Gujarat High Court

State Of Gujarat vs Aadivasi Bhurabhai Sajabhai on 14 November, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                            R/CR.A/106/1999                                          JUDGMENT DATED: 14/11/2025


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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 106 of 1999


                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MS. JUSTICE GITA GOPI                                 Sd/-

                      and

                      HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                                       Sd/-

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                                   Approved for Reporting                           Yes         No
                                                                                               
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                                                     STATE OF GUJARAT
                                                           Versus
                                                AADIVASI BHURABHAI SAJABHAI
                      ==============================================================
                      Appearance:
                      MS KRINA P CALLA, ADDITIONAL PUBLIC PROSECUTOR for the
                      Appellant(s) No. 1
                      BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 1
                      MR RAJESH M AGRAWAL(1253) for the Opponent(s)/Respondent(s) No. 1
                      ==============================================================

                       CORAM: HONOURABLE MS. JUSTICE GITA GOPI
                              and
                              HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                                         Date : 14/11/2025

                                                         ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. The present Appeal filed by the appellant-State

challenges the judgment of acquittal dated 14.10.1998

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passed by the learned Sessions Judge, Banaskantha at

Palanpur in Sessions Case No.12 of 1998.

2. The charge framed by the trial Court was to the effect

that on 12.09.1997 that at about 20.00 hours, the

complainant-Fulabhai Jorabhai was sitting in the osri

(verandah) of his house, at that time, accused caused

injury with a knife on the back of the complainant's

brother-Vaja Jora and thus, the accused was alleged to

have committed offence under Section 324 of the

Indian Penal Code (IPC). The charge further notes

that on the same day and time, in the front yard of the

house of the complainant, the accused gave a knife

blow to deceased-Mancha Kana on the area between

the left side of abdomen and thigh and as a result,

Mancha Kana died. Thus, the accused was tried for

the offence punishable under Section 302 of IPC. The

charge against the accused was also framed under

Section 504 of the IPC for intentionally causing breach

of public peace.

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3. Learned Additional Public Prosecutor Ms. Krina P.

Calla appearing for the appellant-State has submitted

that the judgment of acquittal is contrary to law and

not consistent with the evidence on record. The Dying

Declaration recorded by the Head Constable at Exhibit

52 and the Dying Declaration recorded by the learned

Executive Magistrate at Exhibit 47 clearly state that

the deceased was inflicted with knife blows. It is

further submitted that the learned Judge has

committed an error in arriving at a conclusion that the

deceased-Mancha Kana was not in a position to get

recorded the dying declaration. It is also contended by

learned APP that the learned Judge has committed an

error in not believing the evidence of the prosecution

witness-Vaja Jora who was present at the time of

offence, as he has clearly stated in his evidence that

the accused had inflicted knife blow on the deceased.

The learned Judge has failed to appreciate that the

house of the complainant and the prosecution witness

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were set on fire by Mancha Kana and therefore, the

deceased-Mancha Kana was assaulted by the accused.

The deceased had disclosed the name of the accused

before Heema Kodar. The learned Judge has erred in

holding that there a was a quarrel between Mancha

Kana and the injured-Vaja Jora and therefore, Mancha

Kana had inflicted blows to the injured. It is further

submitted that the learned Judge has not appreciated

the fact that the accused has purchased the

'muddamal' knife for the commission of the offence.

4. The accused was issued with a bailable warrant,

however, the same had remained un-served. Learned

advocate Mr. Rajesh M. Agrawal is representing the

accused-respondent.

5. Having heard learned APP, perused the observations

made by the learned Judge while acquitting the

respondent-accused, as well as the deposition of 16

witnesses from the side of the prosecution . The name

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of the accused that has surfaced on record is Aadivasi

Bhurabhai Sajabhai. The certificate issued by PW1-

Dr. Shamaldas Mohanlal Chadvan at Exhibit 9 of the

deceased Manchabhai Kanabhai Dungasiya. The

Certificate at Exhibit 9 records the history that he was

assaulted by a chari (knife) at about 8.00 pm on

12.09.1997. The injured- Manchabhai Kanabhai

Dungasiya was brought on 13.09.1997 without police

yaadi. The certificate shows that Mancha Kana died

on 19.09.1997 at 9.20 p.m. in the hospital during

treatment. The injury recorded is a wound on the left

side of abdomen and two abrasions. The injury No.1

was expressed to be caused possibly by sharp

substance and the injuries No.2 and 3 by a hard and

blunt substance. As per the Certificate at Exhibit 10

injured Vaja Jora was brought on 13.09.1997 at 10.30

a.m. without yadi, the hospital records the same as the

assault by a chari at about 8.00 pm of 12.09.1997.

The first injury is the one on the left shoulder while the

injury No.2 is recorded of abrasion. The injury No.1 is

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stated to be possibly by a sharp cutting substance and

the injury No.2 by a hard and blunt substance.

6. The cause of death of Manchabhai Kanabhai

Dungasiya as recorded is 'Cardio Respiratory failure

due to septic peritonitis due to injury on intestine due

to injury on abdomen'. While the post mortem note in

Column No.20, states 'multiple suture lines on small

intestine at cut slough on small intestine partly at

suture time. Intestine content expulsion in perstonia

cavity. Cut mesentry C vessels are sutured. Part of

mesentry and intesting in slough'. Such was the

description given by the doctor in autopsy note. The

doctor who had treated the injured as per the

Certificate at Exhibit 9 and 10 the same Doctor had

given evidence of the conducted post mortem wherein

it was recorded that were stitches and wound on the

abdomen, there was pus in the tube and rot and

because of the injuries suffered, the stomach was filled

with pus and therefore, the heart and lungs had

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stopped working. The post mortem report was

produced in the Court at Exhibit 13. The witness

stated that he had continued the primary treatment of

Mancha Khanabhai. He had not taken any stitches

immediately, he had made arrangements for calling a

surgeon but had not made any arrangements for

sonography. He had not given any antibiotics to

deceased Mancha Kana and had not also recorded his

temperature. When the post mortem was conducted,

he stated that there were many stitches on the

intestine and the pancreas beside the small intestine

was safe. Further, he had opined that the surgical

wound or the stitches over the stomach had rotten

away and had blurred. He confirmed that the direct

cause of death of Mancha Kana was septicemia. The

Doctor further opined that the injury on the rear side

of Vaja Jora was a simple injury. He was given

primary treatment. He had further opined that the

injury could have been caused by a sharp instrument

and had also noted the history given by Vaja Jora

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before him in the case history.

7. Further cross examination of the Doctor noted that at

2.05, hours, Mancha Kana was totally conscious and

was in a position to give a dying declaration. The

Mamlatdar had come, he was told to take the Dying

Declaration and the patient was examined at that

moment and he was conscious and was in a position to

give the Dying Declaration. At the time of both the

Dying Declaration, the patient was conscious. At Mark

46/1 and Exhibit 47, there are the dying declarations

and the Doctor recorded/identified at the end of the

Dying Declaration. The Doctor further stated that the

opinion differs from a common man and a Doctor as to

whether a patient is in a conscious state or not. The

patient was conscious and was in a fit state to give

dying declaration but he had written nothing in this

regard. As per page No.14 of Exhibit 48 on 13.09.1997

at 12.30 hours, as per the Doctor, the condition of

Mancha Kana was serious and had given endorsement

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to that effect. The doctor further stated that both the

patients were lying in bed and on 13.09.1997 between

2.05 to 2.35 hours, the Doctor was not present in the

ward nor with Mancha Kana or Vaja Jora.

8. The defence had tried to bring the evidence on record

that the dying declaration has not been recorded in a

conscious state of mind. The learned trial Court

Judge on appreciation of evidence had come to the

conclusion that the incident had taken place between

the injured-Vaja Jora and the deceased-Mancha Kana.

Both had physically assaulted. Mancha Kana had

injured Vaja Jora and Vaja Jora had caused injury to

Mancha Kana.

9. The facts of the case as per the complainant is that his

four brothers including the youngest-Vaja Jora was

staying alongwith him. The PW2-complainant-Fula

Jora stated that approximately five months prior to the

incident, his grandson, i.e. the son of his son-Babu

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had died and people from his community as well as

Garasiya Bhurabhai Sajabhai had come for the

community meet. At that time, it is alleged that

Bhura Saja started passing nasty remarks and

therefore, at that time, PW2-complainant asked him

not to use such abusive words, informing that the

people of the community had gathered there and

because of his abusive words, they would get offended.

PW2 further stated that the accused-Bhura Saja did

not adhere to his instructions and therefore, he had

asked him to leave the place, therefore, he went away.

According to the complainant, after this community

gathering, approximately after 20 days at about 8.00

pm in the evening, Bhura Sama visited their house

and invited himself to be their guest and had asked

them to prepare food for him. At that time, his son

and wife were staying together, his wife was preparing

food in the house. PW3 further stated that he had

asked the accused to let his son eat first but the

accused neglected his instructions and ate first and

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thereafter sat on the cot in the front yard of his house

with his brother-Vaja. At that time, he was in the

house to fill up the chillum (hookah). PW2 stated that

Bhura gave a knife blow on the back of Vaja and

because of the knife blow, he fell down. At that time,

Mancha Kana had come there to intervene and rescue

but the accused gave a knife blow on the abdomen of

Mancha Kana and ran away from the place.

10. PW2 stated that when he came out, he saw that the

accused had already run away and Mancha Kana

because of the nature of injuries, had fallen down and

as a result, all started to make a hue and cry. This

incident happened at about 8.00 p.m. The

complainant further states that he alongwith the

Sarpanch-Heemabhai Kodrabhai and Govabhai

Motibhai brought a jeep from Virampur and taking his

brother-Vaja Jora and Mancha Kancha, they went to

Palanpur Civil Hospital for treatment. and thereafter

in the jeep Heemabhai and Goamoti went to Amirgadh

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police where he gave his complaint. During the cross

examination the complainant for the complaint at

Mark 6/11, he admitted he was illiterate and knew

only to place the thumb impression. It is further

submitted that Heema Kodar was the nephew of the

past Sarpanch and would come regarding work. The

witness stated that the house of Mancha Kana was the

sole house near the lake and opposite the house of

Mancha Kana, there was a house of a veterinary

Doctor Taiwan who was also from their community

and a 100 meters in the north from the house of

Mancha Kana, there was the house of the

complainant. He stated that in connection with the

incident, their houses were broken down and that the

scrap was used to cremate the body of Mancha Kana.

He also confirmed that after the death of Mancha

Kana, he and his brothers had to run away and until a

settlement was arrived at, they would not be able to

enter the village. He further stated that from the time

of death of Mancha Kana, he and his brothers, i.e.

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Veera Jora, Kala Jora, and Vaja Jora left their

household and started working as labourers in Village

Vajapur Vanka where they were in hiding. He

confirmed that if their presence would be detected, the

family members of Mancha Kana would have done

them to death. He also stated that presently in Gangi

Village, they do not have their house and after they

pay the community fine for the death of Mancha Kana,

they would be permitted to enter the village. He

confirmed that the community persons had stated that

murder of Mancha Kana was done by them while the

police stated that it was Bhura Saja. The learned trial

Court Judge on appreciation of evidence has

considered this evidence. The learned Judge was also

of the opinion as during the death of the son of Babu,

the accused would have joined in the community

meeting along with others and as the accused was

asked to leave by PW2, the accused would have no

cause to visit the house of the PW2-complainant and

invite himself as a guest of the house asking to serve

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him dinner.

11. The evidence of PW2 also become doubtful where he

had stated that he was in the house preparing the

chillum, while his brother Vaja and the accused were

sitting there and Mancha Kana had come there to

intervene. Mancha Kana was living at a distance and

how he reached there in the night at the house of PW2

is not coming on record. The witness has further

stated that blood stains were found but no stains were

found inside the house or on the accused. The witness

has further stated that he had started shouting on

seeing the injuries but no one had come there because

of the sounds of Bhajan and after an hour the

Sarpanch had come there. He denied the suggestion

that the wife of the accused was present even after the

incident and the Sarpanch had come at the place of

incident.

12. The complainant confirmed that in his complaint, the

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Sarpanch and Heema Kodar had put the signatures on

behalf of him. The learned trial Court Judge has

considered the evidence of the Doctor and the

witnesses and had come to the conclusion that the

both the sides had suffered injuries.

13. PW5-Himabhai Khodrabhai was examined as a

witness. According to PW5-Himabhai Kodrabhai, he

was also the Sarpanch for about five years and he

knew PW2-Fula Jora. He stated that on the day of the

incident, at about 8.00 pm when he was at his home,

son of PW2 came and told that PW2 was beaten.

Thereafter, they ran to the house of PW2 and

according to him, PW5 saw injuries on the back of Vaja

Jora and injuries on the stomach and bottom of

Mancha Kana. The clothes as well as the bodies of

both were blood stained and on enquiry from PW2, he

was informed that accused-Bhuro had run away from

the place after beating them. In the cross examination,

it is stated that on the date of incident, there was

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Bhajan and Goro and there was a community dinner

at his house. The bhajan had started at 7.00 p.m. and

parallel on the other side, the dinner had started. He

further stated that as per the custom of Adivasis, if one

Adivasi causes the murder of another Adivasi, then the

person who has committed the crime has to leave the

village and only when he pays the community fine, the

accused can enter the village. He further said that all

the four brothers after the death of Mancha Kana had

left the Village and only on paying the community fine

could enter the village. PW5 further stated that his

son had told him that both the injured were in an

intoxicated state. The witness also confirmed that the

house of PW2 would be at a distance of 700 meters

from the house of Mancha Kana on the hill. This

evidence of PW5 corroborating with the evidence of

complainant himself would be sufficient to disbelieve

the complainant. The presence of the deceased-

Mancha Kana at the time of the alleged incident would

become non- believable.

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14. The learned Judge has rightly observed the

inconsistency with regard to the accused joining as a

guest of PW2 and asking for having dinner at home of

complainant when there was Bhajan and dinner was

organized in the house, by PW5. Political rivalry has

also been brought on record.

15. The death was because of septicimea. The dying

declaration has rightly not been believed by the

learned trial court Judge. The Doctor as PW1 who had

said that he had treated the injured and also had

conducted the post mortem report has confirmed the

fact that the deceased was referred at 12.30 pm on

13.09.1997. On 13.09.1997 between 2.05 to 2.35

hours, the Doctor was not present in the ward nor with

Mancha Kana or Vaja Jora. The circumstances on

record was sufficient enough to believe that PW2 and

PW3 had created a false case and the police had filed

false case against the present accused.

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16. Further, the evidence of PW3 as injured witness

becomes doubtful since there was no enmity worth the

name between him and the accused. His house and

that of Mancha Kana was at a distance of 1000 meters.

He confirmed that Mancha Kana's house and the land

was adjoining each other and there was no reason for

them to go into each other's house. PW3-Vaja Jora

stated that when he was assaulted from the back, he

had fallen down on the cot. This fact itself becomes

difficult to believe since he had received only simple

injury on the back. He had confirmed that he and his

brother left the village because of the community

people.

17. The observation of the learned trial Court Judge is

based on the evidence on record. PW15-Investigating

Officer stated that since he was in bandobast duty, the

Head Constable of Virampur Police Station Pratapsinh

had carried out the investigation. He stated that he

did not conduct any investigation nor had enquired for

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the period from 13.09.1997 to 20.09.1997 and he did

not visit the house of Mancha Kana. He confirmed

that there was no public road in front or on the rear

side of the place of incident. He confirmed that he

had not recorded any statement in connection with the

accused thereof at Village Bayla.

18. The controversial fact which has been brought on

record is about the prosecution case. The death is

because of septicemia. The injury that had been

sustained by injured witness is not such an injury for

a person to fall unconscious at the place of incident.

The prior incident of enmity is not corroborated by any

independent witness, rather on that ground as the

complainant would not even allow the accused to enter

the house. On analysis of the evidence by trial court is

in the right perspective, there is no cause to believe the

case of the prosecution.

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19. At this stage, it would be pertinent to refer to the

observations of the Hon'ble Supreme Court in the case

of Bhagwan Sahai and Anr. v. State of Rajasthan

reported in (2016) 13 SCC 171, where it was held by

Hon'ble Supreme Court as under :

8. "...Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants..."

20. The judgment of Chandrappa v. State of Karnataka,

(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325, would be

relevant to be mentioned since the judgment lays down

the general principles for the consideration of the

acquittal appeals. The Supreme Court has held thus :

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc.

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are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

21. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

22. In the case of Bhupatbhai Bachubhai Chavda and

Anr. State of Gujarat, 2024 SCC OnLine SC 523, it

has been held as under:

"It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can

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interfere with the order of acquittal only if it is satisfied after re-appreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question."

23. On overall analysis of the deposition of the witnesses

and the observations of the learned trial Court Judge,

we are of the view that the findings recorded by the

learned Trial Court need not be interfered with since

the miscarriage of justice which may arise from

acquittal of the guilty is not much than the conviction

of the innocent.

24. In view of the aforesaid discussion and observation,

the present Appeal stands dismissed. The judgment

and order dated 14.10.1998 passed by the learned

Sessions Judge, Banaskantha at Palanpur in Sessions

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