Case: Sonali Mukherjee Vs. Union Of India

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 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 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 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 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. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 persons32. 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 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 time33. 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 behalf34. 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 story35. The whole prosecution story is shrouded with mystery and is suspicious and, therefore, the benefit of doubt must go to the accused persons36. 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