Gujarat High Court
State Of Gujarat vs Iliyasbhai Salemanbhai Saiyad on 1 July, 2025
NEUTRAL CITATION
R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1324 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
ILIYASBHAI SALEMANBHAI SAIYAD
==========================================================
Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
MR BM MANGUKIYA(437) for the Opponent(s)/Respondent(s) No. 1
MS BELA A PRAJAPATI(1946) for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Date : 01/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY)
1. Assailing the judgment dated 30/04/2013 passed in Sessions Case No.84 of 2011 on the file of the learned Additional Sessions Judge, Bhavnagar whereby the sole accused in the said case who was charged for the offences Page 1 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined punishable under Sections 302 and 498(A) of the Indian Penal Code was acquitted, the instant appeal has been preferred by the State.
2. Facts germane to dispose of the appeal as per the case of the prosecution may briefly be stated as follows:
2.1. The deceased by name Kausharben (hereinafter referred to as 'the deceases') is the legally wedded wife of the accused.
Their marriage was solemnized about two years prior to her death which took place on 15/03/2011. They are not blessed with children during their lawful wedlock. It is stated that six months after their marriage, the accused and his family members who are his mother and father etc. started harassing the deceased suspecting her fidelity attributing an illegal contact to her with PW-5 who is the husband of the friend of the deceased. It is stated that they also used to demand dowry from her and harassed her. There were disputes between the couple in this regard. So when the deceased was in the house of her parents on account of the said disputes between herself and her husband, as per the prosecution Page 2 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined case, reconciliation took place and the deceased was again taken back to the house of the accused and they were living together.
2.2. While so, on 15/03/2011, in the morning, PW-7 who is the uncle of the deceased informed PW-1 who is the father of the deceased that his daughter died in the house of the accused. As both the accused and the parents of the deceased are residing in the same town, PW-1 along with his family members reached the house of A-1 in the early hours of 15/03/2011 and suspected that the deceased died in suspicious circumstances and they immediately took her to the hospital at Sihor. The doctor who examined her declared that she already died. PW-1 who is her father initially suspected that poison was administered to her and she died because of consuming poison. On intimation of death of the deceased to the police, the police registered a case under Sections 302 and 498(A) of the Indian Penal Code. Thereafter, inquest was held over her dead body. In the inquest it is opined that she might have died of consuming poison and cause of death is to be ascertained. Thereafter, Page 3 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined autopsy was held over her dead body. The doctor initially opined that the cause of death can be ascertained only after chemical examination of viscera. After examination of the viscera, it is finally opined that her death due to strangulation cannot be ruled out but the definite and apparent cause of her death could not be ascertained in the postmortem examination also.
3. During the course of investigation, the Investigation Officer has examined the parents of the deceased, PW-1 and PW-3 and the doctor who performed autopsy, PW-2 and the mediators in whose presence the scene of offence was observed and other witnesses. The dupatta alleged to have been used for slaying the deceased was seized. After completion of the investigation, the Investigation Officer has filed charge sheet against the accused for the offences punishable under Sections 302 and 498(A) of the Indian Penal Code alleging that the accused used to suspect the fidelity of the deceased attributing an extra marital relation to her with PW-5 and with the said motive that he has subjected her to strangulation at about 2:30 a.m. on 15/03/2011 with her Page 4 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined dupatta and thereby killed her and committed murder of the deceased.
4. After committal of the case to the sessions division by the committal court, the case was made over to the Additional Sessions Judge, Bhavnagar for trial. The trial court has framed the charges under Sections 302 and 498 of the Indian Penal Code against the accused. The same were read over and explained to him in his vernacular language. The accused denied to the said charges and claimed to be tried.
5. During the course of the trial, the prosecution got examined PW-1 to PW-9 witnesses and got marked 23 exhibits to substantiate its case against the accused.
6. At the culmination of the trial, after considering the oral and documentary evidence adduced by the prosecution and on appreciation of the same, the learned trial court found the accused not guilty for the charges levelled against him and thereby acquitted him of the said charges. Page 5 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025
NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined
7. Aggrieved thereby, the State has preferred the instant appeal questioning the legality and validity of the impugned judgment of acquittal.
8. When the appeal came up for hearing, we have heard learned APP Mr. Bhargav Pandya for the State and learned Senior Counsel Mr. B. M. Magukiya for the respondent- accused at length.
9. We have perused both oral and documentary evidence on record meticulously and considered the same and subjected the evidence on record to strict judicial scrutiny.
10. The fact that the deceased is the wife of the accused and their marriage was solemnized two years prior to her death is not in controversy. Though it is the specific case of the prosecution that the accused got suspicion over the character of the deceased and used to suspect her fidelity attributing illegal contact to her with PW-5 who is the husband of the friend of the deceased and that he killed her because of said suspicion on her character by strangulating her with her Page 6 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined dupatta at 2:30 a.m. on 15/03/2011 and has attributed the said motive to the accused to slay his wife, a careful perusal of the evidence on record shows that the prosecution has miserably failed prove the said motive attributed to the accused for committing murder of the deceased and most importantly the prosecution has also failed to prove that the deceased died because of strangulation with dupatta or that she met with a homicidal death. As the prosecution case is based on circumstantial evidence, motive plays a vital role to establish the case of the prosecution. The said motive that was attributed to the accused is not proved in this case.
11. As regards the motive that was attributed is concerned, suspecting the character of the deceased, there is absolutely no evidence emanating from the record to establish the said fact. Even her parents who were examined as PW-1 and PW-3 did not depose in their evidence that the accused used to suspect her character by attributing illegal contact to her with PW-5 and that it is the motive for him to kill the deceased. But they have come up with a different version which is undoubtedly an improved version in their evidence during the course of the trial as a result of afterthought stating that as Page 7 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined the deceased has seen her mother-in-law along with PW-7 who got an illegal affair between them that the family members of the accused have killed her. Thus, a totally different version was set up by her parents during the course of trial completely deviating from the original motive that was attributed to the accused for slaying the deceased. These contradictory versions which are emanating from the record relating to motive that was attributed cuts the case of the prosecution at its roots as it strikes at the very bottom of the case of the prosecution.
12. PW-7 is the person who initially intimated about the death of the deceased to her father PW-1. But PW-1 denied the said fact in his evidence given in the court. He completely turned hostile to the case of the prosecution and did not support the case of the prosecution and did not speak anything about the alleged motive attributed by the prosecution to the accused. PW-4 who is the aunt of the deceased also did not support the prosecution case. She clearly denied in the cross examination that there is any illegal contact between the deceased and PW-5. PW-5 is the person with whom it is alleged that the deceased got illegal Page 8 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined affair and he did not support the said version of the prosecution. Therefore, virtually there is not even an iota of evidence on record to prove the original motive that was attributed by the prosecution to the accused to commit murder of the deceased.
13. Further it is significant to note that the prosecution has basically failed to prove that the deceased met with a homicidal death. In the inquest report, which is marked as Exh.45, when inquest was held over the dead body of the deceased, they initially opined that she might have died because of taking poison and held that the apparent cause of death is to be ascertained after the postmortem examination. So, during the inquest that was held over the body of the deceased, they did not find that the deceased was subjected to any strangulation with dupatta or any ligature and she was killed. Even in the postmortem examination also as can be seen from Exh.23, postmortem report and also from the evidence of the doctor who is examined as PW-2, the doctor did not opine definitely with any certainty that the deceased died due to strangulation with dupatta. It is stated in the postmortem report that her cause of death is to be Page 9 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined ascertained after chemical examination of viscera. After chemical examination of viscera also he did not definitely opine that she died because of any strangulation. It is only stated by him in Exh.23, postmortem report, that death due to strangulation cannot be ruled out. So it is only a doubtful opinion that is given but not a definite opinion that is given that death is due to strangulation and that it is a homicidal death. There is any amount of ambiguity in the opinion that was given by the doctor regarding her cause of death. Therefore, it cannot be held with precision and definitely that she met with homicidal death because of any strangulation with dupatta. It is also important to note that no ligature marks or the marks of dupatta are found around her neck as can be seen from the postmortem report and also from the evidence of the doctor. The doctor examined as PW-2 also did not say that there was any such ligature mark of dupatta around her neck. It is only stated in Exh.23, postmortem report that on the left side of the neck there is one patch like mark. If really she was subjected to any such strangulation with dupatta and it was tightened around here neck with heavy pressure, definitely there must be a ligature mark of the said dupatta around her neck evidencing the fact that she was Page 10 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined subjected to such strangulation with dupatta. Further, it is not clear either from the postmortem report or from the evidence of the doctor that there was any fracture of Hyoid bone. In the usual course, as per the medical jurisprudence, when a person is subjected to either manual strangulation or strangulation by ligature or hanging, there will be a fracture of Hyoid bone which is a delicate bone available in the neck of a person. In majority of the cases, except in rare cases, invariably there will be fracture of Hyoid bone in such strangulation cases. It is not made clear in the instant case whether there is any such fracture to Hyoid bone or not. Therefore, it is not proved and established with definite medical evidence on record that the deceased was subjected to any such strangulation with dupatta and thereby she was killed. As noticed supra, two different versions are emanating from the record. Initially there was suspicion that it is a death due to taking poison and thereafter a different version has come up relating to strangulation which fact is also not proved to the hilt in this case with acceptable legal evidence. When there are two inconsistent versions, it is difficult to come to any conclusion with certainty that it is a case of homicidal death due to strangulation. So, when the Page 11 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined prosecution has miserably failed to prove that the deceased is subjected to any such strangulation and thereby she met with a homicidal death, it again strikes at the bottom of the case of the prosecution and cuts the case of the prosecution at its roots.
14. It is also relevant to note that it is not the case of the prosecution that the accused was available with the deceased on that night when the alleged death took place so as to hold that he has to explain as to how she died. That was not at all the case of the prosecution as can be seen from the prosecution version. So, no presumption in this regard can be invoked against the accused relating to the death of the deceased.
15. Therefore, the prosecution has failed to establish and prove the charge under Section 302 of the Indian Penal Code against the accused.
16. Apropos the charge under Section 498(A) of the Indian Penal Code is concerned, there is absolutely no evidence on Page 12 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025 NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined record to prove that the deceased was harassed by the accused or his family members in connection with any demand of dowry, valuable security or property and thereby subjected her to cruelty. Evidence is totally lacking in proof of the same. Her parents examined as PW-1 and PW-3 did not depose anything in their evidence regarding the said harassment for dowry. Even PW-4 who is aunt of the deceased and PW-7 who is uncle of the deceased also did not depose anything regarding the same. Therefore, the charge under Section 498(A) is also not proved and established against the accused in this case.
17. Although it is stated that the said dupatta is recovered and it was sent for FSL examination, nothing useful is established which is incriminating against the accused in the said chemical examination. No mediator is examined to prove that the said dupatta was seized in his presence. It is a lapse on the part of the Investigating Officer in this case. Although PW-6 who is a mediator for scene of offence observation is examined, he did not support the case of the prosecution. Page 13 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025
NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined
18. Therefore, after considering the said evidence on record and on proper appreciation of the same, the learned trial judge arrived at a right conclusion that the accused is not found guilty for the said charges and thereby acquitted him. The learned Judge also found that there are several contradictions and omissions in the evidence of the witnesses which are material in nature and thereby disbelieved the evidence of the prosecution case.
19. We do not find any legal flaw or infirmity in the impugned judgment of the acquittal of the trial court. Upon re-appraisal of the said evidence on record, we are also of the considered view that the prosecution case bristles with several legal infirmities and the prosecution has failed to establish the guilt of the accused for the offences punishable under Section 302 and 498(A) of the Indian Penal Code beyond reasonable doubt. Therefore, the impugned judgment of the acquittal of the trial court is perfectly sustainable under law and it warrants no interference in this appeal. So, the appeal is liable to be dismissed.
Page 14 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025
NEUTRAL CITATION R/CR.A/1324/2013 JUDGMENT DATED: 01/07/2025 undefined
20. Resultantly, the appeal is dismissed affirming the impugned judgment of the trial court. Bail bond of the accused, if any, shall stand discharged.
21. Record and proceedings be sent back forthwith to the concerned court.
(CHEEKATI MANAVENDRANATH ROY, J) (D. M. VYAS, J) ILA Page 15 of 15 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:43:06 IST 2025