Gujarat High Court
State Of Gujarat vs Parvatbhai Navalsinh Rathod on 22 November, 2024
NEUTRAL CITATION
R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 799 of 2010
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
PARVATBHAI NAVALSINH RATHOD
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Appearance:
MS MEGHA CHITTALIYA, ADDL. PUBLIC PROSECUTOR for the
Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR. MAULIK M SONI(7249) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 22/11/2024
ORAL JUDGMENT
1. The present appeal is filed by the appellant - State of Gujarat (original complainant) under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the judgment and order of acquittal dated 05/11/2007 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Dahod (hereinafter referred to as "the trial Page 1 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined court") in Sessions Case No.42 of 2009, whereby, the learned Trial Judge has acquitted the original accused respondent herein for the offence punishable under Sections 498(A) and 306 of the Indian Penal Code (for short "the IPC").
2. The brief facts giving rise to the present appeal are as under :
2.1 On 21/12/2008, the complainant namely, Shakarabhai Madubhai Sangod, resident of Amlimenpur, Ta.Dhanpur had dictated the facts of the complaint before PSI, Garbada that he has four daughters and one son. Out of them, marriage of his daughter namely, Champaben was done before around four years with Pavansinh Navalsinh Rathod of village Dadur. On 01/12/2008, younger brother of husband of his daughter namely, Kanubhai Navalsinh and Mandor Rameshbhai Badubhai from village Dadur came to his house at around 4.00 p.m. in the evening and inquired as to whether Champa visited his place or not. He replied that she had not visited his place.
On being asked as to from when the said Champa is not present at his place, he replied that since she left from yesterday morning without informing anyone. Thereafter, on 04/12/2008, two persons came from village Dadur at around Page 2 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 10.00 a.m. in the morning and informed to him that his daughter namely, Champaben is found dead in Panchayat well of village Dadur. Therefore, persons from his village namely, Makansing Mansukhbhai and Narvatbhai Kalubhai and Fatesing Manabhai, etc. and the ladies reached at village Dadur and saw that dead body of his daughter namely, Champaben was lying in the well adjacent to the road. On removing her dead body, it appeared her skin was corrugated and no injury marks appeared on it. Thereafter, the said dead body was sent to the hospital for post-mortem. It is the case of the informant that the daughter of the informant namely, Champaben and son-in- law namely, Parvatsinh and his mother namely, Babaliben and younger brother of her husband namely, Kanubhai were residing jointly in same residence. As Champaben did not have any child, on being displeased, she had returned to her maternal place for around thrice. As son-in-law came to pick her up, they gathered people as Panchas, persuaded her and sent her to her in laws' place. Once his daughter came to his house on being displeased and she stayed there for around two months, Sarpanch of village Dadur and son in law namely, Parvatsinh and other persons visited there. At that time, upon gathering the people of the village, on reprimanding son-in- Page 3 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024
NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined law, his daughter was persuaded and sent to her in laws' place. On last Diwali, when brother of the complainant namely, Kalubhai had gone and brought his daughter, she informed that her husband was taunting her as she was unable to conceive a child. He demands to solemnize second marriage with another lady and thereby quarrels with her. Thereafter, as his son-in-law namely, Parvatsinh came to pick her up, he was reprimanded and told not to quarrel with his daughter. Thereafter, before around ten days of the said incident, his son-in-law namely, Parvatsinh came alone to his place and told him that now onwards neither himself nor his daughter shall visit his place and he left from there. Thereafter, dead body of his said daughter was found from panchayat well of village Dadur. Therefore, as son-in-law namely, Parvatsinh was causing mental harassment to his daughter for the reason of not able to conceive a child, demanded that he would solemnize second marriage and quarreling, the daughter of the complainant namely, Champaben on being fed up of such harassment, jumped in the well and died. As the said complaint came to be lodged by the complainant, the same was registered as I-CR No.136/08 under Sections 498(A) and 306 of IPC before Garbada Police Station.
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NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 2.1 As the investigation of the complaint regarding above facts came to be conducted by PSI, Garbada, he wrote the complaint as per dictation of the complainant, drew Panchnama of the scene of incident in presence of Panchas, drew Inquest Panchnama of the deceased and recorded the statements of concerned witnesses. As there was sufficient evidence against the accused person, the charge-sheet came to be filed before the Court of learned Judicial Magistrate, First Class, Garbada and the same was registered vide Criminal Case No.70/09. Since the case was exclusively triable by the Sessions Court, learned JMFC, Garbada committed the case to the Sessions Court as provided under section 209 of the Code. Upon committal of the case to the Sessions Court, learned Sessions Judge framed charge at Exh.-2 against the accused - respondent herein for the aforesaid offence. The accused pleaded not guilty and claimed to be tried.
2.2 In order to bring home charge, the prosecution has examined as many as 8 prosecution witnesses and also produced documentary evidence in nature of FIR, Inquest Panchnama, Post-mortem note and Panchnama of the place of offence.
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NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 2.3 After recording evidence of the witnesses and on completion of the arguments, the prosecution had filed Purshis at Exh.-26 for closing of their evidence. The court below recorded further statement of the witnesses under Section 313 of Cr.P.C., wherein, the respondent accused had denied and stated that false case has been filed against him. After hearing both the sides and after appreciating the evidence adduced by the prosecution, the learned trial Judge acquitted the respondent herein from the charge of offence under Sections 498(A) and 306 of IPC holding inter alia that the prosecution has failed to prove the charge beyond reasonable doubt . 2.4 Being aggrieved and dissatisfied with the Judgment and Order of acquittal dated 05/11/2007 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Dahod in Sessions Case No.42 of 2009, the appellant - State of Gujarat has filed the present appeal under Section 378 of the Code of Criminal Procedure, 1973.
3. Heard learned Additional Public Prosecutor Ms.Megha Chittaliya, appearing on behalf of the appellant - State and Page 6 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined learned advocate Mr.Maulik Soni, appearing on behalf of the respondent - original accused.
4. Learned APP Ms.Chittaliya has taken this Court to the evidence of the witnesses and other relevant materials and submitted that the respondent accused being the husband of the deceased daughter of the complainant, was duty-bound to protect his legally wedded wife, however, within a span of 4 years of their marriage, the deceased was harassed and given mental and physical torture on account of non-conceiving of child, which led her to commit an unfortunate step of suicide by jumping into a well and therefore, respondent accused ought to have been convicted for the offence punishable under Section 306 read with Section 498A of IPC. She has submitted that PW-1 - Shakrabhai Madubhai Sangod (Exh.-12) being the informant, who had informed the police, has stated in his deposition before the trial court that, on account of non- conceiving of child, there was a dispute between his deceased daughter and the respondent accused and the respondent accused used to tell the deceased and other family members that he would re-marry with another girl as the deceased was unable to conceive child and on account of that, there was an Page 7 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined inter se quarrel between husband and wife and other family members were also instigating the respondent accused for giving mental and physical cruelty to the deceased and therefore, the deceased had committed suicide by jumping into the well. She has submitted that the evidence of PW-1 was corroborated from the FIR which was lodged by the informant and therefore, the trial court has failed to appreciate the evidence of PW-1 being the informant and father of the deceased. She has further submitted that, in addition, the evidence of PW-4 - Shantaben Shakrabhai Sangod (Exh.-19) being step-mother of the deceased, has stated the same facts that the deceased was subjected to mental and physical torture / cruelty. She has further submitted that in support of the say of PW-1 and 4, the maternal uncle of the deceased PW-3 - Makansinh M. Parmar (Exh.-18) and uncle of the deceased PW-5 - Kalubhai Madubhai (Exh.-20) have also corroborated the aspect of mental and physical cruelty to the deceased Champaben on account of non-conceiving of child. 4.1 Learned APP Ms.Chittaliya has submitted that the marriage span of the deceased was only 4 years and therefore, appropriate inference under the provisions of Section 113A of Page 8 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined the Indian Evidence Act ought to have been attracted and the trial court ought to have considered this aspect at the time of appreciating evidence of the witnesses, however, the trial court has completely ignored this important aspect while appreciating and evaluating the evidence of the witnesses and has given benefit of doubt to the respondent accused. She has further submitted that the prosecution has successfully proved its case beyond reasonable doubt by examining all the relevant witnesses and by producing relevant documentary evidence and therefore, learned APP Ms.Chittaliya has submitted that this is a fit case which requires interference by this Court. Learned APP Ms.Chittaliya has extraneously tried to advance her submissions that prior to 10 days of the date of incident, at the time of visiting village of informant, the respondent accused had stated before the informant and other relatives that he would not visit the village Amlimenpur again with his wife and he would re-marry another girl and thereafter, immediately, the incident had taken place and therefore, it can be said that in the immediate past the conduct of the respondent accused itself is very clear and therefore, under such circumstances, the trial court has committed a serious error of law and on facts while passing the Page 9 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined impugned judgment and order of acquittal. She has submitted that so far as the delay in lodging the FIR is concerned, under the facts stated by the witnesses in the present case, the delay of 17 days would not come in the way of the prosecution and the trial court ought not to have given benefit of doubt to the respondent accused while considering the facts and the explanations given by the witnesses during the course of their depositions. She has further submitted that the informant has stated in his deposition that at the earlier stage, the village people had advised him not to file any complaint but, after completing post-death rituals of his deceased daughter, they had decided to lodge FIR against the respondent accused for the alleged offence. She has submitted that PW-3 has also stated in his deposition that on the earlier occasion, they had not lodged any FIR since they all were busy in the post-death rituals of the deceased Champaben and therefore, there was sufficient explanation given by the prosecution regarding delay in lodging the FIR. In support of her submissions regarding delay, learned APP Ms.Chittaliya has referred and relied upon the decision of this Court rendered in case of Fulsingbhai Gimlabhai Vasava vs. State of Gujarat in Criminal Appeal 550 of 2014, wherein, it has been observed and held Page 10 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined in para-8 as under :
"8. It has been submitted by learned advocate, Mr. Shah that there was a delay in filing FIR by fourteen days from the day when the deceased ablaze herself and delay of eleven days from the day the deceased expired and no explanation is given for such delay. It appears from the complaint at Exh.12 that after the incident dated 8.12.2012 at about 7.00 p.m., the deceased had expired on 11.12.2012 and post mortem was performed on 12.12.2012 at 12.05 a.m. and thereafter, after-death ceremony was performed. Thus, in fact, if the day of after-death ceremony performed on 12.12.2012 is counted, alleged delay can be said to be of ten days and not eleven days or fourteen days as submitted by learned advocate for the appellant. It is also factually an incorrect submission that no explanation is given anywhere for such delay. In fact, in the last portion of the complaint itself it is mentioned that they were engaged in after-death ceremony of the deceased and hence, they filed the complaint on 22.12.2012. It is a common knowledge that after the death of any Hindu, after-death ceremony would last at least till 10th day or 12th day or 13th day. Thus, there appears no substance in the above referred submission of delay in filing the complaint made by learned advocate for the appellant and therefore, it cannot be said that there was any delay in lodging the FIR."
4.2 Learned APP Ms.Chittaliya has also referred and relied upon the decision of the Hon'ble Apex Court in case of Satish Shetty vs. State of Karnataka in Criminal Appeal No.1358 of 2008, wherein, it has been observed and held in para-12 as under :
"12. It will be useful to remember that delay in lodging the FIR or complaint is not fatal in all cases. The Court must show some sensitivity in cases of present nature where the victim's closest relation - mother is a poor helpless lady. Even a well to do person may suffer a state of mental confusion when struck by such a tragedy. The prosecution in such cases is likely to be delayed further if the deceased has left behind children. The issues relating to their safety and custody often require higher priority.Page 11 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024
NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined Occurrences of the present nature require lodging of criminal case against persons who are already in the category of relation by virtue of matrimonial ties through the deceased and it is not always easy to take a decision whether to lodge a criminal case against a relation or not. Hence in such cases the factum of delay has to be dealt with sympathetically keeping in mind the mental condition of the close relations of the victim. The trial court miserably failed on this count too."
4.3 So far as the powers under Section 378 of Cr.P.C. is concerned, learned APP Ms.Chittaliya has referred and relied upon the decision of this Court in case of State of Gujarat vs. Khimabhai Lakhmanbhai Charan in Criminal Appeal No.963 of 2005 and urged that the present appeal be allowed and the impugned judgment and order of acquittal passed by the trial court be quashed and set aside.
5. On the other hand, learned advocate Mr.Maulik Soni, appearing on behalf of the respondent accused, has submitted that the trial court, after evaluating the evidence of the witnesses, after considering the oral as well as documentary evidence and after considering the facts of the case, has rightly passed the impugned judgment and order of acquittal and there is no any illegality or any perversity in the impugned judgment and order of trial court and therefore, no interference is required to be called for in the present appeal. Page 12 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024
NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined He has further submitted that there was no any proximity that the deceased had committed suicide in remote past on account of non-conceiving of child and it depends upon person to person that how they take the issue and during the marriage span of 4 years there was no any prior complaint of any ill-treatment or any cruelty, merely the bare statement was made before the court for the first time. He has further submitted that, when the deceased was not found at home, the respondent and his family members had first informed to the informant at village Amlimenpur and on 04/12/2008, when the body of the deceased was found, they had immediately informed the informant and his family members, therefore, there was no any bad intention worth the name and even in presence of the informant and his family members, the police had recovered the body from the well, prepared the Inquest Panchnama, sent the body for post-mortem and at that point of time, they had not raised any objection or filed any complaint and after about 17 days of the incident, after consultation with family members and others, they had filed the complaint against the respondent accused, which clearly shows that the informant had filed the complain at the behest of some other persons. He has further submitted that the Page 13 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined depositions of all the four witnesses are highly interested and they all are relatives of the deceased and the prosecution has not examined any independent witness from village Dadur though the deceased was residing at village Dadur with her in- laws since last four years and therefore, under such circumstances, the prosecution has failed to establish the charge levelled against the respondent accused. He has also further submitted that though the delay cannot be proved to be fatal under the facts of the individual case, however, in the present case, even if it is presumed after post-death rituals i.e. after 12th day of the incident, but, the FIR was lodged after five days of completion of post-death rituals i.e. after almost 17 days of the incident and therefore, it cannot be said that the persons are in trauma or such shock for 17 days and the explanation rendered by the witnesses in their depositions are absolutely undigestible and therefore, the trial court has rightly passed the impugned judgment and order of acquittal in favour of the respondent accused. He has submitted that, infact, during these four years though there was a quarrel between husband and wife, no complaint was filed either by the deceased or any other family members at any point of time and therefore, under such circumstances, learned advocate Page 14 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined Mr.Soni has urged that the present appeal be dismissed and the impugned judgment and order of acquittal passed by the trial court be confirmed.
5.1 In support of his submissions, learned advocate Mr.Soni has referred and relied upon the decisions of this Court in case of State of Gujarat vs. Girvatbhai Laxmanbhai Baria in Criminal Appeal No.545 of 2010 and one another judgment in case of State of Gujarat vs. Vaniya Mukeshkumar Jethalal in Criminal Appeal No.1301 of 2009. He has also referred and relied upon the recent decision of the Hon'ble Apex Court rendered in case of Kumar @ Shiva Kumar vs. State of Karnataka, reported in AIR 2024 SC 1283, wherein, in case of abetment of suicide, the Hon'ble Apex Court has considered the submissions and discussed the legal aspects and observed and held as under :
"29. Though delay in lodging first information by itself cannot be a ground to disbelieve the prosecution case, unexplained delay coupled with surrounding circumstances can certainly dent the prosecution version. Here is a person (PW-1) who evidently goes to the hospital to see his daughter struggling for life twenty-four hours after her admission in hospital, that too just hours before her death. Such a behaviour is unusual for father, to say the least. That apart, evidently, he was not stating the truth when he said that he used to reside in the same house as that of the deceased and when he returned home at 10:00 AM in the morning on the fateful day, the deceased was already taken to the nursing home by the neighbours. Evidence of PW-2 and PW-4 bely such statement of PW-
1. His daughter died on 06.07.2000 at 07:30 PM, whereafter the body was taken by the police for postmortem examination. Yet he Page 15 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined waited till the next morning to lodge the police complaint. The police had also not examined Jayarama, the scribe, who had written the complaint, to ascertain the reason for such delay. According to PW-1, Jayarama was in the hospital till the death of the deceased. In the face of such glaring conduct of the first informant PW-1, adverse inference would have to be drawn. But crucially, the tendered evidence, as discussed above, are hearsay not worthy of much credence.
31. In India attempt to commit suicide is an offence under Section 309 IPC. This section provides that whoever attempts to commit suicide and does any act towards the commission of such offence, he shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both. But once the suicide is carried out i.e., the offence is complete, then obviously such a person would be beyond the reach of the law; question of penalising him would not arise. In such a case, whoever abets the commission of such suicide would be penalised under Section 306 IPC.
Section 306 IPC reads 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.
31.1 Thus, as per Section 306 of IPC, if any person commits suicide, then 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.
32. The crucial word in Section 306 of IPC is 'abets'. 'Abetment' is defined in Section 107 of IPC.
Section 107 of IPC reads thus:
107. Abetment of a thing- A person abets the doing of a thing, whoFirst-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 Page 16 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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.
32.1 From a reading of Section 107 IPC what is deducible is that a person would be abetting the doing of a thing if he instigates any person to do that thing or if he encourages with one or more person or persons in any conspiracy for doing that thing or if he intentionally aids by any act or illegal omission doing of that thing. Explanation 1 clarifies that even if a person by way of wilful misrepresentation or concealment of a material fact which he is otherwise 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. Similarly, it is clarified by way of Explanation-2 that whoever does anything in order to facilitate the commission of an act, either prior to or at the time of commission of the act, is said to aid the doing of that act.
Case law
33. Suicide is distinguishable from homicide inasmuch as it amounts to killing of self. This Court in M. Mohan Versus State1 went into the meaning of the word suicide and held as under:
37. 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.
34. In Ramesh Kumar versus State of Chhattisgarh2 , this Court delved into the meaning of the word 'instigate' or 'instigation' and held as under:
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 Page 17 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined emotion without intending the consequences to actually follow cannot be said to be instigation.
34.1 Thus, this Court held that to 'instigate' means to goad, urge, provoke, incite or encourage to do 'an act'. To satisfy the requirement of 'instigation', it is not necessary that actual words must be used to that effect or that the words or act should necessarily and specifically be suggestive of the consequence. But, a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused by his act or omission or by his continued course of conduct creates a situation that the deceased is left with no other option except to commit suicide, then instigation may be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
35. Again in the case of Chitresh Kumar Chopra versus State3 , this Court elaborated further and observed that to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'goading' or 'urging forward'. This Court held as follows:
17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction" (see Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.).
18. Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter.
35.1 Thus, this Court has held that in order to prove that the accused had abetted the commission of suicide by a person, the following has to be established:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction;
and
(ii) that the accused had the intention to provoke, urge or Page 18 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
36. In Amalendu Pal alias Jhantu versus State of West Bengal4 , this Court after referring to some of the previous decisions held that it has been the consistent view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative to put an end to her life. It must be borne in mind that in a case of alleged abetment of suicide, there must be proof of direct or indirect act(s) of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the deceased to commit suicide, conviction in terms of Section 306 IPC would not be sustainable. Thereafter, this Court held as under:
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
37. Similar is the view expressed by this court in Ude Singh (supra).
38. In Rajesh versus State of Haryana, (2020) 15 SCC 359, this Court after referring to Sections 306 and 107 of the IPC held as follows:
9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
39. Reverting back to the decision in M. Mohan (supra), this Court Page 19 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined observed that abetment would involve 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. Delineating the intention of the legislature and having regard to the ratio of the cases decided by this Court, it was concluded that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It would also require an active act or direct act which led the deceased to commit suicide seeing no other option and that this act of the accused must have been intended to push the deceased into such a position that he committed suicide.
40. Sounding a note of caution, this Court in State of West Bengal versus Orilal Jaiswal observed that the court should be extremely careful in assessing the facts and circumstances of each case as well as 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 her life by committing suicide. If it transpires to the court that the victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual 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.
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."
5.2 Learned advocate Mr.Soni has therefore, urged that the trial court has rightly passed the impugned judgment and order of acquittal in favour of the present respondent accused and therefore, no interference is required to be called for in the present appeal and the present appeal be dismissed. Page 20 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024
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6. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. On perusal of the evidence recorded by the trial court and on examining the evidence, the issue involved in the present appeal is that, whether the offence under Section 306 read with Section 498A of IPC was proved against the respondent accused, whether the trial court was right and justified in passing the impugned judgment and order of acquittal in favour of the respondent accused, whether the prosecution was able to establish the charge under Section 306 and 498A of IPC against the respondent accused, whether there is any illegality or any infirmity in the impugned judgment and order of acquittal recorded by the trial court. I answer accordingly. 6.1 I have thoroughly examined the records of the trial court and I have also gone through the depositions of the witnesses and also considered the oral as well as documentary evidence recorded by the trial court. It is an undisputed fact that the marriage span of the deceased Champaben and the respondent accused was only of 4 years. It is also an undisputed fact that the deceased was residing in joint family Page 21 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined and during these 4 years, on earlier occasion there was no any quarrel or any grievance raised by the complainant or his family members against the respondent accused with regard to any cruelty or any mental or physical harassment or any ill- treatment mated out to the deceased. It is also required to be noted herein that the deceased had committed suicide by jumping into well, which was immediately informed to the family members of the deceased by the respondent accused and even at that relevant point of time, no complaint was filed by the complainant but, the same was filed after almost 17 days after consultation with the family members and it was proved that after the deliberation of the family members, the present complaint was filed by the complainant and therefore, under such circumstances, there are all likelihood that the present complaint was an afterthought and it was filed by the complainant after deliberation of the family members, otherwise, in the marriage span of 4 years of the deceased and the respondent accused, no such allegations of harassment were made by the complainant on earlier occasions and no untoward incident had taken place between both the families in past. Therefore, after considering all these aspects, the trial court was justified in passing the impugned judgment and Page 22 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined order while considering the provisions 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.--
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 Page 23 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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. 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).] 6.2 On considering the submissions and on perusal of the witnesses viz. PW-1 being informant and father of the deceased, PW-3 being maternal uncle of the deceased, PW-4 being step-mother of the deceased, PW-5 being uncle of the deceased vis-a-vis the deposition of the Investigating Officer (PW-8), the Court is prima facie of the opinion that it depends upon the psychological condition of the concerned person committing suicide and therefore, in the immediate past, there was no reason for the deceased to opt for such a harsh step of committing suicide by jumping into a well. In the present case, Page 24 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined it is an admitted fact that the deceased has committed suicide after 4 years of marriage span and during these 4 years, there was no prior complaint or grievance raised by the complainant or by other family members of the deceased and therefore, under such circumstances, the trial court has not committed any error of law and facts while passing the impugned judgment and order of acquittal. 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 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 Page 25 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined court.
6.3 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:
(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", Page 26 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined "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 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 Page 27 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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."
6.4 It would also be fruitful to refer to the decision of the Division Bench of this Court in case of State of Gujarat vs. 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 Page 28 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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 :
"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 Page 29 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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 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 Page 30 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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:
"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 Page 31 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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:
"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 Page 32 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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 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 Page 33 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the 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.
(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 Page 34 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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 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 Page 35 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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 acquittal."
6.5 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 Page 36 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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 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. Page 37 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024
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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."
6.6 So far as the offence under Section 306 of IPC is concerned, it would be fruitful to refer to the recent decision of the Hon'ble Apex Court rendered in case of Nipun Aneja and Others vs. State 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 Page 38 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined 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. Further, as the extreme action of committing suicide is also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories. First, where the deceased is having sentimental ties or physical relations with the accused and the second category would be where the deceased is having relations with the accused in his or her official capacity. In the case of former category sometimes a normal quarrel or the hot exchange of words may result into immediate psychological imbalance, consequently creating a situation of depression, loss of charm in life and if the person is unable to control sentiments of expectations, it may give temptations to the person to commit suicide, e.g., when there is relation of husband and wife, Page 39 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined mother and son, brother and sister, sister and sister and other relations of such type, where sentimental tie is by blood or due to physical relations. In the case of second category the tie is on account of official relations, where the expectations would be to discharge the obligations as provided for such duty in law and to receive the considerations as provided in law. In normal circumstances, relationships by sentimental tie cannot be equated with the official relationship. The reason being different nature of conduct to maintain that relationship. The former category leaves more expectations, whereas in the latter category, by and large, the expectations and obligations are prescribed by law, rules, policies and regulations. 6.7 The test that the Court should adopt in this type of cases is to make an endeavour to ascertain on the basis of the materials on record whether there is anything to indicate even prima facie that the accused intended the consequences of the act, i.e., suicide. Over a period of time, the trend of the courts is that such intention can be read into or gathered only after a full- fledged trial. The problem is that the courts just look into the factum of suicide and nothing more. I believe that such understanding on the part of the courts is wrong. It all depends Page 40 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024 NEUTRAL CITATION R/CR.A/799/2010 JUDGMENT DATED: 22/11/2024 undefined on the nature of the offence & accusation. For example, whether the accused had the common intention under Section 34 of the IPC could be gathered only after a full-fledged trial on the basis of the depositions of the witnesses as regards the genesis of the occurrence, the manner of assault, the weapon used, the role played by the accused etc. However, in cases of abetment of suicide by and large the facts make things clear more particularly from the nature of the allegations itself. The Courts should know how to apply the correct principles of law governing abetment of suicide to the facts on record. It is the inability on the part of the courts to understand and apply the correct principles of law to the cases of abetment of suicide, which leads to unnecessary prosecutions. We do understand and appreciate the feelings and sentiments of the family members of the deceased and we cannot find any fault on their part if they decide to lodge a First Information Report with the police. However, it is ultimately for the police and the courts of law to look into the matter and see that the persons against whom allegations have been levelled are not unnecessarily harassed or they are not put to trial just for the sake of prosecuting them.
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7. Considering the above referred decisions and considering the facts of the present case, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 05/11/2007 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Dahod in Sessions Case No.42 of 2009 is hereby confirmed. Bail bond, if any, furnished by the respondent accused stands cancelled.
Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J) Dolly Page 42 of 42 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 02 2024 Downloaded on : Fri Dec 06 22:25:47 IST 2024