Gujarat High Court
Hoorbai W/O. Ismail Jalalbhai Sandhi vs The State Of Gujarat on 14 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1870 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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HOORBAI W/O. ISMAIL JALALBHAI SANDHI & ANR.
Versus
THE STATE OF GUJARAT
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Appearance:
MR SIKENDAR SAIYED ADVOCATE FOR MR EE SAIYED(725) for the
Appellant(s) No. 1,2
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/08/2025
ORAL JUDGMENT
1. The challenge is given to the judgment and order of conviction dated 30.10.2004 passed by the Assistant Sessions Judge, Morbi in Sessions Case No.89 of 2000, convicting the appellants - accused, who were mother-in-law and sister-in-law (Nanand) of the deceased, under Section 498A and 114 of the Indian Penal Code (for short 'IPC') Page 1 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined for a period of 2 years simple imprisonment and fine of Rs.2,500/- and in default of payment of fine, six months further imprisonment. The appellants were acquitted from the charges under Sections 306 and 201 of IPC.
2. Learned advocate Mr. Sikendar Saiyed for learned advocate Mr. E.E. Saiyed for the appellants referring to the observation of the learned Trial Court Judge has submitted that undue importance has been given to Exh.22, which cannot be considered as dying declaration, as the Investigating Officer, who had recorded the complaint had concluded the case, as drawn by him, under Section 306 of IPC and had filed the charge-sheet. Thus, advocate Mr. Saiyed submitted that Investigating Officer is the interested witness and the investigation cannot be considered to have been concluded fairly and impartially.
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NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined 2.1 Learned advocate Mr. Saiyed submitted that the Investigating Officer was required to get the dying declaration recorded before the Executive Magistrate, which he had opportunity to do so, has failed to undertake the process. The fact that the inquest panchnama was drawn by the Executive Magistrate, would be a sufficient proof to consider the availability of the Executive Magistrate at the station. In spite of that the Investigating Officer himself has drawn the dying declaration.
2.2 Learned advocate Mr. Saiyed further stated that there is no endorsement of the Doctor that the deceased was in a fit state of mind to give any statement.
2.3 Referring to the contents of Exh.22, Advocate Mr. Saiyed submitted that there is no explicit details of any harassment by the appellants to consider as cruelty and stated that Page 3 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined the learned Trial Court Judge has not entered into detail analysis of the evidence and has failed to observe and appreciate that the parents of the deceased as well as the husband have not stated of any cruelty, thus, urged to allow the appeal.
3. The facts of the case, as could be gathered from the impugned judgment refers that the deceased Hamidaben, on 05.10.1999 at about 12 O' Clock burnt herself by pouring kerosene and lighting with the match stick at her residential house at Kabir Tekri area in Morbi City and thereby, committed suicide. It is the prosecution case that accused, mother-in-law and sister-in- law were physically and mentally harassing her and quarreling with her, while she had to pass the house of appellants to reach her home on first floor to fetch water, and therefore, fed up of such harassment, she committed suicide. The offence was registered at Morbi City Police Page 4 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined Station as C.R. No.338 of 1999 on 05.10.1999 under Sections 498A, 306 and 114 of the IPC.
4. Ms. Monali Bhatt, learned APP referring to the evidence of the witnesses submitted that the father and mother of the deceased have not supported the prosecution case, but the dying declaration of the deceased herself has been made a ground for conviction.
4.1 Learned APP Ms. Bhatt submitted that the dying declaration was recorded by Shankarbhai Pitambharbhai Patel (P.W.5), who was a Police Sub-Inspector at Morbi Police Station and after declaration of the 'Janvajog' Entry No.182/99, which was instituted by Police Station Officer - Rameshbhai Dixit (PW5), investigated the matter, who had gone to Morbi Hospital, where in the hospital, father - Karimbhai Mohammadbhai Sindhi (PW1) had given a complaint against both the accused under Sections 498A and 114 of IPC, which Page 5 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined came to be registered. Ms. Bhatt submitted that Exh.7 is the complaint of the father. 4.2 Referring to the evidence of P.W.5, Ms. Bhatt learned APP submitted that when the witness (P.W.5) had visited the injured - Hamidaben and recorded her statement, she stated that mother- in-law Hoorbai and sister-in-law Jebunben were mentally and physically harassing her and they were often quarreling since last two months, and fed up of the mental and physical cruelty she had burned herself by pouring kerosene. 4.3 Learned APP Ms. Bhatt, stated that the statement before the police is to be considered as a dying declaration. Further, the facts have come on record that the statement was recorded with endorsement of the Doctor, who had recorded that the patient was conscious throughout and submitted that the learned Trial Court Judge has, therefore, rightly placed reliance on the dying Page 6 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined declaration to declare both the accused liable for the commission of offence under Section 498A IPC.
4.4 Referring to the facts of the case, Ms. Bhatt, learned APP submitted that the prosecution witnesses had tried to suppress the real incident, where actually, as per the facts, which came in the dying declaration she had committed suicide by pouring kerosene, while prosecution witness, by turning hostile and not supporting the prosecution case, had brought up a story that she got burnt while cooking on primus. Ms. Bhatt, submitted that the case was under Section 306 IPC in view of the dying declaration before the police, since the police did not find the case of any accidental injury, but of the abetment for the suicide, where because of continuous mental and physical harassment the injured gave up her life.
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5. After hearing the submissions of learned advocate for the appellants and learned APP, perused the record. P.W.1 is father of the deceased Karimbhai Mamadbhai. In his deposition, he has stated that his daughter had never informed him about any harassment from the accused or any difficulty she suffered for collecting water while passing through the house of the accused. According to the father, his daughter had died as she got burnt while cooking and he stated that he had not given any police complaint. Mark 5/2, his complaint, was shown to him and P.W.1 identified his signature and therefore, the original complaint was placed in evidence at Exh.7.
5.1 The mother of the deceased (P.W.3) has not supported the prosecution case and the mother had clarified that from the matrimonial life of the deceased with P.W.2; they had a daughter. The deceased was staying with the husband on the Page 8 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined first floor of the house, while the accused mother-in-law and sister-in-law were residing at the ground floor. P.W.3 stated that the daughter had to enter the ground floor to reach her house. The mother also clarified that her daughter was not facing any harassment from the husband or from the mother-in-law or the sister-in-law. 5.2 P.W.2 is husband, who clarified that he had no such information of any quarrel of his wife with his mother and sister. He, at the time of the incident was a rickshaw driver. The incident had occurred in the year 1999. He stated that his wife was cooking and during that course, she got burnt. P.W.2 stated that in the morning, when he had left with his rickshaw, his daughter was at home and he stated that there was no quarrel of his wife with the accused and that it has not so occurred, that for that reason she has burnt herself. P.W.2 stated that there was no quarrel with regard to residential house, nor about their Page 9 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined staying. The little girl - Ayesha also got burnt partly on the hands.
6. Learned APP Ms. Bhatt has placed much reliance on the inquest panchnama, stating that the deposition of P.W.5 was that the inquest panchnama was drawn by Mamlatdar - M.M. Jadeja. The provision under Section 174 Cr.P.C. records that it becomes necessary for the Executive Magistrate to draw the inquest panchnama.
7. Exh.22 is stated to be dying declaration of the deceased dated 05.10.1999 and the inquest panchnama was drawn on 07.10.1999. P.W.5- Shankerbhai Patel, as an Investigating Officer had sent the requisition to the Mamlatdar for recording of dying declaration. As per his deposition, no particular Mamlatdar was named in the requisition. Exh.22 bears an endorsement that the patient was conscious throughout. Had it been so, the Investigation Officer could have waited Page 10 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined for Executive Magistrate and would have asked for the Executive Magistrate to record the dying declaration.
7.1 Exh.22 could have been recorded by the Executive Magistrate. Exh.22 is recorded by the officer, who has recorded the complaint, the investigation was required to be handed over to other officer. Investigating Officer, who does everything right from recording complaint, Dying Declaration, recording statement of witnesses and drawing panchnama till filing of charge-sheet would be interested to see the success of his investigation. The credibility of dying declaration, thus, has to be viewed from that angle, where the officer had not waited for the Executive Magistrate to record the dying declaration. Further, no independent statement of the Medical Officer has been recorded by the Investigating Officer to corroborate the fact that the deceased was in a fit state of mind and Page 11 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined was conscious to give the statement. The cause of death, as has been noted in the P.M. Note is shock due to extensive burns, and further noted in Column-17, second third degree burns were over face, neck, chest and abdomen. The deceased before the investigating officer had stated that she herself poured kerosene on her body. The degree of burn is second and third on the face. In view of the observation in the P.M. Note, would have required an independent and separate recording of statement of the Doctor. The cross- examination of P.W.4 - Reshmaben Ibrahim, sister- in-law (Jethani) of the deceased shows that deceased was unconscious throughout after she got burned and in that condition of unconsciousness she died. Thus, Exh.22 in that circumstances, in absence of the statement of the Doctor, cannot be totally relied upon.
8. Learned Trial Court Judge was required to appreciate the fact that mere endorsement of Page 12 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined Doctor that patient was conscious would not suffice in absence of certification that injured was in fit state of mind at the time of making declaration. Here, the statement relied upon by the learned Judge is not before any Executive Magistrate, who could have followed the required protocol for recording of the dying declaration. The statement Exh.22 is before the officer, who was investigating the complaint. Hence, the independency of the Investigating Officer becomes doubtful.
9. The parents have not alleged of any harassment by the appellants as mother-in-law and sister-in-law. Even if, Exh.22 be considered as a statement of the deceased, the complaint against the appellants is omnibus in nature, where the deceased probably stated before the Investigating Officer that she was harassed by mother-in-law and sister-in-law and that there was constant quarrel since last two months. What was the cause Page 13 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined of quarrel has not come out on record. The cause, as found to be recorded in Exh.22 is that the deceased as daughter-in-law had to pass from the house of the appellants for fetching water and that had been the cause of quarrel and because of that, she had stated that it was a harassment. Such kind of alleged harassment would not fall under the definition of cruelty under Section 498 IPC.
10. In case of Kamaruddin Dastagir Sanadi Vs. State of Karnataka, [(2024) SCC Online SC 3541], the Hon'ble Supreme Court observed as under:
"discord and differences in domestic life are quite common in society and that the commission of such an offence largely depends upon the mental state of the victim. Surely, until and unless some guilty intention on the part of the accused is established, it is ordinarily not possible to convict him for an offence under Section 306 IPC."
11. The learned Trial Court Judge has found the case under Section 498A of IPC, while had Page 14 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined acquitted both the appellants under Section 306 IPC. The ingredients for the abetment to suicide has not found to be established during the course of trial. The proximate cause appears to have not been believed, which was the quarrel for fetching the water by passing through the house of the appellants. The document Exh.22 itself proves that the deceased was staying separately along with her husband (P.W.2) on the first floor, while the mother-in-law and sister-in-law were residing at the ground floor. There was no co- habitation in one house.
12. In the case of State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon'ble Supreme Court has held 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 Page 15 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of the Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater [(1950) 2 All ER 458 : 1951 P 35 (CA)] (All ER at p. 459) has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject- matter."
13. Exh.22 shows that some general allegation of mental and physical harassment has been recorded. The instance of the quarrel was fetching water, while passing through the house of the appellants, which itself could not constitute any cruelty nor such quarrel could be Page 16 of 18 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:33:15 IST 2025 NEUTRAL CITATION R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025 undefined considered sufficient enough to be considered as cruelty falling within the parameters in Section 498A of the IPC. As per Exh.22, the quarrel was from last two months. The victim-deceased could have found out some alternative for resolving the dispute. She could have informed the husband for resolving the same. P.W.2 is the husband examined during the trial. The husband pleaded ignorance of any such quarrel, rather he stated that there was no harassment or any quarrel to his knowledge by the appellants to the deceased. Even the parents of the deceased and the sister-in-law (Jethani), all of them had stated that there was no such harassment from the appellants to the deceased. It appears that out of fit of anger, the deceased had taken the last step, the Court had not found any cause against the accused under Section 306 IPC for any cruelty, as expressed under Section 498A.
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14. This Court does not find any cause to consider any cruelty or harassment from the appellants to the deceased to be construed under Section 498 IPC. No offence of cruelty as defined under Section 498A IPC is found.
15. In view of the above discussions and observations, the appeal is allowed. The conviction and sentence of the accused passed by the learned Assistant Sessions Judge, Morbi in Sessions Case No.89 of 2000 vide judgment and order dated 30.10.2004 is set aside. Bail bond stands discharged. Registry is directed to send the Record and Proceedings back to the concerned Trial Court.
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