STATE OF GUJARAT vs DINESHBHAI BABULAL SHAH
- Court
- Gujarat High Court
- Case type
- CRIMINAL APPEAL
- Decided on
- 17-03-2026
R/CR.A/2058/2009 CAV JUDGMENT DATED: 17/03/2026
Reserved On : 27/02/2026
Pronounced On : 17/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2058 of 2009
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STATE OF GUJARAT
Versus
DINESHBHAI BABULAL SHAH
==========================================================
Appearance:
MR YUVRAJ BRAHMBHATT, APP for the Appellant(s) No. 1
NON BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s)
No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. Feeling aggrieved by and dissatisfied with the
judgment and order of acquittal dated 21.07.2009, passed by
the learned Additional Sessions Judge, Court No.15, City
Civil Court, Ahmedabad, in Sessions Case No.455 of 2006, for
the offences punishable under Sections 498(A) and 306 of the
Indian Penal Code, the appellant – State of Gujarat has
preferred this appeal under Section 378 of the Code of
Criminal Procedure, 1973 (for short, “the Code”).
2. The prosecution case as unfolded during the trial
before the trial Court is that the daughter of the
complainant via., Mitaben got married with respondent –
accused viz., Dineshbhai as per Hindu rites of his caste
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before 21 years from the date of incident; and that initially,
the marriage life of them was happy; and that during
marriage life, Mitaben did not have any child and therefore,
the respondent – accused was taunting her by saying her
‘barren’; and that she was subjected to mental and physical
cruelty by the respondent on that ground; and that she was
also beaten by him before three years of incident; and that
the marriage life of deceased – Mitaben was not happy,
inspite of that the complainant was sending her back to her
in law’s house with an intention to make her marriage life
settled; and that since the deceased was not having any
child, the complainant had spent expenses for medical
treatment; and that she was also not given any pocket
money; and that the respondent had adopted male child from
Balashram, Rajkot; and that both, deceased and the
respondent were residing at Barejadi; and that at that time,
in morning on 10.03.1998 at about 9:00 hours, the another
daughter of the complainant viz., Manisha received a
telephonic message from neighbour that his sister has
received burn injuries and she is admitted in Shardaben
Hospital; and that the complainant, along with his family
members, rushed to the hospital at about 10:30 hours and
they saw that the deceased has received burn injuries on her
whole body; and that on being asked by the complainant to
the deceased in the hospital, the deceased stated that there
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was a quarrel between the deceased and the respondent –
accused where the respondent accused has threatened her
that if you do not die on your own, he will kill her and
thereby, the respondent – accused poured kerosene on the
deceased and set fired. Therefore, the complaint was filed by
the complainant – Jayantilal Jethalal Shah against the
respondent/s-accused.
3. After investigation, sufficient prima facie evidence
was found against the accused person/s and therefore charge-
sheet was filed in the competent criminal Court. Since the
offence alleged against the accused person/s was exclusively
triable by the Court of Sessions, the learned Magistrate
committed the case to the Sessions Court where it came to
be registered as Sessions Case No.455 of 2006. The charge
was framed against the accused person/s. The accused
pleaded not guilty and came to be tried.
4. In order to bring home the charge, the prosecution
has examined 9 witnesses and also produced 13 documentary
evidence before the trial Court, which are described in the
impugned judgment.
5. After hearing both the parties and after analysis
of evidence adduced by the prosecution, the learned trial
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Judge acquitted the accused for the offences for which the
charge was framed, by holding that the prosecution has failed
to prove the case beyond reasonable doubt.
6. Learned APP for the appellant – State has
pointed out the facts of the case and having taken this Court
through both, oral and documentary evidence, recorded before
the learned trial Court, would submit that the learned trial
Court has failed to appreciate the evidence in true sense and
perspective; and that the trial Court has committed error in
acquitting the accused. It is submitted that the learned trial
Court ought not to have given much emphasis to the
contradictions and/or omissions appearing in the evidence and
ought to have given weightage to the dots that connect the
accused with the offence in question. It is submitted that
the learned trial Court has erroneously come to the
conclusion that the prosecution has failed to prove its case. It
is also submitted that the learned Judge ought to have seen
that the evidence produced on record is reliable and
believable and it was proved beyond reasonable doubt that
the accused had committed an offence in question. It is,
therefore, submitted that this Court may allow this appeal by
appreciating the evidence led before the learned trial Court.
7. Though served, none appears on behalf of the
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respondent/s.
8. In the aforesaid background, considering the oral
as well as documentary evidence on record, independently and
dispassionately and considering the impugned judgment and
order of the trial Court, the following aspects weighed with
the Court :
8.1 The prosecution has mainly relied on the
complaint filed by the father of the deceased viz., Jayantilal
Jethalal Shah, which is produced vide Exh.24. In his
complaint, he has stated that after the marriage, the
deceased and the accused had cordial relations; and that as
the deceased did not conceive a child, the deceased was
regularly taunted by the accused for not conceiving a child;
and that the deceased was given medical treatment for the
same and the said expenses were borne by the complainant;
and that the deceased and the accused had adopted a male
child who was aged two years; and that before three years
from the date of incident, the accused used to physically and
mentally harass the deceased; and that on coming to know
about the alleged incident that the deceased is admitted in
the hospital due to burn injuries, the complainant, along with
his son, caught a train at 9.45 hours and reached to the
Shardaben Hospital at about 10:30 hours, where the deceased
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was admitted; and that other relatives of the complainant
were present; and that he saw that the deceased had burn
injuries on the whole body; and that at that time, the
complainant and his wife-Kapilaben had asked the deceased
about the incident; and that the deceased had stated that in
the morning at around 8:00 a.m., the accused had stated
that if she does not kill herself, he will kill her and accused
started quarreling with the deceased and called her ‘barren’
and told her that if she does not burn herself, he will kill
her and at that time, when the deceased was in the kitchen,
the accused poured kerosene on the deceased and burned
match stick and threw it on the deceased and that is how
the deceased had received burn injuries.
8.2 The prosecution has relied on the dying declaration
produced vide Exh.18, which had taken place on 10.3.1998 at
around 20:05 hours. In the said dying declaration, she has
stated that as the accused was constantly taunting and had
told the deceased to kill herself, she had poured kerosene on
herself and set herself ablaze. She has also stated that no
one burned her. The said dying declaration states that when
the doctor has examined her at 8:20 p.m., she was fully
conscious and giving proper answers. The said statement
seems to have been made by the doctor. The prosecution has
also relied on the statement of the deceased to the police on
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10.3.1998, which is produced vide Exh.28, wherein she has
stated that her parents are staying at Village : Barejadi and
she has two brothers and one sister staying across. She has
also stated that she did not conceive any child and her
husband had got her treated before many doctors and was
taking medicines, but as the deceased could not conceive a
child, the accused was not keeping her well and was
constantly taunting her that she was ‘barren’; and that the
deceased has spoiled his life and was physically and mentally
harassing the deceased and therefore, she took the step of
committing suicide by pouring kerosene on her own and no
one has poured kerosene on her; and that in the morning
when her parents had asked her, she had informed that she
was provoked and poured kerosene on herself because of the
mental harassment by the accused. It has come on record
that the deceased had expired at 11:30 p.m. on 11.03.1998.
8.3 The prosecution has examined Dr. Natwarbhai
Prabhudas Patel, who has conducted the postmortem, as
P.W.1, vide Exh.14. As per the postmortem report, which is
produced vide Exh.15, the cause of death was due to shock
received from burn injuries over the whole body. The
prosecution has failed to examine the doctor who had
endorsed on the dying declaration produced at Exh.18 that
the deceased was in full consciousness and giving proper
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answers at 8:20 p.m. nor has examined the doctor, who has
sent the yadi to the Executive Magistrate, which is produced
vide Exh.17, wherein it has been stated that the patient is
conscious at present i.e. at 6:50 p.m.
8.4 The prosecution has examined the Executive
Magistrate – Savdhanji Vajaji Darbar, as P.W.2, vide Exh.16,
who had taken the dying declaration. He has stated that he
had not taken any opinion of the doctor before taking the
dying declaration. He has admitted that in the police yadi, it
is written that her husband had set her ablaze, whereas, in
the dying declaration, it is written that she herself had set
herself ablaze. Thus, there is a clear contradiction between
the dying declaration and the police yadi.
The prosecution has examined the elder brother of
the deceased viz., Vijaykumar Jayantilal Shah as P.W.3, vide
Exh.19. He has turned hostile and has not supported the
case of the prosecution. He has, in his deposition, stated that
the relation between the deceased and the accused was
cordial. He has also stated that he had gone to the hospital
when the deceased was hospitalized and found that the
deceased was not in a position to speak; and that it is also
not true that the deceased was harassed by the accused for
not conceiving a child; and that the deceased was ever
physically and mentally harassed by the accused.
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The prosecution has examined the younger brother
of the deceased viz., Atul Jayantilal Shah as P.W.4, vide
Exh.21. He has also not supported the case of the
prosecution and has turned hostile. In his deposition, he has
stated that the deceased was getting treatment from
Dr.Hansal Bachech for her mental condition.
The prosecution has examined the mother of the
deceased viz., Kapilaben Jayantilal Shah as P.W.5, vide
Exh.22. She has also turned hostile and has not supported
the case of the prosecution. She has stated that till the time
she reached at the hospital and till the time she expired, she
was unconscious.
The PSI – Khimjibhai Thakorji Damor, who had
taken the complaint (Exh.24) has been examined as P.W.6,
vide Exh.23.
The PSI – Amarsinh Bhimsinh Chavda, who had
done the inquest panchanama of the body of the deceased,
has been examined as P.W.7, vide Exh.26.
The prosecution has examined Natvarsinh Valsinh
Bariya, who has taken the yadi to the Executive Magistrate,
as P.W.8, vide Exh.27.
The prosecution has examined the Investigating
Officer viz., Jagdishbhai Devlabhai Katara as P.W.9, vide
Exh.32. In his deposition, he has admitted that the case
papers of the treatment of the deceased of Sharda Hospital
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have not been produced by the prosecution; and that in his
investigation, he has also found that the deceased was
getting medical treatment from Psychiatrist - Dr.Hansal
Bachech. He has taken the statement of the said doctor,
where the said doctor has stated that the deceased was
suffering from dementia and depression. That he had also
taken the statement from the neighbourhood at the
matrimonial home of the deceased, but the prosecution has
not produced any document to prove its case against the
accused.
8.5 If the entire case of the prosecution is taken into
consideration, the only allegation in the dying declaration
against the accused was that he was constantly taunting,
therefore, the deceased had poured kerosene on herself. The
family members of the deceased have not supported the case
of the prosecution. It has also come on the record that the
deceased was under the treatment of a psychiatrist for her
mental condition. In the dying declaration, the only statement
that has been made that the accused had said `you should
die, and therefore, the deceased had poured kerosene on
herself.
8.6 The other factor, which is required to be taken
into consideration, is that the prosecution is not able to
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prove that the deceased was mentally and physically harassed
by the respondent – accused for not conceiving a child.
Moreover, the other witness, who had informed the
complainant about the incident that the deceased has poured
kerosene on herself i.e. younger daughter of the complainant
and sister of the deceased viz., Manishaben, who was living
in the near vicinity of the matrimonial home of the deceased,
has not been examined by the prosecution.
9.1 The evidence on record and the glaring omission
on the prosecution as pointed out above leaves no room of
doubt that the order passed by the trial Court is as per law.
The trial Court has rightly held that there was no positive
evidence on record to prove that the accused by way of the
conduct or spoken words, overtly or covertly, actually aided
and abetted or instigated the deceased in such a manner
that it leaves no other option for the deceased but to commit
suicide. In the present case, the prosecution has also not
been able to prove the clear motive of the accused to commit
offence of abatement. There is also no close connection
between the accused’s action and the deceased’s choice to
commit suicide. In view of the said fact, the prosecution has
not been able to prove that the accused have stimulated the
deceased to commit suicide.
9.2 The prosecution has not proved that there was a
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clear motive to commit the offence of abatement. The
prosecution has also not proved that the accused proceeded to
encourage and/or irritate the deceased through words or
insults and that the accused intended to urge the deceased to
end it all by committing suicide. The prosecution has also
not been able to prove the direct connection between the
incitement and committal of suicide. The prosecution has also
not been able to prove direct or indirect act of incitement to
the commitment of suicide. The prosecution has also not been
able to prove by accusation of harassment without any
positive action on the part of the accused close to the time
of occurrence that led and forced the deceased to commit
suicide.
9.3 The present matter turns on whether the conduct
attributed to the accused satisfies the legal threshold of
abetment of suicide. Therefore, read as a whole, it can be
said that mere occurrence of a suicide does not automatically
trigger rigours of the Section. The penal consequences under
Section 306 of the Indian Penal Code arise when the
prosecution is able to establish that the accused abetted and
had a role in provoking or facilitating that suicide. Therefore,
this twin test distinction is required to be borne in mind.
9.4 Abetment, as understood in criminal jurisprudence,
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is not a broad moral expression but a term of precise
statutory meaning. Section 107 IPC delineates its contours:
instigation, conspiracy, or intentional aiding. Each of these
modes presupposes active involvement. The law does not
punish omission except in some cases, it punishes intentional
encouragement or positive facilitation of a prohibited act.
9.5 It is therefore not sufficient to show that the
deceased was unhappy, distressed, or subjected to unpleasant
treatment. The jurisprudence developed by the Hon’ble
Supreme Court has consistently underscored that routine
domestic disagreements, suspicion between spouses, or
episodes of harassment do not ipso facto amount to
instigation. Rigours of this Section intervene only where there
is clear evidence of mens rea and a direct causal link
between the accused’s conduct and the decision of the
deceased to commit suicide.
9.6 The concept of instigation demands something more
than mere reproach or accusation. It connotes an active
suggestion, an incitement, or conduct of such intensity that it
operates upon the mind of the victim and pushes him or her
toward this drastic and unfortunate step. The prosecution
therefore, must demonstrate either a deliberate intention to
drive the deceased to suicide or knowledge that the conduct
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in question was likely to produce that consequence. Equally
indispensable is the requirement of proximity. The law insists
on a live and immediate nexus between the acts complained
of and the suicide. A remote or generalized allegation is
insufficient. There must be evidence showing that the accused
engaged in conduct so closely connected in time and effect
with the suicide that it can reasonably be said to have
triggered the fatal act.
9.7 No material has been brought on record
demonstrating any proximate act immediately preceding the
suicide which could be construed as instigation. Nor is there
evidence of a positive act amounting to intentional aid. The
essential ingredients of abetment -namely, culpable mental
state coupled with active or proximate conduct-are not
established.
9.8 On an overall assessment of the evidence, the
prosecution has failed to demonstrate the existence of the
foundational elements necessary to sustain a conviction under
Section 306 IPC.
10. In the case of Mahendra K.C. v. State of
Karnataka and another, [(2022) 2 SCC 129], it has been held
by the Hon’ble Supreme Court that the essence of abetment
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lies in instigating a person to do a thing or the intentional
doing of that thing by an act or illegal omission. 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. A word uttered in the fit of anger or emotion
without intending the consequences to actually follow cannot
be said to be instigation.
10.1 In the case of Mahendra Awase v. State of
Madhya Pradesh, 2025 (1) Crimes 347 (SC), the observations
are made with regard to abetment of suicide. It has been
held that in order to bring a case within purview of Section
306 IPC, there must be a case of suicide and in commission
of said offence, person who is said to have abetted
commission of suicide must have played active role by act of
instigation or by doing certain act to facilitate commission of
suicide. It has been further observed that the act of
abetment by person charged with said offence must be proved
and established by prosecution before he could be convicted
under Section 306 IPC. It is further observed that to satisfy
requirement of instigation, accused by his act or omission or
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by a continued course of conduct should have created such
circumstances that deceased was left with no other option,
except to commit suicide.
10.2 In the case of Amalendu Pal alias Jhantu versus
State of West Bengal, (2010) 1 SCC 707, it has been held
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.
10.3 In the case of Rajesh v. State of Haryana, (2020)
15 SCC 359, after considering the provisions of Sections 306
and 107 of IPC, the Court held that 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.
10.4 In the case of Amudha v. State, 2024 INSC 244,
it was held that there has to be an act of incitement on the
part of the accused proximate to the date on which the
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deceased committed suicide. The act attributed should not
only be proximate to the time of suicide but should also be
of such a nature that the deceased was left with no
alternative but to take the drastic step of committing suicide.
11. Further, learned APP is not in a position to show
any evidence to take a contrary view in the matter or that
the approach of the Court below is vitiated by some manifest
illegality or that the decision is perverse or that the Court
below has ignored the material evidence on record. In above
view of the matter, this Court is of the considered opinion
that the Court below was completely justified in passing
impugned judgment and order.
12. Considering the impugned judgment, the trial
Court has recorded that there was no direct evidence
connecting the accused with the incident and there are
contradictions in the depositions of the prosecution witnesses.
In absence of the direct evidence, it cannot be proved that
the accused are involved in the offence. Further, the motive
of the accused behind the incident is not established. The
trial Court has rightly considered all the evidence on record
and passed the impugned judgment. The trial Court has
rightly evaluated the facts and the evidence on record.
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13. It is also a settled legal position that in acquittal
appeal, the appellate court is not required to re-write the
judgment or to give fresh reasoning, when the reasons
assigned by the Court below are found to be just and proper.
Such principle is down by the Apex Court in the case of
State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC
1417 wherein it is held as under :
“… This court has observed in Girija
Nandini Devi V. Bigendra Nandini
Chaudhary (1967)1 SCR 93: (AIR 1967 SC
1124) that it is not the duty of the
appellate court when it agrees with the
view of the trial court on the evidence to
repeat the narration of the evidence or to
reiterate the reasons given by the trial
court expression of general agreement with
the reasons given by the Court the decision
of which is under appeal, will ordinarily
suffice.”
14. Thus, in case the appellate court agrees with the
reasons and the opinion given by the lower court, then the
discussion of evidence at length is not necessary.
15. In the case of Ram Kumar v. State of Haryana,
reported in AIR 1995 SC 280, Supreme Court has held as
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under:
“The powers of the High Court in an appeal
from order of acquittal to reassess the
evidence and reach its own conclusions
under Sections 378 and 379, Cr.P.C. are as
extensive as in any appeal against the order
of conviction. But as a rule of prudence, it
is desirable that the High Court should give
proper weight and consideration to the view
of the Trial Court with regard to the
credibility of the witness, the presumption of
innocence in favour of the accused, the right
of the accused to the benefit of any doubt
and the slowness of appellate Court in
justifying a finding of fact arrived at by a
Judge who had the advantage of seeing the
witness. It is settled law that if the main
grounds on which the lower Court has
based its order acquitting the accused are
reasonable and plausible, and the same
cannot entirely and effectively be dislodged
or demolished, the High Court should not
disturb the order of acquittal."
16. As observed by the Hon'ble Supreme Court in the
case of Rajesh Singh & Others vs. State of Uttar Pradesh
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reported in (2011) 11 SCC 444 and in the case of
Bhaiyamiyan Alias Jardar Khan and Another vs. State of
Madhya Pradesh reported in (2011) 6 SCC 394, while dealing
with the judgment of acquittal, unless reasoning by the trial
Court is found to be perverse, the acquittal cannot be upset.
It is further observed that High Court's interference in such
appeal in somewhat circumscribed and if the view taken by
the trial Court is possible on the evidence, the High Court
should stay its hands and not interfere in the matter in the
belief that if it had been the trial Court, it might have
taken a different view.
17. In the case of Chandrappa v. State of Karnataka,
reported in (2007) 4 SCC 415, the Hon’ble Apex Court has
observed as under:
“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
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no limitation, restriction or condition on
exercise of such power and an appellate
court on the evidence before it may reach
its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, “substantial
and compelling reasons”, “good and sufficient
grounds”, “very strong circumstances”,
“distorted conclusions”, “glaring mistakes”,
etc. are not intended to curtail extensive
powers of an appellate court in an appeal
against acquittal. Such phraseologies are
more in the nature of “flourishes of
language” to emphasise the reluctance of an
appellate court to interfere with acquittal
than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear
in mind that in case of acquittal, there is
double presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that
every person shall be presumed to be
innocent unless he is proved guilty by a
competent court of law. Secondly, the
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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.”
18. The Hon’ble Apex Court, in a recent decision, in
the case of Constable 907 Surendra Singh and Another V/s
State of Uttarakhand reported in (2025) 5 SCC 433, has held
in paragraph 24 as under:
“24. It could thus be seen that it is a
settled legal position that the interference
with the finding of acquittal recorded by the
learned trial Judge would be warranted by
the High Court only if the judgment of
acquittal suffers from patent perversity; that
the same is based on a misreading/omission
to consider material evidence on record; and
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.”
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19. Considering the aforesaid 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, 1973 no case is made out to
interfere with the impugned judgment and order of acquittal.
20. In view of above facts and circumstances of the
case, on my careful re-appreciation of the entire evidence, I
found that there is no infirmity or irregularity in the
findings of fact recorded by learned trial Court and under
the circumstances, the learned trial Court has rightly
acquitted the respondent/s - accused for the elaborate reasons
stated in the impugned judgment and I also endorse the
view/finding of the learned trial Court leading to the
acquittal.
21. In view of the above and for the reasons stated
above, the present Criminal Appeal fails and the same
deserves to be dismissed and is dismissed, accordingly. Record
& Proceedings be remitted to the concerned trial Court
forthwith.
(SANJEEV J.THAKER,J)
SRILATHA
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