Gujarat High Court
State Of Gujarat vs Fulsinh Aaratbhai Baria on 13 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 496 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
FULSINH AARATBHAI BARIA & ORS.
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Appearance:
MS. JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR UM SHASTRI(830) for the Opponent(s)/Respondent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
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, Panchmahal @ Godhara (hereinafter referred to as "the
learned Trial Court") in Sessions Case No. 02 of 2007 on 28.02.2007,
whereby, the learned Trial Court has acquitted the respondents for the
offence punishable under Sections 498-A, 306 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 The accused No. 2 was married to deceased Narmada and accused
No. 1 is the father-in-law, accused No. 3 is the uncle-in-law, accused No.
4 is mother-in-law and accused Nos. 5 and 6 are the sisters-in-law of the
deceased Narmada. That all the accused used to tell the deceased that she
was dark, short and did not know any household work and they did not
want to keep her in the house and used to taunt her and physically and
mentally harass the deceased. On 26/08/2006 between 17:00 hrs to 22:00
hrs., the deceased jumped into the well at Vadodar village and committed
suicide and the complaint was filed by the complainant - Raysinghbhai
Sorambhai Patel, the father of the deceased at Morva Police Station for
the offence under Section 498-A, 306 and 114 of the Indian Penal Code,
1860 being I-C.R.No. 74 of 2006 on 29/08/2006.
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, Godhara and as the said offences against the
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accused was exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court, Panchmahal @ Godhara as per the
provisions of Section 209 of the Code of Criminal Procedure and the
case was registered as Sessions Case No. 2 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. A charge at Exh. 2 was framed
against the accused and the statements of the accused were recorded at
Exh. 3 to 8, 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.
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2.5 After the learned Additional Public Prosecutor filed the closing
pursis at Exh. 43, the further statement of the accused under Section 313
of the 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 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 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 respondents. The case
has been proved beyond reasonable doubts and the prosecution has
successfully established the case against the respondents and the
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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
quashed and set aside.
4. Heard learned APP Ms. Jirga Jhaveri for the appellant State with
Mr. J.L.Chan, learned advocate for the original complainant and learned
advocate Mr. Dhaval Barot for the respondent No.1-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 has
submitted that the prosecution has produced the oral evidences of nine
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 to arrive at the conclusion that the charge against the
accused is not proved. 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
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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. 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. Dhaval Barot for the respondent No. 1-
accused has submitted that The learned Trial Court has appreciated all
the evidences 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. Learned advocate Mr. J.L.Chan appearing for the original
complaint has adopted the arguments canvassed by the learned
Additional Public Prosecutor and has urged this Court to allow the
appeal of the appellant-State.
8. 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 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:
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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 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.
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9. As the accused have been charged with the offence under Section
306 of the IPC, it would be apt to reproduce the observations of the
Hon'ble Apex Court in the case of Mahendra Awase vs The State of
Madhya Pradhesh in Criminal Appeal No. 221/2025 (@ SLP(Cr) No.
11868/2023), wherein, in paras 11 to 17, 7 and 13 is observed 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:-
"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. ..."
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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)
"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
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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]
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.
That 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 on the above settled principles of law and considering the
evidence on the prosecution, to bring home the charge against the
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accused, the prosecution has examined Prosecution Witness No. 1 -
Shantaben Raysingbhai Patel at Exh.12 and the witness is the mother of
the deceased, who has stated that her daughter was harassed in her
matrimonial home and she had come away once to her parental home and
the Panch was called and an agreement was executed and one and half
month, thereafter, her daughter was killed. Her daughter was found from
the well and she went to see and found that her son-in-law had killed and
thrown her in a well. Her husband had filed the complaint and the police
had recorded her statement. During the cross examination by the learned
advocate for the accused, the witness has stated that her son-in-law was
working at Surat and used to come home after two months. That when
they went, her son-in-law was not present and at the time of the incident,
there were heavy rains and the grass had grown very high in the fields.
That the well, in which, her daughter had fallen was a very small well,
which did not have a construction on top and there was water on top of
the well. There is a canal near the well and the entire land is slopy and
the well is on the slope. That, if an unknown person would go to the
place of offence, he would not know that there is a well at that place.
10.1 The prosecution has examined Prosecution Witness No. 2 -
Bhupatbhai Raysing Patel at Exh. 13 and the witness is the brother of the
deceased, who has supported the case of the prosecution. The witness has
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stated that on the day of the incident, they were informed that the
deceased was not found since 05:00 pm and they went looking around
for her and on the next day, they found the dead body of his sister in the
well. That his sister had committed suicide because of the harassment by
her in laws.
During the cross examination by the learned advocate for the
accused, the witness has stated that his sister was not found at home after
05:00 pm when she left the house with a sickle and after his sister had
gone to her matrimonial home, her brother-in-law had gone to Surat for
work. That water was flowing over the well.
10.2 The prosecution has examined Prosecution Witness No. 3 -
Subhash Shyam Nandan Sinha at Exh. 30 and the witness is the Medical
Officer, Civil Hospital, Godhara, who had performed the postmortem of
the dead body of the deceased. The witness has stated that there was no
external injury on the body of the deceased, and the probable cause of
death is asphyxia following drowning.
During the cross-examination by the learned advocate for the
accused, the witness has admitted that if a person accidentally fell in to
the water, the body would be similar as the deceased.
10.3 The prosecution has examined Prosecution Witness No. 4 -
Raysingbhai Sorambhai Patel at Exh. 32 and the witness is the father of
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the deceased and the complainant, 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 at the time of the incident, it was
rainy season and there were heavy rains and in Morva Taluka there was a
downpour. That the water in the well was till the brim and he had gone to
the well and found that the grass and crops were decayed. The well
belonged to the father-in-law of his daughter and he had immediately
informed the Morva Police Station. He had gone to village Vadodar with
others along with Sulemanbhai.
10.4 The prosecution has examined Prosecution Witness No. 5 -
Kesamben Bhupatsinh Patel at Exh. 33 and the witness is the sister-in-
law 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 the father-in-law of the deceased told
her that the deceased had gone to cut grass with the sickle and
disappeared thereafter and he had come to inquire whether she was at
home. That at the time of the incident, it was a peak of monsoon and
there were heavy rains and the well was a small well, which did not have
any construction on the outside. The area around the well was a very
slippery place.
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10.5 The prosecution has examined Prosecution Witness No. 6 -
Rajesinh Kanjibhai Patel at Exh. 34 and the witness is the uncle 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 his signature is not there in the
agreement and the agreement does not bear the signature of any person
from their village. The witness has produced the agreement at Exh. 35.
10.6 The prosecution has examined Prosecution Witness No. 7 -
Chhtrasinh Naarsing Patel at Exh. 36 and the witness is the uncle 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 in the document produced at Exh. 35
it is mentioned as to which panch is from which village. That he had
gone to well at the place of incident and the agreement does not bear the
signature or thumb impression of any panch person from their village.
10.7 The prosecution has examined Prosecution Witness No. 8 -
Babubhai Kanubhai Pandor at Exh. 37 and the witness is the
Investigating Officer, who has narrated in detail the procedure that he
had undertaken during the investigation.
10.8 The prosecution has examined Prosecution Witness No. 9 -
Rajendra Visrambhai Ansari at Exh. 39 and the witness is the Police
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Officer, before whom, the complainant had filed the complaint, which is
produced at Exh. 40.
During the cross-examination by the learned advocate for the
accused, the witness has stated that prior to filing of the complaint, the
accidental death was registered at Morva Police Station and he does not
know whether the statement of the complainant was recorded in the
accidental death investigation.
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 the deceased was harassed in any manner by the accused.
After the incident has occurred, Accidental Death No. 24 of 2006 under
Section 174 of Cr.P.C, 1973. was recorded and the investigating Officer
has recorded the statements of the connected witnesses and had drawn
the inquest panchnama as also the panchnama of the place of offence,
during which, no cognizable offence was made out. It as emerged on
record that the accused No. 2, who was the husband of the deceased was
residing at Surat and he was not present at the time of incident. The
prosecution has mainly relied on the document produced at Exh.35,
which is the agreement between complainant - Raysinghbhai Sorambhai
Patel, the father of the deceased and the accused No. 1 and it bears
signatures of a number of persons. The documents does not specify any
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particular incident and the document states, it was the fault of the
husband of the deceased and if there was any harassment, they would
execute a divorce in Rs.1,51,000/-. There is no evidence as to how this
agreement was executed and none of the panch witnesses have been
examined by the prosecution. The witnesses who have been examined by
the relatives of the deceased and it has emerged on record that at the time
of the incident, there was heavy rain in Morva Taluka and the place
wherein the incident has occurred, was submerged under water and the
well did not have construction on top. That if any unknown person would
go at that place, they would not know the existence of the well and water
was flowing above the well. It appears that on the date of the incident,
the deceased had gone to bring grass with the sickle and it cannot be
ruled out that the deceased had accidentally fallen into the well. The
learned trial Court has appreciated the evidence and has found that there
is nothing on record to point out to the guilt of the accused and that they
had intentionally abetted, incited, or provoked the deceased to commit
any act to put an end to her life, and there is nothing to suggest that
immediately prior to the incident, there was any quarrel between the
deceased and the accused.
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
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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 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, Panchmahal @ Godhara in Sessions
Case No. 02 of 2007 on 28.02.2007, 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
