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2025 DIGILAW 227 (GUJ)

State of Gujarat v. Hitendrasinh Harisinh Zala

2025-03-07

S.V.PINTO

body2025
JUDGMENT : S. V. PINTO, J. 1. This appeal has been filed by the appellant- State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Presiding Officer and learned Additional Sessions Judge, Rajkot (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 25 of 2007 on 11.07.2007, whereby, the learned Trial Court has acquitted the respondents for the offence punishable under Sections 498-A , 306 and 114 of Indian Penal Code, 1860 (hereafter referred to as " IPC " for short) and Sections 3 and 7 of the Dowry Prohibition Act 1961, (hereinafter referred to as “Act”). 1.1] The respondents are hereinafter referred to as “the accused” as they stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1] The accused No. 1 was the husband, the accused No. 2 - mother-in-law, accused No. 3 - sister-in-law and accused No. 4 - father- in-law of deceased Truptiba. That all the accused used to mentally and physically harass the deceased and if the deceased would switch on the lights or fans, they would taunt her asking whether her father would pay the bills and would also harass her about dowry and physically torture her to such an extent that on 1-10-2006 at around 2.30 am, the deceased consumed poison at Nanavadiya village and committed suicide. The complainant Jitendrasingh Karansinh Jadeja, the brother of the complainant, filed the complaint on 3-10-2006 at Kotada Sangani Police Station, which was registered at I-C.R.No. 128 of 2006 before Kotada Sangani Police Station, Rajkot under Sections 3 06 , 498-A, 323 and 114 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act 1961. 2.2] The Investigating Officer recorded the statements of the connected witnesses and collected the necessary documents and after completion of investigation the police filed chargesheet before the Court of Judicial Magistrate First Class, Gondal and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Rajkot as per the provisions of Section 209 of the Code of Criminal Procedure and case was registered Sessions Case No. 25 of 2007. 2.3] The accused were duly served with the summons and the accused appeared before the learned Trial Court, and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code and a charge at Exh. 7 was framed against the accused and the statements of the accused were recorded at Exhs. 8 to 11, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.4] The prosecution produced seven oral evidences and twenty two documentary evidences to bring home the charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis at Exh. 49, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, the accused denied all the evidence of the prosecution on record. The accused refused to step into the witness box or examine witnesses on their behalf and stated that a false case has been filed against them. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court by the impugned judgment and order was pleased to acquit all the accused from all the charges leveled against them. 3. Being aggrieved and dissatisfied with the said judgement and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgement and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not appreciated the fact that all the witnesses have supported the case of the prosecution and during cross-examination, nothing adverse has been elicited in favour of the respondent. The case has been proved beyond reasonable doubts and the prosecution has successfully established the case against the respondent and the judgement and order of acquittal is unwarranted, illegal and without any basis in the eyes of law and the reasons stated while acquitting the respondent are improper, perverse and bad in law. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. 4. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. Vicky B. Mehta for the respondents-original accused. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. 4. Heard learned APP Mr. Bhargav Pandya for the appellant State and learned advocate Mr. Vicky B. Mehta for the respondents-original accused. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Mr. Bhargav Pandya has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the judgment and order of acquittal is contrary to law and evidence on record and the learned trial Court has not appreciated direct and indirect evidence in the case. That the complainant has supported the case of the prosecution, which is corroborated by the deposition of the medical officer and the witnesses have identified the accused before the learned trial Court. The prosecution has fully prove the case beyond reasonable doubts but the learned trial Court has relied on minor contradictions and has given undue weightage with regard to the place of incident. That the order passed by the learned trial Court is illegal, improper and perverse and is required to be quashed and set aside and the appeal of the appellant must be allowed. 6. Learned advocate Mr. Vicky B. Mehta appearing for the respondents-original accused submits that the judgment and order has been passed after appreciation of all the evidence and the learned Court has appreciated the evidence in proper perspective and hence, the appeal of the appellant-State must be rejected. 7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in acquittal appeals in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415 , wherein, the Apex Court has observed as under: Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 : AIR 2006 SC 831 , this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) From the above decisions, in our considered view, the following general principles regarding powers of 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 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 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.. 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.. 8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is a presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. That there is no inhibition to re appreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same. 9. As the appeal pertains to a case under Section 306 of the IPC , it would be appropriate to reproduce the observations of the Hon’ble Apex Court in the case of Mahendra Awase vs The State of Madhya Pradhesh Criminal Appeal No. 221/2025 (@ SLP(Cr) No. 11868/2023) passed on 17 th January, 2025 which is as under: 11. Section 306 of the 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.” 12. Section 107 of the IPC reads as under:- “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.” As is clear from the plain language of the Sections to attract the ingredient of Section 306, the accused should have abetted the commission of a suicide. - Intentionally aids, by any act or illegal omission, the doing of that thing.” As is clear from the plain language of the Sections to attract the ingredient of Section 306, the accused should have abetted the commission of a suicide. A person abets the doing of a thing who Firstly - 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. 13. In Swamy Prahaladdas vs. State of M.P. and Another, [1995 Supp (3) SCC 438], the appellant remarked to the deceased that 'go and die' and the deceased thereafter, committed suicide. This Court held that:- "3. ...Those words are casual nature which are often employed in the heat of the moment between quarreling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite 'mens rea' on the assumption that these words would be carried out in all events. …" 14. In Madan Mohan Singh vs. State of Gujarat and Another, (2010) 8 SCC 628 , this Court held that in order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. It was further held that the intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for attracting Section 306 . 15. In Amalendu Pal alias Jhantu vs. State of West Bengal, (2010) 1 SCC 707 , this Court held as under:- “12. Thus, this Court has consistently taken the 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 but to put an end to her life. It is also to be borne in mind 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 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, conviction in terms of Section 306 IPC is not sustainable. [Emphasis supplied] 16. 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 . 17. M. Mohan vs. State, (2011) 3 SCC 626 followed Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618 , wherein it was held as under:- 41. This Court in SCC para 20 of Ramesh Kumar has examined different shades of the meaning of "instigation". Para 20 reads as under: (SCC p. 629) “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. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." In the said case this Court came to the conclusion that there is no evidence and material available on record where-from an inference of the appellant accused having abetted commission of suicide by Seema (the appellant's wife therein) may necessarily be drawn.” Thereafter, this Court in Mohan (supra) held:- 45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.” [Emphasis supplied] 10. In light of the above settled principles of law , the evidence of the prosecution has reappreciated and the prosecution has examined Prosecution Witness No. 1 Jitendrasingh Karansinh Jadeja at Exhibit 16. The witness is the complainant and brother of the deceased who has fully supported the facts of the complaint which is produced at Exhibit 17. The witness has stated that the accused were mentally and physically harassing his sister Triuptiba and about 10 days prior to the incident, his sister Truptiba had telephoned him and told him that she had fever and to take her to her paternal home. That he and his wife had gone to bring his sister and at that time the accused Nos. 2 and 3 asked him about the dowry. That they stayed for the night and in the morning they brought Truptiba to her paternal house. That while she was at his house, she told them that she was being harassed for dowry and on the next day she was taken to Dr. Jogi's hospital at Gondal. 2 and 3 asked him about the dowry. That they stayed for the night and in the morning they brought Truptiba to her paternal house. That while she was at his house, she told them that she was being harassed for dowry and on the next day she was taken to Dr. Jogi's hospital at Gondal. They were discussing at home that they would send her back to her matrimonial home and around 10 pm all the lady members in the family had gone to see garba and they returned at around 12 midnight at around 2.30 am, his mother woke him up and told him that Truptiba was vomiting and when she was asked, she told them that she was harassed in her matrimonial home and if she was sent, they would kill her and she had consumed poison. Hence, they took her in a rickshaw to Dr. Sukhwala's hospital at Gondal. But Dr. Sukhwala referred them to Godhiya hospital where she was declared dead. That he had filed the complaint which is produced at Exhibit 17. During the cross-examination by the learned advocate for the accused, the witness has stated that the engagement of his sister was earlier broken and his sister was earlier engaged to one Prithviraj Singh of Surendranagar. That the accused knew about his financial and social position and the accused have a Maruti Zen car and two Jeeps, a huge house and are of a very wealthy family and the accused No. 1 is the sole legal heir. That his sister was married as per the customs of their community and he was married on the same day as his sister. That his sister did not have any children during her marital life but they had not taken her for treatment regarding this issue and after she came to the parental house, the incident occurred after about 10 days. That during these 10 days, his sister did not receive any phone call from the accused and the accused did not come to meet his sister. That during these 10 days, his sister did not receive any phone call from the accused and the accused did not come to meet his sister. That her final rites were performed in her matrimonial home and in their community, the ladies do not speak to any men directly that the ladies have the custom of wearing the veil over the face and on the date of the incident, when his sister had gone along with his mother and wife to see garba she was happy and when she returned and slept at that time too, she was very happy. 10.1 The prosecution has examined Prosecution Witness No.2 Karol Singh Bahadur Singh Chalaja at Exhibit 18 and the witness is the father of the deceased who has fully supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that he did not file the complaint as he was in a shock because of the death of his daughter and in their community, the ladies do not directly speak to any unknown men. That the accused have 150 vigas of land, one Maruti Zen car, two jeeps and a huge house of their ownership. 10.2 The prosecution has examined Prosecution Witness No.3 Dr. Ram Prasad Rasiklal Agrawat at Exhibit 21 and the witness is the medical officer who has performed the post-mortem on the dead body of the deceased at Civil Hospital, Rajkot on 2-10-2006. The witness has stated that there were no marks of injury found on the dead body of the deceased and the probable cause of death was cardiac respiratory failure. However, the viscera was kept for chemical analysis and after the FSL report, the cause of death was due to the chemical organophosphorus, a type of methylparathione due to which the heart and lungs had stopped. The post-mortem note is produced at Exhibit 25. During the cross-examination by the learned advocate for the accused, the witness has stated that if the pesticide to be put in the cotton crop was inhaled, death would occur. The post-mortem note is produced at Exhibit 25. During the cross-examination by the learned advocate for the accused, the witness has stated that if the pesticide to be put in the cotton crop was inhaled, death would occur. 10.3 The prosecution has examined Prosecution Witness No.4 Narankai Ramjibai Parmar at Exhibit 28 and the witness has stated that he was working as an ASI at the Kotada Sangani Police Station on 2-10-2006 when Accident Death No. 50/2006 was registered and he had gone to the place of incident and drawn the panchnama of the place of offence, which is produced at Exhibit 29. On perusal of the panchnama produced at Exhibit 29, which is the panchnama of the place of incident in the house of the complainant, the room was a 16x12 room with tiles on the floor, two windows on the western side and one window on the east side, a wall cupboard on the south side and an iron bed. There was a fan on the ceiling and an iron cupboard and at that place there were no marks of vomit or any pesticide and on minute inspection of the place, no marks of any sort were found. 10.4 Prosecution Witness No.5 Devyaniben Jitendrasinh Jadeja examined at Exhibit 39 is the sister-in-law of the deceased who has supported the case of the prosecution. During the cross examination by the learned advocate for the accused, the witness has stated that the deceased was at their house for the past 10 days prior to the incident and she was very happy and mixed with everyone. During the 10 days, no one from her matrimonial home came to meet her and she did not receive any phone call from them. When they returned from watching Garba at 12 midnight, she was very happy and they did not feel that she would commit suicide. 10.5 Prosecution Witness No.6 Murjibhai Laljibhai Makwana examined at Exhibit 41 is the PSO who has registered the offence and sent the same for investigation to PSI A. B. Valand who has registered the complaint of the complainant Jitendrasinh Karansinh Jadeja given before PSI A. B. Valand. 10.6 Prosecution Witness No.7 Atulbhai Bikhalal Valand examined at Exhibit 46 is the Investigating Officer, who has investigated the offence and has narrated in detail the procedure that was undertaken by him during investigation. 10.6 Prosecution Witness No.7 Atulbhai Bikhalal Valand examined at Exhibit 46 is the Investigating Officer, who has investigated the offence and has narrated in detail the procedure that was undertaken by him during investigation. During the cross examination by the learned advocate for the accused, the witness has stated that before the complainant had filed the complaint, no cognizable offence was made out from the papers of the accidental death and during investigation, the accused had sent some letters in their defence. He had recorded the statements of the connected witnesses including the witnesses mentioned in the letters of the accused but he had not investigated about the details mentioned in the application. During investigation, it was also found that the accused Nos. 1 to 3 were not well but he has not recorded the statement of Dr. Sukhwala. 11. On minute appreciation of the entire evidence of the prosecution, it is on record that the deceased Truptiba died at her parental home on 01.10.2006 and the complaint has been filed on 03.10.2006 at 20.50 hours. On the date of the incident, as per the complainant and the other witnesses, the deceased, her mother and her sister-in-law had gone to watch garba and no untoward incident had taken place even after they came back and the deceased was very happy. That 10 days prior to the incident, the deceased was not well and having fever and she had requested her brother, the complainant, to come and take her to her paternal home and the complainant, Prosecution Witness No.1 Jitendrasinh Karansinh Jadeja and Prosecution Witness No.5 Devyani Jitendrasinh Jadeja had gone to the matrimonial home of the deceased and had brought her to her parental house. During these 10 days, the accused did not contact the deceased and they did not meet her or telephone her and there is no iota of evidence that immediately prior to the incident the accused had harassed her mentally or physically and had met her to cause any incitement or abetment to her suicide. That the unfortunate incident has occurred at the house of the complainant and it was within the knowledge of the complainant and the house members as to what would have occurred immediately prior to the incident but there is no iota of evidence that the accused had in any manner abetted the suicide of the deceased. That the unfortunate incident has occurred at the house of the complainant and it was within the knowledge of the complainant and the house members as to what would have occurred immediately prior to the incident but there is no iota of evidence that the accused had in any manner abetted the suicide of the deceased. Admittedly, immediately after the incident, Accident Death No. 50 of 2006 was registered and the panchnama of the place of offence was also drawn up but besides the panchnama, no other documents regarding AD 50 of 2006 have come on record. The documents regarding investigation of the accidental death would be of utmost importance and the investigating officer has categorically stated that no cognizable offence was made out during the investigation of the accidental death. The complainant Prosecution Witness No.1 Jitendrasingh Karansinh Jadeja has stated that at the time of the incident his mother had woken him up stating that the deceased was vomiting and hence he had rushed her to the hospital but in the panchnama which is produced at Exhibit 29 no marks of vomit or any pesticides were found at the place where the deceased is alleged to have committed suicide During the investigation, no pesticides have been recovered from the place of incident and the learned trial court has discussed the entire oral and documentary evidence in the judgment. The learned trial court has also considered this aspect and appreciated the entire evidence in detail and discussed the same. The learned Trial Court has discussed all the oral as well as documentary evidences in detail and has concluded that the contradictory evidence of the complainant and the witnesses cannot be relied upon and it cannot be said that the prosecution has proved his case beyond reasonable doubts. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal. 12. In view of the settled position of law in the decisions of Mahendra Awase (supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. 12. In view of the settled position of law in the decisions of Mahendra Awase (supra), the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in extending benefit of doubt and acquitting the accused of the charges leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of extending benefit of doubt and acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 13. The impugned judgement and order of acquittal passed by the learned Presiding Officer and learned Additional Sessions Judge, Rajkot in Sessions Case No. 25 of 2007 on 11.07.2007, is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.