[Cites 18, Cited by 0]

Gujarat High Court

State Of Gujarat vs Bhupatbhai Naginbhai Baraiya on 25 March, 2026

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                        R/CR.A/1911/2010                                              CAV JUDGMENT DATED: 25/03/2026

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                                                                                  Reserved On   : 10/03/2026
                                                                                  Pronounced On : 25/03/2026

                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                            R/CRIMINAL APPEAL NO. 1911 of 2010

                      ==========================================================
                                                   STATE OF GUJARAT
                                                         Versus
                                           BHUPATBHAI NAGINBHAI BARAIYA & ORS.
                      ==========================================================
                      Appearance:
                      MS SHRUTI PATHAK, APP for the Appellant(s) No. 1
                      ABATED for the Opponent(s)/Respondent(s) No. 1,4
                      MR TULSHI R SAVANI(3070) for the Opponent(s)/Respondent(s) No. 1,4
                      MS BHAVIKA H KOTECHA(2942) for the Opponent(s)/Respondent(s) No.
                      2,3,5,6
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                          CAV JUDGMENT

1. Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 17.08.2010, passed by

the learned Sessions Judge, Bhavnagar, in Sessions Case

No.171 of 2007, for the offences punishable under Sections

306, 504, 506(2) 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"). By an order dated 20.01.2026, the present

appeal has abated qua respondent nos.1 and 4, in view of

the fact that respondent no.1 had expired on 08.01.2017 and

respondent no.4 had expired on 03.06.2022. The appeal is

heard qua respondent nos.2, 3, 5 and 6.

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2. The prosecution case as unfolded during the trial

before the trial Court is that the accused No. 2, Jaguben, is

the wife of the complainant in this case. On 20.02.2007 at

around 07:00 p.m., when the complainant and his wife

(accused No. 2) were at their house, the complainant

reprimanded accused No. 2 because she was maintaining an

illicit relationship with accused No. 1. Upon being

reprimanded, accused No. 2 started speaking abusively and

stated that she wished to continue her illicit relationship

with accused No. 1. It is further alleged that earlier also

accused Nos. 1 and 2 had frequently abused the complainant

regarding this issue, harassed him, and threatened to kill

him. Accused No. 2 had also repeatedly filed false complaints

against the complainant at Ghogha Police Station in order to harass him. Being fed up with the above-stated mental

harassment caused by the accused, the complainant poured

kerosene on his body and set himself on fire. The

complainant's brother, sister-in-law, and maternal aunt took

him to the hospital. While in a fully conscious state, the

complainant lodged a complaint against the accused. Thus, it

is the case of the prosecution that the accused, in collusion

with each other, subjected the complainant to physical and

mental cruelty and instigated him to commit suicide, thereby

abetting the commission of suicide, therefore, the complaint

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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.171 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 7 witnesses and also produced 22 documentary

evidence before the trial Court, which are described in the impugned judgment.

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

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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

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. Learned advocate Ms.Bhavika H. Kotecha for the

respondent nos.2, 3, 5 and 6 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

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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

produced vide exhibit-46 wherein the deceased Ashokbhai

Chitharbhai Chudasma has given a statement before the

police that on 20.07.2007, at around 07.00 p.m., he had

scolded his wife i.e. accused no.2 for having illicit relationship

with accused no.1, at that time accused no.2, i.e. the wife of

the deceased had quarrelled with her and had informed the deceased that, accused no.2 shall continue to have illicit

relation with accused no.1 and in the said complaint the

deceased had stated that earlier also his wife, i.e. accused

no.2 and accused no.1, had abused the deceased and have

threatened him of his life and for no fault of the deceased

the accused nos.1 and 2 used to mentally harass the

deceased and accused no.2 i.e. the wife of the deceased time

and again used to file false complaint against the deceased

at Ghogha Police Station and because of accused nos.1 and

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2's mental harassment, on 20.02.2007, accused no.2 wife had

quarrelled with the deceased which mentally affected the

deceased and he poured kerosene on himself and committed

suicide and thereafter, the elder brother of the deceased

Rameshbhai Chitharbhai and his wife Hemlataben and her

aunt Hiraben had taken the deceased to Sir Takhtasinhji

General Hospital for treatment in the burns ward. Sir

8.2. The prosecution has examined Dr.Devshibhai Ashwinbhai

Bhatt vide exhibit-49 as P.W.7, he was a treating Doctor at

Sir Takhtasinhji Hospital General Hospital and in his

deposition he has stated that the brother of the deceased had

been at the hospital and on 20.02.2007 when he had

examined the deceased he was conscious and his pulses and

blood pressure were normal.

8.3. The complaint which is produced vide exhibit-46 was

written by the Police Officer-Pravinchandra Joshi who was at

duty at Hospital Police Chowki and he had sent the Yadi to

Executive Magistrate for taking the Dying Declaration. The

Yadi that was sent to the Police Officer is produced vide

exhibit-17 and the Dying Declaration is produced vide exhibit-

18, wherein a certificate has been issued by

Dr.V.C.Ramdevputram that the deceased was conscious at

11.40 hours.

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8.4. The prosecution has examined the Executive Magistrate-

Mehboobbhai Shaikh vide exhibit-16 as P.W.1. The

prosecution has examined Dr.V.C.Ramdevputram as P.W.4

who had conducted the postmortem on the deceased, but the

said doctor who has been examined as P.W.4, does not state

that he had examined the deceased on 20.02.2007, at 11.40

hours, to certify that the said patient (deceased) was

conscious to give the dying declaration.

8.5. The prosecution has examined the brother of the

deceased Ramesh Chaturbhai, vide exhibit-34, as P.W.2, the

said witness had brought the deceased to the hospital and at

that point of time, the deceased had informed the said

witness that deceased had poured kerosene on himself, because of the affair of accused nos.1 and 2.

8.6. The wife of P.W.2 had been examined vide exhibit-35 as

P.W.3. The Dr.Vijay Chaturbhuj Ramdevputram has been

examined as P.W.4, vide exhibit-36 and the postmortem

report is produced vide exhibit-37 and as per the postmortem

report the cause for death of the deceased was due to shock

due to extensive burns.

8.7. The P.S.I.-Mahadev Rabari has been examined vide

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exhibit-38 as P.W.5. In his deposition he has stated that he

had taken statements of the neighbours. The said witness

also states that he had taken the statement of Haribhai

Dabhi who was the first person to reach near the deceased

after he had poured kerosene on himself and tried to burn

himself. If the entire evidence is taken into consideration the

deceased had only given the name of accused nos.1 and 2 for

mentally harassing the deceased and abetting the deceased to

commit suicide. Even before the police vide exhibit-46, the

deceased had given the name of accused nos.1 and 2 for

abetting the deceased to commit suicide and it is only in the

dying declaration that the name of all accused have been

stated by the deceased.

8.8. If the case of the prosecution is taken into consideration, the evidence of the brother of the deceased P.W.2 is taken

into consideration, the said witness has denied the fact that

he along with his wife had put a blanket on the deceased

when the deceased had poured kerosene on himself and was

burning and has stated that only Haribhai Dabhi was

present.

8.9. In the present case there are more than one dying

declaration but the fact remains that in all the said dying

declaration there are lot of contradictions. As stated above

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the statement that was made at the hospital to P.W.2 and

P.W.3 by the deceased only gives the name of accused nos.1

and 2 and even before the police the name of accused nos.1

and 2 had been disclosed by the deceased and in the dying

declaration, the deceased has given the name of all the

accused. If the evidence of P.W.2 is taken into consideration

he has only stated that the deceased has taken the step of

committing suicide only because accused nos.1 and 2 are

having illicit relation. Therefore, the deceased had only stated

that in past accused nos.1 and 2 had illicit relation. There

are lot of contradictions in the deposition of P.W.3, who has

been examined vide exhibit-34 and the brother of the

deceased with respect to the reasons given by the deceased

for committing suicide. The deceased had informed the

brother of the deceased that as accused nos.1 and 2 are having illicit relation, he has committed suicide and P.W.3

who alleged to be present at the time when the said facts

are stated by the deceased, has stated that as deceased had

scolded accused no.2 and told her not to keep illicit relation

with accused no.1 and as accused nos.1 and 2 are constantly

harassing the deceased, he has committed suicide. Therefore

there are lot of contradictions in the statement given by the

deceased.

8.10. Moreover, it has also been stated in the complaint

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produced vide exhibit-46 that time and again the accused

nos.1 and 2 are abusing the deceased and filing false

complaint at Ghogha Police Station but the fact remains that

no such complaint has been produced by the prosecution to

prove the said fact. If the evidence of Dr.Devashibhai

Ashwinbhai Bhatt is taken into consideration, he has stated

that the deceased had informed him that as the character of

accused no.2 was not good he had no other option but to

pour kerosene on himself and commit suicide. When the

deceased was taken for treatment at 09.30 on 20.02.2007, he

had stated that as his wife's character was not good, he

poured kerosene on himself and at 11.40

Dr.V.C.Ramdevputram has in his case papers stated that as

the deceased was harassed by his wife he has committed

suicide. Therefore, there are contradictions in the statements given by the deceased before two doctors. Even the dying

declaration which is on record also states that his wife had

an affair with accused no.1 and as the deceased could not

tolerate the same he has poured kerosene on himself and at

that time accused no.2 was present and has stated that he

was harassed by accused no.1 and other accused and all the

accused had threatened that they will take away his wife

and thereafter kill him and therefore he had taken the said

step.

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8.11. From the aforesaid facts, there are lot of contradictions

in the dying declaration that has been given before the Police

and before the Doctors and the dying declaration is produced

vide exhibit-18.

9.1 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.

9.2 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

encourage and/or irritate the deceased through words or

insults and that the accused intended to urge the deceased to

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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.

9.3 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.

9.4 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:

instigation, conspiracy, or intentional aiding. Each of these

modes presupposes active involvement. The law does not

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punish omission except in some cases, it punishes intentional

encouragement or positive facilitation of a prohibited act.

9.5 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.

9.6 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

on a live and immediate nexus between the acts complained

of and the suicide. A remote or generalized allegation is

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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.

9.7 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.

9.8 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

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

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

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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,

except to commit suicide.

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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

of such a nature that the deceased was left with no

alternative but to take the drastic step of committing suicide.

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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

judgment or to give fresh reasoning, when the reasons

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

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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 appeal from order of acquittal to reassess the evidence and reach its own conclusions

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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

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

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

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







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                                              (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."

19. Considering the aforesaid facts and circumstances

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

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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