Gujarat High Court
Narbheram Karshanbhai Baraiya vs State Of Gujarat on 6 August, 2025
NEUTRAL CITATION
R/CR.A/1342/2011 JUDGMENT DATED: 06/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1342 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
No.
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NARBHERAM KARSHANBHAI BARAIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR CHETAN K PANDYA(1973) for the Appellant(s) No. 1
MR HRIDAY BUCH(2372) for the Opponent(s)/Respondent(s) No. 2,3,4
MS. CHETNA SHAH, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 06/08/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant – original complainant
under Section 372 of the Code of Criminal Procedure, 1973 against the
judgment and order of acquittal passed by learned Additional Sessions
Judge, Rajkot (hereinafter referred to as “the learned Trial Court”) in
Sessions Case No. 92 of 2010 on 09.09.2011, whereby, the learned Trial
Court has acquitted the respondent Nos. 2 to 4 for the offence punishable
under Sections 498(A), 306 and 114 of the Indian Penal Code, 1860
(hereinafter referred to as the IPC) and Sections 3,5 and 7 of the Dowry
Prohibition Act, 1961 (hereinafter referred to as the Act).
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accused as they stood in the rank and file in the original case for the sake
of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as
under:-
2.1 The accused No 1 was the husband of Dakshaben, the daughter of
the complainant Narbherambai Karshanbhai, and the accused Nos. 2 and
3 were the uncle and aunt of deceased Dakshaben. The accused would
physically and mentally harass Dakshaben and demand money from her
and as Dakshaben was fed up of the mental and physical harassment, on
12-03-2010, at around 15:00 hours, while she was at Madhav Park, 150
feet ring road, she sprinkled kerosene on herself and set herself ablaze
and expired. The complainant filed the complaint at Rajkot City Mahila
Police Station under Section 498 (A), 306, 504 and 14 of the IPC, which
came to be registered as Rajkot City Mahila Police Station, III-C.R. No.3
of 2010.
2.2 The Investigating Officer recorded the statements of the connected
witnesses and seized the necessary documents and after completion of
investigation, a chargesheet came to be filed before the Court of Chief
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Judicial Magistrate, Rajkot and as the said offences against the accused
were exclusively triable by the Court of Sessions, the case was committed
to the Sessions Court, Rajkot as per the provisions of Section 209 of the
Code of Criminal Procedure and case was registered Sessions Case No.
92 of 2010.
2.3 The accused were duly served with the summons and the accused
appeared before the learned Trial Court, and it was verified whether the
copies of all the police papers were provided to the accused as per the
provisions of Section 207 of the Code. A charge at Exh. 16 was framed
against the accused and the statements of the accused were recorded at
Exh. 17, wherein, the accused denied all the contents of the charge and
the entire evidence of the prosecution was taken on record.
2.4 The prosecution produced eight oral evidence and sixteen
documentary evidence to bring home charge against the accused and after
the learned Additional Public Prosecutor filed the closing pursis, the
further statement of the accused under Section 313 of the Code of
Criminal Procedure, 1973 were recorded, wherein, the accused denied all
the evidence of the prosecution on record. After the arguments of the
learned Additional Public Prosecutor and the learned advocate for the
accused were heard, the learned trial Court by the impugned judgment
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and order was pleased to acquit all the accused from all the charges
leveled against them.
3. Being aggrieved and dissatisfied with the said judgment and order
of acquittal, the appellant – original complainant has filed the present
appeal mainly stating that the impugned judgment and order is contrary to
evidence on record and law and facts and the learned trial Court has
failed to appreciate that the marriage span is about two years only. The
learned Trial Court has failed to appreciate that the witnesses have given
evidence that the deceased was subjected to cruelty for dowry and the
deceased mother and brother had given Rs. 7000/- to the deceased in two
installments. The learned Trial Court has also failed to appreciate that the
accused has not been able to show that the deceased was under depression
or was under medical treatment for depression. The learned Trial Court
has failed to appreciate that the appellant – original complainant has
categorically stated that he was under a shock and was unable to take
decisions and did not immediately lodge the FIR, and the deceased was
aware about the financial condition of her parents and that they would be
unable to satisfy the dowry demand and hence she committed suicide.
The learned Trial Court has also failed to appreciate that the postmortem
report does not suggest that the deceased was pregnant, whereas, the
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accused has not brought on record any document to show that the
deceased was two-month pregnant and was under tension and depression.
The learned Trial Court has been influenced by the fact that the
“Stridhan” of the deceased was returned by the appellant and the learned
Trial Court has erred in holding that the amount of Rs.7000/- might have
been given as a routine practice contrary to the evidence that the same
was given against the dowry and the impugned judgment and order of
acquittal is contrary to law, evidence and record and is required to be
quashed and set aside.
4. Heard learned advocate Mr. Chetan K. Pandya for the appellant –
original complainant, learned APP, Ms. Chetna Shah for the respondent
No. 1 – State and learned advocate Mr. Param Buch for learned advocate
Mr. Hriday Buch for the respondent Nos. 2 to 4. Perused the impugned
judgment and order of acquittal and have re-appreciated the entire
evidence of the prosecution and record.
5. Learned advocate Mr. Chetan K Pandya for the appellant has taken
this Court through the entire evidence of the prosecution and record and
has stated that the appellant – complainant is an uneducated agriculturist
residing in a remote village and he came to know after the incident that
his son and wife had given Rs.7000/- in two installments of Rs.4000/-
and Rs.3000/- to the deceased. The appellant has stated that he was in a
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shock and was unable to file the complaint earlier and Manjulaben
Narbheram Baraiya, the mother of the deceased and Hareshbhai
Narbheram Baraiya – the brother of the deceased have admitted that they
had given the amount of Rs.7000/- to the accused. Kishorebhai
Maganbhai, the cousin of the deceased has also deposed that he was
informed that the deceased had committed suicide because of the cruelty
administered by the accused for dowry demand of Rs.5000/- and he was
aware that Rs.2000/- and Rs.3000/- was given by was given to the
deceased. The Medical Officer who has performed the postmortem did
not find that the deceased was pregnant and the cause of death is
mentioned as cardio-respiratory failure due to shock due to whole body
burns. Learned advocate has submitted that the marriage was performed
in the year 2008 and the deceased had committed suicide on 12-03-2010
and the FIR was registered at Mahila Police Station, Rajkot. The
deceased has committed suicide as she was aware that her parents would
not be able to satisfy the demands of dowry and she would be subjected
to cruelty to get the dowry. Learned advocate submits that the family of
the deceased was so poor that they were unable to satisfy the demand of
dowry and the deceased had no other option but to commit suicide as she
was unable to bear the harassment and cruelty administered by the
accused. Learned advocate further submits that the deceased had
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committed suicide within 7 years of marriage and hence the presumption
under Section 113-A of the Evidence Act is to be drawn as the condition
to apply the section has been fulfilled. Moreover, there is no evidence on
record to show that the deceased was pregnant and there is no evidence to
show that the deceased was under depression and was taking medical
treatment for depression. The pathologist examined by the respondent
No. 2 to 4 is not the competent doctor to diagnose the disease and the
witness did not expressly say in his report that the accused No.1 was not
able to father a child. As the prosecution had proved the case beyond
reasonable doubts and had proved that the deceased committed suicide,
the presumption that the suicide was due to the mental and physical
harassment must be made and the appeal must be allowed. As the order
passed for the learned trial court is without proper appreciation of the
evidence and the judgment and order is illegal, improper and perverse the
same is required to be quashed and set aside.
6. Learned Additional Public Prosecutor Ms. Chetna Shah and
learned advocate Mr. Param Buch for the respondent Nos. 2 to 4 have
jointly submitted that the Medical Officer Dr. Alpaben Jagdishbhai
Jethwa examined at Exhibit 24 has indicated that depression could be a
mitigating factor in cases of suicide and persons suffering from
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depression can have suicidal tendencies. The complainant has not
explained as to why he and his family members had filed the FIR after a
delay of 3 days and the complainant has admitted that after he received
the call about the death of his daughter, he had gone to the hospital and
the dead body of the deceased was handed over to the accused for the
cremation rituals. He has further admitted that he did not have any
knowledge about the alleged domestic violence, by which, his daughter
was subjected to till she died and he also did not have any knowledge
about any demand for dowry from the accused. As far as the conduct of
the father of the deceased is concerned, he has admitted that he reached
home and directly went to sleep and in the next morning, he told his
family members about the unfortunate incident and death of his daughter
they decided to visit the matrimonial home of the deceased and then think
about what steps should be taken by them. The complainant has also
admitted that all “Stridhan” was returned to the family of the deceased on
11-05-2010 and out of all the ornaments, two rings were missing and the
accused paid the amount of rings in cash to the complainant. The mother
of the deceased has also admitted that whenever, she visited her daughter
after marriage, her daughter never complained about any ill-treatment and
after her husband returned from Rajkot, only on the next day she was
informed about the incident that had taken place. Haresh Narbheram
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Baraiya – the brother of the deceased has admitted that he cannot recall
the exact date and time when his mother had given Rs.4000/- and
Rs.3000/- to the deceased. The only independent witness Meenaben
Nalinbhai Mehta, who is the neighbour of the deceased has not supported
the case of the prosecution and has been declared hostile. Whereas, the
accused have examined Dr. Rajesh Bhaganbhai Asaliya where the
accused No. 1 was undergoing treatment for impotency and he has
specifically deposed that the accused No. 1 was incapable of fathering a
father in natural course. Learned advocates submit that the complainant
has in fact disowned his own version and not supported the case of the
prosecution and the contents of the FIR and the main ingredient to
constitute the offence of suicide is instigation to commit suicide. There is
no iota of evidence on record that there was any instigation by any of the
accused persons, which could lead to suicide of the deceased and there is
no evidence that the accused had at any point of time harassed the
deceased. The Investigating Officer clearly states that the complainant
had given a statement about his daughter’s pregnancy and this fact
assumes significance considering the fact that the accused No. 1 was
suffering from impotency and was undergoing treatment for the same and
Dr. Rajesh Bhaganbhai Asaliya – the defence witness has specifically
stated that the accused was not capable to bear a child in natural course.
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Learned advocate submits that the learned Trial Court has not committed
any error of fact in assigning the reasons in acquitting the accused and the
learned Trial Court has minutely examined the evidence and has properly
appreciated the evidence on record and there is no exceptional
circumstances to find the impugned judgment so as to make it a case of
perverse acquittal and hence the appeal of the appellant must be rejected.
Learned advocate has placed reliance on the following judgments:
1. Prakash and Others Versus State of Maharashtra and
Another , reported in 2024 SCC Online SC 3835;
2. Ayyub and Others Versus State of Uttar Pradesh and
Another reported in 2025 SCC Online SC 259;
3. Sekaran Versus State of Tamil Nadu reported in (2024) 2
Supreme Court Cases 176.
7. At the outset, before discussing the facts of the present case, it
would be appropriate to refer to the observations of the Apex Court in
acquittal appeals in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has
observed as under:
Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 : AIR 2006 SC
831, this Court stated; “While deciding an appeal against acquittal,
the power of the Appellate Court is no less than the power exercised
while hearing appeals against conviction. In both types of appeals,
the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be
interfered with, by an appellate court, where the judgment of the trial
court is based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the trial court merelyPage 10 of 27
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because a different view is possible. The appellate court will also bear
in mind that there is a presumption of innocence in favour of the
accused and the accused is entitled to get the benefit of any doubt.
Further if it decides to interfere, it should assign reasons for differing
with the decision of the trial court”. (emphasis supplied)From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing
with an appeal against an order of acquittal emerge;
(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 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..
8. The law with regard to acquittal appeals is well crystallized and in
acquittal appeals, there is presumption of innocence in favour of the
accused and it has finally culminated when a case ends in an acquittal.
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The learned Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the prosecution has not
proved the case beyond reasonable doubts, the presumption of innocence
in favour of the accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after re appre-
ciation, the view taken by the learned Trial Court was a possible view,
there is no reason for the Appellate Court to interfere in the same.
9. As the appeal pertains to a case under Section 306 of the IPC, it
would be appropriate to reproduce the observations of the Hon’ble Apex
Court in the case of Mahendra Awase vs The State of Madhya
Pradhesh Criminal Appeal No. 221/2025 (@ SLP(Cr) No.
11868/2023) passed on 17th January, 2025 which is as under:
11. Section 306 of the IPC 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.”
12. Section 107 of the IPC reads as under:-
“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; orPage 12 of 27
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Thirdly. – Intentionally aids, by any act or illegal omission, the doing
of that thing.”
As is clear from the plain language of the Sections to attract the
ingredient of Section 306, the accused should have abetted the
commission of a suicide. A person abets the doing of a thing who
Firstly – 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.
13. In Swamy Prahaladdas vs. State of M.P. and Another, [1995 Supp
(3) SCC 438], the appellant remarked to the deceased that ‘go and
die’ and the deceased thereafter, committed suicide. This Court held
that:-
“3. …Those words are casual nature which are often employed in the
heat of the moment between quarreling people. Nothing serious is
expected to follow thereafter. The said act does not reflect the
requisite ‘mens rea’ on the assumption that these words would be
carried out in all events. …”
14. In Madan Mohan Singh vs. State of Gujarat and Another, (2010) 8
SCC 628, this Court held that in order to bring out an offence under
Section 306 IPC specific abetment as contemplated by Section 107
IPC on the part of the accused with an intention to bring about the
suicide of the person concerned as a result of that abetment is
required. It was further held that the intention of the accused to aid or
to instigate or to abet the deceased to commit suicide is a must for
attracting Section 306.
15. In Amalendu Pal alias Jhantu vs. State of West Bengal, (2010) 1
SCC 707, this Court held as under:-
“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 thePage 13 of 27
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person to commit suicide, conviction in terms of Section 306 IPC is
not sustainable. [Emphasis supplied]
16. 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.
17. M. Mohan vs. State, (2011) 3 SCC 626 followed Ramesh Kumar
vs. State of Chhattisgarh, (2001) 9 SCC 618, wherein it was held as
under:-
41. This Court in SCC para 20 of Ramesh Kumar has examined
different shades of the meaning of “instigation”. Para 20 reads as
under: (SCC p. 629)
“20. 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. The present one is
not a case 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 been inferred. A word uttered in
the fit of anger or emotion without intending the consequences to
actually follow cannot be said to be instigation.”
In the said case this Court came to the conclusion that there is no
evidence and material available on record where-from an inference of
the appellant accused having abetted commission of suicide by Seema
(the appellant’s wife therein) may necessarily be drawn.”
Thereafter, this Court in Mohan (supra) held:-
45. The intention of the legislature and the ratio of the cases decided
by this Court are 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 this act must have been intended
to push the deceased into such a position that he/she committed
suicide.” [Emphasis supplied]Page 14 of 27
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10. In light on the above settled principles of law and considering the
evidence of the prosecution on record, to bring home the charge against
the accused, the prosecution has examined Prosecution Witness No.1 –
Dr. Alpa Jagdishbhai Jethwa at Exhibit 24 and the witness is the Medical
Officer, who was on duty at Civil Hospital, Rajkot on 12-3-2010 when
the dead body of deceased Dakshaben wife of Jitendrabhai Kanani was
brought for postmortem. The witness has stated that she had performed
the postmortem on the same day between 7.40 hours to 8.40 hours and
has produced the postmortem note at Exhibit 25. As per column No. 17,
there were 2 degree and 3 degree deep burns over whole body except sole
of both feet. A sign of red inflammation and redness was seen over the
burnt area and there was signing of hair and no external injury except
burn injuries. The injuries were antemortem in nature and the uterus was
bulky and about 8 cm in size. The final cause of death was cardio
respiratory failure due to shock due to whole body burns.
During the cross-examination by the learned advocate for the
accused, the witness has stated that if a person was suffering from
depression, there would be a tendency of that person to commit suicide.
The witness has also produced the cause of death certificate at Exhibit 27.
10.1 Prosecution Witness No. 2 - Narbheram Karshanbhai
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examined at Exhibit 30 is the complainant and father of deceased
Dakshaben. The witness has supported the contents of the complaint
produced at Exhibit 31.
During the cross-examination by the learned advocate for the
accused, the witness has stated that he has 35 Vighas of agricultural land
and his son Harish is doing work of diamond polishing. The deceased
was working in Ajanta Watch in Morbi and when he came home, his
younger daughter Hetal was at home and he was informed about the
incident but even though his son has a mobile he did not inform his son
about the incident. After they had decided to get his daughter married, the
marriage had taken place 2-3 months thereafter and the funeral ceremony
was at their village and the accused and all the family members had
attended the same. His daughter was very sensitive in nature and he
reached the government hospital, Rajkot at about 7 pm, the accused were
all present and he was handed over the dead body of the deceased and
thereafter he handed over the same to the accused. After he saw the dead
body of his daughter he did not telephone his wife and tell her about the
incident and did not call his wife for the funeral rites of his daughter. A
number of persons from their village had come by auto- rickshaw and he
was not present at the funeral of his daughter. He had gone home and
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reached home at around 10.45 pm but did not inform any of his family
members and on the next morning when he woke up at around 6 am he
informed the family members about the demise of his daughter. His
family members had stated that they would go and thereafter think about
what has to be done and the accused No. 1 is residing with his uncle and
aunt at Rajkot. The incident had taken place on 12-03-2010 and the
complaint was filed on 15-03-2010. All the items given during the
wedding to his daughter and her ornaments were returned to him and
during the marital life of his daughter, she had never come back to the
parental house due to any dispute at her matrimonial home. During the
marital life, no complaint about ill treatment was filed by his daughter or
by him and the witness has denied that before the Assistant
Commissioner of Police he had given a statement that his daughter did
not have any child but was two months pregnant.
10.2 Prosecution Witness No. 3 – Manjulaben Narbheran
examined at Exhibit 33 is the mother of the deceased and wife of the
complainant and she has stated that the accused had demanded Rs
50,000/- to purchase a house and she had given Rs 4,000/- and thereafter
had given Rs 3,000/ to her daughter. In the cross-examination the witness
has admitted that the accused had two sisters Vanita and Jayshree and
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they were married in the same village and her daughter’s marriage was
fixed by the father-in-law of Vanita and Jayshree and her daughter was
engaged for 5-6 months. After marriage her daughter had come to her
parental house 2-3 times and she had never complained about any ill
treatment even on the telephone. In their community whenever the
daughter comes to the house during her marriage, she would be given
some gift and on the date of the incident, she does not know for what
work her husband had gone to Rajkot. Her son had gone for his work of
diamond polishing and had returned at around 8 pm and he had a mobile
phone with him but she did not tell him that her husband had gone to
Rajkot. When her husband had returned at night they were sleeping but
they did not wait up for him and he did not wake them. She did not
inform her husband that she had given her daughter Rs.4000/- and
Rs.3000/- and she had gone to her daughter’s house but there was no
discussion about any money to be given at that time.
10.3 Prosecution Witness No. 4 – Harishbhai Narbheram
examined at Exhibit 34 is the brother of the deceased and son of the
complainant and he has stated that the accused had demanded for an
amount of Rs. 50,000/- to purchase a house and he had given her an
amount of Rs.4000/- and thereafter an amount of Rs. 3000/-. On the date
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of the incident, he had gone for his work at Morbi and on the next
morning at 6:00 am, his father had informed him that his sister had
expired and he came to know about the unfortunate incident on the next
day.
During the cross examination, the witness has stated that if a
person wanted to buy a house in Morbi, it would cost about
Rs.15,00,000/- to Rs.20,00,000/- and in Rajkot it was cost about
Rs.25,00,000/- to Rs.30,00,000/-. The witness has also admitted that in
his statement before the police, he has not stated that the accused had
demanded for an amount of Rs. 50,000/- and he did not inform his father
that an amount of Rs.4000/- and thereafter an amount of Rs.3000/- was
given to his sister. He cannot say, in which month, or in which year or on
what day the amount of Rs. 4000/- and Rs.3000/- were given to his sister.
10.4 Prosecution Witness No. 5- Kishorebhai Maganbhai
examined at Exhibit 35 is the cousin of the deceased and he has supported
the case of the prosecution. The witness has stated that he came to know
about the incident on the next day and he is aware that an amount of
Rs.2000/- to Rs.3000/- has been given to the deceased earlier.
During the cross examination, the witness has admitted that in his
statement before the Police Station, he has stated he had came to know
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about the incident on 12.03.2010 in the evening, when his aunt
Manjulaben had informed him that Dakshaben had sustained burnt
injuries.
10.6 Prosecution Witness No. 6 – Meena (Minakshiben)
Nalinbhai Mehta examined at Exh. 36 is the neighbour of the deceased
and accused No. 1 but the witness has not supported the case of the
prosecution and has stated that she did not witness any quarrel between
the accused the deceased. The witness has been declared hostile and
cross examined at length by the learned Additional Public Prosecutor and
during the cross examination by the learned advocate for the accused, the
witness has stated that the officer of the fire brigade had come and had
broken a window and entered in the house. Deceased Dakshaben was
residing with the uncle and aunt of the accused No. 1 and she was being
kept well. She would frequently visit the house of the deceased and the
deceased would go to her house also and she had never known of any
harassment to the deceased.
10.7 Prosecution Witness No. 7 – Ganpatprasad Banarashiprasad
Kanikubj examined at Exhibit 48 is the Investigation Officer, who has
narrated the procedure undertaken during investigation.
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During the cross examination, the witness has stated that the place
of incident was shown by the accused No. 1 and near the main door was a
window which was broken. The place of incident was a bathroom and
was in a residential area.
10.8 Prosecution Witness No. 8 – Aminabanu Habibbhai Gori
examined at Exhibit 46 is the Investigating Officer who has taken over
the investigation and narrated the entire procedure undertaken by her
during investigation.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the complainant had given a written
complaint and on 12.03.2010, the statement of the complainant was
recorded by the Assistant Commissioner of Police in the Accident Death
Case wherein, he has stated that his daughter did not have any children
but was two months pregnant and during the three years of her marital
life, she did not have any harassment from her in-laws. He had also stated
that he did not have any doubt on anyone and did not want to file a police
complaint. The witness has also stated that the incident had occurred on
12.03.2010 at 15:00 hours and the complaint was filed on 15.03.2010 at
23.05 hours, wherein the complainant did not give any reason for the
delay in filing of the complaint. Witness Meenaben had stated in her
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statement that the employees of the fire brigade were present and they
had broken the window and taken the deceased to hospital. During
investigation, it was also found that the accused No. 1 had some physical
disability and could not father a child and he was under medication for
the same. Moreover, the witnesses had not stated the date, the year or the
denomination of the amount that was given.
After the closing pursis was filed by the learned APP at Exhibit 48,
the further statement of the accused was recorded, wherein the accused
denied all the evidence of the prosecution and stated that a false case has
been filed against them. The accused refused to step into the witness box
but stated that they wanted to examine one witness and the accused No. 1
further stated that he was the husband of the deceased and was married to
her for about 3 years but they did not have a child. He had himself
examined by Dr. Rajesh Hasaliya who was MD (Pathology) on
01.07.2009 and 16.09.2009 and as per the report of High-Tech Diagnostic
Hospital Private Limited, Rajkot, he had a physical defect and could not
father a child. His wife was tense and on 11.03.2010 she was taken to
Satnam Hospital Rajkot and was treated by Dr. Ajita J Sakaria and it was
found that she had a pregnancy of 8 weeks but as she knew about his
inability to father a child she did not tell him about the pregnancy and
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was in tension and the next day while she was alone and he and his uncle
Dhirubhai had gone for work, she shut the door and committed suicide.
The father of the accused No. 1 had expired when he was young and he
was residing with his uncle and aunt.
10.9 The accused have examined Defense Witness No. 1 Dr. Rajesh
Bhaganbhai Hasalia at Exhibit 54 and the witness has stated that he is an
MD in Pathology and has an experience of 22 years as a private
practitioner. On 01.07.2009 and on 16.09.2009 Jitendrabhai Kanani had
come to him and as per his reports, he could not father a child and it
would be a miracle if he could father a child. The reports dated
01.07.2009 and 16.09.2009 are produced at Exhibit 55 and Exhibit 56
respectively.
During the cross examination by the learned advocate for the
accused, the witness has stated that he could not state as to by which
doctors reference the accused No. 1 had come and he could not state
whether the accused No. 1 had shown the reports to a doctor and was
advised about the diet to be maintained. The witness has stated that as per
the report he had opined that the chances of fathering a child of the
accused No. 1 were negligible.
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prosecution, the incident has occurred on 12.03.2010 and the conduct of
the complainant, after the incident, cannot be said to be natural. The
complainant has stated that he had received the telephone call that the
incident has occurred and he went and the dead body of his deceased
daughter was handed over to him but he handed over to the same to her
in-laws. Thereafter he went home and slept and he informed his family
members i.e. his wife, son and younger daughter only on the next
morning. It has also emerged on record that Prosecution Witness No. 4
Hareshbhai Narbheram – the son of the complainant and brother of the
deceased was working as a diamond polisher in Morbi and he had a
mobile phone with him but for reasons best known to the complainant he
did not inform his son about the unfortunate incident that had taken place.
The complaint has been filed after a delay of two days and as per the
evidence of the investigating officer Prosecution Witness No. 8
Aminabanu Habibbhai Gori, an Accident Death Report was filed and the
statement of the complainant was recorded by the Assistant
Commissioner of Police, wherein, the complainant has stated that his
daughter Dakshaben did not have children but she was two months
pregnant. Before the Assistant Commissioner of Police the complainant
had also admitted that his daughter was not subjected to any cruelty by
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her in-laws and he did not have any doubt on any person and he did not
want to file a case against anyone. Prosecution Witness No. 3 Manjulaben
Narbheram – the mother of the deceased and Prosecution Witness No. 4 –
Hareshbhai Narbheram – the brother of the deceased have both stated that
the accused were demanding for cash as dowry from the deceased and on
one occasion they had given Rs.4000/- and Rs.3000/- on the other
occasion but they have not specifically stated the date, time place or the
day or the denomination of notes in which the amount was given.
Moreover, the complainant has stated that he did not know that his wife
and his son had given any amount to the deceased and there is no iota of
evidence that the accused had ever demanded for any amount of dowry. It
is the defense of the accused that the accused was unable to father a child
and he had undergone examination with Defense Witness Dr. Rajesh
Bhaganbhai Hasaliya who was an MD pathology and as per his reports
produced at Exhibit 55 and Exhibit 56, the chances of him fathering a
child were negligible. In the evidence of the Investigating Officer
Prosecution Witness No. 10 Ameenabanu Habibbhai Gori has also
emerged on record that the deceased was 8 weeks pregnant and it appears
that in view of the reports at Exhibit 55 and Exhibit 56, the deceased
would be under stress and it is also an admitted position that at the time
of the incident the deceased was alone at home. The accused Nos. 1 and 2
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had gone for work. The postmortem report produced at Exhibit 25 also
states that the uterus of the deceased was bulky and about eight
centimeter in size. There is no iota of evidence on record that the accused
had any time preceding the incident abetted the act of the deceased to
commit suicide and there is no iota of evidence that at any point of time
during the marital life any harassment was meted out to the deceased by
the accused and that she was left with no other alternative but to put an
end to her life. The mother of the deceased has categorically stated that
her daughter had never complained to her about any ill treatment meted
out to her by the accused and during the entire marriage marital life there
was no complaint filed about any ill treatment to the deceased. The
complainant has admitted that he has never filed any complaint about any
ill-treatment and before the Assistant Commissioner of Police had
categorically stated that his daughter was not subjected to any act of
harassment by any of the deceased and he did not want to file a
complaint.
11. In view of the settled position of law in the decisions of
Mahendra Awase (supra), the learned trial Court has appreciated the
entire evidence in proper perspective and there does not appear to be any
infirmity and illegality in the impugned judgment and order of acquittal.
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The learned trial Court has appreciated all the evidence and this Court is
of the considered opinion that the learned trial Court was completely
justified in acquitting the accused of the charges leveled against them.
The findings recorded by the learned Trial Court are absolutely just and
proper and no illegality or infirmity has been committed by the learned
trial Court and this Court is in complete agreement with the findings,
ultimate conclusion and the resultant order of acquittal recorded by the
learned Trial Court. This Court finds no reason to interfere with the
impugned judgment and order and the present appeal is devoid of merits
and resultantly, the same is dismissed.
12. The impugned judgment and order of acquittal Case No. 92 of
2010 on 09.09.2011, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith. passed by learned Additional
Sessions Judge, Rajkot in Sessions Case No. 92 of 2010 on 09.09.2011, is
hereby confirmed.
15. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
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