Gujarat High Court
State Of Gujarat vs Ramesh Ramji Koli on 26 November, 2024
NEUTRAL CITATION
R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 857 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
Yes -
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STATE OF GUJARAT
Versus
RAMESH RAMJI KOLI & ORS.
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Appearance:
MS JYOTI BHATT APP for the Appellant(s) No. 1
MS.AKSHITABA SOLANKI(6782) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 26/11/2024
ORAL JUDGMENT
1. The present appeal is filed by the appellant - State of Gujarat under Section 378(4) of the Code of Criminal Procedure, 1973 against the impugned judgment and order of acquittal dated 29.09.2007 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Kachchh at Gandhidham (hereinafter Page 1 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined referred to as "the Trial Court") in Special Case No.12 of 2006, whereby, the Trial Court has acquitted the original accused respondents herein for the offence punishable under Section 498(A), 114 and 306 of the Indian Penal Code (hereinafter be referred to as "the IPC").
2. Brief facts of the present case, in nutshell, are as under:-
2.1 It is alleged that the marriage of Rudiben daughter of the complainant was solemnized with accused No.1 as per their rituals and Rudiben and accused No.1 were residing at Village:
Aadhoi Kakariya and she was pregnant. It is also alleged that within a period of one year and three months of the marriage, Rudiben came at her parental home many times and informed the complainant that accused No.3 instigated accused No.1, who treated Rudiben with mental and physical cruelty for household work and in turn all the accused were giving mental and physical torture to Rudiben. It is alleged that Rudiben has committed suicide by hanging herself on account of mental and physical torture by the accused.Page 2 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024
NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined 2.2 On the basis of the said incident, the FIR being C.R. No.I -
102/2005 came to be lodged with Aadhoi Police Station for the offence punishable under Sections 498A, 306 and 114 of the IPC against the accused and they were arrested. The Investigating Officer has recorded statements of the witnesses and collected necessary evidence against the accused.
2.3 After completion of investigation, as the sufficient evidence was found, the police has filed the charge-sheet against all the accused before the Court of learned Judicial Magistrate, First Class, Bhachau. As the offence was triable by the Court of Sessions, the Gandhidham Court has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions at Kachchh - Bhuj wherein it has been registered as Sessions Case No.12 of 2006.
2.4 The charge against the accused came to be framed by the Trial Court on 05.04.2006 vide Exhibit 1 for the aforesaid offences against the accused and explained it to them, the Page 3 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Additional Sessions Judge.
2.5 To prove the case, the prosecution has examined the following witnesses.
1 Kheta Vala Koli 17 2 Jivatiben Khetabhai Koli 28 3 Chaku Rana Koli 29 4 Prabhu Vala 30 5 Vela Virabhai 32 6 Jethalal Khemchand Prajapati 37 7 Dr. Sandeep Pandit Shridharan Pandit 38 8 Ramkishan Mulchand Chahaliya 42 9 Naransinh Mansinh Barad 44 10 Samir Hasmukhrai Sharda 522.6 In addition to this, the prosecution has also produced the following documentary evidence:-
1 Original complaint 18 2 Inquest Panchnama 33 3 Panchnama of the scene of offence 34 Page 4 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined 4 Arrest Panchnama 35 5 Yadi wrote to Medical Officer 40 6 Yadi with regard to postmortem 41 7 Entry of accidental death 43 2.7 After closure of the evidence, further statements of the accused under Section 313 of the Criminal Procedure Code, 1973 have been recorded. After hearing both sides and considering the evidence on records, the Trial Court by impugned judgment and order has acquitted the accused from all the charges levelled against them.
3. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant - State of Gujarat has preferred this Appeal.
4. Heard Ms.Jyoti Bhatt, learned Additional Public Prosecutor for the appellant - State of Gujarat and Ms. Akshitaba Solanki, learned counsel for the respondents at length.
5. Ms.Jyoti Bhatt, learned Additional Public Prosecutor for the appellant - State of Gujarat, while referring to the entire oral as Page 5 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined well as documentary evidence, has assailed the impugned judgment and order and has submitted that the Trial Court has not taken into consideration the evidence connecting the accused to the alleged offence in its proper perspective. She has submitted that the Trial Court ought to have believed that the prosecution has been able to prove the charges levelled against the accused. While referring to the evidence of the witnesses and the material collected against the accused, Ms. Bhatt, learned Additional Public Prosecutor has submitted that the prosecution has established the case against the accused relating to the mental and physical torture and cruelty meted out to the deceased and within a short span of marriage the deceased committed suicide by hanging herself, however, the Trial Court has not considered the said facts in its true and proper spirit. While referring the evidence of the medical officer, she has submitted that the prosecution has proved the case against the accused by examining the medical expert who has performed the postmortem of the dead body of the deceased and, therefore, the Trial Court has completely overlooked while appreciating the evidence of the witnesses. She has also Page 6 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined submitted that P.W.3 Chaku Rana Koli, cousin brother of the deceased, who has stated that he visited the resident of deceased during Navratri and at that time, the deceased has informed him that she was mentally and physically harassed by the accused and at the instance of accused No.2 and 3, accused No.1 was giving mental and physical cruelty to the deceased on account of household work, however, the Trial Court has not considered the said fact while passing the impugned judgment and order of acquittal. She has submitted that the accused have dragged the deceased to take such harsh steps to commit suicide on account of mental and physical cruelty which fact is supported by the evidence of the concerned witnesses, however, the Trial Court has not considered the said facts and passed the impugned judgment and order of acquittal. She has submitted that the Trial Court, while coming to the conclusion, has not given proper reason while considering the evidence of the witnesses more particularly evidence of P.W.1, P.W.2, P.W.3 and P.W.4, who have clearly stated that the deceased was harassed by her in-laws and upon instigation by in-laws of the deceased, accused No.1 was giving mental and physical cruelty to the Page 7 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined deceased. It is submitted by the learned Additional Public Prosecutor that the Trial Court ought to have appreciated the fact that the deceased died within a short span of marriage and, therefore, the inference of Section 113A of the Indian Evidence Act ought to have been inferred against the accused, however, the Trial Court has not taken into consideration.
5.1 According to her submission, the Trial Court ought to have convicted the accused and ought to have imposed necessary sentence. She has prayed to allow the present appeal and to quash and set aside the impugned judgment and order of acquittal.
6. Per contra, Ms. Akshitaba Solanki, learned counsel appearing for the respondents - accused has supported the impugned judgment and order and has submitted that the Trial Court has not committed any error of law and fact in acquitting the accused from the charges levelled against them. While referring to other evidence and the impugned judgment and order, she has supported the impugned judgment and Page 8 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined order and has stated that the Trial Court has properly appreciated the evidence on record and there is no any illegality or infirmity in the judgment and order and it is required to be confirmed by this Court. She has prayed to confirm the impugned judgment and order of acquittal and dismiss the present appeal.
6.1 Ms.Solanki, learned counsel has submitted that the impugned judgment and order of acquittal is just and proper and in consonance with the settled principle of law and after considering the evidence of the witnesses, the Trial Court has passed the impugned judgment and order of acquittal and not committed any error of facts and law.
While referring to the evidence of P.W.1, P.W.2, P.W.3 and P.W.4, she has submitted that there is no iota of evidence with regard to cruelty meted out to the deceased and the allegations qua taunting for household work, which cannot be amounting to cruelty as defined under Section 498A of the IPC and it can not be led the deceased to take harsh step to commit suicide. While referring to the medical Page 9 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined evidence, she has submitted that there was no any injury mark on the body of the deceased except the ligature mark on the neck, which was on account of asphyxia due to hanging and there was no any other injury or any abnormal things noted in the postmortem report nor the doctor has found any injury at the time of performing the postmortem and, therefore, the story putforth by the prosecution is not supported by the expert evidence. She has submitted that none of the witnesses has stated that what kind of cruelty or harassment meted out to the deceased, but all the witnesses have stated in general that the accused were giving mental and physical torture to the deceased on account of the household work and it is not attracted the provision of Section 498A of the IPC.
She has submitted that initially the case was registered as an accidental death being A.D. No. 17 of 2005 under Section 174 of the Criminal Procedure Code on 11.11.2005 and thereafter the complaint came to be lodged.
6.2 Ms.Solanki, learned counsel has submitted that the Page 10 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined police witness has not supported the case of the prosecution and therefore the Trial Court has not committed any error of facts and law in passing the impugned judgment and order of acquittal. She has submitted that there was sata marriage where the deceased was married with accused No.1 and sister of accused No.1 and daughter of accused Nos.2 and 3 was married with brother of the deceased and except these four witnesses, no any statements of independent witness or other family members have been recorded by the Investigating Officer during the course of the investigation and, therefore there was no other material produced before the Trial Court. She has submitted that the Trial Court was justified in passing the impugned judgment and order of acquittal and no interference is required to be called for. She has submitted that there is no any illegality and infirmity in the impugned judgment and order of acquittal and the same being meritless deserves to be dismissed. She has urged to dismiss the appeal and confirm the impugned judgment and order of acquittal.
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7. This Court has perused the judgment and order of acquittal rendered by the Trial Court and carefully considered the rival contentions, evidence and material placed on record.
8. Now, on perusal of the entire evidence on record, it transpires that there is no iota of evidence in connecting the present accused with the alleged offences.
9. Before parting with the reasoning, the Court has verified the relevant evidence and examined the record of the trial Court and gone through the evidence of the witnesses and investigation papers and considered the submissions canvassed by the learned counsel appearing for the respective parties.
10. From the evidence of P.W.1 Kheta Vala Koli at Exhibit 17, it appears that he has deposed in his examination-in-chief that after marriage the deceased visited 3-4 times to his house and she informed about the ill-treatment given by accused No.1 at the instance of accused No.2 and 3 for the household work.
Page 12 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined Except this, there is no other allegation against the accused. In the cross-examination, the P.W.1 has admitted that before about three months, lastly she visited the house of the complainant, but thereafter, the deceased never visited the parental home and at that time, she returned to her matrimonial. But what kind of ill-treatment or cruelty meted out to her, he was not aware.
Except this, this witness has not stated anything. Considering the evidence of P.W.1, P.W.2, P.W.3 and P.W.4, it reveals that the prosecution has unable to prove the case under Section 498A of the IPC which leads the deceased to commit suicide under Section 306 of the IPC and it can not be said that the accused have abetted / instigated the deceased for commission of crime in question.
11. On bare perusal of the evidence, it would be appropriate to refer to the provision of Section 498A, 306 and 107 of the IPC and 113A of the Indian Evidence Act, which are reproduced hereunder :
Section 498A-Husband or relative of husband of a woman subjecting her to cruelty.--Page 13 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024
NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-- For the purpose of this section, "cruelty" means--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Section 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.
Section 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, Page 14 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined 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.
Section 113-A. Presumption as to abetment of suicide by a married woman. [Inserted by Act 46 of 1983, Section
7.]-
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation. - For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).]
12. In view of the settled principles of law that when two views are possible and if the trial court has adopted the view which is in favour of the accused under normal circumstances, it may not be disturbed by the appellate court while exercising jurisdiction under Section 378 of Cr.P.C. The scope and principles are enunciated by the Hon'ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, more particularly paragraphs 42 and 43, which was subsequently re-affirmed by the Hon'ble Apex Court Rajesh Page 15 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon'ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon'ble Apex Court based upon various decisions of the Hon'ble Apex Court. Hence, I am in complete agreement with the findings recorded by the trial court.
13. It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 wherein the Hon'ble Supreme Court has held and observed in paras - 37 to 40 as under:-
"37. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] " 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:Page 16 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024
NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined (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 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.
(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."
38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral Page 17 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) 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.
40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
13.1 It would also be fruitful to refer to the decision of the Division Bench of this Court in case of State of Gujarat vs. Page 18 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined Bharatkumar Jivabhai Gondalia, reported in [2024] LawSuit (Guj.) 980, Criminal Appeal No.767 of 1997, wherein, it has been observed and held as under :
"12. At the outset, let refer to Sections 498-A, 107 and 306 of the IPC charge of which are levelled against the accused.
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
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.
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.
13. A plain reading of Section 498-A of the IPC would indicate that in order to prove that the husband or relative of the husband of woman subjecting her to cruelty, the willful conduct of the accused viz., husband or relative of the husband has to be proved of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health. The harassment to the wife must be of such a nature that it was meted with a view to coercing her or any person related to her to meet any indecisive demand for any property or valuable security.
14. In Indrasingh M. Raol v/s. State of Gujarat - 1999(3) GLR 2536, this Court has defined and explained the expression - cruelty and harassment in context to Sec.498A & 306 of the IPC. Relevant paragraph is para-6 & 7 which read as under :Page 19 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024
NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined "6. The expression "cruelty" means and implies harsh & harmful conduct of certain intensity and persistence. It, therefore, covers the acts causing both physical and mental agony and torture, or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miseries & woes strongly stirring up her feeling that life is now not worth living and she should die, being the only option left. The provision of Sec. 498A therefore, envisages intention to drag or force the woman to commit suicide by unabetted, persistent & grave cruelty. In one case, therefore, the facts on record may constitute the cruelty showing required intention and in another case, it may not. The concept of cruelty, therefore, is found different or diversifying from place to place, individual to individual, and also according to social and economical status of the person and several other factors. The Court has, therefore, to becoming more heedful, chary & wary, exert and ascertain the cruelty & required intention on the basis of materials on record and also on the basis of the culture, ordinary sentimentality or sensitivity, capacity to tolerate, temperament, tendency, interse honour, matrimonial relationships, state of health, dissension, interaction, or conflicting ideology, will to dominate, utter disregard of one's own obligation or intractability or habits as well as customs & traditions governing the parties and other governing forces, provided necessary acceptable evidence in this regard is available on record.
7. The word "harassment" is not defined in Sec. 498A. The meaning of the word "harass" which can be found from the dictionary is to subject some one to unbearable, continuous or repeated or persistent unprovoked vexatious attacks, questions, demands, or persecutions, or brutality, or tyranny, or harm, or pain, or affliction, or other unpleasantness, or grave annoyance, or troubles. In short what can be said is that Sec. 498A will not come into play in every case of harassment and/or cruelty.
Reasonable nexus between cruelty and suicide must be established. It should, therefore, be shown that the incessant harassment or cruelty was with a view to force the wife to end her life or fulfil illegal demands of her husband or in-laws, and was not matrimonial cruelty, namely usual wear and tear of matrimonial life. It should hardly be stated that the prosecution has to establish the charge beyond reasonable doubt. No doubt arithmetical accuracy is not expected from the prosecution, but it has to adduce such evidence which would be credible leaving Page 20 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined no room to any reasonable doubt; and pointing to the guilt of the accused."
16. When offence of 498(A) is added with offence of section 306 of IPC, prosecution is obliged to prove that cruelty was meted out to the deceased being result of willful conduct of accused and same has driven deceased to commit suicide. Prosecution is also burdened to prove proximity and/or nexus between cruelty and act of suicide.
17. The stray domestic quarrels, perfunctory abuses by husband or in laws are common in Indian society. Crude and uncultered behaviour by the husband towards his wife being mundane would not form and constitute abetement unless these acts or conduct signally or cumulatively are found to be of such formidable and compelling nature as may lead to commission of suicide. Abetment is 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, accused cannot be convicted under section 306 of IPC.
18. In background of the above legal position, if we examine the evidence on record, the prosecution has examined the complainant-father of the deceased as PW 2-Madhavdas Gangaram (Exh.15). He has produced the FIR at Exh.16. He does not speak of any specific incident of the harassment and cruelty which attracts the offence of Section 498-A read with Section 306 of the IPC. No specific act or omission of the act has been deposed by this witness which instigated the deceased to commit suicide or would render the deceased with no alternative but to commit suicide.
26. At this juncture, I may refer to some recent pronouncement of the Hon'ble Supreme Court in regards to the offence under Section 306 of the IPC. In Kashibai & Ors. vs. the State of Karnataka [2023 LiveLaw (SC) 149] the Hon'ble Apex Court after referring to well celebrated earlier judgments in case of M. Mohan Vs. State Represented by the Deputy Superintendent of Police [2011 3 SCC 626]; State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73] and Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) ((2009) 16 S (2010) 3 SCC (Cri) 367] has held in paragraph 14 and 15 as under:
Page 21 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined "14. Though it is true that as per Section 113A of the Evidence Act, when the question arises as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband, and when it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court can presume, having regard to the other circumstances, that such suicide has been abetted by her husband or such relative of her husband.
However, mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.
15. In Mangat Ram Vs. State of Haryana, this Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under-
"30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498- A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act."
27. To attract the ingredients of Section 306 of the IPC, the Hon'ble Apex Court in case of Yaddanapudi Madhusudhana Rao The State Of Andhra Pradesh & Ors [2023 LiveLaw (SC) 441] framed the importance of the abetment as defined in Section 107 of the IPC. Paragraph 9 thereof reads as under:
Page 22 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined "9. To attract the ingredients of Section 306 IPC, there must be evidence to substantiate the existence of suicide It should be followed by abetment, as required under Section 107 of the IPC.
In as much as we do not find any merit in evidence to support the case of the prosecution that there was a suicide, thereby the statement recorded from LW25 itself shows that the deceased was alling and therefore, not keeping in good health."
28. With profit I may also refer to judgment in case of Kumar @ Shiva Kumar Versus State Of Karnataka [2024 (0) AIJEL-SC 73335] where Hon'ble Apex Court having referred to Section 306 and 107 of the IPC and surveying the earlier pronouncement in paragraph 47 has held as under.
"47. Human mind is an enigma. It is well neigh impossible to unravel the mystery of the human mind. There can be myriad reasons for a man or a woman to commit or attempt to commit suicide: it may be a case of failure to achieve academic excellence, oppressive environment in college or hostel, particularly for students belonging to the marginalized sections, joblessness, financial difficulties, disappointment in love or marriage, acute or chronic ailments, depression, so on and so forth. Therefore, it may not always be the case that someone has to abet commission of suicide. Circumstances surrounding the deceased in which he finds himself are relevant."
29. The submission of learned APP that the learned sessions court has not properly applied the presumption under Section 113-A of the Evidence Act has been appropriately dealt with by the Hon'ble Apex Court in the above referred case and believed that before such presumption under Section 113-A of the Evidence Act is applied that mere act to commit suicide would not be sufficient for the Court to raise the presumption under Section 113-A of the Evidence Act and to held the accused guilty of Section 306 of the IPC.
30. At this juncture I may also refer to judgment in case of State Of Gujarat Versus Mosin Husenbhai Bhoda & Ors.[2024 GLR (1) 693] wherein this Court after referring to various pronouncement of the Hon'ble Apex Court has held that to invoke presumption under Section 113-A of the Act, the prosecution has to prove that deceased was subjected to cruelty as defined in Section 498-A of the IPC. Thus, learned APP failed Page 23 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined to demonstrate any illegality or perversity in the impugned judgment and order. We find no infirmity in the judgment and order of acquittal acquitting the accused.
31. It cannot go unnoticed that that in view of principles of criminal jurisprudence, presumption of innocence runs in favour of the accused unless proven guilty. This presumption continues to operate at all stages of the trial. The presumption of innocence gets established when the charge alleged against him ends in acquittal. The presumption doubles once the accused is proved innocent. A person / prosecution, who intends to prosecute the accused for charge, in which he has been acquitted after appreciation of evidence on record gets on higher footings and his expected to be rebut the same in appeal.
32. 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 recognised 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 reappreciating the evidence.
33. At this juncture, we may refer the judgment of Muralidhar v. State of Karnataka, (2014) 5 SCC 730, wherein the Hon'ble Apex Court dealing with the appeal against acquittal, has held as under:-
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the Page 24 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court.
It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
34. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 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 Code of Criminal Procedure, 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 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.Page 25 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024
NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined (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.
(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.
35. Recently, while reiterating the earlier view, in case of Mallappa v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court observed as under:-
"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 to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. 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 Page 26 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined 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 reappreciating 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.
42. 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."
36. In view of above and considering the facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of Page 27 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined acquittal."
13.2 It is also worthwhile to refer to the recent decision of the Hon'ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon'ble Supreme Court has held and observed in paras-20 and 21 as under:-
"Head Note B. - Criminal Procedure Code, 1973 - S.378 - Appeal against acquittal - General principles regarding the power and duty of the appellate court, reiterated - Nagrik Suraksha Sanhita, 2023, S.419
20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:
"42. .... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 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 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 emphasize 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 Page 28 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined 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.
(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.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained."
13.3 So far as the offence under Section 306 of IPC is concerned, it would be fruitful to refer to the decision of the Hon'ble Apex Court rendered in case of Nipun Aneja and Others vs. State Page 29 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined of Uttar Pradesh in Criminal Appeal No.654 of 2017 decided on 03.10.2024, wherein, the Hon'ble Apex Court has discussed the basic ingredients to constitute an offence under Section 306 of the IPC from paragraph 13 onwards. After considering the facts of the case and after referring to the above referred decisions of the Hon'ble Apex Court as well as this Court, rendered in context of culpability under Section 306 of IPC, the court ought to have considered that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their 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, conviction in terms of Section 306 IPC is not sustainable. The ingredients to constitute an offence under Section 306 of the IPC (abetment of suicide) would stand fulfilled if the suicide is committed by the deceased due to direct and alarming encouragement / incitement by the accused leaving no option but to commit suicide.
14. From the evidence of the concerned witnesses, it appears that the prosecution has unable to prove its case beyond Page 30 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined reasonable doubt against the accused for the offence punishable under Sections 498A, 114 and 306 of the IPC. It is true that the deceased committed suicide within short span of marriage by hanging herself at the reason best known to the deceased. So far as the allegations against the accused are concerned, the prosecution has failed to prove the charge levelled against the accused for the alleged commission of offence. Now, on perusal of the impugned judgment and order, it appears that while scrutinizing the entire evidence on record, the Trial Court has specifically considered that there is no iota of evidence in connecting the present accused with the alleged offences. It also appears that the Trial Court has properly considered the entire evidence on record in its proper perspective and its finding is proper one and when there is acquittal appeal and from the entire evidence, no evidence connecting the accused for the alleged suicide committed by the deceased is emerged, the impugned judgment and order of acquittal does not warrant interference by this Court.
15. In view of the above, the present appeal is devoid of merits Page 31 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024 NEUTRAL CITATION R/CR.A/857/2008 JUDGMENT DATED: 26/11/2024 undefined and it deserves to be dismissed. Resultantly, the appeal is dismissed. The impugned judgment and order of acquittal passed by the Trial Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 32 of 32 Uploaded by V.R. PANCHAL(HC00171) on Sat Nov 30 2024 Downloaded on : Mon Dec 02 21:23:20 IST 2024