Gujarat High Court
State Of Gujarat vs Bharvad Cheharabhai Rajabhai on 8 April, 2026
NEUTRAL CITATION
R/CR.A/2661/2008 CAV JUDGMENT DATED: 08/04/2026
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Reserved On : 18/03/2026
Pronounced On : 08/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2661 of 2008
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STATE OF GUJARAT
Versus
BHARVAD CHEHARABHAI RAJABHAI & ORS.
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Appearance:
MR YUVRAJ BRAHMBHATT, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. Feeling aggrieved by and dissatisfied with the
judgment and order of acquittal dated 07.08.2008, passed by
the learned Additional Sessions Judge, Fast Track Court
No.3, Patan, in Sessions Case No.81 of 2007, for the offences
under Sections 306, 201 and 114 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”). The present appeal is abated qua
respondent no.3 and it is heard qua respondent nos.1 and 2.
2. The prosecution case as unfolded during the trial before
the trial Court is that the complainant, Amaratbhai
Shankarbhai Thakor, had gone to Radhanpur for labour work
on 29.12.2006 and stayed there overnight. The next morning,
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upon being informed to return home urgently, he found his
brother Merambhai dead. On inquiry, he learned that the
accused had allegedly murdered his brother and staged it as
a hanging. It was further revealed that the deceased’s wife
was having an illicit relationship with the main accused.
Based on this, an offence was registered on 30.12.2006 at
Varahi Police Station under Sections 302 and 34 of the
Indian Penal Code.
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.81 of 2007. 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 6 witnesses and also produced 22 documentary
evidence before the Trial Court, which are described in the
impugned judgment as under:
Details Exhibit Page 2 of 25 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Apr 08 2026 Downloaded on : Wed Apr 08 22:50:51 IST 2026 NEUTRAL CITATION R/CR.A/2661/2008 CAV JUDGMENT DATED: 08/04/2026 undefined Deposition of Prosecution Witness No. 1 - 15
Amaratbhai Shankarbhai Thakor (Complainant).
Original Complaint. 16
Panchnama of the place of occurrence 16
Inquest Panchnama of the dead body 17
Panchnama of the scene of offence 18
Panchnama of seizure of clothes from the dead 19
body
Panchnama regarding the physical condition of 20 to 22
the accused
Deposition of Prosecution Witness No. 2 – Thakor 24
Jemalbhai Shankarbhai (Witness)
Deposition of Prosecution Witness No.3 – 26
Sagarbhai Merambhai (Witness)
Deposition of Prosecution Witness No. 4 – Dr. 27
Paresh Kanaiyalal Kadiya
Yadi (requisition) made to the Medical Officer 28
Post-mortem note of the dead body 29
Certificate showing cause of death 30
Deposition of Prosecution Witness No. 5 – Manish 31
Bhagwanji Nakum (Investigating Officer)
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Report for registration of offence 32
Deputy order 33
Yadi addressed to the Executive Magistrate 34
Yadi for conducting inquest 35
Post-mortem form 36
Receipt of handing over the dead body 37
Receipt regarding articles (muddamal) received 38
Preliminary report of the Forensic Science 39
Laboratory (FSL)
Report for addition of sections 40
Yadi made to the Medical Officer 41
Dispatch entry of FSL 42
Forwarding letter for sending muddamal to FSL 43
FSL Report 44
Deposition of Prosecution Witness No. 6 – 45
Raghuvarsinh Mahavirsinh Bhadoriya
(Investigating Officer).
5. After hearing both the parties and after analysis
of evidence adduced by the prosecution, the learned trial
Judge acquitted the accused for the offences for which the
charge was framed, by holding that the prosecution has failed
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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. The appeal is abated qua respondent no.3. Though
served, none appears on behalf of the respondent nos.1 and
2.
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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 complainant, PW 1, Amrutbhai Shankarbhai, was
examined on oath vide exhibit 15. In his deposition, he
stated that he came to know about the incident from his
brother, Jemalbhai, after he returned home. When he
reached home, the dead body of Merambhai was lying
there, and upon asking Jemalbhai, he was told that
Merambhai had been strangled to death. Thereafter, when
the police arrived, he lodged the complaint, in which it
was stated that his brother had been killed bystrangulation. On perusal of the deposition of this witness,
it appears that he is not an eyewitness, but only a
hearsay witness. Furthermore, even in the complaint lodged
by him, he has committed an error, as he has stated in
Paragraph 3 of his examination-in- chief. Due to
misunderstanding, although his brother had in fact
committed suicide, he mentioned in the complaint that the
accused had killed him. In fact, the reason alleged for his
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brother’s suicide was that accused Nos. 1 and 2 were
having an illicit relationship, on account of which his
brother committed suicide.
8.2. In the cross-examination of this witness, he admitted
that he did not have any speaking terms with the
deceased, Mehrambhai, and that they did not visit each
other even for social dealings. He has further stated in
cross- examination that he had not spoken either with the
deceased’s son, Prahladbhai, or with accused No. 2,
Bhuriben. Thus, upon considering his testimony, it appears
that even his brother, Jemalbhai, is a hearsay witness,
and the complaint has been lodged based on what he was
told by Jemalbhai. Moreover, although the complaint was
initially filed alleging the offence of murder, subsequently
in his testimony before the court he revealed that thedeath of the deceased was not homicidal but suicidal.
Therefore, from the testimony of this witness, it is
established only that the deceased committed suicide;
however, the reason for such suicide is not proved.
8.3. The evidence of PW-2, Thakor Jemalbhai Shankarbhai,
is available at Exhibit 24. He is the brother of the
deceased, Mehrambhai. This witness has also deposed that
the cause of death of the deceased was the illicit
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relationship between accused Nos. 1 and 2, on account of
which his brother died.
8.4. Among the witnesses examined by the prosecution, one
of the material witnesses is Sagarbhai Mehrambhai, who
has been examined as PW-3 at Exhibit 26. According to
the prosecution, this witness is an eyewitness. In his
examination, Sagarbhai stated that the complainant is his
uncle; the deceased was his father, accused No. 2 is his
mother, and accused No. 3 is his maternal uncle. He has
further stated that accused No. 1 belongs to the Bharwad
community and that he has no relation with him.
8.5. He further states that on the day of the incident, his
mother Bhuriben, his brother Bharat, and all of them
were present at home. In the afternoon, his maternal
uncle Jodhabhai came, and in the evening, his uncle also
came, who stays at Sangli. In the evening, all of them
were sitting down to have dinner, Cheharabhai came to
their house. Later, when beds were arranged for sleeping,
they were all sitting on the cots and talking, at that time,
his father told his mother to tell Cheharabhai not to come
to their house. Thereafter, his father also directly told
Cheharabhai not to visit their house. At that point,
Cheharabhai (accused no. 1) replied that he would continue
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to come, as he had an illicit relationship with Bhuri. Upon
this, his father told Bhuriben to ask Cheharabhai (accused
no. 1) not to come, otherwise he would end his life.
However, Bhuriben (accused no. 2) responded that even if
he died, it did not matter, and that Cheharabhai (accused
no. 1) would continue to come. Thereafter, they went to
sleep, and around midnight they heard some commotion
from the cattle-shed, where a lamp was on. He, along with
his brother Bharat, went to the shed and saw that all
three accused were standing there, and his father was
hanging with a ligature around his neck. Thereafter, his
maternal uncle cut the rope by which his father was
hanging, and all three of them laid his father on a cot.
Accused Cheharabhai (accused no. 1) then left for his
house. After some time, his maternal uncle and others also
went to their respective houses, and thereafter his mother
started crying listening to which his uncle and some other
people came. Another uncle Amratbhai i.e. complainant,
came at noon on next day. This witness stated that his
father committed suicide due to shock as his mother has
an affair with the accused.
8.6. In cross-examination, the witness admits that he does
not know what time it was at night when he woke up.
His mother started crying at around 4-5 a.m. If this
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witness had actually seen his father’s dead body in the
morning, he would have raised an alarm or at least
informed the neighbors or relatives immediately. However,
this witness did not do anything of that sort. Therefore,
his testimony appears to be doubtful.
8.7. The testimony of PW-4, the doctor, is also
important. In his deposition, Dr. Paresh Kanaiyalal
Gadiya states that he conducted the post-mortem of
the deceased’s body and that the cause of death was
asphyxia due to hanging. According to him, if a person
hangs himself by tying a noose around the neck, the
injuries noted in the post-mortem report are possible.
In the general external injuries on the body, ligature
marks of a brownish color were present on the neck,
and at the place of the knot, there were no ligature
marks on the right side at the back of the neck. Thus,
looking upon testimony of the doctor it can be said
that deceased has committed suicide.
8.8. On considering the testimony of witness Sagarbhai, it
appears that in the evening the deceased served food to
Cheharabhai and also made him sleep there. The
deceased told Cheharabhai not to come to their house,
but Cheharabhai replied that he would still come since
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he had an illicit relationship with his wife. In these
circumstances, even if such an illicit relationship existed,
no person would openly make such a statement to the
husband. Therefore, the claim regarding the existence of
such an illicit relationship does not appear to be
believable in reality.
8.9. The deceased told his wife that if accused no. 1
came, he would kill himself, to which his wife replied
that even if he died, it would not matter, but accused
no. 1 would still come. Merely on the basis of such
statements, it cannot be accepted that any person would
commit suicide. Moreover, the witness did not see his
father at the time when he went to commit suicide.
The witness also did not state anything about what his
father did before committing suicide, how the rope was
tied, or how exactly he hanged himself.
8.10. When Cheharabhai (accused no.1) came, he was
served food and allowed to sleep in the house, which
indicates that there was no bitterness in the
relationship between them.
8.11. Furthermore, the accused are charged under
Section 201 of the IPC for destruction of evidence.
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However, accused No. 3 merely cut the rope by which
the deceased was hanging and brought the body down,
placing it on a cot, and did nothing else. Therefore, it
cannot be said that there was any destruction of
evidence. Destruction of evidence can be said to have
occurred only when the evidence is concealed or
tampered with in such a manner that no evidence
remains against the accused. In the present case, the
accused did not commit any act to dispose of or conceal
the dead body. The body was left in the same place,
and this fact has also been witnessed by Sagar. It is
also possible that the accused acted in such a manner
in an attempt to save the deceased, so that if he were
still alive, he could be taken to the hospital and
possibly be saved by bringing him down. If the deceased
was already dead while hanging, then it makes no
difference whether the body remained hanging or was
brought down and placed on a cot, as the person had
already died.
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
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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
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.
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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,
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 notpunish 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
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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
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 isinsufficient. 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
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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
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 thateffect 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
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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
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.
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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
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.
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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.
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 toPage 19 of 25
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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
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
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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 samecannot 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
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,
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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
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 anPage 22 of 25
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appellate court to interfere with acquittal
than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear
in mind that in case of acquittal, there is
double presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that
every person shall be presumed to be
innocent unless he is proved guilty by a
competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court.”
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:
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“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.”
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
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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.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
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