Gujarat High Court
State Of Gujarat vs Mustufabhai Sulemanbhai Dhansuriya on 20 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 338 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MUSTUFABHAI SULEMANBHAI DHANSURIYA & ANR.
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Appearance:
MS SNEHA A JOSHI(2156) for the Appellant(s) No. 1
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2
MR. MH SHEKHAWAT(7194) for the Opponent(s)/Respondent(s) No. 1,2
MR.MOHD.JUBER PATHAN(7071) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/02/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - State
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment and the
order dated 13.04.2007 in Sessions Case No.12 of 2007 passed by
the learned 2nd Additional Sessions Judge, District Sabarkantha at
Himmatnagar (hereinafter referred to as 'the learned Trial Court'),
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whereby, the learned Trial Court has acquitted the respondents -
accused from the offences punishable under Sections 498(A), 306
and 114 of the Indian Penal Code (hereinafter referred to as 'the
IPC') and under Section 3 and 7 of the Dowry Prohibition Act
(hereinafter referred to as 'the Dowry Act'). The respondents are
hereinafter referred to as 'the accused' as they stood in the rank
and file in the original case, for the sake of convenience, clarity and
brevity.
2. The relevant facts leading to filing of the present
appeal are as under:
2.1. The accused No.1 was married to Anjuman, the
daughter of the complainant Nasibaben W/o Abdul Rahim Haji
Ahmedabhai, and the accused No.2 is the sister-in-law of the
deceased Anjuman. On 24.04.2006 at about 15:15 hours, as both the
accused used to physically and mentally harassed the deceased to
bring an amount of Rs.50,000/- as dowry and the deceased could
not bear the torture, she consumed the zinc phosphide and
expired, and hence, the complaint under Sections 498(A), 306 and
114 of the IPC and Sections 3 and 7 of the Dowry Act was filed by
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the complainant Nasibaben W/o Abdul Rahim Haji Ahmedabhai
Umad, the mother of the deceased, which was registered at I-
C.R.No.20 of 2006 with Talod Police Station.
3.2. After registration of the FIR, the investigation was
carried out by the concerned Investigating Officer and after having
sufficient material against the accused, the chargesheet came to be
filed before the concerned jurisdictional Magistrate. As the case
was exclusively triable by the Court of Sessions, the process under
Section 209 of the Cr.P.C. was undertaken and the case was
committed to the Sessions Court and the same was registered as
Sessions Case No.12 of 2007.
3.3. 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 was framed by the learned Trial Court at Exh.4 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
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record. The prosecution has examined 11 witnesses and has
produced 10 documentary evidence in support of the case.
3.4 After the closing pursis was submitted by the learned
APP, the further statement of the accused under Section 313 of the
Code was recorded. After hearing the arguments of the learned
APP and learned advocate for the accused and after perusing the
documents on record, the learned Trial Court, by the impugned
judgment and order, has acquitted the accused for the offences
punishable under Sections 498(A), 306 and 114 of the IPC and
Section 3 and 7 of the Dowry Act.
4. Being aggrieved and dissatisfied with the impugned
judgment and order passed by the learned Trial Court, the
appellant - State has filed the present appeal mainly stating that
the impugned judgment and order passed by the learned Trial
Court is contrary to law and evidence on record. That the
impugned judgment and order of acquittal passed by the learned
Trial Court is based on inferences not warranted by facts of the
case and also on presumption not permitted by law. The learned
Trial Court ought to have seen that there are direct and indirect
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evidence produced on record connecting the respondents with
crime and inspite of the fact, the learned Trial Court, without
appreciating oral as well as documentary evidence on record of the
case, has straightway arrived at the conclusion that the
prosecution has failed to prove its case beyond reasonable doubts.
The learned Trial Court has erred in not considering the fact that
the deceased was being mentally and physically harassed by the
accused and therefore, the deceased committed suicide. The
learned Trial Court has erred in evaluating the evidence on record
of the case and without appreciating the evidence in its real
perspective, has acquitted the accused. The learned Trial Court has
committed error in giving undue weightage to minor omissions
and contradictions in the evidence of prosecution witnesses, which
does not go to the root of the prosecution. The learned Trial Court
has passed the impugned judgment and order of acquittal without
giving any cogent and convincing reasons and therefore, the same
is required to be quashed and set aside.
5. Heard learned APP Mr.Bhargav Pandya for the
appellant - State and learned advocate Mr.M.H.Shekhawat for the
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respondents. Perused the impugned judgment and order of
acquittal and have re-appreciated the entire evidence of the
prosecution on record of the case.
6. Learned APP Mr.Bhargav Pandya for the appellant -
State has taken this Court through the entire evidence produced
by the prosecution and has vehemently argued that the learned
Trial Court has not appreciated the evidence properly and the
prosecution has produced cogent evidence to prove the the case
and has successfully proved the case against the accused but the
learned Trial Court has not considered the same and has acquitted
the accused. The judgment and order of acquittal passed by the
learned Judge is contrary to law, evidence on record and principles
of justice. The judgment and order of acquittal passed by learned
Judge is based on inferences, not warranted by facts of the case
and also on presumptions, not permitted by law. Learned APP
has urged this Court to quash and set aside the impugned
judgment and order of acquittal and to find the accused guilty for
the said offence. Learned APP has urged this Court to allow the
present appeal and impose maximum sentence on the accused.
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7. Learned advocate Mr.Shekhawat for the respondents
has submitted that the learned Trial Court has appreciated all the
evidence in true perspective and has not committed any error in
acquitting the accused. Therefore, no interference of this Court is
required in the impugned judgement and the order of acquittal
passed by the learned Trial Court and has urged this Court to
reject the appeal.
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 the scope of interference in acquittal
appeals in the case of Chandrappa & Ors. Vs. State of Karnataka
reported in 2007 (4) SCC 415, the Apex Court has observed as
under:
Recently, in Kallu Vs. 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
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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.
9. It is a settled principle of law that in an appeal against
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acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the learned Trial
Court, it appears that there are some manifest illegality or
perversity which could not have been possibly arrived at by the
Court. It is also a settled principle that there is no embargo on the
Appellate Court to review the evidence but, generally the order of
acquittal shall not be interfered with as the presumption of
innocence of the accused is further strengthened by the order of
acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case of the prosecution i.e.
(i) guilt of the accused and (ii) his innocence, the view, which is in
favour of the accused, should be adopted, and if the trial Court has
taken the view in favour of the accused, the Appellate Court
should not disturb the findings of the acquittal. The Appellate
Court can interfere with the judgment and order of acquittal only
when there are compelling and substantial reasons and the order is
clearly unreasonable and where the Appellate Court comes to
conclusion that based on the evidence, the conviction is a must.
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10. The accused has been charged with the offence under
Section 306 of the IPC and at this juncture it would be fit to
reproduce the observations of the Apex Court in the case of
Prakash and others versus State of Maharashtra in the order
passed in Criminal Appeal No.5543 of 2024 (Arising out of SLP
(Cri.) No. 1073 of 2023 on 20 December 2024 in paras 12 to 22
which are as under:
"12. The relevant provisions of the IPC that fall for consideration are
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.
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.
Explanation-1: A person who, by willful misrepresentation, or
by wilful concealment of a material fact which he is
bound to disclose, voluntarily causes or procures, or
attempts to cause or procure, a thing to be done, is said
to instigate the doing of that thing.
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Explanation 2: Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate
the commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act."
13. Section 306 of the IPC has two basic ingredients-first, an act of
suicide by one person and second, the abetment to the said act
by another person(s). In order to sustain a charge under Section
306 of the IPC, it must necessarily be proved that the accused
person has contributed to the suicide by the deceased by some
direct or indirect act. To prove such contribution or
involvement, one of the three conditions outlined in Section 107
of the IPC has to be satisfied.
14. Section 306 read with Section 107 of IPC, has been interpreted,
time and again, and its principles are well- established. To
attract the offence of abetment to suicide, it is important to
establish proof of direct or indirect acts of instigation or
incitement of suicide by the accused, which must be in close
proximity to the commission of suicide by the deceased. Such
instigation or incitement should reveal a clear mens rea to abet
the commission of suicide and should put the victim in such a
position that he/she would have no other option but to commit
suicide.
15. The law on abetment has been crystallised by a plethora of
decisions of this Court. Abetment involves a mental process of
instigating or intentionally aiding another person to do a
particular thing. To bring a charge under Section 306 of the IPC,
the act of abetment would require the positive act of instigating
or intentionally aiding another person to commit suicide.
Without such mens rea on the part of the accused person being
apparent from the face of the record, a charge under the
aforesaid Section cannot be sustained. Abetment also requires
an active act, direct or indirect, on the part of the accused
person which left the deceased with no other option but to
commit suicide.
16. This Court in the case of S.S. Chheena v. Vijay Kumar
Mahajan and Another12, had an occasion to consider the scope
of Section 306 of the IPC and the ingredients which are essential
for abetment, as set out in Section 107 of the IPC. It observed as
follows:
16. The word "suicide" in itself is nowhere defined in the
Penal Code, however its meaning and import is well
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known and requires no explanation. "Sui" means "self"
and "cide" means "killing", thus implying an act of self-
killing. In short, a person committing suicide must
commit it by himself, irrespective of the means employed
by him in achieving his object of killing himself.
...........
18. In our country, while suicide in itself is not an offence,
considering that the successful offender is beyond the
reach of law, attempt to suicide is an offence under
Section 309 IPC.
..........
21. The learned counsel for the appellant has placed reliance
on a judgment of this Court in Mahendra Singh V. State
of M.P. [1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157] In
Mahendra Singh [1995 Supp (3) SCC 731 : 1995 SCC
(Cri) 1157] the allegations levelled were as under: (SCC p.
731, para 1)
"1. ... My mother-in-law and husband and sister-in-law
(husband's elder brother's wife) harassed me. They
beat me and abused me. My husband Mahendra
wants to marry a second time. He has illicit
connections with my sister-in-law. Because of
these reasons and being harassed I want to die by
burning." The Court on the aforementioned
allegations came to a definite conclusion that by
no stretch the ingredients of abetment are attracted
on the statement of the deceased. According to the
appellant, the conviction of the appellant under
Section 306 IPC merely on the basis of the
aforementioned allegation of harassment of the
deceased is unsustainable in law.
... ...........
23. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994
SCC (Cri) 107] this Court has cautioned that: (SCC p.
90, para 17)
"17. ... The court should be extremely careful in
assessing the facts and circumstances of each case
and the evidence adduced in the trial for the
purpose of finding whether the cruelty meted out
to the victim had in fact induced her to end the life
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by committing suicide. If it [appears] to the court
that a victim committing suicide was
hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the
society to which the victim belonged and such
petulance, discord and differences were not
expected to induce a similarly circumstanced
individual in a given society to commit suicide,
the conscience of the court should not be satisfied
for basing a finding that the accused charged of
abetting the offence of suicide should be found
guilty."
24. This Court in Chitresh Kumar Chopra v. State (Govt. of
NCT of Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367]
had an occasion to deal with this aspect of abetment. The
Court dealt with the dictionary meaning of the words
"instigation" and "goading". The Court opined that there
should be intention to provoke, incite or encourage the
doing of an act by the latter. Each person's suicidability
pattern is different from the other. Each person has his
own idea of self-esteem and self-respect. Therefore, it is
impossible to lay down any straitjacket formula in
dealing with such cases. Each case has to be decided on
the basis of its own facts and circumstances.
25. Abetment involves a mental process of instigating a
person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the accused to
instigate or aid in committing suicide, conviction cannot
be sustained. The intention of the legislature and the ratio
of the cases decided by this Court is clear that in order to
convict a person under Section 306IPC 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 that act must have been
intended to push the deceased into such a position that
he committed suicide."
17. This Court held that abetment involves the mental process of
instigating a person or intentionally aiding a person in doing of
a thing. Therefore, without a positive act on the part of the
accused to instigate or aid a person in committing suicide,
conviction cannot be sustained. This Court further observed
that the intention of the legislature and the ratio of the cases
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decided by this Court is clear that in order to convict a person
under Section 306 of IPC, there has to be a clear mens rea to
commit the offence. Abetment also requires an active act or
direct act which led the deceased to commit suicide seeing no
other option and that act must have been intended to push the
deceased into such a position that he committed suicide.
However, this Court has cautioned that zince each person reacts
differently to the same provocation depending on a variety of
factors, it is impossible to lay down a straightjacket formula to
deal with such cases. Therefore, every such case has to be
decided on the basis of its own facts and circumstances.
18. More recently, in the case of Jayedeepsinh Pravinsinh Chavda
and Others v. State of Gujarat, this Court has relied on S.S.
Chheena (supra) to hold that the element of mens rea cannot
simply be presumed or inferred, instead it must be evident and
explicitly discernible. Without this, the foundational
requirement for establishing abetment under the law, that is
deliberate and conspicuous intention to provoke or contribute
to the act of suicide, would remain unfulfilled. This Court
observed as follows:
"18. For a conviction under Section 306 of the IPC, it is a well-
established legal principle that the presence of clear mens
rea--the intention to abet the act--is essential. Mere
harassment, by itself, is not sufficient to find an accused
guilty of abetting suicide. The prosecution must
demonstrate an active or direct action by the accused that
led the deceased to take his/her own life. The element of
mens rea cannot simply be presumed or inferred; it must
be evident and explicitly discernible. Without this, the
foundational requirement for establishing abetment
under the law is not satisfied, underscoring the necessity
of a deliberate and conspicuous intent to provoke or
contribute to the act of suicide."
19. It is, therefore, evident that the positive act of instigation is a
crucial element of abetment. While dealing with an issue of a
similar nature, this Court in the case of Ramesh Kumar v. State
of Chhattisgarh laid down the parameters of what would be
constituted to be an act of instigation. This Court observed as
follows:-
"20. Instigation is to goad, urge forward, provoke, incite or
encourage to do "an act". To satisfy the requirement of
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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."
20. It could thus be seen that this Court observed that instigation is
to goad, urge forward, provoke, incite or encourage to do "an
act". It has been held that in order 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,
however, a reasonable certainty to incite the consequence must
be capable of being spelt out. Applying the law to the facts of
the case, this Court went on to hold that a word uttered in the
fit of anger or emotion without intending the consequences to
actually follow cannot be said to be instigation.
21. Relying on the decision in the case of Ramesh Kumar (supra),
this Court in the case of Ude Singh and Others v. State of
Haryana observed as follows:
"16. In cases of alleged abetment of suicide, there must be a
proof of direct or indirect act(s) of incitement to the
commission of suicide. It could hardly be disputed that
the question of cause of a suicide, particularly in the
context of an offence of abetment of suicide, remains a
vexed one, involving multifaceted and complex attributes
of human behaviour and responses/reactions. In the case
of accusation for abetment of suicide, the court would be
looking for cogent and convincing proof of the act(s) of
incitement to the commission of suicide. In the case of
suicide, mere allegation of harassment of the deceased by
another person would not suffice unless there be such
action on the part of the accused which compels the
person to commit suicide; and such an offending action
ought to be proximate to the time of occurrence. Whether
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a person has abetted in the commission of suicide by
another or not, could only be gathered from the facts and
circumstances of each case.
16.1. For the purpose of finding out if a person has abetted
commission of suicide by another, the consideration
would be if the accused is guilty of the act of instigation
of the act of suicide. As explained and reiterated by this
Court in the decisions above referred, instigation means
to goad, urge forward, provoke, incite or encourage to do
an act. If the persons who committed suicide had been
hypersensitive and the action of the accused is otherwise
not ordinarily expected to induce a similarly
circumstanced person to commit suicide, it may not be
safe to hold the accused guilty of abetment of suicide.
But, on the other hand, if the accused by his acts and by
his continuous course of conduct creates a situation
which leads the deceased perceiving no other option
except to commit suicide, the case may fall within the
four corners of Section 306 IPC. If the accused plays an
active role in tarnishing the self-esteem and self-respect of
the victim, which eventually draws the victim to commit
suicide, the accused may be held guilty of abetment of
suicide. The question of mens rea on the part of the
accused in such cases would be examined with reference
to the actual acts and deeds of the accused and if the acts
and deeds are only of such nature where the accused
intended nothing more than harassment or snap show of
anger, a particular case may fall short of the offence of
abetment of suicide.
However, if the accused kept on irritating or annoying
the deceased by words or deeds until the deceased
reacted or was provoked, a particular case may be that of
abetment of suicide. Such being the matter of delicate
analysis of human behaviour, each case is required to be
examined on its own facts, while taking note of all the
surrounding factors having bearing on the actions and
psyche of the accused and the deceased.
16.2. We may also observe that human mind could be affected
and could react in myriad ways; and impact of one's
action on the mind of another carries several
imponderables. Similar actions are dealt with differently
by different persons; and so far a particular person's
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reaction to any other human's action is concerned, there is
no specific theorem or yardstick to estimate or assess the
same. Even in regard to the factors related with the
question of harassment of a girl, many factors are to be
considered like age, personality, upbringing, rural or
urban set-ups, education, etc. Even the response to the ill
action of eve teasing and its impact on a young girl could
also vary for a variety of factors, including those of
background, self-confidence and upbringing. 18 Hence,
each case is required to be dealt with on its own facts and
circumstances."
22. It could thus be seen that this Court observed that
in cases of alleged abetment of suicide, there must be a
proof of direct or indirect act(s) of incitement to the
commission of suicide. It has been held that zince the
cause of suicide particularly in the context of the offence
of abetment of suicide involves multifaceted and complex
attributes of human behaviour, the court would be
looking for cogent and convincing proof of the act(s) of
incitement to the commission of suicide. This Court
further observed that a mere allegation of harassment of
the deceased by another person would not suffice unless
there is such action on the part of the accused which
compels the person to commit suicide. This Court also
emphasised that such an offending action ought to be
proximate to the time of occurrence. It was further
clarified that the question of mens rea on the part of the
accused in such cases would be examined with reference
to the actual acts and deeds of the accused. It was further
held that if the acts and deeds are only of such nature
where the accused intended nothing more than
harassment or a snap-show of anger, a particular case
may fall short of the offence of abetment of suicide,
however, if the accused kept on irritating or annoying the
deceased by words or deeds until the deceased reacted or
was provoked, a particular case may be that of abetment
of suicide. This Court held that owing to the fact that the
human mind could be affected and could react in myriad
ways and that similar actions are dealt with differently by
different persons, each case is required to be dealt with its
own facts and circumstances."
11. In light of the above, the evidence produced by the
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prosecution on record is appreciated and the prosecution has
examined PW-1 Dr. Jatin Kirtibhai at Exh.11 and the witness is the
Medical Officer, who has stated that on 24.02.2006 at 9:20 hours,
the deceased Anjuman was brought to the hospital by her
neighbour for treatment and at that time, she was having
complaint of vomiting and pain in stomach. He had given her
primary treatment and they went away, after some time, she was,
once again, brought to the hospital by the accused No.1 and she
was referred to the Community Health Center and at 9:45 hours,
the accused took the deceased Anjuman and left. The witness has
produced the medical papers at Exh.12. During the cross-
examination, the witness has stated that at 9:20 hours, the
neighbour had brought the deceased Anjuman with complaint of
vomiting and pain in stomach, and at that time, the neighbour had
told him that her husband Mustufabhai Sulemanbhai Dhansuriya
was not present at home and he would bring her to the hospital
after he returns. That immediately, thereafter, the accused No.1
had brought the deceased Anjuman to the hospital. That when he
had examined her twice, she did not say that she had consumed
any poisonous substance or medicine and none of the persons who
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had brought her had also stated that she has consumed any
poisonous substance. That no symptoms of consumption of poison
was found when he had examined her and there were no marks of
vomiting on her clothes at the time of the medical examination.
11.1. The prosecution has examined PW-2 Dr. Sanjaykumar
Ambalal at Exh.13 and the witness has stated on 25.02.2006, he was
working at Community Health Center, Talod as a Medical Officer
and the dead body of the deceased Anjuman was brought by PSI,
Talod. That he and the panel doctor had conducted the post-
mortem and had given the post-mortem report at Exh.15. There
were no external marks of injuries on the dead body and the cause
of death was not opined at the time of post-mortem and it was
given after the report of chemical analysis of preserved viscera
which was cardio respiratory due to the poisoning. During the
cross-examination, the witness has stated that at the time of the
post-mortem, there were no symptoms of poisoning and if a
person had consumed zinc phosphide, there would be damage to
the esophagus and intestine but no such symptoms were found at
the time of post-mortem. That if a person has consumed poison,
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the smell of poison would be found at the time of post-mortem
and at the time of taking viserra,, no such smell of such poison was
found.
11.2 The prosecution has examined PW-3 Nasibaben Abdul
Rahim at Exh.16 and the witness is the mother of the deceased
Anjuman and the complainant. The witness has stated that the
accused were harassing the deceased for dowry and asking her to
bring Rs.50,000/- and on 02.06.2006, her daughter had telephoned
her and phone was picked up by her son Uvesh and he was told
that his parents should come with Rs.50,000/-. That on 05.02.2006,
the witness, her husband and her uncle-in-law had gone to
Balasinor for Jiyarat and at that time, the accused No.1 had called
at her home and spoke to her son and abused him. On 22.02.2006,
once again, the accused No.1 telephoned and threatened to give
divorce to the deceased or to bring Rs.50,000/- That on 23.02.2006,
the accused No.1 came home to drop the Anjuman and they
discussed the matter with both of them and explained to them that
they were not in a position to give Rs.50,000/- and sent her back.
On 24.02.2006, the mother-in-law of deceased Anjuman
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telephoned to say that she was not well and when they went to her
house, they found that she had expired. During the cross-
examination by the learned advocate for the accused, the witness
has stated that the accused No.2 was married at Modasa and was
in her maternal home and the funeral rites of deceased Anjuman
were done by everyone together. That she does not remember
where her daughter Anjuman was married and she does not
remember the birth date of her daughter Anjuman. That her
daughter Anjuman had come for 'Muharram' on 09.02.2006 and
was at her parental home till 26.02.2006 and she has not mentioned
in the complaint about the phone call received at her house. That
she had not told anyone that her daughter was harassed for
Rs.50,000/- and there is no custom of dowry in their community.
11.3 The prosecution has examined PW-4 Abdul Rahim
Haji Ahmedbhai at Exh.18 and the witness is the father of the
deceased Anjuman, who has supported the case of the
prosecution. During the cross examination, the witness has stated
that the accused No.2 was harassing the deceased and he was
informed by his wife and his daughter had never told him that the
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accused No.1 was demanding for Rs.50,000/-. That the accused
No.2 was married at Meghraj and is residing at Meghraj with her
husband and children and the deceased had consumed poison on
the same night when he had gone to drop her at the matrimonial
home.
11.4. The prosecution has examined PW-5 Aminaben
Ahmedbhai at Exh.20 and the witness is the grand-mother of the
deceased and she has supported the case of the prosecution.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the she has not stated in her
statement before the police that the Anjuman was being harassed
by the accused and she does not know when the deceased
Anjuman told her that she was being harassed for Rs.50,000/-.
That she was deposing as per the tutoring by her advocate, her
daughter-in-law Nasibaben and her son and before they had
tutored her, she did not have any information about the incident.
11.5. The prosecution has examined PW-6 Uvesh Abdul
Rahim at Exh.21 and the witness is the brother of the deceased,
who has supported the case of the prosecution. During the cross-
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examination by the learned advocate for the accused, the witness
has stated that one year after her marriage, there was a demand for
Rs.50,000/- from the deceased and in the statement before the
police, he had not stated that the accused had telephoned him and
demanded Rs.50,000/- and threatened to divorce his sister.
11.6. The prosecution has examined PW-7 Balkrishna
Dahyalal at Exh.22 and the witness is the panch witness of the
inquest panchnama which is produced at Exh.23. During the cross-
examination by the learned advocate for the accused, the witness
has stated that the inquest panchnama was prepared by the police
and he and the other panch witnesses affixed their signatures on
the inquest panchnama.
11.7. The prosecution has examined PW-8 Binaben
Mahendrakumar Bhavsar at Exh.25 and the witness is the
neighbour of the deceased Anjuman and the witness has stated
that on 24.02.2006 at about 9:30am, Hurbaiben, the mother of the
accused No.1 called her to take the deceased Anjuman to hospital
and she went to the house of the accused and took Anjuman to Dr.
Jatin Mehta's Hospital as she was complaining of pain in stomach
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and vomiting. That the doctor had given treatment to stop the
vomiting and reduce the pain and she brought Anjuman back
home and the doctor had asked her to go to another hospital if the
pain would not stop. That at that time, the accused No.1 was not
home and as he was driver, he had gone out of station and she
dropped Anjuman at home and went away. That at around
4:00pm, all the neighbours had gathered and she went and saw
that the deceased had expired. During the cross-examination by
the learned advocate for the accused, the witness has stated that
deceased Anjuman was brought to her matrimonial house on the
previous day by her father at around 4:00pm and he was at the
house till 7:00pm. That at that time, Hurbaiben, the mother of the
accused, was alone at home and the accused No.2 was married
and residing in her matrimonial home at Meghraj. That the
accused No.1 was a driver and had gone out of station on the day
of the incident and had come home after she had taken the
deceased Anjuman to the hospital and brought her back. That after
the accused No.1 came, he, once again, took her to Dr.Jatin Mehta's
hospital and she was brought home. That even on the previous
day in the evening, the deceased Anjuman had stomach ache and
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she was asked to go to the hospital but she had refused and the
witness had given her lemon juice twice. That after marriage,
Anjuman had come only twice to her matrimonial home and she
had gone to her parental home at her own free will. That during
the entire year, she had resided in her matrimonial home for 15-20
days and Anjuman was forcibly sent to the house of the accused
by her parents. That as the witness was running a beauty parlour,
the deceased was used to go the place and Anjuman had told her
that she was forcibly married against her will to the accused No.1
and that she was forced to come to the house of the accused by her
parents and it was not liked by her and she did not like the
accused No.1.
11.8. The prosecution has examined PW-9 Natwarlal
Motibhai Nai at Exh.26 and the witness is the Executive
Magistrate, who has drawn the inquest panchnama, which is
produced at Exh.27.
11.9 The prosecution has examined PW-10 Natwarbhai
Kanjibhai Barot at Exh.28 and the witness is the PSO, who has
registered the offence at Talod Police Station.
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11.10 The prosecution has examined PW-11 Niravsinh
Pavansinh Gohil at Exh.31 and the witness was the Investigating
Officer, who has narrated in details the procedure undertaken by
them during investigation. During the cross-examination by the
learned advocate for the accused, the witness has stated that it was
found that on 04.02.2006, deceased Anjuman was brought to her
parental home and was taken back to the matrimonial home on
23.02.2006 at around 4:00pm and her father had gone to drop her.
That none of the accused were present at home and when the
deceased was brought for treatment to the hospital, neighbour
Binaben had stated that her husband had gone out of town and he
would bring her for treatment after he returns. That the accused
was not at home till 10:00 in the morning on the day of the incident
and during investigation, it was found that the accused did not
give any physical or mental harassment to the deceased and the
deceased Anjuman did not want to reside with the accused No.1
and as she did not like him she had taken such drastic step. That
two packets of medicine to kill rats were found in the garbage
dump behind the house of one cobbler and he has not investigated
whether the pouches are available in the village or not.
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12. On minute appreciation of the entire evidence of the
prosecution, it has emerged that after the marriage, the deceased
Anjuman was mostly residing in her parental home and during
investigation, it was found that the accused did not mentally or
physically harass the deceased. That the accused No.2 was married
at Meghraj and was residing at Meghraj with her husband and
children and the deceased did not like the accused No.1 and she
had told her neighbour that she was forcibly married to the
accused No.1. It has also come on record that the deceased had
come to her parental house on 04.02.2006 for "Muharaam" and she
had resided till 23.02.2006, the date on which, she was forcibly
taken to her matrimonial house by her father and on the same
night, she took the drastic step of consuming zinc phosphide. It
has also come on record that on that day, the accused No.1 was out
of station as he was driver and he had gone with his vehicle and
the accused No.2 was at her matrimonial home in Meghraj and
there was no contact, whatsoever, of the accused with the
deceased Anjuman. That the mother-in-law of the deceased was at
home and the father of the deceased at her place from 4:00pm to
7:00pm. In the entire evidence of the prosecution, there is no
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evidence that the accused met the deceased Anjuman at any point
of time immediately prior to the incident and there is no evidence
that the accused goaded, provoked or instigated the deceased to
do any act that would harm her and there is no iota of evidence
that the accused had even met the deceased for more than 20days
prior to the incident. The learned Trial Court has discussed all the
oral as well documentary evidence and has come to the conclusion
that the prosecution has not proved the case beyond reasonable
doubts.
13. In view of the above, 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
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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.
14. The impugned judgment and the order dated
13.04.2007 in Sessions Case No.12 of 2007 passed by the learned 2 nd
Additional Sessions Judge, District Sabarkantha at Himmatnagar
is hereby confirmed.
15. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
