Gujarat High Court
State Of Gujarat vs Jahagir Sardarbhai Pathan on 3 September, 2025
NEUTRAL CITATION
R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 783 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
JAHAGIR SARDARBHAI PATHAN & ORS.
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Appearance:
MR. ROHAN SHAH, APP for the Appellant(s) No. 1
MR VIRAL V DAVE(3846) for the Opponent(s)/Respondent(s) No. 1,2,3,4
RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 03/09/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under Section 378 of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Rajkot (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 151/2008 on 31.03.2011, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 306, 498(A) and 114 of Indian Penal Code, 1860.
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NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 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 The accused no. 1 was married to Shabanaben - the daughter of the complainant - Bashirbhai Sulemanbhai Sama. The accused no. 2 is the father-in-law, accused no. 3
- the mother-in-law and accused no. 4 - the brother-in-law of deceased Shabanaben and on 24.09.2008 at around 08.30 pm when the complainant was going to break his fast, his brother-in-law Zakir telephoned him and told him that Shabana had consumed poison and was in the hospital under treatment. The complainant went to the hospital and met his daughter Shabana and she told him that she had consumed the tablets used to preserve wheat as she was fed up of the mental and physical harassment by the accused and as she could not bear it any longer, she had taken the tablets. She expired during treatment and the complainant filed the complaint at the Rajkot City Gandhigram Police Page 2 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined Station under Section 306, 498A, 114 of the Indian Penal Code, 1860, which came to be registered at Gandhigram Police Station I - C.R. No. 452 of 2008.
2.2 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a charge-
sheet came to be filed before the Court of the Judicial Magistrate First Class, 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 Code of Criminal Procedure and the case was registered as Sessions Case No. 151/2008 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. 7 was framed against the accused and the statements of the accused was recorded at Exhs. 8, 9, 10 and 11 wherein, the accused denied the Page 3 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined contents of the charge and the entire evidence of the prosecution was taken on record.
2.4 The prosecution examined 12 witnesses and produced 19 documentary evidences on record in support of their case 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 was recorded. 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 judgement and order was pleased to acquit all the accused from the charges levelled against them.
3. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order of acquittal passed 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 the cross-examination, nothing adverse has been Page 4 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined elicited in favor of the respondents. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondents and the judgment and order of acquittal is unwarranted, illegal, and without any basis in the eyes of the 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. Rohan Shah for the appellant State and learned advocate Mr. Viral Dave 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. Rohan Shah has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the complainant has fully supported the facts of his complaint. The impugned judgement and order is perverse and learned APP has urged Page 5 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined this Court to quash and set aside the same and find the respondent guilty for the offences.
6. 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 the scope of interference 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 Vs. State of M.P. (2006) 10 SCC 313, 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".Page 6 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025
NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 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 Page 7 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 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. 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. 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 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.
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8. 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; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing."Page 9 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025
NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 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 Page 10 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 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 before he could be convicted under Section 306 IPC. Page 11 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025
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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:- Page 12 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025
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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]
9. In light of the above settled principle of law, the evidence of the prosecution is dissected and PW1 -
Basirbhai Sulemanbhai examined at Exh. 26 is the complainant and father of deceased Shabana who has narrated the facts as stated in his complaint which is produced at Exh. 27. The complainant has stated that the accused would ill treat his daughter and earlier too she had consumed some poison and was admitted in the hospital but at that time he did not file any complaint and with the mediation of Zakirbhai, he had sent his daughter to her matrimonial home but the harassment had continued. His daughter was sent to her matrimonial home about 20 to 25 days prior to the unfortunate incident which had occurred on 24.09.2008. His daughter was taken to Nilkant Hospital Page 13 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined and she had informed him that she had taken the step due to the harassment by the accused. The witness has produced the complaint at Exh. 27 and the application for maintenance filed by his daughter under Section 125 of the Code of Criminal Procedure, 1973 before the Court of the Judicial Magistrate First Class, Rajkot at Exh. 28. During the cross-examination by the learned advocate for the accused, the witness has admitted that as per the document produced at Exh. 28, the application for maintenance was filed on 21.02.2008 and it was mentioned that she was at her paternal home for about six months and the witness has admitted that his daughter was at his house from August 2007. The witness has also admitted that the accused no. 1 had taken his daughter to the hospital and earlier too his daughter had consumed some poisonous substance. When he went to the hospital, the police had arrived and had recorded the statement of her husband and his wife as also his statement. Even earlier when his daughter had consumed poison, his statement was recorded and in the document produced at Exh. 28, Page 14 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined there were no allegations against the accused nos. 2, 3 and
4. The witness has also admitted that his son was arrested in a PASA case.
9.1 PW2 - Irfanbhai Siddikbhai Vohra examined at Exh. 34 is the panch witness of the inquest panchnama which is produced at Exh. 35. The witness has supported the case of the prosecution and during the cross examination, he has stated that he had gone to inquire about the health of the deceased and he had seen the dead body from a distance of about one to two feet. The police were writing the panchnama and he does not know what was written in the panchnama.
9.2 PW3 - Azimbhai Bashirbhai Sama examined at Exh. 36 is the brother of the deceased and son of the complainant and he has supported the case of the prosecution.
9.3 PW4 - Kamleshbhai Vinubhai examined at Exh. 39 is the panch witness of the panchnama of the place of offence which is produced at Exh. 40. The witness has not Page 15 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined supported the case of the prosecution and has been declared hostile.
9.4 PW5 - Dr. Maheshbhai Himmatlal Pansura examined at Exh. 41 examined at Exh. 41 is the Medical Officer who has conducted the postmortem on the dead body of deceased Shabanaben Jahangirbhai and has stated that on 25.09.2008 while he was on duty at Civil Hospital, Rajkot, the dead body of Shabanaben Jahangir Pathan was brought for postmortem and he along with panel doctor - Dr. J. K. Nathwani had done the postmortem on 25.09.2008 between 06.30 am to 07.10 am. The body was an identified body and there were no marks of injury found on the body. The viscera was preserved and the probable cause of death was cardio-respiratory failure and after the report of the viscera, the final cause of death was given as "Cardio-respiratory failure due to aluminum phosphide poisoning". The witness has produced the postmortem note at Exh. 42 and the final cause of death certificate at Exh. 44. During the cross examination, the witness has stated that in the document produced at Exh. 48, the description of the viscera is not Page 16 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined stated and there was no seal in the document at Exh. 50. There were no external marks of injury on the body and on the original postmortem note, there were no marks of blood on the postmortem note. The police report sent along with the dead body for postmortem is produced at Exh. 45 and the letter of Gandhigram Police Station produced at Exh. 46. 9.5 PW6 - Dr. Tushar Rameshchandra Shah examined at Exh. 51 is the Medical Officer who has stated that he has his hospital, Neelkanth General Hospital on 80 feet road and on 24.09.2008 at around 08.15 pm, Shabanaben was brought by her husband Jahangirbhai Pathan and her father Bashirbhai Sama for treatment. The witness has produced the admission form filled up by her father at Exh. 53 and the form filled up by the husband at Exh. 54. The witness has produced the intimation given to the Police Inspector, Gandhigram Police Station, Rajkot informing them that Shabanaben Jahangirbhai Pathan has expired on 24.09.2008 at around 23.30 hours at Exh. 55 and the letter addressed to the CMO Civil Hospital, Rajkot at Exh. Page 17 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025
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56. The case papers are produced at Exh. 57. During the cross-examination, the witness has admitted that in the history in the document produced at Exh. 57, it is mentioned that tablets to be put in wheat have been consumed and has admitted that there are a number of corrections but they have not been initialed. The witness has stated that as per the document produced at Exh. 57, the patient was drowsy and could follow commands but could not have a conversation for five to seven minutes continuously. As per the history, the patient had consumed tablets to be placed in the wheat and could only speak that much. The witness has also admitted that as per the police yadi dated 25.07.2007, the same patient was treated and Head Constable - Jilubhai Basia had come to the hospital and had prepared the yadi stating that the patient had stomach pain and had consumed tablets to be placed in the wheat and was admitted for treatment in Room No. 303. 9.6 PW7 - Mumtazben Bashirbhai examined at Exh. 61 is the mother of deceased Shabanaben and has fully supported the case of the prosecution. During the cross- Page 18 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025
NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined examination, the witness has admitted that her son had phoned from Ajmer Sharif and at that time, her husband had gone to the Dargah of Turki Bapu to break his fast and she was at her house. Her statement was recorded by the police after the funeral rites of her daughter and the statement of the others were also recorded at that time. She does not know exactly at what time she had returned from the funeral of her daughter and she cannot recollect as to whether she had narrated in her police statement the conversation that she had with her daughter at the hospital.
9.7 PW8 - Apyez Jahangirbhai examined at Exh. 62 is the son of the deceased Shabanaben and the accused no. 1 and he has stated that he was residing with his grandfather. The witness has supported the case of the prosecution and during the cross-examination, he has stated that his statement was recorded by the police at the house of his grandfather and he was staying with his grandfather from one month before the incident.
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NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 9.8 PW9 - Zakirbhai Adambhai Dal examined at Exh. 64 is the uncle of the deceased Shabanaben and he has stated that he was at Ajmer at the time of the incident and the accused no. 1 had telephoned him and informed him that Shabana had consumed some medicine and he had informed his brother-in-law Bashirbhai about the same. He had come to Rajkot on the next morning and his brother-in- law Bashirbhai had told him that these people had forcibly given his daughter medicine. The witness has not supported the case of the prosecution and has been declared hostile and cross-examined at length by the learned APP. During the cross-examination, the witness has stated that Mumtazben was not his real sister and his niece Guddi was married to Wasim - the son of Mumtazben. Guddi was an adopted daughter and he had good relations with the complainant Bashirbhai. The witness has also admitted that he had spoken to Bashirbhai on the telephone from Ajmer and besides that no other conversation taken place and he had never visited the house of the accused.
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NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 9.9 PW10 - Jilubhai Ebhalbhai Basiya examined at Exh. 65 is the PSO who has recorded the complaint. 9.10 PW11 - Mahendrabhai Jangbahadur Punn examined at Exh. 71 has stated that he was on duty as the In-way ASI at Gandhigram Police Station on 24.09.2008 and at around 20.40 hours, he received information from Nilkant Hospital that Shabanaben Jahangirbhai had a dispute at her house about dowry and all the family members had got together and had forcibly made her consume some medicine and the Janva Jog was registered at 656 of 2008. He had gone to the Nilkant Hospital and inquired from Shabanaben but she could not reply as she was unconscious and he had given a report to the doctor to inform him when she would regain consciousness. He had given a report to the Executive Magistrate for recording the dying declaration of Shabanaben but as Shabanaben was unconscious, the dying declaration could not be recorded. On 25.09.2008 at around 00.15 hours, information was received from Nilkant Hospital that Shabanaben had expired during treatment and hence, he had sent a report Page 21 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined to the Executive Magistrate for preparing the inquest panchnama and after the inquest panchnama was drawn the dead body was handed over to her family. The complainant Bashirbhai Sulemanbhai had thereafter given the complaint which was recorded and registered. During the cross-examination by the learned advocate for the accused the witness has admitted that it was a visitation offence and he had initially investigated the same. In the entry which is produced at Exh. 69, it was mentioned that all the family members had got together and had made Shabanaben consume some medicine and the complaint was not recorded by any Superior Officer or the Superintendent of Police. The extract of Entry No. 656 of 2008 was not produced on record.
9.11 PW12 - Devshibhai Laxmanbhai Vaja examined at Exh. 73 is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. During the cross-examination by the learned advocate for the accused, the witness has stated that he did not visit the hospital at the time of the postmortem of the Page 22 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined dead body of the deceased and he had prepared the panchnama of the place of offence as well as the arrest panchnama. The dying declaration could not be recorded and on inquiring from the complainant, he had stated that Shabanaben was unconscious and no conversation had taken place with her. Even as per the Medical Officer, the deceased could not have any conversation and in the application for maintenance filed under Section 125 of the Code of Criminal Procedure, 1973 no allegations were made against the accused nos. 2, 3 and 4. The witnesses have stated that the sons of the complainant Azim and Bashir were involved in criminal offences and were also arrested under the PASA and in the statement of the complainant recorded on 25.07.2007, there were no allegations against ill treatment by any of the accused. The witness has produced the panchnama of the place of offence at Exh. 74 and the arrest panchnama at Exh. 75.
10. On minute appreciation of the entire evidence of the prosecution, it is on record that the deceased Shabanaben had earlier taken medicine and she had stated that she had Page 23 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined taken the medicine by mistake. The complaint has been filed by the complainant Bashirbhai Sulemanbhai Sama which is produced at Exh. 27 and he has also produced the application filed by Shabanaben for maintenance under Section 125 Code of Criminal Procedure, 1973 at Exh. 28. As per the say of the complainant, he had gone to the hospital and spoke to his daughter and she had told him about the harassment by the accused and that she was so fed up of the harassment that she had consumed the medicine but in the evidence it has also it has emerged that PW11 - Mahendrabhai Jangbahadur Punn had immediately gone to the hospital and he had found that Shabanaben was unconscious and she could not speak and he could not record her statement and thereafter he had sent a report for recording the dying declaration by the Executive Magistrate but as Shabanaben was unconscious the dying declaration could not be recorded. PW6 - Dr. Tushar Rameshchandra Shah has also admitted that when Shabanaben was brought for treatment, she was drowsy and she could only state that she had consumed the medicine to be placed in Page 24 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined the wheat and could not have a conversation for five to seven minutes. PW12 - Devshibhai Laxmanbhai Vaja - the Investigating Officer has also admitted that during investigation it was found that the dying declaration could not be recorded as Shabanaben was unconscious and the say of the complainant that he had gone to the hospital and his daughter had told him that she had consumed the medicine because of the harassment by the accused, is not proved. As per the evidence on record earlier when the medicine was taken, it was stated that the medicine was taken by mistake and in the document produced at Exh. 28, there are no allegations made against the accused nos. 2, 3 and 4.
11. In view of the settled position of law in the decisions of Chandrappa (supra) and 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. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that Page 25 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025 NEUTRAL CITATION R/CR.A/783/2011 JUDGMENT DATED: 03/09/2025 undefined 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 judgement and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Rajkot in Sessions Case No. 151/2008 on 31.03.2011, is hereby confirmed.
13. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VASIM S. SAIYED Page 26 of 26 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Sep 08 2025 Downloaded on : Mon Sep 08 22:59:50 IST 2025