours which only means that he was alive FIR No: 57/2011 Page No. 107 of 145 State v. Arvind Azad : 108 : at that time and was in possession of his mobile phone. However, surprisingly, he has not sent any SOS message or call to his family members if at all, he was in any kind of danger or was abducted by the accused.
129. Ld.defence counsel has even argued that as per the viscera report of the deceased, digestive food was found along with Ethyl Alcohol in his stomach, which only leads to a conclusion that after 4:15 PM the deceased ate food and consumed alcohol/ liquor since Ethyl Alcohol was found in his body which only implies that he was perfectly well after he left the hospital and before he died. These circumstances of consumption of liquor and intake of food also point towards intervention of third person other than the accused, who is responsible for the murder of the deceased.
130. The Ld. Counsel for the accused has even argued that since the prosecution has not been able to discharge the burden to prove the "last seen" theory against the accused, the burden never shifted upon the accused u/s 106 Indian Evidence Act. For the strengthening his arguments, he has relied upon the following judgment rendered by the Hon'ble High Court of Delhi in Crl. A. No. 500/2017 titled as Kuldeep Singh (supra), wherein it has been held that:
32. The theory of last seen gains significance in criminal jurisprudence from Section 106 as it places the burden on the accused to prove a fact especially within his knowledge.
Normally, it is for the prosecution to prove each and every fact against the FIR No: 57/2011 Page No. 108 of 145 State v. Arvind Azad : 109 : accused/appellant beyond reasonable doubt, however, owing to the application of Section 106, if a fact is especially within the knowledge of the accused, he must account for it. The prosecution has to show that the accused and the deceased were last seen together and the time gap between the death and the last seen was so small as to exclude the possibility of other persons coming contact with the deceased. In such a case, the fate of the deceased would remain in the exclusive knowledge of the accused. On the other hand, a huge gap may lead to the inference that other persons had intervened and the whereabouts of the deceased no longer remains in the especial knowledge of the accused. Then accused no longer has to account for his presence with the deceased. Hence, the time gap is of great significance as a huge gap may make it improper to place the burden on the appellant and in his failure, draw an adverse inference again him.
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37. Hence, the prosecution was unable to establish the theory of last seen as the time gap between the last sighting of the deceased with the appellant to the time of death was substantial, opening the possibility of the intervention of other parties. Shifting of burden under Section 106 of the Evidence Act was not warranted and thus, the circumstance has not been proved.
38. Even otherwise, in the absence of any other incriminating circumstance, the evidence of last seen alone has been frequently held to be insufficient to base an order of conviction."
131. With regard to finding of Ethyl Alcohol in the viscera report of the FIR No: 57/2011 Page No. 109 of 145 State v. Arvind Azad : 110 : deceased, perusal of the record reflects that it has been proved on record and find mentions that Ethyl Alcohol was present in the liver/spleen of the deceased as per the examination of Viscera. The prosecution has stated that since the body of deceased was burnt by using Petrol, it generated Ethyl Alcohol in the body of the deceased and to substantiate their arguments, they have filed a report of Toxicology Consultant and Assessment Specialist in this regard at page 8 of the Rejoinder written arguments filed on behalf of the complainant. However, relying upon the same report, the defence has stated that after third degree burns, bodies frequently produced endogenous alcohol which is not the case in the present matter as there were no third degree or deep burns on the body of deceased and it was only partially burnt on including mouth, hair, front upper portion and back sides and no internal organs were being burnt to produce endogenous/ethyl alcohol.
132. In order to appreciate the said report, the relevant portion is reproduced below :
"Review of the autopsy report and photos of the driver revealed that approximately 95% of his body was burnt so severally that striated muscle and bones were visibly evident. Although not well known to most professional, it is generally accepted and documented within the toxicological literature that severally burnt postmortem bodies frequently produce endogenous alcohol. This postmortem alcohol formation stems from microflora deposits on the open tissues causing rapid alcoholic fermentation to occur." Even the caption of the report states postmortem alcohol formation in a severally burnt victim.FIR No: 57/2011 Page No. 110 of 145
State v. Arvind Azad : 111 :
133. It has been specifically put by the defence that Ethyl Alcohol can only be present in the liver on consumption of alcohol. On perusal of viscera report proved as Ex.PW-46/A, it has surfaced that as per the result of examination ' Ethyl Alcohol was detected in exhibits 1A, 1B and 1C which are stomach, parts of small & large intestine and parts of liver, spleen and kidney '. The report also says that no common poison was detected in Ex.1D which is saline preservative approximately 400 ml.
134. In view of the viscera report already proved on record showing the presence of Ethyl Alcohol in the liver/spleen of the deceased and as per Chemical science, Ethyl Alcohol commonly known as Ethanol is present in Alcoholic drinks (Beer, Wine, Spirit) when dilute. Hence, it is clear that before his death, the deceased Mr.Vijay Solanki had consumed alcohol which negates his ill health on the day of alleged incident and affirms the possibility of third party intervention in the present case. However, the report of Toxicology filed by the complainant is of no avail in the present matter as there was no deep burns to the deceased and his internal organs were found to be health as per the PM report.
135. After analyzing the ocular; medical evidence; electronic evidence in the form of CDR and case Laws filed by the defence, which are binding upon this Court, the Court is of considered opinion that the circumstance of last seen theory has not been proved by the prosecution against the accused beyond reasonable doubt, as the time lag between the accused and deceased last seen together FIR No: 57/2011 Page No. 111 of 145 State v. Arvind Azad : 112 : which was on 31.03.2011 at around 4:15 pm and the recovery of dead body which was on 01.04.2011 at around 6 am is long enough which cannot rule out intervention of any third person, which is also suggested by the other factors which has surfaced on record.
(v) Recovery of dead body of the deceased :
136. As per deposition of PW-25 ASI Jai Kanwar, on 01.04.2011, at about 06:00 AM, while he was on patrolling duty with PSI Sandeep, Chowkidar Surender informed them that there is one dead body which was lying in burnt condition by the side of the road near Mahendra Fastner Factory. On reaching at the spot, he found an unidentified dead body of male in burnt condition and the dead body was found having one baniyan and one grey (Saleti) colour pants. On the pants, phone number of the tailor was mentioned on a slip hence, piece of the pants and an empty bottle smelling of kerosene/petrol was taken into possession by the PSI Sandeep. During his cross-examination, he admitted that there was a gate keeper at Mahendra Fastner factory.
137. PW-27 Insp. Sandeep (who was PSI at that time) has also deposed on the same lines as of PW-25 ASI Jai Kanwar but also deposed that the information about recovery of dead body was got recorded in PS Sampla on 01.04.2011 itself vide DD no. 23 and in order to establish the identity of the deceased, he flashed the messages through PRO, Rohtak. The residential address of the deceased was ascertained through the national tailor whose number was FIR No: 57/2011 Page No. 112 of 145 State v. Arvind Azad : 113 : available on the label of the pants recovered. A telephone number was got from national tailor but it was found 'switched off' when attempted to contact him. On the next day, i.e. on 02.04.2011, Delhi Police contacted them about the dead body and the family members of the deceased accompanied the Delhi Police for identification of the dead body.
138. PW-24 Dr.Saroj Dahiya has deposed that on 01.04.2011, on receiving telephonic message, she reached at the spot i.e., place in front of Mahendra Fastner Factory and inspected the spot as well as the dead body.
139. PW-4 Sh.Harbir Singh the complainant and father of deceased has stated that on 02.04.2011, one police official from PS Binda Pur visited their house and informed his brothers about recovery of one dead body of one male from the area of Sampla, Village Kharawar, Haryana.
140. However, PW-39 Sh.Rambir Singh has deposed that on 01.04.2011, a telephone call was received by his brother PW-4 from police official from Haryana and informed him about recovery of dead body.
141. PW-2 HC Raj Kumar has deposed that on 02.04.2011 at about 08:20 AM, he recorded DD no. 11A on the basis of statement given by Sh. Mahavir Solanki who came to Police Station for informing about recovery of a dead body.
142. From the record and as per version of PW-24 Dr.Saroj Dahiya, PW-25 ASI Jai Kanwar and PW-27 Insp.Sandeep, who are official FIR No: 57/2011 Page No. 113 of 145 State v. Arvind Azad : 114 : witnesses, the dead body of the deceased Mr.Vijay Solanki was found on 01.04.2011 at around 06:00 AM. However, the deceased was found missing from 31.03.2011 at about 04:15 PM.
143. The Ld. Defence counsel has argued that the family members of the deceased went to identify the dead body of deceased on 02.04.2011 though as per version of PW-39, the father of deceased/PW-4 got information about recovery of dead body on 01.04.2011 itself in the night at about 09:00 to 10:00 PM but the family members who were eagerly searching for the deceased went to Sampla, Haryana on the next day i.e. on 02.04.2011 though Sampla, Haryana is only 1½ hours drive away from Delhi. The attention of the Court was drawn on the portion of cross- examination of PW-39 which is reproduced herein under :
'I was informed by Harbir regarding the information received from PS Sampla at about 09:00 to 10:00 PM on 01.04.2011. It is correct that I did not go to PS Sampla in the night after receiving the said information.'
144. As per the further deposition during cross-examination of PW-39, he went to Village Kharawar, PS Sampla, Haryana on 02.04.2011 for identification of dead body.
145. It has also been argued by the Ld. Defence Counsel that the deceased was stated to be missing from area of PS Khyala, Delhi and his dead body was found in the area of PP Kharawar, PS Sampla, Haryana and it is clear that for crossing border of Delhi, the Toll Plaza was crossed by the deceased. It is alleged by the prosecution that it was the accused who abducted the deceased in FIR No: 57/2011 Page No. 114 of 145 State v. Arvind Azad : 115 : his car and took him to Sampla, Haryana, where he was burnt to demolish the evidence and he must have crossed the border after paying the Toll tax at the Toll Plaza. However, neither the police has seized any Toll receipt nor seized the CCTV footage from the Toll Plaza capturing the Car of the accused crossing the border.
146. From the record, it has surfaced that neither Toll receipt nor CCTV footage of Toll Plaza was collected or even tried to collect by the police in order to prove that the accused abducted the deceased and took him in his Car to Kharawar, PS Sampla, Haryana before he was burnt to death. Surprisingly, even the statement of gate keeper present at the gate of Mahendra Fastner factory has not been recorded by the police in order to ascertain who brought the deceased to the place and in what mode, where he was found dead in burnt condition. Even the CCTV footage surrounding the spot from where the dead body was recovered has not been seized.
147. Ld.defence counsel has relied upon the Judgment titled as Ankush Maruti Shinde and Ors. Vs. State of Maharashtra reported in (2019) 15 Supreme Court Cases 470, wherein the Hon'ble Supreme Court of India has observed that :
'It has to be uppermost kept in mind that impartial and truthful investigation is imperative. It is judiciously acknowledged that fair trial includes fair investigation as envisaged by Articles 20 & 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens, that investigation of offences being one of its foremost duties. That the aim of investigation is ultimately to search for truth and FIR No: 57/2011 Page No. 115 of 145 State v. Arvind Azad : 116 : to bring the offender to book.
Apart from ensuring that the offences do not go unpunished, it is the duty of the prosecution to ensure fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the court for just determination of the truth so that due justice prevails. It is the responsibility of the investigating agency to ensure that every investigation is fair and does not erode the freedom of an individual, except in accordance with law. One of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Cr.PC.
Nothing is allowed by the law which is contrary to the truth. In Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudences of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human rights at a much higher pedestal and the accused is presumed to be innocent till proven guilty. The alleged accused is entitled to fair and true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the Constitutional mandate contained in Articles 20 and 21 of the Constitution of India.
As observed by this Court in the case of V.K. Sasikala v. State represented by Superintendent FIR No: 57/2011 Page No. 116 of 145 State v. Arvind Azad : 117 : (2012) 9 SCC 771, though it is only such reports which support the prosecution case that are required to be forwarded to the Court under Section 173(5), in every situation where some of the seized papers and the documents do not support the prosecution case and, on the contrary, support the accused, a duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself 10.4Even in a case where the public prosecutor did not examine the witnesses who might have supported the accused, this Court in the case of Darya Singh v. State of Punjab AIR 1965 SC 328 has observed that the prosecution must act fairly and honestly and must never adopt the device of keeping back from the Court only because the evidence is likely to go against the prosecution case. It is further observed that it is the duty of the prosecution to assist the court in reaching to a proper conclusion in regard the case which is brought before it for trial. It is further observed that it is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but, normally he ought to have examined all the eye-witnesses in support of his case. It is further observed that it may be that if a large number of persons have witnessed the incident,it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness box. It is further observed that if at the trial it is shown that the persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the accused and may, in a proper case, record the failure of the prosecution to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.FIR No: 57/2011 Page No. 117 of 145
State v. Arvind Azad : 118 : 10.5 Murder and rape is indeed a reprehensive act and every perpetrator should be punished expeditiously, severely and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt.
10.6 The prosecution/investigating agency is expected to act in an honest and fair manner without hiding anything from the accused as well as the Courts, which may go against the prosecution. Their ultimate aim should not be to get conviction by hook or crook.
11. Applying the aforesaid principles to the facts of the case on hand,we are of the opinion that there was no fair and honest investigation and even prosecution tried to suppress the material fact from the court. In the present case, the investigating officer, PW13 - special executive magistrate and even PW8 - injured eye witness suppressed from the court the material fact of the statement of PW8 recorded on7.6.2003, recorded by PW13 -special executive magistrate in which she specifically identified four persons who have committed the offence from the album of the photographs of the notorious criminals. Thus,special executive magistrate being an independent witness was supposed to state the correct facts before the court. At this stage, it is required to be noted that PW13 - Ramesh Sonawane - Special Executive Magistrate is the same Special Executive Magistrate who conducted the TI parade subsequently.
11.1 Even the conduct on the part of the investigating officer in suppressing the aforesaid fact from the court is required to be condemned. It appears that in fact the investigating officer and the prosecution deliberately withheld the aforesaid fact from the court. According to PW1 & PW8, there were 7-8 persons who committed the offence.
Though, PW12 - Vishnu Hagwane, nephew of the landlord -first person to reach the spot clearly stated in his deposition that PW1told him that four persons were the assailants and committed the offence. Be that FIR No: 57/2011 Page No. 118 of 145 State v. Arvind Azad : 119 : as it may, according to PW1 & PW8 and even according to the prosecution, there were 7-8 persons who committed the offence. PW8 identified four persons on 7.6.2003 from the album of the photographs of notorious criminals whose names were specifically noted as per the statement of PW8. None of the accused in the present case are out of those four persons identified by PW8 on 7.6.2003. Therefore, if those four persons who were identified by PW8 as other than the accused in the present case are added in the present case, it can be said that there were 12 persons/assailants who committed the offence and therefore the prosecution case that there were 7-8 persons would fail and that is why the aforesaid fact seems not to have been stated by the investigating officer and the same was suppressed by him deliberately and wilfully. Even the investigation also does not seem to be fair and honest investigation. From the statement of PW8 recorded by the special executive magistrate recorded on 7.6.2003 in which she identified four named persons from the album of the photographs of notorious criminals, nothing is on record whether those four persons were arrested or not or any further investigation was carried out with respect to those four persons. It is to be noted that none of the accused in the present case are out of those four persons who were identified by PW8 on 7.6.2003, i.e.,immediately after the incident. The investigating officer ought to have conducted an investigation on that line and ought to have arrested those four persons and ought to have conducted the investigation qua those four persons. On the contrary, the accused in the present case were arrested after a period of one and a half months and that too on transfer warrants, though there was no description of the accused given by either PW1 or PW8. A6 was arrested after a period of one and a half year. It is to be noted that all the accused persons are no madic tribes coming from the lower strata of the society and are very poor labourers. Therefore, in the facts and FIR No: 57/2011 Page No. 119 of 145 State v. Arvind Azad : 120 : circumstances of the case, false implication cannot be ruled out since it is common occurrence that in serious offences sometime innocent persons are roped in. At the cost of the repetition, it is to be noted that there is no explanation whatsoever why those four persons who were identified by PW8 on7.6.2003 were neither arrested nor there was any investigation qua them. Therefore, there is a serious lapse on the part of the investigating agency, which has affected the fair investigation and fair trial, and therefore, we are of the opinion that the same is violative of fundamental rights of the accused guaranteed under Articles 20 & 21of the Constitution of India."
148. The Hon'ble Supreme Court in case titled as Tomaso Bruno & Anr. Vs. State of U.P. reported in (2015) 7 Supreme Court Cases 178, has held that :
"28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence-CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."FIR No: 57/2011 Page No. 120 of 145
State v. Arvind Azad : 121 :
149. Even the version of PW-4 and PW-39 regarding information being given to them about recovery of dead body of a male at PP Kharawar, PS Sampla, Haryana cast doubt upon the same as PW-4 who is father of deceased has stated that his brothers received information regarding recovery of a dead body on 02.04.2011 from Police officials of PS Binda Pur whereas PW-39 has specifically deposed that PW-4 got information about the same on 01.04.2011 at about 09:00 to 10:00 PM by PS Sampla, Haryana. This version of PWs is totally contradictory to each other and as per the police of PS Khyala where the initial missing report was registered, the information of recovery of dead body was received on 02.04.2011 through the family member of the deceased Mr. Mahavir Singh. Hence, it also casts a doubt upon the version of prosecution witnesses as to how and when the information was received by the family members of the deceased regarding recovery of dead body of a male person. Further, it is also shocking that even after getting the information, on 01.04.2011 at about 09:00 to 10:00 PM, the family members specifically father of the deceased has not gone to identify the dead body though the son was missing and they were desperately searching for him.
150. With these facts & circumstances in the back ground coupled with lapses done by the Investigating Agency in procuring requisite evidence, the recovery of dead body of deceased cannot be safely connected with the commission of offence alleged to have been FIR No: 57/2011 Page No. 121 of 145 State v. Arvind Azad : 122 : committed by the accused and without any ocular, documentary or electronic evidence proving the version of the prosecution, this circumstance cannot be read against the accused in order to complete the chain of circumstances.
(vi) Spot inspection and collection of evidence against the accused :
151. As per version of PW-25 ASI Jai Kanwar and PW-27 Insp. Sandeep Kumar, they both were on patrolling duty and information about the dead body of deceased in burnt condition was given to them by chowkidar Surender on 01.04.2011 at about 06:00 AM. Thereafter, the crime team was called who inspected the spot and one two Litres Fanta bottle was seized which was empty except few drops of Kerosene oil. Even the portion of the pants of the deceased bearing the particulars of the tailor was cut and sealed in different pullandas vide seizure memo Ex.PW-25/A. The exhibits were deposited in sealed intact condition in malkhana of PS Sampla. As per the testimony of PW-41 HC Ashok Kumar, he took the exhibits from the MHC(M) PS Sampla and deposited the same in the FSL, Madhuban, Haryana. As per report of PW-46 Sh. Bharat Bhushan, proved as Ex.PW-46/A, four sealed intact parcels were received which were examined vide the said report and Ex.4 was one empty plastic bottle of 1.2 litres capacity and as per the result of examination, residues of petrol were detected in the said Ex.4. However, no chance/finger prints have been lifted from the bottle for DNA profile in order to connect the same with FIR No: 57/2011 Page No. 122 of 145 State v. Arvind Azad : 123 : the accused.
152. As per testimony of PW-24 Dr. Saroj Dahiya, the spot was first inspected by him and IO was directed to lift the burnt remnants for analysis. As per the report of the said witness exhibited as Ex. PW- 24/A, the spot where the dead body had been found and its surrounding area were examined meticulously by the FSL team for the presence of some physical clue related to the crime however, except the dead body, no other physical or incriminating evidence could be observed by the FSL team. Hence, only photographs of the spot and lifted burnt remnants recovered were sent to FSL, Madhuban, Karnal, Haryana for further analysis.
153. Hence, there is no scientific or documentary incriminating evidence collected on record against the accused to connect him qua the recovery of dead body from the spot at Village Kharawar, PS Sampla, District Haryana.
154. Even no ocular evidence has been brought on record regarding presence of the accused during night or dawn or soon before recovery of the dead body from the spot. Surprisingly, the Chowkidar Surender who informed PW-25 and PW-27, police officials on patrolling duty has not been cited or examined as witness. Even the gate keeper stated to be present near the spot at Mahendra Fastner Factory has not been inquired/interrogated for presence of the accused near or around the spot of recovery of dead body.
155. In absence of any ocular or documentary or scientific FIR No: 57/2011 Page No. 123 of 145 State v. Arvind Azad : 124 : incriminating evidence against the accused proved on record by the prosecution, this circumstance cannot be read against the accused.
(vii) Recovery of abandoned vehicle of the accused :
156. As per the prosecution, the abandoned car of the accused was found from the area of PS Adarsh Nagar on the next day of the incident i.e. on 01.04.2011. In order to prove the said circumstance, the prosecution has examined PW-30 Sh. Anuj Gupta, who deposed that in the year 2011, he made a call on number 100 regarding an abandoned car parked outside his shop for whole night. However, he failed to remember the make, colour or registration number of the Car due to passage of time and despite cross-examination by the prosecution after declaring him hostile, he failed to recollect the details of the abandoned car for which he informed the police.
157. PW-37 SI Ashok Kumar has deposed that on 02.04.2011, he received telephonic information from the then duty officer regarding an unattended car in the area of PS Adarsh Nagar. He went to the spot with Ct. Pardeep and found the car bearing registration no. DL-9CJ-7347 white colour Maruti-800 as locked. He got it opened through a local mechanic and the key of the car was found to be lying in the dash board. As per the RC found in the dash board of the Car itself, the registered owner is Mr. Subhash Chand Azad. One plastic bottle smelling petrol was found FIR No: 57/2011 Page No. 124 of 145 State v. Arvind Azad : 125 : lying on the rear seat in the Car therefore, crime team was called and photographs were taken alongwith lifting of chance prints from the Car. The car was seized under section 102 Cr.P.C. vide seizure memo. During his cross-examination, he admitted that neither he informed police officials of PS Khyala nor instructed the finger print Experts to lift the chance prints from the staring, dash board or internal side of the Car.
158. As per the testimony of PW-32 Sh.M.D.Meena, he received a message through PCR regarding finding one abandoned car by the police and accordingly, he visited the spot alongwith his team and found one Maruti Car bearing no. DL-9CJ-7347. He inspected the spot and one chance print was lifted from inside rear view mirror of the Car and some photographs of the car were also clicked from different angles. However, he admitted during his cross- examination that when they reached the spot, the Car was not found to be in locked condition. He proved his inspection report as Ex.PW-32/A.
159. PW-38 SI Rajesh Kumar has deposed that on 03.04.2011, Ct. Jaipal handed over one Car of make Maruti 800 which was white in colour to the IO/Insp. Anil Kumar Chauhan, which was stated to be found abandoned in the area of PS Adarsh Nagar. Certain articles were found in the Car which IO had seized in a pullanda.
160. PW-40 Investigating Officer Insp. Anil Kumar Chauhan has deposed that on 03.04.2011, he received information regarding recovery of Maruti Car belonging to accused Arvind Azad and FIR No: 57/2011 Page No. 125 of 145 State v. Arvind Azad : 126 : accordingly, he went to PS Adarsh Nagar and seized the aforesaid Car. He also seized two empty bottles smelling petrol which were found lying in the Car alongwith five sun sheds, one solar film, matchbox etc. from the Car which were seized vide memo proved as Ex.PW-21/A. Out of the recovered articles, only matchbox, solar film and sun sheds as well as bottles were sealed in separate pullandas.
161. Ld. defence Counsel has argued that the abandoned Car belonging to the accused was recovered from open space and hence, the articles recovered from inside the Car cannot be relied upon as incriminating evidence against the accused by the Court since the possibility of planting the same cannot be ruled out in absence of any scientific evidence against the accused. He has relied upon the Judgment of the Hon'ble Supreme Court in Jaikham Khan Vs. State of Uttar Pradesh reported in (2021) 13 SCC 716 , to substantiate his arguments, wherein it has observed as under :
"As already discussed hereinabove, since no public witness has been examined to support the said memo, the statement made therein will have to be scrutinised with greater caution and circumspection. All the statements made therein with regard to the confession of committing the crime would not be admissible in evidence. Only such information, which distinctly relates to the discovery of facts will be admissible under Section 27of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act"). The evidence of P.W.9 BrahmeshKumar Yadav (I.O.) would reveal that immediately after the F.I.R. was lodged, he had come to the spot of incident FIR No: 57/2011 Page No. 126 of 145 State v. Arvind Azad : 127 : for further investigation. According to him, the accused Nos. 1,3 and 4 were arrested at around 2.00 a.m. on 24th January,2014. Even according to him, the police party was very much there at the spot. One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan, i.e., the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries.
162. As per report of the crime team, Ex.PW-32/A, the crime team inspected the Car on 02.04.2011 at 08:30 PM vide DD no. 14A and only chance prints from rear view mirror was lifted but surprisingly, the crime team did not find any bottle smelling petrol lying in the Car. However, two bottles smelling petrol were found by the Investigating officer lying in the Car that too the next day, i.e. 03.04.2011, though it has been stated by PW-37 that when he opened the locks of the Car, he found one bottle smelling petrol lying in the rear seat of the Car. None of the bottle smelling petrol has been seized by the crime team and has not been sent to the FSL for chemical examination or DNA profile. Even the crime team has not lifted any chance prints from the said petrol smelling bottle in order to connect the accused with the same. Only the chance prints lifted from the real view mirror of the vehicle has been sent to the Finger Prints Bureau, Delhi Police for which report has been received proved as Ex.PW-47/A. However, FIR No: 57/2011 Page No. 127 of 145 State v. Arvind Azad : 128 : admittedly, the Car belongs to the accused and finding his finger prints on the rear view mirror is no surprise to the Court and also of no avail to the prosecution.
163. There is major contradiction in the testimony of all the Prosecution witnesses regarding recovery of abandoned Car of the accused as the informant who is examined as PW-30 Sh.Anuj Gupta has stated that he made telephonic call to PCR on 01.04.2011, whereas PW-37 SI Ashok Kumar deposed that he received the information from duty officer regarding the abandoned Car on 02.04.2011 and the Investigating Officer examined as PW-40 Insp. Anil Kumar Chauhan has deposed that he got the information regarding the recovery of abandoned Car of the accused on 03.04.2011 and he inspected the Car on the said day which was lying opened.
164. Even the ocular or electronic evidence regarding leaving the Car by the accused outside the shop of PW-30 has neither been collected nor been tried by the Investigating agency as it is not the case of the prosecution that the police tried to search the CCTV footage of the day when the accused is alleged to have left his Car in abandoned condition at the spot. No inquiry stated to have been made from the nearby area regarding any eye witness or CCTV footage to collect evidence in this regard.
165. With this incomplete investigation conducted by the police, this circumstance is not proved against the accused beyond shadow of doubt and is incomplete to form the chain of circumstance.
FIR No: 57/2011 Page No. 128 of 145State v. Arvind Azad : 129 :
(viii) Subsequent conduct of fleeing by the accused :
166. It has been putforth by the prosecution that soon after the incident, the accused fled away and had hidden himself in different hotels in the State of UP and Uttrakhand. In order to prove the same, the prosecution had examined two teachers of the school i.e,. PW-14 and PW-19 who specifically deposed that after the accused left with the deceased from Park hospital at about 04:15 PM, he was not traceable. PW-19 specifically deposed that the accused was not found by him either at his home or at Janak Puri District Centre, where the father of deceased waited for them to reach as he visited both the aforesaid places alongwith another teacher namely Rakesh Kumar.
167. Even PW-13 Ms. Anita Goyal and PW-19 Sh. Vikas Kumar deposed that the mobile phone of the accused was found ' switched off', when they tried to contact him to know about the health of the deceased.
168. Even prosecution witnesses PW-11 Sh. Brahmanand Sharma, PW- 12 Sh.Jagat Singh, PW-15 Sh.Sumit Bouri, PW-31 Sh.Nitin Aggarwal, PW-33 Sh.Vijender Singh Bisht and PW-34 Sh.Anoop Kumar have proved on record that from 09.04.2011 to 10.04.2011, accused stayed at Shiv Ganga Jaipuria Bhawan, Guest House at Haridwar, Uttrakhand; accused stayed from 10.04.2011 to 11.04.2011 at Lotus Guest House, Haridwar; accused stayed on 02.04.2011 at Lucky Lodge, Bullandshahar, UP and accused stayed from 09:30 PM on 02.04.2011 to 03.04.2011 at Paramount FIR No: 57/2011 Page No. 129 of 145 State v. Arvind Azad : 130 : Hotel, Kotdwar, Uttrakhand.
169. As per the testimony of Investigating Officer PW-40 Insp. Anil Kumar Chauhan, the accused was arrested while returning from outstation on 17.04.2011 from Karampura Terminal, Moti Nagar, Delhi.
170. Ld. Defence Counsel has argued that the subsequent conduct of the accused only with regard to his fleeing away due to fear cannot be sole basis of his conviction and he has relied upon the Judgments discussed in the succeeding paragraphs.
171. The Hon'ble High Court of Calcutta in C.R.A. No. 176/2019 titled as Md. Firoz Ala @ Firoj Alam Vs. State of West Bengal, has held that :
"31.Faced with this predicament Mr. Banerjee has strongly relied on the abscondence of the appellant immediately after the incident. Referring to the evidences of PWs 3 and 12 he submits appellant went missing from the mosque immediately after the incident and did not return to the village. Second investigating officer (PW 16) was unable to arrest him in spite of raiding his native village in Bihar. He was finally arrested on 12.3.2014 at Panskura railway station. It is settled law abscondence of an accused by itself does not establish his guilt. In Sk. Yusuf Vs. State of West Bengal (2011) 11 SCC 754, the Apex Court held as follows:-
"31. ... It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against FIR No: 57/2011 Page No. 130 of 145 State v. Arvind Azad : 131 : him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment."
32. xxxxx
33. Under such circumstance, it is likely out of fear and apprehension of false implication and harassment the appellant may have ran away from the village and secreted himself. Abscondence of the appellant when judged in the backdrop of the fact and circumstance of the case cannot by any stretch of imagination be treated to be conclusive evidence with regard to his guilt In the light of the aforesaid discussion, I am of the opinion prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled to an order of acquittal."
172. The Hon'ble Supreme Court in case titled as SK. Yusuf Vs. State of West Bengal reported in (2011) 11 Supreme Court Cses 754, has held that :
"25. Both the courts below have considered the circumstance of abscondance of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: Matru @ Girish Chandra v. The State of U.P., AIR 1971 SC 1050; Paramjeet Singh @ Pamma v. State of Uttarakhand AIR 2011 SC FIR No: 57/2011 Page No. 131 of 145 State v. Arvind Azad : 132 : 200; and Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490) Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance which give rise to draw an adverse inference against him. "
173. The Hon'ble Delhi High Court in Crl. A. No. 1310/2014 titled as Surender @ Dheeraj Vs. State, has observed as under :
"76. The arrests of the accused were all in public places and yet none of the arrests were in the presence of independent public witnesses. Parrot- like statements to the effect that passersby were asked but declined to join are given by the IOs in the present case. This does not convince the Court. In Kehar Singh v. State AIR 1988 SC 1883 one of the accused, Balbir Singh, was arrested at the bus stand at Najafgarh, which was a public place but there were no independent public witnesses to the arrest. It was argued by the State that there was no such requirement in the Cr PC. Repelling this contention, the Supreme Court observed:
"It may be as technically argued by the learned Additional Solicitor General that the presence of public witness under the scheme of Code of Criminal Procedure is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal Search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of this accused is no other evidence except the evidence of police FIR No: 57/2011 Page No. 132 of 145 State v. Arvind Azad : 133 : officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution."
77. In the present case every arrest is on the basis of both information provided by and identification by a secret informer who is not produced as a PW. Most arrests have taken place from open public places and during times when there is a lot of movement of the public. It is therefore difficult to accept that in every such instance, no independent witness was available. The circumstance of arrest has not been convincingly proved by the prosecution.
174. The case Laws relied by the defence have been perused however, prosecution may corroborate its case from the conduct of accused also. The previous and subsequent conduct of accused is relevant u/s 8 of Indian Evidence Act. A fact can be proved by the conduct of accused and surrounding circumstances. The conduct of accused in absconding after the commission of offence, in destroying the evidence, behaving in an unnatural way etc are relevant u/s 8 of Indian Evidence Act.
175. Reliance is placed by this Court upon the Judgment of Hon'ble Supreme Court of India in Judgment titled as Prithipal Singh & FIR No: 57/2011 Page No. 133 of 145 State v. Arvind Azad : 134 : Ors. Vs. State of Punjab and Anrs. Cited as (2012) 1 SCC 10 while confirming the conviction of appellant observed as under:-
"78. Most of the appellants had taken alibi for screening themselves from the offences. However, none of them could establish the same. The Courts below have considered this issue elaborately as in order to avoid repetition, we do not want to re-examine the same. However, we would like to clarify that the conduct of accused subsequent to the commission of crime in such a case, may be very relevant. If there is sufficient evidence to screen/absolve himself from the offence, such circumstance may point towards his guilt. Such a view stands fortified by the judgment of this Court in Anant Chintaman Lagu Vs. State of Bombay."
176. Hence, it has been proved on record in view of ocular as well as documentary evidence that soon after the alleged incident, the accused fled away from Delhi where he had his house and was residing before the incident and returned to Delhi as later on 17.04.2011. Even the accused admitted the said factum of his fleeing away during his statement recorded u/s 313 Cr.P.C. however, he has stated that in the late hours of 31.03.2011, some family members of the deceased visited his house alongwith police officials and abused his family members by informing that the deceased was missing since he had not returned home and he was suspected, he contacted his lawyer who advised him to switch off his phone, leave the city and not to contact anyone. He was also advised to return when Vijay Solanki is found. Accordingly, the said conduct of the accused is relevant under section 8 of the Indian Evidence Act and shall be read against him, though it cannot be the sole basis of conviction in view of Judgments relied FIR No: 57/2011 Page No. 134 of 145 State v. Arvind Azad : 135 : by the defence.
(ix) Confession letters written by the accused :
177. It has been putforth by the prosecution that while the accused absconded after the commission of the crime and before his arrest, he wrote two Confession letters regarding his involvement in the commission of offence against the deceased and one of such letter was addressed to the father of the deceased and the other letter was received by his own brother.
178. In order to prove the said letter, prosecution has examined one of the addressee of the letter i.e. father of the deceased as PW-4 who has deposed during his testimony as under :
"After about a week of the recovery of the dead body of my son Vijay Solanki, I received the letter from accused Arvind Azad by post at my residential address. In the said letter, it was mentioned that my son Vijay Solanki had taken loan of Rs.12,00,000/- (Twelve lakhs) from accused Arvind Azad and also mentioned that, 'MEIN AISA NAHI KARNA CHAHA RAHA THA, KISI MAJBURI SE AISA HO GAYA AUR YE BARA LAKH RUPAY AAP BHAR DENA'.
I informed the police regarding receipt of the said letter. The said letter was taken into police possession vide seizure memo Ex.PW-4/A, bearing my signatures at point A."
179. The aforesaid said letter was sent to FSL for opinion of handwriting expert who has been examined as PW-45 Sh.Anurag Sharma and has proved his report as Ex.PW-45/A, as per which the questioned document mark Q.1, Q.2, Q.4 to Q.6, Q.8 and Q.16 matched with the handwriting and signatures in documents Mark S.1 to S.4, which are the writing and signatures of accused Arvind Azad.
FIR No: 57/2011 Page No. 135 of 145State v. Arvind Azad : 136 :
180. Even the accused has stated in his statement recorded u/s 313 Cr.P.C. that he wrote letter to the father of deceased by informing him that he has not done anything wrong.
181. Hence, in view of ocular as well as documentary evidence on record, the letter Ex.PW-4/A has been written by the accused to the father of deceased. However, on perusal of the contents of said letter, it has surfaced that it is not a confession made by the accused of his guilt in commission of the offence alleged against him and for the sake of convenience, the contents of the letter are herein reproduced :
"Respected Uncle Ji and Aunty Ji हालातों ने मुझे आपसे कु छ कहने के काबिल तो छोड़ा नहीं है पर कु छ चीजे है जिन्हे साफ करना जरुरी है इसलिए एक बार इस letter को पढ़ जरूर लेना । आपको मेरी किसी बात का यकीन नही होगा मगर मैं जो भी लिख रहा हूँ वह सब सच है। सबको लग रहा है कि विजय के साथ जो कु छ भी हु आ वह मैं ने किया क्योंकि हालात ही कु छ ऐसे बन गए है ।पर सच तो ये है कि मुझे नहीं पता ये सब कै से हु आ। उस दिन विजय ठीक था उसकी थोड़ी सी तबीयत खराब थी और वो नहीं चाहता था कि आप लोगो को पता चले जिससे आप परे शान हो इसलिए हम लोगो के कु छ देर घूमने के बाद विजय मेरी गाड़ी लेकर चला गया था किसी काम से और उसने मुझे भी कहा कि जब मैं तुझे फोन करू तू तभी घर आना। मैं उसके फोन का आज तक इंतज़ार कर रहा हूँ पर में जानता हूँ कि उसका फोन नहीं आएगा इसलिए मैं भी घर नहीं आऊं गा / अंकल जो आपको ये सब बाते बकवास लग रही होगी लेकिन आंटी जी आपको तो पता है कि विजय और मैं भाई से भी बढ़कर थे तो मैं ऐसा क्यों करूँ गा और कोई वजह भी तो होनी चाहिए इतना बड़ा काम करने के लिए और आप लोग सोचिए मैने विजय को 12 लाख रूपये लोन लेकर दिए हु ए थे जो अब मेरे घरवालो को भरने पड़ेगें । ये सब जानते हु ए मैं ऐसा क्यों करूं गा ? आप लोगो के लिए 12 लाख कोई बड़ी बात नहीं है लेकिन मेरे और मेरे घरवालो के लिए ये जीवन भर की पूंजी है अब शायद उनकी सारी जिन्दगी ये लोन चुकाने में गुजर जाएगी। पर शायद यही किस्मत है लेकिन विजय का यही सपना था कि हम जल्दी से ये सारा लोन चुकाकर उस ज़मीन पर स्कू ल या फार्म हाउस बनाएंगे वो कहता था कि द्वारका वाला प्लाट उसके पापा का दिल है वैसे ही वो जमीन उसका दिल है हम इस जमीन को कभी बेचेगे नहीं तो अब उसका ये सपना आप लोगो को पूरा करना है। विजय ने और लोगो से FIR No: 57/2011 Page No. 136 of 145 State v. Arvind Azad : 137 : जो हिसाब-किताब था वो सब उसने सूटके स में लिखा हु आ है और सारे कागजात भी शायद उसी में रखे है। और प्रीती भाभी विजय ने आपके नाम पर जो 50,000/- का लोन लिया था वो 50,000/- नही 9,30,000/- था वो आप लोग बैं क से पता कर लेना। बाकी जो आप लोगो को ठीक लगें आप लोगो को जब ये letter मिलेगा तब तक मैं भी विजय के पास चला जाऊं गा और आपको शायद मेरी Body भी न मिले पर मेरे पास कोई और रास्ता नहीं है और शायद आप लोगो इससे थोड़ी-सी तसल्ली मिलें । मैं विजय को बहु त कहता था कि फालतू झंझटो में ना पड़े लेकिन वो कहाँ किसी की सुनता था लेकिन शायद उसको भी नहीं पता था कि यह नतीजा होगा कि दो परिवार बर्बाद हो जाएंगे। अब मेरे पास और कु छ लिखने को नहीं है।
अलविदा अरबिंद"
182. Even the letter written by the accused to his parents also surfaced that it is not a confession in any form of his culpability in commission of offences as charged against the accused. The said letter is also reproduced below :
"Respected Papa & Ma, मैं आप लोगो को बहु त दुख दे रहा हूँ न पर मैं ये सब जानबूझकर नहीं कर रहा। हालातों ने इतना मजबूर कर दिया है कि कोई और रास्ता नहीं है। पर एक सच्चाई आपको बतानी है कि सब लोग जो कह रहे है वो सब मैं ने नहीं किया। मैने विजय के साथ कु छ गलत नहीं किया लेकिन मेरे पास मेरी बेगुनाही का कोई सबूत नहीं है इसलिए मैं अब कभी वापस नहीं आऊं गा। मेरा सारा हिसाब किताब घर पर लिखा हु आ है विजय को जो पैसे दिए थे वो उसके घरवाले तो अब देगें नहीं वो अब आपको ही भरने होगें शायद मेरे Insurance और GPF से वो पैसे पूरे हो जाए बाकी और सबको फोन कर देना सब पैसे दे दें गे। मैं जा रहा हूँ हमेशा के लिए, शायद मेरी Body भी आपको न मिले पर इसे ही किस्मत समझ कर जी लेना । बाको और सब लोगो को भी मेरी वजह से बहु त परे शानी हु ई है जिसके लिए मैं माफी मागंता हूँ। अब शायद कभी न मिले ।
अलविदा आपका बेटा अरबिंद"
183. In view of the above discussion, it cannot be stated that these two letters are Confession letters written by the accused admitting his FIR No: 57/2011 Page No. 137 of 145 State v. Arvind Azad : 138 : guilt of alleged commission of offence regarding administering stupefying substance to Vijay Solanki, abduction of Mr.Vijay Solanki and subsequently, murder of the deceased Vijay Solanki.
(x) Motive of the accused to commit the offences :
184. It has been stated by the prosecution that the accused had lend loan of Rs.12 lakhs to the deceased hence, he has motive to murder him and also the accused forged the property documents of uncle (Chacha) of deceased in which the deceased was cited as witness hence, he had double motive to commit the commission of crime as putforth by the prosecution.
185. The prosecution has examined PW-35 Sh. Dwarika Prasad, Chief Manager, Corporation Bank, Tilak Nagar Branch, to prove the saving bank account and statement of account of accused, which is proved as Ex.PW-35/B. However, it has not been proved on record that there was any loan transaction between the accused and deceased and the deceased owed the accused Rs.12 lakhs. The accused has only stated in his statement recorded u/s 313 Cr.P.C. that on insisting of the deceased, he got loan against property from Delhi Nagrik Sehkari Bank Ltd. and the deceased assured him for returning the same. The deceased also handed over a cheque of Rs.10 lakh to the accused towards the loan taken in his name. However, it is well settled Principle Law that the statement of accused recorded u/s 313 Cr.P.C. cannot be read as incriminating evidence against him in absence of any other corroborating FIR No: 57/2011 Page No. 138 of 145 State v. Arvind Azad : 139 : evidence on record and can only be read as explanatory in itself. (Reference Manu Rao v. State of Bihar (2010) 12 SCC 310) Even otherwise, as already stated no loan transaction or that deceased owed the accused Rs.12 lakhs has been proved on record except the letters written by the accused.
186. The other motive showed by the prosecution is that the accused forged the property papers of uncle of deceased and took loan against the same but the said forgery of the aforesaid papers have neither been proved on record nor any finding of any other Court has been filed on record regarding the same. In absence of the documentary evidence supporting the same, this motive has not been established on record.
187. Ld. defence counsel has argued that there is no motive proved on record against the accused for commission of alleged offence and he has relied upon the following Judgments :
(I) The Hon'ble Supreme Court in case titled as Nandu Singh Vs. State of Madhya Pradesh reported in 2022 SCC OnLine SC 1454, has held that :
"12. In a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of Prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.
188. The Hon'ble Supreme Court of India in Ramanand @ Nandlal FIR No: 57/2011 Page No. 139 of 145 State v. Arvind Azad : 140 : Bharti Vs. State of Uttar Pradesh reported in 2022 SCC OnLine SC 1396, has observed as under :
"87. It is a settled principle of criminal jurisprudence that in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. This Court in various decisions has laid down the principles holding that motive for commission of offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of offence is available. It is equally true that failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. However, it is also well settled and it is trite in law that absence of motive could be a missing link of incriminating circumstances, but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any benefit to the accused.
88. xxxx
89. In the case of Sampath Kumar v. Inspector of Police Krishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this Court held as under:
"29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004 SCC (Cri) Supp 85] the prosecution case was based entirely upon circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, this Court rejected the motive which was the only remaining circumstance relied upon by the prosecution stating that the presence of a motive was not enough for supporting a conviction, for it is well settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused.
30.To the same effect is the decision of this Court in Santosh Kumar Singh v. State[(2010) 9 SCC 747 :(2010) 3 SCC (Cri) 1469] and Rukia Begum v. State of Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 :AIR 2011 SC 1585] where this Court held that motive alone in FIR No: 57/2011 Page No. 140 of 145 State v. Arvind Azad : 141 : the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Raiv.UT, Chandigarh[(2011) 12 SCC 258 :(2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545]. This Court explained the legal position as follows: (Sunil Rai case [(2011) 12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR2011 SC 2545] , SCC p. 266, paras 31-32) "31. ... In any event, motive alone can hardly be aground for conviction.
32. On the materials on record, there may be some suspicion against the accused, but as is often said,suspicion, howsoever strong, cannot take the place of proof."
31. xxxx
90. Thus, even if it is believed that the accused appellant had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the person concerned was the author of the crime.
One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt."
189. With this background, since one of the motive putforth by the prosecution regarding forgery committed by the accused of papers of the property of the uncle of deceased has not been proved on record in absence of any corroborative documentary evidence, hence, the Court is only reduced with analyzing the only motive of accused in murdering the deceased is that on the insistence of deceased, the accused stated to have taken loan of Rs.12 lakhs which was to be paid by the deceased but as per statement of FIR No: 57/2011 Page No. 141 of 145 State v. Arvind Azad : 142 : accused himself, a cheque of Rs.10 lakhs was already given to the accused by the deceased as a security for the loan. Hence, this motive cannot be the sole basis for conviction of the accused in the present matter.
(xi) Scientific and Medical evidence against the accused :
190. As per discussion in the preceding paragraphs at relevant points, it has clearly surfaced on record that no scientific or medical evidence has been proved on record by the prosecution which is incriminating in nature and connect the accused with the alleged offence. The Investigating Agency has made numerous lapses in collection of the evidence which if otherwise collected and proved on record would have led to a different fate to the case. Analysis of all the circumstances read together :
191. As already discussed above, there has been lapses in the entire investigation conducted by the police in collection of evidence against the accused as if sincere efforts were made by the Investigating Agency, then relevant evidence would have been procured to connect the accused with the alleged commission of offence and to complete the chain of circumstances. There has been numerous missing links in the chain of circumstances put forth by the prosecution and there has been instances where explanation for reading a particular circumstance against the accused has not been given by the prosecution witnesses. From the FIR No: 57/2011 Page No. 142 of 145 State v. Arvind Azad : 143 : initial start of seizing the juice packet alleged to be contemnated by the accused with some stupefying substance to lifting the chance prints, footprints, earth samples from the spot of recovery of dead body and matching DNA profile of the accused with the same, the Investigating Agency has failed to conduct the investigation fairly. Even the owner of medical shop from where accused is alleged to have procured the Ketamine drug has not been cited or examined as witness. Even the owner of Cyber Cafe where accused was alleged to have searched for Ketamine drug could not produce the chat history or search made by the accused as per his disclosure statement. Furthermore, no evidence has been collected from Toll Plaza or any National highway connecting Delhi and Haryana to connect that accused took the deceased in his Car after his abduction to the spot from where the dead body was found. Even the CCTV footage of ATM transaction alleged to be done by the accused from the Debit card of the deceased has not been sent to FSL to rule out the possibility of editing. The DVR which is the primary evidence has not even been collected by the police. There has been unexplained circumstance also like the change of clothes found on the dead body of deceased vis-a-vis the clothes mentioned in the missing report. With all these circumstances read together jointly, the Court helds that the chain of circumstances proved against the accused are not complete in all aspects.
FIR No: 57/2011 Page No. 143 of 145State v. Arvind Azad : 144 : Final analysis :
192. It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
193. The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
194. Accordingly, this Court is of the considered opinion that the prosecution has failed to prove the guilt with respect to the charge framed against accused Arvind Azad beyond reasonable doubts. Hence, accused Arvind Azad is acquitted of the charge against him under section 302/364/328 IPC in present FIR bearing no.
FIR No: 57/2011 Page No. 144 of 145State v. Arvind Azad : 145 : 57/2011, PS Khyala.
ANNOUNCED IN THE OPEN SHEFALI by Digitally signed SHEFALI BARNALA BARNALA TANDON COURT ON: 22.05.2024 TANDON Date: 2024.05.22 18:11:22 +0530 (SHEFALI BARNALA TANDON) ASJ-05 (West), THC, Delhi.
It is certified that this Judgment contains 145 pages and each page bears my signatures. Digitally signed SHEFALI by SHEFALI BARNALA BARNALA TANDON TANDON Date:
2024.05.22 18:11:33 +0530 (SHEFALI BARNALA TANDON) ASJ-05 (West), THC, Delhi 22.05.2024 FIR No: 57/2011 Page No. 145 of 145 State v. Arvind Azad