Gujarat High Court
Hasmukhbhai Mangalbhai Vankar vs State Of Gujarat on 19 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1417 of 2005
With
R/CRIMINAL APPEAL NO. 2127 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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HASMUKHBHAI MANGALBHAI VANKAR & ORS.
Versus
STATE OF GUJARAT
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Appearance in Criminal Appeal No.1417 of 2005:
MR HARSHADRAY A DAVE(3461) for the Appellant(s) No. 1,2,3
MR HARDIK MEHTA APP for the Opponent(s)/Respondent(s) No. 1
Appearance in Criminal Appeal No.2127 of 2005:
MR HARDIK MEHTA APP for the Appellant No.1
MR HARSHADRAY A DAVE(3461) for the Opponent(s)/Respondent(s) No.
1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/11/2025
ORAL JUDGMENT
1. Criminal Appeal No.1417 of 2005 filed by the
accused, who were convicted under Section 498A of
the Indian Penal Code (for short 'I.P.C.') and
were sentenced to undergo three years rigorous
imprisonment. All three accused were ordered to
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pay a fine of Rs.1,000/- each, thus, a total of
Rs.3,000/- and in failure of payment of fine
further one month simple imprisonment.
2. The trial was against three accused under
Sections 498A, 306 and 114 of I.P.C. The accused
came to be acquitted under Section 306 I.P.C.
Aggrieved by the acquittal, the State has filed
Criminal Appeal No.2127 of 2005, making a prayer
to modify the judgment and order dated 23.06.2005
passed by the learned Additional Sessions Judge,
6th Fast Track Court, Panchmahals in Sessions Case
No.331 of 2004, and to impose sentence available
under Section 306 of the I.P.C.
3. Learned advocate Mr. Harshadray A.Dave
submitted that the husband and parents-in-law
have been convicted under Section 498A of I.P.C.,
where the learned Judge has failed to appreciate
the necessary ingredients to satisfy Section 498A
of I.P.C.
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3.1 Learned advocate Mr. Dave submitted that the
evidence of the witnesses as brothers do not
prove harassment or cruelty alleged to have been
committed by the appellants towards deceased. The
witnesses are brothers, who appears to be
interested in placing the fault on the
appellants, while they, as brothers have failed
to discharge their duties.
3.2 Learned advocate Mr. Dave submitted that the
facts of the case would suggest that deceased was
habitual in going to the parental house. Deceased
herself was creating problems in the matrimonial
family and as a result community panchas convened
a meeting, where deceased as a sister of the
complainant had given assurance as well as an
undertaking that she would behave well mannered
in the house.
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3.3 Learned advocate Mr. Dave submitted that it
appears from the evidence on record that the
earnings of the husband were not sufficient
enough to sustain the family and therefore,
though once they had started living separately,
the financial constraints forced them to reside
along with the joint family, and it appears that
deceased was not finding it affordable to stay in
the joint family and that had led to internal
grudge.
3.4 Learned advocate Mr. Dave submitted that
utterance of the parents-in-law are not proved,
however, if at all it is to be believed, then too
it should be considered as an advise to the
daughter-in-law to sustain in the joint family
with low income of the husband.
3.5 Mr. Dave, learned advocate further submitted
that the matrimonial life was for a span of eight
years, where as per the evidence there was no
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dispute for the first four years, which was
alleged to have further development, as has been
brought on record, would only help to draw a
conclusion that deceased could not sustain
herself in the joint family.
3.6 Learned advocate Mr. Dave further stated
that Section 306 of I.P.C. has not been believed
by the learned Trial Court Judge. The writing,
which was executed in the community meeting
before the panchas has been produced as Mark
14/1. Allegation of two and half months old
incident prior to the suicide cannot be believed
to be a proximate cause to consider it as an
abetment for the commission of suicide unless the
gravity of quarrel goes to such an extent that
deceased was left with no other alternative, but
to commit suicide.
3.7 Learned advocate Mr. Dave stated that the
ingredients of Section 498A I.P.C. also does not
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get proved. The brother had never filed any
complaint for such alleged cruelty to the sister,
though he was a news reporter, who certainly
would have the understanding to take recourse of
law in such kind of adversary.
4. Countering the arguments and relying on the
grounds raised in Criminal Appeal No.2127 of
2005, learned APP Mr. Hardik Mehta submitted that
the learned Trial Court Judge appears to be
oblivious of the fact that it was not only the
wife but even two years son lost his life. The
allegation of continuous harassment and
persistent physical beatings were proved. The
brothers have given the evidence to prove
frequent humiliation. Deceased wife had suffered
harsh behaviour of the accused as husband and in-
laws.
4.1 Learned APP Mr. Mehta submitted that the
case is grave and serious in nature. The
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continuous cruelty inflicted upon deceased woman
was severe, where the victim was left with no
other alternative but to end her life with minor
child, who was two years old. Mr. Mehta stated
that the prosecution had demonstrated and proved
the case by direct as well as circumstantial
evidence proving under Section 498A I.P.C. as
well as had proved the abetment for the
commission of suicide as contemplated under
Section 306 I.P.C.
4.2 Learned APP Mr. Mehta submitted that
ultimate step of taking her own life along with
life of two years old son would itself suggest,
that the circumstances were unbearable, and the
evidence clearly proves that deceased Kalpana was
physically and mentally harassed by accused since
last four years. She had by all possible ways
tried to accommodate herself in the matrimonial
home, but the uncontrollable situation led her to
take the harsh step, therefore, learned APP Mr.
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Mehta stated that respondents-accused would be
liable for the offence punishable under Sections
498A and 306 of I.P.C., the learned Judge has
committed error in acquitting the accused under
Section 306 I.P.C.
4.3 Learned APP Mr. Mehta stated that no
document of 'Janvajog' Entry dated 17.04.2004 was
produced by the accused, which was allegedly
stated to be registered at Halol Police Station.
Considering the conduct of the accused, the
conviction ought to have been followed under
Section 306 I.P.C. Mr. Mehta submitted that the
evidence of 13.04.2004, leads to close proximity
and the mental and physical torture of that day
had been proved by the prosecution witness.
4.4 Relying on the judgment of Praveen Kumar
Vs. State of Himachal Pradesh, 2024 (10) SCR 54,
learned APP Mr. Mehta submitted that the cause of
settlement itself would be a clear indication
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that the victim was subjected to cruelty, and
though the evidence Mark-14/1 has not been proved
but the circumstances proves that the victim was
harassed by the accused.
4.5 Learned APP Mr. Mehta submitted that accused
failed to make search of deceased Kalpana as well
as minor child and it was only by due diligence
of the brother on 20.04.2004 in the evening, the
dead bodies could be found near Narmada Canal
passing near village - Kanetiya.
5. Heard learned advocates for both the side,
perused the documents on record. The prosecution
in total had examined about nine witnesses.
Learned advocate Mr. Dave as well learned APP Mr.
Mehta has taken this Court through the
depositions recorded of the witnesses. The
complainant - Rameshbhai Nanjibhai Talati (P.W.1)
is the brother of deceased and Mukeshbhai
Nanjibhai Talati (P.W.2) is also the brother.
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6. The charge, which was framed refers the
marriage span of Kalpanaben with accused No.1 as
of eight years. It was alleged that after four
years of marriage, all accused started taunting
and beating deceased Kalpanaben with regard to
household work, and she was subjected to mental
and physical cruelty. It was alleged that two and
half months prior to 21.02.2004, all accused
rebuked deceased Kalpanaben alleging that she was
not doing household work and accused No.2,
father-in-law told her that if she wanted to stay
there, then she would have to follow her mother-
in-law, and if at all she wanted anything, then
she could bring it from her father's place. Thus,
it was alleged that all the accused harassed her
and in abetment had subjected deceased Kalpanaben
with mental cruelty and committed offence under
Section 498A read with Section 114 of I.P.C.
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6.1 Further it was alleged that in consequence
of the referred incident, fed-up of the mental
and physical cruelty becoming unbearable, from
16.04.2004 till 19:00 hours of 20.04.2004
deceased Kalpana along with her two years son
Dushyant jumped into the water of Narmada Canal
and thus, all the accused were guilty under
Section 306 read with Section 114 of I.P.C.
7. The Investigating Officer (P.W.9) has
affirmed about the statement of Taraben (P.W.3),
wherein it was noted that since last few years,
quarrels were going on between deceased and other
family members and therefore, deceased and minor
son had jumped into Narmada canal.
8. The brother, as a complainant was examined as
P.W.1 - Ramesh Nanjibhai Talati, in his
deposition at Exh.11 refers that they are four
brothers and sisters. He is eldest in all.
Deceased Kalpana was married eight years earlier.
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He stated that out of the marriage, they had a
son. The sister was staying in her matrimonial
house in a joint family with the husband and
parents-in-law. Her sister would some time come
to his house.
8.1 The allegation is that mother-in-law
Valliben used to taunt her for household work and
if she would inform so to the father-in-law, he
would say that she would have to work as per
mother-in-law say, and, she was told that if she
wanted anything she would to bring it from her
father's house. The complainant stated that
deceased Kalpana had come after the death of the
father prior to the Holi in the year 2004. At
that time, she had talked with complainant,
however, pacifying her he had sent her back to
the matrimonial home. While going, she was crying
telling the brother that since last three to four
years, she was bearing it and if she would tell
her husband, he would beat her. The complainant
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had instructed her to follow as per the say of
the parents-in-law and to bear it.
8.2 The evidence, as has come on record would
show that the allegation are for about last three
to four years, when the marriage span was of
eight years. Both of them i.e. husband and wife
were staying at Vadodara renting a house, which
the complainant affirmed. He has no knowledge
that the brother-in-law was having monthly salary
of Rs.1,500/- and was serving in a private firm.
He has no knowledge that the amount of Rs.1,500/-
was not sufficient enough to bear the expenses of
the house, and also does not have the knowledge
that in the year 2000, both had returned back to
village Arad. Complainant does not have the
knowledge whether the brother-in-law had a job
with the salary of Rs.1,500/- per month.
9. The admitted fact, which came on record is
that the husband and wife were staying at
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Vadodara separately. The income of the husband
was not sufficient enough to carry on the
household. Deceased Kalpanaben was B.A. Graduate.
In the cross-examination, the photo copy of
document Mark-14/1 was produced, and the
document, Mark-14/1 was referred to as an
undertaking given by deceased, which shows that
the stamp was purchased by the complainant
brother and deceased Kalpanaben H.Parmar in
presence of the complainant, Punjabhai Khodabhai
Parmar, Damubhai Raisinh Vankar and Dayabhai
Maknabhai had affirmed that, because of her
misunderstandings and mistakes certain incidents
had occurred in her matrimonial life and for that
purpose on 16.11.2000, her brother and 'Fooa'
(paternal uncle) were called at Arad, and after
discussion deceased had given the threat to
husband to commit suicide.
9.1 Deceased also stated in the writing that one
gold locket was lost and she had not informed
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about it to her husband and family members from
her parents side, which she accepted as her
mistake. The discussion also occurred with regard
to certain phone calls which she had made, and
she had given an undertaking assuring that her
life would not be spoiled and she would live in a
peaceful atmosphere, and she would perform her
duties as wife and also would behalf nicely with
parents-in-law and other family members. She has
also stated in the document that the incident of
false allegation and cheating would not happen.
When the talks were regarding divorce, she had
admitted her mistake and had assured that such
mistakes would not be repeated.
9.2 The complainant was confronted with this
document with suggestion that the original of the
document was with the complainant, which he
denied.
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10. In this background of the matter, it appears
that the husband and wife were earlier staying
separately and thereafter had started residing
with the parents-in-law. The facts which get
reflected is the low income of the husband, which
was not sufficient enough to carry on with the
domestic expenses. The document, Mark-14/4 shows
that the writing was on 09.02.2001. Deceased
committed suicide between the period from
16.04.2004 to 20.04.2004.
10.1 Taking the writing, Mark-14/1, in
consideration the analysis would be necessary
about the allegation, which has been raised about
the parents-in-law taunting and rebuking deceased
with regard to the household work. It appears
that the instruction was if she wanted anything
as per her necessity, she was asked to bring it
from her father's house. This allegation or the
fact of harassment would not be considered as
extreme to fall under the definition of cruelty,
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as explained under Section 498A of the I.P.C.
10.2 Section 498A I.P.C., to be proved, the
prosecution should prove the wilful conduct
of the accused and harassment with a view to
coerce making unlawful demand with a view to
force her to commit suicide.
11. In the case of Shardaben, Daughter of
Ishwarlal Bhogilal & Ors. v. State of Gujarat,
Criminal Appeal No. 2608 of 2005, it was held by
this court 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.
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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 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.
11.1 The requirement of standard of proof being
beyond reasonable doubt does not get altered even
after introduction of Section 498 I.P.C. and
Section 113A of the Evidence Act has been
recognized. In the case of State of W.B. v.
Orilal Jaiswal reported in (1994) 1 SCC 73, it
was held by Hon'ble Supreme Court as under:
"15. We are not oblivious that in a
criminal trial the degree of proof is
stricter than what is required in a
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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 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 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, 459 : 66 TLR (Pt. 2) 589] 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
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conclusion considering the particular
subject-matter."
12. The case herein is of matrimonial life of
more than eight years. Section 113A of the India
Evidence Act, 1872 for section 306 I.P.C., would
not be attracted. The State has filed appeal
making a prayer for ordering the sentence for the
offence under Section 306 of I.P.C.
12.1 The requirements to be proved has been
explained in the case of Hans Raj v. State of
Haryana reported in (2004) 12 SCC 257, it was
held as under:
"12. The question then arises as to
whether in the facts and circumstances
of the case the appellant can be
convicted of the offence under Section
306 IPC with the aid of the presumption
under Section 113-A of the Indian
Evidence Act. Any person who abets the
commission of suicide is liable to be
punished under Section 306 IPC. Section
107 IPC lays down the ingredients of
abetment which includes instigating any
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person to do a thing or engaging with
one or more persons in any conspiracy
for the doing of a thing, if an act or
illegal omission takes place in
pursuance of that conspiracy and in
order to the doing of that thing, or
intentional aid by any act or illegal
omission to the doing of that thing. In
the instant case there is no direct
evidence to establish that the
appellant either aided or instigated
the deceased to commit suicide or
entered into any conspiracy to aid her
in committing suicide. In the absence
of direct evidence the prosecution has
relied upon Section 113-A of the Indian
Evidence Act under which the court may
presume on proof of circumstances
enumerated therein, and having regard
to all the other circumstances of the
case, that the suicide had been abetted
by the accused. The explanation to
Section 113-A further clarifies that
cruelty shall have the same meaning as
in Section 498-A of the Penal Code,
1860 which means:
"498-A. (a) any wilful conduct which is
of such a nature as is likely to drive
the woman to commit suicide or to cause
grave injury or danger to life, limb or
health (whether mental or physical) of
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the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing
her or any person related to her to
meet any unlawful demand for any
property or valuable security or is on
account of failure by her or any person
related to her to meet such demand."
13. Unlike Section 113-B of the Indian
Evidence Act, a statutory presumption
does not arise by operation of law
merely on proof of the circumstances
enumerated in Section 113-A of the
Indian Evidence Act. Under Section 113-
A of the Indian Evidence Act, the
prosecution has first to establish that
the woman concerned committed suicide
within a period of seven years from the
date of her marriage and that her
husband (in this case) had subjected
her to cruelty. Even if these facts are
established the court is not bound to
presume that the suicide had been
abetted by her husband. Section 113-A
gives a discretion to the court to
raise such a presumption, having regard
to all the other circumstances of the
case, which means that where the
allegation is of cruelty it must
consider the nature of cruelty to which
the woman was subjected, having regard
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to the meaning of the word "cruelty" in
Section 498-A IPC. The mere fact that a
woman committed suicide within seven
years of her marriage and that she had
been subjected to cruelty by her
husband, does not automatically give
rise to the presumption that the
suicide had been abetted by her
husband. The court is required to look
into all the other circumstances of the
case. One of the circumstances which
has to be considered by the court is
whether the alleged cruelty was of such
nature as was likely to drive the woman
to commit suicide or to cause grave
injury or danger to life, limb or
health of the woman. The law has been
succinctly stated in Ramesh Kumar v.
State of Chhattisgarh [(2001) 9 SCC 618
: 2002 SCC (Cri) 1088] wherein this
Court observed: (SCC pp. 626-27, para
12)
"12. This provision was introduced by
the Criminal Law (Second) Amendment
Act, 1983 with effect from 26-12-1983
to meet a social demand to resolve
difficulty of proof where helpless
married women were eliminated by being
forced to commit suicide by the husband
or in-laws and incriminating evidence
was usually available within the four
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corners of the matrimonial home and
hence was not available to anyone
outside the occupants of the house.
However, still it cannot be lost sight
of that the presumption is intended to
operate against the accused in the
field of criminal law. Before the
presumption may be raised, the
foundation thereof must exist. A bare
reading of Section 113-A shows that to
attract applicability of Section 113-A,
it must be shown that (i) the woman has
committed suicide, (ii) such suicide
has been committed within a period of
seven years from the date of her
marriage, (iii) the husband or his
relatives, who are charged had
subjected her to cruelty. On existence
and availability of the abovesaid
circumstances, the court may presume
that such suicide had been abetted by
her husband or by such relatives of her
husband. Parliament has chosen to sound
a note of caution. Firstly, the
presumption is not mandatory; it is
only permissive as the employment of
expression 'may presume' suggests.
Secondly, the existence and
availability of the abovesaid three
circumstances shall not, like a
formula, enable the presumption being
drawn; before the presumption may be
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drawn the court shall have to have
regard to 'all the other circumstances
of the case'. A consideration of all
the other circumstances of the case may
strengthen the presumption or may
dictate the conscience of the court to
abstain from drawing the presumption.
The expression -- 'the other
circumstances of the case' used in
Section 113-A suggests the need to
reach a cause-and-effect relationship
between the cruelty and the suicide for
the purpose of raising a presumption.
Last but not the least, the presumption
is not an irrebuttable one. In spite of
a presumption having been raised the
evidence adduced in defence or the
facts and circumstances otherwise
available on record may destroy the
presumption. The phrase 'may presume'
used in Section 113-A is defined in
Section 4 of the Evidence Act, which
says -- 'Whenever it is provided by this
Act that the court may presume a fact,
it may either regard such fact as
proved, unless and until it is
disproved, or may call for proof of
it."
13. The learned Trial Court Judge has rightly
not believed any instigation from the matrimonial
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side. The allegation, which has been raised by
the complainant is of the incident dated
13.04.2004, where he stated that deceased Kalpana
had telephonically informed him that her husband
was harassing her and beating her. He pacified
her on phone, and thereafter the complainant
stated that on 16.04.2004, he received a call
from accused Hasmukh in the evening, informing
that Kalpana had gone away from the house along
with the child Dushyant. The complainant on that
day had gone to village Arad. He stated that all
the relatives were searching Kalpana and
Dushyant, and thereafter, on 20.04.2004, he came
to know that dead bodies of both of them were
found in the canal near village Kanetiya,
thereafter, police was informed.
13.1 The complainant had given the declaration
with regard to the dead bodies by Exh.12. Prior
to that on 17.04.2004, missing complaint was
given to the police. After the dead bodies were
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found, he had filed the complaint on 21.04.2004.
The objection was raised for exhibiting the
complaint dated 21.04.2004 on record on the
ground that on 20.04.2004, all the facts were
declared and in that circumstances, the
application dated 21.04.2004 should not be
considered as a complaint. The document was
placed in evidence with the objection at Exh.13.
The complainant has affirmed in his cross-
examination that they had a custom in the
community to settle the family disputes through
the panch. In view of the said fact, the document
Mark-14/1 becomes a believable aspect.
13.2 The telephone call of 13.04.2004 has not
been proved by way of any C.D.Rs on record,
however, if at all that is to be believed too,
the aspect of husband harassing deceased has not
been clarified in terms of the details, to
consider whether those quarrels could be
considered as utterance, which were sufficient
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enough to hurt her amounting to cruelty. The
complainant could not clarify the specific
allegations as to how on 13.04.2004, the husband
had harassed her. It was also a general
allegation on 13.04.2004 that the husband was
also beating her. Whether actually on 13.04.2004,
deceased was beaten by the husband, which had
become unbearable to such an extent that such
willful conduct of the husband had given her
cause to commit suicide. Such wilful conduct of
the husband was required to be proved.
14. 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
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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 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
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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.
15. In the referred judgment of Raj Rani (Smt.)
(supra), deceased had written a suicide note. The
entire writing of the suicide note was considered
by the Supreme Court, where there was serious
allegation against the husband for being addict
to narcotic drugs. The deceased had made a
general allegation against mother-in-law and also
against the husband. But the Supreme Court
observed that deceased had not adverted to any
concrete incident, which could be termed as
cruelty. The Supreme Court was of an opinion that
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the utterance simply being hurting in nature
would not suffice. The utterance should be
sufficient enough to be considered as a cruelty
to fall within the definition of Section 498A
I.P.C.
16. As has been recorded and observed herein
above in the case of Shardaben, Daughter of
Ishwarlal Bhogilal (supra), the first part speaks
of wilful conduct of the accused in the nature,
which is likely to drive the woman to commit
suicide, and the second part of Section 498A
I.P.C. provides for harassment with a view to
coerce the woman or any person related to her to
meet unlawful demand for any property or valuable
security and that has laid to failure to pay. The
harassment to the woman, which has been
considered, should be with a view to coerce her
or any person related to her to meet the unlawful
demand for any property or valuable security.
While the first part of Section 498A I.P.C.
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refers to wilful conduct driving the woman with
no other alternative but to commit suicide.
16.1 In the case of Kamaruddin Dastagir Sanadi
v. State of Karnataka, (2024) SCC OnLine SC 3541,
this Court observed that discord and differences
in domestic life are quite common in society.
Commission of suicide largely depends upon the
mental state of the victim. Until and unless some
guilty intention on the part of the accused is
established, it is ordinarily not possible to
convict the accused for an offence under Section
306 I.P.C.
17. Here, in this matter, the complaint of the
brother dated 20.04.2004 is at Exh.12. For the
incident on 13.04.2004, he has stated before the
police that he had received a phone call from his
sister at about 8:00 in the morning, who had
informed him that the brother-in-law was
harassing her. The only expression used is of
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'harassment'. Exh.12 does not refer to beating on
that day. What was the nature of harassment is
not reflected in document, Exh.12. However, in
Exh.13, the complaint dated 21.04.2004, the
brother as a complainant has referred to the
phone call dated 13.04.2004. In that complaint
too, the complainant has not recorded of any
beatings by the accused brother-in-law to
deceased. On 21.04.2004, the complainant has
recorded at Exh.13 that his sister had informed
him that Hasmukh was harassing her and was
behaving with her cruelly. It appears that the
brother in his deposition has improvised and
brought in the aspect of beating the sister,
which does not get reflected in his complaint at
Exh.12 and Exh.13.
18. Mukesh Nanjibhai Talati was also the
brother, who has been examined as P.W.2. His
evidence would be relevant to consider that the
sister was visiting their house after the
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marriage and she had come to their house in the
year 2004, and had informed that the parents-in-
law and the husband were harassing her. Why they
were harassing her, the cause was not informed to
him. He also stated that on 'Holi', his sister
was at their home and brother-in-law had come to
take her back. It is also stated by P.W.2 that
his brother has not informed him of what talks
were conveyed through the telephone. He came to
know about the death of his sister on 20.04.2004.
18.1 The cross-examination shows that deceased
sister was learning computer and was also doing
embroidery (Bharatkam) work. The computer class
were taken at Godhara, while embroidery at Arad.
He also stated that his sister and brother-in-law
had stayed for about two years at Vadodara, and
at that time, the brother-in-law was serving at a
T.V. Channel company, but was not aware about the
income received from the company. The complainant
has stated that brother-in-law was serving as a
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teacher at the time of the complaint. It appears
that accused as a husband was trying his level
best to improve his standard of living.
19. Learned APP Mr. Mehta has placed reliance
upon the deposition of P.W.3 - Taraben Pradipbhai
Parmar, who had turned hostile. Learned APP
referred to the police statement of the witness,
where it is stated that the witness is a
neighbour as well as younger sister-in-law of
deceased. She has affirmed of the quarrel in the
house with the parents-in-law of deceased and
being offended she had turned to her parental
home, but the witness has no knowledge of
bringing her back after settlement. She also had
affirmed of some verbal quarrel of 13.04.2004,
and has also stated that since last three to four
years the quarrel had continued, and the parents-
in-law were informing her that she would have to
bear it.
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19.1 The cross-examination of P.W.3 also
suggests that deceased Kalpanaben was insisting
to reside at Vaodara and the accused was not
economically stable to stay at Vadodara. She
affirmed that because of the insistence of
deceased, panch had gathered at Arad and the
brother - Ramesh had also attended the meeting.
The witness affirmed that before the panch
Kalpanaben had given assurance that she will now
not unnecessarily have such insistence, nor would
give any threat of suicide, therefore, she was
allowed to continue in the matrimonial house. The
witness also stated that before the panch, a
writing was executed.
19.2 Considering this evidence, it could be
noted that the deceased herself was not satisfied
with her own matrimonial life. The financial
incapacity of the husband was probably the ground
for distress. The writing before the panch, Mark-
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14/1, gets corroborated by the evidence of P.W.3.
Deceased continued with her insistence to stay at
Vadodara. The evidence of brother (P.W.2) would
suggests that matrimonial family members had
allowed her to have computer classes as well as
embroidery (Bharatkam) classes, which could be
considered that the parents-in-law had given her
freedom of self earning. The allegation against
the parents-in-law could not be considered as a
cruelty, rather the parents-in-law were making
her understand the facts of life and were
suggesting her to remain peacefully in the joint
family.
19.3 In view of this evidence on record
regarding the facts, which had been brought
before the panch, the judgment referred by the
learned APP of Praveen Kumar (supra) would not be
of much assistance.
20. Doctor Kananbala Saryuprasad Sainik has
been examined as P.W.7. The cause of death in
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P.M. Note for both the deceased was recorded as
asphyxia due to drowning leading to death.
Maheshkumar Devisinh Adiyal (P.W.4) was working
in the fire brigade. P.W.5 and P.W.6 were A.S.I
at the Police Station. P.W.8 was Dy.S.P. and
P.W.9 was the Investigating Officer.
21. The State has failed to prove any immediate
cause having the proximity with the commission of
suicide, to consider it as an act of goading by
all the accused urging or provoking deceased to
commit suicide.
22. In the case of Mahendra K.C. v. State of
Karnataka and another, [(2022) 2 SCC 129], it has
been held by the Hon'ble Supreme Court that the
essence of abetment lies in instigating a person
to do a thing or the intentional doing of that
thing by an act or illegal omission. Instigation
is to goad, urge forward, provoke, incite or
encourage to do "an act". To satisfy the
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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. A word uttered in the fit of anger or
emotion without intending the consequences to
actually follow cannot be said to be instigation.
22.1 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
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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."
22.2 In the case of Nareshkumar v. State of
Haryana, (2024) 3 SCC 573, wherein it was held
that the basic ingredient to constitute an
offence under Section 306 IPC are suicidal death
and abetment thereof. Abetment involves the
mental process of instigating a person or
intentionally aiding a person in doing of a
thing. Thus, without a positive act on the part
of the accused to instigate or aid in committing
suicide, conviction cannot be sustained. Thus, in
order to convict a person under Section 306,
there has to be a clear mens rea to commit the
offence and mere harassment, held, cannot be
sufficient to hold an accused guilty of
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commission of suicide. Further, it was held that
the prosecution has to prove an active act or
direct act which led the deceased to commit
suicide. It was held that ingredients of mens rea
cannot be assumed to be ostensibly present, but
has to be visible and conspicuous.
23. The ingredients, which are required to be
fulfill in order to bring a case under Section
306 I.P.C. are:
(i) abetment;
(ii) the intention of the accused to aid or
instigate or abet the deceased to commit suicide;
(iii) To bring the case under the provision, it
is imperative that the accused intended by the
act to instigate the deceased to commit suicide.
23.1 On the basis of the facts and circumstances
as well as assessing the evidence, it would be
necessary to determine whether the cruelty or
harassment inflicted on the victim left her with
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no other option, but to end her life. In cases of
alleged abetment of suicide there must be
concrete proof of either direct or indirect act
of incitement that led to suicide. Mere
allegations of harassment are insufficient to
establish guilt. For a conviction, there must be
evidence of positive act by the accused closely
link to the time of incident that compel or drew
the victim to commit suicide.
23.2 In the present case, the prosecution has
failed to establish that the death was because of
any active abetment on the side of the accused.
24. In view of the observations made herein
above with the proposition of law, the case
against the appellant-accused under Section 498A
of the I.P.C. does not stand proved. At the same
time, the prosecution has failed to prove the
case under Section 306 I.P.C., to consider that
the learned Trial Court Judge has erred in not
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convicting the accused under Section 306 I.P.C.
As per the judgments referred herein above, the
ingredients as required under Section 306 I.P.C.
does not stand proved.
25. In view of the above observations and
discussions, the appeal filed by the State being
Criminal Appeal No.2127 of 2005 is dismissed and
the appeal of the appellants-accused being
Criminal Appeal No.1417 of 2005 is allowed. The
conviction and sentence of the appellants -
accused dated 23.06.2005 passed by the learned
learned Additional Sessions Judge, 6th Fast Track
Court, Panchmahals in Sessions Case No.331 of
2004 is hereby set aside. Bail bond, if any,
stand discharged. Registry is directed to send
the Record and Proceedings back to the concerned
Trial Court forthwith.
(GITA GOPI,J)
Pankaj/Suppl-9
