[Cites 40, Cited by 0]
Gujarat High Court
Bharat Purshottam Chimnani vs The State Of Gujarat] on 28 November, 2025
Author: Gita Gopi
Bench: Gita Gopi
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R/CR.A/428/2007 JUDGMENT DATED: 28/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 428 of 2007
With
R/CRIMINAL APPEAL NO. 438 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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BHARAT PURSHOTTAM CHIMNANI
Versus
THE STATE OF GUJARAT]
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Appearance in Criminal Appeal no. 428 of 2007:
MS POONAM M MAHETA for the Appellant(s) No. 1
MS. KITTY S MEHTA for the Appellant(s) No. 1
MR ROHANKUMAR H RAVAL, APP for the Respondent(s) No. 1
Appearance in Criminal Appeal no. 438 of 2007:
MR VICKY B MEHTA for the Appellant(s) No. 1
MR ROHANKUMAR H RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/11/2025
COMMON ORAL JUDGMENT
1. Appeals are filed by both the accused separately
who came to be convicted by the learned
Additional Sessions Judge, Fast Track Court
no.2, Surendranagar on 9.1.2007 in Sessions Case
no.60 of 2005. The trial against both the
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accused proceeded under Sections 306, 406, 420
read with Sections 120B and 114 of the Indian
Penal Code, 1860 (hereinafter referred to as
"IPC" for short).
1.1 Criminal Appeal no.428 of 2007 was filed by
accused no.1-Bharatbhai Parsottambhai Chimnani,
while Criminal Appeal no.438 of 2007 is by
accused no.2 - Dahyabhai Alubhai Solanki.
2. Accused no.1 was ordered to face sentence for
seven years rigorous imprisonment under Section
306 read with 120B and 114 of IPC and further
the Trial Court ordered fine of Rs.25,000/- with
the default stipulation of further one year
rigorous imprisonment. The fine amount was to be
paid to the widow of the deceased. Under Section
406 read with 120B and 114 of IPC, accused no.1
was ordered to undergo sentence of two years
rigorous imprisonment, while for the offence
punishable under Section 420 read with 120B and
114 of IPC, three years rigorous imprisonment
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was imposed with a fine of Rs.5,000/- and in
failure to pay the fine amount, further six
months rigorous imprisonment was ordered.
2.1 Accused no.2 was ordered to face 10 years
rigorous imprisonment for the offence punishable
under Section 306 read with Section 120B and
Section 114 of IPC with fine of Rs.25,000/- and
in default of payment of fine, further one year
rigorous imprisonment was ordered, with a
direction that the fine amount was to be paid to
the widow of the deceased. Under Section 406
read with 120B and 114 of IPC, two years
rigorous imprisonment and for the offence
punishable under Section 420 read with 120B and
114 of IPC, three years rigorous imprisonment
with the fine of Rs.5,000/- and in failure to
pay fine, six months further rigorous
imprisonment was ordered.
2.2 The sentences against the accused were ordered
to run concurrently.
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3. The learned Judge had also issued direction for
departmental inquiry against the police
investigating officer - Shri J.K. Bhagora and
Police Sub-Inspector - Shri B.M. Tank observing
unpardonable negligence in investigation.
4. The endorsement by the Nazir on the judgment
reflects accused no.1 having deposited the fine
amount of Rs.30,000/- on 3.3.2007.
5. The facts of the case, as could be succinctly
narrated by gathering from the record, disclose
that deceased Kalubhai Punjabhai Rathod was the
Secretary in the Cooperative Society - Jai
Girnari Hathshal Vankar Co. Operative Soci.
Ltd., Shiyani. Chhaganbhai Laljibhai Jadhav-PW9
was the President of the Cooperative Society.
The prosecution case was that the President and
the Secretary used to purchase cotton yarns for
the Cooperative Society for manufacturing of
hand-weaved fabric, for selling them in the
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market. For the purpose of purchasing cotton
yarn, in routine, they used to sign cheques
jointly and used to give blank cheques to
accused no.2 - Dahyabhai Alubhai Solanki.
6. The President and the deceased Secretary
received one notice from Metropolitan Magistrate
of Mumbai. Thus, they apprehended that accused
no.2 - Dahyabhai Alubhai Solanki might have
misused the cheque as he was doing the business
with Bharat Parsottam Chimnani (accused no.1).
7. The prosecution case was that both the accused
had purchased cotton yarn with the cheques given
to them and had not supplied the yarn to the
society and thereby, had committed the offence
of cheating with the Cooperative Society. The
yarn, which was purchased by cheque of the
society, was sold away directly and when the
firm at Mumbai had not received the money, the
case was filed. It is also the prosecution case
that the blank cheque was misused by accused
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no.1 - Bharatbhai Parsottambhai Chimnani who had
withdrawn a large sum of Rs.1,25,000/- from a
Shroff firm at Ahmedabad and since the Shroff
had not received the amount of the cheque, the
Shroff had sent a notice to the President and
Secretary.
8. The complaint was filed by Keshavbhai Punjabhai
Rathod, the brother of the deceased who was
examined as PW1. His complaint was produced in
evidence at Exh.22. His evidence as a witness
suggests that his deceased brother had informed
him after receiving the notice from the Mumbai
Court that the Cooperative Society for their
business had given blank cheques to accused no.2
and both the accused, from the firm at Mumbai,
had purchased cotton yarn with the cheques of
the society, the yarn was not delivered to the
Cooperative Society and therefore, they had
received the notice. According to the
complainant, the deceased brother had informed
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that both the accused had directly sold away the
goods by misusing the cheques of the Company and
thereby, had cheated the society. The witness
also stated that one blank cheque was misused by
accused no.1 and he had on that cheque withdrawn
an amount of Rs.1,25,000/- and as the cheque was
of the society and since the money was not
received by the Shroff, notice was issued to the
President and Secretary of the society. The
deceased brother had informed the complainant
that the accused had cheated them and he, being
the Secretary of the society, now could not face
the world and that the accused had tarnished his
image. The complainant stated that because of
that, his brother was always remaining in stress
and was sad, telling him that rogue lives in
this world and that it is better to die. His
brother expressed that he had no interest to
stay alive.
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9. According to the complainant, on 26.12.2003, in
the afternoon between 02.30 to 03.00 p.m., his
elder brother - Kalubhai consumed medicine,
thereafter, he was taken to Limdi Government
Hospital and for further treatment, was admitted
in the hospital of Dr. Lakum - PW14 at
Surendranagar, where he died during the
treatment on 4.1.2004.
10. According to the complainant, both the accused
had cheated the society, and his brother was
under mental stress and therefore, consuming
medicine, he committed suicide. The amount
quantified by the complainant of cheating and
misappropriation is stated to be of
Rs.8,65,000/-. The complainant contended that
his brother was entrapped and the debt was
thrown on the brother's head who was forced to
commit suicide by consuming medicine.
11. The FIR was registered on 7.1.2004 at 18.00 hrs.
The facts, as could be drawn from the cross-
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examination, suggest that the complainant was
also the member of Jai Girnari Hathshal Vankar
Co. Operative Soci. Ltd., Shiyani. The
Resolution was passed for the purchase of yarn.
According to the complainant, after the
Resolution, the cheques were given to accused
no.2. The complainant affirmed that there was no
such Resolution that accused no.1 was to
purchase the cotton yarn and that the blank
cheques were to be given to him. Accused no.1
was resident of Ahmedabad who was a big trader
in yarn.
11.1 Learned advocate Ms. Poonam M. Maheta with
learned advocate Ms. Kitty S. Mehta for the
appellant-accused no.1 in Criminal Appeal no.428
of 2007 submitted that the case has been tried
on the alleged financial irregularity and fraud
on the Cooperative Society, which is attributed
to the accused persons. Advocate Ms. Poonam
Maheta submitted that the society comprised of
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51 members and deceased was the Secretary, while
Chhaganbhai Jadav was the President. Both were
engaged jointly in purchase of cotton yarn,
manufacture of clothes and sale in the market.
For the business, cheques were jointly signed.
Since a notice was received from the learned
Metropolitan Magistrate, Mumbai, the President
and the Secretary alleged the misuse of the
cheque by the accused no.2 - Dahyabhai in
collusion with accused no.1-Bharatbhai Chimnani,
proprietor of "Jelam Yarn". Advocate Ms. Maheta
submitted that the allegation is of executing
the transaction in Mumbai without supplying the
goods to the society and misuse of cheque by
accused-Bharatbhai withdrawing Rs.1,25,000/-
from the Shroff firm. Distressed by this act,
Kalubhai (deceased) repeatedly expressed anguish
that his life has been ruined and ultimately,
allegedly drunk poison on 26.12.2003, dying
after ten days. Advocate Ms. Maheta stated that
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exhibits does not prove the case of abetment to
suicide, which requires clear proof of
instigation or intentional aid. Advocate Ms.
Maheta stated that cheating requires dishonest
intention at the inception, and criminal breach
of trust requires entrustment and dishonest
misappropriation. Advocate Ms. Maheta submitted
that there is no evidence to prove on record any
instigation, conspiracy or intentional aiding.
The cause shown is that Kalubhai was distressed
by the notice from the learned Metropolitan
Court, Mumbai, while the prosecution has not
proved any case of harassment, demand or
quarrel, which could constitute any form of
abetment. Advocate Ms. Maheta submitted that
direct nexus with mens rea was required to be
established.
11.2 Referring to the evidence of the witnesses,
Advocate Ms. Maheta submitted that PW1 - brother
of the deceased as a complainant has materially
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contradicted the complaint. There are
improvements and exaggerations, which become
apparent. The evidence of the complainant at the
most would establish that notice under Section
138 of the Negotiable Instruments Act, 1881 was
received jointly by the deceased and the
President-PW9, while no notice or complaint was
served upon the appellant regarding
misappropriation. Advocate Ms. Maheta submitted
that the deceased and PW9 had never filed any
case under Section 406 or 420 read with 120B IPC
against both the accused. PW9 has not proved the
misappropriation of Rs.1,25,000/-, while PW20 -
Dilip Kanjibhai Bhandari categorically deposed
that he had personally handed over proceeds of
the cheque to deceased Kalubhai. Hence, the
allegation of the appellant misappropriating
money stands disproved. Advocate Ms. Maheta
submitted that mere allegation of business
cheating or misuse of cheque cannot be equated
with instigation for the commission of suicide,
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where the prosecution fails to prove the
essential ingredients of abetment. Advocate Ms.
Maheta submitted that without clear proof of
abetment, no conviction under Section 306 IPC
would stand.
11.3 To support her argument, Advocate Ms. Maheta
relied upon the decision of (i) Chitresh Kumar
Chopra v. State (Govt. of NCT of Delhi), (2009)
16 SCC 605, (ii) S.S. Chheena v. Vijay Kumar
Mahajan, (2010) 12 SCC 190, (iii)Madan Mohan
Singh v. State of Gujarat, (2010) 8 SCC 628,
(iv) Gurcharan Singh v. State of Punjab, (2020)
10 SCC 200, (v) Randhir Singh v. State of
Punjab & Haryana, AIR 2004 SC 5097, and (vi)
Ramesh Kumar v. State of Chhattisgarh, AIR 2001
SC 3837 to submit that instigation must mean
active encouragement; a word uttered in anger
without intent cannot be treated as instigation.
Mere harassment or ordinary quarrels do not
amount to abetment unless they leave no option
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except to commit suicide. Mere allegations of
harassment or demand for money do not ipso facto
constitute instigation under Section 306 IPC.
Proximity and casual link between alleged
conduct and suicide must be clearly established.
Abetment involves mental process of instigating
or intentionally aiding; a more active role is
necessary. Instigation is to goad, urge forward,
provoke, incite or encourage; there must be
reasonable certainty that accused's acts
compelled suicide.
11.4 For her argument in context with the provision
of Section 405/406 IPC for criminal breach of
trust, Advocate Ms. Maheta submitted that
entrustment is sine qua non. The evidence shows
that the cheques were handed over to accused
no.2 - Dahyabhai Solanki, while no such
entrustment of the cheques were made to the
appellant. No proceedings were initiated by the
society or the office bearers against the
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appellant, on the contrary, the society demanded
delivery of goods from the mill, treating it as
a commercial transaction. Dishonour of cheque
and non-supply were the issues, which arose much
earlier than the suicide almost one year prior.
The prosecution has failed to prove even the
casual connection, where the necessity is to
prove the proximate cause.
11.5 Advocate Ms. Maheta submitted that strangely,
postmortem attributes death by organophosphorus
poison, while FSL report does not support any
poison. In fact, the viscera report of the FSL
does not find any poison. Thus, there is serious
doubt about the cause of death.
11.6 To support the argument with regard to
committing criminal breach of trust, Advocate
Ms. Maheta has placed reliance on the case of
Hridaya Ranjan Prasad Verma v. State of Bihar,
(2000) 4 SCC 168 and State of Kerala v. A.
Pareed Pillai, (1972) 3 SCC 661.
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11.7 Advocate Ms. Maheta has also relied upon the
case of Lavjibhai Sukhabhai Gohil v. State of
Gujarat, passed in Criminal Appeal no.1131 of
2003 decided on 1.8.2025 by this Court to submit
that mere allegation of harassment,
uncorroborated letters or general discord would
not attract Section 306 IPC and has also placed
reliance on the judgment of Ashvinbhai
Premjibhai Vispara v. State of Gujarat, Criminal
Appeal no.445 of 2006 decided on 22.7.2025 by
this Court to submit that even a dying
declaration referring to a single incident of
quarrel or rebuke is insufficient to establish
abetment and that continuous oppressive act with
mens rea creating a proximate link between the
alleged conduct and the suicide is required to
be proved.
11.8 In the present case, Advocate Ms. Maheta
submitted that the essential ingredients of
Section 306 IPC are conspicuously missing and
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mere filing of the case under Section 138 of the
Negotiable Instruments Act, 1881 by the
representative of the Shroff firm or receiving a
notice from the Court at Mumbai more than a year
before the suicide, would not connect the case
to prove any abetment. Filing of the case by
taking the legal recourse cannot be considered
as a ground for any cause for suicide, where
actually the facts of the case proves the
commercial transaction.
12. Mr. Vicky Mehta, learned advocate for the
appellant-accused no.2 in Criminal Appeal no.438
of 2007 adding to the arguments of learned
advocate Ms. Maheta submitted that the purchase
of cotton yarn was a common routine and often
the blank cheques were given to accused no.2
with joint signature of the President and
Secretary. It was only under apprehension, on
receipt of the notice from Metropolitan Court at
Mumbai, the President and Secretary assumed that
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accused no.2 might have misused the cheques as
he was having business with accused no.1-Bharat
Chimnani. Advocate Mr. Vicky Mehta submitted
that the case of misuse of blank cheque by
accused no.1 for withdrawing the amount of
Rs.1,25,000/- has not been proved rather the
shroff had filed a case against the accused no.1
as well as the deceased and the President-PW9.
The version in the complaint and the deposition
are totally different. Mr. Mehta submitted that
it is pertinent to note that it was a case of
dishonour of cheque and the deceased and PW9
though were the authorities of the society, had
failed to give reply, nor any grudge was raised
regarding the alleged non-supply of goods by
accused no.1. Mr. Mehta submitted that even
after receipt of notice from Arunoday Mills
Ltd., no notice was served to the present
appellant alleging any misappropriation of goods
or misuse of cheques. The deceased and PW9
appeared before the learned Chief Metropolitan
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Magistrate Court at Mumbai, while no application
for dropping the proceedings or quashing the
complaint was initiated by them, nor had they
filed any FIR against the appellant at the
appropriate Police Station. Mr. Mehta submitted
that the appellant was not concerned with the
society at all. The facts on the contrary
suggest that the society has taken the goods
supplied by the Company and the depositions of
the witnesses nowhere suggest that the appellant
had received the goods. Dharmendrasinh
Dilipsinh-PW13, the driver has not deposed that
the goods were delivered to the appellant. The
second allegation of misappropriating the amount
of Rs.1,25,000/- has also not been proved, as
PW20 - Dilipbhai Kantibhai Bhandari had deposed
in clear terms that the amount on discounting of
cheques was paid to deceased Kalubhai. Thus, Mr.
Mehta submitted that the deceased had collected
the amount belonging to the society, and that
the cash was never received by the appellant.
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Nothing has come on record, as per advocate Mr.
Mehta, to show any abetment for the commission
of suicide.
12.1 Mr. Mehta submitted that the offence under
Section 406 also does not appear to have been
proved, where as provided under Section 405 of
IPC, for criminal breach of trust, entrustment
of property has to be proved and that further
has to establish that the property entrusted was
converted for his own use or had disposed of the
property in violation of any direction of law
prescribing the mode in which such trust is to
be discharged or of any legal contract expressed
or implied. Mr. Mehta submitted that the
evidence does not prove of any misappropriation
of amount belonging to the society and further
stated that for holding a person guilty under
Section 420 IPC, the inducement to deliver the
property has to be proved. The evidence does not
prove that the appellant had approached the
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society for the delivery of cheques or for the
delivery of the amount. Secondly, no evidence
has been brought on record of any deceit with
fraudulent and dishonest intention. On the
contrary, the appellant was nowhere connected
with accused no.1 for the transaction of
delivery of any property or entrustment of the
cheque.
12.2 Advocate Mr. Vicky Mehta further stated that
from the evidence, no criminal conspiracy
hatched by the accused to commit the offence had
been proved and therefore, no conviction can be
recorded under Section 120B of IPC, further
submitted that Section 114 IPC can only be
attracted if the offences under punishable
sections are proved. Mr. Mehta submitted that
the complaint before the learned Metropolitan
Magistrate Court at Mumbai as well as the Court
at Ahmedabad was not filed by the society or any
of the authority and hence, there cannot be any
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complaint for breach of trust or for cheating by
the State. On the contrary, when the notice was
received from Arunoday Mills under Section 138
of the Negotiable Instruments Act, 1881, the
society ought to have demanded the goods from
the mill and from the deposition, it could
transpire that no evidence has come on record of
any such fact informed to the mill of non-
delivery of goods to the society. Mr. Mehta
further stated that the amount discounting the
cheque was collected by the deceased. So far as
the case of the misuse of cheque is concerned,
the case was filed for dishonour of cheque,
where the goods were actually supplied so there
was no loss to the society.
13. Learned APP Mr. Rohan H. Raval for the State
submitted that the case had been proved very
clearly against the accused before the Trial
Court. The witnesses, as the complainant
brother, son, father and widow of the deceased
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had given cogent and satisfactory evidence
before the Trial Court to explain the cause of
deceased consuming pesticides, as has been
deposed by the Doctor. Learned APP Mr. Raval
submitted that the opinion of the Doctor is
required to be believed, who concludes that the
death was because of the consumption of
organophosphorus poison. The treating Doctor had
also stated of the same fact and the prosecution
could prove the death by suicide.
13.1 Learned APP Mr. Raval stated that the diary
maintained by the deceased was proposed to be
proved through the witnesses. The father as well
as the widow of the deceased had tried to place
the document on record, however, the same could
not be accepted as an evidence, Mr. Raval
submitted that such document as marked would
require consideration to know the immediate
cause of suicide and the cause creating
proximity to the incident.
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13.2 Learned APP Mr. Raval further stated that the
deceased was cheated by the accused. The blank
cheque had been misused and the goods were
directly sold away by the accused with the money
of the society and the deceased was facing the
criminal trial for no fault of his, which had
led him to suffer stress and the ultimate cause
was the cheating and misappropriation and
criminal breach of trust of the accused, which
had been the cause for the suicide. Learned APP
submitted that the learned Trial Court Judge has
rightly appreciated the evidence on record and
had found the direct cause being accused act for
the commission of suicide.
14. Having heard learned advocate Ms. Poonam Maheta,
learned advocate Mr. Vicky Mehta for the
appellants-accused and learned APP Mr.
Rohankumar H. Raval, the evidence recorded
during the trial would require a detail analysis
to examine whether the offences as alleged were
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proved to consider whether the sentence awarded
is sustainable. The complainant affirmed that
the cases were filed for the cheques in the
Court of Mumbai as well as in Ahmedabad against
his brother, and on adjournments, his brother as
well as Chhaganbhai, the President attended the
Court. The complainant was staying along with
deceased brother. Prior to the case at Mumbai,
the notice was received by his brother who had
replied the notice. The witness does not have
the copy of the reply. The case was filed six
months prior to the death of his brother. The
complainant affirmed that his brother had not
filed any case against accused no.1 prior to his
death, nor any complaint has been filed from the
date of consuming poison till his death. Prior
to the death of his brother, the police has
recorded the statement of the complainant. He
denied the suggestion that his brother and the
President - Chhaganbhai had taken money of
Rs.1,25,000/- from the Shroff at Ahmedabad by
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giving a cheque. The complainant affirmed that
the time period between the case filed at Mumbai
and the date of his death was one and a half
years. He also affirmed that after the case at
Mumbai, his brother, Chhaganbhai, Dahyabhai and
the lawyer, four of them had gone to Mumbai. He
denied the suggestion that his brother had taken
a writing from accused no.2 after the case was
filed. A suggestion was raised that his brother
died not because of the tension owing to the
cheque, but because of the mental illness, which
the complainant denied. He had given the copy of
the Resolution passed by the society to the
police and affirmed that the Resolution was not
passed in his presence, nor does it bears his
signature. The complainant also affirmed that
his brother had given the cheque to accused
no.2-Dahyabhai.
15. The case against the accused was proceeded under
Section 306 of IPC, where the offence is under
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the heading of abetment of suicide, along with
Sections 406 and 420 of IPC for criminal breach
of trust and cheating and dishonestly inducing
delivery of property in criminal conspiracy to
be considered under Section 120B IPC. Section
114 of IPC was also invoked, which refers to
abettor being present when offence is committed.
16. Section 114 of IPC is prescribed with reference
to any person, who is absent would be liable to
be punished, as an abettor is present, when the
act or offence for which he would be punishable
in consequences the abetment is committed, he
shall be deemed to have committed such act or
offence. Section 306 of IPC for the abetment of
suicide has two basic ingredients i.e. suicidal
death and the abetment thereof. The Hon'ble
Supreme Court in Gurucharan Singh v. State of
Punjab, (2017) 1 SCC 433 has expressed the view
that in order to convict a person under Section
306 of IPC, there has to be a clear mens rea to
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commit an offence and that there ought to be an
active or direct act leading the deceased to
commit suicide, being left with no option.
17. In Rajesh v. State of Haryana, (2020) 15 SCC
359, the Hon'ble Court held that conviction
under Section 306 IPC is not sustainable with
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 compel the person to commit suicide.
18. Here, in the present case, the complainant had
clarified that the case of cheque against the
President and the deceased Secretary was filed
one and a half year prior to suicide. The case
was not only against the deceased, as a
Secretary of the Cooperative Society, it was
also against PW9 - Chhaganbhai Laljibhai Jadav.
The record shows that even accused no.1-
Bharatbhai Chimlani was joined as accused in the
said criminal proceedings under Section 138 of
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the Negotiable Instruments Act, 1881.
19. In Gurucharan's case (supra), while reproducing
the Section, the Hon'ble Supreme Court has
clarified the offence of abetment for the
commission of suicide predicating existence of
live link or nexus between the two. Abetment
being the propelling positive factor. It has
been recorded in Paragraphs 20 and 21 as under:-
"20. Section 306 of the Code
prescribes the punishment for
abetment of suicide and is designed
thus:
"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."
21. It is thus manifest that the
offence punishable is one of
abetment of the commission of
suicide by any person, predicating
existence of a live link or nexus
between the two, abetment being the
propelling causative factor. The
basic ingredients of this provision
are suicidal death and the abetment
thereof. To constitute abetment, the
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intention and involvement of the
accused to aid or instigate the
commission of suicide is imperative.
Any severance or absence of any of
this constituents would militate
against this indictment. Remoteness
of the culpable acts or omissions
rooted in the intention of the
accused to actualize the suicide
would fall short as well of the
offence of abetment essential to
attract the punitive mandate of
Section 306 IPC. Contiguity,
continuity, culpability and
complicity of the indictable acts or
omission are the concomitant indices
of abetment. Section 306 IPC, thus
criminalises the sustained
incitement for suicide."
20. The prosecution, during the trial, had examined
son, father and widow of the deceased, as PW6,
PW8 and PW18. The witnesses so examined had
proposed to place on record certain writings of
the deceased. The son - Pravinbhai Kalubhai
Rathod as PW6 had stated that a letter of about
10 pages were written by his father and
thereafter, he consumed poisonous medicine.
Here, it is required to be recorded that the
complainant does not refer to the medicine
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consumed by his brother as poisonous. The son as
PW6 stated that his father consumed medicine
because he had given blank cheque of the Mandli.
PW6 was playing cricket in the afternoon. He had
come home to drink water, at that time, he had
seen his father in the house vomiting and
therefore, he had called his grand father and
others, and took father to Limdi hospital and
thereafter, to the hospital of Dr. Lakum Shah at
Surendranagar, where he remained admitted for 6-
7 days and thereafter, died. The witness stated
that since his father had given blank cheque to
accused no.1 - Bharat Parsottam for purchase of
yarn, as Bharat Parsottam had sold away the yarn
directly and the fault had come on his father
and being disturbed, he consumed poisonous
medicine. The witness stated that the day on
which his father had consumed medicine, no
complaint was filed. The witness has no
knowledge of date and year of giving the cheque
to accused no.1 - Bharatbhai. He is not the
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member of the society.
21. It appears that son has no personal knowledge
with regard to the sale of yarn. He further
affirmed that he has got it recorded in his
police statement that his father had given blank
cheques to accused no.1 - Bharatbhai. He also
affirmed that when his father was alive, a case
was filed under Section 138 of the Negotiable
Instruments Act against his father and
Chhaganbhai by yarn mill of Mumbai and also
affirmed that the Sharafi firm had filed a case
in the Court at Ahmedabad. The witness also
affirms of the legal notice by the advocate
prior to filing of the case. He has no knowledge
to the suggestion that his father had taken
Rs.1,25,000/- from the Sharafi firm of
Ahmedabad. The witness further affirmed that he
has not got it recorded before the police that
his father, prior to his death, has written a
letter consisting of 10 pages. The defence had
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tried to project that deceased was not mentally
well and was taking treatment from Dr. Laxman
Garg of Ahmedabad for the last 10 years, which
the son denied. However, the son affirmed that
no one had seen his father drinking medicine.
22. The evidence, which comes on record, was that
when the son entered the house in the afternoon,
he saw his father vomiting, while none had seen
his father consuming any medicine.
23. The Panchnama which was drawn on 27.12.2003
placed in evidence at Exh.27 was in connection
of Janvajog entry no.45/03 dated 26.12.2003. The
place is the house consisting of two rooms.
There was an open Varanda. Entering the house,
on the right side, a hand-woven shawl and a
cupboard was recorded in presence of the Panch,
and besides that, a wooden cot, whereupon it was
informed that the deceased had consumed
medicine. There were other domestic household
articles. It was recorded in the Panchnama that
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there was vomit on the mattress of the cot. The
police had not seized any article. The Panchnama
categorically recorded that in the room of 10 X
15, length and breadth even after checking, no
medicine was found.
24. The case of the prosecution was that the
deceased had consumed poisonous medicine, while
no such medicine was found in the room even
after the search. The son had seen the father
vomiting. Though the emesis was noted in the
mattress, the police had failed to recover the
same in presence of the Panchas to verify that
the deceased had thrown up after consuming
poison. Though the Panchnama was drawn
immediately on 27.12.2003, no washout of the
contents from gastric lavage was recovered of
the patient from the hospital by ASI-PW16 -
Dhirajlal Gangarambhai Parmar who was on duty on
26.12.2003 at R.R. Hospital, Limdi as was
deputed by a written order by PSO. The
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instruction was that Kalubhai Punjabhai, aged
about 48 years, resident of Shiyani had consumed
poison and was in an unconscious state and
therefore, ASI was ordered to undertake further
proceedings. ASI visited the hospital, since the
victim was in an unconscious state, he met the
son - Pravin Kalubhai, aged 23 years and
recorded his statement who had put the signature
in the presence of ASI on the statement and the
witness stated that the documents were forwarded
to Limdi Police Station for the proceedings. The
statement of the son was produced in evidence at
Exh.50, which is dated 26.12.2003. The ASI
affirmed that according to the statement, no
complaint was filed against the accused.
25. The ASI was ordered to undertake necessary
proceedings on visiting the hospital, inspite of
that, he had not thought fit to even collect the
sample of the vomit, nor had demanded the
contents of lavage of the victim from Dr. Lakum-
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PW14. While Dr. Lakum, in his deposition, has
categorically stated that the victim had
consumed poisonous substance and for that
reason, was unconscious. The victim was kept
under ventilation in his hospital. 'PAM
Injection' and antibiotics medicines were given.
Perforation was made in the neck and
tracheostomy was done. Till his death, he was in
unconscious position. Dr. Lakum has produced a
certificate dated 23.3.2005 at Exh.47. The
certificate reads as under:-
"This is to certify that I have
admitted Kalubhai Punjabhai Rathod
on dt.26/12/03 at 7.00 PM and was
expired on dt.4/1/04 at 1.30 PM.
He was treated primarily at Limdi
Govt Hospital and transferred here.
He was unconscious during admission.
Treated with atropine+PAM+ventilator
& symptomatic treatment.
He was send to postmortem at Govt
hospital, Surendranagar."
26. Unfortunately, the Doctor has not produced the
treatment papers.
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27. PAM injection, which contains the active
ingredient pralidoxime, is an antidote primarily
used to treat poisoning caused by
organophosphate pesticides and chemicals
(including nerve agents). It is often used in
combination with another medicine called
atropine. The certificate Exh.47 is not the one
which was issued during the period of
hospitalization which, as per his deposition,
was 26.12.2003 to 4.1.2004. In the cross-
examination, the Doctor affirmed that the
relative had not informed him the reason of
Kalubhai consuming poison. The description of
the PAM injection in milligrams would explain
the purpose of the use for the treatment. The
treatment papers would have become very obvious
documents when the postmortem report disclosing
the cause of death as per the FSL report dated
9.6.2005 received by the Chief Medical Officer,
Surendranagar as was handed over by Police Sub-
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Inspector, Limdi on 31.8.2005, records, no
poison could be detected by Ext. No.I and 2-30,
which were bottles for viscera examination. The
cause of death is "Cardio respiratory failure
due to O.P. poisoning which could not be
detected by F.S.L." The cardio respiratory
failure was considered because of
organophosphate poisoning. However, the same
could not be detected by the FSL report.
28. The FSL report is at Exh.58, wherein the
Scientific Officer, Forensic Science Laboratory,
Junagadh has very clearly stated in the analysis
conclusion that they had not found the presence
of chemical poisoning in sample Marks-1 and 2.
The Medical Officer - PW17 - Dr. Kanubhai Keshav
Vasani is the person who has conducted the
postmortem at Gandhi Hospital, Surendranagar.
The hospital has received dead body along with
police yadi and the original letters, which were
produced at Exhs.53 and 54, the death form and
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the inquest panchnama Exhs.55 and 56. The body
was identified by the younger brother-Valjibhai
Pujabhai.
29. While conducting the autopsy, the Doctor had not
found presence of any liquid in the nose or
ears, except the tracheostomy cut, the Doctor
had not seen any external injury. The Doctor, on
internal examination, had found the lungs as
enlarged, while other organs as head, brain,
skull, chest, windpipe, pericardium of the
heart, veins, stomach and the food pipe were
found normal. In Bottle-I, (i) stomach, and (ii)
Ct piece of small intestine and in Bottle-2, (i)
Ct piece of kidney, (ii) Ct piece of liver, and
(iii) Ct piece of spleen was taken for viscera,
which gets corroborated by document at Exh.59,
sent by the Chief Medical Officer,
Surendranagar.
30. The Doctor, in his deposition, opined that the
lungs and heart and the breathing stopped
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because of consumption of poison organic
phosphorous, which the Doctor stated that the
presence could be found from the FSL report.
However, in the cross-examination, the Doctor
stated that both the bottles, wherein he has
sent the viscera as Marks-1 and 2 did not find
any presence of poison and affirmed again that
the bottle Marks-1 and 2 of the viscera, did not
detect the poison. The opinion of the Doctor who
conducted the postmortem is not supported by the
FSL report. How the witness gave such an opinion
about consumption of organophosphorus poison
could not be found from the record of the case.
The treating Doctor - Dr. Lakum - PW14 had not
produced any treatment documents. The postmortem
report relied upon by Dr. Vasani shows all the
organs, as referred hereinabove, in a normal
condition.
31. Organophosphates are chemicals that feature in
agricultural products, such as herbicides,
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pesticides, and insecticides. Organophosphorus
poisons are derived from phosphoric acid and
form two series of compounds, (A) Alkyl
phosphates, and (B) Aryl phosphates. "The
Essentials of Forensic Medicine and Toxicology"
by Dr. K.S. Narayan Reddy, in Sixteenth Edition,
1997 deals with agricultural poison in Chapter-
25, which contains details about
Organophosphorus poisons. The description deals
with the postmortem appearance on Page-422 as
under:-
"Post-mortem Appearances:
Signs of asphyxia are found. The
face is congested and there is
cyanosis of the lips, fingers and
nose. Blood-stained forth is seen at
the mouth and nose. The stomach
contents may smell of kerosene. The
mucosa of the stomach is congested
with submucous petechial
haemorrhages. Respiratory passages
are congested and contain frothy
haemorrhagic exudate. The lungs show
gross congestion, excessive oedema
and subpleural petechiae. Heart is
sometimes soft and flabby. The
internal organs are congested. The
brain and meninges are congested.
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Petechial haemorrhages are present.
The cholinesterase in erythrocytes
and at myoneural junctions is below
normal. Organophosphorus can be
detected in putrefied bodies."
32. PW8-Punjabhai Devabhai Rathod, father of the
deceased when he came back home had seen many
people gathered near the house. The father
stated that there was stench from the mouth of
his son-Kalubhai. His another son - Pravin told
the witness that the deceased Kalubhai had made
efforts to speak, but failed. Kalubhai was
brought in Chhakado rickshaw to the dispensary
at Limdi since nothing could happen there,
therefore, he was taken to Surendranagar at
Lakumsha. The father had tried to produce the
letters stating to be written by his son,
produced at Mark-A. However, the same could not
be exhibited. The widow-Amarben was examined as
PW18. She stated that she along with her husband
and children were residing at Shiyani and were
doing hand weaving work. Her husband was
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Secretary in Jai Girnari Cooperative Society.
They have two sons and two daughters. She also
has two younger brothers-in-law who were staying
separately.
33. She stated that her parents-in-law were also
earlier residing separately. The President of
the society was Chhaganbhai Laljibhai Jadav. The
wife could not state about the physical
condition of her husband after the consumption
of poison. In her examination-in-chief, she had
relied upon a photocopy of the affidavit of the
accused no.2 - Dahyabhai Alubhai Solanki, which
was produced at Mark-C.
34. The widow, as PW18, has given the cause for
suicide as the scam of Rs.8,00,000/-. The
witness stated that accused no.2 as a broker
would purchase yarn for the society and
according to her, in that, there was a scam of
the money. Her husband had informed her that the
debt of Rs.8,00,000/- had come on his head. The
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widow stated that the society was dealing in
yarns and weaving. The society used to give
cheques to accused no.2 - Dahyabhai and accused
no.2 used to give it to accused no.1-Bharatbhai.
The witness stated that both of them had not
delivered yarn to the society and had usurp the
money. The notice had come from Mumbai Court,
her husband was not in a position to pay
Rs.8,00,000/-. The President had informed that
Dahyabhai and Bharatbhai have cheated her
husband got offended and drank poisonous
medicine.
35. The witness stated that she was illiterate and
could not read. She was member of the society.
She affirmed that one year prior to the death of
her husband, the notice had come from Mumbai and
also affirmed that her husband as well as
Chhaganbhai used to attend the Court.
36. According to the father-PW8, his son had taken
this step because of the Mandli. The father had
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not stated of any cheating by the accused, nor
has he stated about Court cases. The son - PW6
is not the member of the society. According to
son, his father had given blank cheques to
Bharat Parsottam (accused no.1) for the purchase
of yarn. The son stated that accused no.1
directly sold the yarn and the blame came on his
father and since he was feeling tensed, father
drank poisonous medicine. The cause for the
suicide are different for all the family members
referred hereinabove, however, all of them
linked the issuance of cheque with the cheating
by accused.
37. The prosecution, during the trial, examined the
driver of the Eicher of N.J. Rana. PW13-
Dharmendra Jadeja who stated that they had to
transport as per the Vardhi given by his
employer. He would not maintain any record of
such an order, while such record would be with
his employer. He stated that many a times, he
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had delivered goods from Arunoday Mills in
accordance to the 'bilty' to the person who
would be the receiver. There had been no
occasion to go to Village Shiyani. In cross, he
stated that the people of Devki would load goods
in the vehicle.
38. PW19-Mahendrakumar Bhimjibhai Joshi was in Morbi
Arunoday Mills looking after work of excise and
dispatch. He worked from 3.4.1995 to 31.10.2006.
According to him, from their factory, the
hosiery yarn was dispatched to Jai Girnari
Cooperative Society, Shiyani by three different
invoices. He stated that the invoice would
disclose the details of the truck in which the
goods were sent. He stated that Arunoday Mill
was sealed on 17.10.2006 and the records were
with the IDBI Bank since the Company was
declared as Sick unit. He had produced the
letter Exh.62 of the Managing Director - K.K.
Sheth dated 14.11.2006. The witness had produced
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jointly vide Mark-B three cheques and Bank
documents in connection with the bill of the
Mandli and even two letters and three invoices
and since it was secondary evidence, it could
not be exhibited. The witness stated that the
agent of their mill was Devika Hosiery and that
the goods would travel through them to the
places, where the bills were directed.
39. The evidence of this witness-PW19 becomes
relevant as it does not say that the orders for
the goods were not placed by the accused. Copies
of three cheques and Bank documents as well as
the communication of the Mandli and three
invoices were placed at Mark-B. The
communication of the Mandli - Jai Girnari
Hathshal Vankar Cooperative Soci. Ltd., Shiyani,
though could not be exhibited, refers to the
bills as well as the cheques of Dena Bank,
Maskati Market Branch with the amount of the
individual cheque. As per the bills dated
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26.12.2003, cheque no.294306 for the amount
Rs.4,08,152.40, cheque no.294308 for the amount
of Rs.1,27,548.00, cheque no.294311 for the
amount of Rs.2,04,077.20 were issued, a copy of
the same were produced at Mark-B along with
three invoices of Arunoday Mills Ltd., which
were dated 9.8.2002, 12.8.2002 and 29.8.2002.
According to the witness - PW19, their main
agent was Devika Hosiery.
40. PW21-Tejasbhai Virendrabhai Shah stated that he
used to run his business on Ashram road,
Ahmedabad in the name of Devika Hosieries and
Tejas Hosieries. As per his deposition, accused-
Bharatbhai used to regularly purchase cotton
yarn and they are the agent of Arunoday Mill,
Morbi. As soon as order was given in "Kha" form
with the cheque, they used to send the order to
the mill and the mill would dispatch the goods
to the address given by Bharatbhai (accused
no.1). As per the witness, four years prior, the
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transaction had taken place. The deposition
notes that accused - Bharatbhai's godown was in
the compound of Naroda Bharatkhand Mill, where
they used to dispatch the goods and the goods
would go to the person named in "Kha" form.
According to the witness, accused-Bharatbhai
used to purchase goods for Shramyogi Sahakari
Mandli, Jai Girnari Sahakari Mandli, Shiyani,
Poonam Textiles, Ahmedabad. In the cross-
examination, it has been recorded that the
person from the concerned society would come for
the delivery of the goods. The witness has to
sell the goods as per the rate authorized by the
mill and the goods would be directly dispatched
by the mill. The deposition of this witness does
not suggest that no goods were sent as per the
order, the deposition states that he is the
agent of Arunoday Mill. The necessary documents
with regard to supply of goods and the invoices
as well as the cheque with full details were
jointly produced at Mark-B.
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41. The case under the Negotiable Instruments Act,
1881 was filed against the deceased, PW9 as well
as accused no.1-Bharatbhai Parsottambhai
Chimnani by the Shroff firm while nothing is
coming on record of Criminal Case registered by
Arunoday Mill, which was declared sick unit.
42. The President of Jai Girnari Hathshal Vankar Co.
Operative Soci. Ltd., Shiyani, Chhaganbhai
Laljibhai Jadav was examined as PW9. He is also
the person against whom Criminal Case was filed.
He being the President and the deceased being
the Secretary had jointly issued signed cheques
for purchase of yarn. His deposition itself
suggest that the total administration of the
society was under him and deceased's signature.
According to him, when the deceased had consumed
poison he was at Village Paliyad. He stated that
the yarn of their society was drawn away by
accused no.1 - Bharatbhai Parsottambhai. The
Mumbai Police had come with the summons in
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connection with the mill from where the yarn was
taken. According to the President, under such
distress, the deceased had consumed poison. He
identified accused no.1 in the Court. As per his
evidence in the deposition, the Bank account of
the society was at Ahmedabad. Blank cheques were
given to the accused no.2 - Dahyabhai Alubhai
for the purchase of yarn. Those cheques got
returned and the yarn was sold away. Thereafter,
the mill person had filed a case against them
and since the police has come, under that shock,
witness stated that Kalubhai consumed poison.
The blank cheques were of Dena Bank, Ahmedabad.
In the examination-in-chief, the witness has not
made any allegation of siphoning of money by any
of the accused. The witness, in the cross-
examination, has stated about the Resolution
passed by the society for the purchase of yarn
and accused no.2 - Dahyabhai Alubhai was
appointed for that purchase for the society. He
affirmed that there was no resolution for
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accused no.1 - Bharatbhai to purchase yarn for
the society and the cheques were to be given to
accused no.2 - Dahyabhai Alubhai.
43. The analysis of the evidence of the President
would suggest that the authority was given to
accused no.2 to purchase the yarn and even the
cheques were handed over to accused no.2.
44. Dilipbhai Kantilal Bhandari-PW20 had filed
Criminal Case no.1719 of 2003 in the
Metropolitan Magistrate Court, Ahmedabad against
accused no.1-Bharatbhai Parsottambhai Chimnani
of the present matter, joining the President of
the society - PW9 - C.L. Jadav and the deceased-
K.P. Rathod as accused nos.1, 2 and 3
respectively.
45. PW20-Dilipbhai Kantilal Bhandari had stated that
he is having the business as Shroff and
Commission Agent in the name of Shukan
Corporation, Ahmedabad. According to his
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evidence, he knows accused no.1-Bharatbhai
Parsottam Chimnani, but stated that he had no
transaction with him. According to PW20,
deceased and PW9, i.e. the Secretary and the
President of the Mandli had come to him for
discounting cheque. They had given the reference
of Bharatbhai Chimnani (accused no.1). The
cheque was of Rs.1,25,000/-. The witness does
not remember the cheque number, the name of the
Bank or the date. He stated that after taking
the exchange value, he had given the amount of
the cheque, and as per the date, the cheque was
deposited in the Bank, but it got returned. The
witness has further stated that for their
business transaction, they have maintained the
vouchers and the notes could be on the voucher
regarding the transaction. He had filed the
complaint because of the cheque getting bounced,
and after the death of Kalubhai, he had
withdrawn the case. He identified accused no.1 -
Bharatbhai in the Court. He had denied of any
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transaction with accused no.1 with regard to the
cheque amount of Rs.1,25,000/-. The witness was
confronted with the police statement, he denied
of giving any such statement before the police
that accused no.1 as per his requirement after
giving the commission would give advance cheque
and would take the money and in the present
matter too, he had taken the advance cheque for
the money of Rs.1,25,000/- for which had taken
the commission. The witness also denied of the
cheque no.294312 dated 1.10.2002 of Dena Bank,
Maskati Market with the signature of C.L. Jadav
(President) and K.P. Rathod, (Secretary) of Jai
Girnari Hathshal Vankar Co. Operative Soci.
Ltd., Shiyani being cross-bearer cheque taken by
him. Witness stated that the President and the
Secretary in the period of 09/2002 had taken the
amount of Rs.1,25,000/- and had assured him to
pay the money on the matured date, but while
depositing the cheque in the Bank on 28.2.2003,
it got returned with an endorsement "opening
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balance insufficient". Witness denied that
through his lawyer, Dilipbhai Songhela, he had
filed case under Sections 406 and 420 of the IPC
against Bharatbhai Parsottambhai Chimnani as the
main accused or as an abettor - K.K. Rathod and
C.L. Jadav. He denied the suggestion that the
accused no.1 - Bharatbhai Parsottambhai Chimnani
had taken the amount of Rs.1,25,000/- and given
him a cheque. According to him, he had given the
amount of the cheque to deceased Kalubhai and
that Criminal Case no.17 of 2003 was filed in
the Metropolitan Magistrate Court, Ahmedabad and
after death of Kalubhai, he had withdrawn the
case on 22.8.2006.
46. The withdrawal purshis was placed on record at
Mark-C. The President - Chhaganbhai Laljibhai
Jadav has denied the suggestion that the
deceased Kalubhai had taken the money from the
Shroff at Ahmedabad and affirmed that the Shroff
had withdrawn the case on the death of Kalubhai.
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President stated that he has not got it recorded
in his statement before the police that
Bharatbhai Parsottambhai (accused no.1) had
taken away the yarn from the mill and therefore,
the person at Mumbai had filed the case and
because of that, Kalubhai had consumed poison.
He has also denied of stating in his statement
of giving the cheques through Dahyabhai (accused
no.2). He denied the suggestion that the accused
no.2 stood besides them in defending the case at
Mumbai. In the cross-examination by the advocate
of accused no.2, the President affirmed that he
himself had gone to Ahmedabad Sharafi firm and
had brought the money, while denied the
suggestion that he himself has made the
purchase, but to ensure that no case could be
filed against him, a false complaint has been
lodged and denied the suggestion that the
deceased died because of his own mental illness.
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47. PW22 - Police Inspector, Jivabhai Khimabhai
Bhagora had received the order for investigation
on 8.1.2004 from DSP. The investigation was
taken over from PSI, S.M. Varotariya.
Thereafter, he recorded the statement of the
President - Chhaganbhai Laljibhai of Girnari
Sahakari Mandli and of Amarben, RAtilal,
Manjibhai, Kanuben Manjibhai, Valjibhai
Punjabhai, Babubhai Punjabhai. According to
PW22, the witnesses were corroborating the
complaint. Since he had to attend the training,
the investigation was handed over to PSI, B.M.
Tank-PW24. In the cross-examination PW22,
affirmed that he had not seized any documents
against accused no.1 Bharatbhai from the
society. He had visited Jai Girnari Cooperative
Society. According to him, during his
investigation, it was found that accused no.2
had misused the cheque. The extent of his
investigation has been stated. However, the
police witness could not clarify as to how
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accused no.2 had misused the cheques.
48. PW24 - Police Inspector - Bharatsinh Madhavsinh
Tank on 27.01.2005 received the investigation on
the order of S.P. from PW22. After he took the
charge, he arrested the accused and had prayed
for remand of the accused to seize the amount,
however, the application was rejected.
Thereafter, he had visited Morbi Arunoday Mill,
on the documents presented by the accused's
father. There in the mill he recorded the
statement of Mahendra Joshi. The communication
by Arunoday Mill through Devki Hosieries,
Ahmedabad and the photocopy of the document
regarding the dispatch of the goods were kept in
investigation. From witness Chhaganbhai
Laljibhai of Jai Girnari Cooperative Society,
the Investigating Officer took the copy of the
stock statement of the society. Thereafter, he
visited the owner - Tejasbhai Shah of Devki
Hosieries to record his statement and also
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recorded the statement of Bhanvarlal who
according to the Investigating Officer was the
person who had unloaded the goods at the godown,
purchased by Bharatbhai Parsottambhai Chimnani-
accused no.1 from Arunoday Mills. The
Investigating Officer had also recorded the
statement of the driver who had taken the goods.
The Resolution no.5 for the purchase of yarn
passed by Jai Girnari Cooperative Society was
produced in evidence at Exh.68, which the
Investigating Officer has procured. The FSL
report is at Exh.58. The evidence with regard to
the viscera taken during the postmortem of the
deceased was also recorded.
49. The Investigating Officer has also produced bill
Mark-B of the goods which were dispatched from
Arunoday Mill and the invoices on the letter pad
of the society, photo copy of the documents
regarding the cheque, which had been seized
during the investigation.
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50. In the cross-examination, the Public Prosecutor
had demanded to exhibit Mark-B the photocopy of
documents, which consisted 10 pages, which was
stated to be taken from the original record of
the mill, which had gone in bankrupcy, on the
ground that the originals were in possession of
the Bank. The said request was rejected by the
learned Trial Court Judge, nor the income
expense stock register photocopy produced at
Mark-B was exhibited. The communication between
Arunoday Mill, Tejas Hosiery, Devika Hosiery
were produced at Marks-E and F.
51. In the cross-examination, the Investigating
Officer could state that he had not seized any
document against accused no.1-Bharatbhai from
the society and that prior to 7th i.e. the date
of the complaint, no complaint was filed in
connection with the offence. The witness stated
that A.D. complaint was filed. He further stated
that he had not seen the Resolution book of the
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Company and has also stated that no evidence was
received of any ill intention of accused no.2
and that during the course of investigation,
nothing has come on record of any benefit
received by the accused no.2, but denied the
suggestion that there was no evidence against
the accused no.1 and denied the suggestion that
both President and Secretary personally had gone
for the purchase.
52. The evidence of the Investigating Officer would
show that the documents, which were procured and
the statements were recorded, were with regard
to the transaction of the society with Devki
Hosiery and Arunoday Mill. The Investigating
Officer had not procured other Resolutions of
the society to verify the earlier practice of
the society for the purchase of yarn. Whether
accused no.2 was often handed over the blank
cheques for purchasing yarn could have been
reflected from such documents. The Investigating
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Officer appears to have concentrated only on
Resolution no.5 and the transaction, which has
been alleged. The connection of accused no.2
with that of accused no.1 and both being in
conspiracy to cheat the society has not been
proved. The financial health of the society
appears to have been weak, since the evidence of
the Shroff - PW20 suggests that the deceased had
come to exchange the cheque and the evidence of
the President-PW9 would rather clarify that it
was he the President who had personally gone to
take the money from the Sharafi firm. The amount
involved of the cheque is Rs.1,25,000/- for
which case under Section 138 of the Negotiable
Instruments Act, 1881 was filed by PW20 and
after the death of Kalubhai, Criminal Case
no.1719 of 2003 came to be withdrawn from the
Court of Metropolitan Magistrate, Ahmedabad. As
laid down in the case of Hridaya Ranjan Prasad
Verma (supra) relied upon by learned advocate
Ms. Poonam Maheta, cheating requires dishonest
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intention from the very inception. It has been
noted as under in Paragraphs 14 and 15:-
"14. On a reading of the section it
is manifest that in the definition
there are set forth two separate
classes of acts which the person
deceived may be induced to do. in
the first place he may be induced
fraudulently or dishonestly to
deliver any property to any person.
The second class of acts set forth
in the section is the doing or
omitting to do anything which the
person deceived would not do or omit
to do if he were not so deceived. In
the first class of cases the
inducing must be fraudulent or
dishonest. In the second class of
acts, the inducing must be
intentional but not fraudulent or
dishonest.
15. In determining the question it
has to be kept in mind that the
distinction between mere breach of
contract and the offence of cheating
is a fine one. It depends upon the
intention of the accused at the time
to inducement which may be judged by
his subsequent conduct but for this
subsequent conduct is not the sole
test. Mere breach of contract cannot
give rise to criminal prosecution
for cheating unless fraudulent or
dishonest intention is shown right
at the beginning of the transaction,
that is the time when the offence is
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said to have been committed.
Therefore it is the intention which
is the gist of the offence. To hold
a person guilty of cheating it is
necessary to show that he had
fraudulent or dishonest intention at
the time of making the promise. From
his mere failure to keep up promise
subsequently such a culpable
intention right at the beginning,
that is, when he made the promise
cannot be presumed."
53. For the offence under the criminal breach of
trust, the entrustment of property and dishonest
misappropriation are the elements to be proved
as noted in the case of State of Kerala v. A.
Pareed Pillai (supra), where the Hon'ble Supreme
Court has observed in Paragraph 16 that ".....
It may be that the accused could not keep up the
delivery of the oil tins to the railways and no
tins could be despatched in respect of the said
thirteen railway receipts but that fact can give
rise only to a civil liability of the accused.
It is not sufficient to fasten a criminal
liability on them. To hold a person guilty of
the offence of cheating, it has to be shown that
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his intention was dishonest at the time of
making the promise. Such a dishonest intention
cannot be inferred from the mere fact that he
could not subsequently fulfill the promise."
54. The prosecution has failed to prove any
dishonest intention of accused no.2, while
receiving the blank cheques. It was by
resolution of the society the decision was taken
to hand over the responsibility to purchase
yarns. As the price of the yarns remain
fluctuating, so blank cheques were handed over
to accused no.2.
55. The prosecution here in this matter has also
failed to prove that the suicide was owing to
the consumption of organophosphate poison. The
medical evidence of the treating Doctor has not
proved the gastric lavage. The FSL report does
not prove the presence of poison on the
examination of viscera. The deceased was alive
for about nine days. His attempt to commit
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suicide on 26.12.2003, could have been the
ground to lodge a complaint against him, had the
constitutional validity of Section 309 IPC could
not have been put to test.
56. In the case of Gangula Mohan Reddy v. State of
Andhra Pradesh, (2010) 1 SCC 750, the Hon'ble
Supreme Court has dealt with the concept
"suicide" and even with the "attempt" to commit
suicide. The legality and correctness of Section
309 of IPC punishing the attempt to commit
suicide have always been the subject matter of
discussion from decades. Law Commission of India
during 1970-71 in the 42nd Report had recommended
the relation of offence of committing suicide.
In the case of Maruti Shripati Dubal v. State of
Maharashtra, 1986 Mh.L.J. 913 : 1987 Cr.L.J.
743, the Bombay High Court had declared Section
309 of IPC as ultra vires to Articles 14 and 21
of the Constitution of India. The judgment of
Bombay High Court was challenged before the
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Hon'ble Supreme Court and in State of
Maharashtra v. Maruti Shripati Dubal, (1996) 6
SCC 42, considering the decision of the
Constitution Bench in the case of Gian Kaur v.
State of Punjab, (1996) 2 SCC 648, a Five Judge
Bench decision observed that Section 309 IPC
does not offend Article 14 because of the
inbuilt flexibility in Section 309 IPC.
57. In P. Rathinam v. Union of India, (1994) 3 SCC
394, the judgment of the Hon'ble Supreme Court
held Section 309 not violative of Article 14 on
grounds of attempt to suicide being undefined
and of treating all attempts to commit suicide
by the same measure and considered the
punishment for attempt to commit suicide
violative of Article 21 and hence held, the
provision of Section 309 IPC as void. It was in
Paragraphs 109 and 110 observed as under:-
"109. On the basis of what has been
held and noted above, we state that
Section 309 of the Penal Code
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deserves to be effaced from the
statute book to humanise our penal
laws. It is a cruel and irrational
provision, and it may result in
punishing a person again (doubly)
who has suffered agony and would be
undergoing ignominy because of his
failure to commit suicide. Then an
act of suicide cannot be said to be
against religion, morality or public
policy, and an act of attempted
suicide has no baneful effect on
society. Further, suicide or attempt
to commit it causes no harm to
others, because of which State's
interference with the personal
liberty of the persons concerned is
not called for.
110. We, therefore, hold that
Section 309 violates Article 21, and
so, it is void. May it be said that
the view taken by us would advance
not only the cause of humanisation,
which is a need of the day, but of
globalisation also, as by effacing
Section 309, we would be attuning
this part of our criminal law to the
global wavelength.
58. P. Rathinam (supra), the referred judgment was
overruled later by Hon'ble Supreme Court in the
case of Gian Kaur (supra), where the Hon'ble
Supreme Court was considering the conviction of
the appellant, assailed inter-alia on the ground
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that Section 306 IPC is unconstitutional.
59. Despite overruling, the Government decided to
delete Section 309 from the statute book
recognizing it as barbaric and irrational
provision. The deletion of Section 309 is being
implemented through the Bharatiya Nyaya Sanhita,
from the Indian Penal Code. In Common Cause (a
registered society) v. Union of India & Anr.,
(2018) 5 SCC 1, the Hon'ble Supreme Court had
recommended the Parliament to consider
decriminalizing attempt to suicide saying the
provision had become anachronistic while giving
guidelines to passive euthanasia. Common Cause,
(2018) 5 SCC 1 found modification and
clarification of the directions to the
guidelines and safeguards laid down. The
petitioner, Indian Society of Critical Care
Medicine sought clarification of the judgment,
which was reported as Common Cause (a registered
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society) v. Union of India, Indian Society of
Critical Care Medicine, (2023) 14 SCC 131.
60. A reference is required to be made, that under
Section 226 of Bharatiya Nyaya Sanhita, 2023,
'Attempt to commit suicide to compel or restrain
exercise of lawful power,' is being made
punishable act. So an attempt to commit suicide
remains a punishable offence if it is made to
stop a public servant from exercising lawful
power.
61. The Mental Healthcare Act, 2017, which came into
force in 2018 tries to decriminalize suicide.
Section 115 of the Mental Healthcare Act, 2017
has made the following provision:-
"115. Presumption of severe
stress in case of attempt to commit
suicide.--
(1) Notwithstanding anything
contained in section 309 of the
Indian Penal Code (45 of 1860) any
person who attempts to commit
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suicide shall be presumed, unless
proved otherwise, to have severe
stress and shall not be tried and
punished under the said Code.
(2) The appropriate Government shall
have a duty to provide care,
treatment and rehabilitation to a
person, having severe stress and who
attempted to commit suicide, to
reduce the risk of recurrence of
attempt to commit suicide."
61.1 Section 115, thus, states that any person who
attempts to commit suicide unless otherwise
proved shall be presumed to have serious stress
and shall not be tried and punished under
Section 309 IPC.
61.2 Thus, Section 115 provides that Section 309 IPC
could be used to punish attempted suicide only
as an exception. The Mental Healthcare Act, 2017
by way of provision of Section 18 gives right to
access to mental health care. Mental illness has
been described under Section 2(s) as under:-
"2(s) "mental illness" means a
substantial disorder of thinking,
mood, perception, orientation or
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memory that grossly impairs
judgment, behaviour, capacity to
recognise reality or ability to meet
the ordinary demands of life, mental
conditions associated with the abuse
of alcohol and drugs, but does not
include mental retardation which is
a condition of arrested or
incomplete development of mind of a
person, specially characterised by
subnormality of intelligence;"
62. The complainant brother-PW1, the widow of
deceased-PW18, as well as the President of the
Mandli-PW9, the Committee members-PW10, PW11.
PW12 who is the Committee member as well as the
brother of deceased, all in one voice has
deposed that the deceased Kalubhai was under
stress. PW9-President specifies that after
receiving summons from Mumbai police, deceased
was in mental stress. Section 115 of the Mental
Healthcare Act, 2017 enjoins upon the Court to
presume serious stress in case of attempt to
commit suicide.
63. Here, in the present case, the death has not
occurred immediately. On 26.12.2003, Kalubhai
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consumed alleged poisonous medicine. He died on
4.1.2004 during the course of treatment at Dr.
Lakum's hospital. The complaint was filed on
7.1.2004. Sub-section(2) of Section 115 of the
Mental Healthcare Act, 2017 mandates the
Government to provide care, treatment and
rehabilitation to the person having serious
stress and who attempted to commit suicide. Dr.
Lakum could not prove that deceased Kalubhai had
actually consumed pesticide, which was named by
the P.M. Doctor-PW17-Kanubhai Vasani as
organophosphate. The police had not found any
such pesticide from the place of incident. The
viscera does not detect any poison. It may have
happened that deceased may have been suffering
from his own physical weakness or the effect on
the physical body may have been because of the
mental stress. Actual consumption of the poison
by deceased has not been proved by the
prosecution.
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64. Death by suicide as mentioned hereinabove cannot
become a criminal act since the person
attempting an act of suicide would not survive
to face any action for the attempt to commit
suicide.
65. While answering the validity of Section 306 IPC
in Gian Kaur (supra), it has been observed in
Paragraphs 37 and 38 as under:-
"37. Section 306 prescribes
punishment for "abetment of suicide"
while Section 309 punishes "attempt
to commit suicide". Abetment of
attempt to commit suicide is outside
the purview of Section 306 and it is
punishable only under Section 309
read with Section 107 IPC. In
certain other jurisdictions, even
though attempt to commit suicide is
not a penal offence yet the abettor
is made punishable. The provision
there, provides for the punishment
of abetment of suicide as well as
abetment of attempt to commit
suicide. Thus, even where the
punishment for attempt to commit
suicide is not considered desirable,
its abetment is made a penal
offence. In other words assisted
suicide and assisted attempt to
commit suicide are made punishable
for cogent reasons in the interest
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of society. Such a provision is
considered desirable to also prevent
the danger inherent in the absence
of such a penal provision. The
arguments which are advanced to
support the plea for not punishing
the person who attempts to commit
suicide do not avail for the benefit
of another person assisting in the
commission of suicide or in its
attempt. This plea was strongly
advanced by the learned Attorney
General as well as the amicus curiae
Shri Nariman and Shri Sorabjee. We
find great force in the submission.
38. The abettor is viewed
differently, inasmuch as he abets
the extinguishment of life of
another person, and punishment of
abetment is considered necessary to
prevent abuse of the absence of such
a penal provision."
The law makes abetment for the commission of
suicide as penal offence. Section 107 IPC
defines abetment of a thing.
66. In the case of Bhaveshbhai Jayantilal Modi v.
State of Gujarat, rendered in Criminal Misc.
Application no.22562 of 2022, it has been
observed as under:-
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[9.1] Section 306 of IPC penalises
abetment of suicide. It is a unique
legal phenomenon in the Indian Penal
Code that the only act, the attempt
of which along will become an
offence. In order to invoke the
provisions of Section 306 of Indian
Penal Code, section 107 of Indian
Penal Code is required to be
satisfied by the prosecution.
Section 107 of the Indian Penal Code
includes the acts, omissions and
commissions and also instigation
with the deliberation and intention.
Instigation consists in actively
suggesting and stimulating another
to act. It may be personal or
through a third party. Instigation
necessarily indicates some active
suggestion, or support or
stimulation to the commission of the
act itself. There has to be a
reasonable certainty in regard to
the meaning of the words used by the
'inciter' in order to judge whether
or not there was an incitement, but
it is not necessary, in law, to
prove the actual words used for the
incitement. The word 'abetment'
includes clause-3 namely 'abetment
by aiding'. The third way of
abetting is by intentionally aiding
the doing of a thing by an act or
illegal omission. In abetment by
'aid', it is not the intention to
aid the commission of crime, that is
punished, but the fact that
something is done or not done,
whereby the commission of a crime is
rendered more easy. In instigation,
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the criminal intention is punished;
in conspiracy, the intention plus
some act; in aid, the act itself.
Reading Cl. 3 of the section with
Expl.2, which goes with it, for
abetment by aid, four things must be
combined:
(i) aid must be actually afforded by
means of an 'act or illegal
omission';
(ii) there must be an intention to
aid thereby;
(iii) the commission of the offence
must be facilitated thereby; and
(iv) the act or omission must take
place either prior to, or at the
time of, the commission of the act
intended to be aided.
[10.1] The Hon'ble Supreme Court in
the case of Kishori Lal vs. State of
Madhy Pradesh reported in (2007)10
SCC 797 has held that instigation
literally means to provoke, incite,
urge on or bring about by persuasion
to do anything. Hon'ble Supreme
Court has noted that before a person
may be said to have abetted the
commission of suicide, he must have
played an active role by an act of
instigation or by doing certain act
to facilitate the commission of
suicide.
[10.2] In the case of S.S. Chheena
vs. Vijay Kumar Mahajan reported in
(2010)12 SCC 190, the Hon'ble
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Supreme Court observed as follows:―
"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 I.P.C. 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".
[11.2] Further, the question of mens
rea on the part of the accused in
such cases would be examined with
reference to the actual acts and
deeds of the accused and if the acts
and deeds are only of such nature
where the accused intended nothing
more than harassment or snap show of
anger, a particular case may fall
short of the offence of abetment of
suicide. However, if the accused
kept on irritating or annoying the
deceased by words or deeds until the
deceased reacted or was provoked, a
particular case may be that of
abetment of suicide. Such being the
matter of delicate analysis of human
behavior, each case is required to
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be examined on its own facts, while
taking note of all the surrounding
factors having bearing on the
actions and psyche of the accused
and the deceased. If the persons who
committed suicide had been
hypersensitive and the action of
accused is otherwise not ordinarily
expected to induce a similarly
circumstanced person to commit
suicide, it may not be safe to hold
the accused guilty of abetment of
suicide. Conviction under Section
306 IPC is not sustainable 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. In order to bring a
case within the purview of Section
306 IPC, there must be a case of
suicide and in the commission of the
said offence, the person who is said
to have abetted the commission of
suicide must have played an active
role by an act of instigation or by
doing certain act to facilitate the
commission of suicide. Therefore,
the act of abetment by the person
charged with the said offence must
be proved and established by the
prosecution before he could be
convicted under Section 306 I.P.C.
[11.4] It is apposite to refer to
the decision of the Hon'ble Supreme
Court in the case of Mariano Anto
Bruno vs. State reported in (2023)15
SCC 560, wherein in paragraph 45,
the Hon'ble Supreme Court observed
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thus:
"45. ... 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."
66.1 In the case of Kishori Lal v. State of M.P.
reported in (2007) 10 SCC 797, it was thus held
as under:
"6. Section 107 IPC defines abetment
of a thing. The offence of abetment
is a separate and distinct offence
provided in IPC. A person, abets the
doing of a thing when (1) he
instigates any person to do that
thing; or (2) engages with one or
more other persons in any conspiracy
for the doing of that thing; or (3)
intentionally aids, by act or
illegal omission, the doing of that
thing. These things are essential to
complete abetment as a crime. The
word "instigate" literally means to
provoke, incite, urge on or bring
about by persuasion to do any thing.
The abetment may be by instigation,
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conspiracy or intentional aid, as
provided in the three clauses of
Section 107. Section 109 provides
that if the act abetted is committed
in consequence of abetment and there
is no provision for the punishment
of such abetment, then the offender
is to be punished with the
punishment provided for the original
offence. "Abetted" in Section 109
means the specific offence abetted.
Therefore, the offence for the
abetment of which a person is
charged with the abetment is
normally linked with the proved
offence."
66.2 In the case of Gangula Mohan Reddy v. State of
A.P. reported in (2010) 1 SCC 750 it was held as
under:
"17. 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 this act must have been
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intended to push the deceased into
such a position that he committed
suicide."
66.3 In the case of Sanju @ Sanjay Singh Sengar v.
State of Madhya Pradesh, (2002) 5 SCC 371, it
has been observed 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 inadvisable 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 on the spur of the moment cannot
be taken to be uttered with mens
rea. It is in a fit of anger and
emotion. Secondly, the alleged
abusive words, said to have been
told to the deceased were on 25-7-
1998 ensued by a quarrel. The
deceased was found hanging on 27-7-
1998. Assuming that the deceased had
taken the abusive language
seriously, he had enough time in
between to think over and reflect
and, therefore, it cannot be said
that the abusive language, which had
been used by the appellant on 25-7-
1998 drove the deceased to commit
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suicide."
66.4 In the case of Chitresh Kumar Chopra v. State
(Govt. of NCT of Delhi), (2009) 16 SCC 605, it
is observed that to constitute 'instigation', a
person who instigates another has to provoke,
incite, urge or encourage the doing of an act by
the other by 'goading' or 'urging forward'. The
Court summed up the constituents of 'abetment'
as under:-
(i) the accused kept on irritating or annoying the
deceased by words, deeds or wilful omission or
conduct which may even be a wilful silence until
the deceased reacted or pushed or forced the
deceased by his deeds, words or wilful omission
or conduct to make the deceased move forward
more quickly in a forward direction; and
(ii) that the accused had the intention to provoke,
urge or encourage the deceased to commit suicide
while acting in the manner noted above.
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Undoubtedly, presence of mens rea is the
necessary concomitant of instigation.
66.5 Prakash v. State of Maharashtra, 2024 SCC Online
SC 3835 : 2024 INSC 1020 is a case, where Court
after analysing various decisions on the point
summed up the legal position 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."
66.6 In the aforesaid judgment, the Court referred to
its earlier decision in Sanju @ Sanjay Singh
Sengar (supra) and held that in a given case,
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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.
66.7 In the case of Ude Singh v. State of Haryana,
[(2019) 17 SCC 301], the Hon'ble Supreme Court
insisted for looking for cogent and convincing
proof of the act of incitement to the commission
of suicide, the Hon'ble Supreme Court has held
as under:
"16. In cases of alleged abetment of
suicide, there must be a proof of
direct or indirect act(s) of
incitement to the commission of
suicide. It could hardly be disputed
that the question of cause of a
suicide, particularly in the context
of an offence of abetment of
suicide, remains a vexed one,
involving multifaceted and complex
attributes of human behaviour and
responses/reactions. In the case of
accusation for abetment of suicide,
the court would be looking for
cogent and convincing proof of the
act(s) of incitement to the
commission of suicide. In the case
of suicide, mere allegation of
harassment of the deceased by
another person would not suffice
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unless there be such action on the
part of the accused which compels
the person to commit suicide; and
such an offending action ought to be
proximate to the time of occurrence.
Whether a person has abetted in the
commission of suicide by another or
not, could only be gathered from the
facts and circumstances of each
case.
16.1. For the purpose of finding out
if a person has abetted commission
of suicide by another, the
consideration would be if the
accused is guilty of the act of
instigation of the act of suicide.
As explained and reiterated by this
Court in the decisions above
referred, instigation means to goad,
urge forward, provoke, incite or
encourage to do an act. If the
persons who committed suicide had
been hypersensitive and the action
of the accused is otherwise not
ordinarily expected to induce a
similarly circumstanced person to
commit suicide, it may not be safe
to hold the accused guilty of
abetment of suicide. But, on the
other hand, if the accused by his
acts and by his continuous course of
conduct creates a situation which
leads the deceased perceiving no
other option except to commit
suicide, the case may fall within
the four-corners of Section 306 IPC.
If the accused plays an active role
in tarnishing the self-esteem and
self-respect of the victim, which
eventually draws the victim to
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commit suicide, the accused may be
held guilty of abetment of suicide.
The question of mens rea on the part
of the accused in such cases would
be examined with reference to the
actual acts and deeds of the accused
and if the acts and deeds are only
of such nature where the accused
intended nothing more than
harassment or snap show of anger, a
particular case may fall short of
the offence of abetment of suicide.
However, if the accused kept on
irritating or annoying the deceased
by words or deeds until the deceased
reacted or was provoked, a
particular case may be that of
abetment of suicide..."
66.8 In the case of State of West Bengal Vs. Orilal
Jaiswal, [(1994) 1 SCC 73], the Hon'ble Supreme
Court has cautioned in Para-17 with regard to
Court's duty in assessing facts and
circumstances of the case as under:
"17. ... The Court should be extremely
careful in assessing the facts and
circumstances of each case and the
evidence adduced in the trial for
the purpose of finding whether the
cruelty meted out to the victim had
in fact induced her to end the life
by committing suicide. If it
transpires to the Court that a
victim committing suicide was
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hypersensitive to ordinary
petulance, discord and differences
in domestic life quite common to the
society to which the victim belonged
and such petulance, discord and
differences were not expected to
induce a similarly circumstanced
individual in a given society to
commit suicide, the conscience of
the Court should not be satisfied
for basing a finding that the
accused charged of abetting the
offence of suicide should be found
guilty...."
66.9 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
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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."
66.10 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 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
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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.
66.11 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."
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66.12 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 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.
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67. The prosecution in the present case has failed
to prove any instigation from the accused
providing the deceased to commit suicide. PW9 -
President of the Mandali was also in a similar
situation as of the deceased. PW9 though
similarly situated had not taken any such
extreme step. Purshis dated 22.8.2006 given by
PW20 in the Court of Metropolitan Magistrate,
Ahmedabad in Criminal Case no.1719 of 2003 notes
that deceased and PW9 had come at his shop and
both said that they were knowing Bharatbhai
Chimnani (A1). They had given only oral
introduction, while no written recommendation
was given by Bharatbhai Chimnani (A1), nor had
Bharatbhai orally undertaken any responsibility.
The deceased had given cheque no.294312 of Dena
Bank, Maskati Branch, Ahmedabad and had taken
Rs.1,25,000/- from PW20 who was informed to
deposit the cheque on its maturity date. The
case was filed as the cheque got returned,
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however, owing to death of Kalubhai, PW20 as the
complainant preferred not to give further
evidence and urged the Court to decide the case.
68. What emerges from the purshis was that deceased
had borrowed money Rs.1,25,000/- from Shroff
PW20. While PW9, the President in his deposition
says that he had personally on his own accord
brought money from Ahmedabad Sharafi firm. The
resolution to purchase yarn was passed in favour
of Dahyabhai Alubhai (A2), while PW20 does not
refer to accused no.2, nor the President-PW9
alleged anything against accused no.2-Dahyabhai.
PW9 alleged that accused no.1-Bharatbhai had
directly taken away the Yarn, which means the
yarn was not deposited in the society, while on
the other hand, deceased and PW9 both appears to
have contacted PW20 and introduced themselves
with the identity of accused no.1-Bharatbhai,
who had not taken any responsibility of payment
of amount, still PW20 had made present accused
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no.1-Bharatbhai and PW9 and deceased Kalubhai
accused in Criminal Case no.1719 of 2003.
69. On the contrary, widow of deceased Kalubhai as
PW18 had introduced photocopy of affidavit of
accused no.2-Dayhabhai Alubhai Solanki dated
30.6.2003 signed before a notary. Affidavit has
been only marked, not exhibited in evidence
inspite of that if considered in brief, the
content suggests that accused no.2 affirmed of
five blank cheques given to accused no.1 who had
written false figures and purchased goods from
Arunoday Mills Ltd. and has stated that the
blank cheques of the society with signature were
given to Arunoday Mills, from where the goods
were taken on credit. The copy of cheque and the
bills are with dated transactions. There has
been no case filed by deceased or PW9 against
accused no.2. The collaboration was with
Arunoday Mills, which had gone under SICA. After
being declared sick company, what was the
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position of supply of goods does not get proved.
The police had not proved the place, where
accused no.1 allegedly sold away the goods.
Accused no.1 rather appeared to be assisting
deceased and PW9 for procuring money from
Shroff-PW20.
70. So the case as could be drawn from the evidence,
along with the evidence of PW20 and PW9, would
transpire that the amount of Rs.1,25,000/- was
taken from Shroff PW20 by the deceased and PW9
and they had gone to PW20 with the introduction
of accused no.1 as recommendation. So all the
three were made accused in the proceedings under
Section 138 N.I. Act in the Court of Ahmedabad.
71. The dealing with Arunoday Mills were proved by
PW19. The cheques of various amounts, as had
been mentioned hereinabove, were issued. The
yarns were allegedly not supplied. How the debt
of Rupees Eight Lacs fell only on the deceased
could not be clarified, when equally the
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responsibilities would have fallen even on the
head of PW9, the President of the society. On
Arunoday Mill being declared sick mill, SICA
proceeding was initiative, PW9 would state that
the shock to the deceased was only after Bombay
police had come with summons, so deceased
consumed poison.
72. PW10 - Ratilal Manjibhai Makwana was the
committee member of the cooperative society. He
states of blank cheques given to accused no.2.
According to PW10, deceased used to gather all
the people and would tell that the society now
have to pay the money for yarn and that since
society had no money, deceased expressed his
concern as to how they would pay. PW11-Kamuben
Kanjibhai, the member said that as the yarn had
not come, deceased had expressed his sorrow
telling as now what they would do, and how would
they pay the money and therefore, he had
consumed poison.
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73. Suicide by poison was required to be proved. In
case of consumption of poison, FSL report has to
prove the presence of element of poison from the
samples of vomit or through gastric lavage.
Nothing had been procured. The viscera report of
FSL does not prove the presence of poison.
74. In Kumar @ Shiva Kumar v. State of Karnataka,
2024 INSC 156, the Hon'ble Supreme Court opined
that in a case of death due to consumption of
administering of poison, be it homicidal or
suicidal, recovery of the trace of such poison
is crucial. The Hon'ble Supreme Court expressed
thus:-
"46. ...As a general principle, it
can be said that in a case of death
by poisoning, be it homicidal or
suicidal and which is based on
circumstantial evidence, recovery of
the trace of poison consumed by or
administered to the deceased is of
critical importance. It forms a part
of the chain, rather it would
complete the chain to prove homicide
or suicide."
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75. The Doctor who was treating the deceased had not
proved the treatment details by producing the
treatment sheet. The issue of directly selling
the yarns and not unloading at the society, by
accused no.1 does not get prima facie proved by
the witnesses so examined to consider as
cheating or criminal breach of trust. What was
the financial health of the society was also not
proved. Why deceased and PW9 had to borrow money
from the Shroff is not getting clear.
76. The resolution passed under the signature of PW9
was placed on record during the trial by the
investigating officer - PW24 - Bharatsingh
Madhavsinh Tank at Exh.68. The resolution no.5
of the society is dated 11.12.2001 with the
subject regarding purchase of yarn. The document
reflects that it was decided to give blank
cheques under the signature of President and
Secretary to Dahyabhai Alubhai (A2) of
Motatimbala for the purchase of yarns. The
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resolution further clarifies the purpose of
giving blank cheques, noting that there was no
limit in the price of yarns and therefore, no
price can be decided prior.
77. The evidence as referred to hereinabove, as
analyzed by scrutinizing the oral and
documentary evidences makes the facts clear that
the complaint under Section 138 of the
Negotiable Instruments Act, 1881 was filed one
and a half year prior to the date of consuming
the medicine. The filing of case cannot be
considered ground to be considered as abetment,
further the case was filed by PW20, which was
even against accused no.1. The said case had not
disturbed accused no.1, nor PW9, the President
of the Mandli. The alleged amount of
Rs.1,25,000/- was taken away by PW9 as per his
own evidence. The affidavit of accused no.2,
Dahyabhai Alubhai Solanki at Mark-C dated
30.6.2003 produced by widow of deceased, had
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shifted all the burden alleging accused no.1
having received both the cheques who was running
his yarn business as 'Jalaram Yarns Ltd.' cheque
no.601065 and 601066 of Ahmedabad District
Cooperative Bank Ltd. of Income-Tax Office,
Gandhi Pool Branch, and had stated that cheques
nos.294306, 294308 and 294311, three cheques of
Dena Bank of Maskati Market, Ahmedabad were
given to accused no.1. Thereafter, no yarn was
purchased by the Mandli from 'Jalaram Yarns'.
According to accused no.2, accused no.1 had
purchased yarns on credit from Arunoday Mills,
and had committed criminal breach of trust by
misusing the advanced cheques given to accused
no.1, and had in turn given the blank cheques
with the signature of President and Secretary of
the Mandli to Arunoday Mills, Mumbai.
78. PW9 deposed that deceased was in shock seeing
Mumbai police, that had led to mental stress for
suicide.
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79. PW19 officer of Arunoday Mills was examined to
prove the invoices, who has given evidence of
Arunoday Mills declared as sick unit and had
also given evidence of "Devaki Hosiery' being
their agent. PW19 had affirmed of dispatching
thrice, the hosiery yarn from their factory on
three different invoices. He had placed the
photocopy of the documents, invoice-cum-challan,
two letters of Mandli and the Mandli bill and
document of the bank. All the three invoices-
cum-challans were addressed to Jai Girnari
Hathshal Vankar Co. Operative Soci. Ltd.,
Shiyani with the amount of the bill as written
on the letter pad of the Mandli signed by the
President and deceased Secretary. Three cheques
of Dena Bank were given to pay the bills. PW19
does not state of dishonour of these cheques.
80. The two cheques of Ahmedabad District
Cooperative Bank Ltd., Gandhipool Branch nos.
601065 and 601066 were of Shramyog Vankar
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Cooperative Nadli. PW9 evidence notes that they
were President and Secretary of Jai Girnari
Hathshal Vankar Co. Operative Soci. Ltd.,
Shiyani.
81. The case filed by PW20 was for cheque no.294312
of Dena Bank, Maskati Market Branch, Ahmedabad,
which was not referred by accused no.2 in his
affidavit.
82. These all aspects would have no connection to
prove the fact, of any abetment for the
commission of suicide. The instances of
transaction of goods cannot be considered as any
instigation from the side of accused, goading
him to commit suicide. The similarly situated
PW9 had not taken such an extreme step though
was also placed in the same situation.
83. The documentary evidence on record produced by
PW19 - the official from Arunoday Mill who was
authorized to give the deposition working in
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Excise and Dispatch Department shows that the
three invoices-cum-challans were addressed to
the consignee - Jai Girnari Hathshal Vankar Co.
Operative Soci. Ltd., Shiyani. As referred to
hereinabove, three Dena Bank cheques of Maskati
Market Branch were given. PW21 - Tejas Shah who
is having his agency under the names of Devki
Hosiery and Tejas Hosiery has referred accused -
Bharatbhai as regular customer. According to
PW21, they were the agents of Arunoday Mill,
Morbi and according to him, the goods would be
dispatched at the address informed by Bharatbhai
and he stated that the godown of Bharatbhai was
in Naroda Bharatkhand Mill Compound, where the
goods would be dispatched and "Kha" form would
be executed for the person in whose name the
goods would be delivered. He affirmed that the
authorized person of the Mandli would come to
receive the goods. This witness has not stated
that the alleged goods of those three invoices-
cum-challans produced at Mark-B were never
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delivered to Jai Girnari Hathshal Vankar Co.
Operative Soci. Ltd., Shiyani.
84. The case under Sections 406 and 420 of IPC could
not be proved by the State. The deceased as well
as PW9 had never filed any such complaint
against the accused and more specifically
against accused no.1. The cheques were handed
over to accused no.2, but the referred cheques
appeared to have already been received by
Arunoday Mills. What was the case against the
deceased at Mumbai has not been brought on
record. PW19 of Arunoday Mill does not state of
any case filed by them against the deceased and
PW9. The case that was filed by PW20 for cheque
no.294312 does not find any mention in the copy
of the affidavit of accused no.2 filed by the
widow of the deceased. The proximate cause for
the alleged suicide to consider as abetment does
not stand proved. The prosecution has failed to
prove any act, omission or commission by the
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accused to consider any conspiracy. Any illegal
omission of the act has to be proved to consider
it as an intentional aid to be established by
the prosecution. Instigation with deliberate
intention is vital component, which has to be
proved on record. Abetment involves a mental
process of instigating a person or intentionally
aiding a person in doing of a thing. Without the
positive act on the part of the accused to
instigate or to aid in committing suicide,
conviction cannot be sustained. There must be
clear mens rea for the commission of such
offence. No such act of the accused has been
proved to consider that the accused kept on
irritating or annoying the deceased by words and
deeds or that they had pushed or forced the
deceased by their deeds, words or willful
omission or conduct to consider it as goading
for the deceased to commit suicide.
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85. As laid down in the judgment of Prakash v. State
of Maharashtra (supra) to attract the offence of
abetment to suicide, it is important to
establish proof by way of direct or indirect act
or instigation or incitement of suicide by the
accused, which must be in close proximity to the
commission of suicide by the deceased. In case
of accusation for abetment of suicide, the Court
would be looking for cogent and convincing proof
of the acts of incitement to the commission of
suicide. Mere allegation of harassment would not
suffice. Here the deceased appears to have
lowered his own self-esteem. The witnesses could
give evidence of his sensitiveness for their
failure to pay the dues. However, such
constraint in the business had not affected PW9
or the other members of the Mandli who all would
be responsible for the business of the Mandli.
It would be the joint responsibility of all to
pay the dues and debts.
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86. The evidence on record does not prove any
abetment from the side of the accused rather the
evidence shows that the deceased was under
severe stress and therefore, had committed
suicide.
87. In view of the assessment and evaluation of the
facts and evidences on record, the observation
of the learned Trial Court Judge in convicting
the accused becomes erroneous. To satisfy the
requirement of instigation, accused by act or
omission or by continued course of conduct,
should have created such circumstances, that the
deceased was left with no other option, except
to commit suicide. The similarly situated person
who had been examined as witnesses in the
matter, found no such instigation by any act or
omission of the accused to have any cause for
commission of suicide. The level of tolerance
differs from person to person. The similarly
circumstanced individual may not react in the
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same manner, as the present deceased in the
facts of the case has reacted. The judgment of
the learned Trial Court Judge requires to be set
aside.
88. In the result, in view of the above discussion,
the appeals are allowed. The judgment and order
of conviction and sentence dated 9.1.2007 passed
by the learned Additional Sessions Judge, Fast
Track Court no.2, Surendranagar in Sessions Case
no.60 of 2005 is set aside. The appellants are
acquitted of all the charges. Bail bond stands
discharged. Registry is directed to send the
record and proceedings back to the concerned
Court forthwith.
(GITA GOPI,J)
Maulik
