Gujarat High Court
State Of Gujarat vs Jadeja Bharatsinh Bhagwanji on 31 January, 2025
NEUTRAL CITATION
R/CR.A/242/2008 JUDGMENT DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 242 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
NO
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STATE OF GUJARAT
Versus
JADEJA BHARATSINH BHAGWANJI & ORS.
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Appearance:
MR HR PRAJAPATI(674) for the Appellant(s) No. 1
MS NISHKA H PRAJAPATI(10717) for the Appellant(s) No. 1
MR.BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR DHARMESH V SHAH(1050) for the Opponent(s)/Respondent(s) No. 1,2,3
RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 31/01/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal passed by the learned Additional
Sessions Judge, Patan (hereinafter referred to as “the learned Trial
Court”) in Sessions Case No. 61 of 2006 on 03.03.2007, whereby, the
learned Trial Court has acquitted the respondents for the offence
punishable under Sections 306, 498-A and 114 of Indian Penal Code,
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1860 (hereafter referred to as “IPC” for short) and Sections 3 and 7 of
The Dowry Prohibition Act, 1961 (hereafter referred to as “Dowry Act”
for short).
1.1 The respondents are hereinafter referred to as the accused in the
rank and file as they stood 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 That the marriage of the deceased Hetalba had taken place with the
accused No. 1 around twelve months prior to the incident and the
accused Nos. 2 and 3 are the father-in-law and mother-in-law of deceased
Hetalba. The accused would torture and harass deceased- Hetalba to
bring jewelry and money from her parental house and on 18/04/2006, the
deceased sprinkled kerosene on herself and committed suicide. Her
father – Kirtising Mohabatsing Solanki filed a complaint on the same day
under Sections 498-A, 306 and 114 of the IPC and Sections 3 and 7 of
the Prevention of Dowry Act, which was registered at C.R.No. 22 of
2006 at Santalpur Police Station.
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 learned Judicial
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Magistrate First Class, Radhanpur and as the offences against the
accused were exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Patan as per the provisions of Section
209 of the Code of Criminal Procedure and case was registered Sessions
Case No. 61 of 2006.
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 and a charge at Exh. 17 was
framed against the accused and the statements of the accused were
recorded at Exh. 18 to 20 respectively, 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 8 oral evidences and 13 documentary
evidences to bring home the charge against the accused and after the
learned Additional Public Prosecutor filed the closing pursis at Exh. 46,
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. The accused refused to step
into the witness box but examined the following witnesses on their
behalf and stated that a false case has been filed against them.
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and the learned advocate for the accused were heard, the learned trial
Court by the impugned judgment and order was pleased to acquit all the
accused from all the charges leveled against him.
3. Being aggrieved and dissatisfied with the said judgement and
order of acquittal, the appellant – State has filed the present appeal
mainly stating that the impugned judgement and order of acquittal passed
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by the learned Trial Court is contrary to law and evidence on record and
the learned Trial Court has not appreciated the fact that all the witnesses
have supported the case of the prosecution and during cross-examination,
nothing adverse has been elicited in favour of the respondents. The case
has been proved beyond reasonable doubts and the prosecution has
successfully established the case against the respondents and the
judgement and order of acquittal is unwarranted, illegal and without any
basis in the eyes of law and the reasons stated while acquitting the
respondent are improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court deserves to be
quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant-State
with learned advocate Mr. H.R.Prajapati original complainant, and
learned advocate Mr. Dharmesh Shah for the respondents. Perused the
impugned judgement and order of acquittal and have reappreciated the
entire evidence of the prosecution on record of the case.
5. Learned APP Mr. Bhargav Pandya with learned advocate Mr. H.R.
Prajapati has taken this Court through the entire evidence of the
prosecution on record of the case and have submitted that the learned
trial Court has not appreciated that the prosecution has proved the case
beyond reasonable doubts and the witnesses have supported the case of
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the prosecution and it is also proved that deceased Hetalba died due to
extensive burns which was 91% over her body. That the learned trial
Court has relied upon the evidence adduced by the accused that there was
no cruelty by them to the deceased but the evidence of the prosecution
has proved otherwise and the learned trial Court has not properly
appreciated this evidence. That in-fact, there is sufficient material to
show that deceased Hetalba was subjected to cruelty by the respondents
and she had committed suicide shortly after her marriage and, hence, the
learned APP has urged this Court that the impugned judgement and order
is improper, perverse and bad in law and deserves to be quashed and set
aside.
6. Learned advocate Mr. Dharmesh Shah for the respondents has
submitted that the learned Trial Court has appreciated all the evidences
and passed the impugned judgement and order of acquittal which is just
and proper and no interference is required in the same and learned
Advocate for the respondents has urged this court to reject the appeal of
the appellant.
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
regarding acquittal appeals in the case of Chandrappa & Ors. Vs. State of
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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
merely 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 phraseology 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 criminalPage 7 of 30
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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.
7.1 The Apex Court in yet another recent decision in case of Sri
Dattatraya Vs. Sharanappa arising out of Criminal Appeal No. 3257 of
2024 (@ SLP (Crl.) No. 13179 of 2023) observed as under:
31. The instant case pertains to challenge against concurrent
findings of fact favoring the acquittal of the respondent, it
would be cogent to delve into an analysis of the principles
underlining the exercise of power to adjudicate a challenge
against acquittal bolstered by concurrent findings. The
following broad principles can be culled out after a
comprehensive analysis of judicial pronouncements:
i) Criminal jurisprudence emphasizes on the fundamental
essence of liberty and presumption of innocence unless
proven guilty. This presumption gets emboldened by virtue of
concurrent findings of acquittal. Therefore, this court must be
extra-cautious while dealing with a challenge against acquittal
as the said presumption gets reinforced by virtue of a well-
reasoned favorable outcome. Consequently, the onus on the
prosecution side becomes more burdensome pursuant to the
said double presumption.
ii) In case of concurrent findings of acquittal, this Court
would ordinarily not interfere with such view considering the
principle of liberty enshrined in Article 21 of the Constitution
of India 1950, unless perversity is blatantly forthcoming and
there are compelling reasons.
iii) Where two views are possible, then this Court would not
ordinarily interfere and reverse the concurrent findings of
acquittal. However, where the situation is such that the only
conclusion which could be arrived at from a comprehensive
appraisal of evidence, shows that there has been a grave
miscarriage of justice, then, notwithstanding such concurrent
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view, this Court would not restrict itself to adopt an
oppugnant view. [Vide State of Uttar Pradesh v. Dan Singh]
iv) To adjudge whether the concurrent findings of acquittal
are ‘perverse’ it is to be seen whether there has been failure of
justice. This Court in Babu v. State of Kerala clarified the
ambit of the term ‘perversity’ as “if the findings have been
arrived at by ignoring or excluding relevant material or by
taking into consideration irrelevant/admissible material. The
finding may also be said to be perverse if it is ‘against the
weight of evidence’, or if the finding so outrageously defies
logic as to suffer from the vice of irrationality.”
v) In situations of concurrent findings favoring accused,
interference is required where the trial court adopted an
incorrect approach in framing of an issue of fact and the
appellate court whilst affirming the view of the trial court,
lacked in appreciating the evidence produced by the accused
in rebutting a legal presumption. [Vide Rajesh Jain v. Ajay
Singh]
vi) Furthermore, such interference is necessitated to safeguard
interests of justice when the acquittal is based on some
irrelevant grounds or fallacies in re-appreciation of any
fundamental evidentiary material or a manifest error of law or
in cases of non-adherence to the principles of natural justice
or the decision is manifestly unjust or where an acquittal
which is fundamentally based on an exaggerated adherence to
the principle of granting benefit of doubt to the accused, is
liable to be set aside. Say in cases where the court severed the
connection between accused and criminality committed by
him upon a cursory examination of evidences. [Vide State of
Punjab v. Gurpreet Singh and Others and Rajesh Prasad v.
State of Bihar.]
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.
That 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
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innocence in favour of the accused gets strengthened. That there is no
inhibition to re appreciate the evidence by the Appellate Court but if after
re appreciation, 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. The accused have been charged with the offence under
Section 306 of the IPC and with regard to Section 306 of the
IPC, it would be fit to reproduce the observations of the Apex
Court in the case of Mahendra Awase vs The State of Madhya
Pradhesh passed in Criminal Appeal No. 221/2025 (@ SLP(Cr)
No. 11868/2023) on 17.01.2025 and the relevant paragraphs 11
to 17 are 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; orThirdly. – 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
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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 the 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
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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 wherefrom 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]
In the case of Prakash and Ors. Vs. State of Maharashtra passed
in Criminal Appeal No. 5543 of 2024 (Arising out of SLP (Cri.)
No. 1073 of 2023) decided on 20.12.2024 in paras 12 to 22, the
Apex Court has observed under:
12. The relevant provisions of the IPC that fall for consideration are
as under:
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“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.
Explanation 1.– A person who, by willful misrepresentation,
or by willful 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
Explanation 2.– Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.”
13. Section 306 of the IPC has two basic ingredients-first, an
act of suicide by one person and second, the abetment to the
said act by another person(s). In order to sustain a charge
under Section 306 of the IPC, it must necessarily be proved
that the accused person has contributed to the suicide by the
deceased by some direct or indirect act. To prove such
contribution or involvement, one of the three conditions
outlined in Section 107 of the IPC has to be satisfied.
14. Section 306 read with Section 107 of IPC, has been
interpreted, time and again, and its principles are well-
established. To attract the offence of abetment to suicide, it is
important to establish proof of direct or indirect acts of
instigation or incitement of suicide by the accused, which
must be in close proximity to the commission of suicide by
the deceased. Such instigation or incitement should reveal a
clear mens rea to abet the commission of suicide and should
put the victim in such a position that he/she would have no
other option but to commit suicide.
15. The law on abetment has been crystallized by a plethora
of decisions of this Court. Abetment involves a mental
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process of instigating or intentionally aiding another person to
do a particular thing. To bring a charge under Section 306 of
the IPC, the act of abetment would require the positive act of
instigating or intentionally aiding another person to commit
suicide. Without such mens rea on the part of the accused
person being apparent from the face of the record, a charge
under the aforesaid Section cannot be sustained. Abetment
also requires an active act, direct or indirect, on the part of the
accused person which left the deceased with no other option
but to commit suicide.
16. This Court in the case of S.S. Chheena v. Vijay Kumar
Mahajan and Another 12, had an occasion to consider the
scope of Section 306 of the IPC and the ingredients which are
essential for abetment, as set out in Section 107 of the IPC. It
observed as follows:
“16. The word “suicide” in itself is nowhere defined in the
Penal Code, however its meaning and import is well known
and requires no explanation. “Sui” means “self” and “cide”
means “killing”, thus implying an act of self-killing. In short,
a person committing suicide must commit it by himself,
irrespective of the means employed by him in achieving his
object of killing himself.
………..
18. In our country, while suicide in itself is not an offence,
considering that the successful offender is (2010) 12 SCC 190
: 2010 INSC 506 beyond the reach of law, attempt to suicide
is an offence under Section 309 IPC.
……….
21. The learned counsel for the appellant has placed reliance
on a judgment of this Court in Mahendra Singh v. State of
M.P. [1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157] In
Mahendra Singh [1995 Supp (3) SCC 731 : 1995 SCC (Cri)
1157] the allegations levelled were as under: (SCC p. 731,
para 1) “1. … My mother-in-law and husband and sister-in-
law (husband’s elder brother’s wife) harassed me. They beat
me and abused me. My husband Mahendra wants to marry a
second time. He has illicit connections with my sister-in-law.
Because of these reasons and being harassed I want to die by
burning.” The Court on the aforementioned allegations came
to a definite conclusion that by no stretch the ingredients of
abetment are attracted on the statement of the deceased.
According to the appellant, the conviction of the appellant
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under Section 306 IPC merely on the basis of the
aforementioned allegation of harassment of the deceased is
unsustainable in law.
………..
23. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994
SCC (Cri) 107] this Court has cautioned that:
(SCC p. 90, para 17) “17. … The court should be extremely
careful in assessing the facts and circumstances of each case
and the evidence adduced in the trial for the purpose of
finding whether the cruelty meted out to the victim had in fact
induced her to end the life by committing suicide. If it
[appears] to the court that a victim committing suicide was
hypersensitive to ordinary petulance, discord and differences
in domestic life quite common to the society to which the
victim belonged and such petulance, discord and differences
were not expected to induce a similarly circumstanced
individual in a given society to commit suicide, the
conscience of the court should not be satisfied for basing a
finding that the accused charged of abetting the offence of
suicide should be found guilty.”
24. This Court in Chitresh Kumar Chopra v. State (Govt. of
NCT of Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367]
had an occasion to deal with this aspect of abetment. The
Court dealt with the dictionary meaning of the words
“instigation” and “goading”. The Court opined that there
should be intention to provoke, incite or encourage the doing
of an act by the latter. Each person’s suicidability pattern is
different from the other. Each person has his own idea of self-
esteem and self-respect. Therefore, it is impossible to lay
down any straitjacket formula in dealing with such cases.
Each case has to be decided on the basis of its own facts and
circumstances.
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.”
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17. This Court held that abetment involves the mental process
of instigating a person or intentionally aiding a person in
doing of a thing. Therefore, without a positive act on the part
of the accused to instigate or aid a person in committing
suicide, conviction cannot be sustained. This Court further
observed that 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 of IPC, there has to be a clear
mens rea to commit the offence. Abetment also requires an
active act or direct act which led the deceased to commit
suicide seeing no other option and that act must have been
intended to push the deceased into such a position that he
committed suicide. However, this Court has cautioned that
since each person reacts differently to the same provocation
depending on a variety of factors, it is impossible to lay down
a straight-jacket formula to deal with such cases. Therefore,
every such case has to be decided on the basis of its own facts
and circumstances.
18. More recently, in the case of Jayedeepsinh Pravinsinh
Chavda and Others v. State of Gujarat13, this Court has 2024
SCC OnLine SC 3679 : 2024 INSC 960 relied on S.S.
Chheena (supra) to hold that the element of mens rea cannot
simply be presumed or inferred, instead it must be evident
and explicitly discernible. Without this, the foundational
requirement for establishing abetment under the law, that is
deliberate and conspicuous intention to provoke or contribute
to the act of suicide, would remain unfulfilled. This Court
observed as follows:
“18. For a conviction under Section 306 of the IPC, it is a
well-established legal principle that the presence of clear
mens rea–the intention to abet the act–is essential. Mere
harassment, by itself, is not sufficient to find an accused
guilty of abetting suicide. The prosecution must demonstrate
an active or direct action by the accused that led the deceased
to take his/her own life. The element of mens rea cannot
simply be presumed or inferred; it must be evident and
explicitly discernible. Without this, the foundational
requirement for establishing abetment under the law is not
satisfied, underscoring the necessity of a deliberate and
conspicuous intent to provoke or contribute to the act of
suicide.”
19. It is, therefore, evident that the positive act of instigation
is a crucial element of abetment. While dealing with an issue
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of a similar nature, this Court in the case of Ramesh Kumar v.
State of Chhattisgarh,14 laid down the parameters of what
(2001) 9 SCC 618 : 2001 INSC 515 would be constituted to
be an act of instigation. This Court observed as follows:-
“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.”
20. It could thus be seen that this Court observed that
instigation is to goad, urge forward, provoke, incite or
encourage to do “an act”. It has been held that in order 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, however, a reasonable
certainty to incite the consequence must be capable of being
spelt out. Applying the law to the facts of the case, this Court
went on to hold that a word uttered in the fit of anger or
emotion without intending the consequences to actually
follow cannot be said to be instigation.
21. Relying on the decision in the case of Ramesh Kumar
(supra), this Court in the case of Ude Singh and Others v.
State of Haryana15 observed as follows:
“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 allegationPage 17 of 30
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of harassment of the deceased by 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 the accused is otherwise not ordinarily expected
to induce a (2019) 17 SCC 301 : 2019 INSC 810 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.
16.2. We may also observe that human mind could be affected
and could react in myriad ways; and impact of one’s action on
the mind of another carries several imponderables. Similar
actions are dealt with differently by different persons; and so
far a particular person’s reaction to any other human’s action
is concerned, there is no specific theorem or yardstick toPage 18 of 30
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estimate or assess the same. Even in regard to the factors
related with the question of harassment of a girl, many factors
are to be considered like age, personality, upbringing, rural or
urban set-ups, education, etc. Even the response to the ill
action of eve teasing and its impact on a young girl could also
vary for a variety of factors, including those of background,
self-confidence and upbringing. Hence, each case is required
to be dealt with on its own facts and circumstances.”
22. It could thus be seen that this Court observed that 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 has been held that since the cause of suicide particularly in
the context of the offence of abetment of suicide involves
multifaceted and complex attributes of human behaviour, the
court would be looking for cogent and convincing proof of
the act(s) of incitement to the commission of suicide. This
Court further observed that a mere allegation of harassment of
the deceased by another person would not suffice unless there
is such action on the part of the accused which compels the
person to commit suicide. This Court also emphasized that
such an offending action ought to be proximate to the time of
occurrence. It was further clarified that 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. It was further held that if the acts and deeds are only
of such nature where the accused intended nothing more than
harassment or a 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. This Court
held that owing to the fact that the human mind could be
affected and could react in myriad ways and that similar
actions are dealt with differently by different persons, each
case is required to be dealt with its own facts and
circumstances.
10. In light on the above settled principles of law and considering the
evidence on the prosecution, to bring home the charge against the
accused, the prosecution has examined Prosecution Witness No.1 –
Kirtising Mohabatsing at Exh.23 and the witness is the complainant who
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has stated that his daughter Hetalba was married to the accused No. 1
about twelve months prior to the incident and she had come to her
parental house about fifteen days before the incident where she had
narrated about the cruelty meted out to her by the accused. That he had
sent her back to her matrimonial home and on the day of the incident, he
was told that his daughter was burnt. That he had filed the complaint
which is produced at Exh.24. During the cross-examination by the
learned advocate for the accused, the witness has stated that in the
complaint he had not stated that he had a talk with Bhagwanji about any
dowry to be given. That his daughter was married with the accused No. 1
on 25/05/2005 and after marriage, she had come back to her parental
house and had gone to her matrimonial home for fifteen days and his
brother Pravinsing and his son Siddhraj had gone and brought her back
and thereafter she had returned to her matrimonial home on Asadhi Bij,
when her uncle-in-law had come to take her and she resided in her
matrimonial home for about one and half months and thereafter had
returned to her parental home as his Son Siddhraj had gone to bring her.
That she stayed at her parental home for two months and on 13/10/2005,
on the day of Dashera, the accused No. 2 and his daughter Ansuyuaben
came to take Hetalba and at that time she stayed for one and half months
in her matrimonial home. That once again, his son Siddhraj went and
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brought her back home and she resided for one month at her parental
home and thereafter went back to her matrimonial home but on Kartik
Poonam his son went and brought her back to her parental home. That
the accused Nos. 2 and 3 are residing at Dantiwada as the accused No. 2
is working at Dantiwada. 10.1 The prosecution has examined
Prosecution Witness No. 2 – Parashben Jijarsinh at Exh.25 and the
witness is the panch witness of the inquest Panchnama, which is
produced at Exh.26.
10.2 The prosecution has examined Prosecution Witness No. 3 –
Pravinsinh Mohabatsinh Solanki at Exh. 27 and the witness is the uncle
of the deceased, who has stated that he has not met anyone about the
cruelty to Hetalba and he came to know about her death through his
sister Vasuba.
During the cross-examination by the learned advocate for the accused,
the witness has stated that on 18/04/2006, his brother Manuji told him
that Hetalba was burnt and at that time no one was at home.
10.3 The prosecution has examined Prosecution Witness No. 4 –
Solanki Manuji Mohabatji at Exh. 29 and the witness is the uncle of the
deceased, who has stated that, on 18/04/2006, he was informed on the
telephone that Hetalba was burnt and they went to the hospital and saw
her dead body. During the cross examination by the learned advocate for
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the accused, the witness has admitted that they were informed that
Hetalba was burnt.
10.4 The prosecution has examined Prosecution Witness No. 5 –
Solanki Batukji Mafaji at Exh. 30 and the witness is the cousin of
deceased Hetalba, who has stated that he was informed on 18/04/2006
that Hetalba was burnt and she has expired and they all took a private
vehicle and went to the village but found that she was taken to the
hospital at Santalpur and they went to the hospital and shaw her dead
body. During the cross examination by the learned advocate for the
accused, the witness has denied that Hetalba expired due to the cruelty
by the accused.
10.5 The prosecution has examined Prosecution Witness No. 6 –
Shantaben Kirtisinh at Exh. 31 and the witness is the mother of the
deceased, who has stated that her daughter was married with the accused
No. 1 one year prior to the incident and she had come to her parental
home fifteen days before the incident. That she had gone back as the
grandmother-in-law of Hetalba had sustained a fracture and thereafter
they came to know that she was burnt and they had gone to the hospital
where they saw her daughter fully burnt.
During the cross-examination by the learned advocate for the accused,
the witness has stated that her husband did not have a job.
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10.6 The prosecution has examined Prosecution Witness No. 7 –
Somjibhai Valjibhai Ninama at Exh.32 and the witness is the
Investigating Officer who has narrated in detail all the procedure that was
undertaken by him during the investigation of the offence.
During the cross-examination by the learned advocate for the accused,
the witness has stated that prior to filing of the complaint, a telephone
call was received by the PSO that one lady from the village was burnt but
the name of the person who had telephoned was not given and hence it
was not noted in the telephone register. That he had recorded the
statements of the neighbors but he has not shown them as witnesses in
the chargesheet.
10.7 The prosecution has examined Prosecution Witness No. 8 – Dr.
Kumar Kundan at Exh.43 and the witness is the Medical Officer, who
has conducted the postmortem on the dead body of the deceased on
19/04/2006. The witness has stated that there were extensive epidermal
burns from head to toe all over the body, except few parts of back and
back of head and some of parts of soles of both legs and redness was
present at all burn parts of the body. The burn was about 91 % and they
were antemortem in nature and the cause of death was “cardio-
respiratory arrest due to asphyxia, a shock produced by extensive burns
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all over the body”. The witness has produced the postmortem report at
Exh.44.
11. After the evidence of the prosecution was taken on record the
learned Additional Public Prosecution filed the closing pursis at Exh.46,
the further statement of the accused under Section 313 of the Code of
Criminal Procedure, 1973 was recorded wherein, the accused has stated
that they were innocent and they had not ill-treated the deceased at any
point of time and she was mostly in her parental home. That the accused
Nos. 2 & 3 were not residing with the deceased and were residing at
Dantiwada as the accused No. 2 was a Head Constable in the Border
Wing and the accused No. 3 – his wife was residing with him. That on
07/04/2006, the accused No. 1 had taken the deceased to the jeweler at
Santalpur and had purchased silver anklets and had given an order for
gold chain and a false case has been filed against them. The accused have
not stepped into the witness box but have examined five witnesses and
have produced six documentary evidences on record.
11.1 The accused have examined Defense Witness No. 1 Ganeshji
Medalji Rabari at Exh. 53 , who is the owner of the house, where, the
accused Nos. 2 and 3 are residing at Dantiwada and he has produced the
rent receipt at Exh. 54.
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11.2 The accused have examined Defense Witness No. 2 Bharatsinh
Pratapsinh Rathod at Exh. 55, and the witness has stated that he has a
vehicle No. GJ-08-2259 and the accused No. 1 was working at his place
and on the day of the incident, the accused was on duty, when he was
informed about the incident and he immediately left.
11.3 The accused have examined Defense Witness No. 3 Bachubhai
Vadilal Shah at Exh. 56, a Medical Officer and was working in the
Santalpur Government Dispensary and he has produced the medical
papers of the deceased dated 07/04/2006 and 15/04/2006. The witness
had treated the deceased and she had complained of stomach ache and
joint ache and the medical certificate is produced at Exh. 58.
11.4 The accused have examined Defense Witness No. 4 Dr. Vishnudan
Naghjibhai at Exh. 59 and the witness is the Medical Officer, who has
stated that Roopalben Ganeshbhai Jadeja had sustained a fracture of the
femur on 25/03/2006 and he has produced the X-ray at Exh. 60 and the
receipt of X-ray charge at Exh. 61
11.5 The accused have examined Defense Witness No. 5 Anilbhai
Muktibhai Soni at Exh. 62 and the witness has stated that he is a jeweler
and doing gold business at Santalpur. On 07/104/2006, the accused No.1
and his wife Hetalba had come to his shop and purchased silver anklets
worth Rs.4090/- and the accused No. 1 had paid cash and the bill for the
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same is produced at Exh. 63. That they had placed an order for a gold
chain and the accused No. 1 had given advance of Rs.25,000/- and the
receipt is produced at Exh. 64.
12. On minute dissection of the entire evidence of the prosecution it is
the complaint of the complainant that his daughter was tortured and
harassed by the accused for dowry and hence within a period of about
one year from her marriage she sprinkled kerosene on her herself and
burnt herself in her matrimonial home and the accused have abetted and
instigated the deceased to commit suicide. The prosecution must prove
that the accused have instigated the deceased to commit suicide and they
have engaged with each other in the conspiracy for abetting the deceased
to commit suicide and have intentionally aided, by any act or illegal
omission the committing of suicide by the deceased. If the evidence of
the complainant it perused the complainant has stated that during
marriage they had given dowry as per their custom, and the dowry was
less for the accused, but he has not specified as to what was given in
dowry. The witness has also stated that he had spoken to the accuse No.
2 about the dowry, but the accused No. 2 told him that they were not
ready to give any dowry and this discussion had taken place about two
months prior to the incident. In the complaint which is produced at Ex
24, the complainant has stated that the accused used to tell the deceased
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to bring jewelry and money, but no items of jewelry or amount of money
is specified in the complaint. PW6, Shantaben Kirtisinh, the mother of
the deceased has stated that they had given jewelry as per their condition,
but nothing is specified as to what items of jewelry were given to the
deceased. The prosecution has not produced any oral or documentary
evidence to show that they had in fact given dowry to the accused. The
complainant and the family members examined by the prosecution have
merely stated that the deceased was harassed, but they have not narrated
any particular incident that had occurred or the manner of harassment
that was meted out to the deceased. The witnesses have merely made
allegations that dowry was demanded, and the deceased was harassed for
dowry but there is no direct or indirect proof that there were any acts of
harassment to the deceased to such an extent that she was incited to
commit suicide.
12.1 From the deposition of the complainant, it has emerged on record
that after the marriage of the deceased on 20.05.2005 the deceased stayed
in her matrimonial home for 15 days and as per their custom, she was
brought back to her parental house by her brother Siddhraj and her uncle
Pravinsinh where she stayed for 1 1/2 months. That she went to her
matrimonial home on Ashadhi Beej as the brother of her father-in-law
had come to take her and she stayed at her matrimonial home for about 1
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1/2 month. That the complainant had sent his son, Siddhrajsinh to bring
the deceased and she came and stayed at her paternal home for two
months. Thereafter on Dussehra, that is on 13.10.2005 the accused No.
2 and his daughter Ansuyaben came and took the deceased to her
matrimonial house where she lived for 1 1/2 months and his son
Siddhrajsinh went and brought her back to her parental home. That she
went and stayed for one month in her matrimonial home, and once again
on Kartik Poonam his son Siddhrajsinh went and brought her back to her
parental home. That she stayed till February as the marriage of her sister
in law was fixed on 17.02.2006. From the evidence it appears that the
deceased did not reside in her matrimonial home for more than one a half
month at a stretch and during her matrimonial life she only stayed in her
matrimonial home for about five to six months.
12.2 It is the say of the accused that the accused Nos. 2 and 3 were not
residing with the deceased and the accused No. 1, and the accused No. 2
was a Head Constable in the Border Wing and the accused Nos. 2 and 3
were residing at Dantiwada. The accused have examined Defence
Witness No. 1 who has stated that the accused Nos. 2 and 3 were residing
at in his house on rent and he has produced the Rent Receipt at exhibit
54.
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13. On minute re-appreciation of the entire evidence of the
prosecution and the impugned judgment and order, it appears that the
learned Trial Court has thoroughly appreciated all the evidence on record
and has given due consideration to all the material pieces of evidence.
The learned Trial Court has discussed all the oral as well as documentary
evidences and if the evidence produced by the prosecution is examined
in light of the law laid down Mahendra Awase (supra) and Prakash
(supra), it appears that the learned Trial Court has arrived at findings
which are legal and proper and there are no errors of law or facts.
Moreover, the view taken by the learned Trial Court in acquitting the
accused is fairly possible and there is no illegality and perversity in the
impugned judgment and order of acquittal.
14. In view of the settled position of law, 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. 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
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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.
15. The impugned judgement and order of acquittal passed by the
learned Additional Sessions Judge, Patan (hereinafter referred to as “the
learned Trial Court”) in Sessions Case No. 61 of 2006 on 03.03.2007, is
hereby confirmed.
16. 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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