REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 673 OF 2001

Sonali Mukherjee …. Appellant

Versus

Union of India …. Respondent With

CRIMINAL APPEAL NOS. 835-836 OF 2002

Dr. Battacharya …. Appellant

Versus

Sonali Mukherjee & Ors. …. Respondents

J U D G M E N T

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,  

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

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

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

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

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

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

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

and imposing lesser sentence.

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

the allegation that both of them had developed illegal intimacy between  

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

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

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

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

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

acquitted Sonali Mukherjee of the offence under Section 302 but convicted  

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

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

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

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

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

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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  

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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.

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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.

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

(i) seven burn marks round in shape, each of 0.5 c.m. in  

diameter on the lateral aspect of left upper arm, each at  

a distance varying from 3 to 7 cms. from each other.  

The  most  marked  one  had  caused  subcutaneous  

haematoma of 1 c.m. diameter in six (including depth).  

Rest were skin deep only.

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

Conjunctive of both the eyes were congested.

(iii) Three linear scratches running along the length of upper  

limb  situated  in  the  middle  of  lateral  aspect  of  left  

forearm.   Each  was  a  line’s  width,  carrying  in  length  

from 3 to 6 cms.  These were parallel  to each other.  

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

one.

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

autopsy,  for  chemical  examination  and  it  suggested  the  presence  of  

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

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

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

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

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

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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  

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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  

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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.   

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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)  

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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.  

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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  

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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  

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

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

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

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

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

these appeals are now before us for consideration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

barbiturate.   He  had  deposed  that  viscera  was  sent  for  chemical  

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

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

barbiturate  should  have  dissolved  in  alcohol  and  that  the  presence  of  

alcohol aggravates the action of barbiturate.  A very important statement  

has come in his evidence that:-

“Normally,  one  cannot  distinguish  between  homicidal  poisoning and suicidal poisoning.”

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

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

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

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

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

16

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

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

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

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

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

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

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

conducted  the  post  mortem,  he  was  suffering  from  hallucination  and  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17

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

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

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

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

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

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

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

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

“It is for you to decide.”

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

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

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

effect:-

“It  was  said  ‘may  be  homicidal’,  it  means  it  may  not  be  homicidal.  In other words, it may be suicidal also.  It is difficult  to  explain  the  difference  between  homicidal  poisoning  and  suicidal poisoning.”

He was then confronted with his following statements:-

“Even before getting the viscera report, it might be homicidal.”  and  

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

18

All  these  statements  were  got  proved  by  the  defence  in  the  

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

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

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

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

him.   

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

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

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

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

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

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

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

differentiate  between  suicidal  poisoning  and  homicidal  poisoning.   We  

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

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

his  evidence  in  the  Court  was  riddled  with  contradictions,  which  

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

statement.   They are very substantial  contradictions.   It  was suggested  

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

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

19

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

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

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

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

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

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

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

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

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

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

the  poisoning  was  suicidal  or  homicidal,  much  better  evidence  was  

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

support of his deduction that it was a homicidal poisoning.   

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

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

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

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

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

suspicious  and  casual  statements  like  though  he  had  mentioned  it  as  

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

deliberately quoted the proved contradictions, in which he had suggested  

20

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

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

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

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

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

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

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

that the death had taken place.

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

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

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

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

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

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

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

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

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

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

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

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

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

21

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

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

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

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

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

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

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

circumstance  that  the  Gardenal  tablets  were  purchased  from  Calcutta,  

does not help the prosecution.

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

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

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

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

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

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

accused  persons  putting  the  tablets  into  the  mouth  of  Biswajit  

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

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

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

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

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

22

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

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

any drinking activity after the accused persons and the deceased came  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

23

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

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

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

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

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

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

medical  evidence  and  more  particularly,  the  injuries  described  by  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

24

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

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

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

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

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

Biswajit  leaning  against  the  wall  and  weeping  and  contradiction  was  

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

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

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

following effect:

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

The witness Ramalingam in his evidence admitted in the following  

words:

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

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

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

25

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

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

attempt  to  commit  suicide  or  whether  the  tablets  were  forcibly  or  

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

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

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

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

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

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

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

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

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

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

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

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

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

circumstances  and  the  whole  story  then  remains  shrouded  in  mystery.  

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

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

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

26

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

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

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

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

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

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

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

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

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

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

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

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

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

prosecution  case  extremely  suspicious.   Even  this  witness  S.  

27

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

28

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

certain that Biswajit had swallowed the tablets straightaway without mixing  

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

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

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

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

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

29

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

hospital  and  was  under  the  treatment  because  she  had  attempted  to  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

existence.   

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

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

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

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

Majumdar  because  Biswajit  knew  that  Subir  had  divulged  to  Sonali  

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

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

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

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

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

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

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

contradictions  have  been  proved  thoroughly.   Even  about  the  main  

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

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

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

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

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

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

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

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

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

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

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

initiated this prosecution.  His evidence about the illegal intimacy between  

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

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

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

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

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

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

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

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

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

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

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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  

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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  

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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  

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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.

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

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

persons.

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

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

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

Part I IPC, is in our opinion, erroneous.

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

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

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

is directed to be acquitted.   

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

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

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

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

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

already rejected the theory of illegal intimacy between Sonali Mukherjee  

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

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

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

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

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

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

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

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

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

of Assadid Poddar (A-2).

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

………………………………..J. (B.N. Agrawal)

………………………………..J. (V.S. Sirpurkar)

………………………………..J. (H.L. Dattu)

New Delhi; September 30, 2009

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