Rajasthan High Court - Jodhpur

State vs Bhikh Nath And Ors. (2025:Rj-Jd:14438) on 18 March, 2025

Author: Dinesh Mehta

Bench: Dinesh Mehta

[2025:RJ-JD:14438]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 84/2015

Jasnath Swami S/o Bhomnath, R/o Inside Shambhu Bhawan, Fateh Sagar, Jodhpur.

----Appellant Versus

1. Bheeknath S/o Bhanwar Nath, R/o Naya Bas No.2, Near Hanuman Temple, Sirohi, District Sirohi.

2. Vari Devi W/o Bheeknath, R/o Naya Bas No.2, Near Hanuman Temple, Sirohi, District Sirohi.

----Respondents Connected With S.B. Criminal Appeal No. 611/2015 State of Rajasthan

----Appellant Versus

1. Bheeknath S/o Bhanwar Nath, R/o Naya Bas No.2, Near Hanuman Temple, Sirohi, District Sirohi.

2. Vari Devi W/o Bheeknath, R/o Naya Bas No.2, Near Hanuman Temple, Sirohi, District Sirohi.

                                                                    ----Respondents


For Appellant(s)             :     Mr. Anil Gupta
                                   Mr. Mrinal Khatri
For Respondent(s)            :     Mr. Hanuman Prajapat, PP
                                   Mr. Pradeep Choudhary



                        JUSTICE DINESH MEHTA

                                    Judgment

Reportable                                                           18/03/2025

1. The present appeals have been preferred under section 372

r/w section 378 of Code of Criminal Procedure, 1973 (hereinafter

referred to as 'Cr.P.C.') by the appellant - complainant so also by

the State against the judgment and order dated 09.12.2014

passed by the learned Additional Sessions Judge No.2, Jodhpur

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Metropolitan, Jodhpur (hereinafter referred to as 'the trial court'),

whereby the accused - persons namely Bhiknath, Bhanwar Nath

and Vari Devi have been acquitted of the charges under section

306 of the Indian Penal Code, 1860 (hereinafter referred to as

'I.P.C.') levelled against them.

2. Learned counsel for the appellant at the outset submitted

that accused Bhanwar Nath (respondent No.2) has since passed

away and the appeal against him has therefore, been abated.

Ordered accordingly.

3. The facts appertain are that on 01.01.2006 one Dinesh @

Bhupendra Nath has committed suicide by hanging himself with a

rope tied to the fan in his room.

4. Initially, the competent authority looked into the matter

under section 174 Cr.P.C.; an inquest was issued however, no FIR

was registered though a written complaint was submitted by the

father of the deceased on 02.01.2006. The complainant - Jasnath

(Father of the deceased) again made a representation dated

19.01.2006 and in furtherance whereof, a case was registered on

20.01.2006 vide FIR No.19/2006 in Police Station - Sadar Kotwali,

Jodhpur.

5. After the investigation, the police had filed a negative final

report; against which the complainant filed a protest petition.

Pursuant to the protest petition, investigation was carried out

during which the police recovered a suicide note (Ex.P/10) so also

the diary, which the deceased - Dinesh used to maintain (Ex.P/9).

6. Charge-sheet then came to be filed; whereafter the case was

committed to the Court of Session and the charges under section

306 I.P.C. were framed against the accused persons.

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7. The accused persons denied the allegations and thus they

were tried for the offence alleged.

8. During the course of trial, Rajendra Arora (PW-1) appeared

in the witness box and proved the seizure of the diary (Ex.P/1)

and site inspection memo (Ex.P/2); while Premchand (PW-2)

proved the inquest report (Ex.P/3), Panchnama (Ex.P/4), seizure

memo of odani (Ex.P/5) and memo of handing over of corpse to

PW-6 (Ex.P/6). Bhim Nath (PW-3)(Maternal Uncle of the

deceased) appeared in the witness box and proved two

photographs of Khushboo (wife of the deceased)(Ex.D/1 and D/2)

and statement of Premchand recorded during inquiry under

section 174 Cr.P.C. (Ex.D/3). Ghewar Nath (PW-4) and Chain Nath

(PW-5) (another maternal uncles of the deceased) appeared in the

witness box and maintained the statements which they gave

under the proceedings of section 202 of the Cr.P.C (Ex.D/4). The

complainant - Jasnath (PW-6) appeared in the witness box and

proved the report dated 02.01.2006 (Ex.P/7), which was

registered as 'Marg' or 'death report', typed complaint dated

19.01.2006 (Ex.P/8), diary of the deceased (Ex.P/9), suicide note

(Ex.P/10) and his application regarding postponement of

investigation as the family was bemourned (Ex.P/11). Kan Nath

(PW-7) appeared in the witness box and proved the statement

given under section 161 of the Cr.P.C. (Ex.D/5) and statement

given under section 202 of the Cr.P.C. (Ex.D/6). Bhanwari Devi

(PW-8) (Mother of the deceased) proved the photographs of

Khushboo (Ex.D/1 and D/2). Dr. M. P. Joshi (PW-9) proved the

post-mortem report and the cause of death (Ex.P/9) while Lal

Singh (Investigating Officer)(PW-10) deposed about the inquiry,

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which he had conducted under section 174 of the Cr.P.C. between

02.01.2006 and 23.01.2006. Kishor Singh, S.H.O. (PW-11), who

investigated the case and furnished the final negative report,

appeared in the witness box and proved the same. Dr. Amita

Bhargav (PW-12) (Neuron Physician), who had examined

Khushboo, proved her report (Ex.D-7) and deposed that Khushboo

was not suffering from polio/paralysis and that she was able to do

all the household chores.

9. On behalf of the prosecution, three maternal uncles (PW-3,

PW-4 and PW-5) and complainant - Jasnath (PW-6) appeared in

the witness box to support the prosecution's case.

10. Upon considering the oral and ocular evidence, the trial court

vide judgment dated 09.12.2014 acquitted the accused persons

by giving benefit of doubt on various counts, including that the

suicide note (Ex.P/10) and the diary (Ex.P/9), which were

recovered and alleged to be that of the deceased person were not

proved to be hand-written by the deceased.

11. While holding so, the trial court also observed that the

Investigating Officer (PW-10) did not get the diary and the suicide

note examined by the handwriting expert and therefore, the fact

that diary and the suicide note were drawn by the deceased was

not proved.

12. The trial court has further observed that none of the

witnesses have been able to prove that any of the accused

persons have ever induced/propelled the deceased or compelled

him to commit suicide so as to bring on record any act which

would fall within the ambit of section 306 of the I.P.C. It was

further observed that the deceased who committed suicide on

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01.01.2006 had no contact with the accused persons after

28.12.2005.

13. Assailing the order of the learned trial court, learned counsel

for the appellant argued that the trial court has committed a

serious error of law in acquitting the accused persons. It was

argued that the suicide note and the diary, which had been

recovered from the person and possession of the deceased, belong

to the deceased - Dinesh and in the teeth of what has been

written in the suicide note, the allegation of abetment of suicide

punishable under section 306 of I.P.C. was erroneously found not

proved.

14. Taking the Court through the suicide note (Ex.P/10) and the

diary of the deceased (Ex.P/9), learned counsel argued that there

is enough incriminating evidence pointing that the accused

persons had abetted the deceased to commit suicide. Learned

counsel argued that simply because the prosecution failed to get

the opinion of handwriting expert in relation to the diary and

suicide note, the accused persons could not have been

exonerated.

15. Learned counsel further took the Court through the

testimony of maternal uncles of the deceased (PW-3, PW-4 and

PW-5) and the complainant - Jasnath (PW-6) and argued that

sufficient oral evidence had been tendered by the prosecution and

the complainant party to bring the charge of section 306 of the

I.P.C. home. He thus argued that the trial court has committed an

error of law in acquitting the accused persons and prayed that the

order under challenge be set aside and accused persons - 1 and 3

be convicted for offence under section 306 of I.P.C.

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16. Learned Public Prosecutor also joined Mr. Anil Gupta, learned

counsel for the appellant and submitted that there was enough

evidence and material pointing towards overt act of the accused

persons due to which the deceased was impelled to commit

suicide. He argued that lapse on the part of the Investigating

Officer (PW-10) of not getting the opinion of the handwriting

expert cannot be a sole reason of giving a clean chit to accused

persons, particularly when the other persons, namely, maternal

uncles of the deceased (PW-3, PW-4 and PW-5) and the

complainant - Jasnath (PW-6) and the Investigating Officer (PW-

10) have deposed against them.

17. Mr. Choudhary, learned counsel for the accused persons

argued that the prosecution has left a grave lacuna in the

investigation by not sending the suicide note and the diary for

forensic examination. He argued that unless the fact that the diary

and the suicide note have been drawn by the deceased person

was proved no cognizance of the recitals made in the suicide note

and the diary could be taken.

18. He alternatively argued that even if the suicide note is taken

into account, there is nothing to show that it were the accused

persons who had instigated or aided or created a situation due to

which the deceased had to take an untoward decision of

committing suicide.

19. He argued that the deceased person was dissatisfied with his

matrimony with Khushboo and within 45 days of the marriage, he

ended his life. There was no serious allegation as contended by

the complainant against the accused persons.

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20. He argued that entire evidence which the prosecution had

led does not bring out any case for abetment of suicide.

21. Heard learned counsel for the parties and perused the

material available on record.

22. The case of the appellant is premised strongly on the recitals

made in the suicide note and the diary and both of these vital

documents were not sent for forensic examination. In absence of

such forensic corroboration, it cannot be said with certitude that

such suicide note was drawn by the deceased. Such lacuna on the

part of the prosecution is grave enough to be ignored.

23. The complainant and prosecution still had an opportunity to

lead direct evidence or circumstantial evidence to show that the

handwriting in the subject diary (Ex.P/9) and the suicide note

(Ex.P/10) was that of the deceased person, but no evidence worth

the name to this effect had been led. The recitals made in the

suicide note and the diary were, therefore, not proved in the eye

of law.

24. In the case of Shashi Kumar Banerjee & Ors. vs. Subodh

Kumar Banerjee reported in AIR 1964 SC 529, Hon'ble the

Supreme Court while holding a similar view, has observed thus :-

"Besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly in consistent with it."

25. Upon sifting through the oral evidence led by maternal

uncles of the deceased (PW-3, PW-4 and PW-5) and the

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complainant - Jasnath (PW-6) (father of the deceased), what at

the best can be concluded is that there was a matrimonial discord

between the deceased and his wife. But there is not even iota of

evidence that shows any act of incitement on the part of accused

persons. Their deposition does not bring on record any incident

having proximity or nexus with the commission of suicide.

26. Also, there is inconsistency in the testimonies of prosecution

witnesses. PW-3 and PW-4, deposed that the wife of the deceased

was suffering from polio/paralysis in one hand and leg whereas

PW-6 deposed that she was suffering from polio/paralysis in one

hand. This casts serious doubt about the credibility of witnesses'

testimony, more particularly when Dr. Amita Bhargav (PW-12) had

denied the factum of any physical deformity in khushboo due to

polio or otherwise.

27. Even if the argument advanced by learned counsel for the

appellant (complainant - Jasnath) is presumed to be correct and it

is believed that deceased was harrased and conspired to marry

Khushboo, who was allegedly suffering from Polio, then also, by no

stretch of imagination can it be said that there was any active or

direct act/role on the part of accused persons to leave the

deceased with no other option but to commit suicide. The proof or

evidence of marital disharmony for whatever reason cannot be a

proof of abetment of suicide. "There must be evidence of an act of

incitement in immediate proximity with the incident of suicide so

as to hold such act to be an act of abetment of suicide".

28. If the provision of section 306 of the I.P.C. and the definition

of abetment given under section 107 of the I.P.C. are taken into

consideration, the evidence led by the prosecution does not

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establish that there was any instigation - direct or proximate to

bring the case within the ambit of the abetment of suicide under

Section 306 of I.P.C. Without there being any positive proximate

act of instigation or aiding in commission of suicide on the accused

persons, an accused person cannot be convicted. The instigation

or provocation (if any) should be as such to transpire a definite

'mens-rea' to abet the deceased person to commit suicide.

29. On combined reading of the testimony of the witnesses what

transpires is that the deceased - Dinesh was however dissatisfied

or disgruntled with his marriage with Khushboo. His grievance (if

any) was with Khushboo. And surprisingly enough Khushboo had

not been arrayed as an accused. It is apparent that the deceased

ended his life for the reasons best known to him. Neither the

unproved Diary (Ex.P/9) nor does the suicide note (Ex.P/10) (even

if it is taken into account) or the oral deposition of relatives of the

deceased (PW-3, PW-4, PW-5 & PW-6) bring to fore any incident

or evidence having direct correlation with the act of suicide.

30. Hon'ble the Supreme Court in catena of judgments including

in the case of Amalendu Pal @ Jhantu vs State of West Bengal

reported in (2010) 1 SCC 707, has observed a similar position of

law, which is being reproduced as below :-

"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."

31. There is no immediate link between the act of suicide and

alleged action of the accused persons. No act of instigation or

[2025:RJ-JD:14438] (10 of 10) [CRLA-84/2015]

provocation could be attributed to accused persons due to which

the deceased was left with no other alternative but to commit

suicide. Bald allegations or even assertions without substantive

corroboration and the mere factum of suicide cannot be a reason

to implicate and hold the persons guilty of the offence under

section 306 of the I.P.C.

32. In the case of Patel Babubhai Manohardas & Ors. vs. State of

Gujarat, reported in MANU/SC/0321/2025, Hon'ble the Supreme

Court has observed that instigation must involve goading, urging

or provoking the deceased to commit suicide and there must be a

proximate act leading to suicide. The relevant part is being

reproduced hereinafter :-

"Abetment to commit suicide involves a mental process of instigating a person or intentionally aiding a person in the doing of a thing. Without a positive proximate act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Besides, in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence."

33. As an upshot of the discussion foregoing, this Court does not

find any error or infirmity in the judgment dated 09.12.2014,

impugned in the present appeals. The appeals are therefore

dismissed.

(DINESH MEHTA),J 83 & 84-Arun/-