Sonali Mukherjee vs Union Of India

Sonali Mukherjee .... Appellant

Versus

Union of India .... Respondent With

CRIMINAL APPEAL NOS. 835-836 OF 2002

Dr. Battacharya .... Appellant

Versus

Sonali Mukherjee & Ors. .... Respondents

JUDGMENT

V.S. SIRPURKAR, J.

1. This judgment will govern Criminal Appeal No. 673 of 2001, filed by

one Sonali Mukherjee, original accused No. 1 (hereinafter called "A-1" for

short), who stood convicted by the Second Additional Sessions Judge, 2

Pondicherry and Madras High Court and Criminal Appeal Nos. 835-836 of

2002 filed by one Dr. Battacharya, the father of one Biswajit (deceased),

challenging the acquittal of one Assadid Poddar (respondent No. 2 in

Criminal Appeal Nos. 835-836 of 2002), original accused No. 2 (hereinafter

called "A-2" for short) by the Madras High Court, as also modification of the

conviction of Sonali Mukherjee (A-1) from Section 302 of the Indian Penal

Code (hereinafter referred to as "IPC" for short) to Section 304 Part (I) IPC

and imposing lesser sentence.

2. Both Sonali Mukherjee (A-1) and Assadid Poddar (A-2) were tried on

the allegation that both of them had developed illegal intimacy between

them, as a result of which, they (the accused persons) committed murder

of Biswajit (deceased), who was the husband of appellant Sonali

Mukherjee, at Pondicherry. Both of them were convicted by the Sessions

Judge, however, the appeal filed by Assadid Poddar (A-2) was allowed by

the Madras High Court and he was acquitted. The High Court also

acquitted Sonali Mukherjee of the offence under Section 302 but convicted

her for the offence under Section 304 Part I, IPC.

3. This prosecution arose out of a private complaint by PW-1 Dr.

Battacharya (appellant in Criminal Appeal Nos. 835-836 of 2002), the

father of the deceased. Initially, the police investigation concluded that the

death of the deceased BIswajit was a suicide. They filed a chargesheet 3

against Sonali Mukherjee (A-1) only for the offences punishable under

Section 324 and 309, IPC. Sonali Mukherjee (A-1) admitted her guilt and

was released under the Probation of Offenders Act. The complainant Dr.

Battacharya (PW-1) filed a criminal complaint, which ultimately resulted

into a trial by Sessions Judge for the two accused persons for the offence

punishable under Section 302.

4. The prosecution story as was unfolded by the complainant was that

deceased Biswajit met Sonali Mukherjee (A-1) in 1976, when he was about

17 years old. It was he, who introduced Sonali Mukherjee (A-1) to his

parents, however, the parents felt that he was too young for the marriage

nor he had completed his studies and, therefore, objected to the

association. Subsequently, Sonali Mukherjee (A-1) got married with one

Aloke Sarkar, however, apparently even after the marriage, the deceased

kept in touch with Sonali Mukherjee (A-1) and after about six months, he

expressed his desire to take care of Sonali Mukherjee (A-1), since her

husband was torturing her. The parents felt that the deceased should not

have any connection with a married woman and hence, he was sent to

USA to pursue his higher studies. However, after the deceased came

back from USA, he allegedly got married to Sonali Mukherjee (A-1). He

tried to take Sonali Mukherjee (A-1) to USA, however, could not succeed.

He discontinued his studies and returned to India in 1981 and thereafter, it 4

was decided that Sonali Mukherjee (A-1) and the deceased should live in

Pondicherry, since his grandmother was living in Aurobindo Ashram at

Pondicherry. They, therefore, went to Pondicherry and started their life

together in 1982. In September, 1983, they again tried to go back to USA,

however, they could not succeed. It was the complainant Dr. Battacharya

(PW-1), who started a shop in Pondicherry for Bengali Sarees and it was

only in order to establish the deceased. The business was doing well,

however, the deceased went thrice to Calcutta between January, 1984 to

May, 1984, leaving Sonali Mukherjee (A-1) alone in Pondicherry. The last

occasion when deceased went to Calcutta was on 1.5.1984 and he

returned to Pondicherry only on 15.5.1984. Before three or four days of

his arrival to Pondicherry, the parents of deceased got a phone call from

Sonali Mukherjee (A-1), complaining that deceased was visiting the

prostitutes in Calcutta. At that time itself, Sonali Mukherjee (A-1) allegedly

threatened Geeta Battacharya (PW-3, the mother of the deceased) on

phone that she would cut the deceased to pieces. This was reported to

the deceased by his mother (PW-3). The deceased, however, assured

that he would sort out the things and left Calcutta for Pondicherry on

14.5.1984. He had also sent a telegram to Assadid Poddar (A-2), who was

friend of Sonali Mukherjee (A-1), informing him of his proposed arrival on

15.5.1984 in the night by Coromandel Express and therein, he also

requested to tell Sonali Mukherjee (A-1) not to leave for Calcutta. 5

5. On 16.5.1984, early morning, Dr. Battacharya (PW-1) received a

phone call from his brother-in-law in Cochin, informing him that the

deceased was in a serious condition. Therefore, Dr. Battacharya (PW-1)

and Geeta Battacharya (PW-3), as also their other son took the evening

flight from Calcutta and reached Pondicherry. A car was sent for them

from Aurobindo Ashram and it was informed that their son Biswajit

(deceased) had already expired.

6. Here in Pondicherry, on receipt of the information from the hospital,

First Information Report (FIR) was registered by Muthialpet Police Station,

being FIR No. 103/1984 under Section 174 of the Code of Criminal

Procedure (hereinafter referred to as "Cr.P.C." for short). Dr. Battacharya

(PW-1) identified the dead body of his son (deceased). The inquest was

conducted on the dead body on 16.5.1984. The body was sent for post

mortem. Dr. Sahay (PW-4) conducted the autopsy and found on his

external examination:-

(i) copious amount of latery froth, white in colour, mixed with tinge of blood, present around the mouth and nostrils.

(ii) scalp hair, in and around anterior fontonella area, were found to be cut short compared to rest of the hairs and

(iii) eyes and mouth were closed.

6 The injuries, which were found in the post mortem were:-

(i) seven burn marks round in shape, each of 0.5 c.m. in diameter on the lateral aspect of left upper arm, each at a distance varying from 3 to 7 cms. from each other.

The most marked one had caused subcutaneous haematoma of 1 c.m. diameter in six (including depth). Rest were skin deep only.

(ii) Left upper eye-lid was swollen and bluish in colour.

Conjunctive of both the eyes were congested.

(iii) Three linear scratches running along the length of upper limb situated in the middle of lateral aspect of left forearm. Each was a line's width, carrying in length from 3 to 6 cms. These were parallel to each other.

Each was situated at 1 c.m. distance from the closer one.

7. The viscera was sent by Dr. Sahay (PW-4), the Doctor conducting

autopsy, for chemical examination and it suggested the presence of

barbiturate and alcohol. The cause of death, according to Dr. Sahay (PW-

4), was due to Gardenal poisoning. Ultimately, the body was cremated on

17.5.1984 in the evening. Dr. Battacharya (PW-1) and his wife Geeta

Battacharya (PW-3) returned to Calcutta and thereafter, Subbash Dass

(PW-5), a servant of the deceased, also reached Calcutta after some days. 7

He narrated the events which led to the death of the deceased to Dr.

Battacharya (PW-1). It was through him that Dr. Battacharya (PW-1) came

to know that barbiturate tablets were consumed by the deceased, with the

knowledge of Sonali Mukherjee (A-1) and Assadid Poddar (A-2) and that

A-1 and A-2 had illicit relationship, which was objected to by the deceased.

As per the narration of Subbash Dass (PW-5), it came out that the events

which led to the death of the deceased started from the evening of

14.5.1984. On that day, after closing the shop, the said witness went to

the house of the deceased and he was informed by Sonali Mukherjee (A-1)

that they had to go to Madras on the next day. He was also told that if the

deceased does not arrive from Calcutta, then Sonali Mukherjee (A-1),

herself, would go to Calcutta, since the deceased was spending all his time

in the company of prostitutes. According to Subbash Dass (PW-5), he had

refused to go. However, on the next day, Sonali Mukherjee (A-1) insisted

on Subbash Dass (PW-5) to accompany her to Madras. Therefore,

Subbash Dass (PW-5), Sonali Mukherjee (A-1), Assadid Poddar (A-2) and

one Subir, reached Madras at 5.30 p.m. and went to the Railway Station.

There, Sonali Mukherjee (A-1) again told Subbash Dass (PW-5) that if the

deceased does not arrive by Coromandel Express, she would herself go to

Calcutta on the next morning. Coromandel Express arrived a little late and

the deceased did come out from the train. When he reached the gate of

the Station, Sonali Mukherjee (A-1) went to him and began to cry in 8

presence of Assadid Poddar (A-2) and others. A Police personnel

intervened, however, the deceased said that it was a domestic matter and

they returned to the hotel.

8. Then, Assadid Poddar (A-2) engaged a taxi at the instance of the

deceased and all of them started for Pondicherry. Sonali Mukherjee (A-1) ,

the deceased and Assadid Poddar (A-2) sat in the rear seat, while

Subbash Dass (PW-5) sat in the front with the driver. On the way,

Subbash Dass (PW-5) heard a cry of pain and he turned back only to find

Sonali Mukherjee (A-1) burning the left arm of deceased with the lighted

cigarette end. When Subbash Dass (PW-5) tried to stop it, Sonali

Mukherjee (A-1) asked him not to look behind and just sit in the front.

Ultimately, they reached Pondicherry, released the taxi and entered the

house. Sonali Mukherjee (A-1) and the deceased went to the bedroom,

while Assadid Poddar (A-2) and Subbash Dass (PW-5) remained outside.

Subbash Dass (PW-5) could hear cries from inside the room and when he

was about to knock, Assadid Poddar (A-2) prevented him, saying that it

was a matter between husband and wife. He heard a loud cry and,

therefore, he kicked the door and the door opened. He entered the room

and found that the deceased was lying on the bed with face downwards.

There were pieces of cut hair on the bed alongwith a hair brush and a wire

and Sonali Mukherjee (A-1) was beating the deceased with a piece of 9

antenna wire. When Subbash Dass (PW-5) tried to stop, he was also

beaten by wire. Subbash Dass (PW-5) found swelling on the back of the

deceased. He also found the parts of mustaches and cropped pieces of

hair lying on the floor. After sometime, deceased got up to go to the

bathroom. He was staggering and hence, Subbash Dass (PW-5) tried to

help him, but deceased refused his help. Afterwards, Subbash Dass (PW-

5) heard a sound of crying from inside the bathroom. Since the deceased

did not come out for considerable time, Subbash Dass (PW-5) put his arm

on the top of the partition wall between the bathroom and lavatory and

found the deceased standing and crying. He found that door was not

bolted but simply closed and, therefore, he opened the door and brought

the deceased to his bedroom, when he found Sonali Mukherjee (A-1) and

Assadid Poddar (A-2) talking to each other. He made deceased lie on the

bed. The deceased asked for a piece of paper and wrote down two lines

in English, which could not be understood by Subbash Dass (PW-5).

There was a date written on the top, being 16.5.1984. Subbash Dass

(PW-5) asked the deceased whether he should fetch a Doctor. Deceased

refused, however, Subbash Dass (PW-5) had fetched a Doctor. Assadid

Poddar (A-2) came from behind and said that there was no need to call a

Doctor.

10

9. When Subbash Dass (PW-5) ultimately returned, he found A-1 and

A-2 in the room and the deceased was lying in an unconscious state and

some white things like pieces of white tablets were coming out of his

mouth. Subbash Dass (PW-5) found a phial. He showed it to Assadid

Poddar (A-2), who said that it was poison. Therefore, some salt water was

given by Subbash Dass (PW-5) to the deceased. The deceased vomited

some small broken and whole pieces of tablets. Subbash Dass (PW-5)

insisted on calling a Doctor, hence, Assadid Poddar (A-2) went to the

house of Dr. Datta. Assadid Poddar (A-2) had gone to the Doctor with

phial, while Subbash Dass (PW-5) went in search of father and mother of

Assadid Poddar (A-2). Doctor also said that it was a poison and asked

Assadid Poddar (A-2) to shift the deceased to JIPMER Hospital. They

went to the Hospital together. The Senior Doctor, who came, pronounced

the deceased as `dead'. Hence, a medical officer lodged an FIR D-47 at

3.30 hrs., reporting the death that the deceased had swallowed about 100

tablets. It was thereafter that the dead body was sent to mortuary. Then

Sonali Mukherjee (A-1), Assadid Poddar (A-2) and Subbash Dass (PW-5)

returned back. When they returned home, Sonali Mukherjee (A-1) and

Assadid Poddar (A-2) asked the maid servant to clean the room. When

father of Sonali Mukherjee (A-1) arrived, Subbash Dass (PW-5) began to

explain everything and he was told that he should not tell anything to the

police. Then on 20.5.1984, the elder brother of Sonali Mukherjee (A-1) 11

arrived and again Subbash Dass (PW-5) was tutored that he should not

say about what had happened. He was kept under lock by the family of

Sonali Mukherjee (A-1) and was threatened by the brother of Sonali

Mukherjee (A-1) that he would be beaten, if he tried to escape, however,

he managed to run away and reached the police station. On the same

day, he reached Madras and boarded the Howrah Madras Mail and

reached Calcutta and met Dr. Battacharya and narrated the whole story

leading to the death of Biswajit.

10. In the meantime, on 21.5.1984, the provisional post mortem

certificate was sent by Dr. Sahay (PW-4), wherein it was stated that the

cause of death may be homicidal because of the injuries which were not

self-inflicted. The investigation at this stage was shifted to Ramalingam

(CW-1) and ultimately, the original chargesheet for offence under Section

174 Cr.P.C. was altered into Section 302 IPC. CW-1 then proceeded with

the investigation. A letter was sent by Dr. Battacharya (PW-1) to the

Senior Superintendent of Police on 26.5.1984, wondering if there was

trace of foul play. This letter is on record as Exhibit P-10. Again one letter

was written to CW-1, bringing to his knowledge, the information received

by Dr. Battacharya (PW-1) from Subbash Dass (PW-5). He raised a

genuine doubt as to whether the death was a suicidal or homicidal death.

The investigation was transferred to CBCID and was continued by S. 12

Shanmugasundaram (CW-3), the Inspector of Police, CID Branch,

Pondicherry.

11. On 30.5.1984, Subbash Dass (PW-5) was threatened at Calcutta by

the brother of Sonali Mukherjee (A-1) and, therefore, he was entrusted by

Dr. Battacharya (PW-1) to the care of one Sarogi. Subbash Dass (PW-5)

told him all that had happened at Pondicherry and also swore an affidavit,

which was ultimately marked as Exhibit P-9. The same was also

forwarded to S. Shanmugasundaram (CW-3), the Investigating Officer.

CW-3 found that the bottle, which contained the Gardenal tablets, was

purchased at Calcutta. He, therefore, went to Calcutta for further

investigation and after thorough investigation, CW-3 concluded that from

the material available, no offence under Section 302 IPC could be made

against the accused, however, the only charge that could be made was

under Section 306 IPC. However, he was of the opinion that Sonali

Mukherjee (A-1) should be prosecuted for offence under Section 324 IPC

for causing injuries to the deceased, as also under Section 309 IPC for

attempting to commit suicide. Accordingly, Sonali Mukherjee (A-1) was

chargesheeted. This was informed to Dr. Battacharya (PW-1). On

22.3.1985, final order came to be pronounced in aforementioned Calender

Case No. 4 of 1985, whereupon Sonali Mukherjee (A-1) pleaded guilty to

the charges and instead of convicting her, she was released under Section 13 4(1) of the Probation of Offenders Act on executing a bond for Rs.500/-.

When all this was known by Dr. Battacharya (PW-1), he filed a complaint

on 21.6.1985, in which he made all the aforementioned allegations.

12. After the complaint was filed before the Chief Judicial Magistrate

(CJM), Pondicherry on 21.6.1985, the CJM committed it to the Court of

Sessions Judge. The Second Additional Sessions Judge then ultimately

tried the Sessions Case No. 34 of 1986. In all, five witnesses were

examined on behalf of the prosecution, while four witnesses were

examined as Court witnesses. Number of documents were got proved like

Exhibit P-1 to P-24. The defence also led some evidence and on the basis

of all the evidence, the two accused came to be convicted by the Sessions

Judge for an offence punishable under Section 302 read with Section 34

IPC and were sentenced to undergo the life imprisonment. A fine of

Rs.100/- was also imposed upon, in default of which, they were to undergo

imprisonment of one more month.

13. As has been stated earlier, the appeal was filed before the Madras

High Court, wherein Assadid Poddar (A-2) came to be acquitted, while the

conviction in case of Sonali Mukherjee (A-1) was modified to one under

Section 304 (I) IPC and the sentence of life imprisonment under Section

302 IPC was set aside and lesser sentence of nine years' rigorous

imprisonment under Section 304 Part (I) IPC was awarded. While Sonali 14

Mukherjee (A-1) has challenged her conviction in Criminal Appeal No. 673

of 2001, the original complainant Dr. Battacharya, by filing two separate

appeals, has challenged the verdict of the High Court, converting the

conviction of Sonali Mukherjee (A-1) from the offence under Section 302 to

Section 304 Part (I), as also the total acquittal of Assadid Poddar (A-2). All

these appeals are now before us for consideration.

14. Facts can be more fanciful than fiction and that was the case in this

prosecution, as also in appeal. Here was a case, where according to the

prosecution, Biswajit (deceased), who was a teenager, got infatuated by

Sonali Mukherjee (A-1). So much so that his parents got worried, as in

those initial days of infatuation, he was neither a major nor had he

completed his education. He was, therefore, sent to USA, wherefrom he

came back and got married to Sonali Mukherjee (A-1). Sonali Mukherjee

(A-1) pleaded in her examination that she was married to the deceased

even when she had not obtained separation (probably meaning, divorce)

from her husband Aloke Sarkar, with whom she was already married.

There does not seem to be any serious dispute about the relations

between Sonali Mukherjee (A-1) and the deceased prior to her marriage,

but it is clear from the evidence of Dr. Battacharya (PW-1), as also Geeta

Battacharya (PW-3) that there was a love affair between Sonali Mukherjee

(A-1) and Biswajit (deceased) and the parents, i.e., Dr. Battacharya (PW-1) 15

and Geeta Battacharya (PW-3) had initially not approved of the same. It is

after her marriage that Sonali Mukherjee (A-1) and the deceased came to

Pondicherry after a brief stay at Bombay and Cochin. According to the

prosecution story, Sonali Mukherjee (A-1) developed illegal intimacy with

Assadid Poddar (A-2) and probably as a result of the same, committed

murder of Biswajit. Before proceeding, it would, therefore, be necessary to

examine as to whether Biswajit (deceased) died a homicidal death.

15. Biswajit (deceased) was brought to JIPMER Hospital and the

Doctors declared him "brought dead". We have already referred to the

internal and external injuries in the earlier part of this judgment, therefore,

we need not repeat them. Fact of the matter is that there were seven burn

marks on the left upper arm. Secondly, his left upper eye-lid was swollen

and bluish in colour and thirdly, there were three linear scratches alongwith

the length of upper limb of his left forearm. In the post mortem report, it is

suggested that the burn injuries could have been caused by cigarette like

object, while the second injury was likely to have been caused by a blunt

object and the last injury, i.e., three linear scratches, could have been

caused by a nail like object. In the final opinion given by the Doctor in the

post mortem examination, which was after the examination of viscera, it

was suggested that his viscera contained barbiturate, as also alcohol.

Evidence of Dr. Sibal, who was examined as Court Witness (CW) No. 4, 16

does not help the prosecution for the reason that he had refused to identify

the initials Dr. Shyam Mohan on Exhibit C-1, which was the first document

relating to Biswajit's death. Exhibit D-55 is the report by the Causality

Medical Officer and it was at 3.50 a.m. on 16.5.1984, allegedly signed by

Dr. Shyam Mohan, whose signatures were refused to be identified by Dr.

Sibal (CW-4). However, it seems to be established position that Biswajit

was declared dead at 3.50 a.m. on 16.5.1984. According to the opinion of

Dr. Sahay (PW-4), the death was caused as a result of ingestion of

barbiturate. He had deposed that viscera was sent for chemical

examination and as per the report Exhibit P-17, it showed the presence of

barbiturate and alcohol of 0.19 gram per cent. He also deposed that

barbiturate should have dissolved in alcohol and that the presence of

alcohol aggravates the action of barbiturate. A very important statement

has come in his evidence that:-

"Normally, one cannot distinguish between homicidal poisoning and suicidal poisoning."

In his remark, he had suggested that it might have been homicidal,

since there were injuries on the body of the deceased, which arose

suspicion. He admitted in his cross examination that from October, 1964,

for three years, he was not allowed to conduct post mortem examination,

as those were conducted by the Pathology Department. A very interesting 17

answer comes to the effect that because he was following the righteous

path, though there were no charges against him, he was not allowed to do

post mortem examination. He, however, admitted that though after initial

denial, he appeared before the Medical Board and he was asked by the

Board to take treatment in the Psychiatric Department. He further deposed

that he did not know whether the Board certified that he suffered from

Paranoid Schzopherenia. He was put a direct question that before he

conducted the post mortem, he was suffering from hallucination and

illusion, which he denied. He further denied that the description of the

injuries given by him was illusory and that Dr. Baruva had instructed him to

take special interest in this case. He, however, admitted that Dr. Baruva

told him the family history of the deceased. He was confronted with his

earlier statements made to the police that he took interest in this case,

which he denied. He, however, admitted that Dr. Baruva, who was a

student of Dr. Battacharya (PW-1), though had made a statement that he

(Dr. Sahay) had handed over the viscera to Dr. Bala Subramaniam, he

denied the fact, but admitted that he might have accompanied the staff. In

his further cross examination, he asserted that the injuries were anti-

mortem and gave the reason therefore, however, admitted that the quantity

of barbiturate was not mentioned, as it was not possible to mention the

quantity. He also asserted that it was not possible that before how many

hours of the post mortem, the poison had been consumed. He further 18

expressed his inability to fix the duration of injuries as the case was old

and he was not having the records. He was given a direct suggestion that

in order to oblige Dr. Baruva, he had mentioned in Exhibit P-22 that it was

a homicidal death. He was confronted with the original of Exhibit P-22 and

he admitted that the words "may be homicidal" were the additions made.

This was after he was made to say that he should be careful in insertions

and deletions in post mortem certificate. To the specific question that

minus these words, Exhibit P-22 would be different, his answer was that:-

"It is for you to decide."

One more contradiction was put to him to the following effect:-

"I mentioned as homicidal, it does not mean, it is a murder. It indicates that the injuries found on the body of Biswajit were not self-inflicted. In other words, the injuries were caused by other persons which is technically called as homicidal injuries."

Further statement made by him was also put to him, which is to the

effect:-

"It was said `may be homicidal', it means it may not be homicidal. In other words, it may be suicidal also. It is difficult to explain the difference between homicidal poisoning and suicidal poisoning."

He was then confronted with his following statements:-

"Even before getting the viscera report, it might be homicidal."

and

"In my final opinion, it may be the case of suicidal also." 19

All these statements were got proved by the defence in the

examination of the witness S. Shanmugasundaram (CW-3) who was

Superintendent of Police, South Pondicherry and at the relevant time, was

Inspector of police. He was the one, who recorded the statement of Dr.

Sahay (PW-4). All the aforementioned statements were got proved from

him.

16. The evidence of these two witnesses and more particularly, the

Doctor, who conducted the post mortem examination, puts us on guard. A

death by poisoning could be in three ways. Firstly, by accidental ingestion;

secondly, by suicidal ingestion; and thirdly, by homicidal ingestion. The

evidence of Dr. Sahay (PW-4) very clearly suggests that the Doctor was

not himself certain as to whether the death by poisoning was homicidal. In

his evidence, he specifically admitted that it was very difficult to

differentiate between suicidal poisoning and homicidal poisoning. We

must note that the Doctor has not given any specific reason to support his

deduction that the death might have been homicidal. On the other hand,

his evidence in the Court was riddled with contradictions, which

contradictions were got proved through the police officer, who recorded his

statement. They are very substantial contradictions. It was suggested

firstly that this Doctor was himself a mental patient. We of course, cannot

say as to whether at the time when he conducted the post mortem, he 20

continued to be a mental patient of Paranoid Schzopherenia, but he

himself admitted that he was asked by the Medical Board to take the

treatment for mental disease. Secondly, he appears to be extremely fickle

minded. His evidence does not create any confidence. He came as an

expert witness and he had no explanation as to why he had expressed that

it could be a suicidal poisoning. We do not give much importance to the

suggestion by the defence that here was a witness, who was asked by Dr.

Baruva to take interest in the matter. It will be too far-fetched to hold that it

was because of the intervention of Dr. Baruva that the witness took the so-

called interest in the post mortem. Further upon a basic fact as to whether

the poisoning was suicidal or homicidal, much better evidence was

expected from the prosecution. The witness PW-4 had said nothing in

support of his deduction that it was a homicidal poisoning.

17. We have seen the original post mortem report and we do find the

words "may be homicidal" to be inserted later on. We do not see any

reason why there had to be the insertion. The witness has not explained

also. This puts us on guard. His damaging statements made, which we

have quoted above, were got proved, wherein he had made some

suspicious and casual statements like though he had mentioned it as

homicidal poisoning, he did not mean that it was a murder. We have

deliberately quoted the proved contradictions, in which he had suggested 21

that in the absence of any such remark regarding the poisoning being

homicidal, the case could have been thrown in the dustbin. As per his

proved contradiction, the witness knew that Dr. Baruva was a student of

Dr. Battacharya (PW-1) and he had asked him to take interest in the case.

His further remark was extremely diabolical that the words "may be

homicidal" could mean may not be homicidal also. All this contradictory

version does not inspire any confidence. However, the fact of the matter is

that the death had taken place.

18. The prosecution has further led the evidence regarding the phial

which was lying in the room where Biswajit died. In that we have the

evidence of two witnesses, namely, Ramalingam (CW-1) and S.

Shanmugasundaram (CW-3). Initially it was Ramalingam (CW-1) who was

the Investigating Officer. In his evidence, S. Shanmugasundaram (CW-3)

who took over the investigation has revealed that the said Gardenal tablets

were purchased at Calcutta at Lot No. 185. It has also come in his

evidence that the said particular lot number was sold only at Calcutta. He

collected this information from one A.K.Dutta, the Sales Development

Officer in charge of May & Baker Company. From this, the prosecution

probably suggested that the tablets which were sold only in Calcutta, must

have been procured by the accused. We fail to see as to how such an

inference could be possible on the basis of this evidence. The tablets 22

could have been bought even by the deceased or by anybody else.

Unless it was specifically proved that the tablets were available only at that

place exclusively, no inference can be drawn that it was Sonali Mukherjee

(A-1) or Assadid Poddar (A-2), who procured the tablets. They were

ordinary sleeping pills, the overdose of which would have been fatal. The

pills, however, were not poison. Therefore, the procurement of the

sleeping pills, in our opinion, would lead nowhere. Therefore, the

circumstance that the Gardenal tablets were purchased from Calcutta,

does not help the prosecution.

19. On this backdrop, when we examine the prosecution case, it is

shrouded in confusion. It is not the case of the prosecution that the tablets

were accidentally taken. On the other hand, the prosecution specifically

contends or at least seems to contend that the tablets were not taken by

Biswajit accidentally. Now there remain only two possibilities, one, that the

tablets having been swallowed by Biswajit himself; and second, the

accused persons putting the tablets into the mouth of Biswajit

surreptitiously or under some pretext or forcibly. The exact number of

tablets swallowed by Biswajit has not been established by the prosecution.

But the number had to be substantial otherwise Biswajit would not have

died because of the swallowing of those tablets. Of course, it has come in

the evidence of the doctors that alcohol might have aggravated the effect 23

of barbiturate and the barbiturate was soluble in alcohol. It is nobody's

case and, more particularly, that of Subbash Dass (PW-5) that there was

any drinking activity after the accused persons and the deceased came

back from Madras. There does not appear to be any evidence on record

suggesting the availability of the alcohol in that room at the relevant time

and that the deceased was so inebriated that he had lost all his control and

could be made to do anything including swallowing of the tablets.

20. On the other hand, the evidence of Subbash Dass (PW-5) suggests

that Biswajit was crying and he was conscious in the sense that he was not

immobilized at that time. In this behalf when we examine the evidence of

Subbash Dass (PW-5), it comes out that Sonali Mukherjee (A-1) was alone

with Biswajit in the room after they returned from Madras, for quite some

time. The witness then suggests that he forced open the door of the room

and all the time Assadid Poddar (A-2) was constantly with him. The

witness further suggested that after he forced open the door, he found

Biswajit lying on the bed and thereafter he got up to go to the toilet. When

Subbash Dass (PW-5) tried to help staggering Biswajit, Biswajit refused

that help and went into the bathroom. S. Shanmugasundaram (CW-3)

further confirms that he saw from over the wall that Biswajit was crying

leaning against the wall. Therefore, it is not as if Biswajit was immobilized

so that the Sonali Mukherjee (A-1) or as the case may be Sonali 24

Mukherjee (A-1) and Assadid Poddar (A-2) would be able to put some

tablets into his mouth and make him swallow the same. The only two

other possibilities of the introduction of the tablets to Biswajit could be the

forcible opening of his mouth by the accused and putting the tablets into

his mouth and compel him to swallow the same or, secondly, Biswajit

himself taking the tablets. It must be noted here that when we see the

medical evidence and more particularly, the injuries described by

Dr. Sahay, there is no injury on the face of Biswajit. The injuries were on

the other parts of the body and they were extremely insignificant injuries.

At least the injuries nowhere suggest that his mouth was forced open and

then the tablets were put into his mouth compelling him to swallow the

same. That does not appear in the tenor of evidence of Subbash Dass

(PW-5). For that matter, if we accept the evidence of Subbash Dass (PW-

5) on the aspect as to what exactly happened on that night in that room,

then there would be no other view possible excepting to exonerate Assadid

Poddar (A-2) at least insofar as the introduction of the tablets to Biswajit is

concerned. The witness very clearly says that all the time till the door was

closed, Assadid Poddar (A-2) was outside and it was only Sonali

Mukherjee (A-1), who was with Biswajit. In our view, it must be impossible

for a lady like Sonali Mukherjee (A-1) to force open the mouth of Biswajit

and put the tablets into his mouth and make him swallow the same. That

indeed does not appear to be a possibility nor is that established by the 25

evidence of Subbash Dass (PW-5). If Biswajit himself swallowed the

tablets, may be on account of the bickering with Sonali Mukherjee (A-1) or

may be due to the wordily fights going on between Sonali Mukherjee (A-1)

and him, it cannot then be homicidal poisoning. It cannot be forgotten that

it has come in the evidence of Subbash Dass (PW-5) that he had seen

Biswajit leaning against the wall and weeping and contradiction was

proved on the part of Subbash Dass (PW-5) by the evidence of Inspector

Ramalingam (CW-1) (whom he called "Subhash Bhattacharya" for some

inexplicable reason) whereby PW-5 had stated before the Inspector to the

following effect:

"I did not tell the police Inspector Ramalingam of Muthialpet, Cirol that when I scaled the wall which separates the latrine from the bathroom, I found that Biswajit was slanting on the wall, holding a plastic mug in one hand and a plastic container in the other hand."

The witness Ramalingam in his evidence admitted in the following

words:

"Subhash Bhattacharya told me that he climbed over the wall and peeped through the opening to see inside the latrine and saw Biswajit slanting on the wall of the latrine holding a plastic mug in one hand and a small plastic container in his other hand."

21. This is a very material piece of evidence as Subhash Dass had

refused in his evidence that he had stated so in his statement. This 26

creates a great doubt as to how Biswajit swallowed the Gardenal tablets,

whether he swallowed the same on his own which would amount to his

attempt to commit suicide or whether the tablets were forcibly or

surreptitiously or accidentally put in his mouth by Sonali Mukherjee (A-1)

and Assadid Poddar (A-2) or anyone of them. There can be no dispute

that on the examination of the Viscera of Biswajit, alcohol mixed with

barbiturate was found. Therefore, he must have consumed the alcohol.

We do not have anything on record to support fully that it was Sonali

Mukherjee (A-1), who gave the alcohol to Biswajit or, for that matter, any

alcohol was available at all there in that room. On a very substantial issue,

therefore, a reasonable doubt is created about the administration of the

sleeping pills to Biswajit. Did he swallow the same on account of the

inebriation on his part or was he persuaded to swallow the same on

account of his having lost his power to reason on account of the alcohol or

were the sleeping tablets forced into his mouth? Unfortunately, the

evidence of Subbash Dass (PW-5) falls short to prove any of these

circumstances and the whole story then remains shrouded in mystery.

This witness was specifically asked about the condition of Biswajit when he

forced open the door. He asserted that in the following words:

"I am not sure when Biswajit left for the toilet after I entered the room. It may be 8 or 10 minutes. But I don't think it would be so much. But it would be 4 or 5 minutes. When Biswajit was leaving the room for the 27

bathroom, he went alone. He did not require anybody's help to go to the bathroom. But he was weeping, crying, when he was going. It is not correct to say that he was normal when he was going to the bathroom. He was swaying from side to side. He was holding on to things on his left hand side and he, then, entered the bathroom which was on his right hand side."

22. This suggests that even at that time, which was much after the

couple entered the room for the first time, that Biswajit was not only alive

but he was in a position even to refuse anybody's help to go to the

bathroom. If we read this evidence in the light of the contradiction which

was proved by Ramalingam (CW-1) then it at least creates a doubt that

Biswajit who carried a plastic container and mug to the bathroom might

have or could have swallowed the tablets inside the toilet room. In fact

another contradiction which was got proved is to the following effect:

"I did not tell Inspector Shanmugasundaram that during the period when I went into the bathroom, A-1 tried to commit suicide by hanging herself with a saree. I did not tell S. Shanmugasundaram and Inspector Ramalingam that Biswajit came out of the bathroom out of my request."

23. The Inspector S. Shanmugasundaram (CW-3), however, has

admitted that even Sonali Mukherjee (A-1) had tried to commit suicide and

she was treated by the doctors. These things put together make the

prosecution case extremely suspicious. Even this witness S. 28

Shanmugasundaram admitted in his evidence that Sonali Mukherjee (A-1)

had tried to commit suicide by taking Potassium Permanganate crystals. It

cannot be ignored that the Sonali Mukherjee (A-1) was tried on account of

that offence and was convicted and granted probation. If Sonali Mukherjee

(A-1) herself was in such perturbed mental state, could she then either

persuaded Biswajit to swallow 100 tablets or forcibly put 100 tablets into

Biswajit's mouth. If she had persuaded Biswajit to swallow 100 tablets,

there would undoubtedly be an offence under Section 306 IPC, however,

the fact remains that that circumstance is neither proved nor even alleged

as a prosecution case. Prosecution case is simply to the effect that Sonali

Mukherjee (A-1) and Assadid Poddar (A-2) have committed murder of

Biswajit. Considering the total lack of evidence on this aspect, it is very

difficult to come to a definite conclusion that Sonali Mukherjee (A-1)

persuaded Biswajit to swallow the tablets. We would, therefore, choose to

reject that possibility. The only other possibility left is that BIswajit was

forcibly made to swallow the tablets. We have already looked into the

medical evidence for that purpose and more particularly, the injuries on the

body of Biswajit (deceased). The injuries are not suggestive of forceful

administration. The injuries are of three types. Firstly, there are seven

burn marks, which according to Subbash Dass (PW-5), were given by

Sonali Mukherjee (A-1) when they were traveling from Chennai to

Pondicherry in a car. These burn marks cannot have any nexus with the 29

swallowing of 100 tablets forcefully. Second injury is left upper eye-lid was

found swollen and bluish in colour. Even this injury has nothing to do and

could not be connected with the forcible swallowing. Then there are three

linear scratches on the left forearm. Obviously, these injuries would have

nothing to do with the forcible administration of tablets to Biswajit. Very

significantly, there are no injuries on the mouth or cheek of Biswajit, which

we would have expected if there was a theory of forcible ingestion of the

tablets. The prosecution has no evidence whatsoever, nor did the

prosecution suggest that the tablets were fed by some trick like, firstly,

dissolving the tablets in alcohol and then giving that alcoholic drink to

Biswajit (deceased). For that matter, there is no evidence. This is apart

from the fact that Subbash Dass (PW-5) has not even whispered about

Biswajit's drinking after he reached Pondicherry. The theory of mixing the

tablets in the drink gets further blow, inasmuch as, when Biswajit was

made to vomit by Subbash Dass (PW-5) by giving him the lukewarm water,

he actually vomited the broken and intact tablets. Therefore, one thing is

certain that Biswajit had swallowed the tablets straightaway without mixing

or dissolving the said tablets in any other drink. There is enough evidence

to the effect that when Biswajit vomited, some half broken tablets came out

from his mouth. In fact, only on that basis, it was deduced by Subbash

Dass (PW-5) that Biswajit had swallowed certain tablets and from a phial,

which he took to Dr. Datta, who told him and Assadid Poddar (A-2) that the 30

tablets were poison and on that basis, Biswajit was also advised to be

shifted to the hospital. Now, all this leaves only one possibility and that is

of Biswajit's swallowing the tablets himself, which theory, if accepted, we

have to exonerate both A-1 and A-2.

24. At this juncture, it will be helpful to see the evidence of Subbash

Dass (PW-5) in details. He is the only witness at Pondicherry, who

suggested that Sonali Mukherjee (A-1) had illicit intimacy with Assadid

Poddar (A-2) and she used to share Assadid Poddar's bed during the

absence of Biswajit. Barring this witness, prosecution has not been able to

produce any witness or any other circumstance, which would justify the

inference of the illicit intimacy between A-1 and A-2. That evidence is also

suspicious, as no details have been given by this witness in support of his

claim of such illegal intimacy. In his evidence, Subbash Dass (PW-5)

asserted that from 1 a.m. to 3 a.m. on 16.5.1984, Sonali Mukherjee (A-1)

was alone with Biswajit and at 3 a.m., when he entered the room by

kicking the door, he found Biswajit crying. The witness has asserted that

there was bleeding on Biswajit's back and there was also swallowing. In

the post mortem, no such injury was found. His further claim that Biswajit

wrote two lines in English and requested him to hand over the letter to his

father belied the theory that Biswajit was totally overpowered or was not in

proper mental state. If at 3 a.m., Biswajit could write something and tell 31

this witness to reach the letter to his father and further to see that his dead

body is not removed before his father's arrival, then it cannot be denied

that Biswajit was alive at 3 a.m. The witness saw the further happenings

for some time, waited for about 10-15 minutes, when he found Biswajit

unconscious. The witness also goes on to say that Biswajit was moved to

Hospital and he was declared dead at 3.50 a.m.

25. The claim of this witness that Sonali Mukherjee (A-1) and Assadid

Poddar (A-2) had asked the maid-servant to clean the room and sweep

away everything that was in the room, appears to be far-fetched for the

simple reason that even Sonali Mukherjee (A-1) admittedly was in the

hospital and was under the treatment because she had attempted to

commit suicide while the presence of Assadid Poddar (A-2) in the house of

Sonali Mukherjee (A-1) and the deceased in their absence was not

probable. The sinister silence of this witness speaks volumes against him.

According to him, he was questioned by Ramalingam (CW-1) on 20.5.1984

and he was instructed by the relatives of Sonali Mukherjee (A-1) not to

speak out the things to Ramalingam (CW-1). That is unrealistic. Then he

made a fantastic claim that he was kept under the lock and key and he

was beaten. It is ridiculous that he could escape easily by the backdoor

and in that attempt, he was tried to be assaulted by Sonali Mukherjee (A-1)

by bonti (an instrument for cutting vegetables). He further claimed that he 32

had reached Howrah somewhere on 23.5.1984 and went to the father of

Biswajit and narrated all the events that had happened. Even there in

Calcutta, he was accosted by Rana (the brother of A-1), who threatened

him. Thereafter, he interacted with Sarogi, who was admittedly the patient

of Dr. Battacharya (PW-1). He is said to have remained with Sarogi and

that is how Exhibit P-23, the original affidavit, is said to have come into

existence.

26. Subbash Dass (PW-5) admitted in his evidence that he had never

spoken about Sonali Mukherejee (A-1) and Assadid Poddar (A-2)

occupying the same bedroom. In the later part of his cross-examination,

he also denied to have told the police that Biswajit frowned at Subir

Majumdar because Biswajit knew that Subir had divulged to Sonali

Mukherjee (A-1) that Biswajit had an amorous affair with one Anju Singh in

Calcutta. His evidence is replete with contradictions and omissions, which

contradictions and omissions have been proved by Ramalingam (CW-1),

as well as, S. Shanmugasundaram (CW-3). In fact, he had told the police

in his statement about Subir's narration to Sonali Mukherjee (A-1) about

Biswajit's spending nights with one Anju Singh and further about he being

in the company of one Tara, which he denied in evidence. All these

contradictions have been proved thoroughly. Even about the main

incident, his whole evidence is full of contradictions and omissions, which 33

are of a very substantial nature. We have referred to some in earlier part

of our judgment. His interaction with Sarogi, who ran a detective agency at

the instance of Dr. Battacharya (PW-1) appears to be extremely

suspicious. He did not even remember the name of the person in Ashram

with whom he had gone to the Police Station in Pondicherry. In short, all

the statements made in the Court were found admittedly not to have been

stated to Ramalingam (CW-1). All this evidence is in the question and

answer form. The whole texture of the evidence is extremely coarse and

in our opinion, the witness was not liable to be believed at all.

27. Same thing goes about the evidence of Dr. Battacharya (PW-1), who

initiated this prosecution. His evidence about the illegal intimacy between

A-1 and A-2 was all hearsay. He had seen nothing. His further evidence

in examination-in-chief could not have been allowed to be brought on

record because he was admittedly not present on the spot, where the

incident took place. It is his contention that it was on 24.5.1984 that

Subbash Dass (PW-5) narrated the whole incident to him. Since his

evidence is only inferential, it will be of no use to the prosecution. The

witness in his cross-examination has made some strange claims like he

did not have the knowledge of marriage between Biswajit and A-1. All the

photographs like D-1 to D-4 belie his claim that he was not aware of the

relation between Biswajit and Sonali Mukherjee (A-1). The tone of letters 34

written by PW-1 suggests that parents of Biswajit have accepted his

marriage and everything was alright with them. Even if everything in his

evidence is accepted, all the letters written by him belie the claim made by

the witness that Biswajit was murdered. It is for the first time that he told

that he came to know from the Ashram people that there was illegal

intimacy between Sonali Mukherjee (A-1) and Assadid Poddar (A-2). He

has very specifically admitted that he could not tell the name of persons

who told him about the illegal intimacy between A-1 and A-2. It is his claim

that he came to know about this illegal intimacy way back in February,

1984. However, in his letter Exhibit D-28, he does not seem to have

referred to any such illegal intimacy, which was extremely strange. His

complete silence in the letter Exhibit P-12 dated 26.5.1984 about his

having been told by Subbash Dass (PW-5) about the happenings, raises

doubts. He clearly admitted that when he wrote the letter Exhibit P-12, he

was not sure whether the death of Biswajit was homicidal or suicidal. He

made an assertion that the Police officers, investigating the case, stayed in

the flat belonging to the family of A-1, which was flatly denied by both the

police officers, namely, Ramalingam (CW-1) and S. Shanmugasundaram

(CW-3). There is nothing to suggest that these police officers were

working under the influence of anybody else, muchless the accused

persons and their relatives. The witness was candid in accepting his

relationship with Sarogi. It is obvious that Exhibits P-10 and P-12 were the 35

wild guesses made and therein some suspicious statements have been

made which belie the claim that this was a murder. The witness went to

the extent of saying that he had not given any statements to Ramalingam

(CW-1) or S. Shanmugasundaram (CW-3). In his evidence, S.

Shanmugasundaram (CW-3) has specifically admitted that he had

examined Dr. Battacharya (PW-1) on 17.7.1984. On that basis, the

witness refused to answer any question about his having made any

disclosures to S. Shanmugasundaram (CW-3). In short, the evidence of

Dr. Battacharya (PW-1) does not inspire any confidence and has to be

rejected.

28. That leaves us with the other witnesses like Dr. Baker Fenn (PW-2),

and Geetha Battacharya (PW-3), the wife of Dr. Battacharya (PW-1) and

the mother of the deceased, which is of no use. Evidence of PW-3 relates

to as to how Sonali Mukherjee (A-1) and Biswajit came closer. She has

very specifically admitted that they (she and her husband - PW-1) had

accepted Sonali Mukherjee (A-1) as their daughter-in-law. Her claims

regarding Sonali Mukherjee (A-1) and Assadid Poddar (A-2) depended

only on one circumstance that Assadid Poddar (A-2) was seen in the

house with flowers, gifts and photos of Sonali Mukherjee (A-1) for

celebrating the birthday of Sonali Mukherjee (A-1). We do not think that 36

this is sufficient enough to establish any illegal intimacy between A-1 and

A-2. Her evidence does not really take the prosecution any further.

29. Having discussed all these witnesses, we are of the firm opinion that

the whole prosecution rests on suspicions and it is trite law that mere

suspicion is not enough to convict the accused persons.

30. In fact, in this case, the whole basis of the complaint was the

dishonest investigation on the part of Ramalingam (CW-1) and S.

Shanmugasundaram (CW-3). Seeing their evidence closely, we do not

think that such an inference was possible. These two witnesses have

been examined as Court Witnesses and, therefore, they could have been

cross-examined by the prosecution. Their cross-examination does not

reveal anything to suggest that investigation was guided investigation, so

as to exonerate the accused persons.

31. The impugned judgment turns more or the less on the inferences,

the basic inference being that there was an illegal intimacy between Sonali

Mukherjee (A-1) and Assidid Poddar (A-2), for which there is very little or

no evidence. Once that basis is shaken or is held not to be established,

the further case of the prosecution must fail.

32. We also cannot agree with the High Court that the death of Biswajit

was homicide. We have already pointed out as to how the tablets could 37

not have been administered by a single lady or how could there not be the

accidental administration of the tablets leaving the only possibility of

suicide. All the circumstances should have been addressed to by High

Court, as well as, the Trial Court which is absent in both the judgments and

conviction stood solely on the basis of evidence of Subbash Dass (PW-5),

whom we have found an extremely unreliable witness. He was always

under the thumb of Dr. Battacharya (PW-1), as well as, his friend Sarogi,

with whom the witness admittedly lived and served for some time.

33. The dubbing of the investigation as "dishonest" or "guided

investigation" would be very difficult in this case and no clear finding has

been given by the High Court in that behalf.

34. The High Court has also not given sufficient attention to the fact that

Sonali Mukherjee (A-1) also tried to commit suicide and was convicted for

the offence punishable under Section 309 IPC alongwith offence

punishable under Section 324 IPC for having caused simple injuries to

Biswajit. True it is that such conviction would not come in the way of the

accused being tried for the offence under Section 302 IPC, but this

circumstance had to be examined, as it was a very crucial circumstance in

the whole story.

38

35. The whole prosecution story is shrouded with mystery and is

suspicious and, therefore, the benefit of doubt must go to the accused

persons.

36. The High court has also not explained as to how the offence could

come within the parameters of Section 304 Part I IPC. The view taken by

the High Court that the offence could amount to one under Section 304

Part I IPC, is in our opinion, erroneous.

37. Under the circumstances, the appeal filed by Sonali Mukherjee (A-

1) must be allowed. It is accordingly allowed. The judgment of the High

Court, as well as, the Trial Court are set aside and Sonali Mukherjee (A-1)

is directed to be acquitted.

38. This takes us to the appeal against the acquittal of Sonali Mukherjee

(A-1) for offence under Section 302 IPC and Assadid Poddar (A-2) of all

the offences. The appeal against acquittal of Sonali Mukherjee (A-1) is

dismissed in view of her total acquittal. We have found that Assadid

Poddar (A-2) had absolutely no role to play in the whole affair. We have

already rejected the theory of illegal intimacy between Sonali Mukherjee

(A-1) and Assadid Poddar (A-2). Even otherwise, according to the

evidence led by Subbash Dass (PW-5), Assadid Poddar (A-2) had no

opportunity to administer the tablets to Biswajit. He was acting like a true 39

family friend in going with Sonali Mukherjee (A-1) to receive the deceased

from Chennai. Even according to Subbash Dass (PW-5), they were all

through together outside the house. We do not, therefore, think that there

is any case against Assadid Poddar (A-2). The High Court is correct in

acquitting Assadid Poddar (A-2) and we confirm the judgment of the High

Court. In the result, we also dismiss the appeal, challenging the acquittal

of Assadid Poddar (A-2).

The bail bonds of both the accused, if any, shall stand discharged.

......................................J. (B.N. Agrawal)

......................................J. (V.S. Sirpurkar)

......................................J. (H.L. Dattu)

New Delhi;

September 30, 2009