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

                                                                                                                  undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 1870 of 2004


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MS. JUSTICE GITA GOPI

                      ==========================================================

                                   Approved for Reporting                       Yes           No
                                                                                              √
                      ==========================================================
                                     HOORBAI W/O. ISMAIL JALALBHAI SANDHI & ANR.
                                                        Versus
                                              THE STATE OF GUJARAT
                      ==========================================================
                      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
                      ==========================================================

                        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')

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.

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

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

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

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

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.

NEUTRAL CITATION

R/CR.A/1870/2004 JUDGMENT DATED: 14/08/2025

undefined

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

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

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

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

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

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

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

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

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

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