Gujarat High Court
State Of Gujarat vs Iliyasbhai Salemanbhai Saiyad on 1 July, 2025
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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
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
ILIYASBHAI SALEMANBHAI SAIYAD
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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
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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
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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
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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,
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
