Gujarat High Court
Dinesh Bhanushankarbhai vs State Of Gujarat on 1 October, 2025
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Reserved On : 09/07/2025
Pronounced On : 01/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 929 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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DINESH BHANUSHANKARBHAI & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1,2
MS. JYOTI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
1. Rule. Learned APP waives service on behalf of
Respondent - State.
2. The present revision application has been preferred by
the present applicant under Section 397 read with
Section 401 of the Code of Criminal Procedure, directed
against the judgment passed by the learned Assistant
Sessions Judge, Junagadh in Sessions Case No.92 of
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2002 convicting the present appellant no.1 - Dinesh
Bhanushankarbhai for the offence punishable under
Section 306 of the Indian Penal Code and sentenced him
to 5 years rigorous imprisonment and also fine of
Rs.1,000/- and also convicted under Section 498A read
with Section 114 of the IPC and sentenced him to 2
years rigorous imprisonment and fine of Rs.1,000/- and
in default of fine, one month simple imprisonment and
convicted the present applicant no.2 - Jayaben
Bhanushankarbhai for the offence punishable under
Section 498A of the IPC and sentenced him to 2 years
simple imprisonment and fine of Rs.1,000/- and in
default of fine, one month simple imprisonment was
awarded by the Judgment dated 04.11.2004 in Sessions
Case No.92 of 2002 and the said judgment of conviction
has been challenged by the present applicants before
the Fast Track Judge, Junagadh by preferring Criminal
Appeal No.33 of 2004 and the said appeal of the present
applicant nos.1 and 2 came to be dismissed by judgment
dated 19.11.2005 and the judgment of conviction passed
in Sessions Case No.92 of 2002 has been confirmed and
being aggrieved and dissatisfied by the said judgment in
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the appeal, present revision application has been
preferred.
3. The factual matrix of the present appeal is as under.
4. As per the case of the prosecution, the present applicant
no.1 is the son of the applicant no.2 and the marriage of
the present applicant no.1 was performed with the sister
of the original complainant i.e. Bhavnaben and
Bhavanaben was subjected to physical and mental
torture by the accused person and subsequently,
because of that, on 02.04.2002, the sister of the
complainant - wife of the applicant no.1 - Bhavanaben
has committed suicide at her parental home by
consuming poison and subsequently, complaint came to
be given by the complainant against the present
applicant - accused for the offences punishable under
Section 498A, 306 and 114 of the IPC before the Bilkha
Police Station and the same was registered vide C.R.
No.13 of 2002. After filing of the FIR, investigation has
been carried out and after completion of investigation,
chargesheeet has been filed and it was numbered as
Sessions Case No.92 of 2002 and in the trial, before the
Assistant Sessions Judge, Junagadh, The present
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applicant no.1 has been convicted for the offence
punishable under Section 306 of the IPC and Section
498A read with Section 114 of the IPC while applicant
no.2 who is mother-in-law of the deceased, has been
acquitted for the offence punishable under Section 306
of the IPC but she was convicted for the offence
punishable under Section 498A read with Section 114 of
the IPC by judgment dated 04.11.2004 and the said
judgment of conviction challenged by preferring
Criminal Appeal No.33 of 2004 before the Additional
District Judge, Fast Track Court, Junagadh and the
appeal came to be dismissed and the judgment of
conviction in Sessions Case No.92 of 2002 has been
confirmed by judgment dated 19.11.2005. Against that,
the present revision application has been preferred.
5. Heard learned advocate Mr.Zubin F. Bharda for the
applicant - accused and it has been submitted by him
that the judgment and order passed by the Courts below
are bad in law and contrary to the facts and
circumstances of the present case and the judgments
and orders passed by the Courts below were erroneous
on the facts as well as on the law. However, he
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submitted that Courts below have failed to appreciate
serious infirmities in the prosecution case also. Further,
he has submitted that FIR and its contents become
explicitly clear that the whole story made out by the
complainant seems to be fabricated and no indication,
thereof, in the deposition of the witnesses who have not
supported the case of the prosecution also. Further, the
Courts below have failed to prove beyond reasonable
doubt that the deceased Bhavanaben committed suicide
upon being frustrated by the torture and ill treatment
meted to her by present applicant. Moreover, testimony
of the witnesses as well as the complainant it becomes
absolutely clear that there was no iota of evidence of any
type of ill treatment which can be termed as a torturing.
Further, there was no instigation or abatement on the
part of the present applicant no.1 who commits of
suicide. It is an admitted position that the deceased has
committed suicide at her parental home and there was
no abatement on the part of the present applicant -
accused. Further, he has submitted that no evidence of
direct connection between the action of the present
applicant and the deceased committed to suicide and the
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ingredient of the Section 306 of the IPC has not been
satisfied and it has been coming on record that before
Committing suicide, she stated that on the earlier date
of committing suicide, the applicant no.1 has stated to
the deceased that not to put sindoor on her head of the
applicant, except this, there is no other allegation. It
cannot be termed as an abatement to commit suicide.
Further, from the evidence, it has been established that
so far as the case of the prosecution is that there is an
oral DD of the applicant but it is a weak piece of
evidence and the oral DD has not been supported, hence
also, the present revision is required to be allowed and
both judgments of conviction passed by both Courts
below is required to be set aside. Further, Mr. Zubin
Bharda in support of his argument, relied upon the
judgment of the Hon'ble Apex Court in the case of
Kamalakar Vs. State of Karnataka and also relied upon
the judgment of the Gujarat High Court in the case of
Rameshbhai Popatbhai Vs. State of Gujarat reported in
2016 (0) AIJEL-HC 234136 and submitted that the
present revision application is required to be allowed.
6. On the other hand, learned APP Ms. Jyoti Bhatt has
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vehemently opposed and submitted that there is a
concurrent finding recorded by both Courts below and
considering this, there is no illegality has been
committed by the Court and there is no judgment of both
Courts have not been perverse, hence, no interference is
required, hence, the revision application is required to
be rejected.
7. Considering the arguments advanced by the learned
advocates for respective parties and perused the
impugned judgment passed by the learned Assistant
Sessions Judge and Fast Track Court. Perused Record &
Proceedings.
8. So far as Section powers under Section 397 read with
Section 401 of the Cr.P.C is concerned, it is High Court's
power in the revision exercises supervisory jurisdiction
of restricted nature and it cannot re-appreciate the
evidence as second appeal and for the purpose of
determining whether the concurrent finding of fact
reached by the Magistrate and Sessions Judge was
correct.
9. The present case in hand is concerned, the facts of the
case has already been narrated above. Now in this
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regard, it is required to consider the evidence produced
by the prosecution before the Trial Court, the
prosecution has examined Dr.Dhirendra Pranlal vide
Exhibit-10, complainant - Chhelshankar bavalal vide
Exhibit-14, Jamanadas Mohanlal Vachhani vide Exhibit-
16, Bavalal Danabhai vide Exhibit-18, Shardaben Bavalal
vide Exhibit-19 and Jitendra Narshibhai vide Exhibit-20
and Dinesh Parsottambhai vide Exhibit-21 and
Investigating Officer - Vajesinh Solanki vide Exhibit-45
has been examined. So far as the present case in hand is
concerned, it is not in dispute that so far as per the P.M.
note which has been produced vide Exhibit-12 is
concerned, as per the cause of death is concerned, death
of the Bhavanaben was because of she has consumed the
pesticides and because of that, she was died and so, the
death of Bhavanaben is concerned, it is not in dispute.
Now, the question is whether the present applicants -
accused nos.1 and 2 have abated the commission of the
offence and whether the deceased Bhavanaben was
subjected to mental and physical cruelty or not that is
required to be considered at this stage. In this regard,
now, it is required to consider that it is an admitted
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position and it emerges from the evidence produced
before the Court below that the the marriage life is of 4
years subsequently, after the marriage, the deceased
Bhavanaben came to her parental home and
subsequently, settlement was arrived and again, she
went to her matrimonial home. Further, on the date of
an incident, prior to previous day against on that day,
the present applicant no.1 along with the deceased -
Bhavanaben came to her parental home and at that time,
the applicant no.1 stated to the deceased that now, do
not put sindoor of his name on her head. In this regard,
the prosecution has examined the complainant -
Chhelshankar Bavalal vide Exhibit-14 and as per the
statement that the applicant no.1 has put the deceased
Bhavanaben to her parental home and thereafter, the
applicant no.1 went back to her home and subsequently
on the third day, the deceased Bhavanaben went to the
field of his father and then, she consumed this Pesticides
and at that time, she stated that her husband -
Dineshbhai has told him that now, do not put sindoor of
his name on her head and subsequently, she was
brought to the Government Hospital, Junagadh for
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treatment but she was declared dead and the said fact
has been narrated by the other witnesses also. So, the
only allegation is that it is an undisputed fact that the
deceased has committed suicide at her parental home
and the allegation is that the applicant has told the
deceased that do not put sindoor of his name on her
head, except this, there is no other allegation has been
coming forward. Even from the other witnesses'
deposition is concerned, contradiction are coming
regarding the deceased Bhavanaben as stated anything
to the complainant and his brother and other family
members regarding this.
10. In this regard, it is required to consider that so far as the
Section 306 of the IPC is concerned, it pertains to the
abatement of the suicide. So, to prove the charge under
Section 306 of the IPC, prosecution must prove that
accused played an active role in the suicide and
specifically, accused action must align with one of few
criteria Section 107 of the IPC that means either
encourage the deceased to take her life conspired with
other to insure person commit suicide or acted in a way
or failed to act which directly resulted into person's
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suicide. Now, in this regard, it is required to consider
the judgment of the Hon'ble Apex Court in the case of
Kamala (Supra) as under:
"7. Applicability of Section 498A IPC. 7.1.
Section 498A the IPC penalizes husbands or
their relatives who subject a woman to
cruelty, with penalties of up to three years'
imprisonment and a possible fine. "Cruelty"
encompasses actions that could drive the
woman to suicide or cause severe mental or
physical harm, and harassment aimed at
coercing her or her family into unlawful
property or valuable security demands.
8. Applicability of 306 IPC.
8.1. Section 306 deals with abetment of
suicide wherein whoever abets the
commission of suicide of another person,
he/she shall be punished with imprisonment
of either description for a term not exceeding
ten years and shall also be liable to fine. This
provision has to be read with Section 107
IPC which reads as:
"107. Abetment of a thing.--A person abets
the doing of a thing, who-- First.--Instigates
any person to do that thing; or Secondly.--
Engages with one or more other person or
persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in
order to the doing of that thing; or Thirdly.--
Intentionally aids, by any act or illegal
omission, the doing of that thing. Explanation
1.--A person who, by wilful
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misrepresentation, or by wilful concealment
of a material fact which he is bound to
disclose, voluntarily causes or procures, or
attempts to cause or procure, a thing to be
done, is said to instigate the doing of that
thing. Explanation 2.--Whoever, either prior
to or at the time of the commission of an act,
does anything in order to facilitate the
commission of that act, and thereby
facilitates the commission thereof, is said to
aid the doing of that act."
8.2. Section 306 IPC penalizes abetment of
commission of suicide. To charge someone
under this Section, the prosecution must
prove that the accused played a role in the
suicide. Specifically, the accused's actions
must align with one of the three criteria
detailed in Section 107 IPC. This means the
accused either encouraged the individual to
take their life, conspired with others to
ensure the person committed suicide, or
acted in a way (or failed to act) which
directly resulted in the person's suicide.
8.3. In Ramesh Kumar V. State of
Chhattisgarh1, this Court has analysed
different meanings of "instigation". The
relevant para of the said judgement is
reproduced herein:
"20. Instigation is to goad, urge forward,
provoke, incite or encourage to do "an act".
To satisfy the requirement of instigation
though it is not necessary that actual words
must be used to that effect or what
constitutes instigation must necessarily and
specifically be suggestive of the
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consequence. Yet a reasonable certainty to
incite the consequence must be capable of
being spelt out. The present one is not a case
where the accused had by his acts or
omission or by a continued course of conduct
created such circumstances that the
deceased was left with no other option
except to commit suicide in which case
(2001) 9 SCC 618 an instigation may have
been inferred. A word uttered in the fit of
anger or emotion without intending the
consequences to actually follow cannot be
said to be instigation." 8.4. The essentials of
Section 306 IPC were elucidated by this
Court in M. Mohan v. State2, as under:
"43. This Court in Chitresh Kumar Chopra v.
State (Govt. of NCT of Delhi) [(2009) 16 SCC
605 : (2010) 3 SCC (Cri) 367] had an
occasion to deal with this aspect of abetment.
The Court dealt with the dictionary meaning
of the word "instigation" and "goading". The
Court opined that there should be intention
to provoke, incite or encourage the doing of
an act by the latter. Each person's
suicidability pattern is different from the
others. Each person has his own idea of self-
esteem and self-respect. Therefore, it is
impossible to lay down any straitjacket
formula in dealing with such cases. Each
case has to be decided on the basis of its own
facts and circumstances.
(2011) 3 SCC 626
44. 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
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aid in committing suicide, conviction cannot
be sustained.
45. The intention of the legislature and the
ratio of the cases decided by this Court are
clear that in order to convict a person under
Section 306 IPC there has to be a clear mens
rea to commit the offence. It also requires an
active act or direct act which led the
deceased to commit suicide seeing no option
and this act must have been intended to push
the deceased into such a position that he/she
committed suicide."
11. It is required to consider the judgment of the Hon'ble
Apex Court in the case of Ramesh Popatbhai (Supra) as
under:
"7. In the the instant case, the prosecution had
examined as many as seven witnesses to prove
the charges levelled against the appellants -
accused. However, the material witness i.e.
PW1 the complainant Bhutabhai Keshabhai i.e.
father of deceased and PW2 Shivabhai
Dhulabhai, who happened to be the relative of
the deceased, had turned hostile and not
supported the case of prosecution. The
complainant Bhutabhai Keshabhai had stated
in his evidence before the court that his
daughter had committed suicide by setting
herself ablaze, however, there was no
harassment to her from her inlaws side. As
regard the complaint, he has stated that his
thumb impression was obtained on the
complaint Exh.9, by the police and that, he did
not know as to how his daughter had
committed Suicide. He has denied the contents
of complaint. Similarly, PW2 who happened to
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be the distant relative of the deceased, had
also submitted that there was no harassment
to deceased Gitaben from her inlaws side. It is
pertinent to note that PW3, Executive
Magistrate had recorded the dying declaration
of the deceased, which is on record at Exh.18,
in which it was allegedly stated by the
deceased that she had burnt herself because of
the harassment from her fatherinlaw,
motherinlaw, brotherinlaw (jeth) and
sisterinlaw (jethani). The trial court relying
upon the said solitary evidence of the dying
declaration, had convicted the present
appellants by holding that the deceased was
subjected to cruelty by the appellants which
had led her to commit suicide.
8. At this juncture, it is required to be noted
that apart from the fact that the said dying
declaration Exh.18, does no give details as
regards the harassment or cruelty, which the
deceased was subjected to by her inlaws, it is
doubtful as to whether the deceased was in
right state of mind to give her statement
before the Executive Magistrate, inasmuch as,
in the complaint, the complainant had stated
that his daughter had become unconscious
after the alleged incident because of the
serious burn injuries. Though the said
complainant has not supported the contents of
complaint, even if the said complaint is treated
as given by the complainant, then also it
appears that she had become unconscious
after the incident in question. Under the
circumstances, it is difficult to rely upon the
solitary evidence of dying declaration and
convict the appellants by holding that the
deceased had committed suicide as he was
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subjected to cruelty by the appellants accused.
It is settled legal position that the abetment
involves a mental process of instigating a
person or intentionally aiding a person in
doing of a thing. Without any positive act on
the part of the accused to instigate or aid in
committing suicide, conviction cannot be
sustained. In the instant case, the prosecution
had miserably failed to prove the ingredients
of the alleged offences under Sections 498A,
306 read with 114 of Indian Penal Code by
leading cogent and credible evidence. The
Court, therefore, is of the opinion that the
prosecution had failed to prove the charges
levelled against the accused beyond
reasonable doubt."
12. Considering this, the dictum of the Hon'ble Apex Court
in order to bring the case within purview of Section 306
of the IPC, there must be a case of suicide and the
commission of the said offence person who said to have
abated the commission of the suicide must played an
active role by an act of instigation or by doing certain
act to facilitate the commission of the suicide. In the
present case in hand is concerned and the present
applicant no.1 has been convicted for the offences
punishable under Section 306 of the IPC is concerned, it
is an admitted position that incident of suicide has been
taken place at the parental home. Further, so far as the
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deceased committed suicide because the present
applicant has stated to her that now, do not put sindoor
of his name of her head, except this, nothing has been
coming out from the evidence of the witness that she
was subjected to the cruelty to such a level that she has
no other option but to commit suicide.
13. So far as the Section 498A is concerned, even nothing
has been coming on record that she was subjected to
any mental or physical cruelty and as discussed above,
nothing has been coming from the evidence that the
deceased was subjected to any mental or physical
cruelty to the extent, was left with no other option
except to commit suicide. In that circumstances, only
Section 498A of the IPC can be invoked. Hence,
considering this, from the evidence before the Court and
on this legal aspect, learned both Courts below have
committed an error in coming to the conclusion that the
applicant no.1 has abated the commission of an offence
of suicide and applicant nos.1 and 2 have mentally and
physically committed cruelty with the deceased. Hence,
the findings recorded by both Courts below are not in
consonance with the evidence produced by the
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prosecution, hence, the order founds to be perverse and
requires interference and the present revision
application is required to be rejected. The present
revision application no.929 of 2005 is hereby allowed
and the judgment passed by the learned Assistant
Sessions Judge, Junagadh in Sessions Case No.92 of
2002 convicting the present applicant no.1 under
Section 306 and 498A of the IPC and convicting the
applicant no.2 under Section 498A of the IPC and the
judgment passed by learned 5th Fast Track Judge,
Junagadh in Criminal Appeal No.33 of 2004 confirming
the judgment of the Sessions Case No.92 of 2002 is
hereby quashed and set aside. Both the present
applicant nos.1 and 2 herein are acquitted from all the
charges. The present revision application is disposed of
accordingly. Rule is made absolute.
(L. S. PIRZADA, J)
JCP
