Holding

The Supreme Court acquitted Sonali Mukherjee of all charges and upheld the acquittal of Assadid Poddar, finding no proof of homicide or illegal intimacy.

Summary

The case involved the death of Biswajit, alleged to be a murder committed by his wife Sonali Mukherjee (A‑1) and her alleged lover Assadid Poddar (A‑2) through gardenal poisoning. The trial court convicted both under s.302 IPC; the Madras High Court acquitted A‑2 and reduced A‑1's conviction to s.304(Part I) IPC. On appeal, the Supreme Court held that the post‑mortem evidence was unreliable, the prosecution failed to prove beyond reasonable doubt that the death was homicidal, and there was no evidence of illegal intimacy or of A‑2 administering the tablets. Consequently, A‑1 was acquitted of all charges and the High Court’s judgment was set aside, while the acquittal of A‑2 was upheld.

Issues considered

The death was homicidal or suicidal.
The prosecution proved the elements of murder under s.302 IPC beyond reasonable doubt.
The appropriateness of conviction under s.304(Part I) IPC.
Whether there was evidence of illegal intimacy between A‑1 and A‑2.
The reliability of the post‑mortem report and expert testimony.
Whether A‑2 had any role in administering the gardenal tablets.

Legislation cited

Code of Criminal Procedure, 1973s. 174
Indian Penal Code, 1860s. 302, s. 304(Part I), s. 306, s. 309, s. 324
Probation of Offenders Acts. 4(1)

Subjects

murderhomicidepoisoninggardenalbenefit of doubtpost‑mortem evidenceillegal intimacyIPC sectionsacquittalcriminal appeal

Judgment

[2009] 14 (ADDL.) S.C.R. 858

A SONALI MUKHERJEE +
v.
UNION OF INDIA
(C~iminal Appeal No. 673 of 2001)

SEPTEMBER 30, 2009
B
[B. N. AGRAWAL, V.S. SIRPURKAR AND
H.L DATTU, JJ.]

Pf!nal Code, 1860 - ss. 302134, 304 (Part I) - Murder -
'C Allegation of illegal intimacy between A-1-wife of deceased
and A-2, and as a result commission of murder of deceased
- Death due to gardenal poisoning - Presence of barbiturate
and alcohol in viscera - Conviction uls. 302134 - High Court
acquitting A-2 and conviction of A-1 altered to s. 304 (Part I)
D - On appeal, held: No evidence to prove that the death by i
,.I
poisoning was homicidal - Conviction was on basis of
evidence of servant of deceased who was not a reliable
witness - Evidence about the illegal intimacy between A-1 and
A-2 not established - No case made out against A 2 -
.E Prosecution case rests on suspicions and mere suspicion is
not enough to convict accused persons - Accused to be given
benefit of doubt - A-1 directed to be acquitted.

According to the prosecution case, A-1-wife ••
developed illegal intimacy with A-2 and as a result
F committed murder of B, her -husband of PW-5, servant
of deceased, narrated the events leading to death of 8,
to PW-1, father of deceased. PW-4, doctor who conducted
the autopsy, suggested that there was presence of
barbiturate and alcohol in viscera and the cause of death
G was due to gardenc;1I poisoning. Sessions Judge
convicted A-1 and A-2 uls. 302 rw s. 34 IPC and imposed
life imprisonment. High Court acquitted A-2. It also
acquitted A-1 of the offence u/s. 302 but convicted her for
the offence uls. 304 (Part I) IPC and sentenced her to nine
H 858
SONALI MUKHERJEE v. UNION OF INDIA 859

years rigorous imprisonment. Hence the present appeals. A

Dismissing the appeal, against acquittal and
allowing the appeal against conviction, the Court

HELD: 1.1. The evidence of PW-4, doctor who
conducted autopsy very clearly suggests that the doctor B
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. The doctor
did not give any specific reason to support his deduction C
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. His evidence D
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.
Importance is not given to the suggestion by the defence
that PW-4, who was asked by doctor 8 to take interest E
in the matter. It will be foo far-fetched to hold that it was
because of the intervention of doctor 8 that the witness
took the so-called interest in the post mortem. [Para 16]
[876-8-G]

1.2. On perusal of the original post mortem report, it F
is found that the words "may be homicidal" were
inserted later on. There is no reason why there had to
be the insertion. The witness has not explained also. His
further remark was extremely diabolical that the words
"may be homicidal" could mean may not be homicidal G
also. All this contradictory version does not inspire any
confidence. [Para 17] [877-8-D]

1.3. The prosecution led the evidence regarding the
phial which was lying in the room where 8 died. Initially H
860 SUPREME COURT REPORTS [2009] 14 (ADDL.} S.C.R.

' .
A CW-1 was the Investigating Officer. In his evidence, CW-
3 who took over the investigation revealed that the said
Gardenal tablets were purchased at Calcutta. The said
particular lot number was sold only at Calcutta. From this,
ttie prosecution probably suggested that the tablets
B .which were sold only in Calcutta, must h~ve been
procured by the accused. Such an inference could not
be possible on the basis of this evidence. The tablets
could have been bought even by the deceased or by
anybody else. Unless it was specifically proved that the
C tablets were available only at that place exclusively, no
inference can be drawn that it was A-1 or 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, would lead nowhere. [Para 18] [877-E-
0 H; 878-A-B].

1.4. The prosecution case is shrouded in confusion.
It is not the case of the prosecution that the tablets were
accidentally taken. On the other hand, the prosecution
E specifically contends or at least seems to contend that
the tablets were not taken by B accidentally. Now there
remain only two possibilities, one, that the tablets having
~i~. . been swallowed by B himself; and second, the accused
. persons putting the tablets into the mouth of B
~- ; surreptitiously or under some pretext or forcibly. The
exact number of tablets· swallowed by B has not been
established by the prosecution. But the number had to
.be substantial otherwise B would not have died because
of the swallowing of those tablets. It has come in the.
G .evidence of the doctors that alcohol might have
aggravated the effect of barbiturate and the barbiturate
was soluble in alcohol. It is nobody's case and, more
particularly;',_that of· PW-5 that there was any drinking
activity after the accused persons and the deceased
H came back from Madras. There does not appear to be any
SONALI MUKHERJEE v. UNION OF INDIA 861

.. evidence on record suggesting the availability of the A
alcohol in that room at the refevant time and that the
deceased was so inebriated that he had ·1ost all his
control and could be made to do anything including
swallowing of the tablets. [Para 19] [878-C-G]
B
1.5. On going through the evidence of the witnesses-
PW 5, the servant of deceased, PW 1, father of deceased
and other witnesses-PW 2 and PW 3, mother of deceased,
It is clear that the whole prosecution rests on suspicions
and it is trite law that mere suspicion is not enough to
convict the accused persons. [Para 29] [888-A]
c
1.6. In the instant case, the whole basis of the
complaint was the dishonest investigation on the part of
CW-1, Investigating Officer and CW-3, Superintendent of
) Police. Seeing their evidence closely, such an inference D
was not 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 E
exonerate the accused persons. [Para 30] [888-8-C]

1. 7. The impugned judgment turns more or less on
..... the inferences, the basic inference being that there was
an illegal intimacy between A-1 and A-2 for which there
F
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. [Para 31] [888-D]

1.8. It cannot be accepted as held by High Court that
the death of B was homicide. It is pointed out as to how G
.\
the tablets could 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 H
862 SUPREME COURT REPORTS (2009] 14 (ADOL.) S.C.R.

A which is absent in both the judgments and conviction
stood solely on the basis of evidence of PW-5, who is
found to be an extremely unreliable witness. He was
always under the thumb of PW-1, as well as, his friend S
with whom the witness admittedly lived and served for
B some time. [Para 32] [888-E-G]

1.9. The dubbing of the investigation as 'dishonest'
or 'guided investigation' could be very difficult in· the
instant case and no clear finding has been given -by the
High Court in that behalf. The High Court has also not
C given sufficient attention to the fact that A-1 also tri.ed to
commit suicide and wa·s convicted for the offence
punishable u/s. 309 IPC alongwith offence punishable u/
s. 324 IPC for having caused simple injuries to B. Such
conviction would not come in the way of the accused
D being tried for the offence u/s. 302 IPC, but this.· 1
circumstance had to be examined, as it was a very
crucial circumstance in the whole story. [Paras 33 and 34] .
[888-H; 889-A-B] ' _.,
E 1.10. The whole prosecution story is shrouded with
mystery and is suspicious and, therefore, the benefit of
doubt must go to the accused persons. [Para 35) [889-
C)

1.11. The High Court did not explain as to -flow the;. :i.-

F offence could come within. the parameters of s. 304 (P~rf -~
·rnl""'\"'
I) IPC. The view taken by the High Court that the offence·:--
could amount to one u/s. 304 (Part I) IPC; is erroneo~s?
The judgment of the High Court, as well as, the trial co~!"t. 1 __
are set aside and A-1 is directed to be acquitted. [Paras :
G 36 and 37] [889-0-E] - ,'~~'.~~· I

1.12. A-2 had absolutely no ro!e to play in the whole
affair. The theory of illegal intimacy between A-1 and A-2
is rejected. Even otherwise, according to the evidence led
H by PW-5, A-2 had no opportunity to administer the'tablets ~,.-
SONALI MUKHERJEE v. UNION OF INDIA 863

to B. He was acting like a true family friend in going with A
A-1 to receive the deceased from Chennai. Even
according to PW-5, they were all through together outside
the house. Therefore, there is no case against A-2. High
Court is correct in acquitting A-2 and the judgment of the
High Court is upheld. [Para 38] [889-F-H; 890-A-B] B

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 673 of 2001.
From the Judgment & Order dated 22.9.2000 of the High
Court of Judicature at Madras in Criminal Appeal No. 502 of C
1988.
WITH

Crl. A.No. 835-836 of 2002.
D
Tapan Roy Choudhury, V. Krishnamurthy, R.
Venkataramani, Satyajeet Saha, V.D. Khanna, R. Nedumaran,
Prasanth P., T. Harish Kumar, V.G. Pragasam, Aljo K. Joseph,
S.J. Aristotle for the appearing parties.
E
The Judgment of the Court was delivered by
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, F
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 G
" 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.
H
864 SUPREME COURT REPORTS [200~} 14 (ADDL.) S.C.R.

A 2. Both Sonali Mukherjee (A-1) a~d Ass.ad id_ 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
B 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
c 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 poljce
investigation concluded that the death of the deceased Blswajit
D was a suicide. They filed a chargesheet against Sonali i
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 Offende.rs Act. The
qomplainant Dr. Battacharya (PW-1).filed a criminal complaint,
E ·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
F 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
G association. Subsequently, Sona Ii 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
H any connection with a married woman and hence, he was sent
SONALI MUKHERJEE v. UNION OF INDIA 865
[V.S. SIRPURKAR, J.]

to USA to pursue his higher studies. However, after the A
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 was
decided that Sonali Mukherjee (A-1) and the deceased should B
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. Battach~rya c
(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 D
deceased went to Calcutta was on 1.5.1984 and he returne~
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 E
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.,984. He had also sent a telegram to Assadid Poddar F
(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.
G
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 H
866 SUPREMt COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A 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
8 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 wa~
C 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
D and nostrils.

(ii) scalp hair, in and around anterior fontonella area,
· were found to be cut short compared to rest of the
hairs and
E (iii) eyes and mouth were closed.

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·;
F
each at a distance varying from 3 to 7 ems. 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.

G (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 iateral aspect
H of left forearm. Each was a line's width, carrying in
SONALI MUKHERJEE v. UNION OF INDIA 867
[V.S. SIRPURKAR, J.]

length from 3 to 6 ems. These were parallel to each A
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 8
the presence of barbiturate and alcohol. The cause of death,
according to Dr. Sahay (PW-4), was due to Gardena!
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, C
Subbash Dass (PW-5), a servant of the deceased, also
reached Calcutta after some days. 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 Assad id Poddar D
(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 E
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 F
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 G
at 5.30 p.m. and went to the Railway Station. There, Sonall
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 thf'J a&e~ased did come out ' H
868 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A from the train. When he reached the gate of the Station, Sonali
Mukherjee (A-1) went to him and began to cry in presence of
Assadid Poddar (A-2) ar:id others. A Police personnel
intervened, however, the deceased said that it was a domestic
matter and they returned to the hotel.
B
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
c 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, Sona Ii Mukherjee (A-1) asked him not to look

D
behind and just sit in the front. Ultimately, they reached
Pondicherry, reteasi::d the taxi and entered the house. Sonali
Mukherjee (A-1) and the deceased went to the bedroom, while
1
-
Assadid Poddar (A-2) and Subbash Dass (PW-5) remained
outside. Subbash Dass (PVV-5) could hear cries from inside ......
the room and when he was about to knock, Assadid Poddar
E (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 )..

F and a wire and Sonali Mu'kherjee (A-1) was beating the
deceased with a piece of 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 ·
<·
G 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
H out for considerable time, Subbash Dass (PW-5) put his arm

....
SONALI MUKHERJEE v. UNION OF INDIA 869
[V.S. SIRPURKAR, J.]

on the top of the partition wall between the bathroom and A
lavatory and found the deceased standing and C{)'ing. 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 a
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 c
(PW-5) had fetched a Doctor. Assadid Poddar (A-2) came from
behind and said that there was no need to call a Doctor.

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 D
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 E
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 F
and asked Assadid Poddar (A-2) to shift the deceased to
JIPMER Hospital. They we!'lt 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 tile death th.at the deceased had swallowed about 100 G
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, Sona Ii Mukherjee (A-1) and Assadid Poddar (A·2)
asked the maid servant to clean th::' ~oom. When father of f.i
!

"'
870 SUPREME COURT REPORTS [2009] 14 (AODL.) S.C.R.

A Sonali Mukherjee (A-1) arrived, Subbash Dass (PW-5) began
to explain eveiything 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) arrived and again Subbash Dass (PW-
5) was tutored that he should not say about what had happened.
B 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.
c Madras Mail and reached Calcutta and met Dr. Battach~rya ·
and narrated the whole story leading to the death of Biswajit. ~
10. In the meantime, on 21.5J984, 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
D of the injuries which were not self-inflicted. The investigation at 'f
this stage was shifted to Ramalingam (CW-1) and ultimately,
the original chargesheet for offence under Seccion 174 Cr.P.C.
was altered into Section 31J2 !PC. CW-1 then proceeded with
the investigation. A letter was sent by Dr. Battacharya (PW-1)
E 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
F to whether the death was a suicidal or homicidal death. The
investigation was transferred to CBCID and was continued by
$; Shanmugasundaram (CW-3), the Inspector of Police, CID
Branch, Pondicherry.
•'
11. On 30.5.1984, Subbash Dass (PW-5) was threatened
G
at Calcutta by t~e brother of Sonali Mukherjee (A-1) and,
therefore. he was entryated by Or. Battacharya (PW-1) to the
care of orie 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
H
~.
SONALI MUKHERJEE v. UNION OF INDIA 871
[V.S. SIRPURKAR, J.]

forwarded to S. Shanmugasundaram (CW-3), the Investigating A
Officer. CW-3 found that the bottle, which contained the
Gardena! 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 a
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. c
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 D
was released under Section 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 · E
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. 34of1986. In all, five witnesses were examined on
behalf of the prosecution, while four witnesses were examined F
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 G
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
H
872 SUPREME COURT REPORTS [2009] 14 (ADDL.} S.C.R.

A 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
B imprisonment under Section 304 Part {I) IPC was awarded:
While Sonali Mukherjee {A-1) has challenged her cqnviction 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
c 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 t~ese 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
D case, where according to the prosecution, Biswajit (deceased), f
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,
E wherefrom he came back and got married to Sonali Mukherjee
(A-1). Sonali Mukherj.ee (A-1) pleaded in her examination that
she was married to the deceased even when she had not
obtained separa~ion ·(pr9bably meaning, divorce) from her ~
husband Aloke Sarkar, ·with whom she was already married.
F There does not seem to be any- serious dispute about the
relations between Sona Ii 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 Soriali Mukherjee (A-1) and
G Biswajit (deceased) and the parents, i.e., Dr. Battacharya (PW-
1) 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 Assad id
H
-,

SONALI MUKHERJEE v. UNION OF INDIA 873
[V.S. SIRPURKAR, J.] '
\'- Poddar (A-2) and probably as a result of the same, committed A
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
B
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 ip
colour and thirdly, there were three linear scratches alongwith
c
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 D
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, does not help the prosecution for E
the reason that he had refused to identify the initials Dr. Shyam
Mohan on Exhibit C-1, which was the first document relating to
..t 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 F
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 G
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 H
.,.,.
.
~J~-

874 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A evidence that:- -I

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

In his remark, he had suggested that it might have been
B homicida·t, 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
c interesting 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 morte,m '
I...__
examination. He, however, admitted that though after initial
denial, he appeared before the Medical Board and he was .,...
D 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
E 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 specia·1 interest in this case.
He, however, admitted that Dr. Baruva told him the family
~
history of the deceased. He was confronted with his earlier
F 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
G
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 poss_ible
that before how many hours of the post mortem, the poison had
H
..,,
,,_
SONALI MUKHERJEE v. UNION OF INDIA 875
[V.S. SIRPURKAR, J.]

been consumed. He further expressed his inability to fix the A
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 B
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." c
One more contradiction was put to him to the following
effect:-

"I mentioned as homicidal, it does not mean, it is a murder. D
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 E
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 F
poisoning and suicidal poisoning."

He was then confronted with his following statements:-

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

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

All these statements were got proved by the defence in the
examination of the witness S. Shanmugasundaram (CW-3) who
H
876 SUPREME COURT REPORTS (2009] 14 (ADDL) S.C.R.

A 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
8
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 .,
.

C 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 specifica11y
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
D 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 ~olice officer, who recorded his statement. They are very
substantial contradictions. It was suggested firstly that this
E · Doctor was himself a mental patient. We of course, cannot say
as to whether at the time when he conducted the post mortem,
he 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.
F 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
G 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,
H much better evidence was expected from the prosecution. The
SONALI MUKHERJEE v. UNION OF INDIA 877
[V.S. SIRPURKAR, J.]
t witness PW-4 had said nothing in support of his deduction that A
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.
8
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 c
suggested 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
i
he had asked him to take interest in the case. His further remark D
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.
E
18. The prosecution has further led the evidence regarding
the phial which was lying in the room where Biswajit died. In
41 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 F
Officer. In his evidence, S. Shanmugasundaram (CW-3) who
took over the investigation has revealed that the said Gardena!
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
G
"( AK.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
H
878 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A evidence. The tablets 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
B 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 Gardena! tablet$
were purchased from Calcutta, does not help the prosecution~- .. .
c 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
D 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
E 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 of barbiturate and the barbiturate was soluble in alcohol:< !:.
F It is nobody's case and, more particularly, that of Subbash:::'::.'
Dass (PW-5) that there was any drinking activity after the:t.~ ;
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
G relevant time and that the deceased was so inebriated that he
had lost all his control and could be made to do anything 'I"
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
H
..
SONALI MUKHERJEE v. UNION OF INDIA 879
[V.S. SIRPURKAR, J.]
t conscious in the sense that he was not immobilized at that time. A
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-:- 8
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 c
(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 Mukherjee (A-1) and Assadid
Poddar (A-2) would be able to put some tablets into his mouth
D
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 E
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 F
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 G
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 H
880 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.

A SonaIi Mukherjee (A-1) to force open the mouth of Biswajit and
put the tablets into his mouth and make him swallow the same. -t

That indeed does not appear to be a possibility nor is that
established by the evidence of Subbash Dass (PW-5). If
Biswajit himself swallowed the tablets, may be on account of
B 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
c 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 foll~wing
effect:
D "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."
E
The witness Ramalingam in his evidence admitted in the
foflowing words:

"Subhash Bhattacharya told me that he climbed over the
~
wall and peeped through the opening to see inside the
F 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
G Uass had refused in his evidence that he had stated so in his
statement. This creates a great doubt as to how Biswajit
y
swallowed the Gardena! 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.
H accidentally put in his mouth by Sonali Mukherjee (A-1) arid
SONALI MUKHERJEE v. UNION OF INDIA 881
[V.S. SIRPURKAR, J.]

Assadid Poddar (A-2) or anyone of them. There can be no A
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 B
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 c
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
0
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 E
Biswajit was leaving the room for the 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 F
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 G
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 H
882 SUPREME COURT REPORTS (2009) 14 (ADDL) S.C.R.

A 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
B
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"

C 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. Shanmugasundaram admitted
D 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
E 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.
F 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 c.ommitted 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, •
G therefore, choose to reject that possibility. The only other~
possibility left is that Blswajit was forcibly made to swallow the
tablets. We have already look~d into the medical evidence for
that.purpose and more particularly, the injuries on the body of
H Biswajit (deceased). The injuries are not suggestive of forceful
SONALI MUKHERJEE v. UNION OF INDIA 883
[V.S. SIRPURKAR, J.]
administration. The injuries are of three types. Firstly, there are A
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 bum marks cannot
have any nexus with the swallowing of 100 tablets forcefully.
Second injury is left upper eye-lid was found swollen and bluish a
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 c
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 D
~-
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 E
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 F
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 tablets were poison and
on that basis, Biswajit was also advised to be shifted to the G
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 helpf~ '' to see the evidence of H
884 SUPREME COURT REPORTS (2009] 14 (AODL.,.) S.C.R.

A Subbash Dass (PW-5) in details. He is the 011ly witness at
Pondicherry, who suggested that Sonali Mukherjee (A-1) had
illicit intimacy witti Assadid Poddar (A-2) amt she used to share
Assadid Poddar's bed during the absence of Biswajit. Barring
this witness, prosecution has not been able to produce any
B 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.
c to 3 a.m. on 16.5.1984, Sonali Mukherjee (A-1) was alone with
Biswe1jit and- at 3 a.m., when he entered the room by kicking
ttie door, he found Bi$wajit 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
D 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 this witness to reach ihe letter to his father and further
to see that his dead body is not removed before his father's
E arrival, then it cannot be denied that Biswajit was alive at 3 a.m.
The witness saw th~ 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.
F
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
G 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
H speaks volumes against him. According to him, he was
SONALI MUKHERJEE v. UNION OF INDIA 885
[V.S. SIRPURKAR, J.]

questioned by Ramalingam (CW-1) on 20.5.1984 and he was A
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 B ·
assaulted by Sonali Mukherjee (A-1) by bonti (an instrument for
cutting vegetables). He further claimed that he 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 broth~r of A- c
1), who threatened him. Thereafter, he interacted with Sa.ro9i,
who was admittedly the patient of Or. 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 D
he had never spoken about Sonali Mukherejee (A-1) and
Assadld Poddar (A-2) occupying the same bedroom. In the
later part of his cross-examination, he also denied to have told
the police that Blswajit frowned at Subir Majumdar because
Biswajit knew that Subir had divulged to Sonali Mukherjee (A- E
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 F
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 G
is full of contradictions and omissions, which 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 H
886 SUPREME COURT REPORTS [2009] 14 (ADDI,..) S.C,R.

A 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 ta
Ramalingam (CW-1 )." All this evidence is in the question and
answer form. The whole texture of the evidence is extremely
B 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
c 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
D 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 hi$ claim that he was not aware of the relation
E between Biswajit and Sonali Mukherjee (A-1). The tone of
letters 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 v.itness that Biswajit
F 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 Sona Ii Mukherjee (A-1) and Assad id 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-
G 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
H having been told by Subbash Dass (PW-5) about the
(
SONALI MUKHERJEE v.. UNION OF INDIA 887
[V.S. SIRPURKAR, J.]

happenings, raises doubts. He clearly admitted that when he A
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. B '
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 c ,
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. D ,
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
E'
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 F
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 G
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 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. H
88S SUPFU:MI:: COU~T RE:PORTS {2009] 14 (AODL.) S.C.R.

A 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
B
was the dishonest investigation on the part of Ramalinga111
(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-
c 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
D inferences, the basic inference being that there was an illegal
intimacy between Sonali Mukherjee (A.. 1) and Assidid Poddar r

(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.
E
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 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
F 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.
G Battacharya (PW-1), as well as, his friend Sarogi, with whom I.
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
H no clear finding has been given by the High Court in that behalf.
SONALI MUKHERJEE v. UNION OF INDIA 689
[V.S. SIRPURKAR, J.]
.l 34. The High Court has also not given sufficient attention A
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 B
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.
35'. The whole prosecution story is shrouded with mystery
and is suspicious and, therefore, the benefit of doubt must go c
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 D
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
E
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 F
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 G
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 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 H
890 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

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

N.J. Appeal disposed of.