Gujarat High Court
Shantuben W/O Lalji Nanji vs State Of Gujarat on 8 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 388 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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SHANTUBEN W/O LALJI NANJI & ORS.
Versus
STATE OF GUJARAT
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Appearance:
DHARMESH D NANAVATY(2396) for the Appellant(s) No. 1,2,3
MR ROHAN KUMAR RAVAL APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/09/2025
ORAL JUDGMENT
1. The present three appellants have challenged the judgment and order of conviction and sentence passed on 23.02.2005 by Second Extra Assistant Judge, Veraval in Sessions Case No.25/2002, whereby all three women accused came to be convicted under Sections 498A, 306, 504 read with Section 114 of Indian Penal Code (for short 'IPC') and were ordered to undergo three years Page 1 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined simple imprisonment for the offence punishable under Section 498A read with Section 114 of IPC and fine of Rs.1,000/- was ordered with default stipulation that in failure to pay the fine amount, further six months simple imprisonment. 1.1 While under Section 306 read with Section 114 IPC, five years simple imprisonment with fine of Rs.2,000/- and in failure to pay the fine amount further six months simple imprisonment. 1.2 For the offence under Section 504 read with Section 114 IPC, one year simple imprisonment with fine of Rs.500/- and in failure to pay fine further six months simple imprisonment was ordered. All the sentences were ordered to run concurrently with the benefit of set off granted.
2. The charge against all three accused, as elder sister-in-law (Jethani), sister-in-law (Nanad) and mother-in-law was that all the accused often would verbally abuse deceased Page 2 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined Geetaben stating that she was loitering here and there and was not taking care of the children and saying so, they were physically and mentally subjecting her to cruelty, and with the alleged cruelty had abated her suicide, therefore, Geetaben by pouring kerosene on her body ablazed herself and committed suicide.
3. Learned advocate Mr. Dharmesh D.Nanavaty for the appellants submitted that the conviction is solely based upon dying declaration, which in case of 90% of burns was required corroborative piece of evidence and thereby, the order of conviction and sentence passed against the appellants is bad in law and is required to be set aside.
3.1 Learned advocate Mr. Nanavaty submitted that P.W.3 - Doctor, who performed the P.M. Report has admitted 90% of burn injuries and the condition of victim being critical and that she was Page 3 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined administered painkillers as well as injection, thus, Mr. Nanavaty stated that would not be in a position to depose before the Executive Magistrate in a regular course for dying declaration to be considered as genuine and truthful.
3.2 Learned advocate Mr. Nanavaty further submitted that the conduct of the Doctor was also required to be noted since the endorsement made also creates doubts, as such endorsement does not disclose actual condition of the victim during the time when the dying declaration came to be recorded.
3.3 Mr. Nanavaty, learned advocate submitted that if at all dying declaration is also to be considered as true, then also the facts, as recorded of the deceased would not fall under the definition of cruelty to consider as an offence under Section 498A IPC, or to consider it as an Page 4 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined abetment to suicide.
3.4 Advocate Mr. Nanavaty submitted that as per the facts, which came on record by way of depositions of the witnesses, the deceased was staying separately along with two children and husband. The younger one was 15 days old and therefore, the mother and sisters-in-law were telling the deceased to take care of the child, would not be considered as cruelty because it would be very normal for in-laws to tell daughter-in-law to look after newly born baby, where the second delivery was at the matrimonial house.
3.5 Advocate Mr. Nanavaty further stated that the allegation of continuous cruelty does not stand proved since deceased was not staying with family members, more specifically with the accused and the deceased had her own independent way of life, which itself would prove that there Page 5 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined was no such reason for the appellants to subject her to any sort of cruelty though, it had come on record that they were in the same neighbourhood. 3.6 Advocate Mr. Nanavaty has relied on the judgment of State of Gujarat V. Sunilkumar Kanaiyalal Jani, passed by Division Bench of this Court on 29.02.1996 in Criminal Appeal No.1475 of 1985, to submit that merely the fact that husband was treating the wife with cruelty would not be sufficient to establish abetment, and that prosecution is required to prove compelling or alarming circumstances as leaving the victim with no option but to commit suicide, there must also be knowledge and intention relating to crime and proximate assistance.
4. Countering the arguments, learned APP Mr. Rohan Kumar Raval referring to the observation of the learned Trial Court Judge submitted that on appreciation of evidence, the learned Trial Court Page 6 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined Judge was of the view that the allegations, which were made against the victim were amounting to doubting her character and that was the cause for abetment to suicide, which would definitely fall under the definition of cruelty. 4.1 Learned APP Mr. Raval submitted that the Executive Magistrate has proved dying declaration, which has been believed by the learned Trial Court Judge and further the mother of the deceased has also corroborated the statement, where such statement before the mother should also be considered as dying declaration. 4.2 Mr. Raval, learned APP stated that that all the accused were residing beside the house of deceased and were regularly harassing the victim and subjecting her to cruelty, even in a situation where she was having a newly born child of 15 days, which she could not bear it and had to take the ultimate step of taking her life. Mr. Page 7 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined Raval stated that the learned Trial Court Judge has rightly believed the statement of deceased and thus, supporting the judgment of the learned Trial Court Judge, learned APP has urged to upheld the conviction and sentence.
5. On hearing both the sides, perused the record and the depositions of the witnesses. P.W.1 - Samatbhai Bachubhai was declared hostile as well as P.W.2 - Dahyabhai Harjibhai did not support the prosecution case, hence, he too was declared hostile. However, the fact which becomes noticeable in the testimony of P.W.1, who was elder father-in-law of the deceased, is that the marriage of the deceased with Maganbhai was performed five to seven years ago. They have two children. The elder daughter was five years old and the son was fifteen days old. On hearing the outcry, he had gone at the house of deceased - Geetaben and saw her burned. The elder father-in- law and family members had taken the injured to Page 8 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined the hospital in a rickshaw. He stated that he does not know any further facts. In the same way, P.W.2 only stated of injured - Geetaben being taken to the hospital and has no personal knowledge of the matter and could not even depose as to how she got burned.
5.1 P.W.3 is Doctor Haresh Mohanbhai Jethva, who was a Medical Officer at Una Hospital on 31.12.2001, where he had conducted the postmortem of deceased Geetaben Maganbhai resident of Kodinar. While deposing about the condition of the deceased, he stated that he had seen postmortem lividity on the back of corpus, eyes were closed and had not found any injury on any part of the body, while noted that it was 90% burnt. The postmortem notes the cause of death as cardio respiratory arrest due to combined effect of hypodermic shock and neurogenic shock. Page 9 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025
NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 5.2 In the cross-examination, the Doctor affirmed that in the postmortem note, he has not referred to the degree of burn injury at the different parts of body. He affirmed that because of painkillers and injections, the patient would be under the influence and would therefore be sub-conscious, and also stated that the persons who gets burned, the brain would find collection of water and there are all chances that victim may loose mental equilibrium and would start stating inconsistent things, but he clarified that such incident would not always be possible. He affirmed that because of the injury the mind would get congested and there would have the possibility of loosing mental health.
6. In background of evidence of the Doctor, the deposition of Executive Magistrate (P.W.4) - Kritikumar Kantilal Pandya, would require an observation. The postmortem was conducted on Page 10 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 31.12.2001, while the Executive Magistrate had recorded the statement on 30.12.2001 in the afternoon at 4:30 p.m., who stated that at 4:15 p.m. when he was in his office he received a requisition from Una Police Station for recording of dying declaration at Community Health Center, Una and thereafter, he visited the Government Hospital and met Medical Officer Shri Bloch. He got identification of the patient through the Doctor. The Executive Magistrate stated that the Doctor in the D.D. Form had put an endorsement noting that Geetaben was conscious. The Executive Magistrate stated that as soon as he started recording dying declaration the Doctor left the place. He recorded the D.D. in question and answer form.
6.1 The Executive Magistrate stated that the victim informed him to question No.9 that her mother-in-law - Shantokben, sister-in-law (Nanad)
- Savitaben and sister-in-law (Jethani) - Page 11 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025
NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined Shantuben Laljibhai, who were staying beside her house and they had rebuked her and she felt offended therefore, she poured kerosene on her body and burned herself. The victim also stated that her husband had gone for diamond polishing work at Bhavnagar. The dying declaration was placed in evidence at Exh.27.
6.2 In cross-examination, the Executive Magistrate stated that when he had gone to the hospital, the Doctor was in his chamber. He had taken the printed form of dying declaration and Doctor in his chamber had given the endorsement that the patient was conscious. The Executive Magistrate denied the suggestion that condition of the patient was serious and therefore, was not in a position to speak. He also denied the suggestion that since injured Geetaben was in pain because of treatment, therefore, she was in a drowsing condition. The Executive Magistrate denied the suggestion that D.D. was recorded as Page 12 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined per suggestion of family members of the deceased. 6.3 The time period for recording of D.D. was for about fifteen to twenty minutes and after conclusion, the thumb impression was taken on it. Doctor, who had placed endorsement on Exh.27 had not been examined. However, the dying declaration, as recorded does not create any suspicion. It is not necessary that without endorsement of Doctor, the dying declaration recorded by the Executive Magistrate should not be believed.
7. The principle has been laid down in various Supreme Court judgment 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 Page 13 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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 Page 14 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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 Page 15 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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 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 Page 16 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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 Page 17 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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 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 Page 18 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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.Page 19 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025
NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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].
7.1 In view of the observations, which have been laid down in the case of Laxman (supra), which has been drawn on examining earlier judgments of the Supreme Court, and the other judgments referred above there is no reason to doubt the dying declaration recorded by the Executive Magistrate.
7.2 In the case of Atbir Vs. Government of NCT Of Delhi, (2010) 9 SCC 1, the principles governing the credibility of D.D. 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.Page 20 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025
NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined
(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 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 Page 21 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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." 7.3 The immediate cause to commit suicide is that the appellants as mother-in-law and sisters- in-law were taunting her since, she could not bear it, she had committed suicide by self- immolation.
8. The dying declaration does not clarify as to what were the words used for taunting or rebuking the victim. The exact utterance of the accused has not come on record. The charge, as was framed that the accused were rebuking her on the ground that she was loitering around and was not taking care of the child, does not get reflected in the dying declaration. Further, the observation of the Trial Court Judge that the appellants were abusing, rebuking and doubting her character, are Page 22 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined also not reflected in the dying declaration. The learned Judge observation is not supported by the depositions on record, nor on the basis of dying declaration, which the learned Judge found it to be true and believable. The self-observation of the learned Judge without any support from the evidence cannot be believed and cannot be relied upon for conviction. Every observation should be in accordance to the analysis of the evidence on record, where none of the witnesses have uttered of any such conduct of the accused, who by rebuking the her were doubting her character. 8.1 The father of deceased has been examined as P.W.5 - Naranbhai Tapubhai. He has a different story to say. According to the testimony of the father, it was the father-in-law, who had poured kerosene on the daughter-in-law, while she was cooking. While such statement was not supported by mother or the uncle of the deceased. It appears that father was suffering from some Page 23 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined mental ailment, which the mother examined as P.W.7, stated that it was because of mental disturbance of the father on account of death of daughter. The father initially stated that whenever the daughter used to visit them, she had never said anything against in-laws and also stated that he had not known anything from the daughter, and the allegation of the father-in-law pouring kerosene was on his own, and Investigating Officer (P.W.12) - Rameschandra Bhikamdas Nimawat stated that such statement has not been given by P.W.5 - Naranbhai Tapubhai.
9. The uncle of deceased Devjibhai Tapubhai Kotadiya - P.W.6 stated that Geeta was her niece and she was married to Maganbhai Lakhmanbhai at Avalvad. The husband was diamond polisher at Bhavnagar. After her marriage, visited their house and one and half year prior to the incident she came there and had informed that Sasu, Nanad and Jethani were often rebuking her. Page 24 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025
NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 9.1 The deposition of uncle P.W.6 further states that on the date of incident when he had visited Una Government Hospital, he had met victim Geeta, whereby again the victim stated that the mother- in-law, sister-in-law (Nanad) - Savitaben and sister-in-law (Jethani) - Shantuben Laljibhai, were subjecting her to harassment and cruelty and were rebuking her and therefore, she had on her own poured kerosene and committed suicide.
10. The evidence of P.W.6 though, relates to one and half year prior to the incident and also on the date of incident, the only bare statement is of rebuking her, while the cause of taunting the victim does not get reflected in the deposition of uncle. The uncle - P.W.6 has also stated of deceased having one daughter and fifteen days old son. The birth of the daughter was at the parental house, while the son's delivery was at the matrimonial house. He has also affirmed that Page 25 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined since last one and half year the victim Geetaben was living in a separate house. P.W.6 alleged that the family members once or twice would come to her house. He affirmed that in the second delivery, the food and other facilities were provided by the parents-in-law. 10.1 This evidence of uncle - P.W.6 would rather clarify that the parents-in-law were taking care of the daughter-in-law during the time of second delivery. The general statement of the appellants telling the victim of not loitering around and instructing her to take care of the child, who was fifteen days old, would not be considered as cruelty, as this would be instruction out of concern to the daughter-in-law, who had recently given birth to a new born.
11. The mother examined as P.W.7 - Nanbai Naranbhai has also reiterated the same thing. When she has visited the victim at Una Government Hospital Geeta was conscious and the daughter had Page 26 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined informed her that Sasu, Nanad and Jethani were harassing her and that she could not bear it and therefore, she had poured kerosene and committed suicide. What kind of harassment was there does not become clear on record. Her testimony also suggests that deceased had visited her one and half year prior to the incident and the evidence of P.W.6 as uncle, which is also supported by the evidence of the mother that the accused were staying in the neighbourhood. The evidence also suggests that the parents-in-law were taking care of the daughter-in-law at the time of delivery. The parents appears to have no contact from the past one and half year prior to the incident. 11.1 The mother stated that the appellants were often taunting and rebuking her telling that the husband is not at home and she is loitering around. But, this allegation which was made, does not appear to be immediate act of any of the appellants, as mother - P.W.7, stated that such Page 27 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined facts were informed to her when deceased had met her one and half year prior to the incident. The same could not be the cause at the time of suicide, since she was staying separately from the parents-in-law and sisters-in-law. The mother had affirmed that after the delivery for about a month or one and half month, generally, the new born mother would not be allowed to go out of the house.
12. Kamlaben Devjibhai - P.W.8 is the niece of the deceased, who also has given the same version, as was narrated by P.W.6. The niece has not gone in details, but as per her testimony the appellants were rebuking her and were verbally abusing and harassing her. P.W.8 has further stated that she was rebuked by the appellants, as they were alleging that she was loitering around and thereby the deceased, her aunt, got offended as she committed suicide.
12.1 P.W.8 further stated that when they Page 28 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined visited the hospital they all were near her, at that time, when they inquired from Geetaben, she had replied that from her Sasu, Nanad-Savita and Jethani-Shantuben, she was suffering cruelty and therefore, committed suicide.
13. P.W.9 is elder brother-in-law of the deceased. According to him, deceased had two children and when she died the son was fifteen days old. He stated that the female members of the family may have scolded the deceased since she would leave fifteen days old child at home and go out of the home. He denied of having heard or seen of any mental or physical cruelty to deceased - Geetaben by the accused, and stated that during the delivery Geetaben was taken care by Sasu and Nanad. According to P.W.9, Shantuben is not real Jethani and that her house is away from that of the deceased.
14. P.W.10 is P.S.O., who had drawn the Police Station Diary Entry No.15 on the basis of D.O. Page 29 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined No.749/01, which he received from P.S.O. - A.A. Patel at 14:30 hours of 30.12.2001. The entry was produced at Exh.36. After receiving the complaint, he had sent the same to P.S.O. Una. 14.1 In the cross-examination, P.S.O. stated that he has visited the hospital and met the Doctor. The treatment was in progress, at that time, Geetaben was in serious condition, however, stated that she was in a position to speak. 14.2 P.S.O. - Vanrajsinh Nanbhai Sarvaiya (P.W.11) stated that on 30.12.2001, he was working as P.S.O. at Kodinar Police Station and he received complaint from Una Police Station of complainant deceased Geetaben, which he registered at 22:30 hours, and after the offence was registered he made a station diary entry and further investigation was sent to Mahila Police Station. The complaint was recorded under Form No.154 as C.R. No.II-181/2001. The station diary entry was placed by him on record at Exh.39. As Page 30 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined per cross-examination, the complaint which was recorded of deceased - Geetaben at the hospital was produced before him by P.W.10 - Virabhai.
15. The complaint at Exh.35 of the deceased Geetaben notes that she was staying separately from father-in-law and mother-in-law. Her matrimonial life was of four years and out of the wedlock she has a son, who was fourteen days old and her daughter was aged about two years. Her husband was in diamond polishing work at Bhavnagar. The victim deceased stated that on 30.12.2001 at about 12 O' clock, she was at home and her mother-in-laws - Shantokben, sister-in- law - Savitaben and sister-in-law (Jethani) - Shantuben Laljibhai had come to her house and verbally abused her and told her that her husband Magan was out for work and that she was loitering here and there. According to the complainant, often all the three were rebuking and taunting her, and since they were mentally and physically Page 31 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined harassing her, she could not bear harassment and being offended she had poured kerosene on her body and ablazed herself by lighting match stick, therefore, she was burned severely on the whole body and her father-in-law - Lakhmanbhai and other people had taken her to the hospital in a rickshaw.
16. This incident, if at all is believed with the immediate cause as noted in the complaint (Exh.35), which also become believable as a dying declaration, and if compared with the dying declaration recorded by the Executive Magistrate, the victim has not stated before the Executive Magistrate that all three had made such an utterance alleging the victim that she was loitering around in absence of the husband. However, in dying declaration she has alleged of all the appellants taunting her. The complaint and the dying declaration, if read together, then also it cannot be said that the immediate Page 32 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined utterance of the appellants for the cause to commit suicide would fall under the definition of cruelty. The victim had delivered a child fifteen days prior to the incident and fact on record clearly comes to prove that the parents-in-law had taken care of the victim during the delivery and were supplying food and other materials during post delivery period. Though there is nothing coming on record, nor any medical evidence is there on record to conclude of Postpartum depression (PPD), which occurs to women during pregnancy or in the year after child birth. Our society as yet has not shown any consciousness to examine the mother after delivery for any signs of PPD. There are common symptoms of emotional changes, behavioral changes, difficulty in bonding with the baby or having thoughts of harming the baby. 16.1 Any statement by the in-laws asking victim to remain at home during this period of post Page 33 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined delivery to look after the new born child could not be considered as cruelty, which could be stated to be as an instigation in terms of Section 107 of the IPC as an abetment.
17. In the case of Raj Rani (Smt) v. State (Delhi Administration) reported in (2000) 10 SCC 662, it was held as under:
"4. We have gone through the entire writing contained in the suicide note. It makes a serious castigation against her husband for being an addict to narcotic drugs. Then she made a general allegation against her mother-in-law and in a lesser degree towards the appellant. But unfortunately she did not advert to any concrete instance which can be termed as cruelty as defined in Section 498- A of the Penal Code, 1860. The utterances said to have been made by the appellant towards the deceased were to her chagrin and she had taken them very seriously and in the suicide note she described such utterances as not worthy of reproduction.
5. It is not enough that the deceased felt those words hurting, it must be subjected to judicial scrutiny and the Court must be in a Page 34 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined position to hold that those words were sufficiently hurting enough as to amount to "cruelty" falling within the parameters fixed in Section 498-A of the Penal Code, 1860. The area remains grey and vague. Not a single word said to have been spoken by the appellant as against the deceased had been put on record by the deceased in the suicide note in spite of the fact that the said note is a very lengthy letter running into several paragraphs. The tenor and language of the suicide note would reflect that she was not an illiterate lady. As the Court is rendered helpless to judge whether the words which the deceased heard from the appellant would amount to cruelty, it is far from possible for the criminal court to hold that she is guilty of the offence of cruelty as envisaged in the section. It is also to be pointed out that the deceased did not mention a single deed which the appellant would have done against her. All that is said against the appellant was that she spoke something which she took as objectionable.
17.1 The Hon'ble Supreme Court in the case of S.S. Chheena Vs. Vijay Kumar Mahajan, [2010 (12) SCC 190] in regard to the abetment has held as under:Page 35 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025
NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined "25. 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. The intention of the legislature and the ratio of the cases decided by this Court is 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 that act must have been intended to push the deceased into such a position that he committed suicide."
17.2 In the case of State of West Bengal Vs. Orilal Jaiswal, [(1994) 1 SCC 73], the Hon'ble Supreme Court has cautioned in Para-17 as under:
"17. ... The Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, Page 36 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined 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...."
17.3 In the case of M. Mohan v. State Represented by the Deputy Superintendent of Police, [AIR 2011 SC 1238 : (2011) 3 SCC 626], the Hon'ble Apex Court has made the following observations regarding the ingredients of Section 306 IPC, referring to the word 'suicide', which reads thus:
"If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word 'suicide' has not been defined. The word 'suicide' would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Edition, p.686, "A finding of suicide Page 37 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined must be on evidence of intention. Every act of self destruction is, in common language described by the word 'suicide' provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient."
17.4 In the case of Mahendra K.C. v. State of Karnataka and another, [(2022) 2 SCC 129], it has been held by the Hon'ble Supreme Court that the essence of abetment lies in instigating a person to do a thing or the intentional doing of that thing by an act or illegal omission. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. A word uttered in the fit of anger or Page 38 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined emotion without intending the consequences to actually follow cannot be said to be instigation. 17.5 The Hon'ble Supreme Court in the case of State of A.P. Vs. M. Madhusudhan Rao [2008 (15) SCC 582], has held that not every kind of harassment would amount to 'cruelty' within the meaning of provision to constitute the offence punishable therein. Every case has to be analysed on its individual facts to assess whether the act of the accused persons constitutes cruelty. Further, cruelty can either be mental or physical, and it is to be seen on the facts of each case.
18. In view of the facts on record and the principle laid down in the referred judgments, the observation of the learned Judge becomes erroneous on record, since nothing has been clarified that the parents-in-law and more specifically, appellants were doubting her Page 39 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined character, rather it could be termed as an instruction from the appellants to take care of the child, who was fifteen days old, where actually the parents of the deceased were not present with the deceased post delivery of the child, and even by such instruction of the appellants the deceased get offended, then it should be considered as sensitiveness of the deceased herself.
18.1 In the case of Ude Singh v. State of Haryana, [(2019) 17 SCC 301], the Hon'ble Supreme Court has held as under:
"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for cogent and Page 40 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of the accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit Page 41 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined suicide, the case may fall within the four- corners of Section 306 IPC. If the accused plays an active role in tarnishing the self- esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide..."
19. The dying declaration as well as complaint on record does not disclose that the act of the appellants would fall in the definition of cruelty, as laid down under Section 498A, to draw presumption, as under Section 113A of the Evidence Act to consider as abetment to suicide. The prosecution had failed to prove the case of Page 42 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025 NEUTRAL CITATION R/CR.A/388/2005 JUDGMENT DATED: 08/09/2025 undefined abetment to suicide by the appellants.
20. In the result, on analysis of the evidence, the judgment of conviction and sentence dated 23.02.2005 passed by Second Extra Assistant Judge, Veraval in Sessions Case No.25/2002 is set aside. The appellants are acquitted from all the charges. Bail bound stands discharged. Registry is directed to send the Record and Proceedings back to the concerned Trial Court forthwith.
(GITA GOPI,J) Pankaj/2 Page 43 of 43 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Fri Sep 12 2025 Downloaded on : Sat Sep 13 04:39:37 IST 2025