Gujarat High Court
State Of Gujarat vs Gafarsha Yushusha Divan on 27 June, 2025
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R/CR.A/1614/2012 JUDGMENT DATED: 27/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1614 of 2012
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
GAFARSHA YUSHUSHA DIVAN & ANR.
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Appearance:
MR.PRANAV DHAGAT, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 27/06/2025
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 learned 4th Additional
Sessions Judge, Anand (hereinafter referred to as "the learned trial
Court") in Sessions Case No. 95 of 2010 on 07.07.2012, whereby, the
learned trial Court has acquitted the respondents for the offence for the
offence punishable under Sections 498-A, 306 and 504 of the Indian
Penal Code, 1860 (hereinafter referred to as the IPC) and Sections 3 and
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4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as the Act).
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] Jubedaben - the daughter of Ayubsha Rahimsha Diwan was
married to the accused No. 1 and the accused No. 2 was the sister-in-law
(sister of the husband) of Jubedaben. The accused used to often demand
money from Jubedaben and the complainant Ayubsha Rahimsha Diwan
had given some amount to the accused and had also given an amount of
Rs.5000/- on 16.04.2007. The accused used to threaten to give a divorce
to Jubedaben and the accused No. 2 would get all her housework done by
Jubedaben. The harassment was to such an extent that on 08.07.2007 at
around 09.05 Hrs., Jubedaben consumed some medicine and the accused
abetted the commission of her suicide and she expired during treatment.
The complaint was filed by the complainant Ayubsha Rahimsha Diwan -
the father of deceased Jubedaben under Sections 498(A), 306 and 504 of
the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry
Prohibition Act, which was registered at Anand Town Police Station
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being I-C.R.No. 83 of 2007.
2.2] The Investigating Officer recorded the statements of the
connected witnesses and had collected the necessary documents and after
completion of investigation, the police filed the chargesheet against the
accused before the Court of the Chief Judicial Magistrate, Anand and as
the said offences against the accused were exclusively triable by the
Court of Sessions, the case was committed to the Sessions Court, Anand
as per the provisions of Section 209 of the Code of Criminal Procedure
and the case was registered Sessios Case No. 95 of 2010.
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 of Criminal Procedure, 1973. A
charge at Exh.4 was framed against the accused and the statements of the
accused was recorded at Exhs. 5 and 6, 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 seventeen oral evidences and twelve
documentary evidences to bring home charge against the accused and
after the learned Additional Public Prosecutor filed the closing pursis at
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Exh. 49, the further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 were recorded, wherein, the accused
denied all the evidence of the prosecution on record. The accused refused
to step into the witness box or examine witnesses on their behalf and
stated that a false case has been filed against them. After the arguments of
the learned Additional Public Prosecutor and the learned advocate for the
accused were heard, the learned trial Court by the impugned judgment
and order was pleased to acquit all the accused from all the charges
leveled against them.
3. Being aggrieved and dissatisfied with the said judgement and
order of acquittal, the appellant - State has filed the present appeal
mainly stating that the impugned judgement and order of acquittal passed
by the learned Trial Court is contrary to law and evidence on record and
the learned Trial Court has not appreciated the fact that all the witnesses
have supported the case of the prosecution and during cross-examination,
nothing adverse has been elicited in favour of the respondent. The case
has been proved beyond reasonable doubts and the prosecution has
successfully established the case against the respondent 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
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judgment and order passed by the learned Trial Court deserves to be
quashed and set aside.
4. Heard learned APP Mr. Pranav Dhagat for the appellant - State.
Though served, none appears on behalf of the respondent either in person
or through an advocate. Perused the impugned judgement and order of
acquittal and have reappreciated the entire evidence of the prosecution on
record of the case.
5. Learned APP Mr. Pranav Dhagat has taken this Court through the
entire evidence of the prosecution on record of the case and has submitted
that the judgment and order of acquittal is contrary to law and evidence
on record and the learned trial Court has not appreciated the direct and
indirect evidence in the case. The complainant has supported the case of
the prosecution, which is corroborated by the deposition of the medical
officer and the witnesses have identified the accused before the learned
trial Court. The prosecution has fully proved the case beyond reasonable
doubts but the learned trial Court has relied on minor contradictions and
has given undue weightage with regard to the place of incident. The order
passed by the learned trial Court is illegal, improper and perverse and is
required to be quashed and set aside and the appeal of the appellant must
be allowed.
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6. 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
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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..
7. The law with regard to acquittal appeals is well crystallized and in
acquittal appeals, there is presumption of innocence in favour of the
accused and it has finally culminated when a case ends in an acquittal.
The learned Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the prosecution has not
proved the case beyond reasonable doubts, the presumption of innocence
in favour of the accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after re appre-
ciation, 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.
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8. As the appeal pertains to a case under Section 306 of the IPC, it
would be appropriate to reproduce the observations of the Hon'ble Apex
Court in the case of Mahendra Awase vs The State of Madhya Pradhesh
Criminal Appeal No. 221/2025 (@ SLP(Cr) No. 11868/2023) passed on
17th January, 2025 which is as under:
11. Section 306 of the IPC reads as under:-
"306. Abetment of suicide. If any person commits suicide,
whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine."
12. Section 107 of the IPC reads as under:-
"107. Abetment of a thing.-A person abets the doing of a thing,
who-
First. - Instigates any person to do that thing; or
Secondly. - Engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or illegal
omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing; or
Thirdly. - Intentionally aids, by any act or illegal omission, the
doing of that thing."
As is clear from the plain language of the Sections to attract the
ingredient of Section 306, the accused should have abetted the
commission of a suicide. A person abets the doing of a thing
who Firstly - instigates any person to do that thing or Secondly -
engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal
omission takes place in pursuance of that conspiracy, and in
order to the doing of that thing or Thirdly - intentionally aids, by
any act or illegal omission, the doing of that thing.
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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
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prosecution before he could be convicted under Section 306
IPC.
17. M. Mohan vs. State, (2011) 3 SCC 626 followed Ramesh
Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618, wherein it
was held as under:-
41. This Court in SCC para 20 of Ramesh Kumar has examined
different shades of the meaning of "instigation". Para 20 reads as
under: (SCC p. 629)
"20. Instigation is to goad, urge forward, provoke, incite or
encourage to do 'an act'. To satisfy the requirement of instigation
though it is not necessary that actual words must be used to that
effect or what constitutes instigation must necessarily and
specifically be suggestive of the consequence. Yet a reasonable
certainty to incite the consequence must be capable of being
spelt out. The present one is not a case where the accused had by
his acts or omission or by a continued course of conduct created
such circumstances that the deceased was left with no other
option except to commit suicide in which case an instigation
may have been inferred. A word uttered in the fit of anger or
emotion without intending the consequences to actually follow
cannot be said to be instigation."
In the said case this Court came to the conclusion that there is no
evidence and material available on record where-from an
inference of the appellant accused having abetted commission of
suicide by Seema (the appellant's wife therein) may necessarily
be drawn."
Thereafter, this Court in Mohan (supra) held:-
45. The intention of the legislature and the ratio of the cases
decided by this Court are clear that in order to convict a person
under Section 306 IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no option and
this act must have been intended to push the deceased into such
a position that he/she committed suicide." [Emphasis supplied]
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9. In light of the above settled principles of law, the evidence on
record of the case is appreciated and the prosecution has examined
Prosecution Witness No. 1 Dr. Arvindbhai Jethabhai Dalwadi at Exh.11.
The witness is the Medical Officer, who has stated that he was on duty at
the Anand Nagarpalika General Hospital on 08-07-2007, when the dead
body of Jubedaben, wife of Gafursha Isubsa Diwan was brought at 11.40
hrs. by Head Constable Ratilal, buckle No. 1061 of Anand Town Police
Station for post-mortem. The post-mortem was conducted from 12.30 to
13.30 Hrs. and there were no injuries on the body. The cause of death
was kept reserved till the report of the chemical analyser was received
and after the report of the chemical analyser was received, the cause of
death was opined as due to chlorpyrifos organophosphorus chemical.
The witness has produced the post-mortem note at Exh.18.
During the cross-examination by the learned advocate for the
accused, the witness has stated that as per the FSL report produced at
Exh.17, the report does not mention the amount of chlorpyrifos
organophosphorus chemical found in the body.
9.1] The prosecution has examined Prosecution Witness No. 2
Ayubsha Rahimsha Fakir at Exhibit 22 and the witness is the
complainant and father of deceased Jubedaben. The witness has
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supported the contents of the complaint which is produced at Exh.23.
During the cross-examination by the learned advocate for the
accused, the witness has stated that his daughter and the accused No. 1
had come to Anand and were residing on rent at various places and seven
to eight months prior to the incident, they had gone to reside at the place
of the accused No.2. His daughter had a daughter named Tasleem, who
was about 13 years old and Jubedaben and the accused No. 1 and their
children would reside on the first floor and the accused No. 2 would
reside on the ground floor with her children. The husband of the accused
No. 2 is residing in Saudi Arabia for the past twenty one years. The
witness has admitted that whatever he knew about his daughter was told
to him by his son and his wife. His daughter was residing at Anand and
he was residing at Balasinor and he does not have any personal
information about the marital life of his daughter.
9.2] The prosecution has examined Prosecution Witness No. 3
Mahebubsa Ayubsa Diwan at Exh.24, the witness is the brother of
deceased Jubedaben and he has supported the case of the prosecution.
The witness has stated that on 08-07-2007 at around 7-7.30 am, his
brother-in-law telephoned him and told him that his sister had consumed
some medicine and she was taken to Dr. Ajay Kothiala's hospital. That
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after half an hour, he telephoned to say that Jubedaben had expired and
they came and her dead body was taken for postmortem.
During the cross-examination by the learned advocate for the
accused, the witness has stated that in the 2002 communal riots, the
cycle-store of the accused No. 1 was destroyed and at that time, they
were residing in Anand. They were residing at various places on rent and
thereafter, they had gone to reside on the first floor of the house of the
accused No. 2. The locality where his sister was residing was a locality
consisting of people from the minority community and he has not
mentioned in a statement before the police that the accused No. 2 would
get all her housework done by Jubedaben. The accused No. 2 has two
children, a son and a daughter, both aged around nineteen to twenty
years and the husband of the accused No. 2 is residing in Saudi Arabia
for the past twenty years. That as the financial condition of the accused
No.1 was not good, he had to reside in rented premises and after the
cycle store was destroyed in the communal riots, his financial condition
had become very poor. He met his niece Tasleem in the hospital on the
day of the incident and has thereafter not met his niece and his sister
Jubedaben was very sensitive and emotional.
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9.3] The prosecution has examined Prosecution Witness No. 4
Raziyabanu Aarifbhai Diwan at Exh.25. The witness is the sister of
deceased Jubedaben 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 Jubedaben did not have a mobile
phone and there was no landline at her house.
9.4] The prosecution has examined Prosecution Witness No. 5
Bilkish Haidersa Diwan at Exh.26. The witness is the cousin of deceased
Jubeda and she has stated that she had gone to Jubeda's house, where,
she was residing with her children and Jubeda had told her that the
accused were harassing her and the accused No. 2 was getting all her
housework including the children cleaned by Jubedaben. That they
would also demand money from her and Jubeda had told her that she was
fed up of the harassment and thereafter she came to know that Jubeda
had consumed some medicine.
During the cross-examination by the learned advocate for the
accused, the witness has stated that when she went to the hospital, all the
family members were present and she saw the police in the hospital but
thereafter she has not gone to the police station and the police has not
met her. When she went to the house of Jubeda, two days prior to the
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incident, her husband was not at home but he came thereafter and she did
not have any conversation with him. She did not scold him regarding the
harassment to Jubeda and at that time, the children of Jubeda were in the
house. The eldest daughter of Jubeda is about thirteen to fourteen years
and she does not know whether there was any harassment by the accused
to Jubeda.
9.5] The prosecution has examined Prosecution Witness No. 6
Faridabibi Mahebubsha Diwan at Exh.27 and the witness is the sister-in-
law of deceased Jubedaben, who has stated that Rs 10,000/- was given
on one occasion and Rs 5,000/- was given on the other occasion, about
three and a half years prior to the incident. The amount was given by her
husband to Jubedaben and Jubedaben had told her that if the money was
not given, she would be physically and mentally harassed. The accused
No. 1 had also threatened to divorce Jubeda and she had committed
suicide because of the harassment.
During the cross-examination by the learned advocate for the
accused, the witness has stated that her husband is a driver and the
husband of the accused No. 2 is residing at Dubai.
9.6] The prosecution has examined Prosecution Witness No. 7
Dr. Ajay Yogendra Kothiyala at Exh.28 and the witness has stated that
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he is running Apara Nursing Home in Anand and on 08.07.2007,
Jubedabanu Diwan was brought at 8.15 AM by her husband and relatives
for treatment. She was unconscious and could not speak anything and her
husband had stated that she had consumed some poison. Her condition
was very serious and the blood pressure was very less and the pulse was
irregular. The ECG showed that two chambers of the heart were not
working and she was treated and put on the ventilator and at around
09.05 hrs., she expired. The witness has produced the MLC papers at
Exh.29. The witness has stated that when the patient was brought for
treatment, the Anand Town Police Station was intimated and after the
patient expired once again, the Anand Town Police Station was intimated
and both the intimations as well as the case papers are produced at
Exh.30.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the husband of the patient had stated
that he was at the railway station and when he came home, he found that
his wife was vomiting and on inquiring, she told him that she had
consumed one tablet of Sulfose and Sulfose is used as a preservative in
grains.
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9.7] The prosecution has examined Prosecution Witness No. 8
Mahebbubkhan Fakrukhan Pathan at Exh.31, Prosecution Witness No. 9
Yasinsha Husensha Diwan at Exh.33 and Prosecution Witness No. 10
Hanifaben Rahimsa Diwan at Exhibit 34. All the witnesses are the panch
witnesses of the inquest panchnama, which is produced at Exh.32. All
the panch-witnesses have stated that the police had called them to Ajay
Kothiala's hospital and had asked them to affix their signature on the
inquest panchnama, which is produced at Exh. 32. The witnesses have
not supported the case of the prosecution and have been declared hostile
and have been cross-examined at length by the learned APP.
9.8] The prosecution has examined Prosecution Witness No. 11
Aarifsa Ahejatsa Diwan at Exh.36. The witness is the brother-in-law of
deceased Jubeda and has supported the case of the prosecution.
During the cross-examination by the learned advocate for the
accused, the witness has stated that at the time of the incident, the elder
daughter of Jubeda was aged about thirteen to fourteen years and when
he reached the hospital at Anand, the accused No. 1 was present. When
he had inquired from the accused No.1, he had told him that Jubeda had
taken one tablet, which was placed in the grains and she had expired.
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9.9] The prosecution has examined Prosecution Witness No. 12
Husensha Ishubsha Diwan at Exh.37 and the witness is the cousin of the
deceased who has supported the case of the prosecution.
During the cross-examination by the learned advocate for the
accused, the witness has stated that the accused No. 1 was present at Dr.
Ajay Kothiala's hospital and at the Anand Nagarpalika Hospital and his
sister's daughter is about 13 to 14 years old. That he did not inquire from
Jubedabibi's daughter as to why she had consumed the medicine and in
his statement before the police, he had not stated that Jubeida had told
him that she was harassed and that they had demanded money from her.
He would go Anand ocassionaly and would meet the children of Jubeda.
9.10] The prosecution has examined Prosecution Witness No. 13
Irfanbhai Abdulgani Vora at Exh.38 and Prosecution Witness No. 16
Ikbalbhai Nurmohammad Vora at Exh. 44. Both the witnesses are the
panch witnesses of the panchnama of the place of offence, which is
produced at Exh.40 and both the witnesses have stated that they had
merely affixed their signatures on the panchnama of the place of offence
and they have not gone at any place to prepare the panchnama. The
witnesses have been declared hostile and have been crossexamined at
length by the learned APP.
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9.11] Prosecution Witness No. 14 Ratilal Ganeshbhai Parmar
examined at Exh.41 was working as a Head Constable at Anand Town
Police Station on 8-7-2007 and has stated that investigation of Accident
Death No. 31 of 2007 was given to him by PSO Waljibhai and he had
gone and prepared the panchnama which is produced at Exhibit 32.
9.12] The prosecution has examined Prosecution Witness No. 15
Laxmanbhai Shankarbhai Raval at Exh.42.The witness has stated that he
was working as a PSO at Anand Town Police Station on 8-7-2007 and he
has registered the complaint filed by the complainant at I-C.R.No. 281 of
2007.
During the cross-examination by the learned advocate for the
accused, the witness has stated that when the complainant came to file
the complaint, his son was with him.
9.13] Prosecution Witness No. 17 Ramsinh Kodarbhai Patel
examined at Exh.46 and is the Investigating Officer who has stated that
he was working as a PSI at the Anand Town Police Station on 8-7-2007
and Anand Town Police Station Accident Death No. 31 of 2007 was
registered and Head Constable Rattilal was conducting the inquiry and
he had taken the papers from him and had investigated Anand Town
Police Station I-CR No. 281 of 2007. The witness has narrated in detail
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the procedure undertaken by him during investigation and has produced
the FSL report at Exh.48. The witness has stated that the Scienitic
Mobile Investigatin Van were called and on 9-7-2007 between 8.15 hrs.
to 8.45 hrs. and the place of offence was checked by the Scientific
Officer and the report has been produced at Exh.48.
During the cross examination by the learned advocate for the
accused, the witness has stated that the place where the offence has taken
place, has many residential areas and is a congested area but all the
witnesses that are cited in the charge sheet are the witnesses from the
parental home of the deceased. The statements of the neighbours were
recorded and the statements of the children of deceased Jubedaben were
also recorded. The accused had preferred an application for anticipatory
bail and he was present before the Court forhearing of the anticipatory
bail application and both the accused were released on bail. Both the
children were residing with the deceased and the accused No. 1 and as
per the say of both the children, there was no harassment to the deceased.
In the statement of the witnesses also, there was no evidence that the
deceased had any harassment by the accused and hence, those witnesses
were not shown as witnesses in the charge sheet.
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10] On minute appreciation of the entire evidence of the
prosecution, the prosecution has examined seventeen witnesses in all but
the panch witnesses of the inquest panchnama and the panch witnesses of
the panchnama of the place of offence have not supported the case of the
prosecution. The witnesses, who are the father, brother, sister, brother-in-
law, sister-in-law and cousins of the deceased have supported the case of
the prosecution but all these witnesses were not residing in the locality of
the deceased whereas, the children who were in the house at the time of
the incident have not been examined before the learned Trial Court. As
per the deposition of the Investigating Officer Ramsinh Kodarbhai Patel,
the statements of the neighbours were also recorded but none of the
neighbors has stated that the deceased was in any way mentally or
physically harassed by the accused and hence, they have not been cited
as witnesses in the chargesheet. The children who were residing in the
same house have also not stated anything about any harassment to their
mother and hence, they have not been examined before the learned trial
Court. As per the case of the prosecution, an amount of Rs. 10,000/- and
thereafter, an amount of Rs. 5,000/- was given to Jubedben as the
accused had demanded for the amount from them but there is no
evidence as to when and why the amount was given and the place where
it was given. Admittedly, the evidence that has come on record is that the
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deceased and the accused No. 1 were residing separately with their
children on the first floor of the house of the accused No. 2 and the
husband of the accused No. 2 was in Saudi Arabia for the past twenty
one years. Moreover, it has also emerged on record that the accused No.
1 was not at home when the incident occurred and Accident Death No.
31 of 2007 was registered and it was inquired into by Head Constable
Ratilal but the papers of Accident Death No. 31 of 2007 have not been
produced on record.
11] 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 extending benefit of doubt and acquitting the accused of the
charges leveled against him. 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 extending benefit of doubt and acquittal recorded by the learned Trial
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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.
12] The impugned judgement and order of acquittal passed by the
learned 4th Additional Sessions Judge, Anand in Sessions Case No. 95 of
2010 on 07.07.2012 is hereby confirmed.
13] Bail bond stands cancelled. Record and proceedings be sent back to
the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VVM
