Gujarat High Court
Salamsinh Mathursinh Chauhan vs State Of Gujarat on 22 April, 2026
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 220 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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SALAMSINH MATHURSINH CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Appellant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1
MR LB DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 22/04/2026
JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This conviction appeal preferred by the accused appellant - Salamsinh Mathursinh Chauhan, is directed against the judgment of conviction and order of sentence dated 05.02.2011, passed by the learned Additional Sessions Judge, Godhra at Panchmahal, in Sessions Case No. 38 of 2009, by which, the appellant accused had been convicted under Section 302, 323, 504 of the Indian Penal Code and sentenced as tabulated hereunder:
Conviction under Punishment Fine In default of Section fine S.302 r/w 114 of Imprisonment Rs.10,000/- SI for 2 years IPC for Life Page 1 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined
2. The case of the prosecution leading to conviction of the appellant accused is as follows :
(1) On 29.07.2008 at about 9-00 o'clock in night, deceased Jalambhai Bharatsih was attacked by the appellant accused Salamsinh and his brother Jalamsinh Mathursinh, on the issue of overtaking the tempo. The deceased being pillion of the bike, was going from village: Mahelol Muvadi to village: Chanchpur, Umra Faliya. (2) The bike was driven by PW-4 Kirisinh Solanki. On the day of incident, one tempo was going ahead of the bike and the accused were passengers of the tempo.
(3) The rider of the bike PW-4 overtake the tempo, which was not liked by the accused, as a result, they stopped that tempo and restrained the bike. The accused appellant and his brother scolded the deceased and rider of the bike on the issue of overtaking and hurled abusive and on that count, the quarrel took place. The appellant accused and co-accused Jalamsinh Mathursinh inflicted kicks and fist blows on the body of the deceased Jalamsinh Bharatsih and due to hue and cry, the people of the vicinity came to their rescue, as a result, the appellant and his brother fled away from the place. The deceased and complainant Kishorsinh went their village and in the night hours, the deceased had a severe pain in the stomach and he could not passed his stood and find difficulty in passing urine. He was admitted in the Civil Hospital, Godhra.
The N.C. Complaint before the Godhra Rural Police Station for the alleged act came to be registered under Sections 323, 504 and 114 of the Indian Penal Code. The deceased Jalamsinh Bharatsinh was Page 2 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined admitted in the Civil Hospital from 30.07.2008 to 05.08.2008. The sonography report was to the effect that, there was mild free intraperitoneal fluid found in the small intestine. The surgery was fixed by the Civil Surgeon PW-8. There was a rupture of small intestine and due to said rupture, septicemia was developed. The surgery was not successful and deceased passed away on 05.08.2008.
(4) In such circumstances, the rider of the bike PW-4 Kiritsinh Solanki lodged an FIR with the Godhra Rural Police Station, which came to be registered as I.CR. No. 169 of 2009 for the offences punishable under Sections 302, 323, 504 and 114 of the Indian Penal Code.
(5) The appellant was impleaded as accused No. 2, whereas, Jalamsinh Mathursinh, his brother was impleaded as accused no. 1. The A1 was died during the course of trial proceedings. After due investigation of the case and upon filing of the chargesheet, the case was committed to the court of sessions at Godhra, which had been culminated into Sessions Case No. 38 of 2009.
3. After due framing of the charge and upon the accused appellant not pleading guilty, the trial commenced before the Sessions Court at Godhra.
4. In order to prove the charge, the prosecution examined as many as 11 witnesses and exhibited 21 documents :
Oral evidence :
PW 1 - Exh.7 Pratapsinh Chandrasinh Solanki Page 3 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined PW 2 - Exh.10 Dasrathsinh Gofaldsinh Solanki PW 3 - Exh.11 Ramsinghbhai Dhemsinghbhai Chouhan PW 4 - Exh.22 Kiritsinh Udaysinh Solanki PW 5 - Exh.26 Ushaben Jalambhai Rathod PW 6 - Exh.28 Dr. Awadhkishor Ramsevak Sharma PW 7 - Exh.34 Dr. Nikhil Praveenchandra Vyas PW 8 - Exh.36 Dr. Mahesh Govindbhai P.Sagar PW 9 - Exh.38 Dr. Parshotambhai Ganeshbhai Rathod PW 10 - Exh.41 Vikramsinh Bachusinh Chouhan PW 11 - Exh.47 Gambhirsinh. Jashwantsinh Chavda Documentary evidence : Exh.8 Inquest Panchnama Exh.12 Panchnama of place of offence Exh.13 Arrest panchnama Exh.14 Panchnama of recovery of clothes from deceased Exh.15 Panchnama of seizure of tempo Exh.16 Yadi to executive magistrate for inquest panchnama Exh.17 Death form copy Exh.18 Police yadi Exh.19 Copy of inquiry in Gota post 126/08 Exh.20 Police yadi Exh.23 Complaint Exh.24 Copy of complaint Exh.29 Medical certificate of deceased Page 4 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined Exh.35 Sonography report Exh.37 Case papers Exh.39 PM note copy Exh.43 Station diary copy Exh.44 Copy of yadi of clothes recovered from deceased's body Exh.48 Police yadi to medical officer Exh.49 Copy of information of bringing surekhaben for treatment Exh.50 Yadi for map of place of offence
5. After closure of the prosecution evidence, the appellant accused was questioned under Section 313 of the Cr.P.C, to which, he has pleaded his innocence and further stated that he has been falsely implicated in the serious offence of murder.
6. The accused - appellant has not adduced any evidence in his defence.
7. The learned Sessions Judge, after hearing the parties and upon appreciation of the evidence, came to the conclusion that, the prosecution succeeded in proving the charge against the appellant accused. The learned trial Court having regard to the nature of injuries and upon appreciation of evidence of eye-witness PW-4, observed that, the appellant accused intended to inflict a fatal injury on the vital part of the body and the act by which death was caused was done with intention of causing death and with intention of causing such bodily injury which was likely to cause death. The learned trial Court held guilty the accused for Page 5 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined the act of offence of murder and also held guilty for causing voluntary hurt under Section 323 of the Indian Penal Code and under Section 504 for the act of provoking breach of peace. The accused was directed to undergo life imprisonment for the offence of murder. In view of the imposing life sentence, the trial Court did not have imposed any sentence under Sections 323 and 504 of the Indian Penal Code.
Evidence adduced by the prosecution:
8. The case of the prosecution rests on the sole eyewitness PW:4 and medical evidence.
(A) Kiritsinh Solanki (PW:4): This witness is the cousin brother of the deceased Zalamsinh Bharatsinh. On the day of incident i.e. 29.07.2008, the wife of the deceased was admitted in Government Hospital at Village Mahelol and then this witness was also present at the hospital. In the night hours at about 08:00 o'clock, this witness along with the deceased were returning back from the hospital and going towards their village Chanchpur - Umra. They were on the bike and it was driven by the witness herein and deceased was pillion on the bike. In these background facts, the witness has stated in the chief examination that when they were passing on State Highway, they overtake one tempo going ahead of their bike. It is further stated by the witness that when they reached at the cross junction of the road, their bike was stopped, and the accused persons, who were occupants of the vehicle, raised the dispute that why they overtake the tempo. The deceased made a conversation that why you are raising objection. The accused were annoyed and by hurling abusive, they gave a fist and kick blows to the Page 6 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined deceased and also caused injuries with the wooden log in the stomach. It is further stated by the witness that in the said quarrel, they had been in rescue by the vicinity of the people and after the incident, they had gone to their village. The witness has further stated that, at the home, the deceased was unwell and finds difficulty in passing urine and stool, as a result, he was taken to Godhra Civil Hospital where he was admitted as a patient. The witness has further stated that in the hospital, the deceased lodged an FIR which came to be registered as NC Case. It is further stated that on 05.08.2008, the deceased was expired in the hospital. The witness has further stated that after the expiration of the deceased, he lodged an FIR, which is produced at Exh.23.
In the cross examination, the suggestion was put that being a lobourer of the tractor, the deceased met with an accident which was the reason for sustaining the stomach injuries. The said suggestion was denied by the witness. It is also denied by the witness that the deceased was in habit of drinking liquor which was the cause for stomach ailment. It is also denied by the witness that the accused neither caused injuries with the stick nor gave a fist and kick blows on the stomach of the deceased.
(B) Dr.Avadh Kishor Sharma (PW:6): This witness had admitted the deceased in the Government Hospital as at the relevant time, he was serving as medical officer. The witness had examined the deceased and upon his examination, it was opined by the doctor that the deceased was found guilty in passing urine and there was a pain in his stomach. The witness had produced the treatment case papers along with the sonography report at Exhs.29, 30 and 31.
Page 7 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined In the cross examination, the doctor has admitted that, he had noted the history of the incident. It has been specifically asked to the doctor that the injuries were not sufficient in ordinary course to cause death. In the reply, the witness has stated that death may occur or may not occur.
(C) Dr.Nikhil Vyas (PW:7): This witness is doing his private practice in the Godhra Town as a radiologist. The deceased was referred to him for sonography of the abdomen by the doctor of civil hospital. The sonography was done by him on 01.08.2008. As per the report, there was mild free intra peritoneal fluid found in the abdomen. The witness has opined that if kicks and fists blows being caused at the abdomen then such kind of injuries could be possible.
(D) Dr.Mahesh Sagar (PW:8): This witness being a civil surgeon of the Godhra Civil Hospital, had conducted a surgery upon the deceased as there was a need to extract the fluid found in the abdomen area of the deceased. This witness has further stated that during the surgery, he found pus with foul smell and there was a cut injury in the small intestine. It is clearly opined by the doctor that this injury could be possible if the person was injured by kick and fist blows.
(E) Dr.Parshotam Rathod (PW:9): On 05.08.2008, this witness being Medical Officer of Godhra Civil Hospital, had conducted postmortem on the body of the deceased. During the postmortem, he found following external and internal injuries:
Page 8 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined External injuries:
1. Mark of 10cm in length above and below the , vertical in direction. It was saturated and a plastic pipe was seen coming out from the abdominal cavity.
2. There was a saturated wound on the right side of the abdominal lateral part, 2cm in length with plastic pipe seen coming out from the abdominal cavity.
3. Abrasion formation of 3cm x 2cm on right scapular region upper part, greenish in colour.
4. Abrasion formation of 2cm x 2cm on. Left scapular region upper part, greenish in colour
5. Abrasion formation of 3cm x 3cm on right side of chest 2cm above the nipple, greenish in colour
6. Abrasion formation 2cm x 2cm on left elbow joint exterior aspect, greenish in colour.
Internal injuries:
On opening the wound, infection was found in it. On opening the wound, the stitches of the abdominal cavity were found to be one and a half liters. Pus was collected on the mesentery and the large intestine. In the middle of the small intestine, there was a semicircular stitched wound in which infection was found, which was 6 cm long and was swollen.
According to the opinion of the doctor, the cause of death was shocked due to septicemia, following rupture of small intestine. It was opined by the doctor that the blunt injuries over the abdomen was the cause of rupture of intestine. The witness has further agreed with the opinion proposed by the prosecution that the injuries could be possible if the person was injured by kick and fist blows. In the cross examination, the doctor has admitted that due to the blunt injuries, the small intestine could be ruptured.Page 9 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026
NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined (F) Gambhirsingh J. Chavda (PW:11): This witness at the time of incident was serving as a Senior PSI, with Godhra Rural Police Station and being an Investigating Officer of the case, he conducted entire investigation and then, filed the chargesheet before the Court. The witness has admitted that on 29.07.2008, there was NC Case being No.126 of 2008 came to be registered and thereafter, upon registration of the offence, he was entrusted with the investigation. The witness has stated that during the investigation, he had arrested the accused, drew the panchnama of the place of the incident, recorded the statements of the witnesses, and upon completion of the investigation, filed the chargesheet against the accused persons. In the cross examination, he had admitted that the first FIR dated 30.08.2008, came to be registered which is produced at Exh:24. The witness has also admitted that he has no personal knowledge about the incident.
9. Mr.B.M. Mangukiya, learned counsel appearing for and on behalf of the accused appellant made the following submissions:
(1) Even accepting the incident to be proved, the appellant cannot be found guilty for the offence under Section 302 of the IPC;
(2) The accused had neither the incident to cause death nor the knowledge that his act would result int the death of the deceased. The occurrence took place at the night hours and according to the prosecution case, the accused caused injuries to the deceased with kick and fist blows.
The doctor who had conducted the P.M. has categorically stated that the rupture of intestine could be possible with blood substance. In such circumstances, the act of giving fist and kick blows could not be a reason Page 10 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined for causing death. On the day of incident, the NC complaint under Section 323 being registered with Police Station allegedly disclosed by the deceased himself and later on, after five days, the rider of the bike Mr.Kiritsinh Solanki (PW:4) with the substantial improvement lodged an FIR;
(3) That the case of the prosecution at the most would fall only under Section 323 of the IPC as the medical evidence does not support the case of the prosecution;
10. In such circumstances, the prosecution has failed to prove its case beyond reasonable doubt for the offence punishable under Section 302 of the IPC and as such, the judgment is liable to be set aside as the findings of the Trial Court are contrary to the evidence on record and are not in consonance with the settled principle of law and therefore, the conviction cannot be allowed to sustain and the same may be set aside and the conviction may be altered into Section 323 of the IPC.
11. On the other hand, learned APP Mr.L.B. Dabhi for the State vehemently opposed the contentions as raised hereinabove and contended that the prosecution has succeeded in proving the charge of murder against the accused appellant. The cause of death was rupture of intestine and it could be possible by kick and fist blows and the doctor who had operated the injuries, had opined that the injuries could be possible by the kick and fist blows and therefore, the learned Trial Court has correctly appreciated the evidence and findings are supported by the sound reason. In such circumstances, it was submitted that there being no merits in the appeal filed by the accused and the same may be dismissed.
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12. We have heard at length learned counsels appearing for the parties and perused the material available on record.
13. It is relevant to note that though the appellant is alleged to have caused injuries with kick and fist blows on the lower abdomen, as seen from the medical evidence, there is no external visible injuries found on the body of the deceased. Therefore, it is clear from the medical evidence that, the injury found could be possible with blunt weapon. It is the case of the prosecution that, the deceased was giving fist and kick blows on the lower abdomen. The plea is taken that there was no intention of causing death or with the intention of causing such bodily injury, as is likely to cause death or with the knowledge that he is likely by such act to cause death and therefore, the act alleged would not fall under the definition of culpable homicide.
In order to appreciate the contention, let us examine the statutory provision.
Section 299 of the IPC says that, whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that, he is likely by such act to cause death, commits the offence of culpable homicide. In every case of murder, it is imperative on the part of the prosecution to prove the act of culpable homicide. The section is in three parts, (i) an act with the intention of causing death, (ii) an act with an intention of causing such bodily injury as is likely to cause death or (iii) an act with the knowledge that it was likely to cause death. In other words in order to bring home the charges levelled against the accused under Page 12 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined Section 302, the prosecution has to establish beyond reasonable doubt that the act of the accused was with intention to cause death or the act with an intention to cause such bodily injury, as is likely to cause death or he was having knowledge that the act was likely to cause death. It is settled law that without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. The fact that the death of a human cause is not enough unless it was caused in any of the aforesaid three circumstances.
Applying the aforesaid principles to the case present case, it reveal that in a petty issue of overtaking of the vehicle the quarrel took place between the deceased and two accused persons. The appellant herein during the scuffle inflicted fist and kick blows on the lower abdomen of the deceased. The nature of injury is such that it could not be possible with the fist and kicking and it could be possible with the blunt object. Admittedly, the blunt object like lathi or any other hard substance having not been used as a weapon by accused. In such circumstances, though the death was occurred, but it would not fall to the offence of culpable homicide, because, 'intent' and 'knowledge' is the ingredients of Section 299 i.e. existence of positive mental attitude (mens-rea), is missing in the present case.
14. In view of the above, by no stretch of imagination, the appellant accused could be imputed with the intention or knowledge of causing death of the deceased as defined under Section 299 of the IPC. At the most his act would fall only under Section 323 of the IPC. Therefore, we are left with inevitable conclusion that the act of the accused appellant Page 13 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026 NEUTRAL CITATION R/CR.A/220/2011 JUDGMENT DATED: 22/04/2026 undefined would clearly fall under Section 323 of IPC for the offence of voluntarily causing hurt. Accordingly, the conviction of the appellant for the offence punishable under Section 302 is modified to that of offence punishable under Section 323 of IPC and having regard to the peculiar facts of the present case, the accused is sentenced to the period already undergone.
15. The appeal stands partly allowed. The judgment of the conviction and order of sentence for the offence punishable under Section 302 is set aside. The appellant is found guilty for the offence punishable under Section 323 of the IPC and sentenced is modified to the period of imprisonment already undergone. The appellant accused is on bail. Bail bond shall stand cancelled. The appellant is not required to surrender.
16. With the above modification, Criminal Appeal stands partly allowed.
(ILESH J. VORA,J) (R. T. VACHHANI, J) Rakesh Page 14 of 14 Uploaded by RAKESH M KOSHTI(HC00950) on Thu Apr 23 2026 Downloaded on : Thu Apr 23 22:11:54 IST 2026