1

Received on : 10/8/2007
Registered on : 04/9/2007.
Decided on : 12/6/2008.
Duration : 0Y. 9 Ms. 8Ds.

In the court of Sessions Judge, Pune. At Pune.

[Presided over by Dr. Smt. S.S.Phansalkar-Joshi, Sessions Judge,5,Pune. ]

Sessions Case No. 508/07.

State of Maharashtra,
through Nigdi police station. ..Complainant.

Vs.

1] Aditi Baldev Sharma,

Aged 24 yrs., occu. Education,
R/o 24-C, 185, Sainik colony,
Jammu-Kashmir.

2] Pravin Premswarup Khandelwal,

Age 24 yrs., occu. Service,
R/o 18, Malhotra Nagar road No. 1,
BKI area, Jaypur [Rajasthan]. .. Accused.

Appearance : Smt. Nilima Vartak, APP for State.

Shri. Vijayrao Mohite, advocate for accused.

Offence under Sections 302 r/w 120-B of IPC.

*****************************************************
- JUDGMENT-
( Decided on June 12, 2008. )

1] This case presents a tragic scenario as the budding and

flourishing love relationship between accused No. 1 Aditi and deceased
 2

Udit Bharati, which was on the threshold of marriage and sailing

smoothly with consent and approval of the parents on both sides, got
swerved to the wrong side and sank into tragedy when accused No. 1 -
Aditi came in to contact with accused No. 2 Pravin, got enamoured by
him, fell in love with him and left the deceased to settle with Pravin and
ultimately, as per prosecution case , eliminated deceased from this world, in
conspiracy with Pravin , for which both of them are indicted and charge
sheeted by the police for the offence punishable u/s 120-B, 302 r/w 120-B
and in alternative section 302 r/w 34 of IPC.

2] Factual score of the case, most of which lies beyond realm of

dispute, can be depicted as follows :

Deceased Udit and Aditi, both hail from Jammu and belong to
well -to -do families. They completed their graduation in Engineering college
at Jammu. In the first year of course itself,they became acquainted with each
other. Their acquaintance flowered in to friendship and then blossomed in
to love relationship. They started exchanging gift articles, greeting cards etc.
and were on visiting terms with each others' house. Both of them decided to
get married . When their parents came to know about it, they put their
stamp of approval and consent on this marriage proposal. It was agreed that
the marriage will be performed after they complete the MBA course. Both of
them accordingly came to Pune in June 2006 and took admission in the IIMM
college at Wakad, Pune, for MBA course. Both of them were staying in the
Hostel of the college. Pravin who hails from Jaipur [ Rajasthan] was also
studying in the same college. Aditi came in the contact with Pravin, as
both were the members of Crises Management Team formed by the college
for helping the students in need and emergency. Aditi then fell in love with
 3

Pravin , resultantly her relationship with deceased Udit was broken. This fact
was informed by Udit to his parents, about 10-14 days, before Diwali. His
parents accordingly advised him to forget everything and concentrate on
studies.

3] Meanwhile in first week of December 2006, accused No. 2

Pravin got job opportunity in the Bank of America at Gurgaon, branch in
Harayana and therefore, even before the examination of First Semester was
over, he left the college and the Hostel. Along with him, accused No. 1 Aditi
also left . Both of them started residing at the place of his job in Gurgaon.
As per their case, they got married secretly in Delhi and it was decided that
they will inform their parents and get marred publicly.

4] In this factual backdrop, the incident giving rise to this case took
place on 22/4//07. On that day, both Aditi and Pravin came to Pune at about
5.00 p.m. and checked in White House Lodge at Chinchwad. Aditi obtained
Udit's cell number from his mother by making her phone call in the name of
Amit. She then contacted Udit on his mobile and requested him to meet
her at McDonald's hotel in Chinchwad. At that time, Udit was working on one
project with his classmate P.W. 2 Megha Kela, in her flat at Thergaon, when
Udit received her phone call, he asked his mother why she has given his cell
number to Aditi and then told Megha that he was going to McDonald's Hotel
to meet Aditi at about 9.00 p.m. As per prosecution case, there Aditi gave
him some 'Prasad' in the form of Khadi-sakhar and Sakhar-phutane,
containing Arsenic poison, which was consumed by Udit. Thereafter at
about 11.30 p.m., Udit returned to Megha's flat , sat with her for some time
and at about 12.00 O'clock in the night he left her flat saying that he was
going to his own flat in Prasun Dham Society. In the parking space, he
 4

received his mother's call enquiring about his meeting with Aditi .Udit told her
he will tell about it in the morning as he was having toilet pressure. In his
flat his friends P.W. 2- Vinay, P.W. 8- Naresh, :P.W. 4- Siddharth and P.W.
24-Sandip were working on the project. They told Udit that his mother's
phone call was received enquiring about him. Udit sat with them for 5
minutes, then changed his clothes and went to bath-room, saying that he was
having vomiting sensation. Afterwards Udit took a sip of Whisky and said
that he cannot drink any more.

5] By that time, their classmate P.W.-5- Jagbir also came to the flat.
As Udit continued to have vomiting episodes, he was given electoral
powder mixed with water. But it was of no use. As he continued to suffer
from vomiting and loose motion, they took him to Aditya Birla Hospital, which
was in front of their society and admitted him there at about 2.30 a.m. Dr.
Janardan Jadhav who was on duty started the medical treatment. As the
vomiting was persistent, inquiries were being made repeatedly with Udit as
to what he has consumed. Udit told them that except for meal in the
afternoon, Vada-pav in evening and some alcohol in the night, he has not
consumed anything. As the symptoms from which he was suffering and
his clinical condition were not going hand in hand, further investigation in the
form of x-rays was undertaken .

6] At about 10.40 a.m., when again the inquiry was made with Udit
by Dr. Rahul Deshpande and Dr. Dadke, who were on duty and attending
him, Udit disclosed that he has consumed some 'Prasad'. Accordingly the
entry to that effect was made in the case papers. As condition of Udit
continued to deteriorate he was admitted in I.C.U. His x-ray showed radio-
opeq substance and hence it was suspected that this was a case of heavy
 5

metal poisoning. Accordingly at about 2.00 p.m., Dr. Diddi, the in-charge of
ICU, informed about this case as MLC to the police and station diary entry
was made at Hinjwadi police station .

7] Udit's parents were also informed about his condition on phone at

about 11.30 a.m. They started coming to Pune by Zelum Express. As on
the way they were informed that Udit was shifted to ICU and his condition
was critical, on the next day in the morning they got down from the Train at
Delhi and came to Pune by flight at about 5.00 p.m. By that time Udit has
lost consciousness and they had no opportunity to talk with him.

8] In the course of these events, some more developments took

place. On 23/4/07, at about 1.00 p.m., while Udit's classmates and friends
like Jagbir, Siddharth and others were in the Hospital attending him, the
cell phone of Udit was with his friend Jagbir and on that cell, one call was
received from a lady, who made inquiry about Udit. It was informed to her that
Udit was at some distance and she may call after wards. As on the previous
evening Udit has gone to meet Aditi and these friends were knowing about
the said visit, they become suspicious that the said phone call must be from
Aditi. Hence they made inquiry with the mobile company office and came to
know that the said phone call was received from Reliance PCO, near White
House Lodge. Abhijit and Jagbir then went to the said PCO, made inquiry
and came to know that one lady has made the said phone call and she has
come from White House Lodge. Therefore, they went to the White House
Lodge and saw the Register of the Lodge in which they found the entry of
the name of Rohit Sharma and Aditi Sharma. They informed Siddharth and
Vinay about it. Therefore, Siddharth, Vinay and Shikhi Khanna also came to
the White House Lodge. Aditi was not there. Hence they felt that as it
 6

was lunch time, Aditi might have gone to McDonald's Hotel. Therefore, they
started going towards McDonald's Hotel. On the way near Chinchwad
station, they saw Aditi and Pravin entering in to Sugar-cane Juice Center.
They went there and told Aditi that Udit was admitted in Hospital in serious
condition. They asked her whether on the previous night she has given any
'Prasad' to him. She told them that she had given some 'Prasad' to Udit and
she has also eaten that 'Prasad' and felt somewhat uneasy. They told her
to give the said Prasad, if it was still with her. She said no. She has no.
She has already thrown it in the parking space of McDonald's hotel. They
brought her to the Hospital and in the lobby inquiry was made with her
about the Packet of 'Prasad'. At that time, she opened her purse and in that
purse Siddharth saw packet of 'Prasad' and it was taken out from the purse
and given to Dr. Rahul Deshpande who kept it in the drawer near Udit's bed.
Aditi then left the Hospital and again returned in the evening for sometime.
On the same night,sh left Pune for Delhi via Mumbai, along with Pavin.

9] Udit was declared dead in the Hospital while taking treatment on

24/4/07 at about 10.30 p.m. On receipt of this information by police, A.D. No.
58/07 was registered. Dead body of Udit was sent for postmortem to YCM
Hospital, after conducting inquest panchanama. The samples of viscera and
stomach wash were collected during the course of postmortem and sent to
Sassoon Hospital for histo-pathological examination. On 25/4/07 the
statements of Udit's parents were only recorded, in which suspicion was
expressed that Udit had died on account of 'Prasad' given by Aditi, which
'Prasad' was containing Arsenic. In their statement they also expressed
suspicion against Pravin , as Udit has told them on phone sometimes
back, that Pravin has threatened him, not to come in his relations with Aditi.
 7

10] The dead body of Udit after postmortem was handed over in the
custody of his parents, Ashwinikumar and Ravikarin Bharati. They took dead
body to Jammu and after performing funeral rites, on 5/5/07 both of them
again came to Pune to lodge the complaint. In view of these statements of
Udit's parents, Aditi was also called for from Gurgaon. On 5/5/07 her purse

containing the packets and particles of 'Prasad' was seized from her
possession under panchanama and it was also sent to C.A. The C.A.
Reports of viscera and other medical samples of Udit were received on
18/5/07 revealing the presence of Arsenic poison in fatal quantity. It was
opined by Doctors that the cause of Udit's death was consumption of
Arsenic. The C.A. Report of purse and the contents thereof also disclosed
presence of Arsenic. Therefore, on the complaint of Udit's father,
Ashwinikumar Bharati recorded on 18/5/07, C.R. No. 206/07 came to be
registered at Nigdi police station against both the accused for the offence u/s
120-B, 302 r/w 120-B and in alternative section 302 r/w 34 of IPC.

11] During the course of investigation, the statements of witnesses

were recorded. Both the accused were arrested. Medical case papers of
deceased Udit were collected . The record of mobile phone calls received
and sent on the cell of Udit, the land-line of his mother and the record of
phone calls made from the PCO near White house Lodge, was also
collected. The police staff was sent to Jammu and Gurgaon. From
Gurgaon the service record of accused No. 2 Pravin was collected, showing
that on the relevant dates from 22/4/07 to 25/4/07, he was on paid leave.
Record from White house Lodge was collected , showing that both the
accused had stayed there for these 2 days. The efforts were made to search,
from where either of the accused got the Arsenic. The assistance of
 8

scientific techniques was also availed of to elicit the truth. With the
permission of court, both the accused were taken to Forensic Science
Laboratory in Mumbai on 23/7/07 and 25/7/07. There the Polygraph Test
was conducted on both the accused. As the results of the same were
positive, showing involvement of Aditi in the offence, she was further
subjected to BEOS Test which also revealed her experiential knowledge
of the commission of offence. Therefore, after completion of usual
investigation, the charge sheet came to be filed against both the accused in
the court of JMFC, Pimpri.

12] As the offence u/s 302 of I.P.C. is exclusively triable by the

Sessions Court, the leaned Magistrate has committed the case to this court .
As accused No. 1 is in Jail, hearing of the case is expedited.

13] I have framed charge against both the accused as per Exh. 6.
The charge was read over and explained to them. Both the accused
abjured the guilt and claimed trial. Their defence is of total denial and
false implication on the basis of suspicion.

14] As regards Aditi, a specific plea is raised to the effect that as she
has left Udit, in favour of Pravin, Udit , who was in deeply love with her,
could not bear the said shock. He was quite sensitive in nature and
therefore, after meeting her, on that fateful night when he came to know
that she has already get married with Pravin, he became totally frustrated,
dejected and disappointed. In that state of frustration there is likelihood of
his committing suicide by consuming the poison, if it is proved that his death
is on account of poisoning.
 9

15] So far as Pravin is concerned, according to him, he has no hand

or role to play in any of the incident, leading to death of Udit. Merely
because he has come to Pune for his oficial work and has stayed with Aditi
in White house Lodge , he has been roped in this case.

16] Therefore, in order to come to the just decision about guilt of

the accused, on these facts of the case, following Points arise for my
determination and I record my findings thereon for the reasons stated below :

Points. Findings
1] Whether prosecution proves that
Udit has succumbed to homicidal
Yes.
death on account of consumption of
Arsenic ?
2] Whether prosecution further
proves that accused No. 1 Aditi has
committed murder of Udit by
intentionally or knowingly causing his Yes.
death with the act of administering
Arsenic poison to him in 'Prasad' ?
3] Whether prosecution further
proves that accused No. 1 Aditi and
accused No. 2 Pravin hatched
criminal conspiracy to commit an
illegal act i.e., the murder of Udit by
Yes.
administering Arsenic poison to him
through 'Prasad' and thereby
committed an offence punishable u/s
120-B of Indian Penal Code ?
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Points. Findings
4] Whether prosecution further
proves that in pursuance of the said
criminal conspiracy , accused No. 1
and accused No. 2 committed murder
of Udit by administering Arsenic
Yes.
poison to him in 'Prasad' and thereby
committed an offence punishable u/s
302 r/w 120-B of IPC ?
5] In the alternative, whether
prosecution proves that accused
No. 1 and accused No. 2 either
individually or in furtherance of their
common intention committed murder
of Udit by intentionally or knowingly
causing his death by administering Does not arise.
'Prasad' containing Arsenic poison
and thereby committed an offence
punishable u/s 302 r/w 34 of IPC ?
6] What order ? As per final order.

-R e a s o n s-

17] In order to bring home the guilt of the accused, prosecution has
examined as many as 33 witnesses. They can be classified in the following
categories.

A] Parents of Udit on the issue of motive :

P.W. 14 - Rivikiran Ashwinikumar Bharati , mother [Exh. 51] ;
P.W.19 - Ashwinikumar Jagannath Bharti, father [Exh. 62]; his
complaint Exh. 63.

B] Students – friends – classmates of deceased Udit, -Aditi and -Pravin,

 11

as regards the actual incident to prove the conduct of accused.

P.W. 2- Vinay Shivram sawant [Exh. 26];
P.W. 3 – Megha Pradipkumar Kela, [Exh. 27];
P.W. 4- Siddharth Kishor Thombre [Exh.28];
P.W. 5 Jagbir Indrajitsing Garcha [Exh. 29];
P.W. 8- Naresh Satyanarayan Pareek [Exh. 35]; and
P.W. 24- Sandip Durgadas Rajanee [Exh. 84].

C] College Management authorities :

P.W. 11- Viju Gopinath Pillel [Exh. 42], Director of I.T. IIMM
college;
P.W. 21- Som Sundaram Ram Subramaniyam [Exh. 67].

D] Panch witnesses :
P.W. 1- Umesh Sahebrao Tanjane [Exh. 24], panch witness to the
recovery of muddemal article ladies purse, from possession of accused No.
1 Aditi; seizure panchanama Exh. 25.
P.W. 22- Dnyana Nivrutti Pol [Exh. 80], to the spot panchanama
of the platform near McDonald's Hotel [Exh. 81].

E] Medical Officers who attended Udit in Aditya Birla Hospital.

P.W. 16- Dr. Mahendra Sudhakar Dadke, [Exh. 56], Udit”s case
papers Exh. 57;
P.W. 17- Dr. Stephen Aruldoss [Exh. 58];
P.W.18- Dr. Shekhar dev Diddee [Exh. 59].

F] Expert Medical witnesses :

P.W. 12- Dr. Mrs. Jyoti Kiran Kudirimodi [Exh. 47], from histo-
 12

pathological department, of Sassoon Hospital her histo- pathological report

is at Exh. 48.
P.W. 13- Dr. Bal Pandurang Ugade [Exh.49], who has conducted
postmortem and postmortem report is Exh. 50.

G] Other expert witnesses :

P.W. 15- Pradip Vijaylal Gujar [Exh.54], Assistant Chemical
Analyst , C.A. Report of medical samples of viscera and stomach wash
are at Exhs. 17, 18. C.A. Reports of liquor bottle is at Exh.19 and C.A.
Report of purse and its contents is Exh. 55.
P.W. 29 – Sunny Joseph [Exh. 107] Asstt. Chemical Analyser
from Forensic Science Laboratory, Mumbai , who has conducted Polygraph
Test and Brain Electrical Oscillation Signature Profiling [BEOS] Test on
accused. The relevant record of those Tests along with report is filed at
Exh. 108 to 119.

H] Other corroborating witnesses :

P.W. 6- Sandip Pandurang Bahirwade [Exh. 30],the owner of STD
booth near White house Lodge;
P.W. 20- Vijay Eknath Shinde [Exh.64] Nodal officer in Airtel
Company, who prepared Record of the phone calls received on the cell of
Udit Exh 65 and 66.
P.W. 9- Shamal Mandku Mitra [Exh. 36] the manager of White
house Lodge. The relevant entry on the Register of the stay of accused
Nos. 1 and 2 in the said Lodge prepared by him is at Exh.37.

I] The last category is of police officers, who have taken part in

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investigation from time to time : They are :

P.W. 10- Ashok Damodar Jagtap [Exh.38], Head constable of
Hinjwadi police station, who has made entry in station diary of Udit's death
and submitted report [exh.41] for registering A.D. No. 58/07;
P.W. 23- P.H.C. Gulab Gajanan Jagdale [Exxh.82],who has
registered C.R. NO. 206/07 on the receipt of FIR and produced relevant
extract of the station diary at Exh. 83;
P.W. 25- P.S.I. Anand Dattatraya Walimbe [Exh. 88], from Control
room, who has made relevant entry Exh.89 about the admission of Udit in
the Hospital;
P.W. 26- A. P.I. Ashok Vitthal Pawar {Exh.90] who has recorded
the statement of Udit's father on 4/5/07.
P.W. 27- A. P.I. Sanjiv Ramchandra Patil [Exh. 92], who has been
to Jammu and Gurgaon for collecting service record of accused No. 2 Pravin
vide Exh.94. His report is at Exh. 95.
P.W. 28- A. S.I. Ptratap Murlidhar Pawar [Exh. 98]. He has
carried out seizure panchanama of the purse of accused No. 1 and
conducted some other part of investigation.
P.W. 30- A.S.I. Ashok Babarao Nilkanth [Exh.121], muddemal
clerk from Hinjwadi police station who has received the muddemal
property and sent the same to chemical analysis.

P.W.31- P.H.C.Bhimrao Bhaguram Bansode [Exh. 125], who has

visited the Hospital to record the statement of Udit but found him to be
not in a position to give the statement ;
P.W. 32- Investigating Officer P.I. Rajendra Murlidhar Bhamre
[Exh. 127], who has arrested both the accused on 16/5/07 vide Exh.129, sent
muddemal to Chemical Analysis and mostly completed the remaining part of
 14

investigation up to filing charge sheet in the court, and lastly

P.W. 33- P.I. Bajirao Dadoba Mohite [Exh./ 141], who has taken
both the accused to Forensic Science Laboratory at Mumbai for conducting
the Psychological Evaluation Test and filed charge sheet in the court.

18] In their defence accused have not examined any witnesses or

produced any documents, but they have filed their written statement of
defence at Exh. 149 and Exh. 150 respectively, putting up the plea of Udit
committing suicide being frustrated due to Aditi's disclosure of her marriage
with Pravin, thereby extinguishing all his hopes of re-union with her. This
statement of defence is requested to be treated as part and parcel of their
statement u/s 313 of Cr.P.C.

Point No. 1 :
This is a case, based purely and simply on circumstantial
evidence alone. The principles of law governing the nature, character and
essential proof required in a criminal case which rests on circumstantial
evidence alone are well settled and more or less exiomatic. In the
landmark decision of Sharad Sarda Vs. state of Maharashtra, AIR 1984
Supreme Court 1622, the Apex Court has epitomised five golden
principle which in its words form the Panchsheel of the proof of a case
based on circumstantial evidence. They are :
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.

 15

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 doubt 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.

19] In this case the material circumstances on which prosecution

prefers to rely can be summarized as follows :
1] Homicidal death of Udit due to consumption of Arsenic Poison.

2] Motive : Initial love relationship between Udit and Aditi, which was
broken when Aditi fell in love with Pravin. It provided motive for
commission of offence.

3] Both accused coming to Pune on 22/4/07 and registering in the

fictitious name in White House Lodge.

4] Aditi getting the cell phone number of Udit from his mother by making
phone call in the name of fictitious student by name Amit.

5] Ad then calling Udit on his cell phone to meet her at McDonald's Hotel.

6] In the meeting at McDonald's Hotel , Aditi offering 'Prasad' to Udit.

7] After consuming the said 'Prasad' from the time Udit returning to his flat,
he started suffering form consistent vomiting, hence being admitted in the
Hospital at 2.30 a.m.
 16

8] Udit giving history of eating 'Prasad', to Doctors attending him.

9] The packets of 'Prasad' found in the purse of Aditi when it was seized
under panchanama.

10] The same packets of 'Prasad' were found to be containing Arsenic

when sent to C.A.

11] Results of Psychological Evaluation Test proving that Aditi had given
deceptive answers to incriminating questions in Polygraph Test and BEOS
Test report reflecting her Experiential Knowledge about the event .

12] Conduct of Aditi, before, at the time of and after incidence.

13] False explanation offered by Aditi and Pravin for their visit to Pune and
about Prasad.

14] Pravin accompanying Aditi to Pune for this purpose, staying with her
in fictitious name, obtaining Udit's phone number under false name of Amit,
These acts showing his participation in the commission of offence, thereby
proving their criminal conspiracy to eliminate Udit.

Udit's death by poisoning :

20] Now coming to the first circumstance about the death of Udit by
consumption of Arsenic poison. In this respect the prosecution is having not
only abundant and clinching evidence on record proving the said fact
beyond doubt, but fortunately for prosecution, defence is also not seriously
disputing it , or one may say, that defence is not in a position to dispute it
 17

in the face of overwhelming evidence on record . Just to narrate the few

facts, otherwise proved on record. They are to the effect that , after returning
from meeting with Aditi on 22/4/07, since about 12.00 O'Clock in the
night,Udit started suffering from vomiting. As till about 2.30 a.m. in the night,
his vomiting did not stop,he was admitted in Aditya Birla Hospital, where
initially Doctor suspected food poisoning. In the morning at about 10.00
a.m., he was shifted to I.C.U. His X-ray report showed radio opeq
substance and hence as deposed by P.W. 16- Dr. Dadke who was a
attending him in the Hospital, they came to the opinion that it was a case of
heavy metal poisoning. Therefore, at 2.00 p.m. on 23/4/07, police were
informed and MLC case was registered. Udit's condition thereafter became
serious. He was put on ventilatory support and as stated by Dr. Diddy, Udit
expired in the Hospital on 24/4/07 at about 10.30 p.m.

21] After the inquest panchanama,his dead body was sent for
postmortem to YCM Hospital. P.W. 13- Dr. Ugade conducted postmortem on
his dead body on 25/4/07 in between 7.00 a.m. to 7.30 a.m. He found no
external or internal injuries on his dead body. However his both lungs, brain,
liver, kidney, stomach, spleen and all vital organs were congested and
there was yellowish discoloration of lever. He preserved viscera like, the
pieces of brain, kidney, liver, spleen, stomach contents for histo-pathological
examination and C.A. Accordingly they were sent by Investigating officer to
histo-pathological department of Sassoon Hospital and Forensic Science
Laboratory ,Pune. He reserved his opinion about cause of death till the
receipt of C.A. Report.

22] P.W. 12- Dr. Kudirimodi who is working as Pathologist in

Sassoon Hospital,Pune, has carried out histo-pathological examination of
 18

these contents of viscera and noted her findings in report Exh. 48. As per
her report, there was no specific pathology meaning thereby that Udit was
not suffering from any abnormality in the form of disease. She also noticed
the congestion of his lever, lungs, brain, kidney, spleen etc. which
according to her is found in case of Arsenic poisoning.

23] P.W. 15- Assistant Chemical Analyst, Forensic Science

Laboratory,Pune - Pradip Gujar has carried out the chemical analysis of the
viscera and stomach wash samples of Udit. On analysis of the same, he
found that it was containing 2.44 mili grams and 11.2 mili grams of Arsenic
per hundred grams, respectively. C.A. Report Exh. 18 shows 1.945 mili ltrs
Arsenic per 100 grams in stomach aspirate. Accordingly he has given C.A.
report Exh. 17. He has opined that considering the presence of quantity of
Arsenic in the stomach wash and viscera, it can be said that deceased Udit
was administered a fatal dose of Arsenic.

24] P.W.13- Dr. Ugade who has conducted postmortem was shown
at the time of his evidence, both histo-pathological examination report Exh.
48 prepared by Dr. Kudirimodi and C.A. reports Exh . 17 and 18 of Chemical
Analyst P.W. 15- Gujar and after perusing the same he has opined that the
cause of Udit's death was definitely Arsenic poisoning.

25] There is absolutely no cross examination of either PW 13- Dr.

Ugade or that of P.W. 12- Dr. Kudirimodi or Chemical Analyst P.W. 15-
Gujar on this vital aspect of the Arsenic contents being found in the
viscera and stomach wash sample of Udit and the cause of his death being
on account of consumption of Arsenic poison . There is also no challenge to
the evidence of P.W.15- Gujar that Arsenic is physiologically not the body
 19

part and in case of acute Arsenic poisoning , its action starts in the body
within half to one hour and the patient may die within 12-48 hours . There
is also no cross examination of Dr. Kudirimodi on the point that her histo-
pathological examination did not reveal any abnormality in the form of
disease. Therefore, the congestion of his vital body parts like brain ,
lever etc. which was found at the time of postmortem and her examination,
can only be inferred to be on account of Arsenic poisoning.

26] Thus, the evidence on record is of utmost clinching nature so

as to prove the fact that the cause of Udit's death was none else but the
consumption of Arsenic poison. As stated above the defence is also not
seriously disputing this fact, in the light of this unmistaken and un-erring
evidence on record, leading to no other inference. The plea raised by
defence is that as admitted by P.W.13- Dr. Ugade, the death by Arsenic
poison can either be homicidal or suicidal. In this case as per the contention
of the accused, it was a case of suicidal death. This contention, I will deal
with subsequently. For the present, suffice it to say that prosecution has
succeeded in proving that cause of Udit's death was Arsenic poisoning.
Motive :
27] Now in order to prove that it was a case of homicidal death, the
prosecution is relying on the subsequent circumstances. One of the major
circumstances which is again not in the realm of dispute is about the love
relation between accused No. 1- Aditi and Udit. It is proved on record
through the evidence of Udit's parents and Aditi is also admitting in her
written statement u/s 313 of Cr.P.C., that when both were studying together
in Engineering college at Jammu, they started knowing each other. They fell
in love. They were exchanging gift articles and greetings. They were
visiting several places including picnics, movies,clicking photographs. They
 20

had also decided to get married. When their parents came to know about it,
they approved their proposal of marriage, as deposed by Udit's parents -
P.W. 14- Ravikiran and P.W. 19- Ashiwinikumar, Aditi's parents had also
approved their relations and it was decided from all the sides that after they
complete their MBA course, their marriage will be performed. As stated by
Aditi in her statement u/s 313 of Cr.P.C. [Exh.149], Udit used to introduce her
to his relatives, friends and acquaintances, as his 'would be wife'. In this
way both of them came to Pune in June 2006 and took admission for MBA
course in IIMM college at Wakad, Pune.

28] Further the fact that in this college Aditi and Pravin came to know
each other and they fell in love, is also not disputed. Aditi has admitted
again in her statement that she and Pravin were members of Crises
Management Team formed by the college and while working in the same
team, she was attracted to Pravin. Both of them fell in love with each other.
Hence she decided to leave Udit and to marry Pravin. When Pravin got
employment at Gurgaon and left college in December 2006, she also left the
college and hostel and both of them started residing together in Delhi and
Pravin working in Gurgaon. She has further stated that, during her stay at
Delhi, she and Pravin got secretly married each other in a temple.

29] Thus, in this case, apart from the evidence of Udit's parents,
there is also the un-equivocal admission of Aditi in her statement u/s 313 of
Cr.P.C., that initially she was in love with Udit, they had decided to get
married after completion of MBA course, however when she came to Pune,
she fell in love with Pravin and decided to marry him. Therefore, she left Udit
and went to reside along with Pravin at Delhi. This fact is also proved on
record by prosecution by examining college authorities to show that both of
 21

them had left the college and hostel in first week of December 2006, without
appearing for the examination of First Semester. In this way , the broken
love relationship between Udit and accused No. 1- Aditi and her subsequent
love relation with Pravin are proved facts on record, being otherwise also,
undisputed.

30] As per prosecution case , this circumstance forms motive for the
accused to commit murder of Udit as once or twice Pravin has threatened
Udit not to come in the way of his love relationship with Aditi and Udit has
informed this fact to his mother on phone,as deposed by his mother PW 14-
Ravikiran. According to prosecution, both accused therefore,wanted to
eliminate Udit and hence they came to Pune by hatching conspiracy.

31] As per learned counsel for accused Shri. Mohite, this circumstance
of broken love relation between Udit and Aditi and her subsequent love
relation with accused No.2- Pravin can hardly be called as motive for
accused to commit murder of Udit. At the most, due to their broken
relationship , Udit could be called as an aggrieved person as he has been
ditched by accused No. 1- Aditi and she has not remained faithful to him.
Moreover, his family members were to face dishonour on account of their
broken marriage. Therefore, if there was any aggrieved person, it was Udit.
None of the accused can be said to have any reason for enmical relations
with Udit. Moreover, there was lapse of about 4-5 months between Aditi
leaving Udit and the incident. Therefore, it is in-conceivable that after
lapse of about 6 months,Aditi or Pravin will come to Pune only for
committing murder of Udit. According to him, it cannot be said in any way
that either Aditi or Pravin had any reason to commit murder of Udit. There is
also nothing on record to show that Udit has come in the way of the love
 22

relation between Aditi and Pravin or at any time Pravin has given such
threatening to Udit. Except for the interested words of Udit's mother, there is
nothing on record to that effect. Therefore, according to him there was no
motive at all which could have allegedly prompted the accused to commit
murder of Udit. At least prosecution has not succeeded in proving the said
motive or the adequacy of the motive to commit such a ghastly act of
commission of murder. Learned counsel for accused has in this respect
strongly advanced submission that when the case is based on the
circumstantial evidence alone, proof of motive plays a vital role, motive
assumes pertinent significance as existence of the motive is an enlightening
factor in the process of presumptive reasoning in such a case. To
substantiate his submission, he has placed reliance on the authority of State
Vs. Motia AIR 1955 Rajasthan 82.

32] It has to be observed that so far as the motive is concerned, it is

undisputedly a difficult area for prosecution as one cannot normally see in to
the mind of another. Motive is the emotion which impels a person to do a
particular act. Such impelling cause need not necessarily be proportionately
groove to do grave crimes. Many a murders have been committed without
any known or prominent motive. It is quite possible that the above said
impelling factor would remain un-discoverable. As observed by the Apex
Court in the case of State of H.P.Vs. Jeetsing, 1999 CRI L.J. 2025,
“ no doubt it is a sound principle to remember that every
criminal act was done with a motive, but its corollary is not that
no criminal offence would have been committed if prosecution has
failed to prove the precise motive of the accused to commit it.
When the prosecution succeeded in showing the possibility of
some ire for the accused towards the victim, the inability to
further put on record the manner in which such ire would have swelled up
in the mind of the offender to such a degree as to impel him to
commit the offence, cannot be construed as a fatal weakness
 23

of the prosecution. It is almost an impossibility for the

prosecution to unravel the full dimension of the mental
disposition of an offender towards the person whom he offended."

33] Needless to state that, after all motive is a Psychological

phenominon. Hence mere fact that prosecution failed to translate mental
disposition of accused in to evidence, does not mean that no such mental
condition existed in the mind of the accused. As observed by the Apex Court
in the case of Shivaji Bobade Vs. State of Maharashtra AIR 1973 SC
2622 relied upon by learned APP,
“proof of motive satisfies the judicial mind about the likelihood
of the authorship , but its absence only demands deeper forensic
search and cannot un-do the effect of evidence otherwise
sufficient. Motives of men are often subjective, submerged and
un-amenable to easy proof that courts have to go without clear
evidence thereon if, other clinching evidence exists.”

34] The point therefore,to be stressed is that, though the absence of

proof or motive may put the court some times on its guard to scrutinize the
circumstances more carefully, to ensure that suspicion and conjecture do
not take place of legal proof; as most heinous offences are committed and
the evidence of motive may not be coming, it being a psychological aspect
which prosecution finds difficult to probe in to, it is settled law that even in
the absence of motive, conviction can be sustained.

35] Just to quote, Hon'ble Apex Court again in the case of State of
H.P.Vs. Jeetsing, 1999 CRI L.J. 2025 :
" if there be any motive which can be assigned, I am bound to
tell you that the adequacy of that motive is of little importance.
We know, from experience of criminal courts that atrocious crimes
of this sort have been committed from very slight motives, not
merely from malice and revenge, but to gain a small pecuniary
 24

advantage and to drive off for a time pressing difficulties.”

36] In the instant case therefore, even if it is assumed that

prosecution has failed to prove the adequacy of motive of the accused to
commit such an act, the inability of the prosecution to do so, cannot be
treated as a fatal lacuna. It is need not be stated that the criminal courts
come across several cases in which the grave and serious offences are
committed out of broken love affair. Which feelings or mental state prompt
such accused person to commit the heinous act of a murder or other offence
is almost difficult, well nigh impossible to gather and then to prove, for
prosecution. It is not uncommon to come across commission of such
offence in love triangle. In the instant case there was admittedly broken
relationship between Udit and Aditi. Not only that, Aditi has left deceased
for Pravin. There may be possibility that Udit was opposing her love
relationship with Pravin and hence may be Aditi or Pravin were being
threatened of his constant interference in their life. The evidence of Udit's
mother, which has remained un-shattered on record, clearly goes to show
that accused had given an understanding to deceased to not to come in
their way. That may be the reason why Udit was eliminated. Though it
may be true that prosecution could not bring all these facts before the court,
on probability factor it cannot be disputed that there was motive for Aditi to
take such step. The prosecution is not bound and need not prove the
adequacy of motive, as held above.

37] Even otherwise also, the proof of motive is merely a corroborating

circumstance and not a clinching circumstance. Even in the case of absence
of proof of the motive, what law requires is, not to throw out the
prosecution case, but to scrutinize the evidence on record, more carefully
 25

and if other circumstances are clinching then the prosecution can take the
help of the presence of motive as an additional link to complete the chain of
circumstances.

Visit of Aditi and Pravin to Pune :

38] Now coming to the next circumstance that of accused No. 1-

Aditi and accused No.2- Pravin coming to Pune on 22/4/07. As per the case
of prosecution, they came to Pune in pursuance of their conspiracy of
committing the murder of Udit; otherwise, there was no explanation for them
to do so. The very fact that they had stayed in White House Lodge which
was near the college and hostel, where deceased was residing, spells out
that their only object or intention of the visit was to contact Udit and to offer
him 'Prasad' containing Arsenic. As per learned APP, otherwise there was no
reason for them , first to come to Pune and secondly, to register in White
House Lodge and that too in fictitious name of Rohit Sharma.

39] Both the accused are not disputing the fact and otherwise also,
they cannot dispute the fact that they had come to Pune on 22/4/07 and left
immediately in the night of 23/4/07. This fact is proved on record by
prosecution also, with sufficient oral and documentary evidence,from the
tetimony of P.W.9- Shamlal Mitra, Manager of White House Lodge, who has
produced on record relevant extract of the original Register of the Lodge
containing the entry No. 2234 dated 22/4/07 according to which, both the
accused had arrived in the Hotel at 5.00 p.m. they were allotted room No.
302 and on the next day at 5.30 p.m., they checked out. This entry was
made in the name of Rohit Sharma for 2 persons. Shri. Mitra has identified
accused No. 1- Aditi and Pravin to be the same two persons. In his cross
 26

examination it is brought on record that previously also on 2 or 4

occasions, both the accused had come and and stayed in the said Lodge
and registered the room in the name of Rohit Sharma. Hence there is no
question of any dispute about identification of the accused. As a matter of
fact, in their statements recorded u/s 313 of Cr.P.C. also, both the accused
have admitted the fact that they had come to Pune on 22/4/07 and stayed in
White House Lodge in the name of Rohit Sharma and Aditi Sharma and left
on 23/4/07 at 5.30 p.m. Therefore, this fact is proved on record and
otherwise also in not dispute.

40] The question for consideration is what explanation is offered by

the accused for their visit to Pune and their stay in the White House Lodge
that too, in fictitious name ? As per explanation of the accused, as Pravin
had some office work at Pune and his office had given him paid leave from
21/4/07 to 25/7/07, they came to Pune. As per Aditi, while she was staying
in Pune, she and Pravin had visited the temple at Shirdi. Now as they had
got secretly married at Delhi, they decided to visit Shirdi temple to get the
blessings of Lord Saibaba and thereafter to inform their parents about their
relationship, so that they officially get married. Therefore, she decided to
come along with Pravin .While finalising their plans to visit Shirdi, Aditi also
decided to come to Pune along with Pravin to get the refund of the term fee
which accused No.2- Pravin has received when he has left the college in
December 2006. At that time she was not knowing about it,hence she has
not availed it. As per learned counsel for accused , his explanation is most
probable and it is also proved through the evidence of college authorities. It
is proved on record through the evidence of P.W. 21- Som Sundaram, the
Controller of Expenditure in IIMM college, that on the application of Pravin
dated 1/12/06 and on his personal representation, as a special case the
 27

refund of second installment of the tuition fees of the amount of Rs.

50,000/- was given to him by cheque dated 10/1/07. However, so far as the
accused No. 1- Aditi is concerned, it is deposed by P.W. 11- Viju Pille,
Director, of the IIMM college, that though she has also paid the second
installment of the tuition fees of college, she has not made any application for
refund of those fees and hence she has not received the same.

41] Therefore according to learned counsel for accused , as the

amount of Rs. 50,000/- is not a small amount, there is every likelihood of
Aditi coming to Pune along with Pravin for collection of that amount,
especially when Pravin was otherwise also coming to Pune for his official
work and Aditi was to accompany him up to Shirdi for visiting Lord Saibaba.
According to him,the very fact that they had selected White House Lodge,
which was near to college itself,proves that Aditi's intention to visit Pune
was to collect the refund of fees.

42] It is also urged by him that both the accused had offered
explanation as to why they registered in the said Lodge in fictitious name of
Rohit Sharma. That explanation was to the effect that during their college
days at Pune, both of them were residing in hostel and as per the hostel
rules, they were not allowed to enter in the Hostel after 10.00 p.m. Said fact
is admitted by the other witnesses also. Therefore, once in August or
September 2006, when they had gone to market and they were unable to
reach the hostel in time, they had decided to stay in the White house Lodge
. While entering the said Lodge, Aditi was ahead of him and she has given
her name as Aditi Sharma. Therefore, the accused No.2- Pravin thought that
it would not give an good impression to state that they were just friends and
putting up together in the Lodge. Hence at that time he gave his name as
 28

Rohit Sharma to show that they were in relation. After that day, whenever
he had stayed in the Lodge,he stayed in the name of Rohit Sharma as was
done on first occasion and therefore, this time also, as per his version, he
gave the same name as Hotel staff was also knowing him by the said name.

43] To counter this argument submission of learned APP is that

there is no evidence proving that Aditi was, in the first place entitled to
get refund of fees and secondly, to show that she has made any application
to that effect even after coming to Pune. As a matter of fact,she has left
Pune even without making such application for collecting fees. On this
issue the submission of the learned counsel for the accused is that, Aditi
and Pravin came to Pune on 22/4/07 at about 5.30 p.m., and therefore, at
that time, the office hours of the college were over and it is brought on
record from the evidence of P.W.2- Vinay that on the next day,it was an
Annual Fair-well function and therefore, generally the office of the college
was to remain closed. Therefore, according to him, there was no time for
Aditi to make such application to get the refund of fees.

44] To appreciate these rival submissions of learned APP and

learned defence counsel , certain facts which are brought on record through
the evidence of witnesses are to be borne in mind. In the first place, there is
absolutely no evidence on record to show that Aditi and Pravin had visited
Shirdi on that day and while planning trip for Shirdi, they had decided to
come to Pune for collecting the fees. It may be true that Zelum Express first
comes to Pune, via Kopargaon and at Kopargaon it stops at 9.30 a.m. As
per the defence plea, both the accused got down at Kopargaon, went to
Shirdi by Taxi, which is at the distance of 20 minutes only. They took Darshan
and immediately came to Pune. However there is nothing on record to
 29

prove this fact,like their train tickets, or the taxi fare or even the purchase of
some 'Prasad' at Shirdi, receipt of donation given in the temple; absolutely
nothing of that sort is filed on record, other than their statements. Secondly,
it must be kept in mind that Zelum Express also reaches Pune around the
same time i.,e. 4 to 5.00 p.m. Therefore, when they reached to White house
Lodge at 5.30 p.m., in the absence any evidence proving that they visited
Shirdi , it has to be held that they had come to Pune directly by Zelum
Express.

45] About case of Aditi that she wanted to collect her refund of fees,
the evidence on record proves that though Pravin has applied for the same,
immediately at the time of leaving the college, she has not applied for it at all.
Now as admittedly, Pravin was aware of the same and he has also availed
the said facility and as admittedly he had received the cheque for the said
amount at his address at Delhi, where both of them were residing together, it
does not appeal to reason that Aditi was not knowing about this concession
of getting the refund of fees. As rightly submitted by learned counsel for the
accused the amount of Rs. 50,000/- is not at all a small one and therefore, if
Aditi had any intention of availing the said amount she would have applied
for the same immediately , when she left the hostel and college along with
Pravin or at least when Pravin received the cheque of the said fees in
January 2007 itself. However she has not even bothered to send by Post
any such application for refund of fees. Even after coming to Pune, there is
nothing on record to show that she made inquiry with college authorities to
know whether the office was working or closed. Though in her statement
she stated that she made such inquiry with Amit, Amit has simply
disappeared from the scene. He is not examined nor it is brought on record
through the evidence of any other prosecution witnesses that there was any
 30

such student by name Amit. Even assuming that on that day or next day,
the college was closed, Aditi could have handed over her application for
refund of fees with any of these students who were her classmates and
friends. However , nothing is brought on record to that effect. Even if it is
assumed that on the next day, she came to know about the condition of Udit
and hence she might not have been in a position to do so, the evidence on
record proves that the first knowledge about Udit's condition was received
by her from his friends at 1.30 p.m. Therefore, till then,she could have
easily gone to the college, or contacted any of her classmates or friends
and handed over application to them for refund of fees. She has not done
that also.

46] Secondly, the evidence of P.W. 21- Som Sundaram, the

Controller of Expenditure in IIMM college, goes to show that if the application
of refund of tuition fees is made within 30 days from its deposit,then only 50
% of the amount is refunded, otherwise, student is not entitled to get any
amount. He has further stated that however Aditi has not given any such
application within 30 days of the deposit of the fees. Hence apparently she
was not entitled to get any refund of tuition fees. In his cross examination, it
is brought on record that refund of fees is granted only as a special case,
even if the application is made after 30 days from the deposit of the fees. In
the present case, it is proved on record that Pravin has also made such
application after 30 days, therefore, it is urged that Aditi also could have got
the refund of fees,even if she had filed application after 30 days.

47] However, the evidence of this witness is categorical to the effect

that only in special case, such request was considered. As Pravin has got
employment , his case was treated as special one, and therefore, though
 31

his application was rejected, only after personal representation by him, he

was granted the refund. So far as Aditi was concerned, she has no such
special case. She has neither left the college with permission or with pre-
intimation, nor she has got any employment elsewhere. As Aditi was very
much residing with Pravin it has to be held that she was aware of all these
facts and hence it was to the knowledge of Aditi that she was not entitled
to get this amount of refund of fees.

48] Therefore, it is clear that this excuse which is put forth by her for
coming to Pune and staying at White house Lodge can hardly be accepted.
The previous, at the time and post conduct of Aditi, does not support this
plea. A lady who has come to Pune only for the purpose of getting refund of
fees , will not leave , unless she takes some steps in that direction, or at
least, she has taken some steps of sending the application in advance. As
Aditi has not done that, her plea cannot be accepted.

49] About their stay at White house Lodge , if they had come to
Pune for Pravin's official work,then the White house Lodge being far away
from Pune city, it does not appeal to reason that they will select that Lodge.
There is also nothing on record to show that Pravin has come to Pune on
official visit because his service record Exh. 94 shows that he has come
to Pune on paid leave. If it was an official work, there was no reason for him
to take the leave. He has also not produced any office letter to show that he
has come to Pune for official work. There is nothing on record to show that
they were having any return tickets. In case of official work what is expected
is their having official reservation at Pune with some Hotel and the tickets
of return journey. The evidence on record proves that they return to Delhi
via Mumbai. Therefore, all these facts do not corroborate their plea that,
 32

they had come to Pune for Pravin's official work and for Aditi to collect her
refund of tuition fees and on their way, they visited Shirdi.

50] Even if it is accepted that previously also they had registered in

White house Lodge in fictitious name of Rohit Sharma hence this time also
they have done so, therefore, nothing incriminating could be inferred from
it if they wanted to remain in-cognitio, then they would not have selected
White house Lodge where the staff was knowing them, the fact remains that
accused have failed to explain their trip to Pune. At least the explanation
offered by them cannot be accepted as a reasonable or truthful one and the
fact of their residing in White house Lodge near the college, appears only
with an intention to facilitate Aditi's meeting Udit nearby. This is a
circumstance which the court cannot ignore or close its eyes and it does
form some link in the web of circumstances, on which prosecution places
reliance.

51] After everything said and done , even if it is accepted that they had
come to Pune for Pravin's work and Aditi accompanied him for visit to Shirdi
and refund of fees , the question posed is why she called Udit to meet her.
No satisfactory explanation or the reason other than the reason given by
prosecution is appearing for it. It does not appeal to reason that, when Aditi
has left Udit without informing or explaining the things to him, after the period
of 4-5 months, she will call him for meeting to dig those buried things,
especially when both of them have moved on with their lives. Moreover,if
she wanted to tell him about her marriage with Pravin, she could have done
so on phone or even by writing the letter or sending the E-mail. There was no
need for her to call him for a meeting in person except for the reason that
she wanted to give him 'Prasad' containing Arsenic.
 33

Aditi calling Udit for meeting at McDonald's Hotel :

52] This brings me to the next circumstance of, after reaching at
Pune Aditi getting mobile phone number of Udit from his mother and calling
Udit to meet her at hotel McDonald's. Aditi has admitted the fact that she
has obtained mobile number of Udit from his mother by making phone call
through a student by name Amit and then called Udit to meet her. There is
also the telephonic call record of the mobile number of Udit, the Land-line
number of his parents at Jammu and STD booth number near White house
Lodge from where Aditi has made those calls. The said record is produced
at Exh. 78, 79,. 96, 66, 67, 145, 146 and 147. It is also proved through the
evidence of P.W. 20- Vijay Shinde, the Nodal officer in Airtel company. As
per the law laid down in State Vs. Navjot Sandhu, 2005 Cri.L.J. 3950 :
“call records relating to cellular phone are admissible and reliable in
evidence.”

53] Otherwise also Aditi is not disputing the fact that she has made
such phone calls and called Udit to McDddonald's hotel. The evidence of
Udit's friends and classmates P.W.2- Vinay Sawant, P.W.3- Megha Kela,
P.W.4- Siddhrth Thombre, P.W. 5- Jabgir Garcha and P.W.8- Naresh
Pareekh also goes to prove that on the receipt of these calls from Aditi,
Udit went to meet her at McDonald's hotel at about 9.00 p.m. and he returned
from the said meeting at about 11.30 p.m. to the flat of P.W.3- Megha and
from there to his own flat at about 12.00 O'clock.

Consumption of 'Prasad' by Udit :

54] Thus, the meeting between Aditi and Udit at McDonald's hotel , at
 34

the instance of Aditi on her making phone call , is sufficiently proved on

record. It is also admitted by Aditi that in the said meeting,she has offered
'Prasad' to Udit. As per prosecution case, Udit has consumed the said
'Prasad' and on account of consumption of that 'Prasad' which was
containing Arsenic, he started suffering from vomiting. As per Aditi's
statement under Section 313 of Cr.P.C., Udit refused to take 'Prasad' from
her saying that "I don't want to eat anything from your hands, henceforth."
Therefore, the issue for consideration is whether Udit has actually
consumed 'Prasad' or not?

55] On this issue, the prosecution has placed reliance on the

evidence of Udit's classmates P.W.2- Vinay Sawant, P.W.3- Megha Kela,
P.W.4- Siddharth Thombre, P.W. 5- Jabgir Garcha and P.W.8- Naresh
Pareekh and also the evidence of P.W. 16- Dr. Dadke, P.W.17- Dr.Stephen
and P.W.18- Dr. Diddee, and further the documentary evidence i.e. medical
case papers of Udit.

56] The evidence of P.W.2- Vinay, P.W.3- Megha, P.W.4- Siddhrth,

P.W. 5- Jabgir and P.W.8- Naresh clearly goes to prove that as Udit has
started suffering from vomiting, they immediately asked him what he has
eaten? Initially, he said that he has eaten only lunch in the afternoon and
Vada-pav in the evening and except that, he has not eaten anything. As per
their evidence, even to the Doctors at the time of admission and subsequently
also, when inquiries were made with Udit as to what he has consumed, as
Doctors suspected a case of food poisoning, Udit has repeated the same
things, that he has eaten lunch in the afternoon and Vada-pav in evening.
However, only in the morning when searching enquiries were made with
him, Udit disclosed that he has also eaten 'Prasad' given to him by Aditi . It
 35

is deposed by P.W. 3- Megha that in the morning when she made inquiry
with Udit in the Hospital as to what he has eaten, Udit told her that he has
eaten Prasad. She accordingly told the said fact to Doctor and Doctor asked
her to make enquiry with Udit as to whether after eating 'Prasad' he felt
uneasy? Accordingly, she enquired with Udit. However he was unable to
remember it. Her evidence is challenged on the ground that in her statement
recorded by police on 1/5/07, she has not disclosed the said fact and
therefore it is an after-thought evidence.

57] Then, there is evidence of P.W. 4- Siddharth who has returned to

the Hospital in the morning at about 9.00 a.m. and as per his evidence, in his
presence Doctor made enquiry with Udit as to what he has eaten and he
said to the Doctor that in addition to the lunch and Vada-pav , he has eaten
the 'Prasad' given by Aditi. His evidence is also challenged on the ground
that he does not remember the name of Doctor to whom Udit has told that
he has eaten 'Prasad' and further on the ground that as admitted by him Udit
was critical when he returned to the Hospital in the morning and at that time
he was appearing to be drowsy and irritable.

58] But then there is also the evidence of the most independent
witnesses like, P.W. 17- Dr. Stphen and P.W. 18- Dr. Diddee who were
attending Udit in Aditya Birla Hospital. Their evidence on this point is also
supported with the entries made in the medical case papers of Udit from time
to time, since his admission till his death.

59] As per evidence of P.W.17- Dr. Stephen, Udit was shifted to

I.C.U. at 10.45 a.m. on 23/4/07. First he was examined by Dr. Rahul
Deshpande. As per entries made in the case papers by Dr. Deshpande, Udit
 36

has given history before him of consuming 'Prasad' and also some quantity
of alcohol on the previous night. This witness, Dr. Stephen who has worked
with Dr. Deshpande, has identified the entries to that effect, made in the case
papers of Udit, Exh. 57, in the handwriting of Dr. Deshpande. Dr. Deshpande
is now in Australia since May 2007, therefore, he is not available to give
evidence, but the entries made by him in the case papers, which are
maintained in day to day ordinary course of business, can definitely be
relied upon,when his handwriting thereon is identified by the witenss who has
worked with him.

60] Further, evidence of Dr. Stephen goes to show that he also

examined Udit at about 11.00 a.m., in I.C.U. At the time of his
examination,he has also asked Udit the history as to what he has
consumed and Udit has given the similar history before him like,
consumption of 'Prasad' and some quantity of alcohol on the previous night.
Accordingly, he has recorded the said history in case papers in his own
handwriting.

61] Thus, even if in the instant case, the evidence of P.W. 3- Megha,
P.W. 4- Siddharth about disclosure by Udit of eating 'Prasad' is excluded
from consideration, there is independent evidence of Dr. Stephen who was
attending Udit, along with the contemporenious documentary evidence in
the form of medical case papers of Udit, reflecting that Udit has given the
history of consuming 'Prasad' on previous night.

62] This piece of evidence is challenged by learned counsel for the

accused Shri. Mohite on twofold grounds. In the first place it is submitted that
there is nothing on record to show that history was given either to Dr.
 37

Deshpande or to Dr. Stephen by Udit himself. At least the case papers do

not reflect that the history was given by the patient himself. To substantiate
his submission he has placed reliance on the authority of The State of
Maharashra Vs. Asaram Mahadu Dwange,1978 CLJ 1017 wherein, in the
absence of clear statement in the medico-legal register, showing that
information or the history recorded therein was supplied by deceased herself,
it was held that,
"the said history cannot be treated as dying declaration and has
to be excluded from consideration."

63] However in my opinion this authority cannot be made applicable

to the facts of the present case, because in the instant case, because except
for Udit , no-one else was knowing that he has eaten Prasad. Therefore,
there was no question of anyone else stating either to Dr. Deshpande or to
Dr. Stephen that Udit has consumed Prasad. As per the evidence of his
classmates, from whatever Udit was saying initially, he has consumed only
lunch and Vada-pav. They were admittedly not present at the time of meeting
between Udit and Aditi. It is also not their case or even suggestion given to
them that they came to know earlier from Udit or anyone else that he has
consumed Prasad, whether given by Aditi or anyone else. Moreover
assuming that they had given the said history, there knowledge about it was
derived from Udit only. Therefore, the fact that he has consumed 'Prasad'
was solely and exclusively within the knowledge of Udit alone. Hence there
was no question of any other person giving that history before the Doctor.
Only Udit could have given that history and no-one else. Therefore, this
history of consumption of 'Prasad' as given by Udit, becomes his dying
declaration and assumes significance of a clinching nature.
 38

64] The second ground on which this piece of evidence is challenged

is that if it is a dying declaration, then it should have been consistent with
other declaration or statement made by Udit. Reliance is placed on oft-
quoted decision of Khushal Rao Vs.State of Bombay, AIR 1958 Supreme
Court 22[1], wherein certain guidelines are laid down for accepting the
evidence relating to dying declaration to be a sole basis for conviction. One
of the guidelines as laid down in this authority is that, such statement made
by the deceased has to be consistent throughout, if he had several
opportunities of making a dying declaration apart from the record of it and
other guideline is that such statement had been made at the earliest
opportunity and was not the result of tutoring by interested parties.

65] In the instant case it is urged that this statement of Udit that he
has consumed 'Prasad' is neither made at earlest opportunity , nor is
consistent with his other statement. It is further urged that earlier he has
given history of consumption of only lunch and Vada-pav. This is a
subsequent statement about the history of consumption of alcohol and
'Prasad' and therefore, it is not consistent and not made at the earliest
opportunity.

66] However this argument cannot be accepted because in the first

place there is any inconsistency as such between the statement of Udit. It is
true that earlier he has not given history of consumption of 'Prasad' and he
has given the history of consumption of lunch and Vada-pav only, but this
is bound to happen because the lunch and Vadapav was the substantial
food which he has consumed, whereas 'Prasad' was a small piece, which
could have easily escaped from his mind. The moment question is asked,
what food is eaten, naturally only the substantive food like lunch, dinner or
 39

snacks come to a mind of a person and not 'Prasad', which is eaten in a very
small quantity and one does not treat 'Prasad' which is eaten in a small
quantity as a food, to cause the poisoning. Therefore, it is but natural that it
might have slipped from his mind to include consumption of 'Prasad' also in
the history given earlier. However when searching enquiries were made with
him by his classmates and also by the Doctors on this aspect, it might have
occurred to him to disclose the said fact also. It is one more additional piece
of food which he had eaten. By the said statement, he is not being
inconsistent with the earlier history of consumption of lunch and Vada-pav.
There is no question of anyone tutoring him to give the said history, because
no-one was knowing about it and no one has any reason to do so. Therefore,
even if the history of consuming of 'Prasad' is not given at the earliest
opportunity,it cannot be said that it is inconsistent with his earlier statement,
or it is a tutored version or an after-thought.

67] The next submission made by learned counsel for accused is that
in order to accept the evidence of dying declaration, it must be proved to have
been made by a person in a mentally and physically fit condition. He has
urged that as per the evidence of Doctors also, after admission Udit's
condition started deteriorating . The alleged history of consumption of
'Prasad' was given by him after he was admitted in I.C.U. at 10.45 a.m. It is
deposed by Dr. Stephen that when he examined Udit at 11.00 a.m., in I.C.U.,
Udit was little but drowsy. Accordingly he has made entry in his case papers.
Therefore, according to learned counsel for accused, it cannot be said that
the general physical and mental condition of Udit was fit and oriented to
give any dying declaration. As admittedly Aditi has offered 'Prasad' to him in
McDonald's hotel,there is possibility that in his drowsiness, Udit might have
assumed that he has consumed the said 'Prasad' and therefore, this
 40

alleged history given by him in the form of dying declaration,cannot be relied

upon.

68] However this submission also cannot be accepted, because the

evidence on record goes to prove that , though Udit was shifted to I.C.U., at
about 10.45 a.m., his condition was definitely stable; he was conscious and
well oriented. Dr.Stephen who has examined him immediately at 11.00 a.m.,
has categorically stated that,Udit was conscious and obeying commands,
though he was little but drowsy. Even the entries in case papers made at
9.40 a.m., by P.W.16- Dr. Dadke goes to show that he was conscious and
oriented. He has specifically deposed that his pulse rate was 120 per
minute, respiratory rate was 30 per minute and all his vital parameters were
stable. However as his clinical condition and symptoms were not going
hand in hand, they decided to shift him in I.C.U. The cross examination of Dr.
Dadke also goes to show that till evening the patient was very much
conscious and well oriented.

69] The evidence of P.W.11- Viju Pille, Director of college, who has
visited Udit in the afternoon at about 4.00 p.m., in I.C.U., also goes to show
that Udit was very much conscious and well oriented. As per evidence of
Viju Pille, first he met Dr. Deshpande and then he met Udit and asked him
what he has consumed. At that time Udit was wearing Oxygen mask. Udit
himself removed it. He found Udit to be fully conscious. Udit initially said he
has not consumed anything. Then he again asked Udit whether he has
consumed any Drugs and immediately Udit said 'why should he' ? This part
of evidence of Viju Pille is not challenged. Thus, from his evidence also it
is clear that till 4.00 p.m. on that day, Udit's condition was quite stable,
conscious , well oriented. Otherwise too the question of Pille, whether he has
 41

consumed any Drugs, he would not have with alertness exclaimed, why he
should consume the Drugs !

70] Hence in the instant case, it cannot be accepted that condition of

Udit was neither fit nor well oriented when he gave the history of
consuming Prasad. Admittedly the said history was given before the
Doctors viz. Dr. Deshpande and Dr. Dadke. If they had found him to be dis-
oriented, unconscious or not in a fit condition to give history, they would not
have mentioned it in the case papers or at least they would have mentioned
the said fact in the case papers. Conversely the entries made in the case
papers clearly go to show that he was very much conscious; he was obeying
commands, there was no neuro deficit , his vital parameters were stable, his
blood pressure , pulse rate and everything was normal. Only he was having
some drowsiness, but it was not of a such nature as to make him disoriented
, so as to disbelieve his statement of consumption of Prasad. Now this being
a dying declaration,coming from the mouth of Udit himself, it has to be
accepted as a reliable piece of evidence, especially, as it is getting support
and corroboration from other source also.

Aditi's admission before friends of Udit consuming 'Prasad'

given by her. :
71] The other corroborating circumstance on this aspect is the
evidence of these classmates of Udit. As per P.W. 2- Vinay, when they came
to know about the disclosure made by Udit before the Doctor of consuming
of Prasad, they traced Aditi in consequence of phone call made by her on
Udit's cell . They met Aditi and Pravin near Chinchwad station. They told Aditi
that Udit was admitted in Hospital in serious condition and asked her
whether on the previous night, she has given any 'Prasad' to him ? As per his
 42

evidence, Aditi admitted that she has givens some 'Prasad' to Udit and she
herself has also eaten that Prasad. Therefore, they told her to give the
said 'Prasad' if it was with her, so that they can show it to Doctor to ascertain
from what sort of food poisoning Udit was suffering. At that time, Aditi told
them that she has already thrown away the packet of 'Prasad' and therefore,
she was not having it. As Aditi has told them that her health was also affected
due to consuming Prasad, they told her to come to the Hospital so that
Doctor can check her. This fact is disclosed by P.W. 2-Vinay in his statement
on 1/5/07 itself that is much before the offence was registered and as per
his evidence, which is not shaken in cross examination , Aditi has admitted
the fact of giving 'Prasad' to Udit on previous night.

72] There is also the evidence of P.W. 3- Megha , who has

confronted Aditi when she came in the Hospital, as to whether she has given
'Prasad' to Udit. As per her evidence also, Aditi has told her that, yes, she
has given 'Prasad' to Udit and she has also eaten some Prasad. This part of
her evidence is also not challenged in cross examination.

73] Then there is evidence of P.W. 4- Siddharth, who has also

deposed that when he, Abhishek and Jagbir along with Vinay confronted Aditi
at Sugar cane Juice Center and asked her whether she has given 'Prasad' to
Udit, she said yes, and asked what has happened ? They told her that Udit
has become ill and Hospitalized. She told them that after eating 'Prasad',
she had also vomited and was not feeling well. They asked her whether
she was having that packet of 'Prasad' ? She told that she had already thrown
it in the parking on previous night. P.W.4- Siddharth is also not cross
examined on this material aspect. The evidence of P.W. 5- Jagbir is also on
the same point and he has also corroborated the evidence of P.W. 4-
 43

Siddharth and P.W. 2- Vinay. Though he is cross examined on this point,

nothing is elicited to disbelieve him.

74] These four witnesses P.W.2- Vinay, P.W.3- Megha, P.W.4-

Siddharth and P.W. 5- Jabgir are totally independent witnesses who were
on equal terms with Udit and Adit. They had no reason at all to implicate
Aditi in any of the offence. Conversely, they were most courteous and
friendly with her. As can be seen, from the evidence of P.W.4 –
Siddharth,he had even gone to drop Aditi up to Rickshaw when she left
Hospital. Therefore, when they had made the disclosure of this fact
immediately in the course of A.D.inquiry also, from their evidence, the sort
of extra judicial confession made by Aditi of giving 'Prasad' to Udit on the
previous night, is abundantly proved. Hence the plea now taken by Aditi,
that she has merely offered 'Prasad' to Udit and Udit refused to take it , being
subsequent and of an after though nature to somehow to escape from
clutches of the Law, it is required to be rejected.

75] It is pertinent to note that, not a single suggestion is put up to any

of these four witnesses,even after their exhaustive cross examination, that
when they confronted Aditi about giving 'Prasad' to Udit, Aditi made
immediate disclosure that Udit refused to take 'Prasad' from her saying that
he does not want to take anything from her hands henceforth. The very fact
that entire cross examination of these witnesses is silent on this aspect and
their evidence has remained unchallenged on record, goes to prove that Aditi
has not only offered 'Prasad' , but Udit has consumed it, which fact was
disclosed by Udit also before the Doctor. Hence the fact of Udit consuming
Prased is not only proved from his own statement, but also from the
immediate statement of Aditi made before their friends.
 44

Conduct of Aditi :

76] In this respect the conduct of Aditi is also assuming significance .

As rightly submitted by learned APP. On the next day, she made phone call
on Udit's cell, PW.5- Jagbir with whom Udit's mobile was, received the said
call. Aditi did not disclose her identity, but she merely asked him, where was
Udit ? He asked her, who she was? She then asked him, who was he? He
told her that he was Jagbir. Then she again asked where was Udit ? He told
her that Udit was standing at some distance,she may call after some time. As
Jagbir felt that phone call was from Aditi, as Udit has met Aditi her on
previous day, in order to find out from where that phone call was received,
he and Abhijit went to STD booth of Reliance company. There they came to
know the address from where the call was made. The said address was of a
small shop of P.W.6- Sandip Bahirwade, which was near White house Lodge
. They went there and verified by tallying the said number received on Udit's
mobile phone and confirmed that call was received from that STD booth.
Then they made further inquiry and came to know that phone was made by
Aditi and she was staying in White house Lodge . They went there and
confirmed it. As Aditi was not in the room, they went to McDonald's hotel,
it being a lunch time, to ascertain whether Aditi has gone there to take the
food. On the way they found Aditi and Pravin entering in to Sugar cane Juice
Center.

77] Aditi has admitted the fact that she had made phone call on Udit's
mobile in the morning. As per her case, she has made that call to know
Uditis condition, as he was very much upset on the previous night. She has
admitted that there was somebody else on the phone, who told her to contact
after some time and thereafter she met these students at Sugar cane Juice
 45

Center. Thus, Aditi is not denying to have made the said phone call on
Udit's mobile. The explanation offered by her cannot be called as probable
or satisfactory . If she was really worried about Udit, she would have made
the phone call first thing in the morning,but evidence of call record shows that
it was made in afternoon. Moreover she has not disclosed her identity on
phone. Nor she again made call after sometime. She was traced only
because of the efforts taken by these students to find out the number from
which she made the call. For the present, thus it can be sufficient to hold as
proved that Aditi has made such phone call on Udit's mobile, without
disclosing her identity,

78] Coming to her subsequent conduct, when she was confronted

about giving 'Prasad' to Udit. Evidence of P.W. 2- Vinay goes to show that
when they asked Aditi whether she was having that packet of Prasad, she
told them that she has already thrown it away. However of P.W. 4-
Siddharth before whom also, she has told the same thing, when he met her
at Sugar cane Juice Center, has deposed that while he was sitting in the
lobby of Aditya Birla Hospital, alongwith Aditi , Aditi opened the purse and
in that purse,they found the packet of Prasad. He took up that packet of
'Prasad' from her purse and handed it to Dr. Deshpande, who stapled it and
kept it in the drawer. As per his cross examination , Aditi herself took out
the packet of 'Prasad' from her purse and gave it to them in the Hospital. The
evidence of P.W. 5- Jagbir also proves that though Aditi has told them
that she has thrown the packet of Prasad, in the Hospital, when he asked
Aditi to confirm whether that packet was still lying in the purse,she opened
the purse and started searching, at that time he saw one packet in her purse
and took it out. They asked her whether it was the same packet from which
she has given 'Prasad' to Udit,she said, yes. As per his evidence, in that
 46

packet, there were some particles of Prasad, they gave that packet to Dr.
Deshpande who kept it in the drawer.

79] Thus, this conduct of Aditi of initially claiming that she has
thrown away the packet of 'Prasad' , but subsequently the packet of 'Prasad'
being found in her purse, becomes one more incriminating link against her.
If Udit has not consumed that 'Prasad' and if there was nothing in that
'Prasad', there was no reason for Aditi to say that she has already thrown
it, when actually it was found in her purse. Thus, this conduct of Aditi ,
betrays the guilty mind. It appears that only because of the persistency of
these witnesses they could get packet of 'Prasad' from her purse . It is
also pertinent in this respect to take in to consideration the evidence P.W.4-
Siddharth. As per his evidence when Aditi started leaving th Hospital, he
asked her mobile number. She gave her mobile number, but when they
tried on that mobile, it proved to be a wrong number He is not cross examined
on this point. The question for consideration is why Aditi should do it ? No
explanation is coming from the side of Aditi, though she was given an
opportunity to file an elaborate written statement of her defence.

80] The submission of learned counsel for accused is to the effect

that merely because these are independent witnesses, their evidence
cannot be accepted as gospel truth. It is not always easy for the accused to
say why these witnesses are stating against him / her. learned counsel for
accused in this respect has placed reliance on Deoraj Deju Suvarna Vs.
State of Maharashtra, 1994 CLJ 3002 wherein it is observed that :
"norms of appreciation of evidence do not warrant that the
evidence of a witness who is in dependent and has no reason to
falsely implicate the accused persons, should be mechanically
accepted as gospel truth. Even the Testimony of witnesses who
 47

fall in the aforesaid category can only be accepted after it is

established that they are truthful witnesses and their evidence is in
consonance with probabilities. "

81] He has also placed reliance on the authority of Madkami Baja v.

The State 1986 Cri. LJ Orissa 433 on this aspect, wherein it was held that
:
" Evidence of a witness to the occurrence in a criminal case is
not to be accepted merely because, the defence has not
been able to say as to why the accused has been involved or as to
why a witness has come forward to depose against him or
because the witness is a disinterested persons. Disinterested
evidence is not necessarily true and interested evidence is not
necessarily false."

82] It may be true that merely because the witnesses are

independent, their evidence is not to be accepted as gospel truth on the
ground that defence has not been able to say why they are deposing against
the accused. However, as held in the above said authority, their evidence
can be accepted if it is in consonance with probability. In the instant case,
the evidence of these witnesses as gleamed from entire state of
circumstances, is definitely in consonance with probability and most
importantly, their evidence is not challenged or shattered and it accords well
with the factual aspects of the case.

Seizure of the purse from Aditi :

83] The most incriminating circumstance alleged by the prossecutin
against Aditi is, that of the seizure of her purse in which two packets of
'Prasad' were found and as per the C.A. Report, those packets were found
to be containing Arsenic poison. To prove this circumstance, the prosecution
has placed reliance on the evidence of P.W. 1- panch Umesh Tanjane, in
 48

whose presence the said purse was seized and the evidence of P.W. 28- API
Pratap Pawar, who has seized that purse on 5/5/07, vide panchanama Exh.
25. As per the evidence of both, the panch and API Pawar, two plastic
packets, one containing Sakhar futane and other containing small pieces of
Khadi sakhar, were found in that purse. They sealed the purse, after
keeping it in the paper bag and then keeping it in plastic bag. Accordingly,
the panchanama was also prepared. As per evidence of P.W. 28 API
Pawar, he has deposited the said purse with muddemal clerk- P.W. 30-
Ashok Nilkanth. As per his evidence on 5/5/07 API Pawar produced one
sealed packet. Accordingly, he made entry No. 11 in the Register, the
relevant extract of which is at Exh. 124. On 191/5/07, he sent the said sealed
packet to C.A. There is signature of PW 32- API Bhamre on the Register to
that effect. Evidence of API Bhamre also goes to show that he has sent the
said purse to C.A. As per the C.A. report Exh. 55, proved through the
evidence of P.W. 15- Gujar, the chemical analysis of the purse and the
contents of Khadi sakhar and Sakhar futane,it revealed the presence of
Arsenic in both, the purse and Khadi sakhar.

84] Learned counsel for accused has however seriously assailed

this evidence about the seizure of purse, especially, the sealing part of it.
Aditi has admitted the fact that the purse was seized from her, but she has
denied that it was sealed in her presence, or at any time. Learned counsel
for accused has tried to draw the attention of the court to some vital
admissions given by the witnesses in this respect, like P.W. 1- panch
Tanjane has admitted in his cross examination that the lables of the
signatures of panchas were not affixed to the actual purse, but to its wrapper.
The purse was kept in the plastic bag, however the seal was not affixed to
the plastic bag. The plastic bag was also not stapled. He has further admitted
 49

that in the panchanama it is not mentioned that the purse was first kept in
plastic bag and then it was kept in the paper bag. In the panchanama, it is
also not mentioned that the lables were affixed to the paper bag.
Therefore,it is urged that his evidence is not at all sufficient to prove that
purse was actually sealed at the time of panchanama.

85] According to learned counsel for accused , even the evidence of

P.W.28 - API Pawar, who has seized the said purse, goes to show that
though he has deposed that he has kept the purse in the plastic bag, closed
the plastic bag with lables of signatures of panchas and himself and sealed
that plastic bag containing purse with lakh, in cross examination he has
admitted that both the plastic packets of Khadi sakhar and Sakhar futane ,
which were in the purse, were open. He did not seal those packets
separately. He did not staple the plastic bag in which the purse was kept.
He has further admitted that the plastic bag which is before the court, is not
having any seal and there are no marks on the plastic bag to show that it
was sealed. Even the lable of the signatures of panchas is not appearing on
this plastic bag. There are also no marks on this plastic bag to show that
label was affixed to it. He has not even obtained the receipt from muddemal
clerk to show that he had deposited the said purse with him. The copy of
seizure panchanama was not given to Aditi . No endorsement to that
effect is made on panahanama. He has not even given the detail description
of the articles seized, in panchanama, either of the purse or of the packets of
'Prasad' . He has not given any report in writing to his superior officers
about seizure of the purse. He has not made any entry in the station diary
about the same.

86] He has submitted that, the evidence of P.W. 30 - muddemal clerk

 50

- API Ashok also shows that in the relevant entry No. 11 in the muddemal
register, there is no mention that API Pawar has given him the original
panchanama. The date on which the purse was produced before him is also
not mentioned in the entry. It is also not mentioned that purse was in sealed
condition. He has also admitted that he has not issued any receipt to API
Pawar about the deposit of purse. Further he has not mentioned when the
purse was given to the carrier for delivering the same to C.A., it was in
sealed condition.

87] Hence according to learned counsel for accused , all these

admissions given by the witnesses are more than sufficient to show that the
purse and the packets of 'Prasad' were not sealed at the time of
panchanama and there is no conclusive evidence to show that when the
purse was seized, there were packets of 'Prasad' in it.

88] Therefore, according to learned counsel for accused , there is

serious breach of mandatory provisions laid down in Police Manual para
Nos. 147, 150, 152 and 167 of sealing the article immediately after seizure
and the said article must be continue to be in sealed condition, till it was
received by C.A. According to him,if there is no reliable evidence about
sealing of either purse or the packet of 'Prasad' therein, there is possibility
of tampering with the contents thereof which is sufficient to disbelieve the
said evidence, there need not be actual proof of tampering. So far as the
present case is concerned, he has urged that,such possibility cannot be
ruled out considering the fact that as per evidence of P.W. 28- API Pawar,
the none of the packet was bearing the stamp of any shop, whereas as per
C.A. report, it was bearing the stamp of Mata Vaishnodevi temple. He has
also drawn attention to the fact that one of the police officers, namely P.W.
 51

27 – Sanjiv Patil has, in the course of investigation gone to Jammu on

5/5/057 and left Jammu on 10/5/07. As the town at base of Vaishondevi
temple is only at the distance of 40 KM from Jammu, there is every
likelihood of his visiting Vaishnodevi temple during that period and while
returning bringing packet of 'Prasad' from Vaishnodevi in order to distribute
those packets to his superior officers. There is possibility that in contents of
one of the packets, Arsenic might have been mixed and the same packet
being sent to C.A. Both these suggestions were put up to P.W.27- Sanjiv
and API Bhamre. No doubt they have denied the same, but this possibility
according to him, cannot be ruled out because as per the law proof of
actual tampering need no be adduced, mere possibility is also sufficient.

89] To substantiate his submissions, learned counsel for accused

has relied on the authorities of : State Vs. Motiya 1995 CLJ 835 and Dasu
and others vs. State of Maharashra,Bom. C.R. 18985[2] 168 etc. ,
wherein the importance of sealing the muddemal articles at the time of
seizure is emphasized and the effect of non-sealing is spelt out. The crux
of these authorities is that, prosecution should produce evidence that
articles sent to the C.A. were the same which were recovered from the
accused. Similarly, it is necessary for prosecution to prove that officer
recovering the articles should take efforts to seal them and evidence should
be produced that the seals were not tampered with till the identification is
offerred or till the articles are sent to C.A. for analysis. In the absence of such
precautions, it would always be open to the accused to say that the police
later tampered with those articles in order to implicate him. If the evidence of
such sealing is not produced, court cannot place reliance on the discovery of
such incriminating articles. It was further observed in these authorities that, it
is not necessary for the accused to show that the articles were actually
 52

tampered with. The possibility thereof is sufficient.

90] Though there cannot be any two opinions about these legal
prepositions,in the instant case, despite all the admissions given by the
witnesses, the documents produced on record like, the seizure panchanama
of purse Exh. 25, goes to show that the purse was kept in the plastic bag,
then said plastic bag was closed and lables of signatures of the panchas
and police were affixed on it and it was sealed. Therefore, panchnama is
clear to the effect that purse was sealed. Even the letter which was sent to
C.A. along with purse, Exh.133, shows that the purse was sent in the plastic
bag in sealed condition to the C.A. along with police constable Tamboli. The
C.A. report of the purse Exh. 55 also goes to show that the description of the
parcel received was given as " one sealed envelope , seals intact and as
per copy sent." Therefore, it cannot be said that when the purse was seized
, it was not sealed just then and there and or it did not continue to remain in
sealed condition till it was sent to C.A. Therefore,the possibility of tampering ,
which is suggested in the case , cannot be accepted. Moreover, the facts of
this reported authority like Dasu and others vs. State of
Maharashra,Bom. C.R. 18985[2] 168 were different in the sense that,
there was no mention either in the panchanama or in the evidence of
investigating officers that the clothes and the weapons were properly
wrapped and sealed in the presence of panchas. Though in the forwarding
letter, issued by the Investigating Officer to C.A.,it was mentioned that those
articles were wrapped and duly sealed, there was no evidence as to when
they were wrapped and sealed and in the light of the same, it was held that,
“non-sealing of the articles immediately after the seizure in presence of
panchas, is bound to affect the probative value of the findings of Chemical
Analyser.” As as against it in the present case, in the panchanama it is
 53

clearly stated that purse was sealed and as per the letter sent to C.A.
also it is mentioned that it was in the sealed condition and the C.A. office
has received the muddemal with seals intact. Now it may be true that after
handling of C.A. office, the seals or their marks may not be remaining,
but that does not mean that it was not sealed at all. Hence the possibility of
Investigating Officer tampering with contents cannot be accepted.

91] Learned APP has relied on the authority of Franco D'Souza Vs.
State of Goa 2000[5] BCR 890 to submit that, in case of defective
investigation, the story of prosecution will have to be examined dehors such
omissions and contaminated conduct of the officials , otherwise the mischief
which was deliberately done would perpetuate and justice be denied to
complainant and this would obviously shake the confidence of people not
merely in law enforcing agency, but also in administration of justice.

92] In this authority the reliance was also placed on the observation
of Apex Court in the case of State of Karnataka V. K. Yarappa Reddy,
1999[8] Supreme Court 496 to the effect that ,
“criminal justice should not be made the casualty for the wrongs
committed by the Investigating Officers in the case. If the court is
convinced that the Testimony of a witness to the occurrence is
true,the court is free to act on it albeit Investigating Officer's
suspicious role in the case. “

93] Reliance was also placed on the observation of the Apex Court in
the case of Kernel Singh Vs. State of M.P., 1995[5] SCC 518 that :
“it would not be right in acquitting an accused person solely
on account of the defective investigation as to do so, would
tantamount to playing in to hands of Investigating Officer, if the
investigation is designedly defective. "
 54

The point therefore, to be stressed is that , even if there are

certain infirmities or lacuna in the investigation,especially as regards the
seizure of purse, simply on the basis of those lacuna, the prosecution case
cannot be disbelieved. The court has to see to the other circumstances to
ascertain the truth.

94] Learned counsel for accused has challenged this circumstance

also on the Test of probability factor also. According to him , it does not
stand to reason that Aditi will keep with her the incriminating article of
'Prasad' in the purse for number of days, especially when since beginning
she was under a cloud of suspicion. It is urged by him that, the alleged
incident has taken place on 22/4/06, whereas the purse is seized from her
possession on 5/5/06, i.e. after the lapse of about 15 days. During the said
period she has also gone to Delhi and hence she has ample opportunity
and time to dispose of the purse. She is not any rustic lady,but an educated
girl. When she was aware since the day one that she was under a cloud of
suspicion, to assume that she would retain the purse and bring it back,when
she was called by police,is as good as insulting her intelligence. Moreover,
when in the Hospital on 23/4/07, she was called upon to open the purse and
from that purse she has produced some packet of 'Prasad' , it can hardly be
accepted that she will bring the same purse again. Therefore, according to
learned counsel for accused , on this Test of probability also, the evidence
relating to seizure of the purse is required to be disbelieved. He has urged
that Aditi has fairly conceded in her statement u/s 313 of Cr.P.C., that purse
was obtained from her subsequently,i.e. only after the C.A. report of viscera
was received showing the presence of Arsenic. The purse was also sent to
C.A. only after the receipt of C.A. report and hence this fact supports the
defence plea of tampering with the contents of the purse.
 55

95] In my opinion why Aditi brought the same purse and that too
without clearing contents thereof,there is probability that as she has already
given the packet of 'Prasad' to Dr. Deshpande, she might not have expected
the police to again search or seize her purse, that too, after 10-15 days from
the incident. Secondly, there is also probability that she being an intelligent
lady, she might have even thought that she would be suspected if she
changed the purse or did not bring it with her. Her own acts or her own
intelligence,may in such case prove to be her own undoing. One cannot
enter in to the mind of accused or even cannot explain under which
circumstances the accused has acted in a particular way at a particular time.
The fact remains that the purse containing 'Prasad' was seized from her
possession and the said 'Prasad' was found to be having Arsenic. It is a
matter of record that when it was seized, C.A. report of the viscera or
stomach sample were not received. Therefore, it cannot be accepted that
at the time of seizure of the purse itself, the police were knowing the contents
of C.A. report.

96] In my considered opinion, even for the sake of argument,it is held

that this circumstance is not convincingly and reliably proved by the
prosecution, it does not affect prosecution case as there are other clinching
circumstances on record on the basis of which also, the prosecution has
succeeded in proving its case.

Evidence of Polygraph and BEOS Test :

97] One of such link in the circumstantial evidence is the evidence of
two Psycho Logical Evaluation Tests conducted on accused No. 1- Aditi.
Witness No. 29- Sunny Joseph who is working as Assistant Chemical
 56

Analyser in Forensic Science Laboratory, Mumbai, has conducted the said

Tests. In all he has conducted 2 Tests, one Polygraph Test and the other
Brain Electrical Oscillation Signature Profiling [BEOS] Test on Aditi and only
Polygraph Test on Pravin . It is not disputed and otherwise also, proved
through the evidence of P.W. 33- Mohite that, after he received
investigation of the case from P.I. Vidhate, on 25/5/07,he obtained
permission from the court to conduct various Tests of Psychological
Evaluation on both the accused at Forensic Science Laboratory, Mumbai.
Accordingly, he has written the letter , Exh. 142 for obtaining suitable dates
for conducting said Test. On 23/7/07 he was called upon to remain present
along with accused. On that day, a team headed by P.W. 29- Sunny, made
inquiry with him and the accused about the facts of the case and next date
was fixed as 25/7/07 for conducting the Tests. On both these days, he has
taken Aditi from Yerawada Jail to FSL Mumbai. Pravin who was on bail,
was also present for the Test. Only Polygraph Test was conducted on
Pravin.

98] The evidence of P.W. 29- Sunny also goes to disclose that on
23/7/07 his team consisting of Dipti Puranik and Nawaz Irani interviewed the
investigating officer and both the accused. They prepared the notes of their
interviews, discussed the case in detail in the light of whatever information
they had collected and in pursuance of their discussion they decided to
conduct Polygraph and BEOS Test on Aditi and only Polygraph Test on
Pravin . For conducting the Test, they had prepared a set of questions. He
has described in detail the procedure adopted for conducting these two
Tests. It also formes part of his report Exh. 111.As per the said procedure as
deposed by him, for conducting Polygraph Test they prepare a set of
questions. The subject on whom the Test is to be conducted is made to sit
 57

with a number of sensors attached to his body. These sensors are supposed
to record the respiration, electro-dermal activity and blood pressure. The
sensors attached to the body continuously monitor these parameters during
the Test. They take a base line of all these parameters and questions are
asked to the subject one by one. For every question there is a base line.
The subject is supposed to answer 'yes' or 'no' to all the questions. After his
verbal response, in 'yes' or 'no', his psychological responses are recorded.
The questions are divided in to three sets. viz. Irrelevant, controlled and
relevant. Relevant questions are related to the case. These questions are
prepared on the basis of the interview of I.O., and the facts given in his
report and documents enclosed with the referral letter. Responses given by
the subject to the relevant questions are compared either with the baseline
and/or with the responses of the controlled questions. There is a pre-
determined criteria for detecting deception and truthfulness. There is a
Working Procedure Manual for Polygraph, for conduction and scoring of
Polygraph . It is a universally accepted Manual. Based on this criteria,
responses given by the subject are noted down and compared and they are
given scores. These scores indicate truthfulness or deception while
answering to the relevant questions. The recording and monitoring of all
these parameters is done by the computer. Scoring is however done
manually with the help of features which are already available in the
Polygraph software.”

99] His report disclosed that on the basis of case formulation,

Psychological profiling of Aditi , the observation of her mental status
examination and psychological assessment, the Polygraph examination was
conducted on her, after understanding of the case and Aditi's alleged
involvement. As per his evidence a question set was prepared which
 58

question set is produced at Exh.109. The said questions were aimed at

checking whether she was deceptive of questions related to her having a
hand in Udit's murder, her hiding some important facts related to Udit's
murder, her mixing Arsenic in 'Prasad' that was given to Udit and the
possibility of her having discussed the plan of murdering Udit with Pravin.
He has deposed that “Analysis of Aditi's responses on Polygraph revealed
Deception on all the relevant questions : “Kya Udit ki hatya mein aapka hath hai?”
[Q.No.3], “Kya Udit ki maut ke bare main koi baat Aditi and Pravin chupa rahe
ho? “ [Q.No.6], “Udit ko diya hua 'Prasad' main kya aapne Arsenic milaya tha?”
[Q.No.9] “Kya aapne Pravin ke saat milke Udit ko marne ka plan kiya tha?”
[Q.No.12]. This indicates that Aditi was deceptive when questioned about her
involvement in various aspects of the murder of Udit. "

100] Similar Polygraph Test was conducted on Pravin also. However

the analysis of the results of his responses on the relevant questions being
in-conclusive, it was opined that his role in this case cannot be commented
upon, as his responses could not be qualified as deceptive or truthful when
analysed. Pravin was not therefore subjected to BEOS Test which was
conducted on Aditi on the same day.

101] P.W.29- Sunny has in his report and also in his evidence given
the details of how the BEOS Test is conducted. According to it, BEOS is a
Test which is an application of the EEG [Electro Eencephalo gram] . It is
commonly used in a medical set up for diagnostic purposes. In medical field
EEG is done for the purpose of detecting any abnormality in the brain. In this
process electrodes are attached to different parts of the brain to detect
electrical activation of different parts in the brain. The subject is asked to
wear a cap with 32 electrodes . Out of these 32 electrodes two electrodes
 59

are on 2 ear lobes and remaining 30 are on different parts of the brain.
These electrodes are arranged in a universally accepted manner touching
the scalp to detect electrical activation inside the brain. It is not an invasive
procedure . By this method, different aspects of the memory are studied.
Such as : conceptual knowledge and experiential knowledge. Conceptual
memory is related to semantic processing. Semantic means the use of
words, vocabulary knowledge of language etc. This aspect of memory is
restricted to the information that we receive from various sources, such as –
reading newspaper, watching TV etc. Experiential knowledge is acquired
only through participation in an activity or event leading the person to have
an experience of that event. According to him, this BEOS system is
programmed in such a way that it detects and differentiates between the
electrical activation related to conceptual and experiential knowledge. Based
on the information of the case collected from I.O. and other documents,
they prepare number of probes- meaning - short sentences or phrases.
These probes are arranged in a sequential order to depict different
scenarios. The probes are of three different categories. Viz. Neutral, which
are presented to prepare base line for cognitive process. Second : control
probes. Those are related to personal information of that subject. Third :
relevant probes. Those are related directly to the case. These probes were
recorded in a computer and presented to the subject. The subject is asked to
sit with his eyes closed and listen to probes. The subject is asked not to give
any answers verbally. After the Test is completed, the system analyses the
electrical activation for relevant probes in comparison to the baseline for
each individual probe. After analysis the system generates a report that
tells us what kind of cognitive processing that took place when each probe
was presented. There is no manual analysis involved in this system. As per
his evidence the report prepared by the system shows the experiential
 60

knowledge against a probe only when electrical activation suggestive of

memory related to processing related to an event is present.

102] In his evidence he has proved on record the list of probes

which was presented to Aditi along with her responses. It is at Exhs. 114/1-
5. These probes are qualified in to 8 categories relating to different cognitive
processes in the the brain when probes are presented. Those cognitive
processes are attention, primary processing , encoding, familiarity,
experiential knowledge, negative response, activation suppression, and
emotional response. He has enclosed a sheet along with lhisreport giving
definition of all these processes. It is Exh. 115. In this sheet, Scenario
Nos. 3 to 8 are relevant probes."

103] His report discloses that findings of the BEOS conducted on Aditi
showed Experiential Knowledge on a number of target probes presented to
her, indicating her involvement in the murder of Udit Bharati. Experiential
Knowledge was found to be present on probes depicting her having an affair
with Udit taking admission along with him in Pune and her having some inter
-personal conflict with Udit and, therefore, both of them not talking much to
each other. It is also revealed in BEOS, that Aditi knew that Udit was not
really happy about her affair with Pravin and about her getting married to
Pravin. Aditi was found to have Experiential Knowledge for having a plan to
murder Udit by giving him Arsenic. Experiential Knowledge was also found
for her having gone to a temple and collected Prasad, buying Arsenic from
a shop, and keeping some 'Prasad' aside for Udit. She was also found to
have Experiential Knowledge for her having called Udit up and given him the
'Prasad' that was mixed with Arsenic. Experiential Knowledge for the
emotional experience of getting relieved and scared in relation to giving
 61

Udit the 'Prasad' was also found present on BEOS Test . Thus, these
findings clearly indicate Aditi's involvement in the murder of Udit.

104] Therefore, in conclusion he has stated that “Psychological

Evaluation including Psychological Profiling, Polygraph Testing and BEOS of
the subject Aditi Sharma clearly indicated her involvement in the murder of
Udit.

105] The Psychological Evaluation tests of Aditi thus,clearly proves

her involvement in Udit's murder as indicated by Deceptive responses on th
e relevant questions in Polygraph Test and by the presence of Experiential
Knowledge on the target probes in BEOS in terms of having a plan to
murder him, collecting 'Prasad' and Arsenic, meeting Udit and giving him the
Prasad. Analysis of the Aditi's responses on Polygraph indicated Deception
on all the relevant questions, thereby corroborating the BEOS findings.”

106] His evidence and opinion is challenged on the ground that he

himself has not conducted the said Tests, but his team-mate Dipti Puranik
has done so and therefore, his knowledge is hearsay. However his evidence
is more that sufficient to show that he himself, Dipti and Nawaz had formed
a team for conducting these Tests on the accused. He was reporting officer of
the Tests and Dipti and Nawaz were his assistants. The report also is
prepared and signed by him. Therefore, it can hardly be accepted that his
knowledge about the Tests is hearsay.

107] The second contention raised is that, these Tests are not of a
conclusive nature , as neuro science which is a study of brain and nervous
system, is comparatively a new field. As admitted by this witness, in India
 62

Polygraph Tests are introduced only about 10 years back, whereas the brain
mapping- BEOS Tests are introduced as recently as 5-6 years back. It is
submitted that this witness, therefore, cannot be called as an expert or
qualified one to conduct these Tests. But then, competency of this witness t
conduct the Test is not seriously challenged. His evidence also reveals that
he was working as Clinical Psychologist in National Institute of Mental
Health and Neuro Sciences at Bangalore and he has experience in the field
of Neuro psychology since last 6 years and in forensic technique since last
1½ years. He has himself conducted approximately 15 Polygraph Tests and
has been associated with almost 100 Polygraph Tests. He has conducted
16 BEOS Tests and has been associated in conducting of about 12 Neuro
Psychology Tests. Therefore his expertise in my opinion, can in no way be
challenged and nothing is brought on record in his cross examination to
show that the Tests conducted were not proper and requisite procedure was
not followed.

108] As regards the contention that the results of these Tests are not
conclusive in nature, certain suggestions are put up to him in cross
examination to the effect that, there are two Polygraph Tests, one is
Computer Polygraph and the another Analog Polygraph; out of them
Analog Test gives better results, whereas Computer Polygraph Test
provides high degree of false positive results. This suggestion is denied by
him. Further suggestion put up to him is that, Polygraph Test is based on
arousal of autonomic nervous system which can take place when person
speaks lie and also when person is under stress, anxiety, anger ,
nervousness, fear and embarrassment. He has denied the said suggestion
and nothing is brought on record to show that at the time of Test, Aditi was
either under stress, anxiety , anger nervousness, fear and embarrassment.
 63

Her Psychological Profiling and Assessment reveal that no significant

abnormalities in her mood or thought were observed except for her distress
over alleged involvement in a criminal case. Therefore, it cannot be
accepted that arousal of her autonomic nervous system, resulting in to her
deceptive answers took place on account of the stress, anxiety , anger
nervousness, fear and embarrassment.

109] The attention of the witness was also drawn to the opinion of
American Medical Association that, the results of Test depend upon the skill
of Polygraphist and the success rate is only 70%. He has not agreed with
the same as both the Tests are computerised. In BEOS Test even the
analysis is also done by computer and no manual element is involved.

110] An attempt is made to contend that the BEOS Test, which is used
in Forensic Science Laboratory, Mumbai is different from the Farwell's
Brain Finger Printing Test, and the system used for similar Test in Forensic
Science Laboratory Banglore. It is urged that this system is highly sensitive
and only an expert can use it. This witness's attention was also drawn to the
preposition in the Expert's Assessment of Neuroimaging an Brain- Computer
interface to the effect that some more work needs to be performed both, on
the methods used to cause brain activation as well as processing methods
for resulting data that provide clear interpretations of the results. He has
denied the said suggestion. His evidence is categorical to the effect that
as the BEOS Test which is conducted without any manual intervention and
its results depend only on the automatic activation of the probes, there is
no question of any mistake or error being committed. According to him, the
Experiential Knowledge is acquired only through participation in an activity
or event leading the person to have an experience of that event. BEOS
 64

system is programmed in such a way that it detects and differentiates

between the electrical activation related to conceptual and Experiential
Knowledge. Therefore, merely because Aditi has read the newspapers

or this case was reported in Media and hence she has given some false
responses on the basis of her acquired information or knowledge cannot be
accepted. Unless and until she has participated in such offence, her
responses to Experiential Knowledge could not have been activated.

111] An attempt is also made by learned counsel for accused to

contend that the questions have been raised over the methods used by
Forensic Science Laboratory Mumbai referring to authenticity of the Forensic
techniques used there. Reliance is placed in this respect on one computer
print out of the Article published in Mid-day, dated 20/1/08 titled as 'Battle
of the labs'. As per the said Article, Dr.B.M. Mohan , Director of Forensics
Science Laboratories in Bangalore has alleged that the controversial
techniques used in Forensic Science Laboratory, Mumbai has led to
innocent people being wrongly incriminated in a case probed by
Maharashtra State CID. However the perusal of said Article itself reflects
that Dr. Rukmini Krishnamurthy, Director of the State Forensic Science
Laboratory, has rubbished Dr. Mohan's claims, stating tht lab's BEOSP
technique is the same as the one used since 2003 at Forensic Science
Laboratory Gujrat which Lab is accredited by the National Accredited Board
Limited and in the past said technique has helped gather corroborative
evidence in four sensational cases, like the Ujjain serial killing, the
Jharkhand mass murder probed by the CBI and two murder cases with the
Gujarat police. In two cases, capital punishments were awarded to the
accused based on the BEOSP findings.
 65

112] It is just sufficient to state that these allegations and counter

allegations made in this news Article are self- speaking for not giving any
importance to this Article for the purpose of discarding the reports of
Polygraph and BEOS Tests and evidence of P.W 29- Sunny. As held in the
authority of, Bhaskar Sitaram Narule Vs. State of Maharashra, 2008 ALL
M R [Cri] 913 relied upon by learned APP, only on the strength of
authoritative books or such reports, the court cannot substitute its opinion,
in the place of opinion which is expressed by expert witness on the basis of
his own findings, observations and Tests.

113] Learned counsel for accused has then placed reliance on the
Guide-lines issued by Human Rights Commission relating to administration
of Polygraph Test on accused. It is submitted that as per the said
Guidelines except with the consent of the accused recorded before Judicial
Magistrate, no such Test should be conducted and secondly, accused should
be given an access to lawyer and the physical, emotional and legal
implication of such Test should be explained to him by the police and his
lawyer. In the present case, it is urged that these Guidelines were not
followed. The consent of the accused was not obtained before the
Magistrate, nor they were informed that they can keep their lawyer present.

114] However in this respect, the evidence of P.W.29- Sunny shows

that he has obtained informed consent and willingness of the accused
before administering Tests to them. He has also explained the implications of
the Tests to the accused. In his report also said fact is mentioned. Therefore,
the absence of their lawyer cannot invalidate the report of these Tests.

115] As regards the admissibility of this evidence, leaned APP has

 66

relied on the authority of Ramchandra Ram Reddy Vs State of

Maharashtra All M.R. Cri L J 2004 Bom.1704, wherein it is held that,
“as these Tests are not in the nature of Testimonial compulsion,
they do not in any way violate Article 20[3] of Constitution and
recourse to such Test can be taken if and when the investigating
agency seeks to introduce such statement as evidence.”

Thus the use of these Tests both during the course of

investigation and trial is held to be admissible.

116] Learned APP has also relied upon the observations of Apex
Court in the case of State Vs. S.J. Choudhary, 1996 DGLS 346 wherein
the evidence relating to expert was considered and it was observed that :
" It is obvious that the Indian Evidence Act when enacted
originally in 1872 did not specifically mention typewriting in addition to
handwriting because typewriters were then practically unknown.
However, the expression 'science, or art' in Section 45, in addition
to the expressions 'foreign law' and 'handwriting' used in the
section as originally enacted, and the expression 'finger
impressions' inserted in 1899, is sufficient to indicate that the
expression 'science, or art' therein is of wide import. This
expression 'science, or art' cannot, therefore, have a narrow
meaning in Section 45 and each of the words 'science' and 'art'
has to be construed widely to include within its ambit the opinion
of an expert in each branch of these subjects, whenever the court
has to form an opinion upon a point relating to any aspect of
science or art."

It was further observed in this authority that -

"An enactment of former days is thus to be read today, in the
light of dynamic processing received over the years, with such
modification of the current meaning of its language as will now
give effect to the original legislative intention.”

It was concluded by holding that -

 67

“There cannot be any doubt that Indian Evidence Act 1872 is, by
its very nature, an ongoing Act."

117] Thus in view of section 45 of the Evidence Act, whenever the

court is required to form an opinion upon a point of science, then the court
can take the help of the opinion of the person specially skilled in the said
science and the opinion of said expert is admissible in evidence as relevant
fact by virtue of Section 45 of the Act. In the instant case, as P.W. 29-
Sunny is an expert in the branch of Forensic Science pertaining to
Psychological Evaluation Test, his opinion being of an expert, is admissible
in evidence by virtue of section 45 of the Act and his opinion supports
prosecution case so far as accused No. 1- Aditi 's involvement and
authorship of the crime is concerned.

118] Of course this court is aware that the results of these Tests are
not to be treated as conclusive in the sense that on the basis of those
results only the case is not to be decided. They are just one of the link in
the chain of circumstantial evidence, like any other evidence on which
prosecution places reliance.

Proved circumstances :

119] Thus to sum up, the circumstances which are proved on record
are to the effect that -
There was broken love relation between deceased Udit and
accused No. 1- Aditi.

Thereafter Aditi left Udit along with Pravin as she fell in love
with him and both of them started residing together at Delhi.
 68

On 22/4/07 both the accused came to Pune. Immediately on

reaching Pune, Aditi got Udit's cell number from his mother by
calling her in the name of student by name Amit.
She called Udit for meeting at McDonald's hotel.
After returning from the said meeting at about 12.00 O'clock in the
night. Udit started suffering from vomiting and loose motion.

He was admitted in the Hospital at 2.30 a.m. where he disclosed

the history of consuming Prasad.

On the next day, at 1.30 p.m. Aditi made phone call on Udit's cell
without disclosing her identity.
Udit's friends traced Aditi.
Before them she admitted that she has given 'Prasad' to Udit.
However she gave a false explanation that she has already
thrown away packet of 'Prasad' .
The packet of 'Prasad' was found in her purse later on.
Udit died due to consumption of Arsenic.
In his stomach wash and viscera, fatal dose of Arsenic was found.

In the packet of 'Prasad' , which was seized from the purse of Aditi
, Arsenic was detected.

In the Polygraph and BEOS Test, responses of Aditi to the set of

questions put to her were found to be deceptive and proving
her experiential knowledge, respectively.

120] In the light of these proved facts on record, submission of learned

APP is that these facts from a chain of circumstances leading to no other
inference, but to the inference that it was Aditi , who has knowingly and
intentionally caused murder of Udit, acting in conspiracy with Pravin, by
administering him Arsenic in 'Prasad' knowing fully well that Udit will not
refuse to take it as normally no-one refuses and he will not remember
also of having consumed it. It was a very well thought-out strategy designed
 69

and planned by Aditi.

121] As against it, submission of learned counsel for accused is that

these circumstances are not satisfactorily proved beyond reasonable doubt
in view of the infirmities pointed out in the evidence and even if they are
held to be proved on record, still then, they leave open several possibilities,
especially the possibility of Udit committing suicide by consuming Arsenic,
being totally disappointed and dejected on account of the disclosure made
by Aditi of getting secretly married with Pravin and residing with him. The
submission of learned counsel for accused is that in case of murder by
administration of poison, four important circumstances have to be
established by prosecution as laid down in the authority of Sharad Sarda.
They are :

1] There is clear motive for an accused to administer poison to

the deceased.
2] That the deceased died of poison said to have been
administered.
3] That the accused has poison in his possession and
4] That he had an opportunity to administer the poison to
deceased.

122] In the present case, he has urged that even if it is proved by

prosecution that Udit died on account of poisoning and also further proved
that Aditi has an opportunity to administer the poison, in that case also, the
prosecution has failed to prove the clear motive for accused to do so and
also that accused Nos.1 and 2 had the poison in their possession. According
to him, unless all these four ingredients are proved, the case of murder by
 70

administration of poison cannot be said to be proved. The two

circumstances proved by prosecution are, not of an unerring tendency
leading to the only conclusion of Udit succumbing to homicidal death by
consumption of Prasad. They still leave open the possibility of Udit
consuming Arsenic himself, due to frustration in his love affair.

123] Now coming first to these four essential ingredients, required to

be proved in case of murder by administering poison, leaned APP has relied
on another land mark decision of Apex Court in the case of Anant Lagu
Vs. State of Bombay, AIR 1960 SC 500, which was also a case of murder
by poisoning. In this authority also it was observed that :
" The prosecution must establish in a case of poisoning : a] that
death took place by poisoning; b] that the accused had the
poison in his possession; and [c] that the accused had an opportunity to
administer the poison to the deceased.”
However in this authority it was further held that :

“Though these three propositions must be kept in mind always,

the sufficiency of the evidence direct or circumstantial, to establish
murder by poisoning will depend on the facts of each case. If the
evidence in a particular case does not justify the inference that
death is the result of poisoning because of the failure of the
prosecution to prove the fact satisfactorily , either directly or by
circumstantial evidence then the benefit of the doubt will have to
be given to the accused person. But if the circumstantial evidence
, in the absence of direct proof of the three elements,is so decisive
that the court can unhesitatingly hold that death was a result of
administration of poison [though not detected] and that the
poison must have been administered by the accused person, the
conviction can be rested on it.”

It was further observed in this authority that :

"A case of murder by administration of poison is almost always
 71

one of secrecy. The poisoner seldom takes another into his

confidence, and his preparations for the commission of the offence
are also secret. The greater his knowledge of poisons, the greater
the secrecy, and consequently the greater the difficulty of proving
the case against him.”

124] In this authority the postmortem examination and Chemical

Analysis of viscera failed to disclose any poison, but the ligature marks on
the neck were found to be postmortem. Therefore there was no direct
evidence to show that accused administered the poison and as no poison
in fact has been detected by the Doctor who performed the postmortem
examination or by the C.A., a strong case was tried to be made out for
acquittal of the accused, which was rejected by Trial court, High Court and
Apex Court also, by drawing inference of the guilt of the accused on an
examination of a mass of evidence proving the conduct of the accused. In
the light of statement made by the accused at a time he was not required to
face the charge, it was observed that:
"if some prior conduct is connected intrinsically with conduct of
the accused after death, then the motive of the accused would be
very clear indeed."

The material observations made in this authority, which are very

relevant for the purpose of this case, are to the effect that :

"It is to be observed that the three propositions were laid down

not as the invariable criteria of proof by direct evidence in a case
of murder by poisoning because evidently if after poisoning the
victim, the accused destroyed all traces of the body, the first
proposition would be incapable of being proved, except by
circumstantial evidence. Similarly, if the accused gave victim
something to eat and the victim died immediately on the ingestion
of that food with symptoms of poisoning and poison, in fact, was
found in the viscera, the requirement of proving that the accused
 72

was possessed of the poison would follow from the circumstance

that the accused gave the victim something to eat and need not
be separately proved. "

125] In this authority, one decided case having identical facts was
quoted with approval that and holding that :
"proof and the fact of possession of poison was rendered
unnecessary, because the victim had died soon after eating
Pedhas given by the accused in that case, and he had not
partaken any other food likely to contain poison."

126] In the present case, therefore, from the mere fact that prosecution
has not adduced sufficient evidence to prove that accused Aditi was in
possession of the poison, her possession of poison can be proved by the
circumstances showing that after consuming 'Prasad' given by her, Udit has
not eaten anything else and he has started suffering from vomiting within 5-
6 hours, as does happen, in the case of Arsenic. This circumstance is
sufficiently proved on record. Though the submission is advanced that
the prosecution has failed to show from where Aditi has procured or got in
possession of the Arsenic; conversely I.O. has admitted that though police
staff was sent along with photographs of accused to Delhi, Gurgaon and
area of Wakad at Chinchwad, to know whether they had purchased
Arsenic, but no evidence could be elicited on this point and hence the
possession of Arsenic by Aditi being not proved, especially in view of
lacuna in the evidence relating to seizure of purse and packets, in my
opinion the other circumstances in the case being so strong, they lead to no
other inference , as held in this authority, but to hold as proved that the
death of Udit took place on account of consumption of 'Prasad' given by
Aditi to him in their meeting at McDonald's hotel. These circumstances are,
 73

127] As per the admitted facts on record, which are proved through the
evidence of all the witnesses and not challenged also, Udit has taken only
lunch in the afternoon and Vada-pav in the evening, apart from this 'Prasad'
given by Aditi and a sip of Whisky in his flat, after returning from meeting her.
As regards lunch in the afternoon and Vada-pav in the evening, as he has
taken that from a public place, either his hostel or in a mess, hotel etc.,
there is no possibility of his alone suffering from poisoning on account of
consumption of the same. More over lunch was taken in the afternoon ,
whereas Vada-pav in the evening and he has started suffering from vomiting
at about 12.00 O'clock in the night. As per evidence of P.W. 15- Chemical
Analyst Gujar, in case of acute Arsenic poisoning, its action starts in the
body within half to one hour. His evidence also goes to show that
considering the presence of quantity of Arsenic in the stomach wash and
viscera, it can be said that Udit was administered a fatal dose of Arsenic.
Therefore, there is no question of Udit consuming Arsenic either in Vada-pav
or in lunch, as he has not started suffering from these symptoms within half
to one hour from consuming the same. He has started suffering from these
symptoms only after returning at about 12 O'clock and at that time the only
thing which he has consumed was 'Prasad' given by Aditi. So far as the sip
of alcohol which he has consumed is concerned, the C.A. report Exh.19
of the alcohol bottle which was also seized by police under panchanama,
goes to show that no Arsenic was detected in the same. Therefore, there was
no question of his consuming Arsenic in Whisky. Hence, the only food article
which he has eaten from evening till he started suffering from the symptoms
was that of the 'Prasad' given by Aditi. There is absolutely no iota of evidence
that he has eaten any other thing during this crucial period. Therefore, it
leads to inescapable conclusion that Arsenic went into stomach of Udit
only from 'Prasad' given by Aditi. This fact is conclusively proved by
 74

prosecution and from this sole fact also, excluding all other evidence on
record, it can be unerringly held that, Aditi was the author of the crime.

Defence - Plea of Suicide :

128] Submission of learned counsel for accused is that there is one
more possibility which is suggested by Aditi in her statement u/s 313 of
Cr.P.C. that of Udit committing suicide on account of being frustrated in his
love affair. He has urged that when the only witnesses to the incident were
deceased and Aditi and there is no other direct evidence, the statement
given by Aditi about the incident is required to be given importance. To
support his submission, he has relied on the authorities of Hate Singh Vs.
State of Madhya Bharat, AIR 1953 Supreme Court 468; Amarsing Vs.
State, 1956 MB 107; Narsiah and others AIR 1959 313 and Ajay
Singh Vs. Stae of Maharashtra, III [ 2007] CCR 112, wherein it is held that,
“statements of accused recorded under section 313 of Cr.P.C. are
among most important matters to be considered at the trial.
They have to be received in evidence and treated as evidence
and be duly considered at the trial. They should be given as
much weight as the matters which tell against him. Because
though presumption of the innocence lies in his favour even then
he is not in a position to prove the truth of the story, his version
should be accepted if it is reasonable and accords with
probabilities unless the prosecution can prove beyond
reasonable doubt that it is false."

129] In the present case he has urged that the explanation given by
Aditi in her detail statement as to what happened at the time of her
meeting in McDonald's hotel and what was the reason for her meeting with
Udit, is not only reasonable, but it also accords with probabilities of the
case. He has urged that Udit was deeply in love with Aditi . Their marriage
was also settled and as admitted by Udit's mother, Aditi was also observing
 75

fast of Kadva Choudh for Udit. Naturally, when Aditi left him, Udit must have
been quite disturbed mentally and also frustrated. As admitted by his father,
Aditi has ditched Udit, as a result of which their marriage was broken and as
both the families were known and respectable families in Jammu, it is but
natural that on account of breaking that relationship , there was some
dishonour brought to the family name. The evidence on record according to
him also shows that Udit was a sensitive person. As admitted by P.W.3-
Megha in her evidence, she had seen cigarette burns on his arm and she
had asked him what was the cause of those burns, which shows that he was
a very emotional and sensitive person, though she has denied suggestion
that Udit has told her that whenever he was angry with some one, he used
to burn himself with cigarette, even in her statement recorded by police,
Udit's mother Ravikiran has stated that as Udit's love affair with Aditi was
broken he was under stress. Said portion in her statement is denied by her,
but it is proved through the evidence of I.O. Learned counsel for accused
has also submitted that Udit's mother has admitted the fact that she has
immediately called upon Udit , not to meet Aditi , when from Udit's phone,
she came to know that Aditi was in Pune and has called Udit to meet her.
Moreover the repeated phone calls made by her to Udit clearly reflect that
she was worried about Udit's mental condition on his meeting Aditi. The
statement of Aditi also goes to show that when she told Udit that she has got
secretly married with Pravin and now she intends official marriage, Udit was
extremely angry with her and appeared to be very much upset. He told her
that, " the whole Jammu knows that you were to marry me, now they will
know that you have ditched me. You have spoiled my life and lowered the
reputation of my family."

130] As per statement of Aditi, Udit was totally upset and therefore
 76

none of them ate anything , though McDonald hotel was a usual joint for
them earlier. They came out. Udit then lighted cigarette, had a couple of
puff and saying as above again, he pressed his burning cigarette on his left
hand. She pushed aside the cigarette, but he left the place in rage, saying
that "you have completely ditched me. Life is no more dear to me and now
you will see what I will do to me now." As per her statement, she did not
take his words seriously, however after coming back to the Lodge, she told
Pravin as to what happened and started crying. Pravin consoled her. On the
next day in the afternoon, she rang up Udit to pacify him, as he was very
much upset on earlier evening. As per her version she has decided to meet
Udit on that day as she felt that as she had already come to Pune, it would
be advisable to meet and appraise him of her marriage with Pravin in the
temple and the intending official marriage and to say sorry to Udit. However,
as she was not having Udit's cell number, she thought that she could get
his number from his home at Jammu. But she felt embarrassed to talk with
his parents, since she had broken her relationship with Udit, therefore, she
requested Amit, a student from the college to phone at Udit's home in
Jammu and get his mobile number.

131] According to learned counsel for accused , this version of the

incident, as given by Aditi is equally and more probable than the case put
up by prosecution. Especially in the light of the fact that in the case papers
also there is mention of the cigarrete burn marks and also considering that
despite Udit's mother telling him not to go to meet Aditi, he went to meet
her . It is but natural that after coming to know that Aditi has got married
with Pravin, his being totally disappointed, agitated and frustrated, at the
same time being angry with Aditi also. All his hopes of Aditi returning to him
some day in future , were vanished , when he came to know about her
 77

marriage with Pravin. Thus according to learned counsel for accused the
possibility of Udit's committing suicide cannot be ruled out in this case. No
investigation is carried out by police to explore this possibility. All the efforts
were made to know whether any of the accused has purchased Arsenic. But
no effort was made to find out whether Udit has purchased such Arsenic,
though there are shops in Dange chowk which is at the distance of half to
one K.M. from the flat where Udit was residing.

132] According to him, therefore, when this possibility of Udit's

consuming Arsenic after meeting with Aditi, being very much present, the
case of prosecution that Udit has homicidal death, cannot be held as
conclusively proved. He has urged that burden lying on the accused is
quite light. Accused has merely to show that from the evidence available
on record, two views are possible and the view shown by the accused is
also equally probable. By placing reliance on the authority of Sharad
Sarada he has submited that when two possibilities are clearly open, one
that of a suicide and the other that of a murder and when both are equally
probable, it has to be held that prosecution case stands disproved.. He has
strenuously urged that when the case stands on circumstantial evidence, the
prosecution has to prove that the act of the accused cannot be explained on
any other hypothesis except the guilt of the accused and in all probability
the accused alone and non else has committed the said act.

133] In the present case , as per his submission as there is fair

possibility of Udit committing suicide which possibility cannot be excluded
or eliminated and when two reasonable views are possible about the same
incident, there is no reason for not extending the benefit of doubt to the
accused. He has also relied on the well established rule of criminal justice
 78

that in case of a serious offence, the standard of proof also must be equally
high. The greater the crime, the stronger is the proof required for conviction.
In his humble opinion, the prosecution has not succeeded in adducing that
higher standard of proof considering the serious nature of the offence
inviting capital punishment or life imprisonment , in case the guilt is held to
be proved.

134] Now considering the possibility of suicide, in the first place there
is absolutely nothing on record to show that Udit was in any way a sensitive
or emotional person and on account of Aditi leaving him in favour of accused
No. 2 Pravin, he was in a depressed state of mind. Though all the
prosecution witnesses are put up suggestions to these effect, they have
flatly denied the same. Conversely their evidence shows that Udit was
leading quite a normal life of student. As a matter of fact, except for P.W. 3-
Megha, who was Aditi's friend also, other students like, Siddharth, Naresh,
Jagbir etc., were not even aware about the broken love relationship between
Aditi and Udit. It clearly indicates that Udit's condition was not such , of
being in a depressed state of mind, from which they could come to know
about the broken relationship between Aditi and Udit. Conversely the
evidence of Udit's parents go to show that Udit has studied regularly. His
attendance in the college was 98.6%. He was a brilliant student and he has
secured 75% marks in the First Semester of MBA. If on account of the broken
relationship he was dejected or disappointed , then it does not appear
probable that he would have secured this high score of marks. The
evidence of Director Pille also goes to show that Udit was working with
him on Project work.

135] Though a submission is advanced to the effect that Udit's parents

 79

were worried about his mental state on account of broken relationship and
his mother in her statement before the police has stated that Udit was
worried about Aditi, after she left him , it is but natural that after this long
standing love relationship between Udit and Aditi was broken, for some
period Udit might have suffered from the agony and therefore, his parents
might have been worried about him But there is nothing on record to show
that on account of this broken relationship Udit was in a totally frustrated
depressed or dejected state of mind and any suicidal thoughts entered in
to his mind.

136] It is pertinent to note that, it is not that Udit went to meet Aditi
immediately on her phone call so as to infer that he was eager to meet Aditi
and had some hopes of reunion. The mobile phone record Exhs. 65,66
goes to show that Aditi has made first phone call to Udit on 22/4/07 at about
19.19 hours, which was of the duration of 26 seconds. Immediately then
she has made another phone call at about 19.21 hours which was again of
219 seconds. Thereafter she has made third phone call at 19.34 hours,
which was of 61 seconds. Fifth phone call at 19.35 hours which was again of
61 seconds, sixth phone call at about 19.36 hours, which was of 301
seconds, then seventh phone call at 19.49 hours which was again of 80
seconds and the last phone call at 20.53 which was of 28 seconds . It shows
that Aditi has persuaded Udit to meet her by making repeated phone calls
from 19.18 hors to 20.53 hours. Therefore, it is clear that though Udit's
mother has told him not to meet her and he was also not eager to meet
her, nor having the hopes of reunion, he was constrained to meet her due
to her persistent phone calls. Some phone calls were of the duration of 219
and 301 seconds also which goes to negative the case of defence that as
Udit was having the hopes of reunion despite his mother requested him not
 80

to go , he went to meet her. Conversely this record goes to show that Aditi
was so keen to meet Udit that she persuaded him by making repeated
phone calls to him, to come there. No other inference but except of her
guilty intention can be gathered, from this conduct of Aditi.

137] As regards the submission that there is nothing on record to show

that Udit made phone call to his mother and asked her why she gave his cell
number to Aditi , the call record produced at Exh. 66 shows that Udit has
received phone call from his mother at 19.27 and 19.30 hours and again at
19.52 hours and 20.25 hours, which shows that some talk took place
between Udit and his mother. Otherwise Udit's mother would not have
come to know that the call received from 'Amit' was made at the instance of
Aditi. Hence she called Aditi's mother also requesting her to told Aditi not to
go to meet Udit. As per her evidence, Aditi's mother also assured her, but
subsequently told her that she could not contact Aditi. If Udit has not made
phone call to his mother, then there was no occasion for his mother to come
to know that the phone call which was made by Amit was at the instance of
Aditi. In view of the broken relationship between them, it was but natural for
Udit's mother to request him not to meet Aditi and also to request Aditi's
mother to tell Aditi not to meet Udit. From this conduct of Udit's mother it
cannot be said that as they were worried about Udit's mental condition, they
told him not to go. Naturally when they came to know that Udit has gone to
meet Aditi, they are bound to ascertain what happened and that appears to
be the reason why they made phone call to Udit at night. At that time, Udit
told them that he will discuss about it in the morning as he was having toilet
pressure and hence in the morning they again made phone call to him. As
at that time Udit's phone was not picked up, they assumed that he might
have gone to college as usual. If they were still worried about his condition,
 81

they would have rung up his friend also. Therefore, from the conduct of
Udit's parents or even from conduct of Udit also , it cannot be be said that
he was in a depressed state of mind, his parents were worried about him or
despite request from his mother he immediately went to meet Aditi . The
evidence on record clearly goes to prove that on account of Aditi's persistent
calling to him, he agreed to meet Aditi and went there.

138] It also cannot be accepted as probable that Udit had any hopes
of reunion with Aditi. It is pertinent to note that,their love relationship has
come to an end quite long back. As stated by Aditi in her statement, after
First Semester started, in June 2006, within 2 months, she came in to contact
with accused No. 2 Pravin and within a short span of time their love
relationship flowered. Both of them were going for outing with each other. As
stated by Pravin, they had even stayed in the White house Lodge during the
said period for a night. As Udit was studying in the same college, it must be
held that he was very much aware about their love relationship. As deposed
by his parents, about 15 days prior to Diwali itself, Udit has informed them
about his broken relationship. At the time of Diwali when he has visited his
parents in Jammu, at that time also there is nothing on record to show that
they found him under any mentally disturbed state or having any suicidal
tendencies. It is also matter of record that thereafter he has appeared for
his examination, passed in flying colours, he was totally occupied in his
studies and college and thereafter on April 22, i.e. after the lapse of about 5
months, since Aditi left, this incident has taken place.

139] It is thus apparent that Udit must have known about Aditi and
Pravin residing together as both of them left the college and hostel together.
Therefore, it was not a case of total mental shock for Udit when Aditi made
 82

disclosure about her secret marriage with Pavin. Udit was very much fully
aware about all these developments and he has accepted them in his stride.
His parents has have also accepted this broken relationship. Therefore,
there was no question of Udit being suddenly thrown in to a shock or
depressed state, on account of Aditi's disclosure and being faced with
consequences of dishonour to the family. Her disclosure was therefore,
neither sudden nor can be called as traumatic revelation for Udit for taking
the drastic step of suicide.

140] Subsequent condition of Udit also nowhere discloses that after

meeting Aditi he was thrown in totally depressed or frustrated state of
mind. Though P.W.3- Megha has stated that when Udit returned after
meeting Aditi, he appeared somewhat upset and at that time though she
asked him whether he wants to eat anything, he told her that he does not feel
like eating anything, Udit's becoming upset can be very much natural. After all
Aditi was his ex-beloved. However from that circumstance it cannot be
gathered that he was totally in dejected mood, entertaining any suicidal
tendencies or having decided to end his life.

141] Much reliance is placed on the cigarette burn marks on the left
hand of Udit which are found noted in his case papers by the Doctors. It is
urged that as stated by Aditi when she disclosed her marriage with Pravin,
Udit got angry, annoyed and disturbed so much that he pressed his
burning cigarette on his left hand. She pushed the said cigarette aside, but
the fact that he has burnt himself with cigarette shows that he was in totally
disturbed state of mind and also in rage. It is submitted that even Megha
has admitted that she has seen sometime back, burn marks on his hand and
she had asked him cause for the same. A suggestion was also put up to her
 83

that Udit has told her that when she has made inquiry with him, he has told
her that when he gets angry with himself,he has burnt himself. She has also
stated before police that Udit used to get angry immediately. No doubt, the
said portion in her statement and the suggestion to that effect is denied by her.
But the submission advanced on the basis of the same is that, Udit's nature
was short temper and sensitive and he was in the habit of burning
himself with cigarette whenever he was angry.

142] However as rightly submitted by leaned APP, this incident of

Megha asking Udit about the burns marks, has taken place in October-
November 2006. None of the witnesses has stated that after Udit returned
from McDonald's hotel, they found any recent burn marks on his hand. Such
suggestion is denied by all of them. Even the case papers do not show that
the burn marks found on his hand were recent one,or they were in the nature
of burn injuries. If it was so, there would have been mention to that effect. The
words used in the case papers are “ cigarette burn marks” and not “ cigarette
burn injuries”. Postmortem report also does not reveal the burn injuries.
Therefore, it cannot be accepted that Udit has in a rage of anger or
frustration caused cigarette burns to hand at the time of meeting with Aditi.

143] It is also significant to note that the various Doctors who were
attending Udit in Hospital, have nowhere mentioned in the case papers that
they found Udit in a mentally disturbed condition. It is a matter of record
that Udit was very much conscious and well oriented till 4.00 p.m. on the
next day, when P.W. 11- Director Pillee visited him. Even minor
observations about Udit are mentioned in the case papers. Therefore, if Udit
was in a disturbed state of mind or even at any time, expressed his desire
not to take the medical treatment, there would have been definitely mention
 84

to that effect in the case papers. There is not a single whisper to Doctor that
he wanted to die and hence any request to Doctor not give to medical
treatment. No suggestion is put up either to any of the witnesses like his
friends, who were attending him in the Hospital or to the Doctors that Udit
has expressed his intention not to take any medical treatment as he no more
wants to live and therefore, he has consumed Arsenic to end his life. When
Udit was definitely conscious and well oriented till 4.00 p.m. and surrounded
by all his friends and the Doctors, it does not appeal to reason that he will
keep quiet and will not tell that being disturbed and frustrated in his love life,
he has consumed poison and he no more wants to live. No such
suggestion is also put up to any of the witnesses. Conversely the evidence
on record shows that Udit was willingly undergoing all the medical treatment
and has urge to live.

144] As a matter of fact,when all these witnesses were making

repeated inquiries with him about the cause of his vomiting, it would have
been but natural for him to disclose the said cause i.e. consumption of
Arsenic if he has done so. At least for the purpose of getting proper
medical treatment, it was expected that he should disclose the same
immediately. One need not say that the urge to live is a natural
phenomenon. Even a person who tries to commit suicide, cling to the last
support, if it is available and given to him. As admittedly, such support,
assistance and medical treatment was offered to Udit and given to him, it
does not appear probable that he would not avail the same by disclosing the
real cause of his suffering. Conversely when Director Pille made repeated
inquiry with him in the Hospital in the afternoon of 24/4/06 , what he has
consumed and whether he has consumed any drugs, and further gave
assurance to him that if he has done so,he may feel free to disclose the
 85

same, at that time also, Udit has exclaimed , why he should consume the
drugs ! It clearly indicates that Udit has no reason either to consume the
drugs or to consume the poison. His love affair with Aditi has broken long
back and he was very much aware of Aditi falling in love with Pravin.
Therefore, now whether they had secretly married or to be officially
married, this revelation did not come to him as a shock.

145] Thus there is absolutely no possibility of Udit committing suicide.

In the case of Sharad Sarda on which much reliance is placed by learned

counsel for accused in this respect, the evidence on record was clinching to
show that deceased Manjushri Sarda was very much in a totally dejected ,
disturbed and frustrated state of mind, as her expectations from the
marriage were not fulfilled. She was also found to be a lady of a very
sensitive and emotional nature. The various letters to that effect were
produced on record showing that there was strong possibility of her
committing suicide out of sheer depression and frustration arising from an
emotional upsurge and hence it was observed that when there are two
reasonable possible views, the possibility of her committing suicide, which
was spelt out from the various letters, disclosing her mental state, being not
excluded or eliminated, the case of prosecution of her being put to
homicidal death, cannot be accepted.

146] As against it, in the present case, there is no such evidence

brought on record to show that Udit was impulsive or over sensitive or in a
frustrated or depressed state of mind, either since before or after meeting
with Aditi. Therefore, possibility of Udit's committing suicide is not at all a
probable or reasonable view of the matter.
 86

147] Otherwise also, even if it is accepted that Udit has any reason to
commit suicide there is no evidence proving on record even as a probability
to show that Udit has any opportunity or time to procure Arsenic,within such
a short span after the meeting. As per admitted facts on record, he went to
meet Aditi at about 9.00 p.m., and returned to Megh's flat at about 11.30
p.m. There is no evidence proving that after meeting Aditi , Udit went to
some other place. Therefore, it is but natural that at 10.00 p.m. or thereafter
the shops in the surrounding area must have been closed. Arsenic poison is
not a thing which is easily available. Even in the medical shops which may
be open , unless the prescription is there,it is not sold. Though it is brought
on record that there are some shops in Dange chowk, which is near the flat
of Udit, no evidence is brought on record to show that those shops were
open, even after 10.00 p.m. It cannot be disputed that if Udit has taken any
decision of committing suicide, it must be only after his meeting with Aditi
and by that time all the shops, in the normal course of events, being
closed, the probability of Udit getting Arsenic at such a short notice and at
such an odd hours, is not acceptable.

148] The choice of Arsenic poison also does not go well with the act of
suicide just as it suits the act of homicidal. Like cynide , Arsenic does not
cause instant death. It gives sufficient opportunity to the culprit to leave
unnoticed. Giving of Arsenic in 'Prasad' which normally no-one refuses and
no-one suspect is an ingenious act of intelligent minds like the accused.

149] As a matter of fact, if Udit wanted to end his life, several

probabilities were open to him like, even committing suicide on the rail track,
or from a high building. At these odd hours he would not have gone in
search of Arsenic and after consuming the same returned to his friend
 87

Megha and thereafter to his flat and talked with them normally. Only because
he started suffering from vomiting and loose motion , he told his parents on
phone that he will talk with them in the morning about his meeting with Aditi .
After returning to the flat, he behaved normally, he changed the clothes, then
as he was feeling uneasy, he took the sip of Whisky. Therefore, this
conduct of Udit is also not in consonance with the possibility of his
consuming Arsenic poison to end his life.

150] Thus, looked at it from any angle, the possibility of Udit

committing suicide cannot be accepted as probable or reasonable one. Only
when the two views about the incident,one alleged by prosecution and the
other by accused, are equally probable and reasonable one, the benefit of
doubt is required to be extended to the accused, otherwise not. In the
present case, the view suggested by the accused of Udit committing suicide
cannot be called as reasonable or probable one. Hence though it is true that
the benefit of doubt is required to be extended to the accused,such doubt
has to be a reasonable doubt and not any and every doubt. As observed by
Apex Court in the case of Sucha Singh Vs. State of Punjab, 2003 Cri L J
3876 :

“Exaggerated devotion to the rule of benefit of doubt must not

nurture fanciful doubts or lingering suspicion and thereby destroy
social defence. Justice cannot be made sterile on the plea that it
is better to let hundred guilty escape than punish an innocent.
Letting guilty escape is not doing justice according to law. A reasonable
doubt is not an imaginary, trivial or merely possible doubt, but a
fair doubt based upon reason and common sense. It must grow
out of the evidence in the case. If a case is proved perfectly, it is
argued that it is artificial. If a case has some flaws inevitable
because human beings are prone to err, it is argued that it is too
imperfect. One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from being punished, many
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guilty persons must be allowed to escape. Proof beyond reasonable

doubt is guideline, not a fetish. Vague hunches cannot take place
of judicial evaluation.” ----

“Doubts would be called reasonable if they are free, from a

zest for abstract speculation. Law cannot afford any favourite
other than truth. “A Judge does not preside over a criminal trial
merely to see that no innocent man is punished. “

“A Judge also presides to see that a guilty man, does not

escape. Both are public duties. ”

151] The point to be stressed is that the truth when presented through
human perception is bound to suffer some infirmity. That does not mean
that merely because there are some infirmities and lacuna in prosecution
case, accused should be extended benefit of doubt. The pristine principle of
benefit of doubt can be invoked only when there is a reasonable doubt,
regarding the guilt of the accused. That doubt is reasonable which
conscientious judicial mind , entertains on a conspectus of the entire
evidence that the accused might not have committed the offence, which
doubt affords benefit to the accused at the end of the criminal trial. Benefit
of doubt is not a legal dosage to be administered at every segment of the
evidence but an advantage to be afforded to the accused at the final end
after consideration of the entire evidence, if the Judge conscientiously and
reasonably entertains doubt regarding the guilt of the accused.

152] It is normally impossible in any criminal trial to prove all the

elements with a scientific precision , as observed by Apex Court in the
case of State of Haryana Vs. Bhagirath and others, [ 1999 ] SCC 96.

153] In the present case, therefore, when the circumstantial

 89

evidence brought on record by prosecution on all the aspects of the case is

of a clinching nature, whereas no reasonable or probable view of Udit
committing suicide can be taken from evidence brought on record , it has to
be held that the death of Udit was homicidal one and it was on account
Arsenic poison administered to him by Aditi in 'Prasad' when he she called
him for meeting at McDonald's hotel. Therefore, so far as Aditi is concerned
her guilt is required to be held as proved beyond reasonable doubt.

Criminal Conspiracy – guilt of accused No. 2 Pravin.

154] This brings me to the aspect of criminal conspiracy. As per leaned

APP, as the conspiracy is hatched in secrecy , and as the accused always
takes another in to confidence in secrecy and his preparations for the
commission of offence are also made in secrecy, the direct evidence of the
criminal conspiracy could hardly be available , hence the court has to take
help from the circumstantial evidence. In the present case, according to her,
there is more than sufficient circumstantial evidence on record proving the
said conspiracy. After her relations with Udit were broken, Aditi has left
along with Pravin, they had stayed together and got even secretly married
and it is proved from prosecution case that Pravin has given understanding
and threatening to Udit not to come in the way of his relationship. Therefore,
Pravin was very much having the motive to eliminate Udit and the motive
always plays a significant role in case of circumstantial evidence. Secondly,
she has submitted that the evidence on record also proves that both, Aditi
and Pravin had come to Pune together. No evidence is brought on record to
show that Pravin had any official work at Pune. They had registered in the
Lodge in fictitious name. It can definitely be held that the phone call made to
Udit's mother in the name of Amit to get cell number of Udit for Aditi to call
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him was made by Pravin, and lastly both of them have left together. If
these circumstances are read together, then according to her, the offence of
criminal conspiracy can definitely be inferred and proved. It is submitted by
her that in the case of offence of criminal conspiracy , each and every
criminal act need not be committed by each and every accused. As the law
relating to criminal conspiracy punishable u/s 120-B of IPC and section
10 of Evidence Act have introduced the concept of agency in criminal law,
when men enter in to an agreement for an unlawful end, they become
Ad-hoc agents for one another and have made partnership in crime'. To
substantiate her legal submissions, learned APP has relied on the authority
of the Apex Court in the case of State Vs. Navjot Sandhu, 2005 CRI L J
3950, wherein the law relating to the criminal conspiracy as defined under
section 120-A and Section 10 of Evidence Act is elaborately discussed, the
crux of which is laid down in the case of Kehar singh Vs. State, 1988
[3] SCC 609 to the effect that,
“From an analysis of the section, it will be seen that section 10
will come into play only when the court is satisfied that there is
reasonable ground to believe that two or more persons have
conspired together to commit an offence. There should be, in
other words, a prima faice evidence that the person was a party to the
conspiracy before his acts can be used against his co-
conspirator. Once such prima faice evidence exists, anything
said, done or written by one of the conspirators in reference to the
common intention, after the said intention was first entertained, is
relevant against the others. It is relevant not only for the purpose
of proving the existence of conspiracy, but also for proving that the
other person was a party to it.”

155] In the instant case, leaned APP has submitted that as there is
prima faice evidence affording reasonable ground for the court to hold
that both accused Nos. 1 and 2 were members of a conspiracy and both of
them have acted in reference of their common intention , the charge of
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criminal conspiracy is required to be held as proved against them. Accused

No. 2 -Pravin is also therefore, equally liable for the offence of murder of
Udit , though he has not played the actual overt act of administering
poison to Udit.

156] Per contra, learned counsel for accused Shri. Mohite has
submitted that there is absolutely no iota of evidence showing that any
conspiracy as such , was hatched between accused Nos. 1 and 2 and in
pursuance of the same, Aditi has allegedly administered poison to Udit.
From the mere fact that accused Nos. 1 and 2 were in love with each other
and they had got secretly married, inference that accused No. 2 has entered
in to an agreement with Aditi for eliminating Udit, cannot be drawn. The
evidence as regards the motive is also not strong. His accompanying Aditi or
being with her in such situation, alone is not sufficient. Moreover, there is
also no evidence to prove that the phone call made to Udit's mother in the
name of Amit was positively and conclusively made by Pravin. Hence
according to him, merely on some slender threads of suspicion, the charge
of conspiracy cannot be said to be proved, especially when accused No. 2 is
given a clean chit even in Polygraph Test and therefore, BEOS Test was
not at all conducted on him. No deception was noticed from the answers
given by him to P.W. 29- Sunny, therefore, it was not thought necessary to
subject him to BEOS Test. Thus, according to learned counsel for accused,
prosecution is standing on very slippery grounds, so far as accused No. 2 is
concerned.

Legal position :
157] The gist of the offence of criminal conspiracy is an agreement to
break the law. It is not an ingredient of the offence that all the parties
 92

should agree to do a single illegal act. The offence may comprise the
commission of number of acts. As a matter of fact, the gist of the offence
of conspiracy lies, not in committing the act, or effecting the purpose for
which the conspiracy is formed. But in the forming of the scheme or
agreement between the parties. There must be unity of object or purpose,
but there may be plurality of means, sometimes even unknown to one
another amongst the conspirators. Hence as per the Law , when in
pursuance of the agreement the conspirators commit offences individually or
adopt illegal means to do a legal act which has a nexus to the object of
conspiracy, all of them will be liable for such offences even if some of them
have not actively participated in the commission of those offences. As
observed by the Apex Court in the case of State Vs. Navjot Sandhu, 2005
CRI L.M. 3950, the conspiracies are committed in secrecy. It is seldom an
open affair. Therefore, usually both the existence of the conspiracy and its
objects have to be inferred from the circumstances and the conduct of the
accused. As further held by Apex Court in the case of Noor Mohammad
Yusuf MominVs. State of Maharashtra, AIR 1971 Supreme Court 885, in
most cases proof of conspiracy is largely inferential though the inference
must be founded on solid facts. Surrounding circumstances and antecedent
and subsequent conduct, among other factors, constitute relevant material.
As there is always difficulty in tracing the precise contribution of each
member of the conspiracy the cumulative effect of the proved circumstance
has to be taken in to account in determining the guilt of the accused rather
than adopting an isolated approach to each of the circumstances.

Facts of the case :

158] In the present case, just to reiterate the circumstances proved
on record, Aditi left Udit in favour of Pravin and as per evidence of Udit's
 93

mother, Pravin had told Udit not to come in their love relationship. Then on
22/4/07 both , Aditi and Pravin came to Pune. Pravin himself has not stated
in his statement, Exh. 147, that he has come to Pune for his office work. As
stated above, no documentary or corroborating evidence is produced on
record to that effect. No satisfactory explanation is offered for staying in the
White house Lodge in the vicinity of the college, if he has office work. No
reasonable explanation is offered for registering in fictitious name. When
already they were secretly married and staying together openly in Delhi ,
there was no reason for him to stay in White house Lodge that too, under
fictitious name. The phone call made in the name of Amit to Udit's mother
to obtain Udit's cell and then both of them leaving together even without
achieving the purpose for which they had allegedly come to Pune, that of
collecting the refund of fees ----- all these circumstances especially the very
conduct , motive on the part of Pravin, is more than sufficient to infer the
agreement between the parties to do away Udit, so that they can live their
own happy life. On probability factor also, it does not appeal to reason that
Aditi will do all these things on her own or without participation of Pravin.
Therefore, the inference of conspiracy has to be drawn through these
proved facts on record when they are taken cumulatively. As regards
submission that in the Polygraph Test, no deception was noticed in the
answers given by Pravin, the results of the said Test, are merely inconclusive
and they do not give clean chit to Pravin. Hence charge u/s 302 r/w 120 ob
IPC is also required to be held as proved.
159] To sum up, therefore I have no hesitation in coming to conclusion
that prosecution has succeeded in proving beyond reasonable doubt, the guilt
of both accused Nos. 1 and 2 for the offence punishable u/s 302 and 120-B
of I.P.C.
 94

160] At this stage I stop my dictation in order to hear the accused on

the question of sentence.

161] Both the accused are present before me along with their learned
counsel Shri. Vijayrao Mohite and learned APP Smt. Nilima Vartak. They are
informed about the decision of case. Learned APP submits that she require
some time to make submission on the question of sentence and hence the
matter is adjourned till tomorrow for hearing the accused on the question of
sentence.

162] As accused No. 2 Pravin is on bail, considering the fact that I have
already held him guilty , I take him in custody and sent him to Jail to be
produced before me tomorrow, for hearing on the question of sentence.

Pune. [Dr. Smt.S.S. Phansalkar-Joshi.]

Date : 11/6/2008. Sessions Judge, 5, Pune.

163] On the question of sentence both the accused Nos. 1 and 2

have submitted that they have not committed any crime and therefore, they
do not want to make any submission on the quantum of sentence.

164] Learned APP Smt. Vartak has submitted that the object of
punishment is not only deterrence but also to set some example, therefore,
the examplenary punishment is required to be awarded in the present
case,considering that in this case both the accused are young persons, and
hence they were supposed to keep an ideal before the society by their own
lives but they have used their youth and intelligence for some diabolical
purpose of committing murder and that too, of the ex-beloved of Aditi in
 95

whose life she was the only girl. According learned APP the loss suffered
by Udit's parents, brothers, friends is irreparable. At the same time the
society has also suffered on account of these young persons in the society
committing such serious offence, thereby creating a dent in social and moral
fabric. Hence it is urged by learned APP that having regard to this growing
trend of criminality in youth, the severe punishment be imposed on both the
accused.

165] However as rightly submitted by learned counsel for accused Shri.

Mohite, in the case of murder only two sorts of punishment are laid down
u/s 302 of IPC, one is of a life imprisonment and other is of capital
punishment. As contemplated u/s 354[3] of Cr.P.C. , the special reasons are
required to be given if the severe punishment death is to be awarded . As
per the Law evolved after the year 1955, the general rule is to award life
imprisonment and death penalty is an exception. It is to be awarded only
in 'rarest of rare' case. In the historic decision of Bachan Singh Vs. State,
1980 CRI L J 636, the Supreme Court has laid down certain guidelines to be
applied to the facts of each individual case where the question of imposing
of death sentence arises : [1] the extreme penalty of death need not be
inflicted except in 'rarest of rare' case of extreme culpability; [ii] before opting
for the death penalty the circumstances of the 'offender' also require to be
taken in to consideration along with the circumstance of the 'crime', [iii] life
imprisonment is the rule and death sentence is an exception. In other words,
death sentence must be imposed only when life imprisonment appears to be
an altogether inadequate punishment having regard to the relevant
circumstances of the crime, and provided and only provided, the option to
impose sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the crime and all
 96

the relevant circumstances; and [iv] a balance-sheet of aggravating and

mitigating circumstances has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just balance has to
be struck between the aggravating and the mitigating circumstances before
the option is exercised. In order to apply these guidelines interalia , the
following questions may be asked and answered [a] Is there something
uncommon about the crime which renders sentence of imprisonment for life
inadequate and calls for a death sentence and [b] Are the circumstances of
the crime such that there is no alternative but to impose death sentence
even after according maximum weightage to the mitigating circumstances
which speak in favour of the offender ?

166] The point therefore, to be highlighted is that, only in 'rarest of rare'

cases the punishment of death is to be awarded, otherwise the normal rule
is to award Life Imprisonment. Learned counsel for accused has also relied
upon the authority of the Apex Court reported in Balwant Singh Vs. State
of Punjab, 1976 Supreme Court 230, wherein also the same principles were
reiterated that, death sentence is to be awarded only in 'rarest of rare' case,
where special reasons are made out , otherwise the normal rule is to grant
Life Imprisonment.

167] So far as the present case is concerned, it can hardly be said to

be falling in the 'rarest of rare' category or in the four corners of guidelines of
the Apex Court and therefore, the normal rule which is of Life Imprisonment
is to be applied in the present case also. None of the accused is in any way
harden criminal . The offence is also not committed for any monetary gain.
The young age of the accused cannot be an aggravating factor. The
intelligent mode of the commission of offence also cannot be called as an
 97

aggravating factor. The offence for which therefore, accused are convicted
cannot be said to be falling under 'rarest of rare' category so as to impose
capital punishment of death. Hence the order.

-Order-

The accused No. 1 Aditi Baldeo Sharma and accused No. 2-

Pravin Premswarup Khandelwal are hereby convicted as per Section 235(2)
of Cr.P.C. for the offence punishable u/s 302, 120-B of I.P.C. and sentenced
to suffer imprisonment for life and to pay a fine of Rs.10,000/-, each. In
default of payment of fine, they have to undergo further R.I. for 1 year.

Accused No 1- Aditi is entitled to set off for the period already

undergone in jail from 16/5/2007 till today and accused No. 2 Pravin is
entitled to set off from 16/5/07 to 12/7/07 and from 11/6/08 till the date.

Muddemal property be destroyed after the appeal period is over.

However on the request of learned counsel for accused Shri. Mohite, it is
ordered that, muddemal property article No. 3- purse and its contents, as it is
be kept in safe custody of Nazir, till decision of appeal.

Certified copy of this Judgment be given today itself, to both the

accused, free of cost.

Pune. [Dr. Smt.S.S. Phansalkar-Joshi.]

Date : 12/6/2008. Sessions Judge, 5, Pune.
 98

I affirm that the contents of this PDF file judgment are same word for word as per
original judgment.

Name of steno : Sou.Madhuri Godse.

Court name : Dr. Smt. S.S.Phansalkar-Joshi,
Sessions Judge, 5, Pune.
Date : 13/6/08.
*****