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.

4. The prosecution story as was unfolded by the complainant was that deceased Biswajit met Sonali Mukherjee (A-1) in 1976, when he was about 17 years old. It was he, who introduced Sonali Mukherjee (A-1) to his parents, however, the parents felt that he was too young for the marriage nor he had completed his studies and, therefore, objected to the association. Subsequently, Sonali Mukherjee (A-1) got married with one Aloke Sarkar, however, apparently even after the marriage, the deceased kept in touch with Sonali Mukherjee (A-1) and after about six months, he expressed his desire to take care of Sonali Mukherjee (A-1), since her husband was torturing her. The parents felt that the deceased should not have any connection with a married woman and hence, he was sent to USA to pursue his higher studies. However, after the deceased came back from USA, he allegedly got married to Sonali Mukherjee (A-1). He tried to take Sonali Mukherjee (A-1) to USA, however, could not succeed. He discontinued his studies and returned to India in 1981 and thereafter, it 4 was decided that Sonali Mukherjee (A-1) and the deceased should live in Pondicherry, since his grandmother was living in Aurobindo Ashram at Pondicherry. They, therefore, went to Pondicherry and started their life together in 1982. In September, 1983, they again tried to go back to USA, however, they could not succeed. It was the complainant Dr. Battacharya (PW-1), who started a shop in Pondicherry for Bengali Sarees and it was only in order to establish the deceased. The business was doing well, however, the deceased went thrice to Calcutta between January, 1984 to May, 1984, leaving Sonali Mukherjee (A-1) alone in Pondicherry. The last occasion when deceased went to Calcutta was on 1.5.1984 and he returned to Pondicherry only on 15.5.1984. Before three or four days of his arrival to Pondicherry, the parents of deceased got a phone call from Sonali Mukherjee (A-1), complaining that deceased was visiting the prostitutes in Calcutta. At that time itself, Sonali Mukherjee (A-1) allegedly threatened Geeta Battacharya (PW-3, the mother of the deceased) on phone that she would cut the deceased to pieces. This was reported to the deceased by his mother (PW-3). The deceased, however, assured that he would sort out the things and left Calcutta for Pondicherry on 14.5.1984. He had also sent a telegram to Assadid Poddar (A-2), who was friend of Sonali Mukherjee (A-1), informing him of his proposed arrival on 15.5.1984 in the night by Coromandel Express and therein, he also requested to tell Sonali Mukherjee (A-1) not to leave for Calcutta. 5

5. On 16.5.1984, early morning, Dr. Battacharya (PW-1) received a phone call from his brother-in-law in Cochin, informing him that the deceased was in a serious condition. Therefore, Dr. Battacharya (PW-1) and Geeta Battacharya (PW-3), as also their other son took the evening flight from Calcutta and reached Pondicherry. A car was sent for them from Aurobindo Ashram and it was informed that their son Biswajit (deceased) had already expired.

6. Here in Pondicherry, on receipt of the information from the hospital, First Information Report (FIR) was registered by Muthialpet Police Station, being FIR No. 103/1984 under Section 174 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C." for short). Dr. Battacharya (PW-1) identified the dead body of his son (deceased). The inquest was conducted on the dead body on 16.5.1984. The body was sent for post mortem. Dr. Sahay (PW-4) conducted the autopsy and found on his external examination:-

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

7. The viscera was sent by Dr. Sahay (PW-4), the Doctor conducting autopsy, for chemical examination and it suggested the presence of barbiturate and alcohol. The cause of death, according to Dr. Sahay (PW-

4), was due to Gardenal poisoning. Ultimately, the body was cremated on 17.5.1984 in the evening. Dr. Battacharya (PW-1) and his wife Geeta Battacharya (PW-3) returned to Calcutta and thereafter, Subbash Dass (PW-5), a servant of the deceased, also reached Calcutta after some days. 7 He narrated the events which led to the death of the deceased to Dr. Battacharya (PW-1). It was through him that Dr. Battacharya (PW-1) came to know that barbiturate tablets were consumed by the deceased, with the knowledge of Sonali Mukherjee (A-1) and Assadid Poddar (A-2) and that A-1 and A-2 had illicit relationship, which was objected to by the deceased. As per the narration of Subbash Dass (PW-5), it came out that the events which led to the death of the deceased started from the evening of 14.5.1984. On that day, after closing the shop, the said witness went to the house of the deceased and he was informed by Sonali Mukherjee (A-1) that they had to go to Madras on the next day. He was also told that if the deceased does not arrive from Calcutta, then Sonali Mukherjee (A-1), herself, would go to Calcutta, since the deceased was spending all his time in the company of prostitutes. According to Subbash Dass (PW-5), he had refused to go. However, on the next day, Sonali Mukherjee (A-1) insisted on Subbash Dass (PW-5) to accompany her to Madras. Therefore, Subbash Dass (PW-5), Sonali Mukherjee (A-1), Assadid Poddar (A-2) and one Subir, reached Madras at 5.30 p.m. and went to the Railway Station. There, Sonali Mukherjee (A-1) again told Subbash Dass (PW-5) that if the deceased does not arrive by Coromandel Express, she would herself go to Calcutta on the next morning. Coromandel Express arrived a little late and the deceased did come out from the train. When he reached the gate of the Station, Sonali Mukherjee (A-1) went to him and began to cry in 8 presence of Assadid Poddar (A-2) and others. A Police personnel intervened, however, the deceased said that it was a domestic matter and they returned to the hotel.

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) 11 arrived and again Subbash Dass (PW-5) was tutored that he should not say about what had happened. He was kept under lock by the family of Sonali Mukherjee (A-1) and was threatened by the brother of Sonali Mukherjee (A-1) that he would be beaten, if he tried to escape, however, he managed to run away and reached the police station. On the same day, he reached Madras and boarded the Howrah Madras Mail and reached Calcutta and met Dr. Battacharya and narrated the whole story leading to the death of Biswajit.

11. On 30.5.1984, Subbash Dass (PW-5) was threatened at Calcutta by the brother of Sonali Mukherjee (A-1) and, therefore, he was entrusted by Dr. Battacharya (PW-1) to the care of one Sarogi. Subbash Dass (PW-5) told him all that had happened at Pondicherry and also swore an affidavit, which was ultimately marked as Exhibit P-9. The same was also forwarded to S. Shanmugasundaram (CW-3), the Investigating Officer. CW-3 found that the bottle, which contained the Gardenal tablets, was purchased at Calcutta. He, therefore, went to Calcutta for further investigation and after thorough investigation, CW-3 concluded that from the material available, no offence under Section 302 IPC could be made against the accused, however, the only charge that could be made was under Section 306 IPC. However, he was of the opinion that Sonali Mukherjee (A-1) should be prosecuted for offence under Section 324 IPC for causing injuries to the deceased, as also under Section 309 IPC for attempting to commit suicide. Accordingly, Sonali Mukherjee (A-1) was chargesheeted. This was informed to Dr. Battacharya (PW-1). On 22.3.1985, final order came to be pronounced in aforementioned Calender Case No. 4 of 1985, whereupon Sonali Mukherjee (A-1) pleaded guilty to the charges and instead of convicting her, she was released under Section 13 4(1) of the Probation of Offenders Act on executing a bond for Rs.500/-. When all this was known by Dr. Battacharya (PW-1), he filed a complaint on 21.6.1985, in which he made all the aforementioned allegations.

12. After the complaint was filed before the Chief Judicial Magistrate (CJM), Pondicherry on 21.6.1985, the CJM committed it to the Court of Sessions Judge. The Second Additional Sessions Judge then ultimately tried the Sessions Case No. 34 of 1986. In all, five witnesses were examined on behalf of the prosecution, while four witnesses were examined as Court witnesses. Number of documents were got proved like Exhibit P-1 to P-24. The defence also led some evidence and on the basis of all the evidence, the two accused came to be convicted by the Sessions Judge for an offence punishable under Section 302 read with Section 34 IPC and were sentenced to undergo the life imprisonment. A fine of Rs.100/- was also imposed upon, in default of which, they were to undergo imprisonment of one more month.

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.

35. The whole prosecution story is shrouded with mystery and is suspicious and, therefore, the benefit of doubt must go to the accused persons.

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

1) must be allowed. It is accordingly allowed. The judgment of the High Court, as well as, the Trial Court are set aside and Sonali Mukherjee (A-1) is directed to be acquitted.

38. This takes us to the appeal against the acquittal of Sonali Mukherjee (A-1) for offence under Section 302 IPC and Assadid Poddar (A-2) of all the offences. The appeal against acquittal of Sonali Mukherjee (A-1) is dismissed in view of her total acquittal. We have found that Assadid Poddar (A-2) had absolutely no role to play in the whole affair. We have already rejected the theory of illegal intimacy between Sonali Mukherjee (A-1) and Assadid Poddar (A-2). Even otherwise, according to the evidence led by Subbash Dass (PW-5), Assadid Poddar (A-2) had no opportunity to administer the tablets to Biswajit. He was acting like a true 39 family friend in going with Sonali Mukherjee (A-1) to receive the deceased from Chennai. Even according to Subbash Dass (PW-5), they were all through together outside the house. We do not, therefore, think that there is any case against Assadid Poddar (A-2). The High Court is correct in acquitting Assadid Poddar (A-2) and we confirm the judgment of the High Court. In the result, we also dismiss the appeal, challenging the acquittal of Assadid Poddar (A-2).

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

September 30, 2009