15 Years Later, Gujarat High Court Reverses Husband's Acquittal On Abetment Of Suicide And Cruelty To Wife, Upholds Her 'Dying Declaration'

Reversing a 15 year old trial court order acquitting a husband accused of cruelty and abetting his wife's suicide, the Gujarat High Court while relying on the wife's dying declaration said that a mere non endorsement of it by a medical officer regarding her mental fitness does not, by itself, make the declaration inadmissible. 

Referring to the guiding principles laid down by Supreme Court in Laxman vs State Of Maharashtra (2002), a single judge bench of Justice Nisha Thakore in its order said, "Applying the aforesaid guiding principles laid down by the Hon'ble Supreme Court, more particularly, the Constitutional Bench in the case of Laxman (supra), in the facts of this case merely because dying declaration is not having endorsement of the Medical Officer in regard to the fit state of mind of the deceased will not ipso facto render such of the declaration unacceptable".

A complaint which culminated into an FIR was lodged against the husband by the Police Head Constable under IPC Sections 498A (Husband or relative of husband of a woman subjecting her to cruelty), 306 (abetment of suicide) and 504 (intentional insult with intent to provoke a breach of the peace) after the deceased wife made statements to the police and the executive magistrate regarding the treatment by her husband. The woman claimed that the respondent-husband had always treated her with cruelty by beating her and by suspecting on her character while she was away at her parental house; because of his harassment, she had poured Kerosene and set herself on fire.

She passed away 22 days after she was admitted to the hospital for treatment, and the statements were made in the intervening period. The sessions court in August 2009 eventually acquitted the husband against which the State moved the high court. 

Justice Thakore noted that in the present matter, the wife had admittedly survived for 22 days and then succumbed to the burn injuries. The high court observed that the complaint was lodged by a responsible police officer in absence of any complaint lodged by the parents or nearby relatives of the deceased, would not make the complaint "suspicious". 

Referring to the deceased's statements' the high court said that nothing contradictory had been brought by the defence to suggest that the complaint lodged by the police constable was lodged with "malicious intention to harass the respondent accused" (husband). 

It observed that the trial court committed a "serious error in discarding" the two statements of the deceased wife which could have been treated as a dying declaration in terms of Section 32 of the Indian Evidence Act. Justice Thakore said that these statements were "free from tutoring, prompting or a product of imagination" as no contradictory facts had been suggested about the presence of any relatives to prompt or tutor the deceased wife. 

"In fact, the close reading of the statement of the deceased goes to suggest minute particulars being mentioned by her in her brief statement which could have been declared by the deceased herself and no one else," Justice Thakore underscored.

"In my considered view, the aforesaid submissions of the deceased points the guilt of the accused having accepted the aforesaid two statements as dying declarations in light of Section 32 of the Indian Evidence Act. This Court is required to undertake the appreciation of the statement of the deceased as regards the offence of cruelty alleged," the court added.  

The high court relied upon the dying declaration of the deceased and observed that that the deceased in her statement recorded by the Police Head Constable as well as by the Executive Magistrate, had "clearly" indicated that she and her two children were "meted with physical and mental harassment at the hand" of the husband. 

"Though, she has not suggested any past incident in her brief statement, the fact remains that the victim had taken such extreme step to commit suicide within marriage span of less than seven years i.e. five years. Section 113 (A) of the Indian Evidence Act, permits the Court to raise presumption that the husband or the relatives of the husband had subjected the deceased to cruelty as defined under Section 498(A) of the I.P.C. However, this does not shift the burden on the prosecution to show the evidence of cruelty and continuous harassment in that regard. As recorded earlier the independent witness which included the relatives as well as the neigbours of the deceased have turned hostile and have not supported the case of the prosecution. Thus, the Court is left with the evidence of the deceased herself in the form of her dying declaration. The statement of the deceased in the form of dying declaration which has been brought on record by the prosecution though does not contain details of the past incidents; however, merely because it is a brief statement is itself a guarantee of its veracity," the high court said. 

The high court thereafter quashed the sessions court order and issued a notice to the husband of the sentence to be imposed for offences under IPC Sections 498(A), 306 and 504 returnable on October 25. 

Case Title: State of Gujarat vs Chaganbhai Kaliyanbhai Bhabhor

LL Citation: 2024 LiveLaw (Guj) 143

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