Gujarat High Court
Biharilal Alias Raju Parshottambhai ... vs State Of Gujarat on 3 March, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2600 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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BIHARILAL ALIAS RAJU PARSHOTTAMBHAI KUNDALIYA
Versus
STATE OF GUJARAT
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Appearance:
MR YOGIN A BHAMBHANI(6444) for the Appellant(s) No. 1
MS JYOTI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/03/2026
JUDGMENT
1. By way of this appeal, the appellant-husband has challenged the judgment and order of conviction dated 19.12.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Gandhinagar in Sessions Case No.38 of 2005 whereby the appellant was convicted under Sections 498A and 306 of the Indian Penal Code (IPC) and under Sections 3 and 7 of the Prohibition of Page 1 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined Dowry Act, 1961 (hereinafter referred to the Dowry Prohibition Act).
1.1. Under Section 498A of IPC, the accused was convicted and sentenced to undergo one year of rigorous imprisonment and pay a fine of Rs.1,000/- and in the event of non-payment of fine, to undergo one month of simple imprisonment.
1.2. Under Section 306 of IPC, the accused was convicted and sentenced to undergo five year of rigorous imprisonment and pay a fine of Rs.5,000/- and in the event of non-payment of fine, to undergo five months of simple imprisonment.
1.3. Under Sections 3 and 7 of the Prohibition of Dowry Act, the accused was convicted and ordered to undergo two years of simple imprisonment and pay a fine of Rs.3,000/- and in the event of non-payment of fine, to undergo three months of simple imprisonment. All the sentences were ordered to run concurrently. Page 2 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined 1.4. The amount that was ordered to be deposited towards fine, was ordered to be kept in the name of the son of the deceased-Om Biharilal Kundaliya in a nationalized Bank in a fixed deposit till the minor attains majority.
2. The facts of the case as could be drawn from the charge Exhibit 3 in Sessions Case No.38 of 2005 which was drawn against the 9 accused states that the accused No.1 married with deceased-Rekhaben about 4 years prior. The accused No.2 was the mother-in-law while the accused No.3, 4, 5, 6 and 7 are the sisters-in-law and the accused No.8 and 9 are the younger brother-in-law.
3. After marriage, Rekha started her matrimonial life with the accused at Dariakhan Gumat, Dudheshwar Ahmedabad and when she had joined matrimonial house with the accused, the accused would often subject her to mental and physical cruelty for trivial reasons and would often tell her that she has not brought money from her Page 3 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined paternal house. It has also been noted in the charge that three months prior to the incident, deceased-Rekha alongwith the accused No.1 had come to stay in Nidhishree Flat, DT-3, 3rd Floor, Motera, Taluka and District Gandhinagar. At that time, accused No.1 to 7 would often tell her to bring money from her paternal house and would mock her with regard to dowry and subject her to mental and physical cruelty.
4. On 19.03.2005, accused No.1 asked Rekha to bring money for the flat, when she refused, accused No.1 quarelled with deceased-Rekha and told her that if she was not willing to bring money from her paternal home, then she should die and thus, she got offended and as was instigated, on that day, between 2.30 to 2.45 hours, she poured kerosene on her body and ablazed herself with the use of a match stick and committed suicide. During the treatment on 20.03.2005 at about 20.45 hours, she died and thus, all the accused were charged for the offences punishable under Sections 498A and 306 read with Section 114 of the Indian Penal Code (IPC) and under Sections 3 and 7 of the Dowry Prohibition Act. Page 4 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
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5. The trial Court acquitted the accused Nos.2 to 9 while convicting the accused No.1-husband for the offences punishable under Sections 498A and 306 of the IPC and under Sections 3 and 7 of the Dowry Prohibition Act.
6. Learned advocate for the applicant Mr. Yogin A. Bhambhani for the appellant submitted that the facts which was against the acquitted accused were similarly placed against the convicted accused No.1, hence, it is submitted that the benefit was required to be given to the accused No.1 in the background of similar charge against all. It is further submitted that there has been a wide discrepancy between the evidence of the witnesses and circumstances surrounding the alleged evidence. The learned trial Court Judge has erred in convicting the appellant only on the basis of the dying declaration where actually the dying declaration cannot be said to be independent and the fact would reflect that at the time of the dying declaration, the mother of the deceased was present, the condition of the deceased was not certified Page 5 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined to be in a fit state of mind to give such a detailed answers to questions No.10 and 11 recorded by the learned Magistrate. Learned advocate Mr. Bhambhani further stated that the dying declaration records that it was an accidental death and on that day, she was preparing tea and she got burnt because of the sudden fire in the stove. The dying declaration also records that the incident had occurred all of a sudden and when the deceased was asked as to whether anyone had burnt her, the answer recorded was in the negative. It was only under question No.13, it was recorded that her husband subjected her to cruelty for money which he demanded for purchase of flat as dowry. When question No.15 was put to the deceased of whether she had committed suicide, the answer was in the affirmative.
7. Learned advocate Mr. Yogin A. Bhambhani thus, submitted that the answer to question No.15 is totally contradictory to the answers to questions No.10 and 11 and therefore, the dying declaration itself seems to be contradictory to the evidence appearing on record. Thus, it is submitted that the dying declaration cannot be Page 6 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined believed without any corroboration. It is further stated that the dying declaration cannot be believed unless it is medically proved that the victim was in a fit state of mind to even give the dying declaration.
8. Further, it was also contended by learned advocate Mr. Yogin A. Bhambhani that the dying declaration was recorded even prior to the complaint being filed and thus, it is stated that it cannot be considered as a legal document. Learned advocate Mr. Yogin A. Bhambhani submitted that the 'wardhi' of the information received of the incident has not been proved by the Officer concerned. The objection was raised during the trial for the complaint recorded by the I.O. as the investigation started even prior to proving the the First Information Report (FIR) on record. Non-production of 'wardhi' according to learned advocate Mr. Bhambhani would cause prejudice to the accused and contended that the complaint recorded by the Investigating Officer (I.O.) is only to be treated as statement of the deceased and not even as a dying declaration.
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9. Comparing the complaint recorded by the I.O. and the dying declaration, learned advocate Mr. Yogin A. Bhambhani raised the issue that the trial was not conducted in accordance to the evidence on record where the dying declaration before the the Executive Magistrate proves as 'accidental death' while in the complaint before the I.O., the same was noticed was 'suicidal death'. Learned advocate Mr. Bhambhani thus, submitted that the learned trial Court Judge erred in not considering the case in accordance to the evidence which came on record by way of dying declaration before the Executive Magistrate of the deceased who suddenly got burnt because of the flames of the primus (stove), while preparing tea. Thus, learned advocate Mr. Bhambhani contended that if this fact is to be considered then there was no case of suicide and no allegation of demand of dowry attributed to the appellant-husband could be believed as the case could not be proved of any incident prior to connecting the death. Mr. Bhambhani further stated that the document which has been accepted by order below Exhibit 35 as a complaint does not bear the Page 8 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined endorsement of the Doctor stating of the deceased being in a fit mental state, to state such a lengthy narration in the complaint.
10. Referring to the deposition of the witnesses as well as the statement of the accused No.1 under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'Cr.P.C.'), learned advocate Mr. Yogin A. Bhambhani submitted that there was no quarrel between husband and the wife who were living separately from other accused and had settled in life. The subsequent development after the trial in the form of settlement was produced. Further statement of the accused and 'Samjuti Karar' dated 21.09.2005 would prove that there was no grievance of money for the purchase of the flat where the accused has stated that the actual money was invested in the name of Rekhaben which would leave no scope to allege that the deceased was being harassed for money.
11. Countering the above arguments, learned Additional Public Prosecutor Ms. Jyoti Bhatt submitted that the Page 9 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined learned trial Court Judge after having considered the arguments of both the sides had passed the order below Exhibit 35 which has not been challenged. Hence the complaint has to be read in evidence. Learned APP has relied on the decision of the Apex Court in the case of State by Lokayuktha Police v. H. Srinivas reported in (2018) 7 SCC 572, to submit that there is no provision in Cr.P.C. as recorded in the judgment, to bar the investigating authority to investigate into the matter, which may for some justifiable ground, not found to have been entered in the General Diary right after receiving the Confidential Information. It is also submitted that the non-production of 'wardhi' during the trial would not hamper the prosecution case since the narration of the victim being recorded would itself suffice for the I.O. to proceed for the process which in this case was the complaint of the deceased which could be considered as dying declaration before the I.O.
12. Learned APP submitted that the case has been analysed in accordance to the evidence and the trial Court found cogent and reliable evidence against the appellant- Page 10 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined husband and have justified the fact raised by reasoning that the present appellant-husband who on the day of the incident had quarelled by demanding money for the flat which was the immediate cause for the suicide. Thus, the learned APP urged to upheld the judgment of conviction. Learned APP has also relied on the decision of the Apex Court in the case of State of Himachal Pradesh v. Chaman Lal reported in (2026) 0 JX (SC) 57 and the decision of this Court in the case of Shailesh Laljibhai v. State of Gujarat reported in (2008) 2 GLR 1522.
13. Having heard both the sides, learned advocate Mr. Yogin A. Bhambhani for the appellant-husband and learned Additional Public Prosecutor Ms. Jyoti Bhatt for the respondent-State, perused the record and proceedings and the testimony of the witnesses who are all in 8 in number and the documentary evidences which are about 18.
14. PW1-Shilaben Natwarlal Dataniya is the panch witness for Page 11 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined the inquest panchnama which was by the witness at Exhibit 17. She denied the suggestion that the deceased was her family member and therefore, she had gone for deposition in the Court. The testimony of this witness being a relative would not create any doubt as there is no denial with regard to the condition of the deceased after her death. The inquest panchnama was drawn as would be observed by the witness and hence, it cannot be doubted.
15. PW2-Dr. Mustakahmed Gulamrasool Shaikh on 20.03.2005 was on his duty at Civil Hospital, Ahmedabad and had handled the body of Rekhaben Biharilal Kundaliya for post mortem. This witness alongwith Dr. J.K. Mehta had conducted the post mortem which had started at 9.10 and had concluded at 10.10. The witness stated that there were hospital bandages on the neck, chest, stomach, both hands and both legs. There were traces of light blue colored ink on the right hand thumb of the deceased. The post mortem yadi was placed in evidence at Exhibit 25. The doctor in his testimony has recorded the injuries with the following description :- Page 12 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined "(1) I°, II°, III° Burns over face, forehead both ears, ant and post part of neck, both shoulders, both upper limbs and palms. Ant. And post. Side of chest, ant & abdomen, ingui region, both buttocks, private part, both lower limb ankle. (2) Skin peels of at places of burns.
(3) Redness seen at places of burns.
(4) Black ashes seen at places of burns.
(5) Frontal scalp, eye, eyelashes burnt & single."
The cause of death as recorded "is shock due to burns over body".
16. PW3-Ishwarji Babaji Khant is the panch and is the PSI who was on duty at Chandkheda Police Station on 05.04.2004 as Incharge PSI. He has stated that PSI Kabsinh Ratansinh Pagi was at Ahmedabad in connection with another case which he referred as I-C.R. No.333 of 2004 under Section 462 of IPC. The accused person-Biharilal Parshottambhai Kundaliya had surrendered before the Gandhinagar Court in connection with I-C.R. No.8 of 2005 and therefore, he received the written report from Incharge, PSI to assist in the case and therefore, thus this witness had come to the Court at Gandhinagar and made arrest of the accused at 12.45 pm. The panchnama of the physical condition of the accused was recorded between 14.00-14.30 hours at Chandkheda Out Police Page 13 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined Chowky Police Station after undertaking the necessary procedure and the accused was handed to Shri. Pagi. The panchnama of the physical condition of the accused was produced in evidence. He has stated that his statement was not recorded by the I.O. Kabsinh Ratansinh Paghi. The panchnama-Exhibit 20 was not in his writing but was of the writer. The witness has been examined to put on record stating that the accused No.1 had surrendered before the Court and the rest was done by this witness under the instructions of the I.O.
17. PW4-Bhanuben Ishwarbhai Chunara is the mother of the deceased. She is a resident of Maninagar, Isanpur, Ahmedabad. Her children consist of five daughters and one son. The marriage of the deceased daughter- Rekhaben was about 4 years old with Biharilal @ Raju. After marriage, the deceased had gone to her husband's house which consisted of six sisters-in-law, parents-in-law and the brothers-in-law. The mother stated that after the 'shrimant', in the seventh month Rekha was brought to her parental home. At that time, she did not tell her anything, one child-a son was born and after two months, Page 14 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined she had gone back to her matrimonial house. She stated that Rekha had never come to her parental house on being offended while whenever Rekha used to visit them, she used to come with her husband and both used to go back together. Rekha had never informed of any cruelty from the side of the husband or the family members and also denied of any demand of money or any harassment from the husband or her family members.
18. The witness-mother was declared hostile by the Public Prosecutor, and after being declared so, she denied her statement before the police regarding the harassment, cruelty as well as the demand of dowry. The mother in the cross examination has also denied of her statement before the police that three months prior, the son-in-law Biharilal had come to them and had told her and her son that they were going to stay separately. The testimony of the mother recorded before the trial Court was on the very same day where the agreement/settlement was drawn and thus, learned AGP Ms. Jyoti Bhatt submitted that it was an act between the witness and the accused thus, was deliberately done to impress the mother and Page 15 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined win over so as to not support the case of the prosecution.
19. In the cross examination, the mother stated that daughter in the hospital had informed her that while she was making tea, at that time, there was a sudden burst in the primus and she got burnt. The mother confirmed that the daughter got burnt because of the flames of the primus and the daughter's husband while protecting her had also got burnt. The mother-in-law stated that her son-in-law too had taken treatment. The mother stated that when she was in the hospital, she continuously stayed near Rekha and also confirmed that she was with Rekha when the police had come and also confirmed that the Executive Magistrate had taken the thumb impression when she was present. She also confirmed that Rekha had informed to make arrangements for the better upbringing of her son 'Om' and accordingly, the son-in-law had made arrangements for the child. The mother denied that to ensure that the daughter-Rekha remains happy, Rs.50,000/- in cash was given and Rs.20,000/- was invested in KVP by them and thereafter, the son-in-law had taken her daughter back and they Page 16 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined started staying in Nidhishree Flat, DT-3, 3 rd Floor, Motera, Taluka and District Gandhinagar.
20. PW5-Bipin Kumudchandra Chunara is the brother of the deceased, who was residing at Ahmedabad. He has stated that he has 5 sisters and one brother and the deceased-Rekha was married to Biharilal four years ago and she was staying alongwith the parents, mother-in- law, husband, sisters-in-law and brothers-in-law. After three months, she started staying separately at Nidhishree Apartments, and had a son named Om. Rekha used to come to their house alongwith her husband and would stay together. According to the brother, he had no knowledge that Rekha was being harassed for dowry by the sisters-in-law, brothers-in-law, mother-in-law or was rebuked and because of the cruelty, she had burnt herself. This witness-brother was declared hostile as he had not supported the prosecution case. He had denied his statement before the police. The Public Prosecutor had referred to the police statement to contradict the witness. However, still the brother has not supported the prosecution case.
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21. PW6-Pravinsinh Jivatsinh Kumpavat was the person called to remain as panch at the Flat. When he was there, there was lady named Minaben and another panch was also there. The witness stated that there was a mattress lying there, a match stick and stench of kerosene was coming from the mattress. One match box was found lying below the mattress and there were about 4-5 burnt match sticks in the match box. He also stated that there was a burnt cloth near the mattress. He has also seen a shirt, blouse, petticoat and saree lying there. The ceiling near both the rooms near the door was dark because of the carbon particles. There were 2-3 match sticks near the door of the room, there was a kerosene can which was in the room and all the articles were collected by the police during the panchnama. The panchnama was put in evidence at Exhibit 32. The panchnama suggest the case of suicide. The panch witness has not referred about any blast of kerosene stove.
22. PW7-Kabsinh Ratansinh Paghi who is the Investigating Page 18 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined Officer had recorded the complaint of the deceased. He stated that on 19.04.2005, he was at Adalaj Police Station, he received the 'wardhi' of Adalaj Police Station informing that Rekhaben Biharilal Kundaliya, resident of Nidhishree Apts., Chandkheda Gandhinagar got burnt because of the kerosene in the primus and was admitted in Civil Hospital and therefore, he was directed to take the necessary proceedings. Accordingly, he visited the burnt victim-Rekhaben at Civil Hospital, who was under
treatment. When he visited the victim, she was under
treatment. Having verified from the doctor about the consciousness of the victim and since the victim was in a conscious state, he had called the Executive Magistrate for recording of the dying declaration. Thereafter, he stated that Rekhaben, wife of Biharilal on enquiry had given a complaint to him wherein she stated to him that mother-in-law, brothers-in-law Anilbhai and Dilipbhai and sisters-in-law who were residing at their matrimonial house after their marriage were often abusing her mentally and physically and instructed her to bring money from her parental home and thus, were demanding dowry. The I.O. stated that the harassment Page 19 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined was for the money from the paternal home for purchase of flat.
23. The victim informed the police that on 19.03.2005, when her husband and the son aged about 3 years, all the three were at Nidhishree Apartment, at that time, the husband Biharilal had informed her that money with regard to the flat was yet to be paid and therefore, he had asked her to bring the money from the parental home and if she was not in a position to bring money, she should die and by saying so had quarrelled with her. Being offended by such utterances of the husband, she poured kerosene and had burnt herself and had admitted to committing suicide. The complaint was against the accused husband and other 8 accused. After recording the complaint, he had signed it and send for institution at Adalaj Police Station as I-C.R. No.108 of 2005 under Sections 498A and 114 of IPC and under Sections 3 and 7 of the Dowry Prohibition Act.
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24. The I.O. stated that as the brother of the deceased-Bipin Kumudchandra Chunara was present there, he recorded his statement who had informed that the husband, the younger brother-in-law and sisters-in-law were often harassing her mentally and physically by making demand of dowry. The I.O. stated that on 20.04.2005 during treatment Rekhaben died at 2.45 hours and since he received the 'wardhi' through Adalaj Police Station, he had come at Civil Hospital. After enquiry, he had sent the yadi to the Executive Magistrate for inquest and after that, the dead body was sent for post mortem. He referred to the panchnama of the place of incident and has stated about the things and articles which were found at the place of incident. The I.O. stated that about 11 articles were collected in the presence of the panchas which were sent for FSL examination. The I.O. has recorded the statement, and since the victim had died during treatment, hence the offences punishable under Sections 306 and 34 of IPC were reported to be added.
25. Further deposition of the Investigating Officer records states that the statement of the mother, brother and Page 21 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined sister of the deceased were recorded by visiting Isanpur, Ahmedabad who all had stated that she was facing mental and physical harassment and demand of money was made. Initially an amount of Rs.50,000/- was given and then Rs.20,000/- was deposited in bonds and in total, Rs.70,000/- were given to the accused, inspite of that there was harassment. The I.O. has referred to the complaint by the victim-Rekhaben Biharilal Kundaliya before him and stated that since both her hands were burnt, therefore, she could not sign, hence her right hand thumb impression was taken on the complaint.
26. During the course of recording of the evidence of the I.O., the complaint was urged to be exhibited during the trial, however, objection was raised from the side of the accused's advocate. Hence, the learned trial Court Judge deferred to exhibit the documents and decided to take a decision only after hearing both the sides. The I.O. in his evidence has referred to various other documents in the form of panchnama, sketch, FSL Report which were referred to him and placed in evidence as Exhibits. Copy of the bond Mark 14/15 was placed in evidence which the Page 22 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined I.O. stated that it was on the basis of demand of dowry which was invested by the mother of the deceased in the name of the deceased. The same was seized during the course of investigation which was placed in evidence at Exhibit 46. The contradiction in the statement of the witnesses were referred to the I.O. in the examination-in- chief.
27. While in cross-examination, the I.O. stated that when the incident occurred, he was at the Court, he was informed by Adalaj Police Station through written 'wardhi' which was addressed to him whereby he was instructed to undertake further investigation of the matter. He confirmed that since he received the 'wardhi', the investigation had become compulsory and he stated that the investigation is in accordance with law. The 'wardhi' was given to him by the PSO. Certain questions were raised in the cross examination with regard to the receipt of wardhi. The suggestion was raised by the defence that no such wardhi was received by him and that to misguide the Court, he has stated false facts regarding the wardhi. He confirmed that 'wardhi' has not been made part of the Page 23 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined charge-sheet. The witness stated that on receiving the wardhi, he found the case to be investigated so, he had gone to Civil Hospital and met the Doctor, enquiring from the Doctor about the patient and having confirmed that she was under treatment in the ward, the Doctor had given a written report of the patient being conscious therefore, he had sent the yadi to the Executive Magistrate for recording of the dying declaration.
28. The 'wardhi' was not placed in evidence, the objection was raised by way of moving Exhibit 35 for stating that it could not be considered as a complaint but a mere statement and the 'wardhi' which was given to the I.O. should be considered as a complaint. On having heard both the sides, observing that the wardhi could not be considered as first information report and that the complaint was before the I.O. having noted that the complaint was given by the complainant while she was conscious, thus, by an order at Exhibit 35, the objection was set aside considering the provision of Section 154 of Cr.P.C. the complaint was ordered to be exhibited. Page 24 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
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29. Learned advocate Mr. Yogin A. Bhambhani had raised a contention that the document as exhibited by an order below Exhibit 35 cannot be read in evidence and the complaint of the deceased should be considered as a statement and hence, should not be read in evidence. It is further submitted that the first information received by the police station was recorded in the form of 'wardhi', which has not been made part of the trial and in absence of 'wardhi' on record, the statement before the I.O. should be read only as a statement under Section 161 of Cr.P.C. Learned advocate Mr. Bhambhani has referred to the decision of this Court in the case of Lakhiram Narandas Bawasadhu v. State of Gujarat reported in (2003) Cri. L.J. 585 to state that the information received if not taken down in writing, then it would vitiate the trial. Learned advocate Mr. Bhambhani also submitted that the 'wardhi' refers to the initial information to police report sent to the station, and if the initial report is not presented before the trial Court, it could impact the credibility of the prosecution case. It is submitted that the investigation initiated without the Page 25 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined initial stage of registration of the original complaint would become suspicious and that benefit should be granted to the accused.
30. Countering the above arguments, learned Additional Public Prosecutor Ms. Jyoti Bhatt has placed reliance on the decision in the case of State by Lokayuktha Police v. H. Srinivas reported in (2018) 7 SCC 572, learned APP submitted that failure to make entries in the station diary per-se would not be illegal. Learned APP submitted that there is no bar for the I.O. to investigate into the matter for some justifiable ground and non-recording of information in the station diary would not be fatal to the case unless it shows of any prejudice caused to him.
31. Here, the I.O. stated that he had received the written wardhi and accordingly, he had gone to the hospital where he had also called the Executive Magistrate to record the dying declaration by sending yadi. Here the fact is that the wardhi could not be produced on record and the circumstances which circumstances have been Page 26 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined referred by the I.O. for non-production. The crucial aspect which becomes noteable is that prior to the recording of the complaint, the dying declaration was recorded by the Executive Magistrate. The issue now then becomes necessary to be interpreted as to whether the complaint recorded by the I.O. could be considered as a complaint by the deceased under Section 154 of Cr.P.C. or a statement which is recorded in accordance to Section 32 of the Evidence Act. Generally, if the complaint was an information given to the police but was never formally recorded as first information report and the official wardhi / record is missing, then the complaint during investigation would be considered as statement under Section 162 of Cr.P.C. and such statement are not admissible as substantial evidence and are only used to contradict the witness during the trial.
32. Here the witness as I.O. had stated that upon the wardhi he received, he had proceeded towards Civil Hospital, Ahmedabad. The 'wardhi' was actually received and the I.O. supported the version by visiting Civil Hospital but it Page 27 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined so happened that prior to recording the complaint, he got the dying declaration recorded by the Executive Magistrate. Thus, according to the I.O., the complaint was given by the deceased before him. If the 'wardhi' on record is not accepted or was not presented in the Court, it does not impact the case. The said document cannot be believed as first information report to set the law in motion unless its existence is proved through other evidence. Here in this case, the information with regard to the deceased was certainly received by Adalaj Police Station. It is the evidence of the I.O. that it was only after the instructions by the PSO by way of 'wardhi', he proceeded to the Civil Hospital. It cannot be said that the said 'wardhi' was not issued by police station, otherwise the I.O. would not have the knowledge about the incident. Hence, non-production of 'wardhi' would not prejudice the accused. The prior and subsequent act of I.O. also becomes relevant to consider the existence of the document.
33. According to PW8-Executive Magistrate-Jashvantkumar Page 28 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined Shanabhai Patel, on 19.03.2005 at 18.20 hours, he received the yadi in two copies at his home which was delivered by Shahibaug Police Station Natwarbhai Buckle No.5193 of Sub-Inspector of Adalaj Police Station. The yadi was produced in evidence at Exhibit 52.
34. Exhibit 52 makes a mention that at Adalaj Police Station there is a Janva Jog Entry No.104/05 dated 19.03.2005 recorded at 15.25 hours, where the injured-Rekhaben Biharilal Kundaliya, resident of Nidhishree Flat, DT-3, 3 rd Floor, Motera, Gandhinagar at about 14.45 hours on 19.03.2005 at the referred address, while filing the primus got burnt and for treatment, she was brought to Civil Hospital, Ahmedabad in Ward No.G-1 and the Executive Magistrate was called for recording of the dying declaration. Thus, the non-production of 'wardhi' which had been received by the I.O. would not be vital since the yadi received by the Executive Magistrate at Exhibit 52 makes a reference of the Janva Jog Entry which has been made in the Adalaj Police Station. The said fact could be considered as first information report for the police to come in motion to investigate the matter. The Page 29 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined case referred by learned APP Ms. Jyoti Bhatt in the case of State by Lokayuktha Police (supra) would also become relevant. Relevant part of the decision reads as under :-
"18. As the concept of maintaining General Diary has its origin under the Section 44 of Police Act of 1861 as applicable to States, which makes it an obligation for the concerned Police Officer to maintain a General Diary, but such non-maintenance per se may not be rendering the whole prosecution illegal. However, on the other hand, we are aware of the fact that such non-maintenance of General Diary may have consequences on the merits of the case, which is a matter of trial. Moreover, we are also aware of the fact that the explanation of the genesis of a criminal case, in some cases, plays an important role in establishing in prosecution's case. With this background discussion we must observe that the binding conclusions reached in the paragraph 120.8 of Lalitha Kumari Case (Supra) is aon obligation of best efforts for the concerned officer to record all events concerned an enquiry. If the Officer has not recorded, then it is for the trial court to weigh the effect of the same for reasons provided therein. A court under a writ jurisdiction or under the inherent jurisdiction of the High Court is ill equipped to answer such questions of facts. The treatment provided by the High Court in converting a mixed question of law and fact concerning the merits of the case, into a pure question of law may not be proper in light of settled jurisprudence.
19. Our conclusion herein is strengthened by the fact that CrPC itself has differentiated between irregularity and illegality. The obligation of maintenance of General diary is part of course of conduct of the concerned officer, which may not itself have any bearing on the criminal trial unless some grave prejudice going to the root of matter is shown to exist at the time of the trial. Union of India and Ors. v. T. Nathamuni, (2014) 16 SCC 285. Conspicuous absence of any provision under CrPC concerning the omissions and errors during investigation also bolsters the conclusion reached Page 30 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined herein. Niranjan Singh and Ors. v. State of Uttar Pradesh, AIR 1957 SC 142.
20. Moreover, the requirement of the preliminary enquiry is well established by judicial precedents as a check on mushrooming false prosecution against public servants by persons who misuse the process of law for their personal vengeance. Such preliminary check would be beneficial and has been continuously approved by catena of judgments of this Court. [refer to P. Sirajuddin Case, (1970) 1 SCC 595, Lalitha Kumari Case (Supra)]. In light of the discussion, we cannot sustain the reasoning provided by the High Court on this aspect."
35. Here in this matter, the objection which was raised was with regard to the complaint which was recorded by the I.O. who stated that he received the wardhi from Adalaj Police Station. The Janva Jog Entry which was recorded before the police station is proved by the yadi produced by the Executive Magistrate. Thus, the non-production of the wardhi received by the police would not be considered as fatal to the prosecution case nor would be considered as prejudicing the accused. The 'wardhi' in its format meaning would be an official police communication or intimation. The legal status of the initial information would depend upon the nature of the offence. Here, the yadi which was received by the Executive Magistrate at Exhibit 52 proves the fact that Page 31 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined the information as Janva Jog Entry which be the first information to Adalaj Police Station registered as I-104/05 on 19.03.2005 at 15.25 hours. In view of the evidence on record, the non-production of 'wardhi' by the I.O. would not be vital to the prosecution and that it cannot be said that it would vitiate the whole trial.
36. The statement of the deceased may be admissible in evidence in terms of Section 32(1) of the Evidence Act to prove the cause of death or to any circumstance / transaction which resulted in death. Thus, if the complaint recorded by the I.O. is to be considered as a statement under Section 161 of Cr.P.C., then it could be considered as dying declaration after the death. Here the complaint which was recorded by the I.O. would then become the dying declaration before the I.O. prior to that, the dying declaration was also recorded by the Executive Magistrate.
37. Reference is required to be made to the decision of the Apex Court in the case of Mukesh Gopalbhai Barot v. Page 32 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined State of Gujarat reported in (2010) 12 SCC 224 where Paragraph 17 reads as under :-
"17. A bare perusal of the aforesaid provision when read with Section 32 of the Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations, Extns. 44 and 48 had no evidentiary value, therefore, is erroneous. In this view of the matter, the first dying declaration made to the magistrate on 14-9-1993 would, in fact, be the first information report in this case."
38. Section 32(1) of the Evidence Act has been enacted by the legislature advisedly as a matter of necessity as an exception to the general rule that "hearsay evidence" is "no evidence" and the evidence which cannot be tested by cross-examination of a witness is not admissible in the Court of law. The purpose of cross-examination is to test the veracity of the statement made by a witness. The requirement of administering oath and cross-examination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. Since he cannot be cross- examined, necessity of administering oath has been dispensed with. The legislature, in the circumstances, Page 33 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined has accorded a special sanctity which should be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death. Further, the said circumstances would not affect the admissibility of the statement but only its weight.
39. Here in this matter, there are two dying declarations, one before the Executive Magistrate and another before the I.O. In view of the judgment in Mukesh Gopalbhai Barot (supra), Dying Declaration before the Executive Magistrate would in fact be the first information report in the present matter, as dying declaration before the Executive Magistrate was recorded prior the statement before the I.O. The Executive Magistrate was examined as PW8-Jashvantkumar Shanabhai Patel and as referred hereinabove after he received the Yadi Exhibit 52, he had gone to Civil Hospital in the Burns Ward in a police vehicle. The Executive Magistrate stated that the person who were near bed no.3 had been instructed to go out of the room and he had started recording the statement of Page 34 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined the patient on bed no.3 at 18.45 hours in the question and answer form. The Executive Magistrate stated that when the statement was recorded neither the relatives nor the police persons were present. The deceased was primarily asked her name and her husband's name and then when asked about the incident at question No.10, she stated that while she was preparing tea on the primus suddenly, there was a blast and she got burnt and therefore, the incident occurred. In response to question No.11, she stated that the incident had occurred suddenly. When asked by question No.12, whether she was burnt by anyone, she refused and answered in negative. When asked about the mental and physical cruelty at question No.13, she stated that her husband was harassing her for money. The flat was purchased and was demanding dowry. While in the answer in question No.14, she stated that she had dispute with her sisters-in-law and husband and that she was having six sisters-in-law. When she was asked at question No.15 whether she had made an attempt to commit suicide, she confirmed, in affirmative.
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40. The evidence thus which has been brought on record by way of dying declaration at Exhibit 53 suggests that according to the victim, she got burnt because of the flames from the primus while she was preparing tea and suddenly, the incident had occurred. While in question No.15, when the Executive Magistrate had asked her whether she had made an attempt to commit suicide, the answer was 'yes'. Both these answers are contradictory in nature. While answering question No.17 about presence of any person at the place, she stated that she was in the kitchen and her husband was in another room. Thus, it was not the grievance of the complainant victim that her husband had burnt her rather it has come on record that he attempted to save her and during that process, he too had got burnt.
41. The Executive Magistrate stated that the dying declaration was recorded at 18.45 hours and had concluded at 19.00 hours and thereafter, the Doctor had made an endorsement of 'the patient being conscious, oriented and able to speak'. He had also received the Page 36 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined signature of the Doctor at that time. The Executive Magistrate stated that when the patient had given the statement, she was fully conscious, she was in fit state of mind and was very clearly giving her statement.
42. In the cross examination, the Executive Magistrate has referred to Exhibit 52 where reference was made of the victim admitted in ward no.1 in Civil Hospital, Ahmedabad. In the statement, it was recorded that while filing the primus with kerosene, she got burnt. The Executive Magistrate was confronted with question No.13 while making references from question No.1 to 12. The question No.13 was whether anyone was subjecting her to mental and physical cruelty. The question was direct and suggesting. It is the clarification of the Executive Magistrate that he had asked the question so as to bring the true fact before the Court. It was also stated by the Executive Magistrate that without any difficulty, victim had given answers to questions No.1 and 12 and for bringing the truth, he had asked question No.13. He denied the suggestion that questions No.13 and 14 were Page 37 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined wrongly asked by him. The Executive Magistrate was also asked for question No.11 that the incident had occurred suddenly, inspite of that question No.15 was falsely asked. He denied the suggestion that though the answer to question No.11 was there on record, he had falsely raised question No.15. From Exhibit 53-Dying declaration, it transpires that question No.15 was whether she had made an attempt to commit suicide, to which the victim affirmed.
43. The controversy which has been raised by the defence is about the answer to question No.15 and question No.11 and that while answering question No.11, the victim had stated that supplementing the answer to question No.10 that because of the burst while preparing tea on the primus, she got burnt while question No.15 was a suggestive question by the Executive Magistrate having asked the victim whether she attempted to commit suicide and the answer recorded is 'yes', with no further clarification.
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44. The witness as a Executive Magistrate stated in the cross examination that he had gone to the hospital. Dr. Manishbhai was there. According to the Executive Magistrate, it was not necessary to enquire from the Doctor prior to recording the dying declaration and voluntarily stated that the patient was conscious and such endorsement was of 6 o'clock bearing the signature of the Doctor. After the endorsement of the Doctor at 6 o'clock, he reached the hospital at 6.45 at the Hospital, he had received the yadi at his residence at 6.20 hours. He denied the suggestion that when the dying declaration was recorded, at that time, the brother, mother and the husband were present there.
45. The evidence of the Dying Declaration at Exhibit 53 recorded by the Executive Magistrate if it is to be believed then the victim stated that the incident had occurred at 2.30 in the afternoon at her own flat when she alongwith her husband and child were present. The victim was in the kitchen and the husband was in his room. She was preparing tea and while she preparing tea on the primus, there was a sudden burst and she got Page 39 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined burnt. The incident was stated to be all of a sudden. Till question No.12, the incident was referred as sudden and accidental, while from question No.13, the victim stated she was harassed by the husband for money and was demanding dowry as flat was purchased. She also stated that she had tried to commit suicide. The mother and brother who are examined stated that they were present near the victim when the dying declaration was recorded. The brother and mother had denied of any demand of money by the husband. The mother has denied of any statement before the police of giving Rs.50,000/- or for purchasing Kisan Vikas Patra (KVP) of Rs.20,000/- in the name of the daughter. The mother has denied of any harassment from the husband and the family members to her daughter for demand of money and even denied the case of prosecution that the deceased-Rekha could not endure the harassment and therefore, she had died. The Investigating Officer has produced on record Exhibit 46 which is the KVP in the name of the deceased-Rekhaben B. Kundaliya as well as one-Nita A. Dutt. The serial number of the Certificates are 260795 and 260796 in the denomination of Rs.10,000/- each. The evidence has not Page 40 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined been brought on record as who is Nitaben A. Dutt. From the array of the accused who are before the trial Court, none of them are referred as Nitaben A. Dutt. Why the money was invested in the name of the deceased- Rekhaben B. Kundaliya with Nitaben A. Dutta does not become clear where it is the case of the prosecution that the mother had invested the money for the flat which was demanded by the accused, while the mother as well as the brother have denied of giving money of Rs.50,000/- as cash or any investment in KVP. In the cross examination of PW5-the brother-Bipin Kumudchandra Chunara by the Public Prosecutor, the question was raised of his statement before the Police. was asked the question that he had given the money, he and his mother had given Rs.70,000/-, Rs.50,000/- in cash and Rs.20,000/- for purchasing KVP's, which he had invested in the joint name of his sisters-Rekha and Nitaben which the brother denied. In view of this fact, if the amount at all was demanded as dowry by the husband of the deceased, there would not have been any necessity for depositing the money in the joint name of the deceased and her sister-Nitaben A. Dutt. There is no Page 41 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined evidence on record by way of any cash receipt for payment of Rs.50,000/- to the accused. The flat was already purchased since the incident had taken place in the flat. The dying declaration does not record that on the date of the incident, the deceased-victim had a quarrel with her husband or her husband on that day, had asked for any money or had demanded dowry. No immediate incident with the accused to commit suicide has not been proved or stated by the deceased in her dying declaration at Exhibit 53.
46. The principle has been laid down in various Supreme Court judgments to examine the authenticity and credibility of the dying declaration. In the case of Laxman v. State of Maharashtra, (2002) 6 SCC 710, it was held as under :
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death Page 42 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without Page 43 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 :
2000 SCC (Cri) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any Page 44 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432].Page 45 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
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47. In the case of Dashrath alias Champa and Ors. v.
State of M.P. reported in (2007) 12 SCC 487, it was held as under :
"11. .... The principle on which dying declaration is admitted in evidence is indicated in legal maxim 'nemo moriturus praesumitur mentire -- a man will not meet his Maker with a lie in his mouth'.
11. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [(1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC 1817] : (SCC pp. 480-81, paras 18-19) Page 46 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] .)
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] .)
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021] )
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617] .)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 579 : AIR 1979 SC 1505] .)
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion Page 47 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519] .)
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839] .)
13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P. [1993 Supp (1) SCC 327 : 1993 SCC (Cri) 102 : JT (1992) 2 SC 417] , Goverdhan Raoji Ghyare v. State of Maharashtra [1993 Supp (4) SCC 316 : 1994 SCC (Cri) 15 : JT (1993) 5 SC 87] , Meesala Ramakrishan v. State of A.P. [(1994) 4 SCC 182 : 1994 SCC (Cri) 838 : JT (1994) 3 SC 232] and State of Rajasthan v.
Kishore [(1996) 8 SCC 217 : 1996 SCC (Cri) 646 : JT (1996) 2 SC 595] .)
14. There is no material to show that the dying declaration was the result or product of imagination, tutoring or prompting. On the contrary, the same appears to have been made by the deceased voluntarily. It is trustworthy and has credibility." [Ed. : As observed in P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443 at SCC pp. 447-51, paras 10- 14 : 2003 SCC (Cri) 1679.]"
48. In the case of Atbir v. Government of NCT of Delhi reported in (2010) 9 SCC 1, it was held by the Apex Page 48 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined Court as under:
"(A) Dying declaration
14. It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by the investigating officer in the presence of a doctor. Since we have already narrated the case of the prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analysed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value, etc. have to be taken into account.
15. In Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376] this Court held : (SCC pp. 106-07, para 6) "6. ... It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-
examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated...."
It is true that in the same decision, it was held, since the investigating officers are naturally interested in the success of the investigation, the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged.
16. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] this Court held that lapse on the part of the investigating officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement. Page 49 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined
17. The effect of the dying declaration not recorded by the Magistrate was considered and reiterated in Balbir Singh v. State of Punjab [(2006) 12 SCC 283 : (2007) 1 SCC (Cri) 715] . Para 23 of the said judgment is relevant which reads as under
: (SCC p. 289) "23. However, in State of Karnataka v. Shariff [(2003) 2 SCC 473 : 2003 SCC (Cri) 561] , this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri) 1491] .)"
It is clear that merely because the dying declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the whole prosecution case. It also clarified that where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. This Court further held that the statement of the injured, in the event of her death may also be treated as FIR.
18. In State of Rajasthan v. Wakteng [(2007) 14 SCC 550 :
(2009) 3 SCC (Cri) 217] the view in Balbir Singh case [(2006) 12 SCC 283 : (2007) 1 SCC (Cri) 715] has been reiterated.
The following conclusions are relevant which read as under :
(Wakteng case [(2007) 14 SCC 550 : (2009) 3 SCC (Cri) 217] , SCC p. 554, paras 14-15) "14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.
15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a Page 50 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction."
19. In Bijoy Das v. State of W.B. [(2008) 4 SCC 511 : (2008) 2 SCC (Cri) 449] this Court after quoting various earlier decisions, reiterated the same position.
20. In Muthu Kutty v. State [(2005) 9 SCC 113 : 2005 SCC (Cri) 1202] the following discussion and the ultimate conclusion are relevant which read as under : (SCC p. 120, paras 14-15) "14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further Page 51 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
21. The same view has been reiterated by a three-Judge Bench decision of this Court in Panneerselvam v. State of T.N. [(2008) 17 SCC 190 : (2010) 4 SCC (Cri) 496] and also the principles governing the dying declaration as summed up in Paniben v. State of Gujarat [(1992) 2 SCC 474 : 1992 SCC (Cri) 403] .
22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be Page 52 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
49. The complaint which was ordered to be taken into evidence below Exhibit 35 by the trial Court is at Exhibit
55. The complaint was recorded on 19.03.2005 by PW7- Kabsinh Ratansinh Paghi . The place of residence is Nidhishree Flat, DT-3, 3rd Floor, Motera, Taluka and District Gandhinagar. The complaint so recorded gives a narration therein, in detail and the burns which the victim sustained was of third degree over face, forehead, both ears, chest and part of neck and anterior part of neck, both shoulders and other parts of the body. The Executive Magistrate has recorded the dying declaration in question and answer form, while the complaint at Exhibit 55 is in a narrative form. As per the I.O., the complainant stated that she was staying alongwith her husband and child named 'Om' aged 3 years for the last three months in the Flat. The husband was having a Page 53 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined business of channel. Her marriage had taken place 4 years earlier. After marriage, she started residing with the in-laws at Dariakhan Gummet, Dudeshwar, Ahmedabad. The complainant has given the names of all the persons who were residing with her. She has stated about the address of her parental house. According to the complainant, initially all the accused were harassing her mentally and physically for trivial reasons. They were making demands, for bringing money from the parental house and whenever, she used to go home, her mother used to pacify her and send her back to the in-laws house. Three months earlier, she had shifted with her husband and child in the flat. According to the complainant, often her mother-in-law, sisters-in-law and husband would ask her to bring money from the parental house for flat and would taunt her regarding dowry. The complaint suggests that all the persons who were shown as accused during the trial were initially harassing her for minor reasons and thus, they were asking her to bring money for the flat. The crucial aspect that becomes necessary to note that all the accused, except the husband, have been acquitted. Page 54 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined Three months earlier to the incident, the deceased had shifted with her husband and child to the flat. It is not the case that the mother-in-law, sisters-in-law and brother-in-law were asking her to bring money for the flat, where they have been wanting to stay. It is not the evidence of the witnesses that the remaining accused wanted the deceased to bring money as dowry on the ground that the rest of the accused wanted to reside in that flat. The trial Court have acquitted all of them except the husband. The complaint suggests that on that day when the husband and child were present in the flat, Rekhaben's husband had asked her to bring money for the flat from the parental house and she refused. There was a verbal quarrel between them and the husband told her that if she was not willing to bring money from her paternal home, then she should die and thus, being offended by such utterances, in the afternoon between 2.30-2.45 pm, by pouring kerosene on her self she ablazed herself. She also stated that because of the burns she started shouting and the people from the residing area had gathered there. Her husband tried to douse the fire, he also got burnt, her husband had Page 55 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined brought her to Civil Hospital, Ahmedabad in a rickshaw and the Doctor had put bandages on her hands, legs and chest. The complaint also records that she has stated before the Police that she was totally conscious and she was admitted in the Civil Hospital, Ahmedabad. The cause for committing suicide as per the deceased- complainant was that all the accused who were before the trial Court were demanding dowry and were physically and mentally harassing her and even had asked her to bring money from her parental home for the flat and if she did not bring the money, the husband had asked her to die.
50. The complaint Exhibit 55 does not bear any endorsement of the Doctor, whether the complaint was recorded in a fit state of mind does not get proved. Further, the dying declaration and the complaint thereafter have been recorded simultaneously. The deceased had not informed the Executive Magistrate of her quarrel on that day with the husband who had asked her to bring the money for the flat otherwise to die. The dying Page 56 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined declaration records that the deceased got burnt while she was preparing tea and the incident was sudden while complaint Exhibit 55 refers to suicide and the dying declaration after question No.13 also suggests attempt of suicide by deceased. The I.O. was required to enquire about the ownership of the flat since the deceased and the appellant accused were staying in the flat for the last three months prior to the incident with their child aged 3 years. KVP which has been brought on record shows that the amount had been deposited in the name of the deceased as well as the deceased's sister. The I.O. was required to produce on record the documents of ownership of flat as also the record with regard to payment of the purchase money of the flat. If the I.O. could procure the copy regarding the KVP's bond which is on record at Exhibit 46, the I.O. could have certainly investigated and procure the documents regarding ownership of flat, for which money had been demanded as dowry by the accused as husband. Had the appellant as husband demanded the amount, then the amount would have been in the hands of the accused and would not have been deposited in the name of deceased-Rekha, Page 57 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined which as per record was also deposited for another sister- Nita A. Dutt. The mother and brother of the deceased have been examined as witness. The witnesses have denied any payment of dowry. It appears as per the version of the I.O. that Rs.50,000/- was given in cash and Rs.20,000/- was in the bond, thus total Rs.70,000/- was paid inspite of that, often the deceased was facing physical and mental harassment for money. These allegations have already been denied by the family members of the deceased. No documentary evidence had been produced of payment of Rs.50,000/- in cash and Rs.20,000/- being deposited in the bond in the name of the deceased demanded as dowry. The I.O. has not enquired from the police with regard to the fitness of the mind of the deceased while recording the complaint. No Doctor has been examined to prove about the mental state of the deceased who died within 24 hours of the incident. The post mortem records 3 rd degree burns. The I.O. stated that when he had visited the hospital, he had enquired from the Doctor about the consciousness of the victim and therefore, he had invited the Executive Magistrate for recording the dying declaration. It is clear Page 58 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined case that only after recording the dying declaration, the complaint of the victim was taken.
51. Learned Additional Public Prosecutor Ms. Jyoti Bhatt has placed reliance on the endorsement of Dr. Manish Jain where the endorsement records at 7.05 pm on 19.03.2005 as of a patient being conscious, oriented and able to speak. The dying declaration came to be conclude at 19.00 hours. Thereafter, the endorsement has been recorded of the Doctor. In the coss- examination, it is stated by the Magistrate that it was not necessary to enquire from the Doctor prior to recording the dying declaration and he necessarily stated that the endorsement of being conscious made at 6 o' clock. In the cross examination, he stated that he had reached at 6.45 and on the dying declaration-Exhibit 53, the endorsement is of the Doctor which reads as 7.05 pm. Thus if the fact is considered that the patient was conscious and oriented to give the dying declaration, then the inconsistency in the dying declaration would become a necessary issue to be analysed. In the dying declaration the victim had stated that she got burnt Page 59 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined suddenly because of the blaze from the primus while preparing tea, while immediately when the complaint was recorded before the I.O., the deceased has stated that she committed suicide by pouring kerosene on herself and burnt herself with a match stick. The said difference in the recording of the dying declaration would become crucial and create a doubt about the correctness of the dying declaration before both the Executive Magistrate as well as the I.O. The allegations of demand of money for purchase of flat does not get proved by the documentary evidence since the mother and brother of the deceased who have been examined have not supported the case of the prosecution. The Yadi which was sent by the Executive Magistrate which is at Exhibit 52 records of the Janva Jog Entry at Adalaj Police Station as No.104 / 05 dated 19.03.2005 at 15.25 hours that Rekhaben Biharilal Kundaliya, resident of Nidhishree Flat, DT-3, 3 rd Floor, Motera, Taluka and District Gandhinagar, while she was filling kerosene in the primus she got burnt at 14.45 hours. The dying declaration records that it was an accident, while the complaint records of suicide. Thus, the disparity between the two documents which was Page 60 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined recorded immediately, one after another, giving two different versions could lead to the conclusion that the dying declaration was not of sterling quality on which the conviction can be passed, more so, when the family members of the deceased have not corroborated the case of the prosecution. In addition, inspite of the presence of the family members, no complaint was recorded of the members of the deceased's parental family. Though the wardhi was sent to the I.O., the same has not been proved on record and it was a necessary mandate for the I.O. to have proved the case that he had initiated the investigation after having received the wardhi. The documentary evidence in the form of KVP's on record falls in favour of the accused as the same are in the name of the deceased and the deceased's sister when the mother and brother of the deceased denies of any dowry demand. The dying declaration does not disclose any quarrel with the husband on that day and of the utterances of the husband making a demand for dowry and on failure to bring the dowry directing her to die. The allegation of demand of dowry was against all the accused, the trial Court Judge has not found any case Page 61 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined against rest of the accused. Thus, the only analysis of the evidence would be concentrated on the evidence against the appellant as a husband.
52. Crucially, the dying declaration does not record of the immediate cause for the suicide of the deceased alleging before the Executive Magistrate that it was the husband who had quarelled with her on that day and had instigated her to take the ultimate step.
53. In the case of Muthu Kutty v. State, (2005) 9 SCC 113 it was held that :
"13. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short "the Evidence Act") which deals with cases in which statement of relevant fact by a person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the Page 62 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice..."
54. In the case of Sanju v. State of M.P., (2002) 5 SCC 371 it was observed by Hon'ble Supreme Court as under:
"8. In Swamy Prahaladdas v. State of M.P. [1995 Supp (3) SCC 438 : 1995 SCC (Cri) 943] the appellant was charged for an offence under Section 306 IPC on the ground that the appellant during the quarrel is said to have remarked to the deceased "to go and die". This Court was of the view that mere words uttered by the accused to the deceased "to go and die" were not even prima facie enough to instigate the deceased to commit suicide."
"12. ...Even if we accept the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion...."
55. In the case of Hans Raj v. State of Haryana, (2004) 12 SCC 257 Hon'ble Supreme Court held as under: Page 63 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined "12. The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 IPC with the aid of the presumption under Section 113-A of the Indian Evidence Act.
Any person who abets the commission of suicide is liable to be punished under Section 306 IPC. Section 107 IPC lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Indian Evidence Act under which the court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498-A of the Penal Code, 1860..."
13. Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. Page 64 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] wherein this Court observed: (SCC pp. 626-27, para 12) "12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26- 12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression 'may presume' suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to 'all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression -- 'the other circumstances of the case' used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and Page 65 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'may presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says -- 'Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."
14. The same principle has been reiterated in Sanju v. State of M.P.,(2002) 5 SCC 371
15. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court observed: (SCC pp. 89-90, para 15) "15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater [(1950) 2 All ER 458 : 1951 P 35 (CA)] (All ER at p. 459) has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter."
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56. In the case of M. Mohan V. State, (2011) 3 SCC 626, the Hon'ble Supreme Court has held as under :
"44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
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."
57. In the case of Mariano Anto Bruno v. State of T.N., (2023) 15 SCC 560 it was held as under:
"45. This Court has time and again reiterated that before convicting an accused under Section 306IPC, 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 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 306IPC is not sustainable."
58. In the case of Sanju v. State of M.P. (supra), the Apex Court has observed that during a quarrel, the utterance Page 67 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined of the appellant directed to the deceased "to go and die"
were not prima-facie enough to instigate the deceased to commit suicide. Here in the present case, the allegation is that on the date of committing suicide, the husband had uttered instructing the wife that if she failed to bring the dowry amount, then she should die. Having observed that in the case of Sanju v. State of M.P. (supra), such utterances "to go and die" does not constitute the ingredients of instigation, the presence of mens rea therefore becomes an essential concomitant of instigation. The words uttered during a quarrel between husband and wife in a a fit of anger and emotion or on the spur of the moment cannot be taken to have occurred with mens rea. The concept of the provision of Section 306 IPC with the aid of presumption under Section 113A of the Evidence Act has been very well clarified in the above judgment of Hans Raj (supra).
Section 113A of the Evidence Act does not get automatically involved unless the prosecution first establishes that the woman concerned committed suicide within a period of 7 years from the date of her marriage and that her husband had subjected her to cruelty.Page 68 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined Further even if these facts are established, the Court is not bound to presume that the suicide had been abetted by her husband. Section 113A of the Evidence Act gives discretion to the Court to raise such presumption having regard to the other circumstances of the case, which means that when the allegations is of cruelty, Court must consider the nature of cruelty to which the woman was subjected having regarding to the meaning of the word 'cruelty' in Section 498 IPC. Before the presumption may be raised, the foundation fact must first exist. The expression "all the other circumstances of the case" used in Section 113A as observed in the case of Hans Raj (supra) suggests the need to reach a cause-and-effect relationship between the cruelty and suicide for the purpose of raising a presumption.
59. Here in the present case, the mother and brothers had not supported the prosecution case of any demand of dowry. Even the facts on record does not prove that the husband was demanding money from the relatives of the deceased for the purpose of the flat. The I.O. has failed Page 69 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined to secure any documents regarding the payment of purchase money for the flat. The document of ownership of the flat has also not been produced. The allegation is that Rs.50,000/- in cash was given and Rs.20,000/- was invested in KVP's by the mother and brother of the deceased. The KVP documents shows that the investment was in the name of the deceased and her sister-Nita A. Dutt.
60. The abetment for the commission of the suicide involves the mental torture of instigating the person or intentionally aiding a person in doing of a thing. There must be some positive conduct on part of the accused to have been proved and the conduct of instigation led to the commission of suicide.
61. The dying declaration of the wife becomes relevant if the statement discloses the cause of death or it describes the circumstances of the transaction resulting in her death. The dying declaration though has considered to be given in a situation which is solemn where the victim is at point Page 70 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined of death and when every hope of the world is gone, where every motive of falsehood is silent and the mind is induced by the most powerful consideration to speak the truth as noted in the case of Muthu Kutty (supra), then the prosecution is required to prove that the dying declaration was recorded in fit state of mind and that it was not a result of tutoring, prompting or imagination.
62. Here in the present case, the dying declaration itself which is the produced as document prior to the complaint before the I.O. of the victim partially suggests that it was accidental, and there were severe accidental injuries because of the flames from the primus (kerosene stove), while the other part suggests that the deceased had admitted to committing suicide. Both contrary aspects are coming in the same document which has been drawn by the Executive Magistrate as dying declaration of the victim. The inconsistency in the same document itself makes the document weak. The Court therefore, has to reach for corroboration as rule of prudence and here, the mother and brother have not corroborated the dying Page 71 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026 NEUTRAL CITATION R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026 undefined declaration. As per the prosecution case, the cause of death is dowry demand. The Janva Jog Entry has also recorded the accidental injuries. A part of the dying declaration also notices of accident and the mother has corroborated the incident of injury sustained by the daughter because of the flames from the kerosene stove. The dying declaration also does not get proved that injured was in a fit state of mind. Since the victim was having third degree burns, she would have been administered with anti-biotics and pain relief injections. The victim would be in a state of delirium and in absence of evidence of instigation from the side of the husband with mens rea, no case would be found against the appellant-husband under Sections 498A and 306 of IPC. The dying declaration further does not disclose any incident proximate referring any act as cause for the death. The death to fall in context with the meaning of 'cruelty' as described under Section 498A with any instigation in terms of Section 107 of IPC for the commission of suicide to be proved under Section 306 of IPC must be proved to be with criminal intent. The prosecution has failed to prove the case. Page 72 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
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63. In view of the analysis of the evidence on record as referred hereinabove and the proposition of law with the case laws as referred above, the observation of the learned trial Court Judge becomes erroneous and the order of conviction becomes faulty.
64. In the result, the present appeal is allowed. The judgment and order of conviction dated 19.12.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Gandhinagar in Sessions Case No.38 of 2005 is set aside. The appellant herein is acquitted of all the charges levelled against him. Bail bond, if any, stands discharged. Record and proceedings, be sent to the concerned Trial Court forthwith.
Sd/-
(GITA GOPI, J) CAROLINE / SB-1 # 1 Page 73 of 73 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026