Gujarat High Court
State Of Gujarat vs Jayubha Gambhirsinh Rayjada Garasiya on 18 December, 2024
NEUTRAL CITATION
R/CR.A/1697/2008 JUDGMENT DATED: 18/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1697 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
Yes x
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STATE OF GUJARAT
Versus
JAYUBHA GAMBHIRSINH RAYJADA GARASIYA
==========================================================
Appearance:
MS JYOTI BHATT APP for the Appellant(s) No. 1
MR.MRUDUL M BAROT(3750) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 18/12/2024
ORAL JUDGMENT
1. Present appeal is filed by the appellant – State of
Gujarat under Section 378(1)(3) of the Criminal
Procedure Code, 1973 (“Cr. P.C.” for short) against the
impugned judgment and order dated 13.3.2008 passed by
the learned Additional Sessions Judge, Fast Track Court
No.2, Bhavnagar (hereinafter be referred to as “the trial
Court”) in Sessions Case No. 256 of 2007, whereby the
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trial Court has acquitted the present respondent accused
for the offence punishable under Sections 498(A), 323,
504, 306 etc. of the Indian Penal Code (“I.P.C.” for short)
2. Brief facts of the present case, in nutshell, are as
under:-
2.1 The respondent-accused is the husband of Krushnaba
@ Tinabha (the deceased) and he was drunker, which was
not liked by the deceased. As a result of that, the
altercation used to take place between the respondent-
accused and the deceased.
2.2 On 07.07.2007 in the noon, the respondent-accused
after drinking liquor came to home and started quarreling
with the deceased, abused her and also beat by giving
kick and fist blows. Hence, since the deceased could not
tolerate it, she sprinkled kerosene over her body and
ignited a match stick. As a result of that, she received
severe burn injuries and succumbed to the injuries.
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2.3 Accordingly, a complaint being C.R.No. II-37/2007
came to be registered with Ghogha Police Station for the
offences punishable under Sections 306, 323, 504 and
498 (A) of the I.P.C. on 07.07.2007.
2.4 On the basis of the complaint, investigation was
started and Investigating Officer has collected the
material against the respondent-accused and upon
conclusion of the investigation, since the Investigating
Officer found a prima-facie case against the respondent-
accused, chargesheet came to be filed before the Learned
Judicial Magistrate, First Class, Ghogha.
2.5 Since the case registered against the accused person
was exclusively triable by the Court of Sessions, the
Learned Judicial Magistrate, First Class, Ghogha
committed the case to the Court of Sessions, Bhavnagar
under Section 209 of the Criminal Procedure Code, which
came to be registered as Sessions Case No.256/2007.
2.6 On committal, the case was transferred and placed for
trial before the Learned Additional Sessions Judge, Fast
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Track Court No.2, Bhavnagar, who had initially framed
charge for the offences under Sections 306, 323, 504 and
498 (A) of the I.P.C.. The charge was read over and
explained to respondent accused. Plea of respondent-
accused was recorded, wherein the respondent-accused
pleaded not guilty to the charge and claimed to be tried.
2.7 In order to bring home the charge levelled against the
accused, the prosecution has examined as many as 8
witnesses and relied upon their oral testimony. The
prosecution has also produced 17 documents and relied
upon the contents of the same.
2.8 After recording of the evidence of prosecution witness
was over, the Learned Additional Sessions Judge, Fast
Track Court No.2, Bhavnagar recorded further statement
of the accused under Section 313 of the I.P.C.. In his
further statement, accused denied the case of the
prosecution in entirety. According to accused, he has
been roped in a false case of death. However, he has
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neither led any evidence nor did he examine any witness
in support of his defence.
2.9 After going through documentary as well as oral
evidence and after hearing both the sides, the trial Court
has acquitted the accused person for the offence under
Sections 306, 323, 504 and 498 (A) of I.P.C., holding inter
alia that the prosecution has failed to prove the charge
beyond reasonable doubt.
3. Being aggrieved by and dissatisfied with the aforesaid
judgment and order of acquittal the appellant – State of
Gujarat has preferred this Appeal.
4. Heard Ms. Jyoti Bhatt, learned Additional Public
Prosecutor for the appellant – State of Gujarat and Mr.
Mrudul M. Barot, learned counsel appearing for the
respondent – accused at length.
5. Ms. Jyoti Bhatt, learned Additional Public Prosecutor
for the appellant – State of Gujarat, while referring to the
entire oral as well as documentary evidence, has assailed
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the impugned judgment and order and has submitted that
the trial Court has committed serious error of law and on
facts both, while passing the impugned judgment and
order of acquittal and discarded the oral and
documentary evidence produced by prosecution to prove
the charge against the present respondent, thus the
impugned judgment and order passed by the trial Court is
not in consonance with the settled legal principle.
5.1 Ms. Jyoti Bhatt, learned Additional Public Prosecutor
has submitted that the trial Court has committed grave
and serious error of law and on facts both while passing
the impugned judgment and order of acquittal in favour
of the respondent accused. She has submitted that the
prosecution has proved the charge against the present
respondent through independent witnesses viz. P.W. 4-
Executive Magistrate P.W.5 – Dr. Jitendrakumar
Harjivandas, P.W.-6 Dr. Jagdishbhai Fatesinh Rana and
P.W.-7 P.S.I. of the concerned Police. She has submitted
that from the depositions of the all these four witnesses,
the prosecution is able to establish the case against
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present respondent beyond reasonable doubt however,
the trial Court has completely ignored and overlooked
evidence of all these witnesses and passed the impugned
judgment and order of acquittal in favour of the
respondent accused. She has further submitted that the
deceased committed suicide by pouring kerosene on
herself and ignited herself because of cruelty meted out
to the deceased by the respondent accused which was
proved beyond reasonable doubt through the dying
declaration recorded by the Executive Magistrate at
Exh.9, however, the trial Court has completely ignored
the overlooked the said piece of evidence, which is
directly connected the respondent accused with the crime
in question.
5.2 Ms. Jyoti Bhatt, learned Additional Public Prosecutor
has further submitted that the trial Court miserably failed
to appreciate the evidence in its true and proper spirit
and in consonance with the settle principle of law, mainly
on the ground that the allegation qua the cruelty was not
supported by near and dear ones of the deceased, who
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have deposed before the Court at P.W.1- and P.W.-2 being
a mother and brother of the deceased. She has submitted
that the observation made by the trial Court that neither
of the witnesses has supported the case of the
prosecution is completely erroneous and illegal. She has
further submitted that the deceased died on account of
commission of suicide by sprinkled kerosene over her
body and ignited a match stick due to harassment of the
accused however this fact was not properly considered by
the trial Court in the impugned judgment and order of
acquittal.
5.3 Over and above the aforesaid submissions, learned
APP urges before the Court that present Appeal may be
allowed and the impugned judgment and order of
acquittal may be quashed and set aside.
6. As against that, Mr. Mrudul Barot, learned Counsel
appearing on behalf of the respondent accused has
contended that so far as the allegation qua cruelty meted
out to the deceased is concerned, no independent
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witnesses have supported the said fact. He has submitted
that even the mother and brother of the deceased have
not supported the said facts that whether there was any
cruelty meted out to the deceased and in absence of such
material, the dying declaration recorded by the Executive
Magistrate was also under a doubt, as it was not recorded
in a proper manner.
6.1 Mr. Mrudul Barot, learned Counsel for the respondent
accused has submitted that even that dying declaration
also does not inspire any confidence, as there was no
endorsement made by the doctor that whether the injured
Krushnaba was in condition to depose or give any
statement to Executive Magistrate or not. He has
submitted that except the said piece of evidence in a
nature of dying declaration, there was no material to
connect the respondent accused with the crime in
question. He has submitted that it is also required to be
seen that there was no mens rea which leads to the
deceased for commission of crime and thereby taking an
extreme steps by committing suicide. He has submitted
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that there was no allegation in the dying declaration with
regard to any cruelty except the allegations of household
quarrel and the deceased was beaten, which does not
amount to any cruelty. He has submitted that there was
material contradiction in the dying declaration which was
proved through the evidence of the doctor. He has
submitted that even the treating Dr. Rana has deposed
that the deceased was not in a fit condition to give any
statement and therefore, under such circumstance, the
dying declaration recorded by the Executive Magistrate is
highly doubtful and it is risky to rely upon the said piece
of evidence in absence of the other relevant material and
therefore, the trial Court has rightly discarded and
disbelieved the said piece of evidence while passing the
impugned judgment and order of acquittal. He has
submitted that the concerned P.S.I. has deposed that he
has recorded the F.I.R. and taken the thumb impression
from the leg of the deceased and at the same time, the
Executive Magistrate, who has recorded the dying
declaration, has taken a thumb impression of a right hand
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of the deceased. He has submitted that the doctor has
deposed that the skin of the deceased was completely
burnt and therefore, under such circumstances, both the
documents including the F.I.R. and the dying declaration
bearing the signature / thumb impression of the deceased
create a cloud over the genuineness of the documents.
6.2 In support of his submissions Mr. Barot, learned
Counsel for the respondent accused has referred to and
relied upon the decision in case of Rajesh Vs. State of
Haryana reported in 2020 (15) SCC 359 and more
particularly paragraph Nos. 7 and 9 which read as under:-
“7. It is necessary to refer to Section 306 IPC and Section
107 IPC which reads as under:
“306. Abetment of suicide.–If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine.
107. Abetment of a thing.–A person abets the doing of
a thing, who–
First.–Instigates any person to do that thing; or
Secondly.–Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing;
or
Thirdly.–Intentionally aids, by any act or illegal
omission, the doing of that thing.
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Explanation 1.–A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that
thing.”
9. The term instigation under Section 107 IPC has been
explained in Chitresh Kumar Chopra v. State (Govt. of NCT of
Delhi2) as follows:
“16. Speaking for the three-Judge Bench in Ramesh
Kumar case [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] ,
R.C. Lahoti, J. (as His Lordship then was) said that
instigation is to goad, urge forward, provoke, incite or
encourage to do “an act”. To satisfy the requirement of
“instigation”, though it is not necessary that actual
words must be used to that effect or what constitutes
“instigation” must necessarily and specifically be
suggestive of the consequence. Yet a reasonable
certainty to incite the consequence must be capable of
being spelt out. Where the accused had, by his acts or
omission or by a continued course of conduct, created
such circumstances that the deceased was left with no
other option except to commit suicide, in which case,
an “instigation” may have to be inferred. A word
uttered in a fit of anger or emotion without intending
the consequences to actually follow, cannot be said to
be instigation.
17. Thus, to constitute “instigation”, a person who
instigates another has to provoke, incite, urge or
encourage the doing of an act by the other by
“goading” or “urging forward”. The dictionary meaning
of the word “goad” is “a thing that stimulates someone
into action; provoke to action or reaction” (see Concise
Oxford English Dictionary); “to keep irritating or
annoying somebody until he reacts” (see Oxford
Advanced Learner’s Dictionary, 7th Edn.).”
6.3 Mr. Barot, learned Counsel for the respondent
accused has referred to and relied upon another decision
in case of Gurcharan Singh vs. State of Punjab
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reported in 2020 (10) SCC 200 and more particularly
paragraph Nos.13 to 18 which read as under:-
“13. Section 107 IPC defines “abetment” and in this case, the
following part of the section will bear consideration: –
“107. Abetment of a thing – A person abets the doing of
a thing, who – First-Instigates any person to do that
thing; or
**** **** **** **** ****
Thirdly – Intentionally aids, by any act or illegal
omission, the doing of that thing.”
14. The definition quoted above makes it clear that whenever
a person instigates or intentionally aids by any act or illegal
omission, the doing of a thing, a person can be said to have
abetted in doing that thing.
15. As in all crimes, mens rea has to be established. To prove
the offence of abetment, as specified under Sec 107 of
the IPC, the state of mind to commit a particular crime must
be visible, to determine the culpability. In order to prove
mens rea, there has to be something on record to establish or
show that the appellant herein had a guilty mind and in
furtherance of that state of mind, abetted the suicide of
the deceased. The ingredient of mens rea cannot be assumed
to be ostensibly present but has to be visible and
conspicuous. However, what transpires in the present matter
is that both the Trial Court as well as the High Court never
examined whether appellant had the mens rea for the crime,
he is held to have committed. The conviction of Appellant by
the Trial Court as well as the High Court on the theory that
the woman with two young kids might have committed
suicide, possibly because of the harassment faced by her in
the matrimonial house, is not at all borne out by the evidence
in the case. Testimonies of the PWs do not show that the wife
was unhappy because of the appellant and she was forced to
take such a step on his account.
16. The necessary ingredients for the offence under section
306 IPC was considered in the case SS Chheena Vs. Vijay
Kumar Mahajan1 where explaining the concept of abetment,
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Justice Dalveer Bhandari wrote as under:-
“25. Abetment involves a mental process of instigating
a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the accused
to instigate or aid in committing suicide, conviction
cannot be sustained. The intention of the legislature
and the ratio of the cases decided by this Court is clear
that in order to convict a person under Section 306 IPC
there has to be a clear mens rea to commit the offence.
It also requires an active act or direct act which led the
deceased to commit suicide seeing no option and that
act must have been intended to push the deceased into
such a position that he committed suicide.”
17. While dealing with a case of abetment of suicide in
Amalendu Pal alias Jhantu vs. State of West Bengal2, Dr.
Justice M.K. Sharma writing for the Division Bench explained
the parameters of Section 306 IPC in the following terms:
“12. Thus, this Court has consistently taken the view
that before holding an accused guilty of an offence
under Section 306 IPC, the court must scrupulously
examine the facts and circumstances of the case and
also assess the evidence adduced before it in order to
find out whether the cruelty and harassment meted out
to the victim had left the victim with no other
alternative but to put an end to her life. It is also to be
borne in mind that in cases of alleged abetment of
suicide there must be proof of direct or indirect acts of
incitement to the commission of suicide. Merely on the
allegation of harassment without there being any
positive action proximate to the time of occurrence on
the part of the accused which led or compelled the
person to commit suicide, conviction in terms
of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview
of Section 306 IPC there must be a case of suicide and
in the commission of the said offence, the person who is
said to have abetted the commission of suicide must
have played an active role by an act of instigation or by
doing certain act to facilitate the commission of suicide.
Therefore, the act of abetment by the person charged
with the said offence must be proved and established
by the prosecution before he could be convicted
under Section 306 IPC.
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18. In the case Mangat Ram Vs. State of Haryana3, which
again was a case of wife’s unnatural death, speaking for the
Division Bench, Justice K.S.P. Radhakrishnanan rightly
observed as under:-
“24. We find it difficult to comprehend the reasoning of
the High Court that “no prudent man is to commit
suicide unless abetted to do so”. A woman may attempt
to commit suicide due to various reasons, such as,
depression, financial difficulties, disappointment in
love, tired of domestic worries, acute or chronic
ailments and so on and need not be due to abetment.
The reasoning of the High Court that no prudent man
will commit suicide unless abetted to do so by someone
else, is a perverse reasoning.”
6.4 Mr. Barot, learned Counsel for the respondent
accused has also referred to and relied upon the decision
in case of Velladurai vs. State represented By the
Inspector of Police reported in 2021 (10) SCALE 694
and more particularly paragraph No. 9 which read as
under:-
“9. Now so far as the offence under Section 306 IPC is
concerned, in a case where if any person instigates other
person to commit suicide and as a result of such instigation
the other person commits suicide, the person causing the
instigation is liable to be punished for the offence
under Section 306 IPC for abetting the commission of
suicide. Therefore, in order to bring a case within the
provision of Section 306 IPC, there must be a case of suicide
and in the commission of the said offence, the person who is
said to have abetted the commission of suicide must have
played an active role by an act of instigating or by doing a
certain act to facilitate the commission of suicide. As
observed and held by this Court in the case of Amalendu
Pal (supra), mere harassment without any positive action on
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under Section 306 IPC.
9.1 Abetment by a person is when a person instigates
another to do something. Instigation can be inferred where
the accused had, by his acts or omission created such
circumstances that the deceased was left with no other
option except to commit suicide. In the instant case, the
allegation against the appellant is that there was a quarrel on
the day of occurrence. There is no other material on record
which indicates abetment. There is no material on record
that the appellant-accused played an active role by an act of
instigating the deceased to facilitate the commission of
suicide. On the contrary, in the present case, even the
appellant-accused also tried to commit suicide and consumed
pesticide. Under the circumstances and in the facts and
circumstances of the case and there is no other material on
record which indicates abetment, both the High Court as well
as the learned trial Court have committed an error in
convicting the accused for the offence under Section
306 IPC.”
6.5 Learned Counsel for the respondent accused has also
referred to and relied upon the decision in case of and in
case of Gurucharan Kumar vs. State of Rajasthan
reported in 2003 (2) SCC 698, more particularly
paragraph No. 25 which read as under:-
“25. We may now refer to the suicide note left behind by the
deceased Ex.P-4. The said note reads as under:-
“Sorry. I really mean it. What I am going to do is by my own
will and no one else is responsible for it. Geetu”.
6.6 In view of the above submissions and the decisions of
the Hon’ble Apex Court, learned Counsel for the
respondent urges before the Court that the impugned
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judgment and order of trial Court may be confirmed and
present appeal may be dismissed.
7. I have perused the material available on record as well
as the documents appended thereto. I have also gone
through the impugned judgment and order of acquittal
passed by the trial Court. I have also examined the
evidence recorded by the trial Court.
8. It is appropriate to take into account certain
undisputed facts necessary for deciding present appeal.
That the marriage span of deceased Krushnaba was more
than 10 years having three minor children. During 10
years of marriage span, there was no allegation with
regard to any harassment or cruelty, except the
household quarrel and that was on account of the
drinking habit of the deceased. Even, as per the say of the
deceased, on the day of the incident, there was the only
reason that the quarrel took place and on frighten of all
these, the deceased had committed suicide by pouring a
kerosene on herself and ignited herself. Further, the near
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relative of the deceased, including the mother and
brother were naturally favour the deceased who had
committed suicide however, in present case they have not
supported the case of the prosecution. From their cross-
examinations also the prosecution was unable to cull out
any relevant material, which leads to the conclusion that
present respondent has instigated the deceased to
commit suicide. Even, the independent witnesses have
also not supported the case, then in absence of any other
cogent and relevant materials, it is risky to consider the
dying declaration, as a gospel truth, which also creates a
very serious doubt over the genuineness, as there was a
veracity in the depositions of the doctor who has treated
the deceased and Executive Magistrate who has recorded
the dying declaration.
9. It is also required to be noted herein that the P.S.I.,
who has recorded the F.I.R. has taken the thumb
impression of leg of the deceased, meaning thereby, the
said P.S.I. was not able to take thumb impression of right
or left hand over the statement and at the same time, the
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Executive Magistrate who has recorded the dying
declaration has taken thumb impression of the right hand
of the deceased. In fact, from the deposition of the doctor,
it is impossible to take thumb impression of the deceased
either leg or hand because she was completely burnt and
there was fluid oozing from the burnt skin and therefore,
the doctor has applied an ointment over the burnt skin.
So under such circumstances, it is unbelievable and
indigestible that either of the persons got the thumb
impression of the deceased on the F.I.R. or on the dying
declaration.
10. Upon considering of the above referred facts and in
view of the deposition of the witnesses referred herein
above, it clearly reveals that the deceased from
beginning, when she was taken to the hospital, was not in
a condition or even fit state of mind to give any report to
the P.S.I. or to give any statement in a nature of dying
declaration to the Executive Magistrate. Therefore, either
of the witnesses has not told true and correct facts before
the Court. Therefore, under such circumstances, the said
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piece of evidence requires close scrutiny and on perusal
of the evidence of all the three witnesses being Executive
Magistrate, P.S.I. and the treating doctor, the fact is
completely otherwise and is contrary to each other and
therefore, under such circumstance, the trial Court has
not committed any error while appreciating the evidence
of the prosecution.
11. It is also relevant to note herein that so far as the
allegation with regard to the cruelty is concerned, except
bare words that because of the habit of drinking alcohol,
there was a quarrel between husband and wife and there
was no other allegation in the F.I.R. and in the dying
declaration. If it is considered as it is, then also it does
not amount to cruelty which leads or instigates the
deceased to take such extreme and harsh step by killing
herself. Under such circumstances, I am of the opinion
that the trial Court has not committed any error in
passing the impugned order of acquittal.
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12. After considering all these aspects, the trial court was
justified in passing the impugned judgment and order
while considering the provisions of Section 498A and 306
of the I.P.C. which are reproduced hereunder :
Section 498A-Husband or relative of husband of a woman
subjecting her to cruelty.–
Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall
also be liable to fine.
Explanation.– For the purpose of this section, “cruelty” means–
(a) any willful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such
demand.
Section 306- Abetment of suicide.–
If any person commits suicide, whoever abets the commission of
such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to fine.”
13. On perusal of the above Sections, it appears that the
ingredient of Section 498(A) is not satisfied in present
case. Hence, considering the overall aspects of the case,
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it appears that the prosecution has failed to prove the
charge beyond reasonable doubt.
14. At this stage, it is appropriate to have a glance of the
decision of the Hon’ble Apex Court in case of Nipun
Aneja vs. The State of Uttar Pradesh dated 3.10.2024
passed in Criminal Appeal No. 654 of 2017 wherein the
Hon’ble Supreme Court has held as under:-
“17 This Court in Geo Varghese v. State of Rajasthan and
another reported in (2021) 19 SCC 144, after considering
the provisions of Section 306 of the IPC along with the
definition of abetment under Section 107 of the IPC, has
observed as under:-
“14. Section 306 of IPC makes abetment of suicide a
criminal offence and prescribes punishment for the same.
….
15. The ordinary dictionary meaning of the word ‘instigate’
is to bring about or initiate, incite someone to do
something. This Court in Ramesh Kumar Vs. State of
Chhattisgarh, (2001) 9 SCC 618, has defined the word
‘instigate’ as under:-
“20. Instigation is to goad, urge forward, provoke, incite or
encourage to do “an act”.”
16. The scope and ambit of Section 107 IPC and its co-
relation with Section 306 IPC has been discussed
repeatedly by this Court. In the case of S.S. Cheena
Vs. Vijay Kumar Mahajan and Anr (2010) 12 SCC 190, it
was observed as under:-
“25. Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a thing.
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Without a positive act on the part of the accused to
instigate or aid in committing suicide, conviction cannot be
sustained. The intention of the legislature and the ratio of
the cases decided by the Supreme Court is clear that in
order to convict a person under Section 306 IPC there has
to be a clear mens rea to commit the offence. It also
requires an active act or direct act which led the deceased
to commit suicide seeing no option and that act must have
been intended to push the deceased into such a position
that he committed suicide.””
18 This Court in M. Arjunan v. State, represented by its
Inspector of Police reported in (2019) 3 SCC 315, while
explaining the necessary ingredients of Section 306 of the
IPC in detail, observed as under:-
“7. The essential ingredients of the offence under Section
306 I.P.C. are: (i) the abetment; (ii) the intention of the
accused to aid or instigate or abet the deceased to commit
suicide. The act of the accused, however, insulting the
deceased by using abusive language will not, by itself,
constitute the abetment of suicide. There should be
evidence capable of suggesting that the accused intended
by such act to instigate the deceased to commit suicide.
Unless the ingredients of instigation/abetment to commit
suicide are satisfied, accused cannot be convicted
under Section 306 IPC.”
19 This Court in Ude Singh & Others v. State of
Haryana reported in (2019) 17 SCC 301, held that in order
to convict an accused under Section 306 of the IPC, the
state of mind to commit a particular crime must be visible
with regard to determining the culpability. It was observed
as under:-
“16. In cases of alleged abetment of suicide, there must be
a proof of direct or indirect act(s) of incitement to the
commission of suicide. It could hardly be disputed that the
question of cause of a suicide, particularly in the context of
an offence of abetment of suicide, remains a vexed one,
involving multifaceted and complex attributes of human
behavior and responses/reactions. In the case of
accusation for abetment of suicide, the Court would be
looking for cogent and convincing proof of the act(s) of
incitement to the commission of suicide. In the case of
suicide, mere allegation of harassment of the deceased byPage 23 of 31
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another person would not suffice unless there be such
action on the part of the accused which compels the
person to commit suicide; and such an offending action
ought to be proximate to the time of occurrence. Whether
a person has abetted in the commission of suicide by
another or not, could only be gathered from the facts and
circumstances of each case.
16.1. For the purpose of finding out if a person has abetted
commission of suicide by another; the consideration would
be if the accused is guilty of the act of instigation of the act
of suicide. As explained and reiterated by this Court in the
decisions above referred, instigation means to goad, urge
forward, provoke, incite or encourage to do an act. If the
persons who committed suicide had been hypersensitive
and the action of accused is otherwise not ordinarily
expected to induce a similarly circumstanced person to
commit suicide, it may not be safe to hold the accused
guilty of abetment of suicide.
But, on the other hand, if the accused by his acts and by
his continuous course of conduct creates a situation which
leads the deceased perceiving no other option except to
commit suicide, the case may fall within the four-corners
of Section 306 IPC. If the accused plays an active role in
tarnishing the self-esteem and self-respect of the victim,
which eventually draws the victim to commit suicide, the
accused may be held guilty of abetment of suicide. The
question of mens rea on the part of the accused in such
cases would be examined with reference to the actual acts
and deeds of the accused and if the acts and deeds are
only of such nature where the accused intended nothing
more than harassment or snap show of anger, a particular
case may fall short of the offence of abetment of suicide.
However, if the accused kept on irritating or annoying the
deceased by words or deeds until the deceased reacted or
was provoked, a particular case may be that of abetment of
suicide. Such being the matter of delicate analysis of
human behaviour, each case is required to be examined on
its own facts, while taking note of all the surrounding
factors having bearing on the actions and psyche of the
accused and the deceased.” 20 This Court in Mariano Anto
Bruno & another v. The Inspector of Police reported in
2022 SCC OnLine SC 1387, Criminal Appeal No. 1628 of
2022 decided on 12th October, 2022, after referring to thePage 24 of 31
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above referred decisions rendered in context of culpability
under Section 306 of the IPC observed as under:-
“44. …It is also to be borne in mind that in cases of alleged
abetment of suicide, there must be proof of direct or
indirect acts of incitement to the commission of suicide.
Merely on the allegation of harassment without their being
any positive action proximate to the time of occurrence on
the part of the accused which led or compelled the person
to commit suicide, conviction in terms of Section 306 IPC
is not sustainable.”
21 The ingredients to constitute an offence under Section
306 of the IPC (abetment of suicide) would stand fulfilled if
the suicide is committed by the deceased due to direct and
alarming encouragement/incitement by the accused
leaving no option but to commit suicide. Further, as the
extreme action of committing suicide is also on account of
great disturbance to the psychological imbalance of the
deceased such incitement can be divided into two broad
categories. First, where the deceased is having
sentimental ties or physical relations with the accused and
the second category would be where the deceased is
having relations with the accused in his or her official
capacity. In the case of former category sometimes a
normal quarrel or the hot exchange of words may result
into immediate psychological imbalance, consequently
creating a situation of depression, loss of charm in life and
if the person is unable to control sentiments of
expectations, it may give temptations to the person to
commit suicide, e.g., when there is relation of husband and
wife, mother and son, brother and sister, sister and sister
and other relations of such type, where sentimental tie is
by blood or due to physical relations. In the case of second
category the tie is on account of official relations, where
the expectations would be to discharge the obligations as
provided for such duty in law and to receive the
considerations as provided in law. In normal
circumstances, relationships by sentimental tie cannot be
equated with the official relationship. The reason being
different nature of conduct to maintain that relationship.
The former category leaves more expectations, whereas in
the latter category, by and large, the expectations and
obligations are prescribed by law, rules, policies and
regulations.
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15. It is well settled by catena of decisions that an
Appellate Court has full power to review, re-appreciate
and reconsider the evidence upon which the order of
acquittal is founded. However, Appellate Court must bear
in mind that in case of acquittal there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly,
the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial Court.
16. Further, if two reasonable conclusions are possible
on the basis of the evidence on record, the Appellate
Court should not disturb the finding of acquittal recorded
by the trial Court. Further, while exercising the powers in
appeal against the order of acquittal, the Court of appeal
would not ordinarily interfere with the order of acquittal
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unless the approach of the lower Court is vitiated by
some manifest illegality and the conclusion arrived at
would not be arrived at by any reasonable person and,
therefore, the decision is to be characterized as perverse.
Merely because two views are possible, the Court of
appeal would not take the view which would upset the
judgment delivered by the Court below. However, the
Appellate Court has a power to review the evidence if it is
of the view that the conclusion arrived at by the Court
below is perverse and the Court has committed a
manifest error of law and ignored the material evidence
on record. A duty is cast upon the Appellate Court, in
such circumstances, to re-appreciate the evidence to
arrive to a just decision on the basis of material placed on
record to find out whether the accused are connected
with the commission of the crime with which he is
charged.
17. The scope and principles are enunciated by the
Hon’ble Apex Court in case of Chandrappa and others
Vs. State of Karnataka reported in (2007) 4 SCC 415,
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more particularly paragraph Nos. 42 and 43, which
was subsequently re-affirmed by the Hon’ble Apex Court
Rajesh Prasad Vs. State of Bihar and another,
reported in [2022] 3 SCC 471, wherein, the Hon’ble
Apex Court has enunciated the general principles in case
of acquittal, more particularly in paragraph No. 26 the
general principles are set out by the Hon’ble Apex Court
based upon various decisions of the Hon’ble Apex Court.
Then in case of Babu Sahebagouda Rudragoudar Vs.
State of Karnataka, reported in AIR 2024 SC 2252 =
(2024) 8 SCC 149, the Hon’ble Apex Court has dealt
with the similar issue, more particularly, in paragraph
Nos. 37 to 40. Hence, I am in complete agreement with
the findings recorded by the trial Court.
18. It is also worthwhile to refer to the recent decision
of the Hon’ble Supreme Court in the case of Ramesh vs.
State of Karnataka, reported in [2024] 9 SCC 169,
wherein the Hon’ble Supreme Court has held and
observed in paras-20 and 21 as under:-
“20. At this stage, it would be relevant to refer to the
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general principles culled out by this Court in Chandrappa
and others vs. State of Karnataka , regarding the power of
the appellate Court while dealing with an appeal against a
judgment of acquittal. The principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”, “very
strong circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of “flourishes of
language” to emphasize the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the
court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court.
21. In Rajendra Prasad v. State of Bihar, a three-Judge
Bench of this Court pointed out that it would be essential for
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the High Court, in an appeal against acquittal, to clearly
indicate firm and weighty grounds from the record for
discarding the reasons of the Trial Court in order to be able
to reach a contrary conclusion of guilt of the accused. It was
further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses and it is
absolutely imperative that the High Court convincingly finds
it well-nigh impossible for the Trial Court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice. Viewed in this
light, the brusque approach of the High Court in dealing
with the appeal, resulting in the conviction of Appellant Nos.
1 and 2, reversing the cogent and well-considered judgment
of acquittal by the Trial Court giving them the benefit of
doubt, cannot be sustained.”
19. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the
present accused with the alleged crime and the evidence
on record is not so convincing to prove beyond
reasonable doubt that the accused has committed the
alleged crime. Therefore, the accused cannot be
convicted on the evidence on record.
20. On perusal of the impugned judgment and order, it
clearly transpires that the trial Court has not committed
any error of fact and law in appreciating the evidence on
record and in acquitting the accused from the charges
levelled against him. Even, on reappreciation of the
evidence, it clearly transpires that the prosecution has
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miserably failed to prove the charge levelled against the
accused beyond reasonable doubt. Therefore, the
impugned judgment and order of the trial Court is
sustainable and the present appeal is liable to be
dismissed.
21. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the trial Court is hereby confirmed. Bail bond
stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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