Gujarat High Court
State Of Gujarat vs Mahendra @ Goliyo @ Govind Manilal on 4 October, 2025
NEUTRAL CITATION
R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1925 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MAHENDRA @ GOLIYO @ GOVIND MANILAL & ORS.
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Appearance:
MR ROHAN RAVAL, APP for the Appellant(s) No. 1
MR. BHAVIK P SHAH(6391) for the Opponent(s)/Respondent(s) No. 3
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/10/2025
ORAL JUDGMENT
1. By way of this appeal under section 378(1)(3) of Cr.P.C., State of Gujarat challenges judgment and order of acquittal dated 06.09.2012 passed by learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.98 of 2010.
2. Facts of the case are as under :-
2.1. Complainant Bhanuben, mother of the deceased registered complaint against accused with Sabarmati Police Station, Ahmedabad which was registered as I-C.R.No.312 of 2009 for the offence under sections 498(A), 306 and 114 of IPC. It is case Page 1 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025 NEUTRAL CITATION R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025 undefined of prosecution that accused No.1 Mahendra was husband of deceased, accused no.2 - Kashiben was mother in law of accused and accused no.3 Parulben was sister in law of deceased. The accused no.1 was I habit of drinking liqour and he had illicit relation with accused no.3 and pursuant to that on inducement of accused nos.2 and 3, accused no.1 caused physical and mental cruelty to his wife deceased and therefore, by frustration, on 02.09.2009, deceased set herself on fire after pouring kerosene on her body and on 03.09.2009, during treatment, she died. Hence, FIR was filed.
3. Investigation was completed and after having found sufficient material against the respondent accused, charge-sheet came to be filed in the Court of learned CJM, Ahmedabad. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Court, Ahmedabad (Rural) as provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, Ahmedabad (Rural), learned Sessions Judge framed charge at Exh.5 against the respondent accused for the aforesaid offences.
The respondent accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined 12 witnesses and also produced 12 documentary evidence before the learned trial Court, more particularly described in para 2 of the impugned judgment and order.
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6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After considering evidence on record and authorities cited at bar, learned Trial Court pass impugned judgment and order acquitting the accused. Being aggrieved and dissatisfied with the order of acquittal, present appeal is filed by the State.
7. Heard learned APP Mr. Rohan Raval for the appellant - State and learned advocate Ms.Viral Detroja for the accused.
8. Short submission of learned APP to upturn impugned judgment is that learned Trial Court failed to consider deposition of the complainant and parents of the deceased, whereby, it is specifically stated on oath that accused were demanding dowry and extending physical and mental harassment to the deceased and thereby, she committed suicide. It is submitted that learned Trial Court failed to consider marriage span which was less than 7 years and it attracts presumption of section 113(A) of the Evidence Act.
8.1. Mainly, on above submissions, it is submitted to allow the appeal and to upturn the impugned judgment and order.
9. Per contra, learned advocate Ms.Viral Detroja for the Page 3 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025 NEUTRAL CITATION R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025 undefined accused has taken this Court through dying declaration and history given by the deceased, wherein, she has stated she was burnt because of accident and she has not been instigated to commit suicide and there was no harassment or cruelty on the part of the accused which promoted deceased to commit suicide. She submitted that documentary evidence in the form of dying declaration and deposition of Dr. Reenaben at Exh.48 and deposition of Exh.43 Vajubhai - Executive Magistrate led by the accused are sufficient to disprove case of the prosecution.
9.1. In view of above, learned advocate submitted to dismiss the appeal.
10. Having heard learned advocates for both the sides, perused record and proceedings, at the outset it appears that accused have been given clear acquittal by the learned Trial Court referring to dying declaration of the deceased produced on record at Exh.11, whereby, in column no.10, she has stated that she was burnt because kerosene got sparked when she was pouring kerosene in stove. Dying declaration has been confirmed in deposition of Dr. Reena at Exh.45 and Vajubha, Executive Magistrate at Exh.48 also confirms said reason for burning of deceased.
11. In view of above, while taking this appeal on merits, what could be available to the accused is presumption of innocence runs in their favour has been doubled by judgment of acquittal recorded by learned Trial Court.
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12. In the case on hand, principle charge is for the offence under section 498(A) and 306 of IPC. Section 498(A), 107 and 306 of IPC reads as under :-
498A. Husband or relative of husband of a woman subjecting her to cruelty.--
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
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.
306. Abetment of suicide.--
If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
13. In order to establish cruelty defined in section 498A of the IPC, prosecution is required to prove that nature of cruelty was such that it drive women to commit suicide or or to cause grave injury or danger to life, limb or health of women and harassment of woman was such where it is with a view to coercing her or any Page 5 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025 NEUTRAL CITATION R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025 undefined person related to her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand.
14. Section 107 of IPC is prime requirement to prove offence under section 306 of IPC. It requires instigation to any person to do that thing or engage 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 doing that thing, intentionally aids, by any act or illegal omission for doing that thing.
15. In order to prove prima facie the offence under Section 306 of the IPC, the prosecution is required to show that there is some instigation on the part of the accused which led the deceased to commit suicide as no alternative is left with him except to commit suicide. The word 'instigation' is defined in IPC. In Ramesh Kumar v State of Chhattisgarh (2001)9 SCC 618 following words as defined the instigation.
"Instigation is to goad, urge, forward, provoke, incite or encourage to do an act" To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct created such Page 6 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025 NEUTRAL CITATION R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025 undefined circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."
16. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or urging forward. The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction" (see Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter.
17. In background of above, if we examine material on record, prosecution has heavily relied on deposition of Bhanuben at Exh.20, Rajubhai at Exh.23 and Anilbhai at Exh. 24. Perusal of oral evidence of these three witnesses, what appears that except witness - Anil, two other witnesses did not speak anything in regard to cruelty and harassment to the deceased. In his deposition, witness Anil deposed that accused were demanding dowry from deceased and he being father of the deceased was fulfilling demands of accused and continued to supply different Page 7 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025 NEUTRAL CITATION R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025 undefined articles as dowry. However, FIR is silent on this issue. Learned Trial Court emphatically examined deposition of three witnesses and found that deposition of Anil is suffering from test of improvisation. No other witness have supported the case of the prosecution so far as harassment and cruelty is concerned.
18. Insofar as section 306 of IPC is concerned, it is complete absence of evidence. None of the witnesses have said about act or commission of accused subjecting deceased to commit suicide. Evidence is otherwise. PW-1 and PW-3 Government Officers have been examined by accused. First witness is Executive Magistrate who has recorded dying declaration of deceased. It is placed on record at Exh.11. Dying declaration was produced as documentary evidence of prosecution, however, to establish contents thereof, deposition of Executive Magistrate is not led by prosecution but as stated by accused. Dying Declaration indicates that at the time of accident, deceased was living separately from her in laws. She and her husband were living together. In column no.10, she has stated that at the time of accident, she was pouring kerosene on stove for cooking and suddenly, it got sparked. In column no.11, she has stated that at time of accident, she was alone at home. In column no.16, she has stated that her husband and neighbors took her to hospital in 108 Ambulance. It is surprising that witness was Executive Magistrate and he has recorded dying declaration produced by prosecution to frame charge against accused but when he was examined, prosecution decided to cross examine said witness. He is witness of prosecution and prosecution relied on documentary evidence i.e. DD recorded by him and yet he has been cross examined. This is sheer negligence on the part of Page 8 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025 NEUTRAL CITATION R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025 undefined learned PP who has conducted trial. Learned PP cannot cross examine witness who is author of the documentary evidence produced by the prosecution. Be that as it may. Witness of PW - Executive Magistrate is clinching one. Same has been confirmed by deposition of Vithalbhai - PW-2 at Exh.45. He was PSI in Sabarmanti Police Station. According to this deposition, deceased was brought by her husband to hospital. PSI also confirms case of the accused that deceased was burnt because of accident as she was trying to pour kerosene in stove. This witness was also cross examined by learned APP. Third witness examined by accused is Dr.Renaben - PW - 3 at Exh.48. She has given treatment to the deceased at first instance, she has recorded history. History reinforces statement of deceased in dying declaration. Thus, the essential ingredients of Section 498(A) and section 306 of the IPC is lacking which the prosecution is required to prove.
19. In view of above, prosecution has hopelessly failed to prove that accused were giving mental harassment to the deceased. There is no evidence on record which indicates that deceased was instigated by any proximity act or commission by accused to commit suicide. It was pure case of accident. Since it is pure case of accident, presumption under section 113(A) of the Evidence Act does not survive.
20. For the reasons stated above, the appeal is devoid of merits. Accordingly, Criminal Appeal stands dismissed. Judgment and order of acquittal dated 06.09.2012 passed by learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.98 of 2010 is confirmed and approved. Bail Page 9 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025 NEUTRAL CITATION R/CR.A/1925/2012 JUDGMENT DATED: 04/10/2025 undefined bond of the accused is discharged. Accused are set at liberty if they are not required in any other offence.
(J. C. DOSHI,J) SATISH Page 10 of 10 Uploaded by SATISH C. VEMULLA(HC00206) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 08:27:00 IST 2025