Delhi District Court
State vs Dinesh And Others on 30 April, 2025
IN THE COURT OF SHRI PUNEET PAHWA
SPECIAL JUDGE (NDPS)/ADDITIONAL SESSIONS
JUDGE/NORTH EAST DISTRICT KARKARDOOMA
COURTS DELHI
SESSIONS CASE NO. 44293/2015
CNR No. DLNE01-000026-2012
STATE Versus (1). DINESH KUMAR
S/o Bhagwan Sahai
R/o H. No. E-2/115,
Nand Nagri, Delhi
(Proceedings abated vide order
dated 11.01.2024)
(2). ASHA
W/o Dinesh Kumar
R/o H. No. E-2/115,
Nand Nagri, Delhi
(3). SUBASH @ NATHI LAL
S/o Late Sh. Mool Chand
R/o H. No. E-4/435, 436,
Nand Nagri, Delhi
FIR No. : 145/2012
PS. : Nand Nagri
U/s. : 302/328/34 IPC
Chargesheet Filed On : 31.07.2012
Judgment Reserved On : 21.04.2025
Judgment Announced On : 30.04.2025
Decision : Acquittal
JUDGMENT:
1. Case of the prosecution is that on receipt of information vide DD No.28-B, ASI Dal Chand alongwith Ct. Sahjad reached at H. No. E-2/115, Nand Nagri, Delhi, where, on the 2nd floor of the said house, one dead body was lying on the floor. Blood from the nose and foam from the mouth of SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 1 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 16:54:44 +0530 the dead body were found coming out. One Narender Kumar who was also present there, had identified the dead body as his younger brother namely Sunil Kumar @ Banti. Narender Kumar gave a written complaint alleging that Dinesh and his wife Asha murdered his brother Sunil Kumar @ Banti after giving him poison. FIR was registered u/s. 328/302/34 IPC. During investigation, site plan was prepared. Exhibits were lifted from the spot. Spot was got inspected by the crime team. After interrogation, accused persons namely Dinesh and Asha were arrested. Postmortem of the dead body was got conducted. After postmortem, dead body of the deceased was handed over to it's relatives. During investigation, accused Subhash was interrogated in the present case. CDRs of the accused persons were obtained and analyzed. After completing the investigation, chargesheet u/s. 328/302/34 IPC was filed against accused persons namely Dinesh, Asha and Subhash. Accused Subhash was kept in column no. 12 without arrest, as no concrete evidence came on record against him, except the disclosure statement of the co-accused persons. Initially only accused Dinesh and Asha were summoned. However, vide order dated 12.03.2013, accused Subhash was also summoned.
2. On 17.10.2013, charges under section 120-B IPC were framed against accused Dinesh, Asha and Subash @ Nathi Lal and charges under sections 302/328/34 r/w. Sec. 120-B IPC were also framed against accused Dinesh and Asha.
3. Prosecution examined as many as 28 witnesses to SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 2 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:54:52 +0530 prove the charges against the accused persons.
4. During trail, vide order dated 11.01.2024, proceedings against accused Dinesh were abated, as he had expired.
PROSECUTION EVIDENCE
5. Smt. Babita has been examined as PW-1. She deposed that she was doing private job. She got married with deceased Sunil @ Bunty on 20.04.07 as per Hindu Rites and Customs. Accused Dinesh was her jeeja (brother in law). She also deposed that there were strained relations between her husband and her jeeja Dinesh as accused Dinesh was having suspicion upon her deceased husband that there were illicit relations between her husband and her sister Asha (wife of accused Dinesh). She also deposed that she had tried to make understand to her jeeja that his suspicion was baseless but he did not pay any heed on her saying. Thereafter, she stopped visiting to the house of her sister Asha.
6. She further deposed that her husband was working at Johripur theka and on 02.05.12 at about 6.00 p.m, her husband went to Johripur theka and at about 7.30 p.m, her husband had made a call to her and told her that he would come late at home in night after taking meal. But he did not turn back at home during whole night, nor he made any phone call to her. She also deposed that in the next morning, she had made a call to her husband at about 6.00 p.m but his phone was found switched off. Thereafter, at about 7.00 am, she went to her jeth namely Narender and told all the facts to him and his family members. At that time the phone of her SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 3 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 16:55:00 +0530 husband also found switched off.
7. She further deposed that at about 8.45 am, she noticed a missed call of her sister Asha on her mobile phone. Thereafter, she made a call to Asha to know as to why she had called her. On this Asha told her that she was coming to her house and would tell all the facts. At about 9.15 am, her sister reached at her house and she asked her to accompany her while saying 'mujhe tujhe kuchh batana hai'. On insisting, she told that her husband had come to her house in the night and he had consumed something and was vomiting at her house.
8. She further deposed that after knowing the above fact, she made a call to her jeth Narender and told this fact to him and other family members. Thereafter she alongwith her jeth Narender proceeded towards the house of Asha i.e E-2/115 near Nand Nagari in rickshaw and on reaching there, she found that her husband was lying on the floor of the room and he was bleeding from his nose and jhag (fog) was also oozing out from his mouth and there was no movement in the body of her husband that time. Thereafter, her jeth Narender called the doctor and after checking her husband, doctor declared her husband dead. Thereafter, she became unconscious. She correctly identified the accused Dinesh and Asha in the court. She also deposed that her husband was killed by both the accused Dinesh and Asha after giving him poison.
9. She was cross-examined by Ld. Counsel for the accused Dinesh and Asha, wherein, she deposed that she came to know about the suspicion of Dinesh regarding illicit relation of her husband and her sister as accused Dinesh told SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 4 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:55:14 +0530 her about the same. However, she did not remember the date when accused Dinesh had told her about the same. She also deposed that she came to know that her husband was killed after giving poison to him as jhaag was coming out from the mouth of her husband and complexion of his body was turned black. She also deposed that she did not have any specific knowledge about the affect/reaction of poison on human body but she had general knowledge that by consuming poison the body turns black and jhaag (fog) comes out from the mouth. She confirmed that her husband was given poison.
10. Smt. Har Pyaari has been examined as PW-2. She deposed that accused Asha was her tenant at second floor and she remained as tenant in her house for about six months on the monthly rent of Rs. 2000/-. Accused Dinesh, who is husband of Asha was also residing with Asha and he used to visit her house occasionally. She also deposed that in the morning of the day of incident, after hearing some noise of screaming, she went to first floor of her house and on reaching there, she found that one person whose name was revealed was Bunty was lying on the floor and doctor was checking him while Asha, her sister Babita, their mother and other family members were also present there. Foam (jhaag) was coming out from the mouth of Bunty Thereafter, she made a call at number 100 while the jeth of Babita had also made call to the police.
11. This witness did not support the case of the prosecution in fullest, therefore, she was cross-examined by the Ld. Addl. PP for the State. In her cross-examination, she admitted that her statement Mark A was recorded by the SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 5 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:55:23 +0530 police on 03.05.12, however, she denied the suggestion that she had stated to the police in her statement that deceased Sunil used to visit the house of Asha, or that it was bleeding from the nose of Sunil, who was lying on the floor, when she had reached at second floor. She was confronted with her statement, where, it was so mentioned.
12. She admitted the fact that the amount of rent was Rs.1500/- per month. She also denied the suggestion that she had noticed that it was bleeding from the nose of deceased Sunil when she reached there.
13. Sh. Baldev has been examined as PW-3. He deposed that on the day of incident at around 9.30 a.m, her bhabhi Babita @ Mana had come to his house and asked him to accompany her to Nand Nagari. At around 10.00 a.m when he and his bhabhi were going on rickshaw, his brother Sanjeev met them and asked him to call his father and other family members at Nand Nagari whereas he himself would go along with Babita to Nand Nagari. Thereafter he went to his house and from there, he alongwith his father reached at D2/115, Nand Nagari, where they saw that his brother Sunil @ Bunty was lying on a floor inside the room at the second floor and it was bleeding from his nose and foam was coming out from his mouth and there was no movement in the body of Sunil. He also deposed that his brother Narender had got down and called a doctor and the doctor checked Sunil and declared him dead. His father called up at number 100.
14. He further deposed that accused Dinesh who is Sadu in relation of his brother Sunil (since deceased) was having suspicion upon Sunil that there was illicit relations SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 6 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:55:29 +0530 between his brother Sunil and his wife Asha and an altercation had also taken place between accused Dinesh and Sunil in this regard. He was fully confident that accused Dinesh and his wife had committed murder of his brother Sunil. He had correctly identified the accused Dinesh and his wife Asha in the court.
15. During his cross-examination by Ld. Defence Counsel, he deposed that his brother Sunil was residing at G-2/A-15, Nand Nagri, Delhi at the time of incident. The said house belongs to accused Dinesh. His bhabhi Babita @ Mana had come to house at about 07:15 AM and she had come at their house second time at about 09:30 AM. At that time, she told them to accompany her to Nand Nagri but she did not disclose the reason for going to Nand Nagri. His brother Sunil had been living separately from them after his marriage about 1½ years prior to the incident and they were having visiting terms to the house of his brother Sunil (since deceased). He also deposed that when he came back to his house to call his father at that time his brother Narender was not present at his house. He had reached at the spot at about 10:30 AM by cycle rickshaw. When he had reached at the spot accused Dinesh was not present, however, his wife was present there. He had remained at the spot for about one hour. He denied the suggestion that Babita @ Mana did not inform him at any point of time with regards to any mishappening with his brother Sunil or that he had not visited the spot.
16. Sh. Sanjeev has been examined as PW-4 and Sh. Narender Kumar has been examined as PW-5. Both these witnesses have deposed on the similar lines, as deposed by SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 7 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:55:35 +0530 PW-1 Smt. Babita. However, PW-4 did not support the case of the prosecution in fullest. He was cross-examined on some material points by Ld. Addl. PP for the State, wherein, he admitted the fact that on 03.05.212, the wife of his brother Sunil @ Bunty namely Babita had come to his house and Sunil did not return to the house till whole night and also admitted that on that day, at about 9:30 AM, his bhabhi Babita had come to their house and she told to accompany her to Nand Nagri.
17. Apart from it, PW-5 deposed that he had given a written complaint addressing to the SHO of PS Nand Nagari to the Local police and proved the said complaint, vide Ex.PW5/A and identified his handwriting and signature at point A. Thereafter, local police called the Crime Team and Crime Team inspected the spot and took the photographs of the dead body. He also deposed that he had made call at number 100 from the mobile phone of his brother Sunil @ Bunty as the said phone was lying near the dead body of his brother. He had also handed over the said mobile phone to Sl Rajeev Kumar, who took the same mobile phone into possession vide seizure memo Ex.PW5/B.
18. He further deposed that from the search of the dead body made by the police, one purse of black colour containing Rs.154/-, 12 rupees of nepali currency, three passport photographs of his brother, some visiting cards and one golden colour wrist watch make Sonata, two silver rings were recovered, which were taken into possession vide seizure memo Ex.PW5/C and also deposed that one steel glass, one kanch ka glass, four plastic bottles i.e of fanta, slice, lemon SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 8 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:55:43 +0530 frosty (2); one currency note of Rs.10/- and one paper on which some blackish substance, three plastic bottles contained some sort of liquid substance were also taken into possession, vide seizure memo Ex.PW5/D.
19. He further deposed that accused Asha was arrested vide arrest memo Ex.PW5/E and her personal search was taken by L/Ct. Kanta vide memo Ex.PW5/F. After interrogation, she made disclosure statement Ex.PW5/G. Thereafter, accused Dinesh was apprehended from Tanga stand, Nand Nagari and he was arrested vide arrest memo Ex.PW5/H. His personal search was also conducted vide memo Ex.PW5/J. During course of interrogation, accused Dinesh made disclosure statement Ex.PW5/K. He also identified his signatures on the abovesaid memos.
20. He further deposed that on 04.05.2012, after postmortem, the dead body of his brother was handed over to them and he proved the handing over memo Ex.PW5/L. He also correctly identified both the accused Asha and Dinesh in the court. He also admitted the fact that IO had also prepared site plan Ex.PW5/M at his instance. He had correctly identified the case property in the court i.e. bottle & cloth piece Ex. P1 (Colly.); glass & cloth piece Ex. P2; another glass & cloth piece Ex.P3; Mobile phone Ex. P4; currency note Ex. P5; piece of paper Ex. P6; bottle Ex. P7; another bottle Ex. P8; clothes belonging to the deceased Ex. P9 (inadvertently mentioned as Ex. P8 in his evidence).
21. In his cross-examination conducted by Ld. Counsels for the accused persons, PW-4 deposed that his deceased brother was residing in DDA Flats, New Seema SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 9 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:55:50 +0530 Puri, Delhi at the time of incident, but, he was not having visiting terms to his house, however, they were on talking terms. He also deposed that his deceased brother was working as a helper on a government liquor shop and he was doing job at a tailor shop and his brother Narender was working at Ready Made Garments shop at Gandhi Nagar and his another brother Baldev used to install chiken soup rehari. He had received a telephonic call from Babita @ Mana at about 9:45 AM to 10:00 AM, when he was on his way to his shop.
22. He further deposed that no complaint was made by his bhabhi or by him regarding the quarrel taken place between his deceased brother Sunil and accused Dinesh. He also deposed that he did not state to the police in his statement that accused Dinesh had threatened his brother Sunil to vacate the house of his mother-in-law otherwise, he would have to face dire consequences. He denied the suggestion that Babita @ Mana did not inform him at any point of time with regard to any mishappening with his brother Sunil or that he had not visited at the spot.
23. In his cross-examination conducted by Ld. Counsels for the accused persons, PW-5 deposed that in the year 2012, he was working at Gandhi Nagar in a private job and he was using mobile no. 9560115375. He also deposed that Sunil was residing in the house of his in-laws and the house was registered in the name of his mother-in-law. When they reached at E-2/115, Nand Nagari, Delhi at about 10:30 am, his deceased brother Sunil was lying on 2 nd Floor near the entry gate of the said room and deposed that he had not stated SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 10 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:55:58 +0530 to the police that his brother had consumed any poisonous substance. Rather he had stated that Dinesh might have killed his brother. He denied the suggestion that he had not stated to the police that Dinesh might have killed his brother. He also deposed that his family members went to the hospital along with dead body of his deceased brother but he did not remember their names. He had reached Police Station at about 6:30 pm and stayed there till late night about 12:00 - 12:30 am. His father and brothers Bhola and Sanjeev Kumar were present outside the police station. He denied to have knowledge if any complaint was lodged in police station with regard to quarrel of his brother with Dinesh at any time prior to the date of incident and personally did not lodge any complaint with police. He denied the suggestion that neither the accused Asha nor accused Dinesh was arrested in his presence, or that their personal search memo was not conducted in his presence, or that no disclosure statement of accused Dinesh and Asha was recorded by the police in his presence, or that he has deposed falsely to implicate the accused Dinesh and Asha in the present case.
24. HC Rajbir Singh has been examined as PW-6. He deposed that on 03.05.2012 at about 03.00 p.m, on receipt of rukka from Ct. Shehjzad sent by ASI Dal Chand, he had made endorsement Ex.PW6/A on it which bears his signatures at point A and got FIR No.145/12 u/s 328/302/34 IPC registered through Computer Operator. After registration of the case, he had handed over computerized copy of FIR and rukka in original to Ct. Shehzad for further handing over the same to Insp. Harish Chander. He proved the computerized copy of SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 11 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 16:56:15 +0530 FIR on record vide Ex.PW6/B. He had also proved the copy of DD No.36A (Kaymi) as Ex.PW6/C and DD No.39A (Bandi) as Ex.PW6/D.
25. SI E. S. Yadav has been examined as PW-7. He had prepared SOC report Ex.PW7/A and identified his signature thereon at point A. In his cross-examination conducted by Ld. Counsels for the accused persons, he deposed that the finger prints could not be listed from the spot and denied the suggestion that he did not visited the scene of crime or that the report Ex.PW7/A was prepared by him subsequently as per the convenience of the IO.
26. Ct. Shri Kant has been examined as PW-8. He deposed that he had delivered the copies of FIR at the residence of Ld. MM, office of DCP (NE) and Joint CP (South Easter Range). In his cross-examination conducted by Ld. Counsels for the accused persons, he deposed that he had made entry in the log book regarding the movement of Govt. Motorcycle and denied the suggestion that he had not delivered copies of FIR to the abovesaid authorities.
27. Surender Kumar has been examined as PW-9. He deposed that the mobile phone no. 9582775460 was subscribed by him and this phone used to be kept at his house. He also deposed that accused Subash is his brother.
28. This witness did not support the case of the prosecution in fullest, therefore, he was cross-examined by the Ld. Addl. PP for the State. In his cross-examination, he denied the suggestion that the abovesaid mobile phone was used exclusively by accused Subash. He identified his signatures at SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 12 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 16:56:23 +0530 point A on the customer application form Mark A and copy of DL Mark B.
29. HC Bhagmal has been examined as PW-10. He proved the photocopy containing entry in register no. 19 at serial No. 4876 regarding depositing of the sealed parcels by Insp. Harish Chander on 03.05.2012, vide Ex.PW10/A; the photocopy containing entry in register no. 19 at serial No. 4923 regarding depositing of the sealed parcels by Insp. Harish Chander on 09.05.2012, vide Ex.PW10/B. He also proved the photocopy containing entry in register no. 19 regarding sending of four sealed parcels to FSL through Ct. Netra Pal on 21.05.2012, vide Ex.PW10/C; photocopy of RC No. 34/21 as Ex.PW10/D and acknowledgment receipt as Ex.PW10/E.
30. He also proved the photocopy containing entry in register no. 19 regarding sending of eight sealed parcels to FSL through Ct. Netra Pal on 21.05.2012, vide Ex.PW10/F; photocopy of RC No. 33/21 as Ex.PW10/G and acknowledgment receipt as Ex.PW10/H. On 19.07.2012, he made entry in register no. 19 regarding receiving of FSL report and parcels in the malkhana, vide Ex.PW10/I. On 30.07.2012, he made entry in register no. 19 regarding receiving of FSL report and seven sealed parcels in the malkhana, vide Ex.PW10/J.
31. In his cross-examination conducted by Ld. Counsels for the accused persons, he admitted that register no. 19 did not bear the signature of Insp. Harish Chandra and deposed that he did not make any entry regarding receiving of SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 13 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 16:56:30 +0530 the acknowledgment receipts in register no. 19. He denied the suggestion that the entries were ante dated and ante timed and had been lodged as per convenience of the IO.
32. Insp. Mukesh Kumar Jain has been examined as PW-11. He deposed that on 12.05.2012, he had inspected the spot and prepared rough notes and measurement and later on, on the basis of rough notes and measurements, he had prepared scaled site plan Ex.PW11/A.
33. HC Ravinder has been examined as PW-12. He deposed on the direction of the IO, he had collected the Postmortem report from GTB hospital. He had handed over the Postmortem report, sealed viscera of deceased, one sealed pullanda containing clothes of the deceased to the IO, which IO had taken into possession, vide seizure memo Ex.PW12/A.
34. In cross-examination by Ld. Addl. PP for the State, he admitted the fact that the mortuary officials also handed over one sealed envelope containing blood on gauge of the deceased Sunil and IO seized the said envelope.
35. HC Netra Pal has been examined as PW-13. He deposed that he had deposited the sealed eight pullandas vide RC No. 33/21/12 and five sealed pullandas vide RC No. 34/21/12 at FSL Rohini and proved copy of RCs, vide Ex.PW13/A and Ex.PW13/B respectively. He also proved the copies of acknowledgment receipts vide Ex.PW13/C and Ex.PW13/D.
36. HC Sanjay Kumar has been examined as PW-14. He deposed that on 03.05.2012, he had taken four photographs of the crime scene at the instance of the IO and proved the said photographs, as Ex.PW14/A1 to Ex.PW14/A4 SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 14 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 16:56:37 +0530 alongwith their negatives as Ex.PW14/A5 to Ex.PW14/A8.
37. SI Dal Chand has been examined as PW-15. He deposed on the similar lines as mentioned in the chargesheet. Apart from it, he proved the complaint given by the brother of the deceased namely Narender to the SHO, vide Ex. PW5/A and thereafter on the basis of the said complaint, he prepared rukka Ex.PW15/A and got the FIR registered. He also correctly identified the case properties.
38. In his cross-examination conducted by Ld. Counsel for all three accused persons, he deposed that except DD No. 29B, he did not receive any other DD Number on that day and also deposed that when they had reached at E - 2/115 the brother of the deceased namely Narender was already present there at the spot. He did not prepare inquest report before sending the dead body for preservation. He also deposed that Narender had handed over written complaint to him at about 1.00 PM, at the spot and he had apprised the SHO concerned about the complaint given by Narender, prior to preparing rukka by him. He had prepared rukka after going through the contents of the complaint given by Narender to him. It took him one hour and forty minutes in reading the contents of the complaint and preparing the rukka.
39. He further deposed that he had left the spot after 15-20 minutes of arrival of the SHO there. The seizure memo Ex.PW5/C was prepared by SI Rajeev Kumar. He had searched the dead body in the presence of Narender. He denied the suggestion that the search was not conducted in the presence of said Sh. Narender, or that he never did anything regarding the present case proceedings.
SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 15 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:02:44 +0530
40. Smt. Sunita has been examined as PW-16. She deposed that she never got issued any mobile phone number in her name. Accused Asha is her Sautan (another wife of her husband). She never gave any mobile phone number to Asha.
41. She did not support the case of the prosecution at all. She was cross-examined by Ld. Addl. PP for the State, wherein, she denied the suggestion that the mobile SIM no. 9560365564 was got issued by her on her Id, or that she had given the said mobile SIM number to Asha. She proved the photocopy of Customer Application Form pertaining mobile phone no. 9560365564, as Mark A and photocopy of election Id card as Mark B. She denied the suggestion that she had submitted the above said customer application form and the photocopy of election Id card at the time of getting the abovesaid SIM number issued, or that on 15.07.12, she was called by the police in the Police Station Nand Nagri, where she had stated to the IO in her statement that she got issued the mobile SIM number 9560365564 on her Id or that the said SIM number had been used by her sautan Asha who is in jail. She was confronted with the statement Mark C dated 15.07.2012 where it is so recorded.
42. Sh. Rishipal Singh has been examined as PW-17. He deposed that he knew Subhash @ Nathi Lal. He also knew Dinesh Kumar as he had met him in connection with property. He had given a sum of Rs. 2 lacs to Dinesh Kumar in December, 2011 as friendly loan as the marriage of his niece was there. He had correctly identified accused Dinesh in the court.
43. He was cross-examined by Ld. Addl. PP for the SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 16 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:02:51 +0530 State, wherein, he denied the suggestion that he had stated to the police that the mobile phone no. 9582775460 was being used by Subhash @ Nathi Lal, or that he had given a sum of Rs.2 lakhs on interest to Dinesh Kumar at the instance of Subhash @ Nathi Lal. He had correctly identified accused Subhash @ Nathi Lal in the court.
44. Sh. Surender Kumar, Nodal Officer Bharti Airtel Limited has been examined as PW-18. He proved the photocopy of CAF of mobile phone No. 9560115375 issued to Smt. Rajni as Ex.PW18/A; photocopy of Voter I-card, as, Ex.PW18/B and the CDR of the above said mobile phone from the period of 01.04.12 to 05.04.12 as Ex.PW18/C. He also proved CAF of mobile phone no. 9560365564 issued to Smt. Sunita as Ex.PWD18/D and photocopy of Voter I-card, as, Ex.PW18/E and the CDR of the above said mobile phone from the period of 01.04.12 to 05.04.12 as Ex.PW18/F. He also proved the tower location chart of abovesaid said both the mobile numbers, as Ex.PW18/G and certificate u/s. 65-B of Indian Evidence Act regarding correctness of the abovesaid entries of the CDR, as Ex.PW18/H.
45. Sh. Swarn Lal has been examined as PW-20. He deposed that on 12.07.12, police officials came to him and asked about the phone no. 9582775460 and he told that the said mobile phone number was being used by his cousin (mama ka ladka) namely Subhash @ Nathi Lal.
46. Sh. Israr Babu, Alternate Nodal Officer, Vodafone Idea Limited has been examined as PW-21. He proved the photocopy of application form, vide which the mobile phone 9582775460 was issued to Surender S/o. Sh.
SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 17 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2025.04.30 17:02:58 +0530 Moolchand, as Ex.PW21/A and photocopy of attested DL as Mark A. He also proved the call detail record of the above said mobile number from the period of 1.04.12 to 05.05.12, as Ex.PW21/B and certificate under section 65 B of the Indian Evidence Act regarding correctness and genuineness of the above said CDR as Ex.PW21/C.
47. He further proved the photocopy of application form, vide which the mobile phone 9873207549 was issued to Sunil S/o. Sh. Mohan Lal , as Ex.PW21/D and photocopy of attested Election Id Card Mark B. He also proved the call detail record of the above said mobile number from the period of 1.04.12 to 05.05.12, as Ex.PW21/E and certificate under section 65 B of the Indian Evidence Act regarding correctness and genuineness of the above said CDR as Ex.PW21/F.
48. He further proved the photocopy of application form, vide which the mobile phone 9582931064 was issued to Sunil S/o. Sh. Mohan Lal, as Ex.PW21/G and photocopy of attested Election Id Card Mark C. He also proved the call detail record of the above said mobile number from the period of 1.04.12 to 05.05.12, as Ex.PW21/H and certificate under section 65 B of the Indian Evidence Act regarding correctness and genuineness of the above said CDR as Ex.PW21/I.
49. Sh. Ashish Mathur, Assistant General Manager, Aircel Limited has been examined as PW-22. He deposed that the mobile phone no. 8285646601 was issued to one Dinesh Kumar S/o Bhagwan Sahay. He proved the photocopy of CAF as Ex.PW22/B. The call detail record of the above said mobile number from the period of 1.04.12 to 05.05.12, as Ex.PW22/C, certificate under section 65 B of the Indian SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 18 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:03:04 +0530 Evidence Act regarding correctness and genuineness of the above said CDR as Ex.PW22/D and forwarding letter as Ex.PW22/E.
50. W/Ct. Kavita has been examined as PW-24. She proved the arrest proceedings of accused Asha, vide Ex.PW5/E, F & G and accused Dinesh, vide Ex.PW5/H, J, & K. She also correctly identified the accused Asha and Dinesh in the court. During cross-examination by Ld. Defence counsel, she deposed that no public person was joined in the investigation at the time of arrest of accused Asha. Disclosure statement of accused Asha was recorded at her house. She denied the suggestion that nothing was recovered from the personal search of accused Asha, or that she never joined investigation of the present case.
51. Ms. Imrana, Senior Scientific Officer, Biology has been examined as PW-25. She deposed that she had examined the exhibits of the present case and gave her report dated 26.07.2012 and proved the Biological report, vide Ex.PW25/A and Ex.PW25/B alongwith the forwarding letter, vide Ex.PW25/C.
52. Mr. Mehfooz Alam, Technical Assistant, Department of Forensic Medicine, UCMS and GTB Hospital has been examined as PW-26. He deposed that he had worked with Dr. Rahul Ambulkar during the course of his official duties and proved the postmortem report No. 687/12 of deceased Sunil @ Bunty, prepared by Dr. Rahul Ambulkar, vide Ex.PW26/A. He also proved the subsequent opinion No. 97/12 dated 02.08.2012 given by Dr. Rahul Ambulkar, vide Ex.PW26/B. As per the subsequent opinion, the cause of SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 19 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:03:11 +0530 death is "congestion and oedema of internal organs including brain likely to be caused by some uncommon poison in presence of shrunken liver".
53. Dr. Kanak Lata Verma, Assistant Director (Chemistry) has been examined as PW-27. She deposed that on 21.05.2012, 6 cloth parcels and one wooden box duly sealed were received in the office of FSL Rohini. She had examined the abovesaid exhibits of the parcels and prepared FSL Report No.2012/C/3512, dated 24.07.2012. She also proved the said report, vide Ex.PW27/A.
54. Sh. Harish Chander has been examined as PW-28. He deposed that on 03.05.2012, after registration of FIR, further investigation of the present case was conducted by him. Thereafter, he along with SI Rajeev (examined as PW-19) reached at the spot i.e. E-2/115, Nand Nagri, Delhi, where he had recorded the statement of crime team officials, who had already inspected the scene of crime. He had prepared the site plan at the instance of Sh. Narender Kumar (brother of the deceased), vide Ex.PW5/M.
55. He further deposed that Ct. Sehzad (examined as PW-23) had come at the spot and handed over the computerized copy of FIR and original RUKKA to him. Thereafter, he had directed Ct. Sehzad to reach at the mortuary of GTB hospital for the preservation of dead body of deceased Sunil @ Bunti. He also deposed that ASI Dal Chand had handed over the belongings of the deceased to him which he had taken into possession, vide seizure memo Ex.PW5/C. He had also taken into possession one mobile phone Samsung black blue colour belonging to the deceased, vide seizure SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 20 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:03:18 +0530 memo Ex.PW5/B.
56. He further deposed that thereafter, he had taken into possession the exhibits from the spot, vide seizure memo Ex.PW5/D. Thereafter, W/Ct. Kavita was called at the spot and he had recorded the statement of wife of deceased namely Babita @ Mana, brother of deceased namely Sanjeev Kumar, another brother of deceased namely Baldev Kumar and landlady Har Pyari. He also deposed that accused Asha was arrested in the present case, vide arrest memo Ex.PW5/E. She was personally searched by W/Ct. Kavita, vide Ex.PW5/F. He had also recorded the disclosure statement of accused Asha, vide Ex.PW5/G.
57. He further deposed that on the basis of secret information, accused Dinesh Kumar was apprehended from Tanga Stand, Nand Nagri. He had interrogated the accused Dinesh Kumar and arrested him vide arrest memo Ex.PW5/H. Accused Dinesh was personally searched, vide memo Ex.PW5/J. After interrogation, disclosure statement of the accused was recorded, vide Ex.PW5/K.
58. He further deposed that on 04.05.2012, he along with SI Rajeev Kumar reached at the Mortuary of GTB Hospital and he had submitted request for post-mortem form alongwith inquest papers for the post-mortem of deceased Sunil @ Bunti, vide Ex.PW28/A (colly). Thereafter, the dead body of the deceased Sunil @ Bunti was identified by Sh. Sanjeev Kumar and Sh. Narender Kumar (brothers of the deceased) and he had recorded their statements vide Ex.PW19/A and Ex.PW19/B respectively. After post-mortem, dead body of the deceased Sunil @ Bunti was handed over to SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 21 OF 41 Digitally signed by PUNEET PAHWA PUNEET Date:
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Sh. Mohan Lal (father of deceased Sunil @ Bunti), vide dead body handing over memo Ex.PW5/L.
59. He further deposed that on 09.05.2012, he had taken into possession, the sealed viscera peti of the deceased, clothes of deceased and blood in gauge in sealed condition alongwith sample seal vide seizure memo Ex.PW12/A and collected the post-mortem report of the deceased. He had proved the carbon copy of application Ex.PW28/B for the issuance of production warrants of accused Dinesh Kumar and the carbon copy of application Ex.PW28/C for seeking one day police remand of accused Dinesh Kumar.
60. He further deposed that during the course of investigation, he had sent letters to the Nodal Officers of Aircel, Bharti Airtel and Vodaphone for providing the CAF, CDR of mobile number mentioned in the said applications alongwith certificates U/s 65B of Indian Evidence Act, vide applications Ex.PW28/D, Ex.PW28/E, Ex.PW28/F, Ex.PW28/G, Ex.PW28/H and Ex.PW28/I respectively. He also proved letter written to the CMO, Department of Forensic Medicine, GTB Hospital for subsequent opinion, vide Ex.PW28/J.
61. He further deposed that during the course of investigation, he had analyzed the mobile numbers as per CDR and prepared the call details of accused Dinesh and Asha and Dinesh and deceased, vide Ex.PW28/K. Thereafter, he had prepared the chargesheet. Accused Subhash was kept in Column No. 12 of the chargesheet. The FSL result and subsequent opinion were filed before the concerned court through supplementary chargesheets. He had also correctly SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 22 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:03:30 +0530 identified the accused Asha and Subhash in the court as well as the case properties i.e. one steel glass Ex.P2, another piece of glass (kanch ka glass) Ex.P3, one plastic bottle having Fanta and lid of slice Ex.P8, another plastic bottle of Slice Ex.P10, an empty plastic bottle of Lemon Frosty Ex.P7, another empty plastic bottle of Lemon Frosty Ex.P1, currency note of Rs.10/- Ex.P5, one piece of paper having blood-like stains Ex.P6, one mobile phone make Samsung of Black and Blue colour Ex.P4, one golden colour watch of Sonata, two rings of silver, one black colour purse containing Rs.154/- in the denomination of 14 currency notes of Rs.10/- each, two currency notes of Rs.5/- each, two currency notes of Rs.2/- each and two currency notes of Nepali Currency (one currency note of Rs.10/- and another of Rs.2/-), three passport sized photographs and some visiting cards Ex.P9.
62. During cross-examination by Ld. Counsel for both the accused, he deposed that he had come to know about the present case in between 11 AM -12 Noon on 03.05.2012 and he had reached at the spot at about 3:30-4:00 PM with SI Rajeev and the crime team members had already inspected the scene of crime prior to his arrival. He also deposed that wife of deceased, three brothers of deceased, accused Asha were also present at the spot when he had reached there and the dead body of deceased was already sent by ASI Dal Chand to GTB Hospital. W/Ct. Kavita had reached at the spot at around 4:30 PM alone. He also deposed that he had personally inspected the place of incident.
63. He further deposed that ASI Dal Chand had handed over to him only the personal belongings of the SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 23 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:03:44 +0530 deceased and other exhibits were lifted by him. The mobile phone of the deceased was handed over to him by his brother Sh. Narender Kumar. He had left the spot at around 5:30 PM-6 PM and also deposed that accused Asha was arrested from her house i.e. H. No. E-2/115, Nand Nagri Delhi. He denied the suggestion that on 03.05.2012, he had never visited to the spot alongwith SI Rajeev or that ASI Dal Chand had not handed over to him the personal belongings of the deceased at the spot, or that the brother of the deceased had not met him at the spot or that he had not handed over to him any such belongings of the deceased or that he had not prepared the site plan Ex.PW5/M at the instance of Sh. Narender Kumar or that accused Asha was already brought in the Police Station in the morning time or that all the aforesaid proceedings was done while sitting in the Police Station.
64. He further deposed that he had received the secret information regarding accused Dinesh at about 8 PM on 03.05.2012. No DD entry with respect to receiving of the said secret information was lodged in the Police Station.
65. He denied the suggestion that Narender had never accompanied him to Tanga stand, Nand Nagri in search of the accused Dinesh, or that he had never gone in search of the accused Dinesh, or that accused Dinesh was apprehended at about 10 PM. He also deposed that no chance print was lifted from the spot by the members of the crime team in his presence. He also denied the suggestion that the officials of the crime team had already left the spot prior to his arrival at the spot, or that neither the accused Asha nor the accused Dinesh was arrested by him in the manner as described by SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 24 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:03:53 +0530 him, or that accused Asha and Dinesh were falsely implicated in the present case at the instance of family members of deceased.
66. He further deposed that in his knowledge, no complaint prior to the present incident was lodged either by the brothers of the deceased namely Narender Kumar, Bhola and Sanjeev Kumar or by deceased's wife Babita or even by the deceased himself at PS Nand Nagri. He denied the suggestion that accused Subhash was falsely implicated in the present case only being the friends of the accused Dinesh, or that he had not fairly investigated the case.
67. PW-19 SI Rajeev Kumar and PW-23 HC Shahzad have been examined on the similar lines as deposed by the IO/ACP Harish Chandra (PW-28), as both the witnesses have joined the investigation with him.
STATEMENT OF ACCUSED
68. All the incriminating circumstances appearing in evidence against accused Subhash @ Nathi Lal and Asha were put to them as required u/s 313 CrPC. Accused Subhash @ Nathi Lal stated that he was falsely implicated in the present case and he had not made any conspiracy with co- accused Dinesh and Asha. Accused Asha stated that on the intervening night of 02/03.05.12 at about 10:00/10:30 PM, when she was going to sleep on the roof alongwith her minor children, Sunil had come to her house and asked her to allow to stay in her room for night. She allowed him and went on the roof. When in the morning, she came in the room, Sunil was not responding. She went to the house of her sister Babita SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 25 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 17:03:59 +0530 and informed her, but, she alongwith her in-laws falsely implicated her and her husband in the present case.
69. Accused Asha opted to examine witnesses in defence.
70. Ms. Kirti Gaudiyal has been examined as DW-1. She deposed that on 02.05.2012 at about 10 PM, her uncle (Mausa ji) Sunil had come to her house at E-2/115, Nand Nagri, Delhi and told her mother Asha that he had some heated conversation with her aunt (Mausi ji) and requested her mother to allow him to stay there at night. She also deposed that thereafter, she alongwith her mother and brother, sister went on the roof to have a sleep. When they woke up in the morning and went into their room, her Mausa ji was lying. They tried to woke him up, but he did not wake up. Thereafter, her mother took them to the house of her younger mother (choti mummy) Sunita at Block No. 7, MCD flat, Nand Nagri. Thereafter, she came to know that her parents were implicated in the present case. She was cross-examined by Ld. Addl. PP for the State, wherein, she deposed that she had been asked by her mother Asha (accused in the present case) to depose in the present case. She and her mother Asha had not made any call to the police, nor called any doctor after seeing that Sunil (mausa ji) was lying and not responding. She denied the suggestion that accused Dinesh and accused Asha had administered a capsule (unknown poison) to Sunil @ Bunty (mausa ji) and due to said reason, Sunil @ Bunty (mausa ji) had expired, or that she was intentionally deposing in the present case being the daughter of accused Dinesh and SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 26 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:04:06 +0530 accused Asha and trying to save them.
SUBMISSIONS OF THE PARTIES
71. I have heard counsel for the accused persons and Ld. Addl. PP for the State.
72. Sh. F. M. Ansari, learned Addl. PP for the State submitted that most of the witnesses have supported the case of the prosecution and all the essential ingredients of the offences against the accused persons have been duly proved and submitted that the charges have been duly proved against the accused persons beyond reasonable doubt, therefore, both the accused persons Subhash @ Nathi Lal and Asha are liable to be convicted in the present case.
73. Ld. Counsel for the accused submitted that the entire story of the prosecution is based upon the circumstantial evidence, however, the prosecution has failed to bring anything on record to prove that there was any motive on the part of the accused persons, who had administered poison to the deceased. The alleged motive of the illicit relationship between the deceased and accused Asha was mere suspicion on the part of the accused Dinesh and the prosecution has even failed to prove the same. Nothing has come on record to prove that the deceased had actually died because of any poison and the cause of death has also not been proved as such. As per the FSL report, no poisonous substance was found either in the Viscera of the deceased or on the seized articles such as steel glass, Fanta bottle, transparent liquid, Slice bottle, which were lifted from the spot.
74. It has further been argued that the prosecution SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 27 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:04:12 +0530 has failed to prove that what poison was administered and how the same was procured by the accused persons. There is no evidence on record to prove the meeting of minds so as to hatch the conspiracy as alleged by the prosecution. Therefore, both the accused persons are entitled to be acquitted in the present case.
75. Ld. Counsel for the accused has relied upon judgments, Hariprasad @ Kishan Sahu v. State of Chhattisgarh, Criminal Appeal No. 1182 of 2012 (2023 INSC
986); Raja Khan v. State of Chattisgarh, Criminal Appeal No. 70 of 2025 (2025 INSC 167) and Raj Kumar @ Raju v. The State of the NCT of Delhi, Criminal Appeal No. 876 of 2010 decided on 14.08.2013 (DHC).
76. I have considered the rival submissions, put forth by both the sides.
FINDINGS
77. As per record, accused Dinesh has already expired and proceedings against accused Dinesh have been abated, vide order dated 11.01.2024. Accused Asha has been charged for committing the offences u/s. 302/328/34 IPC read with Sec. 120-B IPC & Sec. 120-B IPC, whereas, accused Subhash @ Nathi Lal has been charged for committing the offence u/s. 120-B IPC.
78. The case of the prosecution, in nutshell, is that on 03.05.2012 vide DD No. 29B, an information was received regarding lying of dead body of deceased Sunil at the house of accused Dinesh and Asha. When the police officials reached at the spot, they found that dead body of deceased Sunil was SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 28 OF 41 Digitally signed by PUNEET PAHWA PUNEET Date:
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lying at the second floor of H. No. E-2/115, Nand Nagri, Delhi and at that time, accused Asha, complainant Narender, Smt. Babita w/o deceased and other family members of the deceased were present there. It is pertinent to mention at the outset that the deceased and his family members and accused Dinesh and Asha were related to each other, as accused Asha is the sister of Babita, who was wife of the deceased and accused Dinesh was husband of accused Asha.
79. As per the medical report, the cause of death of deceased is "congestion and oedema of internal organs including brain likely to be caused by some uncommon poison in presence of shrunken liver". Due to the unnatural death of the deceased and on the basis of complaint made by the complainant, the present FIR was got registered and after investigation, the chargesheet was filed against the accused persons.
80. As per the case of the prosecution, all the three accused persons had conspired with each other and in pursuance upon the said conspiracy, accused Subhash had arranged some poison and handed over the same to accused Dinesh and Asha, who thereafter administered the same to the deceased, which resulted into his death. To prove it's case, the prosecution has examined 28 witnesses, out of which, 09 witnesses are public witnesses, whereas, remaining witnesses are formal/police witnesses. Out of those 09 public witnesses, PW-1 to PW-5 are the most important and crucial witnesses on whose deposition, the entire prosecution case depends.
81. PW-1 Smt. Babita is wife of the deceased and SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 29 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:04:24 +0530 sister of accused Asha and PW-3, PW-4 & PW-5 are the brothers of the deceased Sunil, whereas, PW-2 was the landlady of the accused. PW-1, PW-3, PW-4 & PW-5 have deposed to the effect that accused Dinesh was having suspicion that deceased Sunil and accused Asha were having illicit relationship with each other and all the said four witnesses have very categorically stated that due to the said suspicion, some altercation took place between the deceased Sunil and accused Dinesh 15 days prior to the alleged incident and it is due to the said suspicion only, accused Dinesh and Asha had committed the murder of the deceased Sunil, after giving him poison.
82. So far as PW-2 is concerned, she has supported the case of the prosecution only to the extent that accused Asha was her tenant at 2nd floor and accused Dinesh was also residing with accused Asha at the said premises and on the day of incident, when she woke up in the morning, she heard the noise of screaming and when she reached at the 1 st floor, she found that one person, whose name was revealed as Bunty was lying on the floor and doctor was checking him.
83. During investigation, the CDRs of the mobile phone allegedly used by the accused persons and the deceased were obtained and filed on record. To prove the same, the prosecution has examined PW-18 Sh. Surender Kumar, PW-21 Sh. Israr Babu and PW-22 Sh. Ashish Mathur. As per the case of the prosecution, mobile phone no. 9582775460 was being used by accused Subhash, who was in regular contact with accused Dinesh. As per record furnished by SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 30 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:04:30 +0530 PW-18, the mobile phone no. 9560365564 was issued in the name of Sunita, who was the second wife of accused Dinesh and the said mobile number was allegedly used by accused Asha, however, when Sunita came into the witness box and deposed as PW-16, she had turned hostile and stated that she never gave her phone to accused Asha. Therefore, this aspect of the prosecution story remained unproved, as to whether the said mobile phone number 9560365564 was actually used by accused Asha or not. It is further the case of the prosecution that the mobile phone no. 9582775460 was, although issued to Surender, yet, it was used by accused Subhash. To prove the same, the prosecution has examined Surender Kumar, who was the brother of accused Subhash as PW-9, Rishipal Singh as PW-17 and Sewak Lal as PW-20. Witness Surender Kumar had deposed that although the said mobile phone was issued to him and was being used by him, yet when he was cross- examined by the Ld. Addl. PP for the State, he admitted that for some time, he had given the said mobile phone to accused Subhash. Witness Sewak Lal also deposed that the said mobile phone no. 9583775460 was used by accused Subhash. Therefore, it has been proved on record that the said mobile phone number was, at the relevant point of time, used by accused Subhash and as per the CDR of the said mobile phone for the period of 01.04.12 to 05.05.12, which is Ex.PW21/B, accused Subhash was in contact with accused Dinesh.
84. The remaining witnesses were police officials, who had participated at various stages of investigation.
85. Now, it is to be seen as to whether in the light of SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 31 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:04:37 +0530 above evidence, the prosecution has been able to prove the guilt of the accused persons beyond reasonable doubt so as to bring home their guilt for the offences with which they have been charged and facing trial.
86. For that purpose, it is to be seen as to whether the offence committed by the accused, would be culpable homicide as defined under Section 299, IPC and consequently, would be culpable homicide amounting to murder as defined, under Section 300, IPC. To deal with this question, it is expedient to first refer to the said provisions which are reproduced as under:
"Section 299: Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
And Section 300: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 32 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 17:04:43 +0530 to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
87. Criminal conspiracy has been defined u/s. 120-A IPC and punishment thereof, has been provided u/s. 120-B IPC.
88. Sec. 120-A IPC provides that:-
When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
89. Sec. 120-B IPC is reproduced herein below:-
(1). Whoever is a party to a criminal conspiracy to commit an offence punishable with death, or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2). Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
90. The accused persons have been charged under Sec. 328 IPC also, which is reproduced herein below:-
SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 33 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:04:49 +0530 Causing hurt by means of poison, etc., with intent to commit an offence.- 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 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.
91. Since, as per the prosecution, the death of the deceased has been caused due to administration of the poison allegedly by the accused persons, it would be appropriate to refer to the judgment of Hon'ble Supreme Court of India in case, Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622 in which the Hon'ble Supreme Court held that:
(1). In case of the alleged death due to poison, the prosecution is required to prove that there was clear motive of the accused to administer poison to the deceased.
(2). That the accused had poison in his possession. (3). That he had an opportunity to administer the poison to the deceased.
92. Admittedly, there is no eyewitness in the present case. The entire case of the prosecution is based upon the circumstantial evidence.
93. In case of circumstantial evidence, the law is now well settled as held in various judgments of Hon'ble Supreme Court of India that in cases, where there is no eyewitness and case is based on the circumstantial evidence, the Hon'ble Supreme Court has outlined five essential principles, often referred to as five golden principles, which must be satisfied SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 34 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:04:56 +0530 for circumstantial evidence to conclusively establish the guilt of the accused persons i.e.:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.......
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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 human probability the act must have been done by the accused."
94. So far as the motive is concerned, although the witnesses i.e. PW-1, PW3, PW-4 and PW-5 have very categorically stated that accused Dinesh was having suspicion of illicit relationship between the deceased Sunil and accused Asha, however, from the depositions of the witnesses themselves, it is clear that it was mere suspicion and there was no such illicit relationship between the accused Asha and deceased Sunil. In fact, PW-1 herself stated that she had tried to make understand to accused Dinesh, who was her Jija that his suspicion was baseless, but he did not pay any heed to her. Therefore, it is clear that there was no illicit relationship between accused Asha and deceased Sunil and even if, it was SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 35 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:05:02 +0530 there, no evidence has come on record to that effect. It was mere suspicion on the part of the accused Dinesh. Even if, it is believed that accused Dinesh was having such suspicion, the said motive can only be attributed to the accused Dinesh and not to the other accused persons. From the evidence on record, it can be said that so far as accused Asha is concerned, there is nothing on record to show that she was also having any such motive to cause death of the deceased Sunil. Infact, for the sake of argument, if she was having illicit relationship with deceased Sunil, she infact would not have wanted to cause death of the deceased as such. Even otherwise, if accused Dinesh was having motive to kill deceased Sunil, it can not be the sole basis of conviction.
95. After going through the record, this court is of the opinion that there are several aspects on which the investigation is lacking and there are certain gaps in the prosecution story which the prosecution has failed to prove, such as: a). What poison was administered to the deceased and how the same was procured. There is neither any investigation, nor anything on record to show that as to how, accused Subhash procured the poison and from where, he had procured the said poison and the nature of said poison also could not be proved. b). The second aspect is regarding conspiracy between the accused persons. So far as the offence of conspiracy is concerned, only evidence which has come on record, which the prosecution is relying upon is CDR connectivity between the accused persons. However, if the said CDR connectivity is looked into, sans the disclosure statements of accused persons, it cannot be said to have any SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 36 OF 41 Digitally signed by PUNEET PUNEET PAHWA PAHWA Date:
2025.04.30 17:05:10 +0530 incriminating value as such. Merely because, the accused persons were in contact with each other, without there beeing any details as to what talks actually had happened between the accused persons, it is not sufficient enough to come to the conclusion that they had entered into a conspiracy for committing the murder of the deceased Sunil. c). Another aspect which further puts dent upon the story of the prosecution is that almost all the material witnesses i.e. PW-1, PW3, PW-4 & PW-5 had stated that when they saw the deceased lying on the floor, PW-5 had called the doctor and doctor came at the spot and examined the deceased and declared him dead. But, the details of that doctor had neither been furnished on record, nor the said doctor has been examined as a witness. d). Further, it is worth noticing that as per the FSL report with respect to the articles which were seized from the spot, on chemical, microscopic & TLC examination, metallic poison, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in the said exhibits. The said FSL report is Ex.PW27/A which was duly proved by Dr. Kanak Lata Verma. Therefore, even from the articles lifted from the spot, no poison could be detected.
96. It is also not understandable as to why deceased had gone to the house of accused persons on that day, despite the fact that both of them were not having good relations and an altercation had taken place 15 days back between them.
97. Therefore, the prosecution has failed to prove that what poison was actually administered to the deceased SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 37 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:05:16 +0530 and whether the said poison was actually administered to him by the accused persons only. Another fact, which the prosecution has failed to prove as to how the said poison was procured by the accused persons and the prosecution has also failed to lead any evidence to prove meeting of minds between the accused persons so as to enter into the conspiracy to cause death of the deceased person.
98. In case Sujit Biswas v. State of Assam, Criminal Appeal No. 1323 of 2011, the Hon'ble Supreme Court of India has held that:
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 38 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:05:24 +0530 merely probable doubt, but a fair doubt that is based upon reason and common sense."
99. In case Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court of India has held that:
"Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."
100. In case Narendrasinh Keshubhai Zala v. State of Gujrat, 2023 LiveLaw (SC) 227, the Hon'ble Supreme Court of India has held that it is a settled principle of law that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence (Jagga Singh v. State of Punjab, 1994 Supp (3) SCC 463).
101. It is now well settled that suspicion howsoever grave, it may be, it cannot take the place of proof and all the ingredients of the offence are to be proved by the prosecution beyond reasonable doubt and in the considered opinion of this court, the prosecution has failed to prove the same. The prosecution witnesses i.e. PW-1, PW-3, PW-4 & PW-5 were merely having belief that it was the accused only, who must have committed the murder of the deceased, but belief is not equivalent to proof and mere belief is not sufficient enough to prove the offence of murder. So far as the motive is SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 39 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:05:30 +0530 concerned, evidence on record only points out that the accused Dinesh might have had some motive to cause death of the deceased against whom the proceedings have already been abated and no motive has been attributed so far as accused Asha is concerned.
102. Ld. Addl. PP for the State has also argued that since the dead body of the deceased was found at the house of the accused persons, the onus is upon the accused persons to show how the deceased had expired and the accused persons have failed to show the same, therefore, they are liable to be convicted.
103. This court does not find force in the arguments raised by the Ld. Addl. PP for the State. It is the cardinal principle of criminal jurisprudence that the initial burden to prove the guilt of the accused beyond reasonable doubt always lies upon the prosecution. The prosecution has to stand on its own legs and any failure on the part of the accused is of no assistance to the prosecution, especially when the prosecution has failed to discharge its initial burden of proof. The accused is always entitled to every benefit of doubt appearing in the prosecution story.
104. In view of the above discussion, it can be said that the prosecution has failed to prove it's case beyond all reasonable doubt, therefore, accused persons cannot be held guilty for any offence with which they have been charged in the present case.
105. Accordingly, both the accused persons namely Subhash @ Nathi Lal and Asha stand acquitted of the charged SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 40 OF 41 Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2025.04.30 17:05:37 +0530 offences punishable under sections 302/328/34 r/w. Sec. 120- B IPC and Sec. 120-B IPC in the present case. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification. Case property, if any, be confiscated to the State after the expiry of the period of the appeal. Both the accused persons are required to furnish bail bonds as per Sec. 437-A CrPC.
106. File be consigned to Record Room, after due compliance.
Announced in the open court Digitally signed by PUNEET PAHWA PUNEET on 30th day of April, 2025. PAHWA Date:
2025.04.30 17:05:42 +0530 (PUNEET PAHWA) Special Judge (NDPS)/Addl. Sessions Judge/ North East District/Karkardooma Courts/Delhi SESSION CASE NO. 44293/2015 STATE VS. DINESH & ORS. PAGE 41 OF 41