STATE OF GUJARAT vs GOPAL PYARELAL NAYEE

R/CR.A/1049/2002 JUDGMENT DATED: 21/10/2026
(GJHC240303052002)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1049 of 2002

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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STATE OF GUJARAT
Versus
GOPAL PYARELAL NAYEE
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Appearance:
MR L B DABHI APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 1
MS ARCHANA S SAGAR(2525) 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 : 21/10/2026

ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order
dated 04/09/2002 passed by the learned Additional Sessions Judge,
Ahmedabad City in Sessions Case No. 68/2001 whereby the learned
Judge was pleased to convict the respondent – accused for the offence
punishable under Section 323 of the Indian Penal Code and sentenced
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him to undergone one year RI with fine of Rs.1,000/- in default to
undergone one month RI, however acquitting the respondent – accused
from the charge of offence punishable under Sections 302 of the IPC, the
appellant – State has preferred the present appeal against the acquittal of
the respondent – accused for the offence punishable under Section 302 of
the IPC under Section 378(1)(3) of the Code of Criminal Procedure, 1973
(for short “the Code”).
2. The brief facts leading to the filing of the present appeals, are as
under:
2.1. The prosecution case in short is that on 30/12/2000, Pradeep-the
adopted son of the complainant, had been to the house of the accused. At
that point of time, the accused came from outside and told Pradeep, as to
why he was sitting in his house. By saying so, the accused quarreled with
Pradeep. The further prosecution case is that in the morning of the day of
incident i.e. on 31/12/2000, the complainant's husband and Pradeep were
present at their house. The deceased was sitting on the cot kept outside of
the house. The accused came out of his house and the deceased told the
accused as to why he asked Pradeep not to sit in his house. The deceased
rebuked him, there upon the accused lost his temper, caught hold of the
deceased and gave three to four fist blows on his chest and abdomen. The
son of the deceased intervened along with others and saved the deceased
from further beating. The deceased collapsed and foam started coming
out of his mouth. He was moved to Shardaben Hospital in the emergency
ward and the doctor on duty there declared him dead. On these facts, the
complainant filed the complaint with the Police and the Police after due
investigation chargesheeted the accused for the aforesaid offences.
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3. In pursuance of the complaint lodged by the complainant,
investigating agency recorded statements of the witnesses, collected
relevant evidence in form of medical evidence and drawn various
Panchnamas and other relevant evidence for the purpose of proving the
offence. After having found material against the respondent accused,
charge-sheet came to be filed in the Court of learned JMFC, as said Court
lacks jurisdiction to try the offence, it committed the case to the Sessions
Court provided under section 209 of the Code.
4. Upon committal of the case to the Sessions Court, learned Sessions
Judge framed charge against the respondent accused for the aforesaid
offence. The respondent accused pleaded not guilty and claimed to be
tried
5. In order to bring home charge, the prosecution has examined
various witnesses and also produced various documentary evidence
before the learned Sessions Court, more particularly described in the
impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the
Sessions Court put various incriminating circumstances appearing in the
evidence to the respondent accused so as to obtain his explanation/answer
as provided u/s 313 of the Code. In the further statement, the
respondent accused denied all incriminating circumstances appearing
against him as false and further stated that he is innocent and false case
has been filed against him. After hearing both the sides and after analysis
of evidence adduced by the prosecution, the learned Sessions Judge
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acquitted the respondent accused for the offence punishable under
Section 302 of the IPC, for which he was tried, as the prosecution failed
to prove the case beyond reasonable doubt.
7. We have heard learned APP for the respondent – State and learned
Advocate Ms.Archana S. Sagar, learned Advocate appearing for the
respondent – accused and have minutely examined the documentary as
well as oral evidence during the course of hearing.
8. Learned APP appearing for the appellant – State would submit that
the informant herself is an eye-witness and she is the wife of deceased
and has narrated the entire incident and as many as thirteen other
witnesses have corroborated her case and the independent witnesses also
corroborate her case and it is submitted that considering the said piece of
evidence as also the documents on record, the accused ought to have been
held guilty of the offences punishable under Section 302 of the IPC. He
would further submit that an Expert on the postmortem is examined who
also corroborates ocular version and after investigated by the IO, he came
to the conclusion that there is a case punishable under Sec.302 of IPC
against the accused person and therefore, having regard to the aforesaid
evidence on record, the learned Sessions Court ought to have convicted
the accused for the offence punishable under Section 302 of the IPC. He
would further submit that there is nothing in the cross examination of the
witnesses examined by the prosecution to disbelieve their testimony and
therefore, they must be believed in their entirety and sentence for the
offence punishable under Section 302 of the IPC ought to have been
inflicted upon the accused.
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8.1 Learned APP would further submit that the evidence of the
witnesses examined before the Court have specifically deposed as to how
and in what manner the entire incident took place and narrated the actual
event prior to commission of offence and described the role of the
accused and the manner in which the assault was made which resulted
into death of the deceased. Learned APP would further submit that
though the scientific evidence in the form of postmortem report is
available on record and there is no reasons to disbelieve the scientific
evidence which would link the accused with the crime. However the
learned Sessions Court has not considered this piece of evidence and has
acquitted the accused for the offence punishable under Section 302 of the
IPC.
8.2 By making the above submissions, learned APP would submit to
allow the present appeal and to quash and set aside the judgment and
order of acquittal and to sentence the respondents – accused.
9. Learned Advocate appearing for the respondents-accused while
supporting the impugned judgment and order of acquittal qua offence
punishable under Section 302 of the IPC would submit that the learned
Sessions Court after threadbare examination of the witnesses examined
before the Court has recorded the finding of acquittal. He would further
submit that the learned Sessions Court has found that the prosecution has
failed to examine the Doctor who performed the postmortem on the body
of the deceased and thus the so-called injuries are not proved and thereby
rightly disbelieved the case of the prosecution and therefore this Court
may not interfere with the said finding of acquittal.
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10. Having heard the learned Advocates appearing for the respective
parties and examining the facts of the case, at the outset, let us refer to the
complaint (Exh.27) given by the PW No.1. It appears from the complaint
that an FIR came to be lodged against the accused on 31.12.2000 alleging
that on 30.12.2000, Pradeep i.e. the adopted son of the informant had
been to the house, of his neighbour Gopal Pyarelal Nayee i.e. the accused
herein and at that point of time, Gopal Pyarelal Nayee came from outside
and told Pradeep as to why he is sitting in his house and had a quarrel
with him and therefore, the informant told Gopal that he also comes and
sits in her house and therefore, Pradeep also goes and sits in his house,
and thereafter there was a quarrel. It is further stated in the FIR that in the
morning of the day of incident i.e. 31.12.2000, the complainant’s husband
and Pradeep were present at their house and the informant had come out
and was drying clothes and at that point of time, her husband was sitting
on the cot outside the house and at that point of time, when her neighbour
Gopal Pyarelal Nayee came out of his house, the informant’s husband
told him as to why he asked Pradeep not to sit in his house and thus
reprimanded him and thereupon Gopal lost his temper and caught hold of
the complainant's husband and gave three to four fist blows on his chest
as also in his abdomen. At that point of time, the informant's son and
other persons namely Viru Brajmohan, Vinod Nyalsing, Vinod Kanaiyalal
and Paresh Niranjan who were residing in the chawl where the informant
resided, separated the two. The other persons of the chawl had also
gathered there and Gopal fled the scene and the informant's husband
collapsed and foam started coming out of his mouth and when she tried to
give water to him, the water could not enter his mouth and he fainted and
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was brought to the Shardaben Hospital in the emergency ward and the
doctor on duty there declared him dead.
11. Now, in light of the aforesaid facts emerging from the FIR, what
appears from the record that whether the alleged acts of accused if taken
at the face value, attracts the offences punishable under Sec.302 of IPC
and for such purpose, it would be apt to refer to Sections 299 and 300 of
IPC.
“299. Culpable homicide.—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. ”
Sec.299 defines culpable homicide. According to this provision,
person causing 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 cause to death is
said to have committed culpable homicide. Thus, the intentions of
causing death or intention of causing bodily injury which is likely to
cause death or the knowledge that the act is likely to cause death are
material for the purpose of for constituting culpable homicide.
Section 300 of the IPC reads thus:
“300. Murder.—
Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the
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intention of causing death, or—
(Secondly)— If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or—
(Thirdly)— If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or—
(Fourthly)— If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.”
For the offence under Section 300 of IPC, culpable homicide is
murder subject to exceptions narrated in the section. If the act causing
death is done with the intention of causing death or with the intention of
causing such bodily injury to the knowledge of the offender that it is
likely to cause death of a person to whom the harm is caused ог is done
with the intention of causing such bodily injury to any person which
bodily injury is sufficient in the ordinary course of nature to cause death
or if the person committing the act, knows that it is so eminently
dangerous that it must in all probability cause death or such bodily injury
as is likely to cause death and commits such act without any excuse
incurring the risk of causing the death or such injury. Thus, here again the
emphasis laid down under this section is the doing of the act with
intention to cause death or bodily injury to the knowledge the accused
that it would cause death or of causing the bodily injury which is
sufficient in the ordinary course of nature to cause death or that the
accused knows that the act is eminently dangerous that it must in all
probabilities cause death or bodily injuries which is likely to death.
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Therefore, for the purpose of holding the accused guilty of the of fence
punishable under Sec. 302, which to the spells out the punishment for
murder, the proof aforesaid extent is necessary.
12. In light of the above legal matrix reverting back to the facts of the
case, the allegations made against the accused are that after few heated
exchanges between him and deceased, the accused gave four to six fist
blows on the chest, abdomen and other parts of he appears the body of the
deceased. The incident had occurred on the spur of the moment. While
the accused was going out after coming out of his house have been
stopped by the deceased. Thus, It is not the case of the prosecution that
the accused had come to the deceased with a premeditation. He had no
intention to cause any Injury to the preparedness beforehand deceased but
the act has been committed by him after the act deceased stopped him and
questioned him as aforesaid and there was a heated exchange of words
and then the quarrel and ultimately giving of four to six fist blows by the
accused on his chest and in the abdomen.
13. Considering the aforesaid facts, it is not possible to infer that the
accused giving fist blows was with an intention to cause death of the
deceased or was with an intention to cause such bodily injuries which are
likely to cause death or was with the knowledge that by such act he is
likely to cause death. No such intention or knowledge can be attributed to
the accused having regard to the nature of the incident and the manner in
which it took place. No knowledge to the accused can be attributed to an
effect that he knew that his such acts were eminently dangerous that his
such act in all probability is likely to cause death or such bodily injury as
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cause death of the deceased. No such injuries are found on the person of
the deceased.
14. According to the PM report at Exh.24. the cause of death of the
deceased depends upon hystopathological report and after such report, the
cause of death is cardio-respiratory arrest due to chest injury and internal
heart injury. The prosecution has not been able to examine the doctor who
performed the PM on the body of the deceased, as according to the
Prosecution, the doctor is not available. The Prosecution has however.
examined Dr.Jayantilal Virjibhai Satapara who also performed PM and
was the Medical Officer in the Civil Hospital. It is rightly appreciated by
the learned Sessions Court that the injuries noted in PM report, have not
been successfully proved by the prosecution since the prosecution was
unable to examine the doctor who had personal knowledge of the injuries
on the person of the deceased. The examination of another doctor on the
aspect is just an explanation with regard to the injuries noted in the PM
report but that does not mean that the injuries are proved and opinion
given by the said Doctor remained a mere opinion based on the
statements made in the PM report. It would be relevant to note that
making a statement in the postmortem report in regards to the injuries on
the person of the deceased is not found on the personal knowledge when
the said Doctor had not performed the postmortem on the body of the
deceased and thus the said evidence loses its significance in the eye of
law and the learned Sessions Court has rightly do so. Through the post-
mortem report, the manner and method in which the injuries are caused
with which weapon used in commission of the crime can be proved; but
in absence of examination of the Doctor who performed the actual post-
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mortem, it would not be possible to prove the injuries caused to the
deceased. Under such circumstances, it is rightly held by the learned
Sessions Court that in absence of proof of effect of injuries upon the
person of the deceased, the accused cannot be convicted the offence
punishable under Sec.302 of IPC. Furthermore, the intention or
knowledge to kill or to cause injuries which may have killed the
deceased, or his knowledge that such injuries would kill the deceased if
inflicted, cannot be inferred on the basis of the facts emerging from the
record of the case.
15. At this juncture, it is apt to refer the judgment of the Supreme
Court, in the case of Tulasareddi @ Mudakappa & Anr. v. The State of
Karnataka & Ors., 2026 INSC 67 , the relevant paragraphs of which read
as under:
“29. From the aforesaid decisions rendered by this Court, it can be said
that if two reasonable conclusions are possible on the basis of the evidence
on record, the Appellate Court should not disturb the findings of acquittal
recorded by the Trial Court. Further, if the view taken is a possible view,
the Appellate Court cannot overturn the order of acquittal on the ground
that another view was also possible. The following principles have to be
kept in mind by the Appellate Court while dealing with the appeals against
an order of acquittal:
(a) whether the judgment of acquittal suffers from patent perversity,
(b) whether the judgment is based on misreading/omission to
consider the material evidence on record,
(c) an order of acquittal is to be interfered with only when there are
“compelling and substantial reasons” for doing so. If the order is
“clearly unreasonable”, it is a compelling reason for
interference.’
(d) the appellate court, while deciding an appeal against acquittal,
after reappreciating the evidence, is required to consider whether
the view taken by the trial court is a possible view which could
have been taken on the basis of the evidence on record,
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(e) if the view taken is a possible view, the appellate court cannot
overturn the order of acquittal on the ground that another view
was also possible, and
(f) the appellate court can interfere with the order of acquittal only if
it comes to a finding that the only conclusion which can be
recorded on the basis of the evidence on record was that the guilt
of the accused was proved beyond a reasonable doubt and no
other conclusion was possible.
16. Thus, as observed by the Hon'ble Supreme Court in catena of
decisions, while dealing with the judgment of acquittal, unless reasoning
by the learned Sessions Court is found to be perverse, the acquittal cannot
be upset. It is further observed that High Court's interference in such
appeal in somewhat circumscribed and if the view taken by the learned
Sessions Court is possible on the evidence, the High Court should stay its
hands and not interfere in the matter in the belief that if it had been the
trial Court, it might have taken a different view.
17. In light of the above legal position and for the reasons recorded in
the foregoing paragraphs, the present appeal fails and is accordingly
dismissed. Records and Proceedings, if any, be remitted to the Court
concerned forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
sompura
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