Biharilal Alias Raju Parshottambhai … vs State Of Gujarat on 3 March, 2026

    0
    56
    ADVERTISEMENT

    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
    
                                                                                                                      undefined
    
    
    
    
                                       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/-
    
                         ================================================================
    
                                      Approved for Reporting                        Yes           No
                                                                                   ✔
    
                         ================================================================
                                     BIHARILAL ALIAS RAJU PARSHOTTAMBHAI KUNDALIYA
                                                           Versus
                                                     STATE OF GUJARAT
                         ================================================================
                         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
                         ================================================================
    
                            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

    SPONSORED

    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

    Page 1 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 2 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 3 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 4 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 5 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 6 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 7 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 8 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 9 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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-

    Page 10 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 11 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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 :-

    Page 12 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    “(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

    Page 13 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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,

    Page 14 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 15 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 16 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 17 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 18 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 19 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 20 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 21 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 22 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 23 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 24 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 25 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 26 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 27 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 28 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 29 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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
    during investigation also bolsters the conclusion reached

    Page 30 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 31 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 32 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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,

    Page 33 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 34 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 35 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 36 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 37 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 38 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 39 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 40 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 41 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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 death

    Page 42 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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 without

    Page 43 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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 any

    Page 44 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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].

    Page 45 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    (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 opinion

    Page 47 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 48 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 49 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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 a

    Page 50 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 51 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 52 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 53 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 54 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 55 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 56 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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,

    Page 57 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 58 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 59 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 60 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 61 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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
    cause of his death or as to the circumstances of the

    Page 62 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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:

    Page 63 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    “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.

    Page 64 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 65 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.”

    Page 66 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 67 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 68 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 69 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 70 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 71 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026
    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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.

    Page 72 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026

    NEUTRAL CITATION

    R/CR.A/2600/2005 JUDGMENT DATED: 03/03/2026

    undefined

    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

    Page 73 of 73

    Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Wed Mar 11 2026 Downloaded on : Sat Mar 14 08:35:52 IST 2026



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here