Delhi District Court
State vs . 1. Dinesh Kumar on 13 September, 2013
IN THE COURT OF SH. RAKESH KUMAR,
ADDL. SESSIONS JUDGE - 02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
Unique ID No.02402R0214092012
SC No.68/2012
FIR No.145/2012s
PS Nand Nagari
State Vs. 1. Dinesh Kumar
S/o Bhagwan Sahai
2. Asha W/o Dinesh Kumar
3. Subhash @ Nathi Lal
S/o Lt. Mool Chand
:ORDER ON CHARGE:
13.09.2013
Present: Sh. Dharam Chand, Ld. Addl. PP for the State.
Accused Dinesh on interim bail.
Accused Subhash on regular bail.
Accused Asha is present from Judicial Custody. Sh. Pushkar Walia, Ld. Counsel for accused Subhash. Sh. Pramod Gupta, Ld. Counsel for remaining accused persons.
Today the case is fixed for order on question of framing of charge against the accused persons, upon which arguments have already been heard in details.
Briefly stated the facts of the case are that on 03.05.2012 on receipt of DD No.23A regarding presence of a dead body at E 4/115, Nand Nagari, Delhi, ASI Dal Chand alongwith Ct. Sehzad reached there and did not find any dead body there and when they were returning back, they came to know that the dead body was actually lying at E2/115, Nand Nagari, Delhi. On reaching there the dead body of a male person aged about 32 years was found which State Vs. Dinesh etc. (SC No.34/2013) Page No.1 of pages 5 was identified as Sunil Kumar @ Bunty S/o Sh. Mohan Lal. Deceased's brother Narender Kumar identified the deceased and alleged that accused Dinesh S/o Bhagwan Sahai R/o E II/115, Nand Nagari and his wife Asha W/o Dinesh R/o E II/115 Nand Nagari Delhi, might had poisoned his brother Sunil Kumar @ Bunty as accused Dinesh was suspecting that deceased was having illicit relations with his wife. Accordingly above noted case was registered and investigation was carried out. During the course of investigation, the accused Dinesh and Asha were arrested and in his disclosure statement, the accused Dinesh disclosed that he was having suspect about the illicit relations between his wife Asha and deceased Sunil as he used to meet Asha in his absence. He was also having suspicion that the deceased Sunil was also extorting money from Asha. Than about 15 days prior to the fateful day, he made his wife to understand and they hatched a conspiracy to kill Sunil @ Bunty and accordingly, the accused Subhash @ Nathi Lal was contacted by Dinesh to arrange some poisonous medicine. On 02.05.2012 at around 10.00 AM, the accused Subhash @ Nathi Lal gave a red colour capsule to Dinesh. Dinesh handed over the same to Asha, who as per plan called Sunil at her home and administered him, the said capsule (by telling it to be a medicine to increase physical power). After consuming the said capsule, Sunil fell down and expired later on. The accused Asha also got recorded the coroborative disclosure.
During the course of further investigation, postmortem on the body of deceased Sunil @ Bunty S/o Mohan Lal R/o H. No.260, DDA Quarters, New Seema Puri was got conducted at Department of Forensic Medicine, UCMS and GTB Hospital, Delhi. After postmortem, vide PM report no.687/12 dated 04.05.2012 opined about time and cause of death as "time since death about one and half day. Cause of death: The opinion about cause of death shall be given after receipt of chemical analysis report of viscera sent to CFSL".
State Vs. Dinesh etc. (SC No.34/2013) Page No.2 of pages 5 During further course of investigation viscera of the deceased and other exhibits seized in the present case were referred to FSL/Delhi for expert opinion vide RC No.33/21/12 and 34/21/12 dated 21.05.2012 with receipt no.FSL2012/B3501 and FSL2012/ C3512 of FSL Rohini, Delhi for giving subsequent opinion about the cause of death. Than while awaiting subsequent opinion, the charge sheet was filed against the accused Asha and Dinesh whereas the name of the accused Subhash was kept as a suspect in column no.12 of the charge sheet. Lateron, the subsequent opinion was received and as per subsequent opinion the death in this case is due to "congestion and oedema of Internal Organs including Brain likely to be caused by some unknown poison in presence of Shrunken Liver". Thereafter, accused Subhash @ Nathi Lal was summoned as an accused U/s 319 Cr.P.C.
As per submissions of Ld. Counsels for the accused persons, there are no sufficient prima facie material on record for framing of charge against any of the accused persons. Firstly, the postmortem report and subsequent opinion regarding cause of death is vague and inconclusive. It is not clear as to whether the alleged red colour capsule was containing any poisonous substance? If it was so, than what was the poison and what was its quantity? Further the allegations and story brought up by the prosecution is false, fabricated and can not be believed upon. It is very strange that there was illicit relationship between the accused Asha and deceased Sunil and Asha had connived with her husband Dinesh to kill her paramour Sunil. Further except the disclosure statements, there is no iota of evidence against the accused persons particularly the accused Subhash @ Nathi Lal, who is tailor by profession and has no knowledge about the poison and the medicines.
Per contra, according to Ld. Addl. PP for the State there are sufficient prima facie material on record for framing of charge U/s 302/328/120B/34 IPC against all the accused persons. It is a case of uncommon poison. The capsule was procured by accused Dinesh State Vs. Dinesh etc. (SC No.34/2013) Page No.3 of pages 5 from accused Subhas @ Nathi Lal. Further, it is well settled that at the stage of framing of charge the court is not required to make the roving inquiry so as to find out the guilt of the accused persons or otherwise. Rather the charge can be framed on the basis of strong suspicion. In his submissions, Ld. Addl. PP has placed reliance Bharat Parikh Vs. CBI and Anr., [2008] INSC 1109 (14 July 2008) and Sajjan Kumar Vs. CBI, JTY 2010 (10) SC 413.
Having heard the aforesaid rival submissions and perusing the relevant material placed on record, I find that there is substance in the submissions of Ld. Addl. PP for the state.
It is well settled that at the preliminary stage of trial i.e the framing of charge, the court is not required to make the roving enquiry and the charge can be framed even on the basis of strong suspicion. At this stage the court is required to see only the prima facie material and the defence proposed to be led by the accused persons cannot be looked into at this stage. It has been held in Bharat Parikh Vs. CBI and Anr., [2008] INSC 1109 (14 July 2008) by Hon'ble Supreme Court of India that : "at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage.
The the stage of framing of charge the submissions on behalf of accused has to be confined to the material produced by the investigating agency."
In Sajjan Kumar Vs. CBI, JTY 2010 (10) SC 413, it is held by Hon'ble Supreme Court of India that :
"while framing of charge, magistrate cannot make roving enquiry nor the judge or Magistrate can analyse all material, including pros and cons, reliability or acceptability."
In the case in hand, there are sufficient prima facie State Vs. Dinesh etc. (SC No.34/2013) Page No.4 of pages 5 material on record for framing of charge against all the accused persons. The name of the accused persons were surfaced during the course of investigation and there are specific allegations against all the accused persons and clear roles have been assigned to them in the occurrence. The dead body in this case has been recovered from the house of accused Dinesh and Asha. Further during the course of investigation both the accused persons namely Dinesh and Asha have got recorded their corroborative disclosure statements and in their said disclosures they have specifically mentioned about the accused Subhash @ Nathi Lal, regarding procuring of poisonous capsule from him. FSL report confirms that it is case of death due to some unknown poison which was allegedly administered by accused Asha by calling the deceased at her house at the instance of accused Dinesh. Moreover, at this preliminary stage of trial the court is required to see only the prima facie material proposed to be brought on record by the prosecution and at this stage the defence proposed to be led on behalf of the accused persons cannot be looked into and it is well settled that at the stage of framing of charge the court is not required to make the roving inquiry so as to find out the guilt of the accused or otherwise. The charge can be framed even on the basis of strong suspicion. Thus, there are sufficient prima facie material for framing of charge u/s 302/328/120B/34 IPC. Charges be framed accordingly.
Put up on 23.09.2013 for framing of charges.
(RAKESH KUMAR) ASJ02 (NE): KKD Delhi 13.09.2013 State Vs. Dinesh etc. (SC No.34/2013) Page No.5 of pages 5