Gujarat High Court
Biharilal Alias Raju Parshottambhai … vs State Of Gujarat on 3 March, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2600 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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BIHARILAL ALIAS RAJU PARSHOTTAMBHAI KUNDALIYA
Versus
STATE OF GUJARAT
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Appearance:
MR YOGIN A BHAMBHANI(6444) for the Appellant(s) No. 1
MS JYOTI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/03/2026
JUDGMENT
1. By way of this appeal, the appellant-husband has
challenged the judgment and order of conviction dated
19.12.2005 passed by the learned Additional Sessions
Judge, Fast Track Court No.1, Gandhinagar in Sessions
Case No.38 of 2005 whereby the appellant was convicted
under Sections 498A and 306 of the Indian Penal Code
(IPC) and under Sections 3 and 7 of the Prohibition of
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Dowry Act, 1961 (hereinafter referred to the Dowry
Prohibition Act).
1.1. Under Section 498A of IPC, the accused was
convicted and sentenced to undergo one year of rigorous
imprisonment and pay a fine of Rs.1,000/- and in the
event of non-payment of fine, to undergo one month of
simple imprisonment.
1.2. Under Section 306 of IPC, the accused was
convicted and sentenced to undergo five year of rigorous
imprisonment and pay a fine of Rs.5,000/- and in the
event of non-payment of fine, to undergo five months of
simple imprisonment.
1.3. Under Sections 3 and 7 of the Prohibition of Dowry
Act, the accused was convicted and ordered to undergo
two years of simple imprisonment and pay a fine of
Rs.3,000/- and in the event of non-payment of fine, to
undergo three months of simple imprisonment. All the
sentences were ordered to run concurrently.
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1.4. The amount that was ordered to be deposited
towards fine, was ordered to be kept in the name of the
son of the deceased-Om Biharilal Kundaliya in a
nationalized Bank in a fixed deposit till the minor attains
majority.
2. The facts of the case as could be drawn from the charge
Exhibit 3 in Sessions Case No.38 of 2005 which was
drawn against the 9 accused states that the accused
No.1 married with deceased-Rekhaben about 4 years
prior. The accused No.2 was the mother-in-law while the
accused No.3, 4, 5, 6 and 7 are the sisters-in-law and the
accused No.8 and 9 are the younger brother-in-law.
3. After marriage, Rekha started her matrimonial life with
the accused at Dariakhan Gumat, Dudheshwar
Ahmedabad and when she had joined matrimonial house
with the accused, the accused would often subject her to
mental and physical cruelty for trivial reasons and would
often tell her that she has not brought money from her
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paternal house. It has also been noted in the charge that
three months prior to the incident, deceased-Rekha
alongwith the accused No.1 had come to stay in
Nidhishree Flat, DT-3, 3rd Floor, Motera, Taluka and
District Gandhinagar. At that time, accused No.1 to 7
would often tell her to bring money from her paternal
house and would mock her with regard to dowry and
subject her to mental and physical cruelty.
4. On 19.03.2005, accused No.1 asked Rekha to bring
money for the flat, when she refused, accused No.1
quarelled with deceased-Rekha and told her that if she
was not willing to bring money from her paternal home,
then she should die and thus, she got offended and as
was instigated, on that day, between 2.30 to 2.45 hours,
she poured kerosene on her body and ablazed herself
with the use of a match stick and committed suicide.
During the treatment on 20.03.2005 at about 20.45
hours, she died and thus, all the accused were charged
for the offences punishable under Sections 498A and 306
read with Section 114 of the Indian Penal Code (IPC) and
under Sections 3 and 7 of the Dowry Prohibition Act.
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5. The trial Court acquitted the accused Nos.2 to 9 while
convicting the accused No.1-husband for the offences
punishable under Sections 498A and 306 of the IPC and
under Sections 3 and 7 of the Dowry Prohibition Act.
6. Learned advocate for the applicant Mr. Yogin A.
Bhambhani for the appellant submitted that the facts
which was against the acquitted accused were similarly
placed against the convicted accused No.1, hence, it is
submitted that the benefit was required to be given to
the accused No.1 in the background of similar charge
against all. It is further submitted that there has been a
wide discrepancy between the evidence of the witnesses
and circumstances surrounding the alleged evidence.
The learned trial Court Judge has erred in convicting the
appellant only on the basis of the dying declaration
where actually the dying declaration cannot be said to be
independent and the fact would reflect that at the time of
the dying declaration, the mother of the deceased was
present, the condition of the deceased was not certified
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to be in a fit state of mind to give such a detailed
answers to questions No.10 and 11 recorded by the
learned Magistrate. Learned advocate Mr. Bhambhani
further stated that the dying declaration records that it
was an accidental death and on that day, she was
preparing tea and she got burnt because of the sudden
fire in the stove. The dying declaration also records that
the incident had occurred all of a sudden and when the
deceased was asked as to whether anyone had burnt her,
the answer recorded was in the negative. It was only
under question No.13, it was recorded that her husband
subjected her to cruelty for money which he demanded
for purchase of flat as dowry. When question No.15 was
put to the deceased of whether she had committed
suicide, the answer was in the affirmative.
7. Learned advocate Mr. Yogin A. Bhambhani thus,
submitted that the answer to question No.15 is totally
contradictory to the answers to questions No.10 and 11
and therefore, the dying declaration itself seems to be
contradictory to the evidence appearing on record. Thus,
it is submitted that the dying declaration cannot be
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believed without any corroboration. It is further stated
that the dying declaration cannot be believed unless it is
medically proved that the victim was in a fit state of mind
to even give the dying declaration.
8. Further, it was also contended by learned advocate Mr.
Yogin A. Bhambhani that the dying declaration was
recorded even prior to the complaint being filed and thus,
it is stated that it cannot be considered as a legal
document. Learned advocate Mr. Yogin A. Bhambhani
submitted that the ‘wardhi’ of the information received of
the incident has not been proved by the Officer
concerned. The objection was raised during the trial for
the complaint recorded by the I.O. as the investigation
started even prior to proving the the First Information
Report (FIR) on record. Non-production of ‘wardhi’
according to learned advocate Mr. Bhambhani would
cause prejudice to the accused and contended that the
complaint recorded by the Investigating Officer (I.O.) is
only to be treated as statement of the deceased and not
even as a dying declaration.
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9. Comparing the complaint recorded by the I.O. and the
dying declaration, learned advocate Mr. Yogin A.
Bhambhani raised the issue that the trial was not
conducted in accordance to the evidence on record
where the dying declaration before the the Executive
Magistrate proves as ‘accidental death’ while in the
complaint before the I.O., the same was noticed was
‘suicidal death’. Learned advocate Mr. Bhambhani thus,
submitted that the learned trial Court Judge erred in not
considering the case in accordance to the evidence which
came on record by way of dying declaration before the
Executive Magistrate of the deceased who suddenly got
burnt because of the flames of the primus (stove), while
preparing tea. Thus, learned advocate Mr. Bhambhani
contended that if this fact is to be considered then there
was no case of suicide and no allegation of demand of
dowry attributed to the appellant-husband could be
believed as the case could not be proved of any incident
prior to connecting the death. Mr. Bhambhani further
stated that the document which has been accepted by
order below Exhibit 35 as a complaint does not bear the
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endorsement of the Doctor stating of the deceased being
in a fit mental state, to state such a lengthy narration in
the complaint.
10. Referring to the deposition of the witnesses as well as the
statement of the accused No.1 under Section 313 of the
Code of Criminal Procedure, 1973 (hereinafter referred to
in short as ‘Cr.P.C.’), learned advocate Mr. Yogin A.
Bhambhani submitted that there was no quarrel between
husband and the wife who were living separately from
other accused and had settled in life. The subsequent
development after the trial in the form of settlement was
produced. Further statement of the accused and ‘Samjuti
Karar’ dated 21.09.2005 would prove that there was no
grievance of money for the purchase of the flat where the
accused has stated that the actual money was invested
in the name of Rekhaben which would leave no scope to
allege that the deceased was being harassed for money.
11. Countering the above arguments, learned Additional
Public Prosecutor Ms. Jyoti Bhatt submitted that the
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learned trial Court Judge after having considered the
arguments of both the sides had passed the order below
Exhibit 35 which has not been challenged. Hence the
complaint has to be read in evidence. Learned APP has
relied on the decision of the Apex Court in the case of
State by Lokayuktha Police v. H. Srinivas reported in
(2018) 7 SCC 572, to submit that there is no provision
in Cr.P.C. as recorded in the judgment, to bar the
investigating authority to investigate into the matter,
which may for some justifiable ground, not found to have
been entered in the General Diary right after receiving
the Confidential Information. It is also submitted that
the non-production of ‘wardhi’ during the trial would not
hamper the prosecution case since the narration of the
victim being recorded would itself suffice for the I.O. to
proceed for the process which in this case was the
complaint of the deceased which could be considered as
dying declaration before the I.O.
12. Learned APP submitted that the case has been analysed
in accordance to the evidence and the trial Court found
cogent and reliable evidence against the appellant-
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husband and have justified the fact raised by reasoning
that the present appellant-husband who on the day of the
incident had quarelled by demanding money for the flat
which was the immediate cause for the suicide. Thus,
the learned APP urged to upheld the judgment of
conviction. Learned APP has also relied on the decision
of the Apex Court in the case of State of Himachal
Pradesh v. Chaman Lal reported in (2026) 0 JX (SC)
57 and the decision of this Court in the case of Shailesh
Laljibhai v. State of Gujarat reported in (2008) 2 GLR
1522.
13. Having heard both the sides, learned advocate Mr. Yogin
A. Bhambhani for the appellant-husband and learned
Additional Public Prosecutor Ms. Jyoti Bhatt for the
respondent-State, perused the record and proceedings
and the testimony of the witnesses who are all in 8 in
number and the documentary evidences which are about
18.
14. PW1-Shilaben Natwarlal Dataniya is the panch witness for
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the inquest panchnama which was by the witness at
Exhibit 17. She denied the suggestion that the deceased
was her family member and therefore, she had gone for
deposition in the Court. The testimony of this witness
being a relative would not create any doubt as there is no
denial with regard to the condition of the deceased after
her death. The inquest panchnama was drawn as would
be observed by the witness and hence, it cannot be
doubted.
15. PW2-Dr. Mustakahmed Gulamrasool Shaikh on
20.03.2005 was on his duty at Civil Hospital, Ahmedabad
and had handled the body of Rekhaben Biharilal
Kundaliya for post mortem. This witness alongwith Dr. J.K.
Mehta had conducted the post mortem which had started
at 9.10 and had concluded at 10.10. The witness stated
that there were hospital bandages on the neck, chest,
stomach, both hands and both legs. There were traces of
light blue colored ink on the right hand thumb of the
deceased. The post mortem yadi was placed in evidence
at Exhibit 25. The doctor in his testimony has recorded
the injuries with the following description :-
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“(1) I°, II°, III° Burns over face, forehead both ears, ant and
post part of neck, both shoulders, both upper limbs and
palms. Ant. And post. Side of chest, ant & abdomen, ingui
region, both buttocks, private part, both lower limb ankle.
(2) Skin peels of at places of burns.
(3) Redness seen at places of burns.
(4) Black ashes seen at places of burns.
(5) Frontal scalp, eye, eyelashes burnt & single.”
The cause of death as recorded “is shock due to burns
over body”.
16. PW3-Ishwarji Babaji Khant is the panch and is the PSI who
was on duty at Chandkheda Police Station on 05.04.2004
as Incharge PSI. He has stated that PSI Kabsinh
Ratansinh Pagi was at Ahmedabad in connection with
another case which he referred as I-C.R. No.333 of 2004
under Section 462 of IPC. The accused person-Biharilal
Parshottambhai Kundaliya had surrendered before the
Gandhinagar Court in connection with I-C.R. No.8 of 2005
and therefore, he received the written report from
Incharge, PSI to assist in the case and therefore, thus this
witness had come to the Court at Gandhinagar and made
arrest of the accused at 12.45 pm. The panchnama of
the physical condition of the accused was recorded
between 14.00-14.30 hours at Chandkheda Out Police
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Chowky Police Station after undertaking the necessary
procedure and the accused was handed to Shri. Pagi.
The panchnama of the physical condition of the accused
was produced in evidence. He has stated that his
statement was not recorded by the I.O. Kabsinh
Ratansinh Paghi. The panchnama-Exhibit 20 was not in
his writing but was of the writer. The witness has been
examined to put on record stating that the accused No.1
had surrendered before the Court and the rest was done
by this witness under the instructions of the I.O.
17. PW4-Bhanuben Ishwarbhai Chunara is the mother of the
deceased. She is a resident of Maninagar, Isanpur,
Ahmedabad. Her children consist of five daughters and
one son. The marriage of the deceased daughter-
Rekhaben was about 4 years old with Biharilal @ Raju.
After marriage, the deceased had gone to her husband’s
house which consisted of six sisters-in-law, parents-in-law
and the brothers-in-law. The mother stated that after the
‘shrimant’, in the seventh month Rekha was brought to
her parental home. At that time, she did not tell her
anything, one child-a son was born and after two months,
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she had gone back to her matrimonial house. She stated
that Rekha had never come to her parental house on
being offended while whenever Rekha used to visit them,
she used to come with her husband and both used to go
back together. Rekha had never informed of any cruelty
from the side of the husband or the family members and
also denied of any demand of money or any harassment
from the husband or her family members.
18. The witness-mother was declared hostile by the Public
Prosecutor, and after being declared so, she denied her
statement before the police regarding the harassment,
cruelty as well as the demand of dowry. The mother in
the cross examination has also denied of her statement
before the police that three months prior, the son-in-law
Biharilal had come to them and had told her and her son
that they were going to stay separately. The testimony
of the mother recorded before the trial Court was on the
very same day where the agreement/settlement was
drawn and thus, learned AGP Ms. Jyoti Bhatt submitted
that it was an act between the witness and the accused
thus, was deliberately done to impress the mother and
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win over so as to not support the case of the prosecution.
19. In the cross examination, the mother stated that
daughter in the hospital had informed her that while she
was making tea, at that time, there was a sudden burst in
the primus and she got burnt. The mother confirmed
that the daughter got burnt because of the flames of the
primus and the daughter’s husband while protecting her
had also got burnt. The mother-in-law stated that her
son-in-law too had taken treatment. The mother stated
that when she was in the hospital, she continuously
stayed near Rekha and also confirmed that she was with
Rekha when the police had come and also confirmed that
the Executive Magistrate had taken the thumb
impression when she was present. She also confirmed
that Rekha had informed to make arrangements for the
better upbringing of her son ‘Om’ and accordingly, the
son-in-law had made arrangements for the child. The
mother denied that to ensure that the daughter-Rekha
remains happy, Rs.50,000/- in cash was given and
Rs.20,000/- was invested in KVP by them and thereafter,
the son-in-law had taken her daughter back and they
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started staying in Nidhishree Flat, DT-3, 3 rd Floor, Motera,
Taluka and District Gandhinagar.
20. PW5-Bipin Kumudchandra Chunara is the brother of the
deceased, who was residing at Ahmedabad. He has
stated that he has 5 sisters and one brother and the
deceased-Rekha was married to Biharilal four years ago
and she was staying alongwith the parents, mother-in-
law, husband, sisters-in-law and brothers-in-law. After
three months, she started staying separately at
Nidhishree Apartments, and had a son named Om. Rekha
used to come to their house alongwith her husband and
would stay together. According to the brother, he had no
knowledge that Rekha was being harassed for dowry by
the sisters-in-law, brothers-in-law, mother-in-law or was
rebuked and because of the cruelty, she had burnt
herself. This witness-brother was declared hostile as he
had not supported the prosecution case. He had denied
his statement before the police. The Public Prosecutor
had referred to the police statement to contradict the
witness. However, still the brother has not supported
the prosecution case.
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21. PW6-Pravinsinh Jivatsinh Kumpavat was the person called
to remain as panch at the Flat. When he was there, there
was lady named Minaben and another panch was also
there. The witness stated that there was a mattress lying
there, a match stick and stench of kerosene was coming
from the mattress. One match box was found lying below
the mattress and there were about 4-5 burnt match
sticks in the match box. He also stated that there was a
burnt cloth near the mattress. He has also seen a shirt,
blouse, petticoat and saree lying there. The ceiling near
both the rooms near the door was dark because of the
carbon particles. There were 2-3 match sticks near the
door of the room, there was a kerosene can which was in
the room and all the articles were collected by the police
during the panchnama. The panchnama was put in
evidence at Exhibit 32. The panchnama suggest the case
of suicide. The panch witness has not referred about
any blast of kerosene stove.
22. PW7-Kabsinh Ratansinh Paghi who is the Investigating
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Officer had recorded the complaint of the deceased. He
stated that on 19.04.2005, he was at Adalaj Police
Station, he received the ‘wardhi’ of Adalaj Police Station
informing that Rekhaben Biharilal Kundaliya, resident of
Nidhishree Apts., Chandkheda Gandhinagar got burnt
because of the kerosene in the primus and was admitted
in Civil Hospital and therefore, he was directed to take
the necessary proceedings. Accordingly, he visited the
burnt victim-Rekhaben at Civil Hospital, who was under
treatment. When he visited the victim, she was under
treatment. Having verified from the doctor about the
consciousness of the victim and since the victim was in a
conscious state, he had called the Executive Magistrate
for recording of the dying declaration. Thereafter, he
stated that Rekhaben, wife of Biharilal on enquiry had
given a complaint to him wherein she stated to him that
mother-in-law, brothers-in-law Anilbhai and Dilipbhai and
sisters-in-law who were residing at their matrimonial
house after their marriage were often abusing her
mentally and physically and instructed her to bring
money from her parental home and thus, were
demanding dowry. The I.O. stated that the harassment
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was for the money from the paternal home for purchase
of flat.
23. The victim informed the police that on 19.03.2005, when
her husband and the son aged about 3 years, all the
three were at Nidhishree Apartment, at that time, the
husband Biharilal had informed her that money with
regard to the flat was yet to be paid and therefore, he
had asked her to bring the money from the parental
home and if she was not in a position to bring money, she
should die and by saying so had quarrelled with her.
Being offended by such utterances of the husband, she
poured kerosene and had burnt herself and had admitted
to committing suicide. The complaint was against the
accused husband and other 8 accused. After recording
the complaint, he had signed it and send for institution at
Adalaj Police Station as I-C.R. No.108 of 2005 under
Sections 498A and 114 of IPC and under Sections 3 and 7
of the Dowry Prohibition Act.
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24. The I.O. stated that as the brother of the deceased-Bipin
Kumudchandra Chunara was present there, he recorded
his statement who had informed that the husband, the
younger brother-in-law and sisters-in-law were often
harassing her mentally and physically by making demand
of dowry. The I.O. stated that on 20.04.2005 during
treatment Rekhaben died at 2.45 hours and since he
received the ‘wardhi’ through Adalaj Police Station, he
had come at Civil Hospital. After enquiry, he had sent the
yadi to the Executive Magistrate for inquest and after
that, the dead body was sent for post mortem. He
referred to the panchnama of the place of incident and
has stated about the things and articles which were
found at the place of incident. The I.O. stated that about
11 articles were collected in the presence of the panchas
which were sent for FSL examination. The I.O. has
recorded the statement, and since the victim had died
during treatment, hence the offences punishable under
Sections 306 and 34 of IPC were reported to be added.
25. Further deposition of the Investigating Officer records
states that the statement of the mother, brother and
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sister of the deceased were recorded by visiting Isanpur,
Ahmedabad who all had stated that she was facing
mental and physical harassment and demand of money
was made. Initially an amount of Rs.50,000/- was given
and then Rs.20,000/- was deposited in bonds and in total,
Rs.70,000/- were given to the accused, inspite of that
there was harassment. The I.O. has referred to the
complaint by the victim-Rekhaben Biharilal Kundaliya
before him and stated that since both her hands were
burnt, therefore, she could not sign, hence her right hand
thumb impression was taken on the complaint.
26. During the course of recording of the evidence of the I.O.,
the complaint was urged to be exhibited during the trial,
however, objection was raised from the side of the
accused’s advocate. Hence, the learned trial Court Judge
deferred to exhibit the documents and decided to take a
decision only after hearing both the sides. The I.O. in
his evidence has referred to various other documents in
the form of panchnama, sketch, FSL Report which were
referred to him and placed in evidence as Exhibits. Copy
of the bond Mark 14/15 was placed in evidence which the
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I.O. stated that it was on the basis of demand of dowry
which was invested by the mother of the deceased in the
name of the deceased. The same was seized during the
course of investigation which was placed in evidence at
Exhibit 46. The contradiction in the statement of the
witnesses were referred to the I.O. in the examination-in-
chief.
27. While in cross-examination, the I.O. stated that when the
incident occurred, he was at the Court, he was informed
by Adalaj Police Station through written ‘wardhi’ which
was addressed to him whereby he was instructed to
undertake further investigation of the matter. He
confirmed that since he received the ‘wardhi’, the
investigation had become compulsory and he stated that
the investigation is in accordance with law. The ‘wardhi’
was given to him by the PSO. Certain questions were
raised in the cross examination with regard to the receipt
of wardhi. The suggestion was raised by the defence that
no such wardhi was received by him and that to misguide
the Court, he has stated false facts regarding the wardhi.
He confirmed that ‘wardhi’ has not been made part of the
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charge-sheet. The witness stated that on receiving the
wardhi, he found the case to be investigated so, he had
gone to Civil Hospital and met the Doctor, enquiring from
the Doctor about the patient and having confirmed that
she was under treatment in the ward, the Doctor had
given a written report of the patient being conscious
therefore, he had sent the yadi to the Executive
Magistrate for recording of the dying declaration.
28. The ‘wardhi’ was not placed in evidence, the objection
was raised by way of moving Exhibit 35 for stating that it
could not be considered as a complaint but a mere
statement and the ‘wardhi’ which was given to the I.O.
should be considered as a complaint. On having heard
both the sides, observing that the wardhi could not be
considered as first information report and that the
complaint was before the I.O. having noted that the
complaint was given by the complainant while she was
conscious, thus, by an order at Exhibit 35, the objection
was set aside considering the provision of Section 154 of
Cr.P.C. the complaint was ordered to be exhibited.
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29. Learned advocate Mr. Yogin A. Bhambhani had raised a
contention that the document as exhibited by an order
below Exhibit 35 cannot be read in evidence and the
complaint of the deceased should be considered as a
statement and hence, should not be read in evidence. It
is further submitted that the first information received by
the police station was recorded in the form of ‘wardhi’,
which has not been made part of the trial and in absence
of ‘wardhi’ on record, the statement before the I.O.
should be read only as a statement under Section 161 of
Cr.P.C. Learned advocate Mr. Bhambhani has referred to
the decision of this Court in the case of Lakhiram
Narandas Bawasadhu v. State of Gujarat reported in
(2003) Cri. L.J. 585 to state that the information
received if not taken down in writing, then it would vitiate
the trial. Learned advocate Mr. Bhambhani also
submitted that the ‘wardhi’ refers to the initial
information to police report sent to the station, and if the
initial report is not presented before the trial Court, it
could impact the credibility of the prosecution case. It is
submitted that the investigation initiated without the
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initial stage of registration of the original complaint would
become suspicious and that benefit should be granted to
the accused.
30. Countering the above arguments, learned Additional
Public Prosecutor Ms. Jyoti Bhatt has placed reliance on
the decision in the case of State by Lokayuktha Police
v. H. Srinivas reported in (2018) 7 SCC 572, learned
APP submitted that failure to make entries in the station
diary per-se would not be illegal. Learned APP submitted
that there is no bar for the I.O. to investigate into the
matter for some justifiable ground and non-recording of
information in the station diary would not be fatal to the
case unless it shows of any prejudice caused to him.
31. Here, the I.O. stated that he had received the written
wardhi and accordingly, he had gone to the hospital
where he had also called the Executive Magistrate to
record the dying declaration by sending yadi. Here the
fact is that the wardhi could not be produced on record
and the circumstances which circumstances have been
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referred by the I.O. for non-production. The crucial
aspect which becomes noteable is that prior to the
recording of the complaint, the dying declaration was
recorded by the Executive Magistrate. The issue now
then becomes necessary to be interpreted as to whether
the complaint recorded by the I.O. could be considered as
a complaint by the deceased under Section 154 of Cr.P.C.
or a statement which is recorded in accordance to
Section 32 of the Evidence Act. Generally, if the
complaint was an information given to the police but was
never formally recorded as first information report and
the official wardhi / record is missing, then the complaint
during investigation would be considered as statement
under Section 162 of Cr.P.C. and such statement are not
admissible as substantial evidence and are only used to
contradict the witness during the trial.
32. Here the witness as I.O. had stated that upon the wardhi
he received, he had proceeded towards Civil Hospital,
Ahmedabad. The ‘wardhi’ was actually received and the
I.O. supported the version by visiting Civil Hospital but it
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so happened that prior to recording the complaint, he got
the dying declaration recorded by the Executive
Magistrate. Thus, according to the I.O., the complaint
was given by the deceased before him. If the ‘wardhi’ on
record is not accepted or was not presented in the Court,
it does not impact the case. The said document cannot
be believed as first information report to set the law in
motion unless its existence is proved through other
evidence. Here in this case, the information with regard
to the deceased was certainly received by Adalaj Police
Station. It is the evidence of the I.O. that it was only
after the instructions by the PSO by way of ‘wardhi’, he
proceeded to the Civil Hospital. It cannot be said that the
said ‘wardhi’ was not issued by police station, otherwise
the I.O. would not have the knowledge about the
incident. Hence, non-production of ‘wardhi’ would not
prejudice the accused. The prior and subsequent act of
I.O. also becomes relevant to consider the existence of
the document.
33. According to PW8-Executive Magistrate-Jashvantkumar
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Shanabhai Patel, on 19.03.2005 at 18.20 hours, he
received the yadi in two copies at his home which was
delivered by Shahibaug Police Station Natwarbhai Buckle
No.5193 of Sub-Inspector of Adalaj Police Station. The
yadi was produced in evidence at Exhibit 52.
34. Exhibit 52 makes a mention that at Adalaj Police Station
there is a Janva Jog Entry No.104/05 dated 19.03.2005
recorded at 15.25 hours, where the injured-Rekhaben
Biharilal Kundaliya, resident of Nidhishree Flat, DT-3, 3 rd
Floor, Motera, Gandhinagar at about 14.45 hours on
19.03.2005 at the referred address, while filing the
primus got burnt and for treatment, she was brought to
Civil Hospital, Ahmedabad in Ward No.G-1 and the
Executive Magistrate was called for recording of the
dying declaration. Thus, the non-production of ‘wardhi’
which had been received by the I.O. would not be vital
since the yadi received by the Executive Magistrate at
Exhibit 52 makes a reference of the Janva Jog Entry which
has been made in the Adalaj Police Station. The said fact
could be considered as first information report for the
police to come in motion to investigate the matter. The
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case referred by learned APP Ms. Jyoti Bhatt in the case
of State by Lokayuktha Police (supra) would also
become relevant. Relevant part of the decision reads as
under :-
“18. As the concept of maintaining General Diary has its
origin under the Section 44 of Police Act of 1861 as
applicable to States, which makes it an obligation for the
concerned Police Officer to maintain a General Diary, but
such non-maintenance per se may not be rendering the
whole prosecution illegal. However, on the other hand, we
are aware of the fact that such non-maintenance of General
Diary may have consequences on the merits of the case,
which is a matter of trial. Moreover, we are also aware of the
fact that the explanation of the genesis of a criminal case, in
some cases, plays an important role in establishing in
prosecution’s case. With this background discussion we must
observe that the binding conclusions reached in the
paragraph 120.8 of Lalitha Kumari Case (Supra) is aon
obligation of best efforts for the concerned officer to record
all events concerned an enquiry. If the Officer has not
recorded, then it is for the trial court to weigh the effect of
the same for reasons provided therein. A court under a writ
jurisdiction or under the inherent jurisdiction of the High
Court is ill equipped to answer such questions of facts. The
treatment provided by the High Court in converting a mixed
question of law and fact concerning the merits of the case,
into a pure question of law may not be proper in light of
settled jurisprudence.
19. Our conclusion herein is strengthened by the fact that
CrPC itself has differentiated between irregularity and
illegality. The obligation of maintenance of General diary is
part of course of conduct of the concerned officer, which may
not itself have any bearing on the criminal trial unless some
grave prejudice going to the root of matter is shown to exist
at the time of the trial. Union of India and Ors. v. T.
Nathamuni, (2014) 16 SCC 285. Conspicuous absence of any
provision under CrPC concerning the omissions and errors
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herein. Niranjan Singh and Ors. v. State of Uttar Pradesh, AIR
1957 SC 142.
20. Moreover, the requirement of the preliminary enquiry is
well established by judicial precedents as a check on
mushrooming false prosecution against public servants by
persons who misuse the process of law for their personal
vengeance. Such preliminary check would be beneficial and
has been continuously approved by catena of judgments of
this Court. [refer to P. Sirajuddin Case, (1970) 1 SCC 595,
Lalitha Kumari Case (Supra)]. In light of the discussion, we
cannot sustain the reasoning provided by the High Court on
this aspect.”
35. Here in this matter, the objection which was raised was
with regard to the complaint which was recorded by the
I.O. who stated that he received the wardhi from Adalaj
Police Station. The Janva Jog Entry which was recorded
before the police station is proved by the yadi produced
by the Executive Magistrate. Thus, the non-production of
the wardhi received by the police would not be
considered as fatal to the prosecution case nor would be
considered as prejudicing the accused. The ‘wardhi’ in its
format meaning would be an official police
communication or intimation. The legal status of the
initial information would depend upon the nature of the
offence. Here, the yadi which was received by the
Executive Magistrate at Exhibit 52 proves the fact that
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the information as Janva Jog Entry which be the first
information to Adalaj Police Station registered as I-104/05
on 19.03.2005 at 15.25 hours. In view of the evidence
on record, the non-production of ‘wardhi’ by the I.O.
would not be vital to the prosecution and that it cannot
be said that it would vitiate the whole trial.
36. The statement of the deceased may be admissible in
evidence in terms of Section 32(1) of the Evidence Act to
prove the cause of death or to any circumstance /
transaction which resulted in death. Thus, if the
complaint recorded by the I.O. is to be considered as a
statement under Section 161 of Cr.P.C., then it could be
considered as dying declaration after the death. Here
the complaint which was recorded by the I.O. would then
become the dying declaration before the I.O. prior to
that, the dying declaration was also recorded by the
Executive Magistrate.
37. Reference is required to be made to the decision of the
Apex Court in the case of Mukesh Gopalbhai Barot v.
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State of Gujarat reported in (2010) 12 SCC 224 where
Paragraph 17 reads as under :-
“17. A bare perusal of the aforesaid provision when read with
Section 32 of the Evidence Act would reveal that a statement
of a person recorded under Section 161 would be treated as a
dying declaration after his death. The observation of the
High Court that the dying declarations, Extns. 44 and 48 had
no evidentiary value, therefore, is erroneous. In this view of
the matter, the first dying declaration made to the magistrate
on 14-9-1993 would, in fact, be the first information report in
this case.”
38. Section 32(1) of the Evidence Act has been enacted by
the legislature advisedly as a matter of necessity as an
exception to the general rule that “hearsay evidence” is
“no evidence” and the evidence which cannot be tested
by cross-examination of a witness is not admissible in the
Court of law. The purpose of cross-examination is to test
the veracity of the statement made by a witness. The
requirement of administering oath and cross-examination
of a maker of a statement can be dispensed with
considering the situation in which such statement is
made, namely, at a time when the person making the
statement is almost dying. Since he cannot be cross-
examined, necessity of administering oath has been
dispensed with. The legislature, in the circumstances,
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has accorded a special sanctity which should be
respected unless there are clear circumstances brought
out in the evidence to show that the person making the
statement was not in expectation of death. Further, the
said circumstances would not affect the admissibility of
the statement but only its weight.
39. Here in this matter, there are two dying declarations, one
before the Executive Magistrate and another before the
I.O. In view of the judgment in Mukesh Gopalbhai
Barot (supra), Dying Declaration before the Executive
Magistrate would in fact be the first information report in
the present matter, as dying declaration before the
Executive Magistrate was recorded prior the statement
before the I.O. The Executive Magistrate was examined
as PW8-Jashvantkumar Shanabhai Patel and as referred
hereinabove after he received the Yadi Exhibit 52, he had
gone to Civil Hospital in the Burns Ward in a police
vehicle. The Executive Magistrate stated that the person
who were near bed no.3 had been instructed to go out of
the room and he had started recording the statement of
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the patient on bed no.3 at 18.45 hours in the question
and answer form. The Executive Magistrate stated that
when the statement was recorded neither the relatives
nor the police persons were present. The deceased was
primarily asked her name and her husband’s name and
then when asked about the incident at question No.10,
she stated that while she was preparing tea on the
primus suddenly, there was a blast and she got burnt and
therefore, the incident occurred. In response to question
No.11, she stated that the incident had occurred
suddenly. When asked by question No.12, whether she
was burnt by anyone, she refused and answered in
negative. When asked about the mental and physical
cruelty at question No.13, she stated that her husband
was harassing her for money. The flat was purchased
and was demanding dowry. While in the answer in
question No.14, she stated that she had dispute with her
sisters-in-law and husband and that she was having six
sisters-in-law. When she was asked at question No.15
whether she had made an attempt to commit suicide, she
confirmed, in affirmative.
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40. The evidence thus which has been brought on record by
way of dying declaration at Exhibit 53 suggests that
according to the victim, she got burnt because of the
flames from the primus while she was preparing tea and
suddenly, the incident had occurred. While in question
No.15, when the Executive Magistrate had asked her
whether she had made an attempt to commit suicide, the
answer was ‘yes’. Both these answers are contradictory
in nature. While answering question No.17 about
presence of any person at the place, she stated that she
was in the kitchen and her husband was in another room.
Thus, it was not the grievance of the complainant victim
that her husband had burnt her rather it has come on
record that he attempted to save her and during that
process, he too had got burnt.
41. The Executive Magistrate stated that the dying
declaration was recorded at 18.45 hours and had
concluded at 19.00 hours and thereafter, the Doctor had
made an endorsement of ‘the patient being conscious,
oriented and able to speak’. He had also received the
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signature of the Doctor at that time. The Executive
Magistrate stated that when the patient had given the
statement, she was fully conscious, she was in fit state of
mind and was very clearly giving her statement.
42. In the cross examination, the Executive Magistrate has
referred to Exhibit 52 where reference was made of the
victim admitted in ward no.1 in Civil Hospital,
Ahmedabad. In the statement, it was recorded that while
filing the primus with kerosene, she got burnt. The
Executive Magistrate was confronted with question No.13
while making references from question No.1 to 12. The
question No.13 was whether anyone was subjecting her
to mental and physical cruelty. The question was direct
and suggesting. It is the clarification of the Executive
Magistrate that he had asked the question so as to bring
the true fact before the Court. It was also stated by the
Executive Magistrate that without any difficulty, victim
had given answers to questions No.1 and 12 and for
bringing the truth, he had asked question No.13. He
denied the suggestion that questions No.13 and 14 were
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wrongly asked by him. The Executive Magistrate was
also asked for question No.11 that the incident had
occurred suddenly, inspite of that question No.15 was
falsely asked. He denied the suggestion that though the
answer to question No.11 was there on record, he had
falsely raised question No.15. From Exhibit 53-Dying
declaration, it transpires that question No.15 was
whether she had made an attempt to commit suicide, to
which the victim affirmed.
43. The controversy which has been raised by the defence is
about the answer to question No.15 and question No.11
and that while answering question No.11, the victim had
stated that supplementing the answer to question No.10
that because of the burst while preparing tea on the
primus, she got burnt while question No.15 was a
suggestive question by the Executive Magistrate having
asked the victim whether she attempted to commit
suicide and the answer recorded is ‘yes’, with no further
clarification.
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44. The witness as a Executive Magistrate stated in the cross
examination that he had gone to the hospital. Dr.
Manishbhai was there. According to the Executive
Magistrate, it was not necessary to enquire from the
Doctor prior to recording the dying declaration and
voluntarily stated that the patient was conscious and
such endorsement was of 6 o’clock bearing the signature
of the Doctor. After the endorsement of the Doctor at 6
o’clock, he reached the hospital at 6.45 at the Hospital,
he had received the yadi at his residence at 6.20 hours.
He denied the suggestion that when the dying
declaration was recorded, at that time, the brother,
mother and the husband were present there.
45. The evidence of the Dying Declaration at Exhibit 53
recorded by the Executive Magistrate if it is to be
believed then the victim stated that the incident had
occurred at 2.30 in the afternoon at her own flat when
she alongwith her husband and child were present. The
victim was in the kitchen and the husband was in his
room. She was preparing tea and while she preparing
tea on the primus, there was a sudden burst and she got
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burnt. The incident was stated to be all of a sudden. Till
question No.12, the incident was referred as sudden and
accidental, while from question No.13, the victim stated
she was harassed by the husband for money and was
demanding dowry as flat was purchased. She also stated
that she had tried to commit suicide. The mother and
brother who are examined stated that they were present
near the victim when the dying declaration was recorded.
The brother and mother had denied of any demand of
money by the husband. The mother has denied of any
statement before the police of giving Rs.50,000/- or for
purchasing Kisan Vikas Patra (KVP) of Rs.20,000/- in the
name of the daughter. The mother has denied of any
harassment from the husband and the family members to
her daughter for demand of money and even denied the
case of prosecution that the deceased-Rekha could not
endure the harassment and therefore, she had died. The
Investigating Officer has produced on record Exhibit 46
which is the KVP in the name of the deceased-Rekhaben
B. Kundaliya as well as one-Nita A. Dutt. The serial
number of the Certificates are 260795 and 260796 in the
denomination of Rs.10,000/- each. The evidence has not
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been brought on record as who is Nitaben A. Dutt. From
the array of the accused who are before the trial Court,
none of them are referred as Nitaben A. Dutt. Why the
money was invested in the name of the deceased-
Rekhaben B. Kundaliya with Nitaben A. Dutta does not
become clear where it is the case of the prosecution that
the mother had invested the money for the flat which
was demanded by the accused, while the mother as well
as the brother have denied of giving money of
Rs.50,000/- as cash or any investment in KVP. In the
cross examination of PW5-the brother-Bipin
Kumudchandra Chunara by the Public Prosecutor, the
question was raised of his statement before the Police.
was asked the question that he had given the money, he
and his mother had given Rs.70,000/-, Rs.50,000/- in cash
and Rs.20,000/- for purchasing KVP’s, which he had
invested in the joint name of his sisters-Rekha and
Nitaben which the brother denied. In view of this fact, if
the amount at all was demanded as dowry by the
husband of the deceased, there would not have been any
necessity for depositing the money in the joint name of
the deceased and her sister-Nitaben A. Dutt. There is no
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evidence on record by way of any cash receipt for
payment of Rs.50,000/- to the accused. The flat was
already purchased since the incident had taken place in
the flat. The dying declaration does not record that on
the date of the incident, the deceased-victim had a
quarrel with her husband or her husband on that day, had
asked for any money or had demanded dowry. No
immediate incident with the accused to commit suicide
has not been proved or stated by the deceased in her
dying declaration at Exhibit 53.
46. The principle has been laid down in various Supreme
Court judgments 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
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 deathPage 42 of 73
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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 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 statement even withoutPage 43 of 73
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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 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 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 anyPage 44 of 73
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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
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. 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].
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47. In the case of Dashrath alias Champa and Ors. v.
State of M.P. reported in (2007) 12 SCC 487, it was
held as under :
“11. …. The principle on which dying declaration is admitted in
evidence is indicated in legal maxim ‘nemo moriturus
praesumitur mentire — a man will not meet his Maker with a
lie in his mouth’.
11. This is a case where the basis of conviction of the
accused is the dying declaration. The situation in which a
person is on the deathbed is so solemn and serene when he
is dying that the grave position in which he is placed, 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. Besides, should the dying declaration be
excluded it will result in miscarriage of justice because the
victim being generally the only eyewitness in a serious crime,
the exclusion of the statement would leave the court without
a scrap of evidence.
12. Though a dying declaration is entitled to great weight, it
is worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth
as an obligation of oath could be. This is the reason the court
also insists that the dying declaration should be of such a
nature as to inspire full confidence of the court in its
correctness. The court has to be on guard that the statement
of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court must be
further satisfied that the deceased was in a fit state of mind
after a clear opportunity to observe and identify the
assailant. Once the court is satisfied that the declaration was
true and voluntary, undoubtedly, it can base its conviction
without any further corroboration. 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. This
Court has laid down in several judgments the principles
governing dying declaration, which could be summed up as
under as indicated in Paniben v. State of Gujarat [(1992) 2
SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC 1817] : (SCC pp.
480-81, paras 18-19)Page 46 of 73
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(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration. (See
Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC
(Cri) 376 : (1976) 2 SCR 764] )
(ii) If the court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985)
1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] and
Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983
SCC (Cri) 169 : AIR 1983 SC 164] .)
(iii) The court has to scrutinise the dying declaration carefully
and must ensure that the declaration is not the result of
tutoring, prompting or imagination. The deceased had an
opportunity to observe and identify the assailants and was in
a fit state to make the declaration. (See K. Ramachandra
Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC
(Cri) 473 : AIR 1976 SC 1994] .)
(iv) Where a dying declaration is suspicious, it should not be
acted upon without corroborative evidence. (See Rasheed
Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it is
to be rejected. (See Kake Singh v. State of M.P. [1981 Supp
SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021] )
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction. (See Ram Manorath v. State of
U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected. (See
State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980
Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617] .)
(viii) Equally, merely because it is a brief statement, it is not
to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. (See Surajdeo Ojha v. State
of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 579 : AIR 1979
SC 1505] .)
(ix) Normally, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the
eyewitness said that the deceased was in a fit and conscious
state to make the dying declaration, the medical opinionPage 47 of 73
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cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp
SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be
acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC
390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519] .)
(xi) Where there are more than one statements in the nature
of dying declaration, the one first in point of time must be
preferred. Of course, if the plurality of the 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 : AIR
1982 SC 839] .)
13. In the light of the above principles, the acceptability of
the alleged dying declaration in the instant case has to be
considered. The dying declaration is only a piece of untested
evidence and must, like any other evidence, satisfy the court
that what is stated therein is the unalloyed truth and that it is
absolutely safe to act upon it. 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 the basis of conviction, even if there is no
corroboration. (See Gangotri Singh v. State of U.P. [1993
Supp (1) SCC 327 : 1993 SCC (Cri) 102 : JT (1992) 2 SC 417] ,
Goverdhan Raoji Ghyare v. State of Maharashtra [1993 Supp
(4) SCC 316 : 1994 SCC (Cri) 15 : JT (1993) 5 SC 87] , Meesala
Ramakrishan v. State of A.P. [(1994) 4 SCC 182 : 1994 SCC
(Cri) 838 : JT (1994) 3 SC 232] and State of Rajasthan v.
Kishore [(1996) 8 SCC 217 : 1996 SCC (Cri) 646 : JT (1996) 2
SC 595] .)
14. There is no material to show that the dying declaration
was the result or product of imagination, tutoring or
prompting. On the contrary, the same appears to have been
made by the deceased voluntarily. It is trustworthy and has
credibility.” [Ed. : As observed in P.V. Radhakrishna v. State
of Karnataka, (2003) 6 SCC 443 at SCC pp. 447-51, paras 10-
14 : 2003 SCC (Cri) 1679.]”
48. In the case of Atbir v. Government of NCT of Delhi
reported in (2010) 9 SCC 1, it was held by the Apex
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Court as under:
“(A) Dying declaration
14. It is true that in the case on hand, conviction under
Section 302 was based solely on the dying declaration made
by Sonu @ Savita and recorded by the investigating officer in
the presence of a doctor. Since we have already narrated the
case of the prosecution which led to three deaths, eliminating
the second wife and the children of one Jaswant Singh, there
is no need to traverse the same once again. This Court in a
series of decisions enumerated and analysed that while
recording the dying declaration, factors such as mental
condition of the maker, alertness of mind and memory,
evidentiary value, etc. have to be taken into account.
15. In Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976
SCC (Cri) 376] this Court held : (SCC pp. 106-07, para 6)
“6. … It is well settled that though a dying declaration
must be approached with caution for the reason that
the maker of the statement cannot be subject to cross-
examination, there is neither a rule of law nor a rule of
prudence which has hardened into a rule of law that a
dying declaration cannot be acted upon unless it is
corroborated….”
It is true that in the same decision, it was held, since
the investigating officers are naturally interested in the
success of the investigation, the practice of the
investigating officer himself recording a dying
declaration during the course of an investigation ought
not to have been encouraged.
16. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999
SCC (Cri) 104] this Court held that lapse on the part of the
investigating officer in not bringing the Magistrate to record
the statement of the deceased should not be taken in favour
of the accused. This Court further held that a statement of
the deceased recorded by a police officer in a routine manner
as a complaint and not as a dying declaration can also be
treated as dying declaration after the death of the injured
and relied upon if the evidence of the prosecution witnesses
clearly establishes that the deceased was conscious and was
in a fit state of health to make the statement.
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17. The effect of the dying declaration not recorded by the
Magistrate was considered and reiterated in Balbir Singh v.
State of Punjab [(2006) 12 SCC 283 : (2007) 1 SCC (Cri) 715] .
Para 23 of the said judgment is relevant which reads as under
: (SCC p. 289)
“23. However, in State of Karnataka v. Shariff [(2003) 2
SCC 473 : 2003 SCC (Cri) 561] , this Court categorically
held that there was no requirement of law that a dying
declaration must necessarily be made before a
Magistrate. This Court therein noted its earlier decision
in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC
517 : 1998 SCC (Cri) 1085] wherein it was also held
that the dying declaration need not be in the form of
questions and answers. (See also Laxman v. State of
Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri)
1491] .)”
It is clear that merely because the dying declaration
was not recorded by the Magistrate, by itself cannot be
a ground to reject the whole prosecution case. It also
clarified that where the declaration is wholly
inconsistent or contradictory statements are made or if
it appears from the records that the dying declaration
is not reliable, a question may arise as to why the
Magistrate was not called for, but ordinarily the same
may not be insisted upon. This Court further held that
the statement of the injured, in the event of her death
may also be treated as FIR.
18. In State of Rajasthan v. Wakteng [(2007) 14 SCC 550 :
(2009) 3 SCC (Cri) 217] the view in Balbir Singh case [(2006)
12 SCC 283 : (2007) 1 SCC (Cri) 715] has been reiterated.
The following conclusions are relevant which read as under :
(Wakteng case [(2007) 14 SCC 550 : (2009) 3 SCC (Cri) 217] ,
SCC p. 554, paras 14-15)
“14. Though conviction can be based solely on the
dying declaration, without any corroboration the same
should not be suffering from any infirmity.
15. While great solemnity and sanctity is attached to
the words of a dying man because a person on the
verge of death is not likely to tell lie or to concoct aPage 50 of 73
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case so as to implicate an innocent person but the
court has to be careful to ensure that the statement
was not the result of either tutoring, prompting or a
product of the imagination. It is, therefore, essential
that the court must be satisfied that the deceased was
in a fit state of mind to make the statement, had clear
capacity to observe and identify the assailant and that
he was making the statement without any influence or
rancour. Once the court is satisfied that the dying
declaration is true and voluntary it is sufficient for the
purpose of conviction.”
19. In Bijoy Das v. State of W.B. [(2008) 4 SCC 511 : (2008) 2
SCC (Cri) 449] this Court after quoting various earlier
decisions, reiterated the same position.
20. In Muthu Kutty v. State [(2005) 9 SCC 113 : 2005 SCC
(Cri) 1202] the following discussion and the ultimate
conclusion are relevant which read as under : (SCC p. 120,
paras 14-15)
“14. This is a case where the basis of conviction of the
accused is the dying declaration. The situation in which
a person is on the deathbed is so solemn and serene
when he is dying that the grave position in which he is
placed, is the reason in law to accept veracity of his
statement. It is for this reason that the requirements of
oath and cross-examination are dispensed with.
Besides, should the dying declaration be excluded it
will result in miscarriage of justice because the victim
being generally the only eyewitness in a serious crime,
the exclusion of the statement would leave the court
without a scrap of evidence.
15. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has no
power of cross-examination. Such a power is essential
for eliciting the truth as an obligation of oath could be.
This is the reason the court also insists that the dying
declaration should be of such a nature as to inspire full
confidence of the court in its correctness. The court
has to be on guard that the statement of the deceased
was not as a result of either tutoring, or prompting or a
product of imagination. The court must be further
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satisfied that the deceased was in a fit state of mind
after a clear opportunity to observe and identify the
assailant. Once the court is satisfied that the
declaration was true and voluntary, undoubtedly, it can
base its conviction without any further corroboration. 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.”
21. The same view has been reiterated by a three-Judge
Bench decision of this Court in Panneerselvam v. State of T.N.
[(2008) 17 SCC 190 : (2010) 4 SCC (Cri) 496] and also the
principles governing the dying declaration as summed up in
Paniben v. State of Gujarat [(1992) 2 SCC 474 : 1992 SCC
(Cri) 403] .
22. The analysis of the above decisions clearly shows that:
(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
conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
(v) Where the 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
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discarded.
(ix) When the eyewitness 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 the basis of conviction, even if there is no
corroboration.”
49. The complaint which was ordered to be taken into
evidence below Exhibit 35 by the trial Court is at Exhibit
55. The complaint was recorded on 19.03.2005 by PW7-
Kabsinh Ratansinh Paghi . The place of residence is
Nidhishree Flat, DT-3, 3rd Floor, Motera, Taluka and
District Gandhinagar. The complaint so recorded gives a
narration therein, in detail and the burns which the victim
sustained was of third degree over face, forehead, both
ears, chest and part of neck and anterior part of neck,
both shoulders and other parts of the body. The
Executive Magistrate has recorded the dying declaration
in question and answer form, while the complaint at
Exhibit 55 is in a narrative form. As per the I.O., the
complainant stated that she was staying alongwith her
husband and child named ‘Om’ aged 3 years for the last
three months in the Flat. The husband was having a
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business of channel. Her marriage had taken place 4
years earlier. After marriage, she started residing with
the in-laws at Dariakhan Gummet, Dudeshwar,
Ahmedabad. The complainant has given the names of
all the persons who were residing with her. She has
stated about the address of her parental house.
According to the complainant, initially all the accused
were harassing her mentally and physically for trivial
reasons. They were making demands, for bringing
money from the parental house and whenever, she used
to go home, her mother used to pacify her and send her
back to the in-laws house. Three months earlier, she
had shifted with her husband and child in the flat.
According to the complainant, often her mother-in-law,
sisters-in-law and husband would ask her to bring money
from the parental house for flat and would taunt her
regarding dowry. The complaint suggests that all the
persons who were shown as accused during the trial were
initially harassing her for minor reasons and thus, they
were asking her to bring money for the flat. The crucial
aspect that becomes necessary to note that all the
accused, except the husband, have been acquitted.
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Three months earlier to the incident, the deceased had
shifted with her husband and child to the flat. It is not
the case that the mother-in-law, sisters-in-law and
brother-in-law were asking her to bring money for the
flat, where they have been wanting to stay. It is not the
evidence of the witnesses that the remaining accused
wanted the deceased to bring money as dowry on the
ground that the rest of the accused wanted to reside in
that flat. The trial Court have acquitted all of them except
the husband. The complaint suggests that on that day
when the husband and child were present in the flat,
Rekhaben’s husband had asked her to bring money for
the flat from the parental house and she refused. There
was a verbal quarrel between them and the husband told
her that if she was not willing to bring money from her
paternal home, then she should die and thus, being
offended by such utterances, in the afternoon between
2.30-2.45 pm, by pouring kerosene on her self she
ablazed herself. She also stated that because of the
burns she started shouting and the people from the
residing area had gathered there. Her husband tried to
douse the fire, he also got burnt, her husband had
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brought her to Civil Hospital, Ahmedabad in a rickshaw
and the Doctor had put bandages on her hands, legs and
chest. The complaint also records that she has stated
before the Police that she was totally conscious and she
was admitted in the Civil Hospital, Ahmedabad. The
cause for committing suicide as per the deceased-
complainant was that all the accused who were before
the trial Court were demanding dowry and were
physically and mentally harassing her and even had
asked her to bring money from her parental home for the
flat and if she did not bring the money, the husband had
asked her to die.
50. The complaint Exhibit 55 does not bear any endorsement
of the Doctor, whether the complaint was recorded in a fit
state of mind does not get proved. Further, the dying
declaration and the complaint thereafter have been
recorded simultaneously. The deceased had not
informed the Executive Magistrate of her quarrel on that
day with the husband who had asked her to bring the
money for the flat otherwise to die. The dying
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declaration records that the deceased got burnt while she
was preparing tea and the incident was sudden while
complaint Exhibit 55 refers to suicide and the dying
declaration after question No.13 also suggests attempt of
suicide by deceased. The I.O. was required to enquire
about the ownership of the flat since the deceased and
the appellant accused were staying in the flat for the last
three months prior to the incident with their child aged 3
years. KVP which has been brought on record shows that
the amount had been deposited in the name of the
deceased as well as the deceased’s sister. The I.O. was
required to produce on record the documents of
ownership of flat as also the record with regard to
payment of the purchase money of the flat. If the I.O.
could procure the copy regarding the KVP’s bond which is
on record at Exhibit 46, the I.O. could have certainly
investigated and procure the documents regarding
ownership of flat, for which money had been demanded
as dowry by the accused as husband. Had the appellant
as husband demanded the amount, then the amount
would have been in the hands of the accused and would
not have been deposited in the name of deceased-Rekha,
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which as per record was also deposited for another sister-
Nita A. Dutt. The mother and brother of the deceased
have been examined as witness. The witnesses have
denied any payment of dowry. It appears as per the
version of the I.O. that Rs.50,000/- was given in cash and
Rs.20,000/- was in the bond, thus total Rs.70,000/- was
paid inspite of that, often the deceased was facing
physical and mental harassment for money. These
allegations have already been denied by the family
members of the deceased. No documentary evidence
had been produced of payment of Rs.50,000/- in cash
and Rs.20,000/- being deposited in the bond in the name
of the deceased demanded as dowry. The I.O. has not
enquired from the police with regard to the fitness of the
mind of the deceased while recording the complaint. No
Doctor has been examined to prove about the mental
state of the deceased who died within 24 hours of the
incident. The post mortem records 3 rd degree burns. The
I.O. stated that when he had visited the hospital, he had
enquired from the Doctor about the consciousness of the
victim and therefore, he had invited the Executive
Magistrate for recording the dying declaration. It is clear
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case that only after recording the dying declaration, the
complaint of the victim was taken.
51. Learned Additional Public Prosecutor Ms. Jyoti Bhatt has
placed reliance on the endorsement of Dr. Manish Jain
where the endorsement records at 7.05 pm on
19.03.2005 as of a patient being conscious, oriented and
able to speak. The dying declaration came to be
conclude at 19.00 hours. Thereafter, the endorsement
has been recorded of the Doctor. In the coss-
examination, it is stated by the Magistrate that it was not
necessary to enquire from the Doctor prior to recording
the dying declaration and he necessarily stated that the
endorsement of being conscious made at 6 o’ clock. In
the cross examination, he stated that he had reached at
6.45 and on the dying declaration-Exhibit 53, the
endorsement is of the Doctor which reads as 7.05 pm.
Thus if the fact is considered that the patient was
conscious and oriented to give the dying declaration,
then the inconsistency in the dying declaration would
become a necessary issue to be analysed. In the dying
declaration the victim had stated that she got burnt
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suddenly because of the blaze from the primus while
preparing tea, while immediately when the complaint was
recorded before the I.O., the deceased has stated that
she committed suicide by pouring kerosene on herself
and burnt herself with a match stick. The said difference
in the recording of the dying declaration would become
crucial and create a doubt about the correctness of the
dying declaration before both the Executive Magistrate as
well as the I.O. The allegations of demand of money for
purchase of flat does not get proved by the documentary
evidence since the mother and brother of the deceased
who have been examined have not supported the case of
the prosecution. The Yadi which was sent by the
Executive Magistrate which is at Exhibit 52 records of the
Janva Jog Entry at Adalaj Police Station as No.104 / 05
dated 19.03.2005 at 15.25 hours that Rekhaben Biharilal
Kundaliya, resident of Nidhishree Flat, DT-3, 3 rd Floor,
Motera, Taluka and District Gandhinagar, while she was
filling kerosene in the primus she got burnt at 14.45
hours. The dying declaration records that it was an
accident, while the complaint records of suicide. Thus,
the disparity between the two documents which was
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recorded immediately, one after another, giving two
different versions could lead to the conclusion that the
dying declaration was not of sterling quality on which the
conviction can be passed, more so, when the family
members of the deceased have not corroborated the
case of the prosecution. In addition, inspite of the
presence of the family members, no complaint was
recorded of the members of the deceased’s parental
family. Though the wardhi was sent to the I.O., the same
has not been proved on record and it was a necessary
mandate for the I.O. to have proved the case that he had
initiated the investigation after having received the
wardhi. The documentary evidence in the form of KVP’s
on record falls in favour of the accused as the same are
in the name of the deceased and the deceased’s sister
when the mother and brother of the deceased denies of
any dowry demand. The dying declaration does not
disclose any quarrel with the husband on that day and of
the utterances of the husband making a demand for
dowry and on failure to bring the dowry directing her to
die. The allegation of demand of dowry was against all
the accused, the trial Court Judge has not found any case
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against rest of the accused. Thus, the only analysis of
the evidence would be concentrated on the evidence
against the appellant as a husband.
52. Crucially, the dying declaration does not record of the
immediate cause for the suicide of the deceased alleging
before the Executive Magistrate that it was the husband
who had quarelled with her on that day and had
instigated her to take the ultimate step.
53. In the case of Muthu Kutty v. State, (2005) 9 SCC
113 it was held that :
“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 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
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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…”
54. In the case of Sanju v. State of M.P., (2002) 5 SCC
371 it was observed by Hon’ble Supreme Court as under:
“8. In Swamy Prahaladdas v. State of M.P. [1995 Supp (3)
SCC 438 : 1995 SCC (Cri) 943] the appellant was charged for
an offence under Section 306 IPC on the ground that the
appellant during the quarrel is said to have remarked to the
deceased “to go and die”. This Court was of the view that
mere words uttered by the accused to the deceased “to go
and die” were not even prima facie enough to instigate the
deceased to commit suicide.”
“12. …Even if we accept the prosecution story that the
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 inadvisable 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 on the spur of the moment cannot be taken to be
uttered with mens rea. It is in a fit of anger and emotion….”
55. In the case of Hans Raj v. State of Haryana, (2004)
12 SCC 257 Hon’ble Supreme Court held as under:
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“12. The question then arises as to whether in the facts and
circumstances of the case the appellant can be convicted of
the offence under Section 306 IPC with the aid of the
presumption under Section 113-A of the Indian Evidence Act.
Any person who abets the commission of suicide is liable to
be punished under Section 306 IPC. Section 107 IPC lays
down the ingredients of abetment which includes instigating
any person to do a thing or engaging with one or more
persons in any conspiracy for the doing of a thing, if an act or
illegal omission takes place in pursuance of that conspiracy
and in order to the doing of that thing, or intentional aid by
any act or illegal omission to the doing of that thing. In the
instant case there is no direct evidence to establish that the
appellant either aided or instigated the deceased to commit
suicide or entered into any conspiracy to aid her in
committing suicide. In the absence of direct evidence the
prosecution has relied upon Section 113-A of the Indian
Evidence Act under which the court may presume on proof of
circumstances enumerated therein, and having regard to all
the other circumstances of the case, that the suicide had
been abetted by the accused. The explanation to Section
113-A further clarifies that cruelty shall have the same
meaning as in Section 498-A of the Penal Code, 1860…”
13. Unlike Section 113-B of the Indian Evidence Act, a
statutory presumption does not arise by operation of law
merely on proof of the circumstances enumerated in Section
113-A of the Indian Evidence Act. Under Section 113-A of the
Indian Evidence Act, the prosecution has first to establish
that the woman concerned committed suicide within a period
of seven years from the date of her marriage and that her
husband (in this case) had subjected her to cruelty. Even if
these facts are established the court is not bound to presume
that the suicide had been abetted by her husband. Section
113-A gives a discretion to the court to raise such a
presumption, having regard to all the other circumstances of
the case, which means that where the allegation is of cruelty
it must consider the nature of cruelty to which the woman
was subjected, having regard to the meaning of the word
“cruelty” in Section 498-A IPC. The mere fact that a woman
committed suicide within seven years of her marriage and
that she had been subjected to cruelty by her husband, does
not automatically give rise to the presumption that the
suicide had been abetted by her husband. The court is
required to look into all the other circumstances of the case.
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One of the circumstances which has to be considered by the
court is whether the alleged cruelty was of such nature as
was likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health of the woman.
The law has been succinctly stated in Ramesh Kumar v. State
of Chhattisgarh [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088]
wherein this Court observed: (SCC pp. 626-27, para 12)
“12. This provision was introduced by the Criminal Law
(Second) Amendment Act, 1983 with effect from 26-
12-1983 to meet a social demand to resolve difficulty
of proof where helpless married women were
eliminated by being forced to commit suicide by the
husband or in-laws and incriminating evidence was
usually available within the four corners of the
matrimonial home and hence was not available to
anyone outside the occupants of the house. However,
still it cannot be lost sight of that the presumption is
intended to operate against the accused in the field of
criminal law. Before the presumption may be raised,
the foundation thereof must exist. A bare reading of
Section 113-A shows that to attract applicability of
Section 113-A, it must be shown that (i) the woman
has committed suicide, (ii) such suicide has been
committed within a period of seven years from the
date of her marriage, (iii) the husband or his relatives,
who are charged had subjected her to cruelty. On
existence and availability of the abovesaid
circumstances, the court may presume that such
suicide had been abetted by her husband or by such
relatives of her husband. Parliament has chosen to
sound a note of caution. Firstly, the presumption is not
mandatory; it is only permissive as the employment of
expression ‘may presume’ suggests. Secondly, the
existence and availability of the above said three
circumstances shall not, like a formula, enable the
presumption being drawn; before the presumption may
be drawn the court shall have to have regard to ‘all the
other circumstances of the case’. A consideration of all
the other circumstances of the case may strengthen
the presumption or may dictate the conscience of the
court to abstain from drawing the presumption. The
expression — ‘the other circumstances of the case’
used in Section 113-A suggests the need to reach a
cause-and-effect relationship between the cruelty and
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the suicide for the purpose of raising a presumption.
Last but not the least, the presumption is not an
irrebuttable one. In spite of a presumption having been
raised the evidence adduced in defence or the facts
and circumstances otherwise available on record may
destroy the presumption. The phrase ‘may presume’
used in Section 113-A is defined in Section 4 of the
Evidence Act, which says — ‘Whenever it is provided
by this Act that the court may presume a fact, it may
either regard such fact as proved, unless and until it is
disproved, or may call for proof of it.”
14. The same principle has been reiterated in Sanju v. State
of M.P.,(2002) 5 SCC 371
15. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994
SCC (Cri) 107] this Court observed: (SCC pp. 89-90, para 15)
“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
the Indian Evidence Act. Although, the court’s
conscience must be satisfied that the accused is not
held guilty when there are reasonable doubts about
the complicity of the accused in respect of the offences
alleged, it should be borne in mind that there is no
absolute standard for proof in a criminal trial and the
question whether the charges made against the
accused have been proved beyond all reasonable
doubts must depend upon the facts and circumstances
of the case and the quality of the evidences adduced in
the case and the materials placed on record. Lord
Denning in Bater v. Bater [(1950) 2 All ER 458 : 1951 P
35 (CA)] (All ER at p. 459) has observed that the doubt
must be of a reasonable man and the standard
adopted must be a standard adopted by a reasonable
and just man for coming to a conclusion considering
the particular subject-matter.”
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56. In the case of M. Mohan V. State, (2011) 3 SCC 626,
the Hon’ble Supreme Court has held as under :
“44. 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.
45. The intention of the Legislature and the ratio of the cases
decided by this court are 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 this act must have been intended to push the
deceased into such a position that he/she committed
suicide.”
57. In the case of Mariano Anto Bruno v. State of T.N.,
(2023) 15 SCC 560 it was held as under:
“45. This Court has time and again reiterated that before
convicting an accused under Section 306IPC, the court must
scrupulously examine the facts and circumstances of the
case and also assess the evidence adduced before it in order
to find out whether cruelty and harassment meted out to the
victim had left the victim with no other alternative but to put
an end to her life. It is also to be borne in mind that in cases
of alleged abetment of suicide, there must be proof of direct
or indirect acts of incitement to the commission of suicide.
Merely on the allegation of harassment without there being
any positive action proximate to the time of occurrence on
the part of the accused which led or compelled the person to
commit suicide, conviction in terms of Section 306IPC is not
sustainable.”
58. In the case of Sanju v. State of M.P. (supra), the Apex
Court has observed that during a quarrel, the utterance
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of the appellant directed to the deceased “to go and die”
were not prima-facie enough to instigate the deceased to
commit suicide. Here in the present case, the allegation
is that on the date of committing suicide, the husband
had uttered instructing the wife that if she failed to bring
the dowry amount, then she should die. Having observed
that in the case of Sanju v. State of M.P. (supra), such
utterances “to go and die” does not constitute the
ingredients of instigation, the presence of mens rea
therefore becomes an essential concomitant of
instigation. The words uttered during a quarrel between
husband and wife in a a fit of anger and emotion or on
the spur of the moment cannot be taken to have
occurred with mens rea. The concept of the provision of
Section 306 IPC with the aid of presumption under
Section 113A of the Evidence Act has been very well
clarified in the above judgment of Hans Raj (supra).
Section 113A of the Evidence Act does not get
automatically involved unless the prosecution first
establishes that the woman concerned committed suicide
within a period of 7 years from the date of her marriage
and that her husband had subjected her to cruelty.
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Further even if these facts are established, the Court is
not bound to presume that the suicide had been abetted
by her husband. Section 113A of the Evidence Act gives
discretion to the Court to raise such presumption having
regard to the other circumstances of the case, which
means that when the allegations is of cruelty, Court must
consider the nature of cruelty to which the woman was
subjected having regarding to the meaning of the word
‘cruelty’ in Section 498 IPC. Before the presumption may
be raised, the foundation fact must first exist. The
expression “all the other circumstances of the case” used
in Section 113A as observed in the case of Hans Raj
(supra) suggests the need to reach a cause-and-effect
relationship between the cruelty and suicide for the
purpose of raising a presumption.
59. Here in the present case, the mother and brothers had
not supported the prosecution case of any demand of
dowry. Even the facts on record does not prove that the
husband was demanding money from the relatives of the
deceased for the purpose of the flat. The I.O. has failed
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to secure any documents regarding the payment of
purchase money for the flat. The document of ownership
of the flat has also not been produced. The allegation is
that Rs.50,000/- in cash was given and Rs.20,000/- was
invested in KVP’s by the mother and brother of the
deceased. The KVP documents shows that the
investment was in the name of the deceased and her
sister-Nita A. Dutt.
60. The abetment for the commission of the suicide involves
the mental torture of instigating the person or
intentionally aiding a person in doing of a thing. There
must be some positive conduct on part of the accused to
have been proved and the conduct of instigation led to
the commission of suicide.
61. The dying declaration of the wife becomes relevant if the
statement discloses the cause of death or it describes the
circumstances of the transaction resulting in her death.
The dying declaration though has considered to be given
in a situation which is solemn where the victim is at point
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of death and when every hope of the world is gone,
where every motive of falsehood is silent and the mind is
induced by the most powerful consideration to speak the
truth as noted in the case of Muthu Kutty (supra), then
the prosecution is required to prove that the dying
declaration was recorded in fit state of mind and that it
was not a result of tutoring, prompting or imagination.
62. Here in the present case, the dying declaration itself
which is the produced as document prior to the complaint
before the I.O. of the victim partially suggests that it was
accidental, and there were severe accidental injuries
because of the flames from the primus (kerosene stove),
while the other part suggests that the deceased had
admitted to committing suicide. Both contrary aspects
are coming in the same document which has been drawn
by the Executive Magistrate as dying declaration of the
victim. The inconsistency in the same document itself
makes the document weak. The Court therefore, has to
reach for corroboration as rule of prudence and here, the
mother and brother have not corroborated the dying
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declaration. As per the prosecution case, the cause of
death is dowry demand. The Janva Jog Entry has also
recorded the accidental injuries. A part of the dying
declaration also notices of accident and the mother has
corroborated the incident of injury sustained by the
daughter because of the flames from the kerosene stove.
The dying declaration also does not get proved that
injured was in a fit state of mind. Since the victim was
having third degree burns, she would have been
administered with anti-biotics and pain relief injections.
The victim would be in a state of delirium and in absence
of evidence of instigation from the side of the husband
with mens rea, no case would be found against the
appellant-husband under Sections 498A and 306 of IPC.
The dying declaration further does not disclose any
incident proximate referring any act as cause for the
death. The death to fall in context with the meaning of
‘cruelty’ as described under Section 498A with any
instigation in terms of Section 107 of IPC for the
commission of suicide to be proved under Section 306 of
IPC must be proved to be with criminal intent. The
prosecution has failed to prove the case.
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63. In view of the analysis of the evidence on record as
referred hereinabove and the proposition of law with the
case laws as referred above, the observation of the
learned trial Court Judge becomes erroneous and the
order of conviction becomes faulty.
64. In the result, the present appeal is allowed. The
judgment and order of conviction dated 19.12.2005
passed by the learned Additional Sessions Judge, Fast
Track Court No.1, Gandhinagar in Sessions Case No.38 of
2005 is set aside. The appellant herein is acquitted of all
the charges levelled against him. Bail bond, if any,
stands discharged. Record and proceedings, be sent to
the concerned Trial Court forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE / SB-1 # 1
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