Gujarat High Court

Shantuben W/O Lalji Nanji vs State Of Gujarat on 8 September, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                           R/CR.A/388/2005                                          JUDGMENT DATED: 08/09/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 388 of 2005


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MS. JUSTICE GITA GOPI

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                                  Approved for Reporting                           Yes            No

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                                             SHANTUBEN W/O LALJI NANJI & ORS.
                                                         Versus
                                                   STATE OF GUJARAT
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                      Appearance:
                      DHARMESH D NANAVATY(2396) for the Appellant(s) No. 1,2,3
                      MR ROHAN KUMAR RAVAL APP for the Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                           Date : 08/09/2025

                                                          ORAL JUDGMENT

1. The present three appellants have challenged

the judgment and order of conviction and sentence

passed on 23.02.2005 by Second Extra Assistant

Judge, Veraval in Sessions Case No.25/2002,

whereby all three women accused came to be

convicted under Sections 498A, 306, 504 read with

Section 114 of Indian Penal Code (for short

'IPC') and were ordered to undergo three years

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simple imprisonment for the offence punishable

under Section 498A read with Section 114 of IPC

and fine of Rs.1,000/- was ordered with default

stipulation that in failure to pay the fine

amount, further six months simple imprisonment.

1.1 While under Section 306 read with Section

114 IPC, five years simple imprisonment with fine

of Rs.2,000/- and in failure to pay the fine

amount further six months simple imprisonment.

1.2 For the offence under Section 504 read with

Section 114 IPC, one year simple imprisonment

with fine of Rs.500/- and in failure to pay fine

further six months simple imprisonment was

ordered. All the sentences were ordered to run

concurrently with the benefit of set off granted.

2. The charge against all three accused, as

elder sister-in-law (Jethani), sister-in-law

(Nanad) and mother-in-law was that all the

accused often would verbally abuse deceased

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Geetaben stating that she was loitering here and

there and was not taking care of the children and

saying so, they were physically and mentally

subjecting her to cruelty, and with the alleged

cruelty had abated her suicide, therefore,

Geetaben by pouring kerosene on her body ablazed

herself and committed suicide.

3. Learned advocate Mr. Dharmesh D.Nanavaty for

the appellants submitted that the conviction is

solely based upon dying declaration, which in

case of 90% of burns was required corroborative

piece of evidence and thereby, the order of

conviction and sentence passed against the

appellants is bad in law and is required to be

set aside.

3.1 Learned advocate Mr. Nanavaty submitted that

P.W.3 - Doctor, who performed the P.M. Report has

admitted 90% of burn injuries and the condition

of victim being critical and that she was

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administered painkillers as well as injection,

thus, Mr. Nanavaty stated that would not be in a

position to depose before the Executive

Magistrate in a regular course for dying

declaration to be considered as genuine and

truthful.

3.2 Learned advocate Mr. Nanavaty further

submitted that the conduct of the Doctor was also

required to be noted since the endorsement made

also creates doubts, as such endorsement does not

disclose actual condition of the victim during

the time when the dying declaration came to be

recorded.

3.3 Mr. Nanavaty, learned advocate submitted

that if at all dying declaration is also to be

considered as true, then also the facts, as

recorded of the deceased would not fall under the

definition of cruelty to consider as an offence

under Section 498A IPC, or to consider it as an

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abetment to suicide.

3.4 Advocate Mr. Nanavaty submitted that as per

the facts, which came on record by way of

depositions of the witnesses, the deceased was

staying separately along with two children and

husband. The younger one was 15 days old and

therefore, the mother and sisters-in-law were

telling the deceased to take care of the child,

would not be considered as cruelty because it

would be very normal for in-laws to tell

daughter-in-law to look after newly born baby,

where the second delivery was at the matrimonial

house.

3.5 Advocate Mr. Nanavaty further stated that

the allegation of continuous cruelty does not

stand proved since deceased was not staying with

family members, more specifically with the

accused and the deceased had her own independent

way of life, which itself would prove that there

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was no such reason for the appellants to subject

her to any sort of cruelty though, it had come on

record that they were in the same neighbourhood.

3.6 Advocate Mr. Nanavaty has relied on the

judgment of State of Gujarat V. Sunilkumar

Kanaiyalal Jani, passed by Division Bench of this

Court on 29.02.1996 in Criminal Appeal No.1475 of

1985, to submit that merely the fact that husband

was treating the wife with cruelty would not be

sufficient to establish abetment, and that

prosecution is required to prove compelling or

alarming circumstances as leaving the victim with

no option but to commit suicide, there must also

be knowledge and intention relating to crime and

proximate assistance.

4. Countering the arguments, learned APP Mr.

Rohan Kumar Raval referring to the observation of

the learned Trial Court Judge submitted that on

appreciation of evidence, the learned Trial Court

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Judge was of the view that the allegations, which

were made against the victim were amounting to

doubting her character and that was the cause for

abetment to suicide, which would definitely fall

under the definition of cruelty.

4.1 Learned APP Mr. Raval submitted that the

Executive Magistrate has proved dying

declaration, which has been believed by the

learned Trial Court Judge and further the mother

of the deceased has also corroborated the

statement, where such statement before the mother

should also be considered as dying declaration.

4.2 Mr. Raval, learned APP stated that that all

the accused were residing beside the house of

deceased and were regularly harassing the victim

and subjecting her to cruelty, even in a

situation where she was having a newly born child

of 15 days, which she could not bear it and had

to take the ultimate step of taking her life. Mr.

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Raval stated that the learned Trial Court Judge

has rightly believed the statement of deceased

and thus, supporting the judgment of the learned

Trial Court Judge, learned APP has urged to

upheld the conviction and sentence.

5. On hearing both the sides, perused the

record and the depositions of the witnesses.

P.W.1 - Samatbhai Bachubhai was declared hostile

as well as P.W.2 - Dahyabhai Harjibhai did not

support the prosecution case, hence, he too was

declared hostile. However, the fact which becomes

noticeable in the testimony of P.W.1, who was

elder father-in-law of the deceased, is that the

marriage of the deceased with Maganbhai was

performed five to seven years ago. They have two

children. The elder daughter was five years old

and the son was fifteen days old. On hearing the

outcry, he had gone at the house of deceased -

Geetaben and saw her burned. The elder father-in-

law and family members had taken the injured to

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the hospital in a rickshaw. He stated that he

does not know any further facts. In the same way,

P.W.2 only stated of injured - Geetaben being

taken to the hospital and has no personal

knowledge of the matter and could not even depose

as to how she got burned.

5.1 P.W.3 is Doctor Haresh Mohanbhai Jethva, who

was a Medical Officer at Una Hospital on

31.12.2001, where he had conducted the postmortem

of deceased Geetaben Maganbhai resident of

Kodinar. While deposing about the condition of

the deceased, he stated that he had seen

postmortem lividity on the back of corpus, eyes

were closed and had not found any injury on any

part of the body, while noted that it was 90%

burnt. The postmortem notes the cause of death as

cardio respiratory arrest due to combined effect

of hypodermic shock and neurogenic shock.

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5.2 In the cross-examination, the Doctor

affirmed that in the postmortem note, he has not

referred to the degree of burn injury at the

different parts of body. He affirmed that because

of painkillers and injections, the patient would

be under the influence and would therefore be

sub-conscious, and also stated that the persons

who gets burned, the brain would find collection

of water and there are all chances that victim

may loose mental equilibrium and would start

stating inconsistent things, but he clarified

that such incident would not always be possible.

He affirmed that because of the injury the mind

would get congested and there would have the

possibility of loosing mental health.

6. In background of evidence of the Doctor, the

deposition of Executive Magistrate (P.W.4) -

Kritikumar Kantilal Pandya, would require an

observation. The postmortem was conducted on

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31.12.2001, while the Executive Magistrate had

recorded the statement on 30.12.2001 in the

afternoon at 4:30 p.m., who stated that at 4:15

p.m. when he was in his office he received a

requisition from Una Police Station for recording

of dying declaration at Community Health Center,

Una and thereafter, he visited the Government

Hospital and met Medical Officer Shri Bloch. He

got identification of the patient through the

Doctor. The Executive Magistrate stated that the

Doctor in the D.D. Form had put an endorsement

noting that Geetaben was conscious. The Executive

Magistrate stated that as soon as he started

recording dying declaration the Doctor left the

place. He recorded the D.D. in question and

answer form.

6.1 The Executive Magistrate stated that the

victim informed him to question No.9 that her

mother-in-law - Shantokben, sister-in-law (Nanad)

- Savitaben and sister-in-law (Jethani) -

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Shantuben Laljibhai, who were staying beside her

house and they had rebuked her and she felt

offended therefore, she poured kerosene on her

body and burned herself. The victim also stated

that her husband had gone for diamond polishing

work at Bhavnagar. The dying declaration was

placed in evidence at Exh.27.

6.2 In cross-examination, the Executive

Magistrate stated that when he had gone to the

hospital, the Doctor was in his chamber. He had

taken the printed form of dying declaration and

Doctor in his chamber had given the endorsement

that the patient was conscious. The Executive

Magistrate denied the suggestion that condition

of the patient was serious and therefore, was not

in a position to speak. He also denied the

suggestion that since injured Geetaben was in

pain because of treatment, therefore, she was in

a drowsing condition. The Executive Magistrate

denied the suggestion that D.D. was recorded as

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per suggestion of family members of the deceased.

6.3 The time period for recording of D.D. was

for about fifteen to twenty minutes and after

conclusion, the thumb impression was taken on it.

Doctor, who had placed endorsement on Exh.27 had

not been examined. However, the dying

declaration, as recorded does not create any

suspicion. It is not necessary that without

endorsement of Doctor, the dying declaration

recorded by the Executive Magistrate should not

be believed.

7. The principle has been laid down in various

Supreme Court judgment to examine the

authenticity and credibility of the dying

declaration. In the case of Laxman v. State of

Maharashtra, (2002) 6 SCC 710, it was held as

under:

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in

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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

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court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is

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recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] the dying declaration in question had been recorded by a Judicial Magistrate and

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the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The

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Court relied upon the earlier decision in Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.

5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration

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suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that

"in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"

has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration.

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Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 :

2000 SCC (Cri) 432].

7.1 In view of the observations, which have

been laid down in the case of Laxman (supra),

which has been drawn on examining earlier

judgments of the Supreme Court, and the other

judgments referred above there is no reason to

doubt the dying declaration recorded by the

Executive Magistrate.

7.2 In the case of Atbir Vs. Government of NCT

Of Delhi, (2010) 9 SCC 1, the principles

governing the credibility of D.D. has been noted,

wherein it has been held as under:

"The following principles can be culled out from earlier decisions of the Supreme Court:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

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(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical

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opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration."

7.3 The immediate cause to commit suicide is

that the appellants as mother-in-law and sisters-

in-law were taunting her since, she could not

bear it, she had committed suicide by self-

immolation.

8. The dying declaration does not clarify as to

what were the words used for taunting or rebuking

the victim. The exact utterance of the accused

has not come on record. The charge, as was framed

that the accused were rebuking her on the ground

that she was loitering around and was not taking

care of the child, does not get reflected in the

dying declaration. Further, the observation of

the Trial Court Judge that the appellants were

abusing, rebuking and doubting her character, are

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also not reflected in the dying declaration. The

learned Judge observation is not supported by the

depositions on record, nor on the basis of dying

declaration, which the learned Judge found it to

be true and believable. The self-observation of

the learned Judge without any support from the

evidence cannot be believed and cannot be relied

upon for conviction. Every observation should be

in accordance to the analysis of the evidence on

record, where none of the witnesses have uttered

of any such conduct of the accused, who by

rebuking the her were doubting her character.

8.1 The father of deceased has been examined as

P.W.5 - Naranbhai Tapubhai. He has a different

story to say. According to the testimony of the

father, it was the father-in-law, who had poured

kerosene on the daughter-in-law, while she was

cooking. While such statement was not supported

by mother or the uncle of the deceased. It

appears that father was suffering from some

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mental ailment, which the mother examined as

P.W.7, stated that it was because of mental

disturbance of the father on account of death of

daughter. The father initially stated that

whenever the daughter used to visit them, she had

never said anything against in-laws and also

stated that he had not known anything from the

daughter, and the allegation of the father-in-law

pouring kerosene was on his own, and

Investigating Officer (P.W.12) - Rameschandra

Bhikamdas Nimawat stated that such statement has

not been given by P.W.5 - Naranbhai Tapubhai.

9. The uncle of deceased Devjibhai Tapubhai

Kotadiya - P.W.6 stated that Geeta was her niece

and she was married to Maganbhai Lakhmanbhai at

Avalvad. The husband was diamond polisher at

Bhavnagar. After her marriage, visited their

house and one and half year prior to the incident

she came there and had informed that Sasu, Nanad

and Jethani were often rebuking her.

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9.1 The deposition of uncle P.W.6 further states

that on the date of incident when he had visited

Una Government Hospital, he had met victim Geeta,

whereby again the victim stated that the mother-

in-law, sister-in-law (Nanad) - Savitaben and

sister-in-law (Jethani) - Shantuben Laljibhai,

were subjecting her to harassment and cruelty and

were rebuking her and therefore, she had on her

own poured kerosene and committed suicide.

10. The evidence of P.W.6 though, relates to one

and half year prior to the incident and also on

the date of incident, the only bare statement is

of rebuking her, while the cause of taunting the

victim does not get reflected in the deposition

of uncle. The uncle - P.W.6 has also stated of

deceased having one daughter and fifteen days old

son. The birth of the daughter was at the

parental house, while the son's delivery was at

the matrimonial house. He has also affirmed that

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since last one and half year the victim Geetaben

was living in a separate house. P.W.6 alleged

that the family members once or twice would come

to her house. He affirmed that in the second

delivery, the food and other facilities were

provided by the parents-in-law.

10.1 This evidence of uncle - P.W.6 would rather

clarify that the parents-in-law were taking care

of the daughter-in-law during the time of second

delivery. The general statement of the appellants

telling the victim of not loitering around and

instructing her to take care of the child, who

was fifteen days old, would not be considered as

cruelty, as this would be instruction out of

concern to the daughter-in-law, who had recently

given birth to a new born.

11. The mother examined as P.W.7 - Nanbai

Naranbhai has also reiterated the same thing.

When she has visited the victim at Una Government

Hospital Geeta was conscious and the daughter had

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informed her that Sasu, Nanad and Jethani were

harassing her and that she could not bear it and

therefore, she had poured kerosene and committed

suicide. What kind of harassment was there does

not become clear on record. Her testimony also

suggests that deceased had visited her one and

half year prior to the incident and the evidence

of P.W.6 as uncle, which is also supported by the

evidence of the mother that the accused were

staying in the neighbourhood. The evidence also

suggests that the parents-in-law were taking care

of the daughter-in-law at the time of delivery.

The parents appears to have no contact from the

past one and half year prior to the incident.

11.1 The mother stated that the appellants were

often taunting and rebuking her telling that the

husband is not at home and she is loitering

around. But, this allegation which was made, does

not appear to be immediate act of any of the

appellants, as mother - P.W.7, stated that such

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facts were informed to her when deceased had met

her one and half year prior to the incident. The

same could not be the cause at the time of

suicide, since she was staying separately from

the parents-in-law and sisters-in-law. The mother

had affirmed that after the delivery for about a

month or one and half month, generally, the new

born mother would not be allowed to go out of the

house.

12. Kamlaben Devjibhai - P.W.8 is the niece of

the deceased, who also has given the same

version, as was narrated by P.W.6. The niece has

not gone in details, but as per her testimony the

appellants were rebuking her and were verbally

abusing and harassing her. P.W.8 has further

stated that she was rebuked by the appellants, as

they were alleging that she was loitering around

and thereby the deceased, her aunt, got offended

as she committed suicide.

12.1 P.W.8 further stated that when they

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visited the hospital they all were near her, at

that time, when they inquired from Geetaben, she

had replied that from her Sasu, Nanad-Savita and

Jethani-Shantuben, she was suffering cruelty and

therefore, committed suicide.

13. P.W.9 is elder brother-in-law of the

deceased. According to him, deceased had two

children and when she died the son was fifteen

days old. He stated that the female members of

the family may have scolded the deceased since

she would leave fifteen days old child at home

and go out of the home. He denied of having heard

or seen of any mental or physical cruelty to

deceased - Geetaben by the accused, and stated

that during the delivery Geetaben was taken care

by Sasu and Nanad. According to P.W.9, Shantuben

is not real Jethani and that her house is away

from that of the deceased.

14. P.W.10 is P.S.O., who had drawn the Police

Station Diary Entry No.15 on the basis of D.O.

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No.749/01, which he received from P.S.O. - A.A.

Patel at 14:30 hours of 30.12.2001. The entry was

produced at Exh.36. After receiving the

complaint, he had sent the same to P.S.O. Una.

14.1 In the cross-examination, P.S.O. stated

that he has visited the hospital and met the

Doctor. The treatment was in progress, at that

time, Geetaben was in serious condition, however,

stated that she was in a position to speak.

14.2 P.S.O. - Vanrajsinh Nanbhai Sarvaiya

(P.W.11) stated that on 30.12.2001, he was

working as P.S.O. at Kodinar Police Station and

he received complaint from Una Police Station of

complainant deceased Geetaben, which he

registered at 22:30 hours, and after the offence

was registered he made a station diary entry and

further investigation was sent to Mahila Police

Station. The complaint was recorded under Form

No.154 as C.R. No.II-181/2001. The station diary

entry was placed by him on record at Exh.39. As

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per cross-examination, the complaint which was

recorded of deceased - Geetaben at the hospital

was produced before him by P.W.10 - Virabhai.

15. The complaint at Exh.35 of the deceased

Geetaben notes that she was staying separately

from father-in-law and mother-in-law. Her

matrimonial life was of four years and out of the

wedlock she has a son, who was fourteen days old

and her daughter was aged about two years. Her

husband was in diamond polishing work at

Bhavnagar. The victim deceased stated that on

30.12.2001 at about 12 O' clock, she was at home

and her mother-in-laws - Shantokben, sister-in-

law - Savitaben and sister-in-law (Jethani) -

Shantuben Laljibhai had come to her house and

verbally abused her and told her that her husband

Magan was out for work and that she was loitering

here and there. According to the complainant,

often all the three were rebuking and taunting

her, and since they were mentally and physically

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harassing her, she could not bear harassment and

being offended she had poured kerosene on her

body and ablazed herself by lighting match stick,

therefore, she was burned severely on the whole

body and her father-in-law - Lakhmanbhai and

other people had taken her to the hospital in a

rickshaw.

16. This incident, if at all is believed with

the immediate cause as noted in the complaint

(Exh.35), which also become believable as a dying

declaration, and if compared with the dying

declaration recorded by the Executive Magistrate,

the victim has not stated before the Executive

Magistrate that all three had made such an

utterance alleging the victim that she was

loitering around in absence of the husband.

However, in dying declaration she has alleged of

all the appellants taunting her. The complaint

and the dying declaration, if read together, then

also it cannot be said that the immediate

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utterance of the appellants for the cause to

commit suicide would fall under the definition of

cruelty. The victim had delivered a child fifteen

days prior to the incident and fact on record

clearly comes to prove that the parents-in-law

had taken care of the victim during the delivery

and were supplying food and other materials

during post delivery period. Though there is

nothing coming on record, nor any medical

evidence is there on record to conclude of

Postpartum depression (PPD), which occurs to

women during pregnancy or in the year after child

birth. Our society as yet has not shown any

consciousness to examine the mother after

delivery for any signs of PPD. There are common

symptoms of emotional changes, behavioral

changes, difficulty in bonding with the baby or

having thoughts of harming the baby.

16.1 Any statement by the in-laws asking victim

to remain at home during this period of post

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delivery to look after the new born child could

not be considered as cruelty, which could be

stated to be as an instigation in terms of

Section 107 of the IPC as an abetment.

17. In the case of Raj Rani (Smt) v. State

(Delhi Administration) reported in (2000) 10 SCC

662, it was held as under:

"4. We have gone through the entire writing contained in the suicide note. It makes a serious castigation against her husband for being an addict to narcotic drugs. Then she made a general allegation against her mother-in-law and in a lesser degree towards the appellant. But unfortunately she did not advert to any concrete instance which can be termed as cruelty as defined in Section 498- A of the Penal Code, 1860. The utterances said to have been made by the appellant towards the deceased were to her chagrin and she had taken them very seriously and in the suicide note she described such utterances as not worthy of reproduction.

5. It is not enough that the deceased felt those words hurting, it must be subjected to judicial scrutiny and the Court must be in a

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position to hold that those words were sufficiently hurting enough as to amount to "cruelty" falling within the parameters fixed in Section 498-A of the Penal Code, 1860. The area remains grey and vague. Not a single word said to have been spoken by the appellant as against the deceased had been put on record by the deceased in the suicide note in spite of the fact that the said note is a very lengthy letter running into several paragraphs. The tenor and language of the suicide note would reflect that she was not an illiterate lady. As the Court is rendered helpless to judge whether the words which the deceased heard from the appellant would amount to cruelty, it is far from possible for the criminal court to hold that she is guilty of the offence of cruelty as envisaged in the section. It is also to be pointed out that the deceased did not mention a single deed which the appellant would have done against her. All that is said against the appellant was that she spoke something which she took as objectionable.

17.1 The Hon'ble Supreme Court in the case of

S.S. Chheena Vs. Vijay Kumar Mahajan, [2010 (12)

SCC 190] in regard to the abetment has held as

under:

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"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."

17.2 In the case of State of West Bengal Vs.

Orilal Jaiswal, [(1994) 1 SCC 73], the Hon'ble

Supreme Court has cautioned in Para-17 as under:

"17. ... The Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance,

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discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty...."

17.3 In the case of M. Mohan v. State

Represented by the Deputy Superintendent of

Police, [AIR 2011 SC 1238 : (2011) 3 SCC 626],

the Hon'ble Apex Court has made the following

observations regarding the ingredients of Section

306 IPC, referring to the word 'suicide', which

reads thus:

"If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word 'suicide' has not been defined. The word 'suicide' would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Edition, p.686, "A finding of suicide

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must be on evidence of intention. Every act of self destruction is, in common language described by the word 'suicide' provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient."

17.4 In the case of Mahendra K.C. v. State of

Karnataka and another, [(2022) 2 SCC 129], it has

been held by the Hon'ble Supreme Court that the

essence of abetment lies in instigating a person

to do a thing or the intentional doing of that

thing by an act or illegal omission. Instigation

is to goad, urge forward, provoke, incite or

encourage to do "an act". To satisfy the

requirement of instigation though it is not

necessary that actual words must be used to that

effect or what constitutes instigation must

necessarily and specifically be suggestive of the

consequence. Yet a reasonable certainty to incite

the consequence must be capable of being spelt

out. A word uttered in the fit of anger or

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emotion without intending the consequences to

actually follow cannot be said to be instigation.

17.5 The Hon'ble Supreme Court in the case of

State of A.P. Vs. M. Madhusudhan Rao [2008 (15)

SCC 582], has held that not every kind of

harassment would amount to 'cruelty' within the

meaning of provision to constitute the offence

punishable therein. Every case has to be analysed

on its individual facts to assess whether the act

of the accused persons constitutes cruelty.

Further, cruelty can either be mental or

physical, and it is to be seen on the facts of

each case.

18. In view of the facts on record and the

principle laid down in the referred judgments,

the observation of the learned Judge becomes

erroneous on record, since nothing has been

clarified that the parents-in-law and more

specifically, appellants were doubting her

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character, rather it could be termed as an

instruction from the appellants to take care of

the child, who was fifteen days old, where

actually the parents of the deceased were not

present with the deceased post delivery of the

child, and even by such instruction of the

appellants the deceased get offended, then it

should be considered as sensitiveness of the

deceased herself.

18.1 In the case of Ude Singh v. State of

Haryana, [(2019) 17 SCC 301], the Hon'ble Supreme

Court has held as under:

"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for cogent and

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convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.

16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of the accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit

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suicide, the case may fall within the four- corners of Section 306 IPC. If the accused plays an active role in tarnishing the self- esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide..."

19. The dying declaration as well as complaint

on record does not disclose that the act of the

appellants would fall in the definition of

cruelty, as laid down under Section 498A, to draw

presumption, as under Section 113A of the

Evidence Act to consider as abetment to suicide.

The prosecution had failed to prove the case of

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abetment to suicide by the appellants.

20. In the result, on analysis of the evidence,