Gujarat High Court
State Of Gujarat vs Niranjan Kanji Chudasama on 9 January, 2025
NEUTRAL CITATION
R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1295 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
NIRANJAN KANJI CHUDASAMA & ORS.
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Appearance:
MR. BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR RC KAKKAD(389) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/01/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court No. 6, Veraval (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 76 of 2002 on 31/01/2008, whereby, the learned Trial Court has extended the benefit of doubt and acquitted the respondent for the offence punishable under Sections 498-A , 306 and 114 of Indian Penal Code, 1860 (hereafter referred to as "IPC" for short.) Page 1 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined 1.1 The respondents are hereinafter referred to as "the accused" as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 The complainant Mohanbhai Nathabhai Vaghela is the brother of deceased Kantaben and deceased Kantaben was married to the accused No. 1 about two years prior to the incident. The accused No. 2 is the sister-in-law of the deceased and the accused No. 3 is the aunty-in-law of the deceased. As per the complaint, the deceased was being ill-treated by the accused, as she could not bear a child and all the accused used to mentally and physically harass deceased Kantaben and on 12/04/2002 at around 05:00 pm, the deceased poured kerosene on herself and set herself ablaze. That she was taken to the Allopathy Dispensary at Chorvad and from there to the Government Hospital, Veraval and thereafter to the Civil Hospital, Junagadh, where she succumbed to her burn injuries on 16/04/2002. The complaint was registered at Chorvad Police Station being I-C.R.No. 22 of 2002 under the provision of Page 2 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined Sections 306, 498-A and 34 of the Indian Penal Code, 1860. 2.2 The Investigating Officer recorded the statements of the connected witnesses, drew the necessary panchnamas, collected the necessary documents including the medical certificate, dying declaration of Kantaben recorded by the Executive Magistrate, Veraval, Postmortem report etc. and after the FSL analysis reports were received, a chargesheet came to be filed before the learned Judicial Magistrate First Class, Maliya Hatina and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Veraval as per the provisions of Section 209 of the Code of Criminal Procedure and the case was registered Sessions Case No. 176 of 2002.
2.3 The accused were duly served with the summons and the accused appeared before the learned Trial Court, and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code and a charge at Exh. 1 was framed against the accused and the statements of the accused were recorded at Exhs. 2 to 4 respectively, wherein, the accused denied all the contents of the Page 3 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined charge and the entire evidence of the prosecution was taken on record.
2.4 The prosecution has examined ten witnesses and produced 36 documentary evidences in support of their case and after the closing pursis was filed by the learned APP at Exh. 62, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded wherein the accused denied all the evidence of the prosecution and after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit the accused from all the charges leveled against them.
3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgement and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has failed to appreciate the oral evidence of the witnesses, who are the close relatives of the deceased. The prosecution has proved that the accused caused mental and physical harassment to the deceased and were taunting Page 4 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined her as she could not bear a child and they subjected her to cruelty and compelled and induced her to commit suicide by pouring kerosene on her body and as she sustained serious burn injuries, she succumbed to her injuries during course of treatment. The complainant has fully supported the case of the prosecution and in in fact on the previous day of the incident, the deceased and the accused No. 1 had gone to the house of the complainant and the deceased was continuously informing her brothers and mother that she was subjected to mental and physical harassment. That all the documentary evidences also support the case of the prosecution but the learned trial Court has not relied on the same and the impugned judgment is contrary to the evidence on record and hence the same is required to be quashed and set aside.
4. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. R.C.Kakkad for the respondents. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
5. Learned APP Mr. Bhargav Pandya has taken this Court through the entire evidence of the prosecution on record and submitted that the Page 5 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined oral and documentary evidences prove that the deceased Kantaben had poured kerosene on herself at her matrimonial home and she suffered serious burn injuries and succumbed to the burn injuries during treatment. The witnesses, who were family members of the deceased Kantaben, have deposed that she was subjected to mental and physical harassment and she used to inform her family members about the cruelty meted out to her at matrimonial home by the accused. The learned trial Court has grossly erred in acquitting the accused and learned APP has urged this Court to quash and set aside the judgement and order of acquittal and find the respondents guilty for the said offence.
6. Learned advocate Mr.R.C.Kakkad for the respondents has submitted that from the evidence of the prosecution on record, it is proved that the immediately after the incident of burn had occurred, the deceased Kantaben was taken to the Allopathy Dispensary at Chorvad by the accused No. 1 and in the history, she had stated that she had sustained burn injuries while she was preparing tea on the primus stove and she had worn a gown, which had caught fire. That she had categorically stated before the Medical Officer at the Allopathy Dispensary, Chorvad and the Page 6 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined Government Hospital, Veraval, that she had sustained burn injuries, while preparing tea and there was no ill-treatment by any of her in-laws. Learned advocate Mr. Kakkad has submitted that the dying declaration of deceased Kantaben was recorded on 12/04/2002 at 19:30 Hrs; by the Executive Magistrate, Veraval at the Government Hospital, Veraval, wherein, the Residential Medical Officer (RMO) of Government Hospital has endorsed that injured was fully conscious to give a statement, which was recorded in his presence and in the dying declaration, she has categorically stated that she was preparing tea and the flame from the primus caught her cloths and her husband and other in-laws brought her to the hospital. Moreover, prior to the incident, a Criminal Case No. 167 of 2001 was registered before the learned Judicial Magistrate First Class, Maniya Hatina, wherein, the deceased Kantaben, her mother Janiben Nathabhai Vaghela and her father Nathabhai Lakhabhai Vaghela had given their depositions on oath, wherein, they all have categorically stated that there were minor verbal altercations between the deceased and the accused No. 1 but there was no physical or mental ill-treatment meted out to her. That due to some minor verbal altercations, she had came to her parental home and wanted to go back and hence Page 7 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined filed the case and her in-laws had never tortured her as she could not bear a child. The learned trial Court has considered all the evidences of the prosecution on record and has rightly acquitted the accused and learned advocate Mr. Kakkad has urged this Court to reject the appeal of the appellant-State.
7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under:
"24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concertized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant Page 8 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
1. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution.
Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by re appreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka, "13. Considering the reasons given by the trial Court and on appraisal of the evidence, in our considered view, the view taken by the trial Court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial Court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial Court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial Court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) In Sanjeev v. State of H.P., the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:-
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7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial Court in acquitting the accused must be dealt with, in case the appellate Court is of the view that the acquittal rendered by the trial Court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka, Anwar Ali v. State of H.P.) 7.2. With an order of acquittal by the trial Court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.) 7.3. If two views are possible from the evidence on record, the appellate Court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala)."
7.1 In Para - 36, the Apex Court, in the case of Mallappa (Supra), has observed as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-
(i)Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii)Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii)If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv)If the view of the Trial Court is a legally plausible view mere possibility of a contrary view shall not justify the reversal of acquittal;
(v)If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi)In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an Page 10 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined acquittal. That the learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. That there is no inhibition to reappreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same.
9. The accused have been charged with the offence under Section 306 of the IPC and with regard to Section 306 of the IPC it would be fit to reproduce the observations of the Apex Court in the case of Prakash and others versus State of Maharashtra in the order passed in Criminal Appeal No. of 2024 (Arising out of SLP (Cri.) No. 1073 of 2023 on 20 December 2024 in paras 12 to 22 which are as under :-
12. The relevant provisions of the IPC that fall for consideration are as under:
"306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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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 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."
13. Section 306 of the IPC has two basic ingredients-first, an act of suicide by one person and second, the abetment to the said act by another person(s). In order to sustain a charge under Section 306 of the IPC, it must necessarily be proved that the accused person has contributed to the suicide by the deceased by some direct or indirect act. To prove such contribution or involvement, one of the three conditions outlined in Section 107 of the IPC has to be satisfied.
14. Section 306 read with Section 107 of IPC, has been interpreted, time and again, and its principles are well- established. To attract the offence of abetment to suicide, it is important to establish proof of direct or indirect acts of instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased. Such instigation or incitement should reveal a clear mens rea to abet the commission of suicide and should put the victim in such a position that he/she would have no other option but to commit suicide.
15. The law on abetment has been crystallised by a plethora of decisions of this Court. Abetment involves a mental process of instigating or intentionally aiding another person to do a 10 particular thing. To bring a charge under Section 306 of the IPC, the act of abetment would require the positive act of instigating or intentionally aiding another person to commit suicide. Without such mens rea on the part of the accused person being apparent from the face of the record, a charge under the aforesaid Section cannot be sustained. Abetment also requires an active act, direct or indirect, on the part of the accused person which left the deceased with no other option but to commit suicide.
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16. This Court in the case of S.S. Chheena v. Vijay Kumar Mahajan and Another12, had an occasion to consider the scope of Section 306 of the IPC and the ingredients which are essential for abetment, as set out in Section 107 of the IPC. It observed as follows:-
"16. The word "suicide" in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. "Sui" means "self" and "cide" means "killing", thus implying an act of self- killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
...........
18. In our country, while suicide in itself is not an offence, considering that the successful offender is 12 (2010) 12 SCC 190 : 2010 INSC 506 11 beyond the reach of law, attempt to suicide is an offence under Section 309 IPC. ..........
21. The learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh v. State of M.P.[1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157] In Mahendra Singh [1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157] the allegations levelled were as under: (SCC p. 731, para 1) "1. ... My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law.
Because of these reasons and being harassed I want to die by burning." The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law. ...........
23. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has cautioned that:
(SCC p. 90, para 17) "17. ... The court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it [appears] to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and 12 differences in domestic life quite common Page 13 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
24. 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 words "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 other. 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.
25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
17. This Court held that abetment involves the mental process of instigating a person or intentionally aiding a person in doing of a thing. Therefore, without a positive act on the part of the accused to instigate or aid a person in committing suicide, conviction cannot be sustained. This Court further observed that the intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit the offence. Abetment also requires an active act or direct act which led the deceased to commit suicide seeing no other option and that act must have been intended to push the deceased into such a position that he committed suicide. However, this Court has cautioned that since each person reacts differently to the same provocation depending on a variety of factors, it is impossible to lay down a straightjacket formula to deal with such cases. Therefore, every such case has to be decided on the basis of its own facts and circumstances
18. More recently, in the case of Jayedeepsinh Pravinsinh Chavda and Others v. State of Gujarat13, this Court has 13 2024 SCC OnLine SC 3679 : 2024 INSC 960 14 relied on S.S. Chheena (supra) to hold that the element of mens rea cannot simply be presumed or inferred, instead it must be evident and explicitly discernible. Without this, the foundational requirement for establishing abetment under the law, that is deliberate and conspicuous Page 14 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined intention to provoke or contribute to the act of suicide, would remain unfulfilled. This Court observed as follows:
"18. For a conviction under Section 306 of the IPC, it is a well-established legal principle that the presence of clear mens rea--the intention to abet the act--is essential. Mere harassment, by itself, is not sufficient to find an accused guilty of abetting suicide. The prosecution must demonstrate an active or direct action by the accused that led the deceased to take his/her own life. The element of mens rea cannot simply be presumed or inferred; it must be evident and explicitly discernible. Without this, the foundational requirement for establishing abetment under the law is not satisfied, underscoring the necessity of a deliberate and conspicuous intent to provoke or contribute to the act of suicide."
19. It is, therefore, evident that the positive act of instigation is a crucial element of abetment. While dealing with an issue of a similar nature, this Court in the case of Ramesh Kumar v. State of Chhattisgarh,14 laid down the parameters of what 14(2001) 9 SCC 618 : 2001 INSC 515 15 would be constituted to be an act of instigation. This Court observed as follows:- "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 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 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."
20. It could thus be seen that this Court observed that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". It has been held that in order 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, however, a reasonable certainty to incite the consequence must be capable of being spelt out. Applying the law to the facts of the case, this Court went on to hold that a word uttered in the fit of anger or 16 emotion without intending the consequences to actually follow cannot be said to be instigation Page 15 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined
21. Relying on the decision in the case of Ramesh Kumar (supra), this Court in the case of Ude Singh and Others v. State of Haryana15 observed as follows:
"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of the accused is otherwise not ordinarily expected to induce a 15 (2019) 17 SCC 301 : 2019 INSC 810 17 similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.
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16.2. We may also observe that human mind could be affected and could react in myriad ways; and impact of one's action on the mind of another carries several imponderables. Similar actions are dealt with differently by different persons; and so far a particular person's reaction to any other human's action is concerned, there is no specific theorem or yardstick to estimate or assess the same. Even in regard to the factors related with the question of harassment of a girl, many factors are to be considered like age, personality, upbringing, rural or urban set-ups, education, etc. Even the response to the ill action of eve teasing and its impact on a young girl could also vary for a variety of factors, including those of background, self-confidence and upbringing. 18 Hence, each case is required to be dealt with on its own facts and circumstances."
22. It could thus be seen that this Court observed that in cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It has been held that since the cause of suicide particularly in the context of the offence of abetment of suicide involves multifaceted and complex attributes of human behaviour, the court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. This Court further observed that a mere allegation of harassment of the deceased by another person would not suffice unless there is such action on the part of the accused which compels the person to commit suicide. This Court also emphasised that such an offending action ought to be proximate to the time of occurrence. It was further clarified that the question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused. It was further held that if the acts and deeds are only of such nature where the accused intended nothing more than harassment or a snap-show of 19 anger, a particular case may fall short of the offence of abetment of suicide, however, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. This Court held that owing to the fact that the human mind could be affected and could react in myriad ways and that similar actions are dealt with differently by different persons, each case is required to be dealt with its own facts and circumstances.
10. In light on the above, the evidence of the prosecution has to be reappreciated and the prosecution has examined Prosecution Witness No. 1 Ashwinkumar Devrajbhai Tank, at Exh. 9 and the witness is the Medical Officer, who has conducted the postmortem Page 17 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined on the dead body of the deceased Kantaben. The witness has stated that, on 16/06/2002, he and panel doctor D.R.Tadhani had conducted the postmortem on the dead body of deceased Kantaben wife of Niranjanbhai Chudasama and she had sustained severe burn injuries on her neck, chest, stomach, both hands and legs and he had given the postmortem note, which is produced at Exh.13. The cause of death was septicemia due to burns.
During the cross-examination, the witness has stated that the burn injury could occur due to an accident and accidental burn injuries could not ruled out.
10.1 The prosecution has examined Prosecution Witness No. 2 Mohanbhai Nathabhai at Exh. 19 and the witness is the complainant and the brother of the deceased. The witness has filed the complaint, which is produced at Exh. 20 and the witness has stated that the deceased Kantaben was married to the accused No. 1 two years prior to the incident and she had sustained burn injuries on 12/04/2002. That, she was residing with the accused No.1 at Chorvad and the accused and other in-laws used to torture her as she did not have a child. That whenever, she came to her house, she would tell him about mental and physical harassment Page 18 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined given to her and, on one occasion, the accused No. 1 had thrown the deceased out of his house at around 9 pm and he had gone and taken her to Chorvad Police Station and filed the complaint. That on 11/04/2002, the deceased Kantaben and the accused No. 1 came on the scooter to his house and they were at his house for half and hour to forty-five minutes and they had lunch and left. At that time also, his sister had told him that she was being harassed and on the next date i.e. on 12/04/2002, he was informed that the burn incident had occurred. That they went to Veraval Government Hospital and his sister expired on 16/04/2002 during treatment at Vikani Hospital, Rajkot.
During the cross-examination by the learned advocate for the accused, the witness has stated that prior to filing the complaint, all family members had gathered and discussed whether the complaint has to be filed or not and the deceased and her husband i.e. accused No. 1 lived separately away from the family. 10.2 The prosecution has examined Prosecution Witness No. 3 Kanjibhai Nathabhai at Exh. 21 and Prosecution Witness No.4 Ramubhai Nathabhai at Exh. 22. Both the witnesses are the brothers of the deceased Kantaben and they have fully supported Page 19 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined the case of the prosecution and have stated the same facts as stated by the complainant, who is their brother.
10.3 The prosecution has examined Prosecution Witness No. 5 Ramjibhai Rudabhai at Exh. 50 and the witness is a person, who was known to the parties. The witness has stated that the deceased and the accused No. 1 were having a good relationship and on one or two occasions, the deceased had come to parental home as she was upset and he had gone along with the accused No.1 to bring the deceased back to her matrimonial home. That they lived happily, thereafter, and on 12/04/2002, the deceased suffered burn injuries and she succumbed to injuries during treatment. That there was no ill-treatment by the accused or any in-laws given to the deceased and the deceased had sustained accidental burn injuries while she was preparing tea on the primus stove at her house. The witness has not supported the case of the prosecution and has been declared hostile.
During the cross-examination by the learned advocate for the accused, he has stated that the complainant and accused No. 1 did not have a good relationship with each other and whenever the deceased used to go to her parental house, the complainant used to Page 20 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined keep her at his house and did not allow her to return the matrimonial home.
10.4 The prosecution has examined Janiben Nathalal at Exh. 51 and the witness is the mother of the deceased and she has supported the case of the prosecution. She has stated that her daughter used to tell her about the ill-treatment by the accused and her daughter was burn and she expired during treatment.
During the cross-examination, this witness has stated that earlier her daughter had filed a complaint against the accused at Chorvad Police Station and at that time she and her son Mohan had gone to Chorvad Police Station to file the complaint along with her daughter and the complaint was written by her son Mohan. 10.5 The prosecution has examined Prosecution Witness No. 7 Kanaiyalal Udeshankar Joshi at Exh. 52 and the witness was working as a PSI at Chorvad Police Station and Janva Jog Entry No. 7 of 2002 about the burn incident of deceased Kantaben was registered and investigated by him. That he had prepared the panchnama of the place of offence and seized the necessary muddamal and had recorded the statement of the connected witnesses.
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During the cross-examination, the witness has stated that during investigating the place of offence, if smell of kerosene was found or any hair was found, it would be noted in the panchnama and the hair would be seized as muddamal and sent to the FSL. 10.6 The prosecution has examined Prosecution Witness No. 8 Pethabhai Meramanbhai at Exh: 53 and the witness is the Police Station Officer of Chorvad Police Station, who had registered the complaint of the complainant Mohanbhai Nathabhai Vaghela at I- C.R.No. 22 of 2002 .
10.7 The prosecution has examined Prosecution Witness No. 9 Mathurdas Gokadbhai Kaneriya at Exh.56 and the witness is the Investigating Officer, who had investigated the Accidental Death No. 3 of 2002. The witness has stated that he had drawn the inquest panchnama and during the cross examination, he has stated that prior to recording the complaint, there was evidence that the incident was an accident.
10.8 The prosecution has examined Prosecution Witness No. 10 Dalsukhbhai Savjibhai Patel at Exh. 61 and the witness is the Investigation Officer, who has narrated in detail the entire procedure that he had undertaken while investigating the offence Page 22 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined after the FIR was registered.
During the cross-examination, the witness has stated that in the panchnama, there was no mention of any smell found on any clothes or at the place of offence.
11. On minute appreciation of the evidence of the prosecution and particularly, the chronology of the events, it is proved that the incident had occurred at the residence of the deceased and the accused No. 1 on 12/04/2002 at around 16:30 Hrs,. Immediately, after the incident, Kantaben was taken to Allopathy Dispensary, Chorvad, where she herself had given a statement that she was making tea on a primus stove and her gown caught fire and she was burnt. She had sustained extensive over 50% burns on the front of chest, neck, abdomen and upper part of thigh and back with face and upper extremities and was immediately referred to the Junagadh Civil Hospital with a refer chit, which is produced at Exh: 39. That she was taken to the Government Hospital, Veraval, where she was fully conscious and she had stated that she was preparing tea on the primus stove and her clothes caught fire and she was married for two years but there was no ill-treatment to her and the incident was an accident. The dying declaration of Page 23 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined deceased Kantaben was recorded at Government Hospital, Veraval by K.G.Chavda, Executive Magistrate in the presence of the Residential Medical Officer, wherein, she had clearly stated that she was residing at Chorvad and while she was making tea, her clothes caught fire from the primus stove and she was burnt. That her husband and other in-laws had brought her to the hospital and she has no other complaint. The dying declaration produced at Exh. 33 has the endorsement of the RMO stating that she is fully conscious for giving statement of dying declaration and the statement was given in the presence of the RMO. The panchnama of place of offence, which is produced at Exh. 28 shows that there was no smell of kerosene at the place of incident. Moreover, it is on record that the deceased had earlier filed a Criminal Case No. 167 of 2001 before the Court of learned Judicial Magistrate First Class, Maniya Hathina and the deceased had deposed in that case at Exh. 8, her mother Janiben had deposed at Exh. 10 and her father Nathabhai Lakhabhai Vaghela at Exh. 11 and all of them have stated on oath before the learned Judicial Magistrate First Class that there was no ill-treatment of any sort to the deceased Kantaben.
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12. The learned trial Court in the impugned judgment and order of acquittal has discussed each oral and documentary evidences and has concluded that from the evidence it is on record that the deceased Kantaben died due to burn injuries and the dying declaration has been recorded while the patient was fully conscious and in a fit state of mind to give the dying declaration and even before the treating doctors, it is stated by the deceased that she had sustained burn injuries while she was preparing tea at her matrimonial home. It is pertinent to note that the panchanama of the place of offence was drawn on 12/04/2002 at 17:20 Hrs, which is immediately after the incident had occurred and at that time, no smell of kerosene was found on the floor and hence the conclusion of the learned trial Court that the deceased Kantaben had sustained accidental burn injuries, is just and proper.
13. In view of the settled position of law in the decisions of Mallappa (Supra) and Prakash (Supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in Page 25 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025 NEUTRAL CITATION R/CR.A/1295/2008 JUDGMENT DATED: 09/01/2025 undefined extending benefit of doubt and acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of extending benefit of doubt and acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
14. The impugned judgement and order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court No. 6, Veraval in Sessions Case No. 76 of 2002 on 31/01/2008, is hereby confirmed.
15. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VVM Page 26 of 26 Uploaded by VISHAL MISHRA(HC01088) on Thu Jan 16 2025 Downloaded on : Thu Jan 16 21:22:40 IST 2025