Gujarat High Court
Shantibhai Mohanbhai Jethwa vs State Of Gujarat on 25 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 760 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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SHANTIBHAI MOHANBHAI JETHWA
Versus
STATE OF GUJARAT
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Appearance:
MS SHAILY KAPADIA with MR ARPIT A KAPADIA (3974) for the Appellant(s)
No. 1
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM HONOURABLE MS. JUSTICE GITA GOPI
:
Date : 25/08/2025
ORAL JUDGMENT
1. The appeal under Section 374 of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.'), seeks to challenge the legality and validity of the judgment and order of conviction and sentence dated 21.03.2007 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Bhavnagar camp, Mahuva in Sessions Case Page 1 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined No.110 of 1998, whereby the appellant came to be convicted for the offences punishable under section 498A and Section 306 of the Indian Penal Code. The judgment dated 21.03.2007 sentenced the present appellant as accused for the period of 5 years rigorous imprisonment and fine of Rs.5,000/- with the default stipulation of 1 year rigorous imprisonment.
2. The facts of the case could be drawn from the record that, the First Information Report was registered as C.R. No.I - 207/1997 with Mahuva Police Station on 15.10.1997 at around 13:45 hours by deceased victim Prabhaben - wife of the present sole appellant Shantibhai, before the PW-12 - Rupsinhbhai Jivajibhai Nenama who was the unarmed police constable at the hospital. The deceased victim in the complaint stated that she was residing at Janta Plot No.1 along with her husband for the past seven months. It was her love marriage. She by caste was a potter and her husband was by caste washerman, both of them were residing separately from their parents. On 15.10.1997, she and her husband were at home and quarrel took place because of domestic work. It is stated that in the Page 2 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined morning at around 9.30 to 09.45, the deceased asked her husband to bring some household articles and her husband denied to bring those articles and told her that if she wanted to die then can do so by burning herself. Therefore, the deceased poured kerosene on her body and ablazed herself with a match stick. The complaint states that she tried to save herself by plunging into the water tank of her neighbour Santokben. Her husband brought her to Mahuva hospital for treatment.
3. Learned advocate Ms. Shaily Kapadia with learned advocate Mr. Arpit Kapadia submitted that the prosecution has relied upon the Dying Declaration (herein after referred to as 'DD') of the deceased recorded by the Executive Magistrate on the same day i.e. 15.10.1997 approximately an hour after the complaint where learned advocate Ms. Kapadia submits that in the DD, the deceased stated that her husband was beating her regularly and therefore she ablazing herself committed suicide. Ms. Kapadia submitted that the conviction and sentence is bad in law. The learned trial Judge has not appreciated the evidence on record to observe that the trial does not establish the principles of law for drawing Page 3 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined the ingredients under section 306 of the I.P.C. nor there is the case of 498A against the accused where the issue was of that day, where minor domestic quarrel has led to emotion of anger which ultimately followed with a suicide by ablazing herself.
3.1 Learned advocate Ms. Kapadia referring to the evidence on record submitted that neighbours have not supported the prosecution case. The parents of the deceased have not come forward to even give a complaint or to narrate any facts against the accused. Ms. Kapadia submitted that both the panchas have been declared hostile and the panchnama shows that the deceased was not in a physical condition to narrate any facts before the Police Jamadar nor before the Executive Magistrate. Ms. Kapadia further stated that the investigating officer was required to record the statement of the parents or close relatives of the deceased, to have gone into the real facts which could have surfaced the cause of suicide. 3.2 Learned advocate Ms. Kapadia further stated that on record there would be two sets of DD recorded at the gap of one hour and the time limit of two DD's, if perused should have brought consistency in the Page 4 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined statement made in both the DD's. However here on record, there are inconsistent two statements made by the deceased, and the benefit of that should be granted to the appellant as husband.
4. Learned advocate Ms. Kapadia further stated that the deceased died during treatment and the first version is of domestic quarrel with her husband which is in the morning between 9:30 to 9:45, and referring to the case of Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh reported in (2002) 5 SUPREME COURT CASES 371 submitted that accused telling the deceased 'to go and die' itself would not constitute evidence of instigation. Advocate Ms. Kapadia submitted that the presence of mens rea is a necessary constituent of instigation. Ms. Kapadia submitted that it was only a domestic quarrel and the accused would not have any intention to instigate the accused to actually commit suicide. Advocate Ms. Kapadia submitted that the accused has himself taken the deceased to the hospital for treatment.
4.1 Placing reliance, in the case of State Of Maharashtra vs. Sanjay D. Rajhans reported in AIR Page 5 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 2005 SUPREME COURT 97, Advocate Ms. Kapadia stated that the complaint which came to be recorded was without consulting the medical officer and at that time there was nothing on record to suggest that the deceased was in a fit state of mind to narrate the version. Ms. Kapadia further submitted that it was impossible to believe that the patient suffering from 80% burns would narrate the details in such a coherent way. The deceased had died after a lapse of 14 days and during that period, no other statement had been recorded by the police or by the Executive Magistrate which can give support to the prosecution case. Advocate Ms. Kapadia further submitted that learned trial Court Judge has not appreciated the fact that the medical officer who was present as per the prosecution case at the time of recording the DD by the Executive Magistrate had not been examined by the prosecution on the ground that the medical officer was not traceable, which is a serious lapse on the side of the prosecution in such a serious matter. Ms. Kapadia further stated that the medical officer present at the time of DD, who had endorsed about the physical health of the deceased, had he entered the witness box then the defence would have an Page 6 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined opportunity to cross-examine the Doctor to find out about the actual state of mind of the deceased who was administered drug or injection during the primary treatment. The defence could have brought on record the impact of the treatment on the mental health of the deceased to record the conscious state of mind of the deceased, to have even given a complaint. 4.2 Referring to the deposition of the Doctor Mehulkumar Premjibhai Ravalia, PW-6, Exh.30, Advocate Ms. Kapadia submitted that the witness stated that he had given the certificate on 23.10.1997, which stated that the deceased was in a fit state of mind while the DD came to be recorded by the Executive Magistrate on 15.10.1997. The purpose for procuring the medical certificate on 23.10.1997 does not become clear. The document Exh.30 certifies that the patient was admitted on 15.10.1997 and also further clarifies that the patient's condition was not out of seriousness. Thus Ms. Kapadia submitted that if that evidence is to be correlated to the date of incident i.e. 15.10.1997, then it becomes questionable to the original state of mind of the deceased on the day when the complaint was given. Page 7 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025
NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 4.3 Ms. Kapadia further submitted that the DD Exh.34 of the Executive Magistrate is in a cyclostyle form. The certification of the Doctor is also printed in the cyclostyle form. Hence, the application of mind by the Doctor without endorsement in his own handwriting could not be believed. Comparing the DD before the Executive Magistrate and that of the complaint before the police Exh-55, Ms. Kapadia submitted that both the versions are different. The DD notes that her husband was beating her everyday and therefore on that account she had burnt herself by pouring kerosene and that she had suffering from her husband. Advocate Ms. Kapadia submitted that this version of beatings by her husband daily within seven months marriage has not been supported by the deposition of any of the neighbours. That DD does not refer to the quarrel which had happened on that day. The DD Exh.34 before the Executive Magistrate also does not identify the thumb impression of the deceased. The Doctor who had put his signature on Exh. 34 is said to be non-traceable which Ms. Kapadia submitted would be unbelievable and therefore stated that Exh.34, the DD should be considered as not proved. Further placing reliance on the Page 8 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined judgment of SANJAY S/O DIGAMBARRAO RAJHANS (supra), Ms. Kapadia submitted that it is not that the cruelty mentioned in the DD that adds weight to the prosecution case to bring case under section 306 and 498A of the I.P.C. The DD should inspire full confidence to place reliance on it for conviction.
5. Per contra, learned APP Ms. Monali Bhatt submitted that DD does not require any corroboration if it inspires confidence. It was a love marriage, therefore, no relatives have come forward to depose from either side. That itself would be a good ground to believe the prosecution. The DD therefore on that ground also becomes believable since no parents had come forward in support of the deceased. Hence, there was no scope of any tutoring. Reliance is placed on the judgment of Laxman Vs. State of Maharashtra reported in (2002) 6 Supreme Court Cases 710.
5.1 Learned APP Ms. Bhatt submitted that mere absence of doctor's certification as to the fitness of declaring state of mind would not ipso facto render the DD unacceptable.
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NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 5.2 Learned APP, Ms. Bhatt further submitted that considering the marriage span of seven months, Section 113A of the Evidence Act becomes attracted in the present matter. Section 107 of the IPC for abetment stands proved by the complaint as well as by the facts which has been narrated in the DD. Ms. Bhatt submitted that the husband had instigated the wife to commit suicide by directing her to die by burning herself. That fact itself would attract the provision of Section 107 of the IPC. APP Ms. Bhatt has taken this Court to the deposition of all the witnesses and submitted that the police had no cause to file a false complaint. There was no material on record of accidental death. The neighbours have turned hostile. Whatever transpires within the four walls of the house is for the accused to explain and a false explanation has been forwarded by the accused in his further statement under Section 313 of the Cr.P.C. Ms. Bhatt relying on the case of ATBIR VS. GOVERNMENT OF NCT OF DELHI reported in (2010) 9 Supreme Court Cases 1 submitted that the Court had laid down the principles governing the appreciation of the DD and submitted that DD could be the sole basis of conviction and thus contended to Page 10 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined upheld the conviction.
6. Heard learned advocates for both the sides. Perused the record. Exh.31 is Certificate by Mahuva Municipal Unit dated 23.10.1997 which clarifies that Prabhaben wife of Shantilal was admitted on 15.10.1997 as an indoor patient and till the death she continued as indoor patient. Certificate notes that she was suffering from severe burns all over the body. The endorsement states:
'Her condition is not out of seriousness. She is able to talk but due to septicemia she may develop complications.' The Doctor who had signed Exh. 31 is not the same Doctor who had signed Exh. 34 - the DD before the Executive Magistrate. The Doctor who has certified Exh. 31 has been examined. Mehulkumar Premjibhai Ravalia - PW-6 at Exh. 30 on 23.10.1997, he was on his duty at Municipal Medical Unit at Mahuva between 3:00 to 10:00. At that time, the Doctor notes that the certificate was asked, for the condition of patient Prabhaben - wife of Shantilal on that day and therefore, he issued certificate noting that she was conscious and in a position to speak, and inspite of that she was not out of danger. The Doctor stated that the Page 11 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined patient was admitted on 15.10.1997 and the certificate was issued on 23.10.1997. The deposition of PW-6 -
Doctor further notes that the patient was more than 80% burnt, but denied the suggestion in the cross-
examination that if the person is more than 80% burnt then would be under shock. He denied that such type of patients are given pain relieving medicines and injection and therefore would be under the influence of the medicine to deny the suggestion that in such condition the patient may not be conscious and may not be in a position to speak. Doctor denied the suggestion that Exh.
31 was written in his office and denied the suggestion that he had not examined the patient.
7. The complaint was given on 15.10.1997, by the deceased herself who was aged about 19 years wherein it was recorded that she belongs to Dhobi community. In the complaint before PW-12 - Rupsinhbhai Jivajibhai Nenama, the deceased had given the cause of quarrel with her husband on 15.10.1997 for domestic reason, in between 09:30 to 09:45, when she had asked her husband to bring the household articles, which he had denied by saying that he is not going to bring the Page 12 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined household articles and said that if she wanted to die then she may burn herself. Therefore, the deceased stated that, there was a kerosene box at home and she poured kerosene on herself and ablazed herself with the match stick. At that time, her husband was present. To save herself, she fell in the water tank of her neighbour Santokben. The complaint notes that she was taken for treatment at Mahuva and the medical record states that she was completely conscious. The cause of incident was noted about often dispute with regard to purchase of household articles, and in the morning too she had asked her husband about the same, which he refused, who asked her to die if she wants,and do so by burning herself. Thus ultimately fed up she burned herself by pouring kerosene. Witness PW-12 was at the hospital duty as unarmed police jamadar. He was informed about the patient Prabhaben by RMO and therefore he gave a written information to the PSI Shri, Mahuva and on that basis the Janva Jog Entry No.349/1997 was recorded. He held the investigation, thereafter he had send the complaint which was given by Prabhaben to the police officer, Mahuva for registration. The witness identified his hand writing in the complaint at Exh.-54 Page 13 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined in context of Janva Jog Entry.
7.1 PW-12 stated that he wrote the complaint as stated by the complainant. The right hand thumb impression was taken which he identified himself. He referred to the narration which was recorded in the complaint. According to the witness PW-12, the neighbours had come there and had doused the fire. The complaint he identified at Exh-55 and also identified the right hand thumb impression of the victim on the complaint.
7.2 The deposition of PW-12 notes that he had sent the complaint for registration and had sent an requisition Exh.-33 to the Executive Magistrate for recording of the DD of Prabhaben. The further investigation was handed over to constable Shri K. S. Tank. The witness PW-12 stated that the complainant was in a fit state of mind. She was in a position to talk, when he recorded the complaint she was heavily burnt and was under treatment. In the cross- examination, the complaint was put to question and the witness stated that he had reached near Prabhaben at about 10:45 in the morning. He affirmed that the time Page 14 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined has not been noted of recording of the complaint and at its conclusion. He also affirmed that on Exh. 55, the place and time of complaint has not been noted. The witness affirmed that the thumb impression has not got identified by another individual and further has affirmed that the complaint does not record of any endorsement of the complainant being in fit state of mind.
8. The witness PW-12 waited for about 1½ hours. He stated that Prabhaben burns were on whole of the body and also on the face. She was heavily burnt, but witness voluntarily stated that the injured was in a position to speak, and denied the suggestion that both the lips were sealed and that she was not in a conscious state. Witness affirmed the suggestion that since she had burns on the face and medicine was applied on her face. A contradiction was brought on record to confront the witness that in the complaint it is not noted that 'if she wants to burn herself, then she can burn herself' while the witness stated, that in the complaint before him, the deceased has stated that 'if she wants to die, she can do so by burning'. The witness affirmed that he had not taken the certificate from the medical officer of Page 15 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined Prabhaben being in a conscious state and in a position to speak. The witness does not recollect of the medical officer from whom he had taken the identification of Prabhaben. The complaint was recorded prior to the DD.
9. The fact now becomes necessary to be analyzed with the deposition of the Executive Magistrate, PW-7 - Deepsinh Karubhai Gohil who at the time of deposition was under suspension. The testimony records that on 15.10.1997, he received a wardhi from Mahuva police for recording the DD, so he had gone to the hospital at about 12:55 in the afternoon. The requisition, he placed on record at Exh. 33. As per the deposition at the hospital, he met the Doctor and showed the wardhi. The Doctor joined him at the burns ward. The witness then stated that the persons who were around the bed of the patient were removed. Thereafter the Doctor examined the patient, who was in a conscious state and therefore had given a certificate accordingly.
10. The Executive Magistrate gave his identification to the patient and recorded the DD. He inquired about the name, age and about the caste and her profession, Page 16 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined whereby she stated that she was in brick kilning and stated that she was a resident of Kumbharvad, Mahuva. 10.1 Before the Executive Magistrate, the injured witness stated that her husband was beating her daily and therefore she had burnt herself by pouring kerosene and had further stated that she had sufferings from her husband, and when she was asked about the place and time of incident, she stated that it was in the morning at 09:30 at her house. Before the Executive Magistrate, she stated that she had no grudge against any other person and because of her husband's beatings, she had burnt herself. When she was asked whether she wanted to say anything further, she declined. The Executive Magistrate further stated that for the time her statement was recorded, the Doctor for that purpose certified that she was in a conscious state. In the cross-examination, the witness stated that it took about 13 minutes to record the DD. He affirmed about the cyclostyle form and also affirmed that the DD does not record the receipt of the Yadi nor the the javak number nor the date of javak number.
10.2 With regard to the condition in the burns Page 17 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined ward, the Executive Magistrate stated that there was no other person admitted in the burns ward. At the time of recording of the DD, he and Doctor were present near the patient. The Executive Magistrate does not recollect the name of the Doctor. He stated that he does not recollect, whether the Doctor had communicated with the patient. The signature which was on the DD by the Doctor was made in the burns ward and the final signature was also near the bed of the patient. The witness denied the suggestion that while giving the answers the patient was falling unconscious, and affirmed that the right hand thumb impression of the patient has not been identified nor he had put his own signature identifying the thumb impression. He denied the suggestion that the DD was not recorded by him and also denied the suggestion that it was created on the direction of the police. The witness also does not recollect, whether the patient was having any bandages on her body, nor recollect of body covered by any cloth and further stated that the body was covered by a cloth and therefore could not see as to which part of the body was burned. He denied the suggestion that the patient was burnt on the face and on the lips to such an extent Page 18 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined that she could not speak.
10.3 The complaint which was before the Police Jamadar does not record the time of the complaint. The Executive Magistrate's DD records the time of completion of the DD at 1 O'clock. The admitted fact is that the DD is on cyclostyle form. The certificate of the patient being in conscious state is also written in cyclostyle form, wherein even in the concluding part, the signature of the medical officer is recorded, however, the Executive Magistrate could not recollect the name of the Doctor nor could he bring the record with him to identify the Doctor who was present with him for the recording of the statement - DD. There is no handwritten self endorsement of the Doctor to record the fit state of mind. The police while recording the complaint had to wait for one and a half hour, while the DD got recorded within thirteen minutes. The police while recording the complaint was not as a Investigating officer. The incident is between 9:30 to 9:45. The police for recording complaint reached at 10:45 he received information from R.M.O., while the Executive Magistrate reached at 12:55 p.m..
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NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined
11. In the case of Laxman Vs. State of Maharashtra (supra), it has been noted in para 3 as under :
"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 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 Page 20 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 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 Page 21 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined statement even without 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."
11.1 In ATBIR VS. GOVERNMENT OF NCT OF DELHI (supra), the principles governing the credibility of DD has been noted wherein it has been held as under:
"The following principles can be culled out from earlier decisions of the Supreme Court:
(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 Page 22 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where 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 discarded.
(ix) When the eye-witness 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 basis of conviction, even if there is no corroboration."
11.2 In view of the principle laid down in the case of ATBIR VS. GOVERNMENT OF NCT OF DELHI Page 23 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined (supra), DD can be made a sole basis of conviction provided it inspires the full confidence of the Court. The Court while analyzing the evidence has to be satisfied that the deceased was in a fit state of mind at the time of making the statement, while the consideration falls for the court to examine as to see that the DD was not the result of tutoring, prompting or imagination. Even if the DD is not corroborated in any other way if the court is satisfied that such DD is true and voluntary, then conviction can be based upon it. Since, it is not an absolute rule of law that no conviction can be based solely relying upon DD unless it is corroborated, as requiring corroboration is a rule of prudence. 11.3 The principle further notes that if the DD creates any suspicion, then it cannot be relied upon unless supported by corroborative evidence. Such DD could not be believable without corroborative evidence if it was found that deceased was unconscious and could never make any such statement. Even a brief statement of DD, if it inspires confidence of the court, even if it does not detail out the occurrence, should not be rejected and in case where the eye witnesses affirms that the deceased was not in a fit and conscious state of mind to Page 24 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined make the DD, then medical opinion cannot prevail. Thus it is for the careful scrutiny of the court to be satisfied that such DD was true and free from any efforts to induce the deceased to make a false statement. If the DD is found coherent and consistent then there would not be any legal impediment to make it a basis of conviction even if there is no corroboration. Keeping in mind, the legal position, as is being drawn in the referred judgment, the examination of the statement of the deceased would be necessary for the analysis to find out whether the statement given in the form of DD was in fit state of mind and were free from any inducement for false statement or lack of tutoring. 11.4 Here in the present case, the admitted position is that the family members of the deceased were not present with her. Thus, there was no scope of any tutoring or inducement to the deceased to give a false statement. The statement which was under Court scrutiny was the complaint given by the deceased before PW-12. Exh. 55 is a complaint which was noted immediately by the police observing that it was a seven months marriage. The deceased was of a Kumbhar community and the accused from washerman community. Page 25 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025
NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined On 15.10.1997, there was quarrel between husband and wife for purchasing domestic household articles and the husband denied the wife to bring household things and told the wife that if she wanted to die, she may do so by burning herself and therefore the deceased on her own poured kerosene and burnt herself by a match stick. She then tried to douse the fire by falling in the water tank of neighbour Santokben. The husband brought the injured to the hospital. The cause as was shown was the domestic quarrel which had occurred. Exh. 55 is recorded at first point of time immediately as stated by PW-12, when he was there at the hospital duty as unarmed Police Jamadar, he was informed by the RMO and had recorded the Janva Jog Entry No.349 of 1997 and after sending the requisition for the registration of the accidental Janva Jog Entry at Exh. 54, he recorded the complaint. The witness stated that it was recorded at about 10:45. He had received the yadi from police station officer, Mahuva at about 10:30. Exh. 55, however, does not note the time and place of taking the complaint, admitted fact is that PW-12 was on duty at the hospital and the deceased was also brought there for treatment. The record also brings the fact that none of the family Page 26 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined members of the deceased were present with the injured. No statement of parents or brother and sisters of the deceased were recorded nor any statement of the family members of the accused have been recorded. However, it comes on record that the place of offence has been identified by the elder brother of the accused Ramesh Mohanbhai. The complaint was recorded after the information of the RMO which could be considered as immediate in point of time. This complaint could be considered as the DD of the deceased. The fact noted that it was an incident of that date 15.10.1997, where the deceased and the accused had a quarrel for purchase of domestic household items, where it is alleged that the husband said that if she wanted to die, she could do so by burning herself.
12. Section 32 of the Indian Evidence Act, 1872 deals with the statements of relevant facts made by a person who is dead. Clause (1) of Section 32 makes the statements of the person as to the cause of his death relevant. Clause (1) of Section 32 is reproduced herein under:
"When it relates to cause of death. - When the Page 27 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
13. In Muthu Kutty v. State by Inspector of Police, T.N., (2005) 9 SCC 113, it has been observed as under:
'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 Page 28 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 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 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.' Page 29 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined
14. Herein the present matter the statement is made by the deceased before her death to the Police Jamadar as well as before the Executive Magistrate.
15. In State of Maharashtra v. Sanjay [(2004) 13 SCC 314 : 2005 SCC (Cri) 231] it was observed:
(SCC p. 322, para 17) "It is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the court in its truthfulness and correctness (vide the observations of a five-Judge Bench in Laxman v. State of Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri) 1491] ). Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, 'great caution must be exercised in considering the weight to be given to this species of evidence' (SCC p. 713, para 3). When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record. Adopting such approach, we are unable to place Page 30 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined implicit reliance on the dying declarations, especially when the High Court felt it unsafe to act on them."
16. Yet again in Muthu Kutty v. State [(2005) 9 SCC 113 : 2005 SCC (Cri) 1202] while summarising the law, the Court, inter alia, stated: (SCC p. 121, para 15) "15. (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of 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] .)"
17. The complaint before the police does not bring any fact that there were constant quarrels between the couple, the fact that the accused was regularly beating the deceased, was not reflected in the complaint. The DD of the Executive Magistrate refers such fact. Exh. 34 - DD is in a question answer form in a cyclostyle paper. The Certificate of the Doctor is also in a cyclostyle form. The Executive Magistrate notes that it was recorded on 15.10.1997 and on the question that what had happened Page 31 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined and why she was in the hospital, the answer notes that her husband was daily beating her and therefore, she had tried to burn herself by pouring kerosene and that she had sufference from her husband.
17.1 Exh. 34-DD does not note of the incident which had occurred in the morning referring to the quarrel between the husband and wife. What was the immediate cause on that day of 15.10.1997 of burning herself does not get clear by the document DD Exh. 34. What had instigated her to pour kerosene on herself by self immolating herself on 15.10.1997, does not get transpired from the DD Exh. 34. The incident is noted to have occurred in the morning at 9:30 at her house. But what had triggered that incident on that day does not get clear from DD. The fact of the husband beating the wife daily is not corroborated by the statement of any neighbours who have been examined as Ravjibhai Chhaganbhai PW-1, Rambhaben Shamjibhai PW-2, Bhavnaben Premjibhai PW-3, Januben Chhaganbhai PW-
4. The complaint Exh. 55 refers that the deceased had jumped in the water tank of Santokben who was a neighbour but Santokben has not been examined in the matter.
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NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 17.2 The complaint of the injured before the police and the DD of the injured before the Executive Magistrate has to be examined to analyze the trustworthiness and reliability before accepting the statement as evidence.
18. PW-9 - Anvarkhan Karimkhan Pathan who was a homeguard javan was examined as PW-9 was called by the police on 15.10.1997, the panchnama was noting the physical condition of the injured, PW-9 denied the suggestion that he was called at the burns ward, Mahuva General Hospital. He identified his signature on the panchnama Exh.41. In the cross-examination, he was declared hostile by the APP. The fact was drawn to the notice of the panch that after removing the cover from the body of the injured, burns injuries on the left side of the face, as well as on the chest, and on the thighs of both the legs till the knees, the upper portion of the skin were noted and medicine was applied on it. The fact which have been brought on record by way of the panchnama Exh. 41 discloses that burns injury was even on the left side of the face.
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NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined
19. But the fact which becomes noticeable is that from 15.10.1997 till the inquest panchnama which was drawn on 29.10.1997, the injured was suffering because of the burns and was under treatment.
20. PW-8 - Dr. Kalpnaben Dilipkumar Chauhan was shown the requisition Exh. 36 for the post mortem by the Panel Doctor. The police had brought the inquest panchnama Exh. 21 and the report and has placed that in evidence. In the post mortem report at Exh. 38, the cause of the death was shown as "cardio-respiretory arrest due to hypovolumic shock c Septicemia following - Burns."
20.1 The condition of the skin was noted of full thickness and burns about 80%. There was no signs of pregnancy in the uterus which has been referred by Dr. Kalpana in her deposition. Dr. Kalpana could not recollect the injuries on the face of the patient and denied the suggestion that since the person was burned on the part of the face so was not in a position to talk, and denied the suggestion that because of septicemia owing to burning, she was in an unconscious state. Page 34 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025
NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 20.2 On analysis of the evidence of the Doctors on record, it cannot be concluded that since the injured was 80% burnt, she would not be in a position to talk.
21. However the Executive Magistrate evidence does not bring ring of truth which this court wants, to come to a conclusion that the DD could be read in evidence. Executive Magistrate could not even identify the Doctor who had signed the DD. The DD does not inspire confidence, and it cannot be stated to be proved in absence of the Doctor who had certified the DD before the Executive Magistrate.The DD was recorded within 13 minutes. Executive Magistrate did not even had the knowledge about the condition of the patient nor of the burns ward. As observed there were no parents or relatives of the injured present in the ward to be removed. The deposition of Executive Magistrate appears to be in mechanical manner. It does not appear that Executive Magistrate had any genuine interest in recording of DD 21.1 The complaint Exh. 55 was immediately recorded by the police Jamadar who was in a hospital duty, Mahuva becomes believable as it was recorded on Page 35 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 15.10.1997 immediately when she was brought to the hospital, the Doctor informed the police on duty and the statement has been recorded. Exh. 55 does refer to the love marriage of seven months but it does not refer to any continuous quarrel between the deceased and the accused or any daily beatings by the accused to the deceased. The incident as noted is of the morning 9:30 to 9:35 occurrence where the deceased stated that the accused denied to bring the household articles and told her that if she wanted to die she can do so by burning herself. The complaint recorded by the police can be considered as DD in the present case.
22. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] it was held that:
"the statement of a deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can be taken as a dying declaration after the death of the injured if he was found to be in a fit state of health to make a statement. If the dying declaration is recorded by an investigating officer the same can be relied upon if the evidence of the prosecution witness is clearly established beyond reasonable doubt that the deceased was conscious and Page 36 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined he was removed to the hospital and he was in a fit state of health to make the statement."
23. The accused was tried under Section 498A and Section 306 of I.P.C. where by the Judgment, he came to be convicted under both the sections.
24. The necessary ingredients to prove Section 498A would be 'cruelty' in terms of the section 'To prove the charge of Section 498A of IPC, the prosecution has to establish that the husband or his relative subjected such woman to cruelty. The term 'cruelty' is explained in two parts of Section 498A.
The first part speaks of willful conduct of a nature that is likely to drive the woman to commit suicide or to cause grave injury or danger to the life, limb or health, either physical or mental of such woman. The second part of Section 498A of IPC provides for harassment of a woman with a view to coercing her or any person related to her to meet unlawful demand for any property or valuable security on account of these failure or any person related to her to meet such demand. Section 498A of IPC does not attract every harassment or every type of cruelty. The prosecution has to establish that the beating and harassment of the deceased were with a Page 37 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined view to force her to commit suicide or to fulfill the illegal demand of dowry.'
25. In the case of State of W.B. v. Orilal Jaiswal reported in (1994) 1 SCC 73, it was held by Hon'ble Supreme Court as under:
"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 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 Page 38 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined [(1950) 2 All ER 458, 459 : 66 TLR (Pt. 2) 589] 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."
26. To prove the offence under Section 498A of I.P.C. the prosecution has to establish that the husband subjected the deceased woman to cruelty as defined under Section 498A. As noted in the referred judgment the requirement of proof beyond reasonable doubt does not stand altered even after introduction of principle of presumption as noted under Section 113A of the Evidence Act.
27. In the case of Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh (supra), the Hon'ble Supreme Court while referring to the provisions of Section 107 of IPC notes in para 7 as under:
"Section 107 I.P.C defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in Page 39 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing."
27.1 Further while making a reference of the case of Swami Prahaladdas Vs. State of M.P. And Another reported in (1995) supp. 3 SCC 438 observing the charge for the offence under section 306 on the ground that the appellant during the quarrel said to the deceased 'to go and die', the Hon'ble Supreme Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not prima facie enough to instigate the deceased to commit the suicide.
27.2 In the case of Ramesh Kumar v. State of Chhattisgarh reported in (2001) 9 SCC 618, Supreme Court while considering the charge framed and the conviction for an offence under Section 306, I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on that day of occurrence she had a quarrel with her husband who had said that she could go wherever Page 40 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused the Court said:
"A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
27.3 The Hon'ble Supreme Court by making a reference of both the cases of Swami Prahaladdas Vs. State of M.P. And Another (supra) and Ramesh Kumar v. State of Chhattisgarh (supra) had made a final observation as under:
".....Even if we accept the prosecution story that the Page 41 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined 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 unadvisable 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 in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional......."
28. The DD before the Executive Magistrate does not become clear as it does not inspire confidence. However, the complaint before the Police Jamadar becomes clear as DD, as it can be said that it was taken immediately on the complainant being admitted in the Hospital and there was no scope of any false implication.
29. The complaint was further investigated by Mohhamadbhai Bapubhai Qureshi, PW-11 who was PSI at Mahuva on 15.10.1997. The R.M.O. order Ex-58 was placed on record. He had visited the civil hospital and had recorded the panchnama of the physical condition of Prabhaben Shantilal in presence of Panchas which was recorded at Exh.-41. The PW-11 records that at that Page 42 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined time, the injury on Prabhaben was on the left side of the face, chest and the thighs of both the legs till the knees. He further stated that on 15.10.1997, at about 18:00 hours, the panchnama of the place of incident was drawn and accused brother Rameshbhai Mohanbhai had showed the place at Janta Plot No.1. Stench of kerosene was noted at the place. The burnt pieces of blouse and saree was noted.
30. The PW-11 Mohhamadbhai Bapubhai Qureshi recorded the statement of witnesses Ravjibhai Chhaganbhai, Rambhaben Shamjibhai, Bhavnaben Premjibhai, Januben Chhaganbhai and others. The accused was arrested on 23.10.1997.
31. After the death of the complainant, the application was sent to the Judicial Magistrate for invoking the sections and after his transfer to Dhota of PW-11, the further investigation was handed over to constable Nenama. The witnesses affirmed that during the course of panchnama they had not seized the primus(stove) or other instruments carrying kerosene nor the cloths with the smell of kerosene. He has not recorded the statement Page 43 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined of Bhagwanbhai and Samjuben, the father and mother of the deceased Prabhaben.
32. The neighbours whose statements were recorded all do not support the prosecution case, however certain facts in their testimony becomes relevant and noticeable to believe the complaint as DD 32.1 Ravjibhai Chhaganbhai, PW-1 is the hear-say witness as he has not seen the incident. He heard from the people that the injured had fallen in the water tank of their house to douse herself and he came to know from the people that the son of Dhobi Mohanbhai had quarreled, with regard to the purchase of the household domestic items and the wife had asked him to bring the things and to that the accused has replied that he was not going to bring it and if she wanted to die, she can do so by burning herself, but he denied of hearing that there were constant quarrels between the husband Shantibhai, the accused and wife - Prabhaben and for that reason the parents and the brothers were fed up and they had left the place.
32.2 This fact also requires to be appreciated that Page 44 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined PW-1 who is a neighbour and he was also knowing the father of the accused. He had gone in the early morning for labour work and had come back in the evening and he being a neighbour came to know about the incident. The witness PW-1 has not supported the case of continuous quarrel between the injured and the deceased nor had heard that because of their quarrel, the parents and brother of the accused had left the house. The witness was declared hostile, though has not supported the prosecution case. The relevant explanation can be used for corroboration to believe the complaint as DD before the police.
32.3 In the same way, Rambhaben Shamjibhai, PW- 2 has not heard of any quarrel between Prabhaben and Shantibhai but had affirmed the fact that she had jumped into the water tank of the neighbour Bhavnaben. The deceased and the accused were staying opposite to her house and had affirmed of their love marriage, but never heard of any quarrel between them. 32.4 Even Bhavnaben Premjibhai PW-3 has not supported the prosecution case but had denied of the injured dousing herself by jumping in the water tank Page 45 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined belonging to her and she denied that at that time she was washing clothes near the water tank. She even denied of deceased telling her while falling in the tank that the husband of the deceased did not purchase things for her house and he wanted her to die and instead of dying out of hunger she would prefer to die by burning. The witness turned hostile and in the cross- examination she stated that she has never heard of the quarrels of the accused and the deceased. 32.5 Januben Chhaganbhai - PW-4 has denied of any such incident and denied that on the date of the incident, she was washing utensils and also denied of hearing any quarrel between the deceased and the injured for purchase of the household items and the accused suggesting her to die by pouring the kerosene on her. She denied of deceased falling in the water tank and also denied of the hearing the shouts of Bhavnaben, and thereafter reaching the place. She have no knowledge of the reason of Prabhaben burning herself.
33. On oral appreciation of the evidence, the immediate cause which was brought to the notice of the police jamadar was that on 15.10.1997, the deceased had Page 46 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined quarrel with her husband and the husband denied to bring the household items and while refusing, he even suggested that if she wanted to die she can do so by burning herself. As has been observed in the case of Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh (supra), during the quarrel, if the accused told the deceased to go and die or asked her in the fit of anger to commit suicide would not constitute the ingredients of instigation. It would be in a fit of anger and emotion such utterance would have been made. A quarrel between the husband and wife without any such intention of instigation or without any intention of the wife taking such an ultimate step of ending her life by committing suicide, would not bring the case to fall under Section 107 of I.P.C. to be considered as instigation as abetment to suicide. Considering the definition of abetment under Section 107 of I.P.C., the charge and conviction of the appellant for an offence under Section 306 of I.P.C. is not sustainable nor any case of cruelty as expressed under Section 498A is proved.
34. In view of the matter, to the reasons given above, Page 47 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025 NEUTRAL CITATION R/CR.A/760/2007 JUDGMENT DATED: 25/08/2025 undefined the Judgment and order of conviction and sentence dated 21.03.2007 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Bhavnagar camp, Mahuva in Sessions Case No.110 of 1998 is set aside. The accused is acquitted of all the charges. Record and Proceedings to be sent back to the concerned trial Court forthwith.
(GITA GOPI,J) MAYA Page 48 of 48 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 21:47:26 IST 2025