STATE OF GUJARAT vs VIJAYKUMAR BHANUBHAI BARAIYA
- Court
- Gujarat High Court
R/CR.A/1140/2016 JUDGMENT DATED: 05/11/2026
(GJHC240529392016)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1140 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
VIJAYKUMAR BHANUBHAI BARAIYA
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Appearance:
MR KRUTIK A PARIKH, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MRS REKHA H KAPADIA(2246) for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/11/2026
ORAL JUDGMENT
1. The appeal is filed by the appellant State under
Section 378 of the Code of Criminal Procedure, 1973 against
nd
the judgement and order of acquittal passed by the learned 2
Additional Sessions Judge, Kheda at Nadiad (hereinafter
referred to as “the learned Trial Court”) in Sessions Case
No.121 of 2014 on 06.06.2016, whereby, the learned Trial
Court has acquitted the respondent for the offence punishable
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under Sections 498(A), 306 and 504 of Indian Penal Code,
1860.
1.1 The respondent is hereinafter referred to as “the
accused” as he 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 Alkaben, the daughter of the complainant Ambaben
Bhagwanbhai Pagi, was married to the accused about four
years before the incident, and they had no children. About six
months before the incident, the accused used to talk to some
girl on the phone. Alkaben did not like it and scolded the
accused. The accused then abused her and subjected her to
mental and physical harassment. Fed up with the harassment,
she jumped into a canal on 26.08.2013 and committed suicide.
The complainant, the mother of the deceased, filed a
complaint at Virpur Police Station, District Kheda, for the
offences under Sections 498(A), 504 and 306 of the IPC. It was
registered as I-C.R. No.31 of 2013.
2.2 The Investigating Officer recorded the statements
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of the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Court of the Judicial
Magistrate First Class, Balasinor and as the said offences
against the accused was exclusively triable by the Court of
Sessions, the case was committed to the Sessions Court,
Kheda at Nadiad as per the Section 209 of the Code of
Criminal Procedure and the case was registered as Sessions
Case No.121 of 2014.
2.3 The accused was 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.5 was framed against the
accused and the statement of the accused was recorded at
Exh.6 wherein, the accused denied the contents of the charge
and the entire evidence of the prosecution was taken on
record.
2.4 The prosecution examined 11 witnesses and
produced 11 documentary evidences on record and after the
learned Additional Public Prosecutor filed the closing pursis,
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the further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 was recorded. 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 judgement and order was
pleased to acquit the accused from the charges levelled
against him.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant - State has filed
the present appeal mainly stating that the impugned judgment
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 the cross-
examination, nothing adverse has been elicited in favor of the
respondent. The case has been proved beyond reasonable
doubt and the prosecution has successfully established the
case against the respondent and the judgment and order of
acquittal is unwarranted, illegal, and without any basis in the
eyes of the law and the reasons stated while acquitting the
respondent are improper, perverse and bad in law. Hence the
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impugned judgment and order passed by the learned Trial
Court deserves to be quashed and set aside.
4. Heard learned APP Mr. Krutik A. Parikh for the
appellant State and learned advocate Ms. Rekha H. Kapadia
for the respondent No.1. 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. Krutik A. Parikh has taken this
Court through the entire evidence of the prosecution on
record of the case and submitted that the complainant has
fully supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
6. Learned advocate Ms. Rekha H. Kapadia for the
respondent No.1 has submitted that the learned Trial Court
has appreciated all the evidence in true perspective and has
not committed any error in acquitting the accused. Therefore,
no interference of this Court is required in the impugned
judgement and the order of acquittal passed by the learned
Trial Court and has urged this Court to reject the appeal.
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7. 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
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.
8. At the outset, it would be appropriate to refer to
the observations of the Apex Court regarding the applicability
of Section 306 in the case of Amalendu Pal alias Jhantu v.
State of West Bengal , reported in (2010) 1 SCC 707,
wherein, the Apex Court has observed as under:
9. At the outset, we intend to address the
issue regarding the applicability of Section 306
IPC in the facts of the present case. Section 306
deals with abetment of suicide and Section 107
deals with abetment of a thing. They read as
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follows:
"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."
"107. Abetment of a thing. A person abets
the doing of a thing,
First.-Instigates any person to do that
thing; or
Secondly. - Engages with one or more
other person or persons in any conspiracy
for the doing of that thing, if an act or
illegal omission takes place in pursuance
of that conspiracy, and in order to the
doing of that thing; or
Thirdly.- Intentionally aids, by any act or
illegal omission, the doing of that thing.
Explanation 1. A person who, by wilful
misrepresentation, or by wilful
concealment of a material fact which he is
bound to disclose, voluntarily causes or
procures, or attempts to cause or procure,
a thing to be done, is said to instigate the
doing of that thing.
Explanation 2.-Whoever, either prior to or
at the time of the commission of an act,
does anything in order to facilitate the
commission of that act, and thereby
facilitates the commission thereof, is said
to aid the doing of that act."
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10. The legal position as regards Sections
306 IPC which is long settled was recently
reiterated by this Court in Randhir Singh v. State
of Punjab as follows in paras 12 and 13: (SCC p.
134)
"12. Abetment involves a mental process
of instigating a person or intentionally
aiding that person in doing of a thing. In
cases of conspiracy also it would involve
that mental process of entering into
conspiracy for the doing of that thing.
More active role which can be described
as instigating or aiding the doing of a
thing is required before a person can be
said to be abetting the commission of
offence under Section 306 IPC.
13. In State of W.B. v. Orilal Jaiswal this
Court has observed that the courts should
be extremely careful in assessing the
facts and circumstances of each case and
the evidence adduced in the trial for the
purpose of finding whether the cruelty
meted out to the victim had in fact
induced her to end the life by committing
suicide. If it transpires to the court that a
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 in a given
society to commit suicide, the conscience
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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."
11. Further, in Kishori Lal v. State of M.P. this
Court gave a clear exposition of Section 107 IPC
when it observed as follows in para 6: (SCC p.
799)
“6. Section 107 IPC defines abetment of a
thing. The offence of abetment is a
separate and distinct offence provided in
IPC. A person, abets the doing of a thing
when (1) he instigates any person to do
that thing; or (2) engages with one or
more other persons in any conspiracy for
the doing of that thing; or (3)
intentionally aids, by act or illegal
omission, the doing of that thing. These
things are essential to complete abetment
as a crime. The word 'instigate literally
means to provoke, incite, urge on or bring
about by persuasion to do any thing. The
abetment may be by instigation,
conspiracy or intentional aid, as provided
in the three clauses of Section 107.
Section 109 provides that if the act
abetted is committed in consequence of
abetment and there is no provision for the
punishment of such abetment, then the
offender is to be punished with the
punishment provided for the original
offence. 'Abetted' in Section 109 means
the specific offence abetted. Therefore,
the offence for the abetment of which a
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person is charged with the abetment is
normally linked with the proved offence."
(See also Kishangiri Mangalgiri Goswami v. State
of Gujarat, SCC p. 55, para 13.)
12. Thus, this Court has consistently taken
the view that before holding an accused guilty of
an offence under Section 306 1PC, 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.
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.
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9. To prove the offence against the accused, the
prosecution has in all examined eleven witnesses.
9.1 PW1 – Ambaben Bhagwanbhai Pagi examined at
Exh.9 is the complainant and the mother of the deceased. She
has narrated the facts stated in the complaint, which is
produced at Exh.26. She has stated that the accused used to
consume liquor and physically assault her daughter. When
she got the information that her daughter had fallen into the
canal, she went there and saw that the dead body was lying
away from the canal. The clothes on the body were not wet
and there were injury marks on the body and the nose and
ears were bleeding.
In her cross-examination by the learned advocate
for the accused, the witness has stated that she has not
named the girl with whom the accused was talking in the
complaint. No police complaint or private complaint had been
filed against the accused before the incident. Her daughter
had never taken any treatment for physical assault by the
accused. On the day of the incident, at around 2 p.m., the
accused had come to her house to give fertilizers, and as it
was the festival of Janamashtami, he had taken her son Sanjay
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with him to celebrate the festival. She went to file the
complaint with her husband, other relatives and persons from
the village. As she is not literate, the complaint was written by
the others who were with her, and she only affixed her thumb
impression on the complaint and she has not stated in the
complaint that the accused consumed liquor. The witness has
admitted that she has no personal knowledge of any illicit
relationship of the accused with any person.
9.2 PW2 – Bhalabhai Punjabhai Pagi examined at
Exh.11 and PW4, Prabhatbhai Ramabhai Pagi examined at
Exh.14 are the panch witnesses to the panchnama of the
place of offence, produced at Exh.12. Both witnesses have not
supported the case of the prosecution.
9.3 PW3 – Bhagwanbhai Punjabhai Pagi examined at
Exh.13 is the father of the deceased and has mainly
supported the case of the prosecution. In his cross-
examination, he has stated that the accused has a shop for
recharging mobile phones and many persons call him on the
phone throughout the day. After marriage, the deceased
never filed any complaint against the accused and never took
any treatment for physical abuse by him. He does not know
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the name of the girl with whom the accused is alleged to have
an illicit relationship, he has not inquired into the allegation,
and he has no personal knowledge about it. His wife filed the
complaint only because they had a doubt that the accused
had an illicit relationship with someone. On the day before
the incident, the accused had come to his house to give
fertilizers, and the next day was the festival of Janmashtami,
so his son Sanjay went with the accused to Bharodi village.
His daughter had no child during her married life, and she
was a very sensitive person. The family members and
relatives discussed the incident and decided to file the
complaint.
9.4 PW5 – Babubhai Ramabhai Pagi examined at
Exh.16 is the uncle of the deceased. He has supported the
case of the prosecution. In his cross-examination, he has
admitted that the accused had a mobile shop and received
phone calls from many persons. His niece had a doubt that the
accused was talking to some girl, but he did not discuss this
with her and he has no personal knowledge of the incident.
9.5 PW6 – Sanjaykumar Bhagwanbhai Pagi examined at
Exh.17 is the brother of the deceased. He has supported the
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case of the prosecution. In his cross-examination, he has
stated that his brother-in-law had a mobile shop and received
a very large number of phone calls during the day. He had
gone with his brother-in-law to his sister’s house, where his
sister and brother-in-law quarrelled about a shirt alleged to
have been given by some girl. He then went out, and when he
returned, he found that his sister had fallen into the canal.
9.6 PW7 – Prabhatbhai Masurbhai Baraiya examined at
Exh.18 is a relative of the deceased. He has not supported the
case of the prosecution.
9.7 PW8 – Dr. Babubhai Jaisingbhai Maliwad examined
at Exh.20 is the Medical Officer who was on duty at the
Community Health Centre, Virpur. Along with Dr. I.S. Pandya,
he conducted the postmortem on the dead body of the
deceased on 27.08.2013, between 12.15 a.m. and 1.55 a.m.
He has stated that there were no injury marks or fractures on
the body. The cause of death was kept pending until the final
FSL report from Ahmedabad was received. After the FSL
report was received, the final cause of death was given as
drowning. He has produced the postmortem note at Exh.21
and the cause of death certificate at Exh.22.
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9.8 PW9 – Sureshbhai Parvatbhai Pagi examined at
Exh.23 and PW10 - Babubhai Bhurabhai Pateliya examined at
Exh.24 are the panch witnesses to the inquest panchnama,
produced at Exh.10. Both witnesses have not supported the
case of the prosecution.
9.9 PW11 – P.S.I. Amratlal Lakshmiram Acharya
examined at Exh.25 is the Investigating Officer. He has
narrated the procedure followed by him during the
investigation. In his cross-examination by the learned
advocate for the accused, he has stated that he did not record
the statement of any independent neighbours of the accused.
There was an allegation that the accused had an illicit
relationship with a girl, but no name of any girl emerged
during investigation. During the lifetime of the deceased, no
complaint of physical or mental harassment by the accused
was found, and nothing was found to show that any dowry was
demanded. No injury marks were found on the dead body in
the inquest panchnama.
10. On minute appreciation of the entire evidence of
the prosecution, it appears that, as per the prosecution’s
case, the deceased committed suicide because she suspected
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that the accused had an illicit relationship with some girl and
was constantly talking to her on the phone, and because of
this he mentally and physically harassed her. However, there
is not an iota of evidence in the entire evidence of the
prosecution to show that the accused had an affair with any
girl. In fact, the evidence shows that the accused had a
mobile shop and received phone calls from many persons, and
the deceased only had a doubt that he was having an affair
with someone. There is also no evidence that the deceased
was subjected to any mental or physical harassment during
her lifetime. The complainant and the other relatives have all
stated that they have not named any girl with whom the
accused is alleged to have had an affair. The evidence of PW3
– Bhagwanbhai Punjabhai Pagi also shows that the deceased
had no child and was a very sensitive person.
11. In view of the settled position of law, 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
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Court was completely justified in 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
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.
12. The impugned judgement and order of acquittal
passed by the learned 2nd Additional Sessions Judge, Kheda
at Nadiad in Sessions Case No.121 of 2014 on 06.06.2016, is
hereby confirmed.
13. Bail bond stands cancelled. Record and
proceedings be sent back to the concerned Trial Court
forthwith.
Sd/-
(S. V. PINTO,J)
ROHAN SONI
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