Gujarat High Court
Shantibhai Mohanbhai Jethwa vs State Of Gujarat on 25 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
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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
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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
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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
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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
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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
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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
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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.
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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
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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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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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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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
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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
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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
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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
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(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
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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.
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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
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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
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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
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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.'
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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
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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
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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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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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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.
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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
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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
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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
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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
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[(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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
