LexSONALI MUKHERJEE versus UNION OF INDIA
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[2009] 14 (ADDL.) S.C.R. 858 A SONALI MUKHERJEE + v. UNION OF INDIA (C~iminal Appeal No. 673 of 2001) B SEPTEMBER 30, 2009 [B. N. AGRAWAL, V.S. SIRPURKAR AND H.L DATTU, JJ.] 'C Pf!nal Code, 1860 - ss. 302134, 304 (Part I) - Murder - Allegation of illegal intimacy between A-1-wife of deceased and A-2, and as a result commission of murder of deceased - Death due to gardenal poisoning - Presence of barbiturate and alcohol in viscera - Conviction uls. 302134 - High Court acquitting A-2 and conviction of A-1 altered to s. 304 (Part I) D - On appeal, held: No evidence to prove that the death by I i ,. poisoning was homicidal - Conviction was on basis of evidence of servant of deceased who was not a reliable witness - Evidence about the illegal intimacy between A-1 and A-2 not established - No case made out against A 2 - .E Prosecution case rests on suspicions and mere suspicion is not enough to convict accused persons - Accused to be given benefit of doubt - A-1 directed to be acquitted. According to the prosecution case, A-1-wife •• F developed illegal intimacy with A-2 and as a result committed murder of B, her -husband of PW-5, servant of deceased, narrated the events leading to death of 8, to PW-1, father of deceased. PW-4, doctor who conducted the autopsy, suggested that there was presence of barbiturate and alcohol in viscera and the cause of death G was due to gardenc;1I poisoning. Sessions Judge convicted A-1 and A-2 uls. 302 rw s. 34 IPC and imposed life imprisonment. High Court acquitted A-2. It also acquitted A-1 of the offence u/s. 302 but convicted her for the offence uls. 304 (Part I) IPC and sentenced her to nine H 858 SONALI MUKHERJEE v. UNION OF INDIA 859 years rigorous imprisonment. Hence the present appeals. A Dismissing the appeal, against acquittal and allowing the appeal against conviction, the Court HELD: 1.1. The evidence of PW-4, doctor who conducted autopsy very clearly suggests that the doctor B was not himself certain as to whether the death by poisoning was homicidal. In his evidence, he specifically admitted that it was very difficult to differentiate between suicidal poisoning and homicidal poisoning. The doctor did not give any specific reason to support his deduction C that the death might have been homicidal. On the other hand, his evidence in the Court was riddled with contradictions, which contradictions were got proved through the police officer, who recorded his statement. They are very substantial contradictions. His evidence D does not create any confidence. He came as an expert witness and he had no explanation as to why he had expressed that it could be a suicidal poisoning. Importance is not given to the suggestion by the defence that PW-4, who was asked by doctor 8 to take interest E in the matter. It will be foo far-fetched to hold that it was because of the intervention of doctor 8 that the witness took the so-called interest in the post mortem. [Para 16] [876-8-G] 1.2. On perusal of the original post mortem report, it F is found that the words "may be homicidal" were inserted later on. There is no reason why there had to be the insertion. The witness has not explained also. His further remark was extremely diabolical that the words "may be homicidal" could mean may not be homicidal G also. All this contradictory version does not inspire any confidence. [Para 17] [877-8-D] 1.3. The prosecution led the evidence regarding the phial which was lying in the room where 8 died. Initially H 860 SUPREME COURT REPORTS [2009] 14 (ADDL.} S.C.R. ' . A CW-1 was the Investigating Officer. In his evidence, CW- 3 who took over the investigation revealed that the said Gardenal tablets were purchased at Calcutta. The said particular lot number was sold only at Calcutta. From this, ttie prosecution probably suggested that the tablets B . which were sold only in Calcutta, must h~ve been procured by the accused. Such an inference could not be possible on the basis of this evidence. The tablets could have been bought even by the deceased or by anybody else. Unless it was specifically proved that the C tablets were available only at that place exclusively, no inference can be drawn that it was A-1 or A-2, who procured the tablets. They were ordinary sleeping pills, the overdose of which would have been fatal. The pills, however, were not poison. Therefore, the procurement of 0 the sleeping pills, would l
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