Gujarat High Court
The State Of Gujarat vs Dineshbhai Nazabhai Rathod on 21 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1940 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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THE STATE OF GUJARAT
Versus
DINESHBHAI NAZABHAI RATHOD & ANR.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR P B KHANDHERIA(5228) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/04/2025
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 learned Presiding Officer &
Additional Sessions Judge, Fast Track Court No.8, Gondal, Camp @
Jetpur, (hereinafter referred to as "the learned Trial Court") in Sessions
Case No. 28 of 2005 on 21.04.2006, whereby, the learned Trial Court has
acquitted the respondent Nos. 1 and 2 for the offence for the offence
punishable under Sections 306 and 114 of the Indian Penal Code, 1860
(IPC).
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1.1 The respondents are hereinafter referred to as "the accused" as
they stood in the rank and file in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as
under:
2.1] The accused had their agricultural field near the agricultural field
of Bikhabhai Kanabhai Rathod and his wife Kanchanben Bikhabhai
Rathod and about five and a half months before the complainant
Rajabhai Lakhmanbhai Rathod, the uncle of Bikhabhai Kanabhai Rathod
filed the complaint, the accused No. 1 had molested Kanchanben and a
police complaint was filed by her in the police station. The accused No. 1
was arrested and he was released on bail and thereafter he kept on
harassing Kanchanben and hence on 26-11-2004 Kanchanben consumed
some poisonous substance and expired. The accused were harassing
Bikhabhai Kanabhai and on 30-11-2004, he too consumed some
poisonous substance and expired and the complaint was filed by
Rajabhai Lakhmanbhai Rathod, the uncle of deceased Bikhabhai
Kanabhai Rathod at Jetpur Taluka Police Station under Sections 306, 114
of the IPC on 17-12-2004 at about 20:45 hours which came to be
registered at Jetpur Taluka Police Station I-CR No. 240 of 2004.
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2.2] The Investigating Officer recorded the statements of the
connected witnesses and collected the necessary documents and after
completion of investigation the police filed the chargesheet against the
accused before the Court of Chief Judicial Magistrate, Jetpur and as the
said offences against the accused were exclusively triable by the Court of
Sessions, the case was committed to the Sessions Court, Gondal as per
the provisions of Section 209 of the Code of Criminal Procedure and the
case was registered Sessios Case No. 28 of 2005.
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.3 was
framed against the accused and the statements of the accused were
recorded at Exhs. 4 and 5, 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 eleven oral evidences and sixteen
documentary evidences to bring home the charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis at
Exh.41, the further statement of the accused under Section 313 of the
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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 or examine witnesses on their behalf and
stated that a false case has been filed against them. After the arguments
of the learned Additional Public Prosecutor and the learned advocate for
the accused were heard, the learned trial Court by the impugned
judgment and order was pleased to acquit all the accused from all the
charges leveled against them.
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
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 respondent. The case
has been proved beyond reasonable doubts and the prosecution has
successfully established the case against the respondent 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
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quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant State and
Mr. P.B. Khandheria for the respondents-accused. 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 Ms. Jirga Jhaveri has taken this Court through the
entire evidence of the prosecution on record of the case and submitted
that the judgment and order of acquittal is contrary to law and evidence
on record and the learned trial Court has not appreciated the direct and
indirect evidence in the case. That the complainant has supported the
case of the prosecution, which is corroborated by the deposition of the
medical officer and the witnesses have identified the accused before the
learned trial Court. The prosecution has fully proved the case beyond
reasonable doubts but the learned trial Court has relied on minor
contradictions and has given undue weightage with regard to the place of
incident. That the order passed by the learned trial Court is illegal,
improper and perverse and is required to be quashed and set aside and the
appeal of the appellant must be allowed.
6. Learned advocate Mr. P.B.Khandheria appearing for the
respondents-original accused submits that the judgments and orders have
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been passed after appreciation of all the evidence and the learned Court
has appreciated the evidence in proper perspective and hence, the appeal
of the appellant-State must be rejected.
7. At the outset, before discussing the facts of the present case, it
would be appropriate to refer to the observations of the Apex Court in
acquittal appeals in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415, wherein, the Apex Court has
observed as under:
Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 : AIR 2006
SC 831, this Court stated; "While deciding an appeal against
acquittal, the power of the Appellate Court is no less than the power
exercised while hearing appeals against conviction. In both types of
appeals, the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be
interfered with, by an appellate court, where the judgment of the trial
court is based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the trial court 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
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conclusions', 'glaring mistakes', etc. are not intended to curtail
extensive powers of an appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language'
to emphasize the reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to review the evidence
and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court..
8. The law with regard to acquittal appeals is well crystallized and in
acquittal appeals, there is presumption of innocence in favour of the
accused and it has finally culminated when a case ends in an acquittal.
The learned Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the prosecution has not
proved the case beyond reasonable doubts, the presumption of innocence
in favour of the accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after re appre-
ciation, the view taken by the learned Trial Court was a possible view,
there is no reason for the Appellate Court to interfere in the same.
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9. As the appeal pertains to a case under Section 306 of the IPC, it
would be appropriate to reproduce the observations of the Hon'ble Apex
Court in the case of Mahendra Awase vs The State of Madhya Pradhesh
Criminal Appeal No. 221/2025 (@ SLP(Cr) No. 11868/2023) passed on
17th January, 2025 which is as under:
11. Section 306 of the IPC reads as under:-
"306. Abetment of suicide. If any person commits suicide, whoever
abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine."
12. Section 107 of the IPC reads as under:-
"107. Abetment of a thing.-A person abets the doing of a thing, who-
First. - Instigates any person to do that thing; or
Secondly. - Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission
takes place in pursuance of that conspiracy, and in order to the doing
of that thing; or
Thirdly. - Intentionally aids, by any act or illegal omission, the doing
of that thing."
As is clear from the plain language of the Sections to attract the
ingredient of Section 306, the accused should have abetted the
commission of a suicide. A person abets the doing of a thing who
Firstly - instigates any person to do that thing or Secondly - engages
with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing or
Thirdly - intentionally aids, by any act or illegal omission, the doing
of that thing.
13. In Swamy Prahaladdas vs. State of M.P. and Another, [1995 Supp
(3) SCC 438], the appellant remarked to the deceased that 'go and die'
and the deceased thereafter, committed suicide. This Court held that:-
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"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 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)
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"20. Instigation is to goad, urge forward, provoke, incite or encourage
to do 'an act'. To satisfy the requirement of instigation though it is not
necessary that actual words must be used to that effect or what
constitutes instigation must necessarily and specifically be suggestive
of the consequence. Yet a reasonable certainty to incite the
consequence must be capable of being spelt out. The present one is
not a case where the accused had by his acts or omission or by a
continued course of conduct created such circumstances that the
deceased was left with no other option except to commit suicide in
which case an instigation may have been inferred. A word uttered in
the fit of anger or emotion without intending the consequences to
actually follow cannot be said to be instigation."
In the said case this Court came to the conclusion that there is no
evidence and material available on record where-from an inference of
the appellant accused having abetted commission of suicide by Seema
(the appellant's wife therein) may necessarily be drawn."
Thereafter, this Court in Mohan (supra) held:-
45. The intention of the legislature and the ratio of the cases decided
by this Court are clear that in order to convict a person under Section
306 IPC there has to be a clear mens rea to commit the offence. It also
requires an active act or direct act which led the deceased to commit
suicide seeing no option and this act must have been intended to push
the deceased into such a position that he/she committed suicide."
[Emphasis supplied]
10. In light of the above settled principles of law, the evidence on
record of the case is appreciated and the prosecution has examined
Prosecution Witness No. 1, Varnarajsinh Shivubha Jadeja at Exhibit 7
and the witness is the panch witness of the inquest panchnama, which is
produced at Exhibit 8. The witness has supported the case of the
prosecution.
10.1] The prosecution has examined Prosecution Witness No. 2
Rajeshbhai Rudabhai Singal at Exhibit 9 and the witness is the panch
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witness, whereby the dead body of Kanchanben Bikhabhai was identified
and the panchnama, which is produced at Exhibit 10 was drawn. The
witness has supported the case of the prosecution and during the cross-
examination by the learned advocate for the accused, the witness has
stated that he does not know who had identified the dead body of the
deceased and when they had gone for the postmortem procedure, the
police had asked them to affix their thumb impression and he had done
so.
10.2] The prosecution has examined Prosecution Witness No. 3
Jivanbhai Samathbhai Rathod at Exhibit 11 and the witness is the panch
witness of the panchnama of the place of offence, which is produced at
Exhibit 12. The witness has supported the case of the prosecution.
10.3] The prosecution has examined Prosecution Witness No. 4
Ukabhai Jivanbhai Bagda at Exhibit 13 and the witness is the panch
witness of the place of offence, where Kanchanben Bikhabhai had
consumed poison and the panchnama is produced at Exhibit 14.
10.4] The prosecution has examined Prosecution Witness No. 5
Dineshbhai Ramjibhai at Exhibit 19 and the witness is the uncle of
deceased Bikhabhai, who has stated that both Kanchanben and
Bikhabhai had expired due to the harassment of the accused No. 1. That
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the accused No. 1 had illicit relations with Kanchanben and he had
molested Kanchanben on a number of occasions whenever Kanchanben
used to go to the field to give food to her husband. That, a complaint was
filed by Kanchanben and the accused No.1 was arrested and taken to the
police station but thereafter he was released on bail and Kanchanben
committed suicide. After some time Bikhabhai also consumed poison
and committed suicide and later on, he came to know that one chit was
found in the pocket of Bikhabhai.
During the cross-examination by the learned advocate for the
accused, the witness has stated that Kanchanben or her husband
Bikhabhai had never told him about the harassment of the accused No. 1
to Kanchanben, when she would go to the field to give her husband his
food. He had heard about the harassment and there is a distance of about
half a kilometre between both their fields. He had never seen
Kanchanben going or coming to the field and he has not read the
complaint that was filed by Kanchanben but had only heard about the
same. In his statement before the police, he has not stated that the
accused No. 1 was molesting Kanchanben on a number of occasions.
10.5] The prosecution has examined Prosecution Witness No. 6
Dr. Naginbhai Bhovanbhai Sarvaiya at 23 and the witness is the Medical
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Officer, who has conducted the postmortem on the dead body of
deceased Bikhabhai Danabhai Dalit. The witness was working as a
Medical Officer in the Jetpur Government Hospital and the postmortem
note is produced at Exhibit 27. As per column No. 17, there were no
marks of injury on the dead body of the deceased and the cause of death
was due to consupmtion of Phosphate Organo Chemical.
During the cross-examination by the learned advocate for the
accused, the witness has stated that he cannot say from which medicine
organophosphorus is made and in the post-mortem report, no poison was
found on the tongue or saliva of the deceased. That the cause of death
was given on the basis of the chemical analysis report.
10.6] The prosecution has examined Prosecution Witness No. 7
Dr. Mansukhlal Chaganbhai Gajera at Exhibit 28 and the witness is the
Medical Officer, who who was working at the Jaipur Hospital and has
conducted the post-mortem on the dead body of deceased Kanchanben
Bikhabhai. The witness has produced the postmortem note at Exhibit 32
and he has stated that as per column No. 17, there were no marks of
injury on the dead body of the deceased and the cause of death was kept
pending till the report of the chemical analyzer was received and after
the report, he had given the final cause of death as due to
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cardiorespiratory failure due to organophosphorus poison.
During the cross-examination by the learned advocate for the
accused, the witness has stated that there were no poison found on the
tongue or saliva of the deceased and the cause of death was given on the
basis of the report of the chemical analyzer.
10.7] The prosecution has examined Prosecution Witness No. 8
Rajabhai Laxmanbhai at Exhibit 33 and the witness is the uncle of the
deceased Bikhabhai and the complainant who has fully supported all the
contents of the complaint, which is produced at Exhibit 34 and Exhibit
35. The witness has stated that his nephew had committed suicide and
had consumed poison at the field and his wife Kanchanben had
consumed poison at her house. When they were admitted to the hospital
at Jetpur, he was informed about the incident but he does not know the
reason why they had consumed poison. He had given a written
application in the police station, which is produced at Exhibit 34 and the
complaint is produced at Exhibit 35.
During the cross-examination by the learned advocate for the
accused, the witness has stated that he has no personal knowledge about
the written application and the complaint as it was written by other
persons and it was not read over and explained to him.
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10.8] The prosecution has examined Prosecution Witness No. 9
Bupatbhai Ramjibhai at Exh.36 and the witness is the cousin brother of
deceased Bikhabhai Kanabhai Rathod, who has not supported the case of
the prosecution. The witness has stated that he does not know why
Bikhabhai Kanabhai and his wife Kanchanben committed suicide. The
witness has been declared hostile and has been cross-examined at length
by the learned APP, but nothing to support the case of the prosecution
has come on record.
10.9] The prosecution witness has examined Prosecution Witness
No. 10 Lakhabhai Punjabhai Parghi at Exh.37 who is a relative of the
deceased Bikha bhai and Kanchanben but he has not supported the case
of the prosecution and has been declared hostile and has been cross-
examined at length by the learned APP but nothing to support the case of
the prosecution has come on record.
10.10] Prosecution Witness No. 11 Ashish Arunkumar Pandya
examined at Exhibit 38 is the Investigating Officer, who has narrated the
entire procedure undertaken by him during investigation.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the chit that was found from the dead
body of the deceased was not sent to the handwriting expert for opinion
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and he did not seize any documents regarding the natural handwritings of
the deceased. He did not inquire whether the deceased had taken
education in any school or not and he did not inquire into any complaint
that was filed by deceased Kanchanben against the accused.
11. On minute appreciation of the entire evidence of the
prosecution deceased Kanchanben Bikhabhai had consumed poison on
26-11-2004 and Bikhabhai Kanhabhai had consumed poison on 30-11-
2004. The complaint was filed by the uncle Rajabhai Lakhmanbhai
Rathod on 05-12-2004 and there is no explanation regarding the delay in
filing of the complaint. As per the evidence on record an accident death
would have been recorded in both the cases but there are no documents
relating to the accident death that was filed in both the cases on record,
hence, what has come in the first version of the witnesses has not come
on record. In the entire evidence, the evidence that has emerged is that
one chit was found from the pocket of Bikhabhai Kanhabhai but the chit
has not come on record and the Investigating Officer has admitted that he
did not send the chit to the handwriting expert and did not collect any
samples of natural writings of Bikhabhai Kanhabhai. Hence, the contents
of the chit and the reason why the deceased have committed suicide has
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not come on record. Moreover, it has also emerged that deceased
Kanchanben Bikhabhai had filed a complaint against the accused No. 1
regarding harassment to her but the complaint has not come on record and
there is no iota of evidence that any time prior to 26-11-2004 or 30-11-
2004, the accused had committed any act, which would fall under the
definition of incitement, abetment, goading or doing any act, by which
the deceased would commit suicide.
12. In view of the settled position of law in the decisions of Mahendra
Awase (supra), the learned trial Court has appreciated the entire evidence
in proper perspective and there does not appear to be any infirmity and
illegality in the impugned judgment and order of acquittal. 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 extending benefit of doubt and acquitting the accused of the charges
leveled against him. 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 extending benefit of doubt and 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
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resultantly, the same is dismissed.
13. The impugned judgement and order of acquittal passed by the
learned Presiding Officer & Additional Sessions Judge, Fast Track Court
No.8, Gondal, Camp @ Jetpur, in Sessions Case No. 28 of 2005 on
21.04.2006, is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
