Gujarat High Court
Chetanbhai Nopabhai Gamar(Adivasi) vs State Of Gujarat on 7 August, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1272 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
✔
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CHETANBHAI NOPABHAI GAMAR(ADIVASI) & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR N P CHAUDHARY(3980) for the Appellant(s) No. 1,2
MR TUSHAR CHAUDHARY(5316) for the Appellant(s) No. 1,2
MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 07/08/2025
ORAL JUDGMENT
1. The appellants are the accused of Sessions Case No.77 of 2006, who were ordered on 27.11.2007 by the learned Additional Sessions Judge, Fast Track Court No.5, Palanpur to undergo sentence of 5 years rigorous imprisonment and fine of Rs.500/- and in default of payment of fine, to further undergo simple imprisonment of two months for the offences Page 1 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined punishable under Section 304 Part II and 34 of the Indian Penal Code (IPC). Under Sections 447 and 34 of the IPC, the accused were sentenced to undergo three months simple imprisonment. Both the sentences were ordered to run concurrently. The accused were given the benefit of set off.
2. The jail remarks were produced by learned Additional Public Prosecutor Mr. Rohankumar Raval. As per the jail remarks, the appellant accused No.2-Kamjibhai alias Kamalabhai Bhemabhai Gamar had already undergone the sentence and was released on 04.02.2010.
3. Learned advocate Mr. Tushar Chaudhary appearing for the appellants submitted that in view of the jail remarks and since the appellant No.2 had already undergone the sentence, he would not press the present Appeal against the appellant No.2-Kamjibhai alias Kamalabhai Bhemabhai Gamar.
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4. Qua the appellant No.1-Chetanbhai Nopabhai Gamar, it is submitted by learned advocate Mr. Tushar Chaudhary that he had no role and merely because he was present at the place of offence, he was falsely roped in the case. The jail remarks of the appellant No.1 shows that the accused had undergone incarceration of 2 years, 6 months and 10 days and was released on bail on 14.05.2008.
5. Learned advocate Mr. Tushar Chaudhary submitted that the learned trial Court Judge has failed to appreciate the evidence on record. From the evidence of the deceased, which should be considered a dying declaration before his father prior to his death, clarifies that the appellant No.1 was not at all involved in the incident. The deceased before his father had named the appellant No.2 and the absconding accused- Anabhai Kevdabhai. The injured-Kantibhai Jalabhai Taral has falsely roped appellant No.1-Chetanbhai Nopabhai Gamar and submitted that the statement of Page 3 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined the deceased prior to his death before his father is required to be believed.
6. It is further submitted by learned advocate Mr. Tushar Chaudhary that it is very strange and unbelievable, even by going through medical jurisprudence that the death was without any injury on the head nor there was any fracture found on the skull. It is also submitted that PW1-Dr. Kamlesh Kumar was examined at Exhibit 8, and in his cross examination he has stated that in Column of the Post Mortem Report, the injury recorded were not sufficient to cause the death of the deceased. The medical jurisprudence of Dr. K.S. Narayan Reddy was relied upon and it was agreed by the Doctor that if the skull receives a fracture, then only bleeding from the ears is possible. In the cross examination, the Doctor has admitted that intracranial hemorrhage is also possible because of sudden anger and high blood pressure. It is further submitted that the learned Judge has erred in not Page 4 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined considering the evidence of the Medical Officer in its true perspective and the evidence does not bring on record any injury being caused by the appellant No.1. Even the Investigating Officer has submitted that in his presence, the name of the appellant No.1 was not disclosed. It is therefore, submitted that benefit of doubt ought to have been given by the trial Court Judge to the appellant No.1.
7. Learned advocate Mr. Tushar Chaudhary submitted that the complaint does not record the name of the appellant No.1 and the evidence of the complainant- Modabhai Jalabhai Taral as PW8 has very categorically stated that the deceased-Jagdish has named appellant No.2 and does not name appellant No.1. It has also come on record, in the cross examination of the complainant that other 11 persons were also standing alongwith the appellant, while the contradictory evidence has been brought by the injured Kantibhai Jalabhai Taral, who has denied the presence of any Page 5 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined other persons except the present appellant. It is also submitted that the evidence of the complainant-PW8 could not be believed since it brings contradiction, and the evidence of the injured prior to his death before his father clarifies the facts of the incident.
8. Per contra, learned Additional Public Prosecutor Mr. Rohankumar Raval has submitted that the charge against both the accused as well as the absconding accused-Anabhai Kevdabhai is clear, where the intention of the accused was to do away with the son of the complainant. The injuries to deceased-Jagdish were caused with the iron rod and absconding accused-Anabhai Kevdabhai had given the injury to eye witness-Kantibhai Jalabhai Taral on the head with a stick. This itself proves the offence and submitted that the injured-Kantibhai Jalabhai Taral as PW9 had stated in his evidence that the appellant No.2- Kamjibhai alias Kamalabhai Bhemabhai Gamar had given a blow with an iron rod on the head of the Page 6 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined deceased-Jagdish as well as the appellant No.1- Chetanbhai Nopabhai Gamar had given the blow on the head with an iron rod. It is submitted that the injured witness PW9-Kantibhai Jalabhai Taral who had intervened to release them also sustained injuries on the head. Thus, it is submitted that evidence of injured-Kantibhai Jalabhai Taral would be more reliable than that of the complainant as being eyewitness to the incident. It is further submitted that the mother of the deceased-Ratnuben Modabhai has also stated that when the son-Jagdish was conscious, he had stated that Anabhai Kevdabhai (absconding accused) and Chetanbhai Nopabhai Gamar (appellant No.1) had given him a blow with an iron rod. Thus, the evidence of eyewitness Kantibhai Jalabhai Taral and Ratnuben Modabhai, before meeting the deceased had given his last statement should be considered as reliable evidence and the same should be believed, to consider that Chetanbhai Nopabhai Gamar (appellant No.1) had given a blow Page 7 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined with an iron road on the head of the deceased-Jagdish.
9. Countering the above argument, it is submitted by learned advocate Mr. Tushar Chaudhary that the FSL Report refers to only one iron rod, but if both the appellants had come with an iron road, then the muddamal should have recorded two iron rods. It is further submitted that the father-complainant- Modabhai Jalabhai Taral was the first person who had come there and when the First Information Report (FIR) does not give the name of the appellant No.1, then benefit of doubt should be given.
10. Heard the arguments canvassed from both the sides and also perused the documents produced on record, including the complaint at Exhibit 32 which is dated 03.11.2005. The father- Modabhai Jalabhai Taral had given a complaint stating that at about 7.30 in the evening, he heard a cry from his fields of castor crops and therefore, he ran there and saw his son- Page 8 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025
NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined Jagdish in a pool of blood in the field and found that blood was oozing out from the ears. At that time, his real brother-Kantibhai Jalabhai Taral was also present there. The complainant had asked his son who said that in castor fields of Village Saber, Kamjibhai alias Kamalabhai Bhemabhai Gamar and Anabhai Kevdabhai were sitting and damaging the crop. When the son-Jagdish questioned them as to why they were damaging the castor crops, both of them started abusing him, and appellant No.2-Kamjibhai alias Kamalabhai Bhemabhai Gamar with an iron rod in his hand gave a blow on the back of his head. Thereafter, he fell down and at that time, his uncle-Kantibhai Jalabhai Taral had intervened and therefore, Anabhai Kevdabhai with a stick in his hand, had beaten Kantibhai Jalabhai Taral on his head, therefore, they started shouting, and both of them fled away from the place.
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11. The complainant in his complaint at Exhibit 32 further submitted that since his son-Jagdish's ears were bleeding, he and his brother-Kantibhai Jalabhai Taral, Ramesh Sagra and Lumba Bhura took him to a private dispensary at Village Mankdi where Dr. Kantibhai Prajapati medically examined him and after treatment, had instructed them to take him to Ahmedabad, treating it as a serious case and as they were searching for a vehicle, during that time, the complainant states that his son expired. Thereafter, they took the dead body home and immediately, the complainant had gone to the police to give a complaint.
12. The fact that could be noted in the complaint at Exhibit 32 is that the appellant No.1-Chetanbhai Nopabhai Gamar had not been named by the complainant, and his injured brother-Kantibhai Jalabhai Taral was present there, who had not informed the complainant of any act of the appellant No.1. Rather the complaint does not state even of the Page 10 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined presence of the appellant No.1. While, the complainant in his deposition before the trial Court at Exhibit 31 states about the incident being informed by the son, when he states that Kamalabhai Bhemabhai Gamar had beaten him with an iron rod on the head and at that time, the father had seen appellant No.1- Chetanbhai Nopabhai Gamar and Anabhai Kevdabhai and at that time, Anabhai Kevdabhai had beaten Kanti with a stick and Kantibhai Jalabhai Taral had fallen down. This act is observed by the complainant-PW8 himself. The father had seen the appellant No.1- Chetanbhai Nopabhai Gamar there, but does not suggest of any act by the appellant No.1, while at the same time, the father had seen Anabhai Kevdabhai. He had also seen Anabhai Kevdabhai beating Kantibhai Jalabhai Taral with a stick and Kantibhai Jalabhai Taral fell down there. While PW9-Kantibhai Jalabhai Taral states that he and deceased were near the well at that time, the appellant No.1-Chetanbhai Nopabhai Gamar, appellant No.2-Kamjibhai alias Page 11 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined Kamalabhai Bhemabhai Gamar and the absconding accused-Anabhai Kevdabhai were destroying their castor crops in the field. The field was of his elder brother and therefore, he and the deceased son- Jagdish went there and asked not to damage the castor crops. At that time, the accused started abusing them, they asked not to do so and to go away from the place, at that time, the appellant No.2- Kamjibhai alias Kamalabhai Bhemabhai Gamar gave a blow to Jagdish on the head with an iron rod. Thereafter, he intervened and he also sustained injury with the blow of a stick from Anabhai Kevdabhai. According to him, after he had fallen down and had started shouting, his elder brother-Modabhai Jalabhai Taral had come there while this fact is contrary to what is stated by the complainant himself. The mother also stated that it was informed to her that her son was conscious. The mother PW10-Ratnuben Modabhai stated that they had brought Jagdish and she had seen blood coming from the head and Jagdish Page 12 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined was conscious, while this fact is also contrary to what is stated by the father, who after seeing the blood coming from the ears of the son, had taken the son in a 'jhola' (a makeshift stretcher of cloth) alongwith his brother-Kantibhai Jalabhai Taral, Ramesh Sagra and Lumba Bhura to a private dispensary at Village Mankdi, where Dr. Kantibhai Prajapati had treated him and asked him to take Jagdish for further treatment to Ahmedabad, while they were waiting and searching for a vehicle, the son expired. The complainant at Exhibit 32 does not give any account that the mother had even talked with the son, as the father had taken the son directly to the Dispensary of Dr. Kantibhai Prajapati. Therefore, the evidence of the mother also cannot be relied. Further, another glaring fact which become incomprehensible is that the Post Mortem Note shows the cause of death due to intracranial hemorrhage, while in Column No.19 for the head, below the membrane, there were no injuries on the head and other parts. Below the skull, no Page 13 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined fracture was found while in right lobe there was congestion and bleeding seen and haematoma in the right middle brain. The evidence of PW1-Dr. Kamlesh Kumar in the cross examination by relying upon the medical jurisprudence of Dr. K.S. Narayan Reddy had affirmed that if there was fracture in the skull then there are possibilities of bleeding in the ears and if there is any intracranial injury, then within 1-3 minutes, the injured would be unconscious. The Doctor in his cross examination to defend the post mortem note, stated that if the person has been given lighter attack, then there would not be any injuries, on head.
13. Thus the question, would be, in view of the evidence on record, that though the injury was given with an iron rod, why there were no injuries on the head or skull where no fracture was found? The Doctor had confirmed that intracranial hemorrhage is possible in cases of sudden anger and rise in blood Page 14 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined pressure and in that circumstances, there would not be fracture. Taking into consideration the total evidence on record and more specifically the complaint as well as the evidence of the complainant, no injury by the iron rod is attributed by the father, or the deceased-Jagdish prior to his death to appellant No.1. The medical evidence also do not corroborate the alleged blow. There is no fracture of the skull nor any injury on the head. The cause of death as could be found, as proposed by the Doctor was of sudden anger or rise in blood pressure leading to intracranial hemorrhage. The medical evidence does not support the case of any injury on the head. The complainant- father has not named appellant No.1 in the FIR, nor has attributed any role to the appellant No.1 during the course of the incident. The evidence of the mother is totally doubtful, and the contradiction in the evidence of the uncle-Kantibhai Jalabhai Taral become very obvious as that does not get support from the evidence of the complainant himself. Page 15 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025
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14. In an overall view of the analysis of the evidence, this Court is of the opinion that the observations made by the learned trial Court Judge convicting the appellants is erroneous on record and is not consistent with the evidence. The injury alleged against the appellant No.1 does not get corroboration from the evidence, more specifically from the complaint and the evidence of the complainant. This Court is of the view that benefit of doubt was required to be granted to appellant No.1.
15. As a consequence, the appeal qua the appellant No.1-Chetanbhai Nopabhai Gamar is allowed. The judgment of conviction and sentence dated 27.11.2007 by the learned Additional Sessions Judge, Fast Track Court No.5, Palanpur in Sessions Case No.77 of 2006 is quashed and set aside. The appellant No.2 is acquitted of all the charges levelled against him. Bail and bail bond stands discharged. The amount of fine Page 16 of 17 Uploaded by CAROLINE ANTHONISWAMY(HC00212) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:43:31 IST 2025 NEUTRAL CITATION R/CR.A/1272/2008 JUDGMENT DATED: 07/08/2025 undefined paid, if any, be refunded to the appellant herein.
16. As stated hereinabove, the appellant No.2- Kamjibhai alias Kamalabhai Bhemabhai Gamar had already undergone the sentence. It is made clear that this Court has not made any observations with regard to the role of the appellant No.2 herein. Record and proceedings, be sent to the concerned Trial Court forthwith.
Sd/-
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