Gujarat High Court
State Of Gujarat vs Shivabhai Sureshbhai Vasava on 7 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1060 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
NO
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STATE OF GUJARAT
Versus
SHIVABHAI SURESHBHAI VASAVA & ANR.
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Appearance:
MS.JIRGA JHAVERI, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1,2
MR NIRAD D BUCH(4000) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under Section
378(1)(3) of the Code of Criminal Procedure, 1973 against the
judgement and order of acquittal passed by the learned Additional
Sessions Judge, Fast Track Court No. 4, Vadodara (hereinafter referred to
as "the learned Trial Court") in Sessions Case No. 212 of 2007 on
23.11.2007, whereby, the learned Trial Court has acquitted the
respondents for the offence punishable under Sections 306, 498-A and
114 of Indian Penal Code, 1860 (hereafter referred to as "IPC" for short).
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1.1 The respondents are hereinafter referred to as the accused in the
rank and file as they stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 That the The accused No. 1 was the husband of deceased Parul and
the accused No. 2 was the mother-in-law and on 11/04/2007, at around,
14:00 Hrs, at village Fofadiya, the accused did not give the deceased
money for spending and when the deceased demanded for some money,
the accused quarreled with her and physically and mentally harassed her
to such an extent. That she drank some pesticides and was taken to the
hospital, where, she expired during treatment. The complainant Natubhai
Somabhai Vasava filed the complaint before the Dy.S.P., Vadodara
(Rural), Vadodara, which was registered as First Information Report No.
18 of 2007 at Sinor Police Station on 13/04/2007.
2.2 The Investigating Officer recorded the statements of the connected
witnesses and seized the necessary documents and after completion of
investigation, a chargesheet came to be filed before the learned Judicial
Magistrate First Class, Sinor, and as the said offences against the accused
were exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Vadodara as per the provisions of
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Section 209 of the Code of Criminal Procedure and case was registered
Sessions Case No. 212 of 2007.
2.3 The accused were duly served with the summons and the accused
appeared before the learned Trial Court, and it was verified whether the
copies of all the police papers were provided to the accused as per the
provisions of Section 207 of the Code and a charge at Exh. 4 was framed
against the accused and the statements of the accused were recorded at
Exhs. 5 and 6 respectively, wherein, the accused denied all the contents
of the charge and the entire evidence of the prosecution was taken on
record.
2.4 The prosecution produced the following evidence to bring home
the charge against the accused.
ORAL EVIDENCE
Sr. P.W. Name of the witnesses Exh.
No. Nos
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DOCUMENTARY EVIDENCE
Sr. Particulars Exh.
No.
2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 36, the further statement of the accused under Section 313
of the Code of Criminal Procedure, 1973 were recorded, wherein, the
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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 state 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 him.
3. Being aggrieved and dissatisfied with the said judgement and order
of acquittal, the appellant - State has filed the present appeal mainly
stating that the impugned judgement and order of acquittal passed by the
learned Trial Court is contrary to law and evidence on record and the
learned Trial Court has not appreciated the entire evidence in proper
perspective. The learned trial Court has erred in holding that the
prosecution has not proved the case beyond reasonable doubts and has
failed to appreciate the evidence of the Medical Officer, who has clearly
opined that the deceased has consumed poison and there was mental and
physical harassment to the deceased by the accused and the evidence is
sufficient to hold the accused guilty for the offence of Section 306 of the
IPC. The case has been proved beyond reasonable doubts and the
prosecution has successfully established the case against the respondents
and the judgement and order of acquittal is unwarranted, illegal and
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without any basis in the eyes of law and the reasons stated while
acquitting the respondent are improper, perverse and bad in law. Hence
the impugned judgment and order passed by the learned Trial Court
deserves to be quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri and learned advocate Mr.
Nirad Buch 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 Ms. Jirga Jhaveri has taken this Court through the
entire evidence of the prosecution on record of the case and submitted
that the prosecution has produced oral evidences of six witnesses and
fifteen documentary evidences but the learned trial Court has not
appreciated the evidence and has wrongly come to the conclusion that the
prosecution has not proved the case beyond reasonable doubts. The
reasons given by the learned trial Court are shaky and there are no cogent
reasons for came to the conclusion that the charge against the accused is
not proved. Learned APP has urged this Court that the impugned
judgement and order is improper, perverse and bad in law and is required
to be quashed and set aside.
6. Learned advocate Mr. Nirad Buch for the respondents has
submitted that the learned Trial Court has appreciated all the evidences
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and passed the judgement and order of acquittal which is just and proper
and no interference is required in the same and learned Advocate for the
respondents has urged this court to reject the appeal of the appellant.
7. At the outset, before discussing the facts of the present case, it
would be appropriate to refer to the observations of the Apex Court in the
case of acquittal appeals in 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 conclusions',
'glaring mistakes', etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal. Such phraseology are more in
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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.
7.1 The Apex Court in yet another recent decision in case of Sri
Dattatraya Vs. Sharanappa arising out of Criminal Appeal No. 3257 of
2024 (@ SLP (Crl.) No. 13179 of 2023) observed as under:-
31. The instant case pertains to challenge against concurrent findings of fact
favoring the acquittal of the respondent, it would be cogent to delve into an
analysis of the principles underlining the exercise of power to adjudicate a
challenge against acquittal bolstered by concurrent findings. The following
broad principles can be culled out after a comprehensive analysis of judicial
pronouncements:
i) Criminal jurisprudence emphasizes on the fundamental essence of liberty
and presumption of innocence unless proven guilty. This presumption gets
emboldened by virtue of concurrent findings of acquittal. Therefore, this
court must be extra-cautious while dealing with a challenge against acquittal
as the said presumption gets reinforced by virtue of a well-reasoned favorable
outcome. Consequently, the onus on the prosecution side becomes more
burdensome pursuant to the said double presumption.
ii) In case of concurrent findings of acquittal, this Court would ordinarily not
interfere with such view considering the principle of liberty enshrined in
Article 21 of the Constitution of India 1950, unless perversity is blatantly
forthcoming and there are compelling reasons.
iii) Where two views are possible, then this Court would not ordinarily
interfere and reverse the concurrent findings of acquittal. However, where the
situation is such that the only conclusion which could be arrived at from a
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comprehensive appraisal of evidence, shows that there has been a grave
miscarriage of justice, then, notwithstanding such concurrent view, this Court
would not restrict itself to adopt an oppugnant view. [Vide State of Uttar
Pradesh v. Dan Singh]
iv) To adjudge whether the concurrent findings of acquittal are 'perverse' it is
to be seen whether there has been failure of justice. This Court in Babu v.
State of Kerala clarified the ambit of the term 'perversity' as
"if the findings have been arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant/admissible material. The
finding may also be said to be perverse if it is 'against the weight of
evidence', or if the finding so outrageously defies logic as to suffer from the
vice of irrationality."
v) In situations of concurrent findings favoring accused, interference is
required where the trial court adopted an incorrect approach in framing of an
issue of fact and the appellate court whilst affirming the view of the trial
court, lacked in appreciating the evidence produced by the accused in
rebutting a legal presumption. [Vide Rajesh Jain v. Ajay Singh]
vi) Furthermore, such interference is necessitated to safeguard interests of
justice when the acquittal is based on some irrelevant grounds or fallacies in
re-appreciation of any fundamental evidentiary material or a manifest error of
law or in cases of non-adherence to the principles of natural justice or the
decision is manifestly unjust or where an acquittal which is fundamentally
based on an exaggerated adherence to the principle of granting benefit of
doubt to the accused, is liable to be set aside. Say in cases where the court
severed the connection between accused and criminality committed by him
upon a cursory examination of evidences. [Vide State of Punjab v. Gurpreet
Singh and Others and Rajesh Prasad v. State of Bihar.]
8. As the accused have been charged with the offence under Section
306 of the IPC, it would be fit to refer the observations of the Hon'ble
Apex Court in recent decision in the case of Mahendra Awase vs The
State of Madhya Pradhesh Criminal Appeal No. 221/2025 (@ SLP(Cr)
No. 11868/2023) observed as under:-
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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:-
"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
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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)
"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
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this act must have been intended to push the deceased into such a position that
he/she committed suicide."
[Emphasis supplied]
9. 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. That there is no inhibition to
re appreciate the evidence by the Appellate Court but if after re
appreciation, the view taken by the learned Trial Court was a possible
view, there is no reason for the Appellate Court to interfere in the same.
10. In light of the above, the evidence of the prosecution is appreciated
and the prosecution has examined Prosecution Witness No. 1 Natubhai
Somabhai Vasava at Exh. 9 and the witness is the complainant and the
father of the deceased-Parulben and has stated that his daughter was
married to the accused No. 1 and she was residing in a joint family with
her mother-in-law, father-in- law and husband and whenever she would
come to her parental home, she would tell him that they were harassing
her and not even giving her one rupee to buy a shampoo to wash her hair.
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That she was doing labour work and earning Rs.25/- was giving the
entire amount to the accused No. 1 but the accused No. 1 was not giving
her a single rupee from that amount and was physically harassing her and
as she was fed up with the harassment, she had committed suicide. That
he was intimated on 11th that his daughter was sick and was taken to the
hospital and when he went to find out she was taken to Vadodara and
when he went to Vadodara, he could not find anyone and he hence he
returned back home. On the next day, once again his wife and he went to
the hospital at Vadodara and found that the dead body of his daughter
was kept in the postmortem room. The dead body was handed over to
him and he performed the cremation rites. The complainant filed the
complaint, which is produced at Exh.10. During the cross examination
by the learned advocate for the accused, the witness has stated that
whenever his daughter would come to his house, she would not speak to
him but would speak to her mother and his wife would tell him about the
household matters of his daughter but he never spoke to his daughter
directly. That he does not know who wrote the complaint and his wife
and his brother-in-law were also present when the complaint was being
written. That he wrote the complaint as per the say of his wife and the
complaint was filed two and half days after the incident. That when his
daughter passed away, a number of persons had gathered and they
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decided to file the complaint after discussion with all the relatives. That
he does not know anything about the complaint and after the complaint
was written, he was asked to sign the complaint.
10.1 The prosecution has examined Prosecution Witness No. 2
Champaben Natubhai Vasava at Exh. 11 and the witness is the mother of
the deceased, who has fully supported the case of the prosecution.
During the cross examination by the learned advocate for the
accused, the witness has stated that on the last occasion when her
daughter had come to her house, the accused No. 1 was also with her and
they stayed for three days and thereafter left for Fofadiya. That her
daughter and her son-in-law were residing separately at Fofadiya and her
mother-in-law and father-in-law were residing separately in Fofadiya
village and the police did not record her statement.
10.2 The prosecution has examined Prosecution Witness No. 3
Bhailalbhai Natubhai Vasava at Exh. 12 and the witness is the brother of
the deceased who has fully supported the case of the prosecution.
During the cross examination by the learned advocate for the
accused, the witness has stated that Jashbhai has good relation with them
and his number was given to his sister and brother-in-law. He does not
know whether his sister had come one week prior to the incident and his
sister and brother-in-law were residing separately at Mota Fofadiya.
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10.3 The prosecution has examined Prosecution Witness No. 4
Ganeshbhai Gordhanbhai at Exh. 17 and the witness is the PSO, Sinor
Police Station, who has registered the complaint of the complainant
being I-C.R.No. 18 of 2007 under Section 498-A, 306 and 114 of the
IPC.
10.4 The prosecution has examined Prosecution Witness No. 5
Bijaybhai Ganpatsinh Rathod at Exh. 20 and the witness is working as a
Tutor, Forensic Medicine Department, SSG Hospital, who has conducted
the postmortem on the dead body of the deceased on 12/04/2007 at SSG
Hospital, Vadodara. This witness has stated that he and panel Dr. Sunil
Bhatt conducted the postmortem and during the internal examination, the
mucosa had contained 200 ml of yellowish fluid with an offensive smell.
The cause of death was kept pending until the FSL report was received
and as per report of FSL, the death had occurred due to the consumption
of " fenitrothion, a type of organophosphate chemical". The witness has
produced postmortem the report at Exh. 21.
During cross-examination by the learned advocate for the accused,
the witness stated that he mentioned the poison based on the FSL report.
10.5 The prosecution has examined Prosecution Witness No. 6 Ramsinh
Laxmansinh Chauhan at Exh. 26 and the witness is the Investigating
Officer, who has narrated in detail the procedure that was undertaken by
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him during investigation. During cross examination the witness has
stated that the accidental death was registered but he did not investigate
the same and he did not record the statement of the witnesses named by
the complainant in the complaint. The accused resides in a very
congested area but he has not recorded the statement of any neighbors.
11. On minute dissection of the entire evidence of the prosecution, the
infirmities in the evidence have come on record and there is no iota of
evidence that that the accused, at any point of time, had harassed the
deceased to such an extent that she was instigated or intentionally aided
to consume poison and commit suicide. The complainant has clearly
stated that he does not know the details of the complaint and he had
never spoken directly to his daughter and hence he does not whether the
deceased was actually harassed by the accused. The mother of the
deceased had admitted that on the last occasion, the deceased had come
along with the accused No. 1 and they had stayed for three days and
there is no evidence that the deceased was in fact not provided even one
rupee for purchasing shampoo and other articles. The Investigating
Officer has not recorded the statement of the neighbor even though the
accused and the deceased were staying in a very congested area and as
per the case of the prosecution, the deceased was immediately taken to
CHC Mota Fofadiya, but there is no evidence on record regarding the
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treatment given at CHC, Mota Fofadiya. Moreover, the treating doctors
have not been examined and it has not come on record as to whether the
deceased was alive at the time when she was taken to hospital and
whether she has narrated any details in the history before the Medical
Officer. There is a delay of two and half days in filing the complaint and
immediately after the incident, the accidental death case was registered
but the investigation papers regarding the accidental death has not been
brought on record. It has also come on record that the accused No. 1 and
the deceased were residing separately and from the deposition of
Prosecution Witness No. 2 Champaben Natubhai Vasava at Exh. 11 it
emerges that the witness wanted the deceased to stay at her house but the
deceased wanted to go back to her matrimonial home. The learned trial
Court has, in paragraph no. 15 of the judgment, discussed the ingredients
of Section 498-A and Section 306 of the IPC and the evidence on record
and has passed the impugned judgment and order of acquittal.
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
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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.
13. The impugned judgement and order of acquittal passed by the
learned Additional Sessions Judge, Fast Track Court No. 4, Vadodara in
Sessions Case No. 212 of 2007 on 23.11.2007, 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
