Case: Sonali Mukherjee Vs. Union Of India

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 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 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. 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.  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 lines 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. 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 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 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.  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) 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. 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 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 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.

Reasoning:
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