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2025 DIGILAW 351 (GUJ)

State of Gujarat v. Thakor Dashrathji Talaji

2025-04-02

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 learned Additional Sessions Judge, Fast Track Court, Patan (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 39 of 2007 on 11.01.2008, whereby, the learned Trial Court has acquitted the respondent Nos. 2 to 4 for the offence for the offence punishable under Sections 498-A , 306 and 201 of the Indian Penal Code, 1860 ( IPC ) and also acquitted the accused No. 1 from the offence punishable under Section 306 of the IPC . 1.1] Learned APP has produced the report of Police Inspector V.J. Parmar, In-charge Police Inspector Chanasma Police Station, District: Patan mainly stating that respondent No. 3 Balaji Talaji Thakor has expired on 22-09-2013 during the pendency of the appeal and a copy of the death certificate along with the statements of Badevji @ Bijalji Talaji Thakur, Viramji Talaji Thakor and Shaileshji Balaji Thakor have been produced and the report is taken on record. As per the death certificate, respondent No. 3 - Balaji Talaji Thakor has expired on 22-09-2013 and the copy of the death certificate, wherein the death has been registered in the Births and Deaths register with the Talati-cum-Mantri, Etoda Gram Panchayat, Taluka Chansma; District Patan is produced. In view of the above, the appeal qua respondent No. 3 stands abated. 1.1 The respondents are hereinafter referred to as “the accused” as they stood in the rank and file 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 Dashrathji Talaji Thakor was married to Jebarben more than 10 years prior to the incident. The accused No.3 is the elder brother-in-law of the accused No.1 and the accused Nos. 2 and 4 are the younger brothers of the accused No.1 and all the 3 accused were the brothers-in-law of Jebarben. The accused No.1 would not do any work and whenever Jebarben would tell him to do some work, he would get angry and physically and mentally harass Jebarben and the accused Nos. 2 to 4 would abet in the harassment. The accused No.1 would not do any work and whenever Jebarben would tell him to do some work, he would get angry and physically and mentally harass Jebarben and the accused Nos. 2 to 4 would abet in the harassment. On 18th May 2007, Jebarben was so fed up with the harassment that she sprinkled kerosene on her body and set herself ablaze and committed suicide. The complaint was filed by her brother Sawaji Bajuji Thakor at Chanasma Police Station under Sections 306 , 201 and 114 of the IPC , which was registered at Chanasma Police Station being I-C.R.No.62 of 2007. 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 the chargesheet against the accused before the Court of Judicial Magistrate First Class, Chanasma and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Patan as per the provisions of Section 209 of the Code of Criminal Procedure and the case was registered Sessios Case No. 39 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. A charge at Exh. 16 was framed against the accused and the statements of the accused were recorded at Exhs. 17 to 21, 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 eight oral evidences and eleven documentary evidences to bring home the charge against the accused and after the learned Additional Public Prosecutor filed the closing pursis, 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. 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 Ms. Dhwani Tripathi, for the appellant State and Mr. D.K.Chaudhari for the respondents-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 Ms. Dhwani Tripathi 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 the 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 proved 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. The prosecution has fully proved 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. D.C.Chaudhari appearing for the respondents-original accused submits that the judgments and orders have 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. 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". 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.. 8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. 8. The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an 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. There is no inhibition to re appreciate the evidence by the Appellate Court but if after re appre- ciation, 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 on record of the case is appreciated and the prosecution has examined Prosecution Witness No. 1 Ambarambhai Ramjiji Thakor at Exhibit 23 and the witness is the panch-witness of the panchnama of place of offence, which is produced at Exhibit 24. The witness has not supported the case of the prosecution and has been declared hostile and has been cross-examined at length by the learned APP, wherein he has admitted that he had gone to the place of offence and had seen burnt skin and burnt pieces of cloth. The Investigating Officer had taken samples from the place and he had seen a primus stove at the place and the same was mentioned in the panchnama. That a plash kerosene jar was also seized by the police and the witness has identified the muddamal before the learned Trial Court. During the cross-examination by the learned advocate for the accused, the witness has stated that he himself had gone to the place of offence with others and when the police saw him, he was called as a panch. During the cross-examination by the learned advocate for the accused, the witness has stated that he himself had gone to the place of offence with others and when the police saw him, he was called as a panch. That the police had written the panchnama and he had affixed his signature on different papers. He is residing about 5 to 6 houses away from the place of offence. 10.1] The prosecution has examined Prosecution Witness No. 2 Pratapjibhai Modajiji Thakor at Exhibit 29 and the witness is the panch- witness of the panchnama of place of offence, which is produced at Exhibit 24. 10.2] The prosecution has examined Prosecution Witness No. 3 Savaji Ajuji Thakore at Exhibit 30 and the witness is the complainant and the elder brother of deceased Jebarben. The witness has narrated all the contents of the complaint, which is produced at Exhibit 31. During the cross-examination by the learned advocate for the accused, the witness has stated that they had gone to the Harij Police Station, but the police told them to go to Chanasma Police Station and hence they had gone to the Chanasma Police Station to file the complaint. That they had also gone to the Bahucharaji Police Station and they were told to go to the Chanasma Police Station as the offence was within the jurisdiction of Chanasma Police Station. That on the date of filing of the complaint, two advocates were with him and he had gone to meet them at their office and they had accompanied him to the Police Station. That he had filed the complaint as per the advice of the advocate and his sister and her husband resided separately from the other accused for the past three years. That he had not produced any evidence about any treatment given to his sister and after her death, the children are residing with the accused No. 1. 10.3] The prosecution has examined Prosecution Witness No. 4 Rukhiben Ajuji Thakore at Exhibit 42 and the witness is the mother of the deceased who has stated that she does not know why the accused No. 1 had broken the leg of her daughter and she does not remember before how long her daughter had come to her house. That when her daughter would come to her house, she had never told her anything and she does not know how she was residing. That when her daughter would come to her house, she had never told her anything and she does not know how she was residing. That she had asked the people, what had happened to her daughter but no one told her anything. During the cross-examination by the learned advocate for the accused, the witness has stated that she had gone to Etoda village with her son and daughter-in-law and on inquiry, they found that her daughter had expired. That they did not go to see her dead body and her daughter was residing separately with her husband. That, her daughter would occasionally visit her house and most of the time her daughter was residing with her husband. 10.4] The prosecution has examined Prosecution Witness No. 5, the minor son of the complainant and the nephew of the deceased Jebarben at Exhibit 43. The witness has stated that on the day of the incident, he was at his house and there was a phone call on his mobile from Etoda at around 10:00 pm. and the person from the opposite end informed him that his aunt Jebarben had expired and to send his mother in the morning. That he told his father about the phone call and his father and others had gone to Etoda and returned the next evening. That, when his aunt had come to his house, he did not speak to her and he does not know any other details about the death. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know from what number he had received the call on his mobile. 10.5] The prosecution has examined Prosecution Witness No. 6 Kantaben Savaji Thakore at Exhibit 44 and the witness is the sister-in- law of the deceased Jebarben, who has supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, the witness has stated that her sister-in-law Jebarben and her husband lived separately from the other accused and at the time of the incident, the children of her sister-in-law were at home. During the cross-examination by the learned advocate for the accused, the witness has stated that her sister-in-law Jebarben and her husband lived separately from the other accused and at the time of the incident, the children of her sister-in-law were at home. 10.6] The prosecution has examined Prosecution Witness No. 7 Halabhai Sankabhai ASI, Chanasma Police Station, Buckle No.230 examined at Exhibit 45 was the PSO working at Chanasma Police Station on 19-05-2007 when the written complaint was sent to him and he had registered the complaint under Sections 306 , 201 and 114 of the IPC at Chanasma Police Station I-C.R.No. 62-2007, the witness had noted the same in the station diary. 10.7] The prosecution has examined Prosecution Witness No. 8 Ranjitsinh Hathesinh Jadeja at Exhibit 46 and the witness is Investigating Officer who has narrated in detail all the procedures undertaken by him during investigation of the offence. During the cross-examination by the learned advocate for the accused, the witness has stated that the complainant had come to file the complaint at around 5:00 pm along with the family members and he went to Etoda on the same day. That he did not draw the panchnama of the cremation ground and he had recorded the statements of witnesses on 19-05-2007 at Etoda village but none of those witnesses have been mentioned as witnesses in the charge-sheet. That in the entire chage sheet, there is no witness from Etoda village and he had recorded the statement of the daughter of the deceased but she has not been cited as a witness in the charge-sheet. That he did not find any evidence about the deceased taking treatment at any point of time and there was no evidence that prior to the incident, the deceased and her husband had any dispute. That all the accused are residing separately at Etoda village. 11. On minute appreciation of the entire evidence of the prosecution, the evidence that has emerged is that all the accused were residing separately with their respective families and the accused No.1 and the deceased were residing separately for the past three to four . The body of the deceased Jebarben was cremated before filing of the complaint and there is no iota of evidence that there was any kind of harassment from any of the accused to the deceased to the extent that she would commit suicide. The body of the deceased Jebarben was cremated before filing of the complaint and there is no iota of evidence that there was any kind of harassment from any of the accused to the deceased to the extent that she would commit suicide. There is no evidence that the accused had incited, abetted or goaded the deceased Jebarben to commit suicide and no evidence that any incident had occurred prior to the day of the incident that the deceased should commit suicide. 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 Additional Sessions Judge, Fast Track Court, Patan in Sessions Case No. 39 of 2007 on 11.01.2008 is hereby confirmed. 14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.