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
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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
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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
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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
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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
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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
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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-
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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
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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
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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
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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
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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
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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.
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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
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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/-
(GITA GOPI, J)
CAROLINE / DB # 28
