Gujarat High Court

Ashwinbhai Premjibhai Vispara vs State Of Gujarat on 22 July, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                           R/CR.A/445/2006                                       JUDGMENT DATED: 22/07/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 445 of 2006


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MS. JUSTICE GITA GOPI

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                                  Approved for Reporting                        Yes           No
                                                                                              √
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                                         ASHWINBHAI PREMJIBHAI VISPARA & ORS.
                                                       Versus
                                                 STATE OF GUJARAT
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                      Appearance:
                      ABATED for the Appellant(s) No. 2
                      PRATEEK S BHATIA(8629) for the Appellant(s) No. 1,3
                      MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                           Date : 22/07/2025

                                                          ORAL JUDGMENT

1. The challenge is given to the judgment by the Presiding

Officer 4th Fast Track Court, Rajkot dated 08.02.2006 in

Sessions Case No.134 of 2003, whereby the learned Trial Court

Judge convicted the accused under Sections 498A and 306 of

the Indian Penal Code (for short "IPC"), sentencing all the

accused for one year simple imprisonment under Section 498A

IPC and a fine of Rs.500 and in default of payment of fine one

month simple imprisonment and for the conviction under

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Section 306 read with Section 114 of IPC, accused Nos.1 and 2

were sentenced to three years rigorous imprisonment and fine of

Rs.1,000/- and in default of payment of fine rigorous

imprisonment of six months.

1.1 Appellant No.2's appeal came to be abated on his death

hence, the appeal is heard for appellant Nos.1 and 3.

2. The charge, which was framed below Exh.9 states that the

son of brother-in-law (Nandoi) (A2) of complainant deceased -

Rashilaben wife of accused No.1, was learning tailoring work

from the husband (A1) of the deceased complainant. The

deceased had instructed the son of brother-in-law (Nandoi) to do

domestic work, therefore, accused No.1 - the husband, and

accused No.2 - the brother-in-law, rebuked the deceased, and it

is alleged that they abused the complainant, and mentally and

physically harassed her. The accused No.3 - mother-in-law,

taunted her saying that she is not liking her and asked her to

return back to her parental house. The allegation is that in

concert, the accused mentally and physically harassed her and

thereby had caused the offence of Sections 504 and 498A read

with Section 114 of IPC.

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2.1 It is alleged that on 20.04.2003, at about 1 O' clock at

night, deceased - original complainant, as she instructed the son

of accused No.2 who was learning tailoring work from accused

No.1, to do domestic work, therefore, accused Nos.1 and 2

abused her stating that they are not liking her and asked her to

go to her parental house, thereby caused unbearable mental

cruelty. Being fed up, the deceased had committed suicide by

pouring kerosene and ablazing herself with the match stick.

Thereby, on 26.04.2003, she died, hence, accused Nos.1 and 2

were charged for the offence of abetment to suicide under

Section 306 of IPC.

3. Learned advocate Mr. Prateek S.Bhatia appearing for the

appellant Nos.1 and 3 referring to the dying declaration of the

deceased dated 20.04.2003 before the Executive Magistrate,

stated that, it has been corroborated by the evidence of the

Executive Magistrate, who has been examined as PW2 - Jethalal

Chavda, it is the only one incident, which she referred where she

got hurt and ended nine years of marriage life, where during the

marriage period, the accused and the deceased had a daughter

and a son. Advocate Mr. Bhatia submitted that it is not a case of

any continuous harassment or cruelty to even draw the case

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under Section 498A IPC.

3.1 Learned advocate Mr. Bhatia submitted that if the dying

declaration and the evidence of Executive Magistrate is to be

believed, then there is no case of any mens rea on the side of the

accused, which could be considered as an instigation to commit

suicide. Mr. Bhatia also stated that the charge framed is not

consistent with the dying declaration, there is no case alleged

against monther-in-law and the only fact which comes by way of

the dying declaration is that the complainant deceased had

asked the son of accused No.2 to do domestic work and

therefore, accused Nos.1 and 2 had asked her not to do so, and

that has caused the verbal quarrel between the couple. Mr.

Bhatia stated that the accused No.1 and accused No.2 had

rebuked her for doing so and asking her not to do so.

3.2 Learned advocate Mr. Bhatia submitted that the family

with husband included the mother and the two children, she in

her dying declaration, submitted that she had no problem with

any of the family member, it was only because her husband had

rebuked her, she ablazed herself by pouring kerosene and had

ended marital life of nine years.

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4. Countering the arguments, learned APP Ms. Monali Bhatt

submitted that the charge has been framed in accordance to the

record and the allegation is of mental and physical cruelty to the

wife and the incident of 20.04.2003 was sufficient enough to be

considered as an instigation for suicide.

5. The Trial Court Judge has failed to consider the fact that

the matrimonial life is of nine years. The deceased complainant

herself in the dying declaration does not give any statement of

physical and mental torture, rather she has clarified that she

had no problem with the family members and it was only one

incident of the husband rebuking her, since she had asked the

son of accused No.2 to do domestic work, which did not go well

with accused Nos.1 and 2, as the son of accused No.2 was

working with accused No.1 and learning tailoring work. The

deceased got offended since the husband asked her not to do so.

There is no fact of any physical or mental torture administered to

her.

5.1 The dying declaration has been recorded in a question and

answer form. The husband himself had admitted her in the

hospital. During the course of recording dying declaration, she

was in fit state of mind. The learned Trial Court Judge has made

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observation on the basis of assumption referring to the only

incident and considered it as husband's cruel behaviour.

5.2 The reliance is only placed on the dying declaration which,

as referred hereinabove, is only about one incident, which took

place on that day of 20.04.2003, where accused Nos.1 and 2 had

asked her not to point any domestic work to the son of accused

No.2, and that had caused quarrel between deceased and

accused No.1 and it is only because the husband rebuked her,

she burned herself by pouring kerosene on her body.

6. Learned advocate Mr. Bhatia has referred to the judgment

of Ravindra Singh The State of Uttarakhand Through Home

Secretary, rendered in Criminal Appeal No.1919 of 2013, to

submit that mens rea is required to be proved. There was no

such case for the, husband having any intention to instigate the

deceased to commit suicide. Mr. Bhatia submitted that there

should be a continuous course of conduct, where the

circumstances so created leave the deceased with no other

option except to commit suicide, to infer instigation.

6.1 Learned advocate Mr. Bhati submitted that the dying

declaration itself would clarify the fact that it was only a single

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incident and that too accused Nos.1 and 2 had only instructed

the deceased not to give any domestic work to the son of accused

No.2, since the son was learning tailoring work from accused

No.1. Mr. Bhatia, thus, stated that there could not be criminal

intention of the accused to be considered as an intentional aid

for the commission of suicide.

7. The punishment is under Sections 498A and 306 of IPC

against husband (A1). The mother-in-law (A3) is sentenced

under Section 498A. Learned advocate Mr. Bhatia relied on

Paragraph Nos.24.10 to 24.13 and 27 of the judgment of this

Court in case of Shardaben, Daughter of Ishwarlal Bhogilal &

Ors. Vs. State of Gujarat, dated 15.07.2025, rendered in

Criminal Appeal No.2608 of 2005, which reads as under:

"24.10 To prove the charge of Section 498A of IPC, the prosecution has to establish that the husband or his relative subjected such woman to cruelty. The term 'cruelty' is explained in two parts of Section 498A. The first part speaks of willful conduct of a nature that is likely to drive the woman to commit suicide or to cause grave injury or danger to the life, limb or health, either physical or mental of such woman.

24.11 The second part of Section 498A of IPC provides for harassment of a woman with a view to coercing her or any person related to her to meet unlawful demand for any

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property or valuable security on account of these failure or any person related to her to meet such demand.

24.12 Section 498A of IPC does not attract every harassment or every type of cruelty. The prosecution has to establish that the beating and harassment of the deceased were with a view to force her to commit suicide or to fulfill the illegal demand of dowry.

24.13 In the case of Raj Rani (Smt.) Vs. State (Delhi Administration), [(2000) 10 SCC 662] it was observed by the Hon'ble Supreme Court as under:

4. We have gone through the entire writing contained in the suicide note. It makes a serious castigation against her husband for being an addict to narcotic drugs. Then she made a general allegation against her mother-in-law and in a lesser degree towards the appellant. But unfortunately she did not advert to any concrete instance which can be termed as cruelty as defined in Section 498-A of the Penal Code, 1860. The utterances said to have been made by the appellant towards the deceased were to her chagrin and she had taken them very seriously and in the suicide note she described such utterances as not worthy of reproduction.

5. It is not enough that the deceased felt those words hurting, it must be subjected to judicial scrutiny and the Court must be in a position to hold that those words were sufficiently hurting enough as to amount to "cruelty" falling within the parameters fixed in Section 498-A of the Penal Code, 1860. The area remains grey and vague. Not a single word said to have been spoken by the appellant as against the deceased had been put on record by the deceased in

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the suicide note in spite of the fact that the said note is a very lengthy letter running into several paragraphs. The tenor and language of the suicide note would reflect that she was not an illiterate lady.

As the Court is rendered helpless to judge whether the words which the deceased heard from the appellant would amount to cruelty, it is far from possible for the criminal court to hold that she is guilty of the offence of cruelty as envisaged in the section. It is also to be pointed out that the deceased did not mention a single deed which the appellant would have done against her. All that is said against the appellant was that she spoke something which she took as objectionable.

27. In the case of State of W.B. v. Orilal Jaiswal, [(1994) 1 SCC 73, the Hon'ble Supreme Court has held as under:

"15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a

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criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater [(1950) 2 All ER 458 : 1951 P 35 (CA)] (All ER at p.

459) has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter."

8. In the present case, the dying declaration rather clarifies

that there was no dispute between the deceased and the family

members. The only incident is of the same day and she

committed suicide. The matrimonial life is of nine years. The

only incident cannot be considered as a harassment of a wilful

nature likely to drive the woman to commit suicide. The

prosecution failed to prove during the trial, to attract the

provision of Section 498A IPC. The said incident of that day was

with an intent to force her to commit suicide.

8.1 Here, the matrimonial life is of more than seven years,

thus, there would not be application of Section 113A of the

Evidence Act, 1872. Over and above, the provision of Section

113A, the prosecution had failed to prove any other

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circumstances of the case to presume that there was any

harassment to terms as cruelty under Section 498A of IPC.

9. The cause, which was shown for suicide was a proximate

cause, as submitted by learned APP, however, the said proximate

act was not of such a nature that the deceased would have no

alternative but to take drastic step of committing suicide. The

act of accused however insulting the deceased by using abusive

language will not, by itself, constitute the abetment to suicide.

There should be evidence capable of suggesting that the accused

intended by such act to instigate the deceased to commit

suicide.

10. In the case of Kamaruddin Dastagir Sanadi Vs. State of

Karnataka, [(2024) SCC Online SC 3541], the Hon'ble Supreme

Court observed as under:

"discord and differences in domestic life are quite common in society and that the commission of such an offence largely depends upon the mental state of the victim. Surely, until and unless some guilty intention on the part of the accused is established, it is ordinarily not possible to convict him for an offence under Section 306 IPC."

10.1 In the case of Prakash Vs. State of Maharashtra, [2024

INSC 1020], the Hon'ble Supreme Court after analysing various

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decisions on the point summed up the legal position of Section

306 and 107 IPC in the following manner:

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.

10.2 In the aforesaid judgment, the Hon'ble Supreme Court

referred to its earlier decision in case of Sanju @ Sanjay Singh

Sengar Vs. State of Madhya Pradesh , [(2002) 5 SCC 371], and

held that in a given case, even a time gap of 48 hours between

using of abusive language by the accused and the commission of

suicide would not amount to a proximate act.

11. Here, the learned Trial Court Judge had failed to

appreciate the fact that there was no mens rea on the side of the

accused to consider as an instigation, to attract the provision of

section 306 of IPC.

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12. In the case of Sanju @ Sanjay Singh Sengar Vs. State of

Madhya Pradesh, [(2002) 5 SCC 371], the Hon'ble Supreme

Court has held as under:

"12. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion..."

13. The facts of the case, as could be noted from the record

that on that day when the deceased was asked not to instruct

the son of accused No.2 to do any domestic work since he was

learning tailoring work with accused No.1, it could not be

considered as an instance which could offend the deceased,

where she would not have any opportunity to self reflect about

the said instruction from accused Nos.1 and 2. Such instance,

cannot be considered as any cause for committing suicide. There

is no allegation of any continuous conduct of harassment

amounting to cruelty. The very instruction of accused Nos.1 and

2 cannot even by any stretch of imagination could be considered

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as an instigation to the deceased with mens rea for her to

commit suicide.

14. The Hon'ble Supreme Court in the case of S.S. Chheena

Vs. Vijay Kumar Mahajan, [2010 (12) SCC 190] in regard to the

abetment has held as under:

"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 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 that act must have been intended to push the deceased into such a position that he committed suicide."

14.1 In the case of Gangula Mohan Reddy v. State of A.P. ,

[2010 Cr.L.J. 2110 (1)], the concept of abetment has been made

clear with reference to Section 107 of IPC in relation to Section

306 of IPC. It is observed that the act of abetment was 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, it cannot be

considered that the accused had goaded or urged forward to

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provoke, incite or encourage the act of commission of suicide.

14.2 In the case of M. Mohan v. State Represented by the

Deputy Superintendent of Police, [AIR 2011 SC 1238 : (2011) 3

SCC 626], the Hon'ble Apex Court has made the following

observations regarding the ingredients of Section 306 IPC,

referring to the word 'suicide', which reads thus:

"If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word 'suicide' has not been defined. The word 'suicide' would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Edition, p.686, "A finding of suicide must be on evidence of intention. Every act of self destruction is, in common language described by the word 'suicide' provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient."

15. The deceased was having a matrimonial life of nine years

with two children. She had all the opportunity to think about

herself and about the future of the children. The simple quarrel

between the husband and wife could not be a sufficient proof to

be considered as a willful conduct of the husband or the brother-

in-law to drive her to commit suicide. The learned Judge has

erred in considering the fact of the matter in this term. This

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Court is of an opinion that the facts had not been appreciated in

accordance to the provisions of law. The judgment is perverse