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Gujarat High Court
State Of Gujarat vs Hansaben W/O Sumanbhai Jagabhai ... on 2 December, 2025
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R/CR.A/177/2010 JUDGMENT DATED: 02/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 177 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
HANSABEN W/O SUMANBHAI JAGABHAI SOLANKI
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Appearance:
MR YUVRAJ BRAHMBHATT, APP for the Appellant(s) No. 1
MR JK PARMAR(587) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 02/12/2025
ORAL JUDGMENT
1. The present Appeal is preferred by the Appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the Judgment and Order dated 07.10.2009, passed by
the Additional Sessions Judge, Court no.14, Ahmedabad
(City) in Sessions Case No.340 of 2007, recording the
acquittal of the respondent accused for the offence punishable
under Section 498(A), 306 and 323 of the Indian Penal Code,
1860.
2. The brief facts of the prosecution case are as under:
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2.1. The brief facts of the case of the prosecution are that on
25.08.2007 at around 02.00 p.m., the accused had reached
the house of the deceased Ashaben and quarreled with her
and assaulted her and had stated that she does not like her
and the deceased had poured kerosene on herself and the
accused had abetted the deceased to commit suicide and
was rushed to the hospital and was declared dead at 10.45
hours, by way of which the accused had committed offence
under Section 306, 498(A), 323 of the Indian Penal Code,
1860 and therefore, the complaint being I-C.R.No.292/2007
was filed against the accused with Bapunagar Police
Station, Ahmedabad for the offence punishable under
Sections 306, 498(A) and 323 of the Indian Penal Code,
1860.
2.2. After completion of investigation the police has filed
chargesheet before the Judicial Magistrate First Class,
Ahmedabad for the offence punishable under Sections
498(A), 306 and 323 of the Indian Penal Code. Then after,
the matter was committed to the Sessions Court and case
was registered as Sessions Case No. 340/2007.
2.3. The trial was initiated against the respondent and during
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course of trial the prosecution examined 8 witnesses and 10
documentary evidences. At the end of trial, after recording
the statement of the accused under Section 313 of Cr.P.C.,
and hearing arguments on behalf of prosecution and the
defence, the learned Sessions Judge acquitted the
respondent of all the charges leveled against him by
judgment and order dated 07.10.2009.
2.4. Being aggrieved by and dissatisfied with the aforesaid
judgment and order passed by the Sessions Court, the
appellant-State has preferred the present appeal.
3. It was contended by learned APP that the judgment and order
of the Sessions Court is against the provisions of law; the
Sessions Court has not properly considered the same and
looking at the evidence led under the provisions of law itself, it
is established that the prosecution has proved the case.
Learned APP has also taken this Court through the oral as well
as the entire documentary evidence.
4. Learned APP for the appellant - State has pointed out the facts
of the case and having taken this Court through both, oral and
documentary evidence, recorded before the learned trial Court,
would submit that the learned trial Court has failed to
appreciate the evidence in true sense and perspective; and that
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the trial Court has committed error in acquitting the accused. It
is submitted that the learned trial Court ought not to have
given much emphasis to the contradictions and/or omissions
appearing in the evidence and ought to have given weightage
to the dots that connect the accused with the offence in
question. It is submitted that the learned trial Court has
erroneously come to the conclusion that the prosecution has
failed to prove its case. It is also submitted that the learned
Judge ought to have seen that the evidence produced on record
is reliable and believable and it was proved beyond reasonable
doubt that the accused had committed an offence in question.
It is, therefore, submitted that this Court may allow this appeal
by appreciating the evidence led before the learned trial Court.
5. Per contra, learned advocate for the respondent-accused has
submitted that the Trial Court has appreciated all the evidence
in its true perspective and has not committed any error in
acquitting the accused therefore, no interference of this Court
is required in the impugned judgment and the order of the
acquittal passed by the Trial Court and has urged this Court to
reject this Appeal.
6. Having heard learned APP for the appellant State and learned
advocate for the respondent-accused and having gone through
the judgment and order of acquittal passed by the trial Court as
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well as material placed on record, certain aspects which
weighed with this Court needs to be discussed.
6.1. Before adverting to the facts of the case, it would be
worthwhile to refer to the scope of interference in acquittal
appeals. It is well settled by catena of decisions that an
appellate Court has full power to review, re-appreciate and
consider the evidence upon which the order of acquittal is
founded. However, the Appellate Court must bear in mind
that in case of acquittal, there is prejudice in favour of the
accused, firstly, the presumption of innocence is 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 reaffirmed and
strengthened by the trial Court.
6.2. Further, 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. Further, while exercising the powers in appeal
against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest
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illegality and the conclusion arrive at would not be arrived
at by any reasonable person, and therefore, the decision is
to be characterized as perverse.
6.3. Merely because two views are possible, the Court of appeal
would not take the view which would upset the judgment
delivered by the Court below. However, the appellate
Court has a power to review the evidence if it is of the view
that the conclusion arrived at by the Court below is
perverse and the court has committed a manifest error of
law and ignored the material evidence on record. That the
duty is cast upon the appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to just
decision on the basis of material placed on record to find
out whether the accused is connected with the commission
of the crime with which he is charged.
6.4. In the case of Babu v. State of Kerala, (2010) 9 SCC
189), this Court had reiterated the principles to be followed
in an appeal against acquittal under Section 378 Cr.P.C., it
is held as under:
12. This Court time and again has laid down the
guidelines for the High Court to interfere with the
judgment and order of acquittal passed by the trial
court. The appellate court should not ordinarily set
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aside a judgment of acquittal in a case where two
views are possible, though the view of the appellate
court may be the more probable one. While dealing
with a judgment of acquittal, the appellate court has
to consider the entire evidence on record, so as to
arrive at a finding as to whether the views of the trial
court were perverse or otherwise unsustainable. The
appellate court is entitled to consider whether in
arriving at a finding of fact, the trial court had failed
to take into consideration admissible evidence and/or
had taken into consideration the evidence brought on
record contrary to law. Similarly, wrong placing of
burden of proof may also be a subject-matter of
scrutiny by the appellate court. (emphasis applied)
6.5. In Mallikarjun Kodagali (Dead) represented through
Legal Representatives v. State of Karnataka and Others,
(2019) 2 SCC 752, the Apex Court has observed that:
"The presumption of innocence which is
attached to every accused gets fortified and
strengthened when the said accused is acquitted
by the trial Court. Probably, for this reason, the
law makers felt that when the appeal is to be
filed in the High Court it should not be filed as a
matter of course or as matter of right but leave
of the High Court must be obtained before the
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appeal is entertained. This would not only
prevent the High Court from being flooded with
appeals but more importantly would ensure that
innocent persons who have already faced the
tribulation of a long drawn out criminal trial
are not again unnecessarily dragged to the High
Court".
6.6. The Apex Court, in case of Chandrappa v. State of
Karnataka (2007) 4 SCC 415, reiterated the legal position
as under: (SCC p. 432, para 42)
"(1) An appellate court has full power to review, re-
appreciate 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
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emphasise 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 is 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."
6.7. The Apex Court has held that the law on the issue can be
summarized to the effect that in exceptional cases where
there are compelling circumstances, and the judgment
under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court
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should bear in mind the presumption of innocence of the
accused and further that the trial court's acquittal bolsters
the presumption of his innocence. Interference in a routine
manner where the other view is possible should be avoided,
unless there are good reasons for interference.
6.8. These decisions clearly express that while exercising
appellate powers, even if two reasonable views/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. I have gone through the judgement and order passed by the
trial court. I have also perused the oral as well as documentary
evidence led by the trial court, more particularly the R & P
received from the trial court and also considered the
submissions made by learned APP for the appellant State as
well as learned advocate for the respondent-accused,
following facts are emerged:
7.1. In the Dying Declaration dated 26.08.2007, the
deceased had stated that as she got angry, she lighted
matchstick and the fire had occurred and in the statement
made before the Doctor, it is coming on record vide
Exhibit 31, it has been stated before the Doctor that she
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was not burned by her in-laws, that there are
contradictions within six hours from the Dying
Declaration produced vide Exhibit-16 and Exhibit 31
which was given before the Doctor, the incident had
occurred on 25.05.2007 and within six hours, vide Exhibit
31, it has been noted that the theory of suicide has been
stated by the deceased. If the oral evidence of the father of
the deceased is seen, wherein he has deposed vide
Exhibit-8, he has stated that his daughter was happy and
whenever she used to come to his residence, she was
always happy.
7.2. The mother of the deceased has been examined vide
Exhibit-9, wherein she has stated that her daughter was of
sensitive nature and was staying separately from the
husband and she has also stated that she is not aware, if
her daughter died because of burns while making food and
that she does not know how burns were there on her
daughter.
7.3. The Trial Court has also taken into consideration that in
the Dying Declaration, vide Exhibit-16, the Doctor has
noted that the patient was conscious but it has not been
stated that the patient is conscious when the Dying
Declaration is taken.
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7.4. Moreover, the date of taking the Dying Declaration is
also contradicting, as the date that has been mentioned on
the first page is 25.08.2007 and the same Dying
Declaration last page states 26.08.2007, therefore the
actual date of taking Dying Declaration is also not proved
by the prosecution. Though, it has been alleged that the
deceased was assaulted but the fact of her assault is not
coming on record. The Trial Court has also taken into
consideration that her fitness condition while taking the
Dying Declaration is also not proved by the prosecution
and there is a contradiction in the Dying Declaration and
there is nothing on record to prove the fact that there was
any mental torture on the deceased which compelled her
to commit suicide. Moreover, there is no proof of direct or
indirect acts of incitement to commission of suicide and
the prosecution has not proved any positive action
proximate to the time of occurrence on the part of the
accused which compelled the deceased to commit suicide.
Moreover, there is nothing on record to show that the
deceased was suffering from cruelty by the accused. The
Trial Court has rightly held that there was no positive
evidence on record to prove that the accused by way of
the conduct or spoken words, overtly or covertly, actually
aided and abetted or instigated the deceased in such a
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manner that it leaves no other option for the deceased but
to commit suicide.
7.5. The trial court while considering the evidences in detail
has observed that the prosecution failed to prove the case
against the accused beyond reasonable doubt. The trial
court has gone into the evidence in detail and has come to
the conclusion that the accused are not guilty of the alleged
offence.
7.6. Thus, from the evidence itself it is established that the
prosecution has not proved its case beyond reasonable
doubt. Learned APP is not in a position to show any
evidence to take a contrary view of the matter or that the
approach of the trial court is vitiated by some manifest
illegality or that the decision is perverse or that the trial
court has ignored the material evidence on record.
8. In the case of Mahendra K.C. v. State of Karnataka and
another, [(2022) 2 SCC 129], it has been held by the
Hon'ble Supreme Court that the essence of abetment lies in
instigating a person to do a thing or the intentional doing of
that thing by an act or illegal omission. Instigation is to
goad, urge forward, provoke, incite or encourage to do "an
act". To satisfy the requirement of instigation though it is
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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.
A word uttered in the fit of anger or emotion without
intending the consequences to actually follow cannot be said
to be instigation.
9. In the case of Mahendra Awase v. State of Madhya
Pradesh, 2025 (1) Crimes 347 (SC), the observations are
made with regard to abetment of suicide. It has been held
that in order to bring a case within purview of Section 306
IPC, there must be a case of suicide and in commission of
said offence, person who is said to have abetted commission
of suicide must have played active role by act of instigation
or by doing certain act to facilitate commission of suicide. It
has been further observed that the act of abetment by person
charged with said offence must be proved and established by
prosecution before he could be convicted under Section 306
IPC. It is further observed that to satisfy requirement of
instigation, accused by his act or omission or by a continued
course of conduct should have created such circumstances
that deceased was left with no other option, except to
commit suicide.
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10. The trial Court has rightly held that there was no positive
evidence on record to p[rove that the accused by way of the
conduct or spoken words, overtly or covertly, actually aided and
abetted or instigated the deceased in such a manner that it leaves
no other option for the deceased but to commit suicide.
11. In the above view of the matter, I am of the considered opinion
that completely justified the trial Court in acquitting the
respondent of the charges leveled against him.
11.1. I find that the findings recorded by the trial court are
absolutely just and proper and in recording the said findings, no
illegality or infirmity has been committed by it.
11.2. I am, therefore, in complete agreement with the findings,
ultimate conclusion and the resultant order of acquittal recorded
by the Court below and hence find no reasons to interfere with
the same. Hence the appeal is hereby dismissed.
12. The judgment and order dated 07.10.2009 passed by the
Additional Sessions Judge, Court no.14 Ahmedabad (City) in
Sessions Case No.340 of 2007 recording the acquittal of the
respondent is hereby confirmed. Bail bonds, if any, shall stand
cancelled. R & P to be sent back forthwith.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
