Gujarat High Court
State Of Gujarat vs Dharmeshbhai @ Budho Natubhai Chauhan on 13 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1972 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
DHARMESHBHAI @ BUDHO NATUBHAI CHAUHAN & ANR.
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Appearance:
MS. JIRGA JHAVERI APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2
MR KUNAL S SHAH(5282) for the Opponent(s)/Respondent(s) No. 1,2
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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, Fast Track Court No. 4, Camp at Botad, Bhavnagar
(hereinafter referred to as "the learned Trial Court") in Sessions Case No.
98 of 2007 on 25.04.2008, whereby, the learned Trial Court has has
extended the benefit of doubt and acquitted the respondents for the
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offence punishable under Sections 306, 498-A and 114 of Indian Penal
Code, 1860 (hereafter referred to as "IPC" for short).
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 accused No. 1 is the husband of deceased Geeta and accused
No. 2 is mother-in-law of deceased Geeta. The accused No. 1 and the
deceased were married for more than five years and since last one year,
the accused were physically and mentally harassing the deceased and on
17/12/2007, at around 08:30 pm, the deceased sprinkled kerosene on
herself and committed suicide. The complaint was filed by Maganbhai
Bhavanbhai Rathod - the father of deceased Geeta at Botad Police
Station under Sections 306, 498-A and 114 of the Indian Penal Code,
1860 and which was registered as I-C.R.No. 242 of 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, Botad and as the said offences against the accused
were exclusively triable by the Court of Sessions, the case was
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committed to the Sessions Court, Bhavnagar, as per the provisions of
Section 209 of the Code of Criminal Procedure and case was registered
Sessions Case No. 98 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. 3 was framed
against the accused and the statements of the accused were recorded at
Exhs. 4 and 5 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 nine oral evidences and fifteen
documentary evidences to bring home the charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis, the
further statement of the accused under Section 313 of the Code of
Criminal Procedure, 1973 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
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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 the 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 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 and
learned advocate Mr. Kunal B Shah 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.
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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 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 are 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
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. Kunal B Shah for the respondents 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.
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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
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.
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(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. 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 are 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,
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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
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:-
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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
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
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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
accused, the prosecution has examined Prosecution Witness No. 1
Maganbhai Bhavanbhai Rathod at Exh. 12 and the witness is the
complainant and the father of the deceased - Geeta, who has stated that
on 17/12/2006 at around 09:30 pm, his sister's son-in-law came to him
with his mobile and told him that, there was a phone call from Botad as
his daughter Geeta was burnt and he and other relatives went in a Jeep to
Botad, where, they found that his daughter was completely burnt and
lying down in the house. That she was saying "water-water" but could
not reply to any their questions and they took her to the Government
Hospital, Padiyad for treatment where doctor told them that the burns
were 100% and to take her to the Civil Hospital Botad. That they took
her to Sonawala Hospital at Botad and she expired during treatment at
01:00 am. That his daughter had told him that the accused were harassing
her but he console her that everything would be right and send her back
to her matrimonial home. That, on 21/11/2006 his daughter had
telephoned him and told him to take her from there as the accused were
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physically assaulting her and he went and brought his daughter to his
house. That she stayed there about 20 days and at that time she told him
that the accused No. 1 was not earning anything and she could not
tolerate the harassment any longer. That after 20 days, his son-in-law
came and took his daughter to her matrimonial home as she had agreed.
That even on 17/12/2006, his daughter had come in the morning train
and left in the 7:55 train from Ranpur to Botad and immediately
thereafter the incident has occurred. That he had filed the complaint at
Botad Police Station which is produced at Exh.13. During the cross
examination by the learned advocate for the accused, the witness has
stated that in the incident, his son-in-law had also sustained injuries and
he was admitted in the hospital for about two months. That, no treatment
was taken of any physical harassment given to his daughter earlier.
10.1 The prosecution has examined Prosecution Witness No. 2
Ashokbhai Parshottambhai at Exh: 15 and the witness is the panch-
witness of panchnama of place of offence, which is produced at Exh: 16.
The witness has not supported the case of the prosecution and has been
declared hostile and during the cross examination by the learned
Additional Public Prosecutor nothing to support the case of the
prosecution has come on record.
During the cross examination by the learned advocate for the
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accused, the witness has stated that the accused No. 1 is residing
separately from his parents.
10.2 The prosecution has examined Prosecution Witness No. 3
Hasmukhbhai Kanjibhai at Exh: 19 and Prosecution Witness No. 4
Ayubbhai Hasambhai at Exh: 21. Both the witnesses are the panch
witnesses of the arrest panchnama, by which, the accused was arrested
and the panchnama is produced at Exh. 20. The witnesses have stated that
they had affixed their signatures on the panchnama as per the say of the
police and nobody was arrested in their presence.
10.3 The prosecution has examined Prosecution Witness No. 5 Dr.
Pareshkumar Jerambhai Lakhani at Exh: 22. The witness is the Medical
Officer at CHC Botad, who has stated that on 18/12/2006 at around 01:00
AM, Geetaben Dharmeshbhai Kodi Patel was brought to the hospital by
her father Maganbhai Bhavanbhai and she was fully burnt. That he had
thereafter, performed the postmortem on the body of deceased Geeta
along with panel Dr. B.H.Chavda and as per the column No. 17 of the
postmortem note, the deceased was fully burnt and the cause of death was
due to extensive burn injuries.
During the cross examination by the learned advocate for the
accused, the witness has stated that there was no external injuries on the
body of the deceased and if a person was burnt by cooking on a stove,
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they would sustain the same type of burn injuries.
10.4 The prosecution has examined Prosecution Witness No. 6
Shardaben Vasrambhai at Exh: 29 and the witness is the neighbour of the
deceased, who has stated that at the time of incident, she was at home and
Bhagwanbhai Naranbhai came to call her and she went to the house of the
accused No. 1. The deceased is her niece and they were staying separately
and in the house, the accused No. 1 and the deceased were both burnt but
she does not know what had happened. The witness has not supported the
case of the prosecution and has been declared hostile. During the cross
examination by the learned advocate for the accused, the witness has
stated that deceased Geeta was preparing milk for her son and at that
time, accidentally, the incident has occurred and while the accused No.1
tried to save her, he too sustained burn injuries. That the deceased did not
have any harassment in her matrimonial home. That she is residing next
to the accused No. 1. The accused No. 1 and the accused No. 2 were
residing separately and the deceased used to frequently come to her house
and had never stated that she was harassed in her matrimonial home. That
she had informed her brother that Geeta had sustained accidental burn
injuries.
10.5 The prosecution has examined Prosecution Witness No. 7Savitaben
Maganbhai at Exh:31. The witness is the mother of the deceased, who has
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stated that on the day of the incident, her daughter had come to her house
with the accused No. 1 and thereafter she had left for Botad. Her sister-in-
law called and told her that her daughter was burnt and she told her
husband and other relatives and they went to Botad by Jeep and thereafter
to Padiyad. That her son-in-law was also burnt as he was trying to save
her daughter. That whenever her daughter Geeta would come to her
parental house, she would tell them that she was very happy and she did
not have any harassment in her matrimonial home. That she had never
complaint against her in law and the police had recorded her statement.
The witness has not supported the case of the prosecution. During the
cross examination by the learned APP, but nothing to support the case of
the prosecution have come on record.
During the cross examination by the learned advocate for the
accused, the witness has stated that she had received the phone call to
immediately come to Botad as her daughter-in-law and son-in-law were
accidentally burnt. That she had seen both of them burnt and her daughter
died during treatment and her funeral rites were performed by everyone
together. That her son-in-law was doing the work of polishing diamonds
and her daughter did not have any harassment from her in laws.
10.6 The prosecution has examined Prosecution Witness No. 8
Shardaben Tejabhai Jadeja at Exh. 38 and the witness was the Police
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Inspector, Mahila Police Station at the time of incident. The accidental
death was registered and the witness had investigated the same.
During the cross examination by the learned advocate for the
accused, the witness has stated that during the investigation of the
accidental death, the present offence was registered and she had recorded
the complaint, during which, it was found that on the day of the incident,
the deceased had come to her parental house. It was also found that the
accused No. 1 and the deceased were staying separately from the parents
of the accused No. 1 and the accused no. 1 had also sustained burn
injuries and his condition was very serious. That after the parents of the
deceased came from Botad, they did not file any complaint and
Shardaben the aunt of the deceased was residing next to the house of the
deceased.
10.7 The prosecution has examined Prosecution Witness No. 9
Bhagvanbhai Ramjibhai Kanani at Exh. 42 and the witness is the
Investigating Officer, who has narrated the procedure that was
undertaken by him during the investigation. During the cross
examination by the learned advocate for the accused, the witness has
stated that the accused No. 1 had sustained grievous burn injuries and
while the accused No. 1 was arrested, there was burnt marks on various
parts on his body, which was noted in the panchnama.
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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- Geeta was being harassed in her matrimonial
home. In the evidence, it has emerged that the accused No. 1 who is
husband of deceased Geeta was residing separately along with the
deceased and the accused No.2 mother in law of the deceased was
residing separately with her husband. That on the day of the incident,
deceased Geeta had come to her parental home and she had left the
parental house to go to her matrimonial home by train and after she
reached home, the incident has occurred. That if there was any extreme
physical or mental harassment to the deceased, she would have refused
to go back to her matrimonial home and Prosecution Witness No. 7
Savitaben Maganbhai examined at Exh. 31, who is the mother of the
deceased, who has categorically stated that the deceased was residing
happily in her matrimonial home and there was no harassment to the
deceased. The evidence that has emerged on record is that the accused
No. 1 had also sustained grievous burn injuries and he was admitted to
the hospital with burn injuries. In the panchnama of the place of offence
produced at Exh. 16, a Wick Stove (primus) was lying on its side and
clothes quilts and mattress was found burnt and the wick stove and half
burnt pieces of clothes were seized by the Investigating Officer as per the
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instructions of the office of FSL. It appears that the deceased sustained
burn injuries while she was cooking and there is nothing on record to
suggest that any gallon of kerosene was found at the place of incident, to
suggest that the deceased sprinkled kerosene on herself and set herself
ablaze. In the evidence, there is no iota of evidence of harassment meted
out to the deceased to such an extent that she would put an end to her life
and there are no direct or indirect evidences that the accused abetted,
incited or provoked the deceased to put an end to her life.
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 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
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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, Camp at
Botad, Bhavnagar in Sessions Case No. 98 of 2007 on 25.04.2008, 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
