[Cites 17, Cited by 0]

Gujarat High Court

State Of Gujarat vs Shankarbhai Bharubhai Rathwa on 8 April, 2026

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                                                                                      Reserved On : 16/03/2026
                                                                                    Pronounced On : 08/04/2026

                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 630 of 2010

                       ==========================================================
                                                       STATE OF GUJARAT
                                                             Versus
                                              SHANKARBHAI BHARUBHAI RATHWA & ORS.
                       ==========================================================
                       Appearance:
                       MR. TIRHTRAJ PANDYA, APP for the Appellant(s) No. 1
                       BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
                       MR M A CHAUHAN(11262) for the Opponent(s)/Respondent(s) No. 1,2,3
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                               CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 21.07.2009, passed by

the learned 2 nd Additional Sessions Judge, Dahod in Sessions

Case No.126 of 2007, for the offences punishable under

Sections 498(A), 306, and 114 of the Indian Penal Code, the

appellant - State of Gujarat has preferred this appeal under

Section 378 of the Code of Criminal Procedure, 1973 (for

short, "the Code").

2. The prosecution case as unfolded during the trial

before the trial Court is that the complainant's daughter was

married in June 2005, and initially lived peacefully with her

husband and in-laws, but after some time she was subjected

to continuous mental and physical harassment by her

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husband, mother-in-law, and other relatives, including

demands and ill-treatment, due to which she frequently

returned to her parental home and narrated her grievances,

despite attempts at reconcilliation, the harassment persisted,

and on the day of the incident in the early morning,

information was received that she had fallen into a well, and

upon reaching the spot, the complainant found her dead,

leading him to allege that her death was not accidental but

the result of sustained in-laws, which either drove her to

commit suicide or resulted in her being pushed. Therefore,

the complaint was filed against the respondent/s-accused.

3. After investigation, sufficient prima facie evidence

was found against the accused person/s and therefore charge-

sheet was filed in the competent criminal Court. Since the

offence alleged against the accused person/s was exclusively

triable by the Court of Sessions, the learned Magistrate

committed the case to the Sessions Court where it came to

be registered as Sessions Case No.126 of 2007. The charge

was framed against the accused person/s. The accused

pleaded not guilty and came to be tried.

4. In order to bring home the charge, the prosecution

has examined 8 witnesses and also produced 5 documentary

evidence before the trial Court, which are described in the

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impugned judgment are as under;




                                                            Oral Evidences

                        Sr. No. Exh. No.                                 Oral Evidence

                            1.              10         Dr. Manoharlal Dalchand Kuri, who conducted the

                                                            postmortem of the deceased Ramtiben.

                            2.              14                    Panch witness, Samantsinh.


                            3.              21          Mr. Pratapbhai Bhalajibhai Dayra, father of the

                                                                       deceased Ramtiben.

                            4.              25         Abheysinh Pratapsinh Dayra, elder brother of the

                                                                       deceased Ramtiben.

                            5.              26         Subhashbhai Pratapbhai Dayra, younger brother of

                                                                     the deceased Ramtiben.

                            6.              28          Santokben Abheysinh Dayra, sister-in-law of the

                                                                       deceased Ramtiben.

                            7.              29                    Kamlaben Pratabhai Dayra


                            8.              30           Rupabhai Manabhai Parmar, the Investigating

                                                                                 Officer.



                                                        Documentary evidences

                         Sr. No. Exh.No.                          Documentary Evidence

                             1.             07                      Inquest Panchnama.

                             2.             08          Panchnama regarding the clothes on the

                                                                               dead body.







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                              3.              11                                 PM Report.

                              4.              15                          Crime Scene Report.

                              5.              22                           Original complaint.

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which the

charge was framed, by holding that the prosecution has failed

to prove the case beyond reasonable doubt.

6. Learned APP for the appellant - State has

pointed out the facts of the case and having taken this Court

through both, oral and documentary evidence, recorded before

the learned trial Court, would submit that the learned trial

Court has failed to appreciate the evidence in true sense and

perspective; and that the trial Court has committed error in

acquitting the accused. It is submitted that the learned trial

Court ought not to have given much emphasis to the

contradictions and/or omissions appearing in the evidence and

ought to have given weightage to the dots that connect the

accused with the offence in question. It is submitted that

the learned trial Court has erroneously come to the

conclusion that the prosecution has failed to prove its case. It

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is also submitted that the learned Judge ought to have seen

that the evidence produced on record is reliable and

believable and it was proved beyond reasonable doubt that

the accused had committed an offence in question. It is,

therefore, submitted that this Court may allow this appeal by

appreciating the evidence led before the learned trial Court.

7. As against that, learned advocate for the

respondent/s would support the impugned judgment passed by

the learned trial Court and has submitted that the learned

trial Court has not committed any error in acquitting the

accused. The trial Court has taken possible view as the

prosecution has failed to prove its case beyond reasonable

doubt. Therefore, it is prayed to dismiss the present appeal

by confirming the impugned judgment and order passed by

the learned trial Court.

8. In the aforesaid background, considering the oral

as well as documentary evidence on record, independently and

dispassionately and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court;

8.1 The prosecution has mainly relied on the

complaint, that has been filed by the father of the deceased

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which is produced vide Exh-22, wherein, it is the case of the

prosecution that the marriage of the deceased Ramtiben with

Accused No. 1 took place somewhere around June 2005, and

after the marriage the deceased Ramtiben used to come often

to her parental house, and even the brothers and sisters of

the deceased used to come to their matrimonial home to get

the deceased to her parental house during his lifetime.

8.2 In the said complaint, produced vide Exh-22, the

complainant father of the deceased had also stated that, the

Accused No. 1 and the deceased also used to come together

to the parental house of the deceased and used to stay for a

day, and thereafter, they used to go together, and in the

initial 5-6 months of the marriage there were cordial relation

between the deceased and the accused. It has been stated in

the complaint that on one of the occasion when the deceased

had come to her parental house, she had narrated the fact

that the Accused No. 2 had taken the locket which was in

the locker which belonged to the deceased, and thereafter,

the Accused No. 2 did not permit the deceased to wear the

said locket. It has also been alleged that time, and again the

deceased used to come to her parental house, and used to

inform that the Accused No. 2 and 3 were not talking to the

deceased and were not eating the food prepared by the

deceased. It has also been stated that Accused No. 2 and 3

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used to tell the deceased that they want Accused No. 2 to

marry again, and the said complainant has alleged that the

deceased was harassed. In view of the fact that accused had

an affair with the daughter of Dhansukbhai Bhanubhai

Vanderia, and as and when the deceased used to tell the

Accused No.1 about the same, he used to threaten the

deceased of her life, and it is alleged that because of the

said harassment of the accused, the deceased had committed

suicide.

8.3 The father of the complainant has been examined

vide Exh- 21, wherein he has stated that none of the family

members of the accused were talking to the deceased at her

matrimonial home, on the last occasion when the deceased

had come to the parental house she had come with her other

daughter, Samath i.e. the sister of the deceased and her

husband Jayesh. The fact remains that the prosecution has

neither examined daughter Samath or the brother-in-law

Jayesh, whom the complainant had met while coming from

the matrimonial home.

8.4 The complainant has made allegations with respect

to the fact that the Accused No.1 had an affair with

daughter of Dhansukbhai Bhanubhai but neither the

prosecution had been able to identify Dhansukbhai Bhanubhai

nor his daughter. Moreover, in cross-examination it

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transpires that the complainant had gone to the police

station to file a complaint, even when the dead body of the

deceased was found in the well, and also the fact that when

the deceased had come for the last time to the parental

house, the Accused No.1 had gone for the labour work.

8.5 The brother of the deceased, and the son of the

complainant Abhaysinh Dayra has been examined as PW-4,

vide Exh- 25, in his deposition he has stated that the

relation between the accused and the deceased was cordial

for the first seven months of their marriage. The said

witnesses has stated that, when the deceased had come to

her parental house she had informed that Accused No. 1 had

gone out of town and Accused No.2 and 3 were not talking

to her, and were not eating the food prepared by the

deceased and also were taunting the deceased that they do

not like her and wanted to get Accused No. 1 married to

another lady. He has also stated that after the festival of

Holi, Kanubhai, Dhansukbhai and Shankarbhai had come to

parental house of the deceased to take her to the

matrimonial home. The fact remains that the prosecution has

not examined the said Kanubhai, Dhansukbhai and

Shankarbhai to prove the said fact.

8.6 Moreover, the said witness also states that after

talking to Accused No. 1, he assured that he will not repeat

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the said mistake and it is only after the said assurance that

the brother of the deceased had permitted the deceased to go

to her matrimonial home. If the complaint filed by the

complainant and his deposition and the evidence of the

prosecution is taken into consideration, all the said deposition

talks about the fact that the cousin sister of the deceased

Ramilaben was the first person to find out that the deceased

had jumped into the well, but the prosecution has not

examined the said Ramileben as a witness to the case of the

prosecution. The said witness i.e. PW-4 also admits that after

the marriage more or less the deceased was staying at her

parental house, and she was residing at her parental house

before the date of the incident, and the deceased was happy

at her house. The said witness also is not able to prove and

identify the daughter of Dhansukbhai Batubhai.

8.7 The other brother of the deceased Subhash Dayra

has been examined as PW-5, vide Exh-26, he has also

reiterated that what has been stated by the other witnesses.

He has also admitted the fact that the deceased was happy

at her parental house. The wife of PW-4, Santokben

Abhaysinh Dayra has been examined as PW-6, vide Exh-28,

she has improvised the allegation of cruelty by stating that

the accused used to taunt the deceased for not being fair.

She has admitted that after marriage more or less the

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deceased was staying at her parental house, and she was

staying there for at least four months from the date of

occurrence of the incident.

8.8 The mother of the deceased Kamlaben Dayra has

been examined as PW-7, vide Exh-29, she said that she was

not an eye witness to the said incident, and at the same

time she has also stated that the deceased fell down into the

well while fetching water from it. The prosecution has

examined Rupabhai Manabhai Parmar, the Police Officer who

had stated that the complaint filed vide Exh-22, has been

noted by the Police Officer Gulabsinh Salubhai, and said

Gulabsinh Salubhai has not been examined by the

prosecution. If the entire evidence is taken into consideration,

the prosecution has failed to prove that the deceased was

subjected to harassment and was instigated to commit

suicide.

8.9 The prosecution has examined PW-1, Dr. Mohanlal

Dalchand Kuri vide Exh-10, who was the Medical Officer at

PHC, Dahod, who had conducted the postmortem and the

postmortem report was produced vide Exh-11, and the cause

of death as stated in the postmortem report was asphyxia

due to drowning. The panchnama of scene of offence is

produced vide Exh-15, and the panch Samantsinh has been

examined as PW-2, vide Exh-14.

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8.10 The allegations that have been made are with

respect to that the accused were not eating the food that

was prepared by the deceased, and the Accused No.1 was

having an extra marital affair with the daughter of

Dhansukbhai, but the fact remains that the prosecution has

not been able to trace said Dhansukbhai or his daughter,

and or prove the case that Accused No.1 had an extra

martial affair with the daughter of Dhansukbhai. Moreover,

the fact also remains that the witnesses of the prosecution

i.e. the family members of the deceased themselves have said

that the deceased was most of the time residing at her

parental house, and when the deceased used to come to her

parental house the Accused No.1 was also accompanying her.

8.11 The fact that the deceased had last come to her

parental house with her other daughter, Samath i.e. the

sister of the deceased and her husband Jayesh, the

prosecution has not examined them. Moreover, the brother of

the deceased, i.e. PW-4 has also stated that one Kanubhai

Dhansukbhai and Shankarbhai had come to get the deceased

from her parental house, and the prosecution has also not

examined the said witnesses.

8.12 Moreover, the witness who had first found out

that the deceased has fallen into the well, Ramilaben, i.e. the

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cousin of the deceased was not examined by the prosecution,

and the mother of the deceased also stated that the deceased

fell down while fetching the water from the well. The

Sessions Court has rightly taken into consideration all the

said relevant facts and acquitted the deceased from the

offence under Section 498(A), 306, 114 of the IPC.

9. The evidence on record and the glaring omission

on the prosecution as pointed out above leaves no room of

doubt that the order passed by the trial Court is as per law.

The trial Court has rightly held that there was no positive

evidence on record to prove that the accused by way of the

conduct or spoken words, overtly or covertly, actually aided

and abetted or instigated the deceased in such a manner

that it leaves no other option for the deceased but to commit

suicide. In the present case, the prosecution has also not

been able to prove the clear motive of the accused to commit

offence of abatement. There is also no close connection

between the accused's action and the deceased's choice to

commit suicide. In view of the said fact, the prosecution has

not been able to prove that the accused have stimulated the

deceased to commit suicide.

9.1 The prosecution has not proved that there was a

clear motive to commit the offence of abatement. The

prosecution has also not proved that the accused proceeded to

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encourage and/or irritate the deceased through words or

insults and that the accused intended to urge the deceased to

end it all by committing suicide. The prosecution has also

not been able to prove the direct connection between the

incitement and committal of suicide. The prosecution has also

not been able to prove direct or indirect act of incitement to

the commitment of suicide. The prosecution has also not been

able to prove by accusation of harassment without any

positive action on the part of the accused close to the time

of occurrence that led and forced the deceased to commit

suicide.

9.2 The present matter turns on whether the conduct

attributed to the accused satisfies the legal threshold of

abetment of suicide. Therefore, read as a whole, it can be

said that mere occurrence of a suicide does not automatically

trigger rigours of the Section. The penal consequences under

Section 306 of the Indian Penal Code arise when the

prosecution is able to establish that the accused abetted and

had a role in provoking or facilitating that suicide. Therefore,

this twin test distinction is required to be borne in mind.

9.3 Abetment, as understood in criminal jurisprudence,

is not a broad moral expression but a term of precise

statutory meaning. Section 107 IPC delineates its contours:

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instigation, conspiracy, or intentional aiding. Each of these

modes presupposes active involvement. The law does not

punish omission except in some cases, it punishes intentional

encouragement or positive facilitation of a prohibited act.

9.4 It is therefore not sufficient to show that the

deceased was unhappy, distressed, or subjected to unpleasant

treatment. The jurisprudence developed by the Hon'ble

Supreme Court has consistently underscored that routine

domestic disagreements, suspicion between spouses, or

episodes of harassment do not ipso facto amount to

instigation. Rigours of this Section intervene only where there

is clear evidence of mens rea and a direct causal link

between the accused's conduct and the decision of the

deceased to commit suicide.

9.5 The concept of instigation demands something more

than mere reproach or accusation. It connotes an active

suggestion, an incitement, or conduct of such intensity that it

operates upon the mind of the victim and pushes him or her

toward this drastic and unfortunate step. The prosecution

therefore, must demonstrate either a deliberate intention to

drive the deceased to suicide or knowledge that the conduct

in question was likely to produce that consequence. Equally

indispensable is the requirement of proximity. The law insists

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on a live and immediate nexus between the acts complained

of and the suicide. A remote or generalized allegation is

insufficient. There must be evidence showing that the accused

engaged in conduct so closely connected in time and effect

with the suicide that it can reasonably be said to have

triggered the fatal act.

9.6 No material has been brought on record

demonstrating any proximate act immediately preceding the

suicide which could be construed as instigation. Nor is there

evidence of a positive act amounting to intentional aid. The

essential ingredients of abetment -namely, culpable mental

state coupled with active or proximate conduct-are not

established.

9.7 On an overall assessment of the evidence, the

prosecution has failed to demonstrate the existence of the

foundational elements necessary to sustain a conviction under

Section 306 IPC.

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

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is to goad, urge forward, provoke, incite or encourage to do

"an act". To satisfy the requirement of instigation though it

is not necessary that actual words must be used to that

effect or what constitutes instigation must necessarily and

specifically be suggestive of the consequence. Yet a reasonable

certainty to incite the consequence must be capable of being

spelt out. A word uttered in the fit of anger or emotion

without intending the consequences to actually follow cannot

be said to be instigation.

10.1 In the case of Mahendra Awase v. State of

Madhya Pradesh, 2025 (1) Crimes 347 (SC), the observations

are made with regard to abetment of suicide. It has been

held that in order to bring a case within purview of Section

306 IPC, there must be a case of suicide and in commission

of said offence, person who is said to have abetted

commission of suicide must have played active role by act of

instigation or by doing certain act to facilitate commission of

suicide. It has been further observed that the act of

abetment by person charged with said offence must be proved

and established by prosecution before he could be convicted

under Section 306 IPC. It is further observed that to satisfy

requirement of instigation, accused by his act or omission or

by a continued course of conduct should have created such

circumstances that deceased was left with no other option,

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except to commit suicide.

10.2 In the case of Amalendu Pal alias Jhantu versus

State of West Bengal, (2010) 1 SCC 707, it has been held

that in a case of alleged abetment of suicide, there must be

proof of direct or indirect act(s) 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 deceased to commit suicide, conviction in terms

of Section 306 IPC would not be sustainable.

10.3 In the case of Rajesh v. State of Haryana, (2020)

15 SCC 359, after considering the provisions of Sections 306

and 107 of IPC, the Court held that 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.

10.4 In the case of Amudha v. State, 2024 INSC 244,

it was held that there has to be an act of incitement on the

part of the accused proximate to the date on which the

deceased committed suicide. The act attributed should not

only be proximate to the time of suicide but should also be

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of such a nature that the deceased was left with no

alternative but to take the drastic step of committing suicide.

11. Further, learned APP is not in a position to show

any evidence to take a contrary view in the matter or that

the approach of the Court below is vitiated by some manifest

illegality or that the decision is perverse or that the Court

below has ignored the material evidence on record. In above

view of the matter, this Court is of the considered opinion

that the Court below was completely justified in passing

impugned judgment and order.

12. Considering the impugned judgment, the trial

Court has recorded that there was no direct evidence

connecting the accused with the incident and there are

contradictions in the depositions of the prosecution witnesses.

In absence of the direct evidence, it cannot be proved that

the accused are involved in the offence. Further, the motive

of the accused behind the incident is not established. The

trial Court has rightly considered all the evidence on record

and passed the impugned judgment. The trial Court has

rightly evaluated the facts and the evidence on record.

13. It is also a settled legal position that in acquittal

appeal, the appellate court is not required to re-write the

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judgment or to give fresh reasoning, when the reasons

assigned by the Court below are found to be just and proper.

Such principle is down by the Apex Court in the case of

State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC

1417 wherein it is held as under:

                                                 "...      This        court            has    observed      in     Girija
                                                 Nandini             Devi             V.     Bigendra           Nandini
                                                 Chaudhary (1967)1 SCR 93: (AIR 1967 SC
                                                 1124)        that     it        is    not    the    duty       of     the

appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."

14. Thus, in case the appellate court agrees with the

reasons and the opinion given by the lower court, then the

discussion of evidence at length is not necessary.

15. In the case of Ram Kumar v. State of Haryana,

reported in AIR 1995 SC 280, Supreme Court has held as

under:

                                                 "The     powers            of        the    High    Court       in     an






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appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and

effectively be dislodged or demolished, the

High Court should not disturb the order

of acquittal."

16. As observed by the Hon'ble Supreme Court in the

case of Rajesh Singh & Others vs. State of Uttar Pradesh

reported in (2011) 11 SCC 444 and in the case of

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Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the trial

Court is found to be perverse, the acquittal cannot be upset.

It is further observed that High Court's interference in such

appeal in somewhat circumscribed and if the view taken by

the trial Court is possible on the evidence, the High Court

should stay its hands and not interfere in the matter in the

belief that if it had been the trial Court, it might have

taken a different view.

17. In the case of Chandrappa v. State of Karnataka,

reported in (2007) 4 SCC 415, the Hon'ble Apex Court has

observed as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on

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exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his

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acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

18. The Hon'ble Apex Court, in a recent decision, in

the case of Constable 907 Surendra Singh and Another V/s

State of Uttarakhand reported in (2025) 5 SCC 433, has held in paragraph 24 as under:

"24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

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19. Considering the aforesaid facts and circumstances

of the case and law laid down by the Hon'ble Supreme Court

while considering the scope of appeal under Section 378 of

the Code of Criminal Procedure, 1973 no case is made out to

interfere with the impugned judgment and order of acquittal.

20. In view of above facts and circumstances of the

case, on my careful re-appreciation of the entire evidence, I

found that there is no infirmity or irregularity in the

findings of fact recorded by learned trial Court and under