Ghulam Hassan Beigh v. Mohammad Maqbool Magrey & Ors.
J. B. PARDIW ALA, J.
1. Leave granted.
2. This appeal is at the instance of the original com plainant
(husband of the deceased) and is directed against the order p assed by
the High Court of Jammu and Kashmir at Srinagar dated 26.11.2020 in
the CM (M) No. 99 of 2020 by which the High Court rejected the revision
application filed by the appellant herein thereby affirming the order passed
by the Additional Sessions Judge, Sopore (trial court) discharging the
original accused persons (respondents Nos. 1 to 7 herein) from the
offence of murder punishable under Section 302 of the India n Penal
Code (for short, ‘IPC’). Upon affirmation the trial court p roceeded to
frame charge against the accused persons for the offen ce of culpable
homicide punishable under Section 304 of the IPC.
FACTUAL MATRIX
3. It appears from the First Information Report (FIR) bea ring
No. 26/20 dated 22.03.2020 lodged by the appellant with the police station
situated at Dangiwacha that on the fateful day, the accused pe rsons
formed an unlawful assembly and laid an assault on the appellant and his
family members after trespassing into the residential p roperty of the
appellant herein. It is the case of the prosecution that a ll the accused
persons trespassed into the residential property of the appellant and started
damaging the tin fence. When the appellant herein tried to restrai n the
accused persons from causing any further damage, they all started
assaulting the appellant by giving fisticuffs. One of the accused persons
is said to have hit the appellant with a wooden log. The wife of the
appellant herein and his daughter-in-law viz. Rubeena Ramzan came to
the rescue of the appellant. The accused persons are alleged to have
caught hold of the deceased (wife of the appellant herei n) and the
daughter-in-law and both were beaten up causing injuries. It is further
alleged that the two female members of the family were dragged by the
accused persons as a result the clothes of the deceased got torned thereby
outraging her modesty.
4. In connection with the aforesaid incident, the appellant went to
the police station at Dangiwacha and lodged the FIR. The FIR was
initially registered for the offences punishable under Sections 147, 354,
323 and 451 respectively of the IPC. The deceased (wife of the appellant)
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS.
had to be shifted to a hospital as she suffered injuries on her bo dy. No
sooner the deceased was brought to the hospital than she was declared
dead by the doctor on duty. In such circumstances, Section 302 of the
IPC came to be added in the FIR. The post mortem of the b ody of the
deceased was performed. The statements of the various eye wi tnesses
to the incident were recorded. Various panchnamas were drawn. At
the end of the investigation, the police filed charge shee t against the
accused persons for the offence of murder along with other offences as
enumerated above.
5. The cause of death of the deceased as assigned in the post
mortem is “cardio respiratory failure”. No poison was detected in the
viscera.
6. It appears that the trial court heard the prosecution as well as
the defence on the question of charge. Ultimately, the trial court thought
fit to discharge the accused persons of the offence of murder punishable
under Section 302 of the IPC and proceeded to frame charge aga inst
the accused persons for the offence of culpable homicide punishab le
under Section 304 of the IPC.
7. The appellant herein, being aggrieved by such decision of the
trial court to discharge the accused persons of the offence of murder,
challenged the legality and validity of the order by fili ng a revision
application before the High Court. The High Court thought fit to affirm
the order passed by the trial court discharging the accused p ersons of
the offence of murder.
8. In such circumstances referred to above, the appella nt has
come up with the present appeal before this Court.
ANALYSIS
9. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls
for our consideration is : Whether the High Court was justified in affirming
the order passed by the trial court discharging the accused p ersons of
the offence of murder?
10. At this stage, we may look into the reasons assigned by the
trial court as well as by the High Court for the purpose of discharging
the accused persons of the offence of murder.
41
11. The trial court in its order dated 23.10.2020 observed in
paragraphs 29 and 30 respectively as under :-
“29. Scanning the evidence of prosecution, statements of t he
prosecution witnesses and statement of the deceased be fore
her death who in their statements have stated that the acc used
persons entered the compound of the complainant and g ave
a blow with some object to the complainant, with the re sult
complainant got injured and the accused persons out raged
the modesty of the wife and daughter-in-law of the
complainant. While going through the statement under section
161 Cr.P.C. of the deceased, which was recorded ins tantly
after the alleged commission of offence, deceased has st ated
that the accused persons entered the compound and attacked
his husband who was given a blow by some object with th e
result he got injured while as she and her daughter-i n-law
tried to intervene upon which the accused persons c aught
hold of them by hair and started beating with hands with the
result she got injured and her modesty was outraged. Medical
opinion on file reflect that there was no injury on an y other
part of the body of the deceased except over upper and low er
lips with abrasions on face. Whether such act has cause d the
death of the deceased has not been mentioned anywher e in
the record. Injury as reflected in the injury memo also does
not reflect any such consequence which could lead t o the
death of the deceased. Report received from FSL also does
not reflect anything which could in any way lead to the
conclusion of death by the commission of the offence. In th ese
circumstances it could not be said that the ingredients of sec
302 IPC are made out and the instant case does not fall within
the paraments laid down under sec 302 IPC.
30. Penal code recognizes two kinds of homicides – i) culpabl e
homicide, that deals between sections 299 and 304 IPC and
ii) non-culpable homicides, which deals with section 304-A
IPC. There are two kinds of culpable homicides; a) culp able
homicide amounting to murder Sec 300 and 302 IPC and b)
culpable homicide not amounting to murder Sec 304-II RPC.
This section provides punishment for culpable homicid e not
amounting to murder. The accused person on virtual mode
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
who are lodged in Sub Jail Baramulla, who pleaded not guilty
and claimed to be tried. Copy of charge sheet was s ent to
Superintendent Sub Jail Baramulla for obtaining signat ures
of the accused persons who shall after obtaining th e same
attest the same and forward the charge sheet to this court.
Prosecution shall produce evidence on next date of hearin g.
Put up on 04.11.20.” (emphasis supplied)
12. The High Court, while affirming the aforesaid order pas sed
by the trial court, held as under:-
“9. The perusal of the order passed by trial court reveals that
the trial court after considering the statement of the eye
witnesses including the injured witnesses and the st atement
of the deceased has come to the conclusion that the
ingredients of offence under section 302 I.P.C are lacking.
The injury report of the deceased reflects that she was
examined at 3.15 p.m. on 22.03.2020 and except slig ht
bleeding over upper and lower lips, there was no injur y on
any part of the body of the deceased Aisha Begum an d at
that time she had not suffered cardiac arrest. In the post mortem
report, the concerned Medical Officer has given opi nion
regarding death of Aisha Begum that the deceased died d ue
to cardiac arrest with alleged history of scuffle w ith
neighbours. Even the deceased Aisha Begum in her statement
has stated that the respondent Nos. 1 to 7 entered their
compound and gave blow upon her husband (petitioner) as
result of which he got injured and when she and her daughter-
in-law tried to intervene, they also got hold of them and started
beating her as a result of which she got injured and outra ged
her modesty. The cause of death in the post mortem report is
cardiac arrest and not that the deceased died as a res ult of
injury suffered by her. It would be relevant to note t hat the
deceased was examined on 22.03.2020 at 3.15 P.M by Medical
Officer. She was declared brought dead on 23.03.2020 in the
Hospital at 1.37 A.M as per the death certificate p laced on
record by the petitioner . The trial court has rightly come to
the conclusion that no offence under section 302 IPC is made
out against the respondent Nos. 1 to7. There is no force in the
contention of the petitioner that the trial court has crit ically
43
evaluated the evidence but the trial court has simply exami ned
the material facts so as to find out as to whether there is
sufficient material to charge the private responden ts for
commission of offence under section 302 IPC or not and the
conclusion of the trial court is rather the only co nclusion
that can be drawn from the material brought on record by the
prosecution.” (emphasis supplied)
13. We shall now take notice of the individual orders passed by
the trial court framing charge against the accused persons . One such
order framing the charge reads thus:-
“Charge is hereby framed against you Midasir Ahmad
Magrey that on 22.03.20 you in collusion with the o ther
accused persons trespassed into the courtyard of th e house
of the complainant and you all started uprooting the tin fence.
When the complainant asked you and other accused persons
not to cause any damage, you all started assaulting the
complainant with a weapon as a result the complaina nt
suffered injuries and fell down on the ground. You also caused
injuries to the wife of the complainant and outrage d her
modesty. The wife of the complainant died in the mi dnight
hours on 22/23.03.2020. Therefore, you are to be tr ied for
the offence punishable under Sections 451, 323, 324 and
304 of the IPC.”
14. We shall now look into the police statement of one of the eye
witnesses recorded under Section 161 of the Code of Criminal Procedure,
1973 (for short, ‘CrPC’) dated 23.03.2020. The statements of all other
eye witnesses are on the same footing. The statement thus rea ds:-
“Statement of Wali Mohammad Sheikh R/o: Ghulam Mohi -
ud-din Sheikh R/o Yarbugh, age – 59 Years, Occupati on –
Farmer under Section 161 Cr.PC dated 23-03-2020
I am a resident of Yarbugh and am a Farmer by professi on.
On 22-03-2020, I went to offer Prayers and was retu rning
from the Mosque towards my Home. On the way I saw that the
accused persons namely 1. Mohammad Maqbool Magray
S/o Mohammad Shaban Magray; 2. Zahoor Ahmad Magray
S/o Mohammad Shaban Magray; 3. Tariq Ahmad Magray
S/o Mohammad Shaban Magray; 4. Mudasir Ahmad Magray
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
S/o Mohammad Shaban Magray; 5. Abdul Rashid Beigh S/o
Mohammad Beigh; 6. Suhail Ahmad Beigh S/o Abdul Rashid
Beigh; and 7. Nasir Ahmad Beigh S/o Abdul Rashid Be igh
Residents of : Yarbugh Rafiabad, in an unlawful ass embly
with a preplanned concert, entered the residential compoun d
of complainant and started breaking his Tin Fence. The
complainant objected to such act and told them that the said
Tin Wall was constructed mutually. On listening to t his, the
accused persons forming an assembly, caught hold of the
complainant and started beating him up with kicks and blows.
Further, they hit the complainant with a wooden log as a result
he got injured. The wife of complainant namely Mst. As hiya
Begum and Daughter-in-law of the complainant namely
Rubeena Ramzan came to the rescue the complainant. The
accused persons also caught hold of them and beat them up
with kicks and blows thereby causing injuries to bo th. The
said two ladies were dragged by the accused persons due t o
which their modesty was outraged and the Feran worn by the
wife of the complainant was also tore off by the ac cused
persons. The complainant then filed a written complaint with
the Police Station Dangiwacha in the incident. At 10:00 PM,
the wife of the complainant namely Mst. Ashiya Begu m who
was beaten and injured by the accused persons compl ained
of severe complications and was rushed to hospital for medi cal
treatment and on way she succumbed to death. In fact , the
deceased died due to the assault and beating of acc used
persons and injuries by them. Today, Police Dangiwa cha
recorded my statement and I attested my signature u pon it.
Hence, my statement.”
POSITION OF LA W
15. Section 226 of the CrPC corresponds to sub-section (1) of the
old Section 286 with verbal changes owing to the abolition of the jury.
Section 286 of the 1898 Code reads as under:-
“286.(1) In a case triable by jury, when the jurors have been
in chosen or, in any other case, when the Judge is ready to hear
the case, the prosecutor shall open his case by reading from the
Indian Penal or other law the description of the offence charged,
45
and stating shortly by what evidence he expects to prove the guilt
of the accused.
(2) The prosecutor shall then examine his witnesses.”
Section 226 of the 1973 Code reads thus:
“226. Opening case for prosecution .—When the accused
appears or is brought before the Court in pursuance of a
commitment of the case under section 209, the prosecutor shall
open his case by describing the charge brought against t he
accused and stating by what evidence he proposes to prove
the guilt of the accused.”
Section 226 of the CrPC permits the prosecution to make the first
impression regards a case, one which might be difficult to dispel. In not
insisting upon its right under Section 226 of the CrPC, the prosecution
would be doing itself a disfavour. If the accused is to contend that the
case against him has not been explained owing to the non-comp liance
with Section 226 of the CrPC, the answer would be that the Se ction
173(2) of the CrPC report in the case would give a fair idea thereof, and
that the stage of framing of charges under Section 228 of t he CrPC is
reached after crossing the stage of Section 227 of the CrP C, which
affords both the prosecution and accused a fair opportunity to put forward
their rival contentions.
16. Section 227 of the CrPC reads thus:
“227. Discharge.–
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his reasons
for so doing.”
17. Section 228 of the CrPC reads thus:
“228. Framing of charge.- (1) If, after such consideration and
hearing as aforesaid,the Judge is of opinion that there is g round
for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may frame
a charge against the accused and, by order,
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
transfer the case for trial to the Chief Judicial M agistrate,
or any other Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial Magistrate, or as the
case may be, the Judicial Magistrate of the first class, on s uch
date as he deems fit, and thereupon such Magistrate shall try the
offence in accordance with the procedure for the trial of warrant
cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-
section (1), the charge shall be read and explained to the accused
and the accused shall be asked whether he pleads guilty of th e
offence charged or claims to be tried.”
18. The purpose of framing a charge is to intimate to the accused
the clear, unambiguous and precise nature of accusation that the accused
is called upon to meet in the course of a trial. [See: decisi on of a Four
Judge Bench of this Court in V.C. Shukla v. State through C.B.I.
reported in1980 Supp SCC 92: 1980 SCC (Cri) 695).
19. The case may be a sessions case, a warrant case , or a
summons case, the point is that a prima facie case must be made out
before a charge can be framed. Basically, there are three pairs of sections
in the CrPC. Those are Sections 227 and 228 relating to the sess ions
trial; Section 239 and 240 relatable to trial of warrant cases, and Sections
245(1) and (2) with respect to trial of summons case.
20. Section 226 of the CrPC, over a period of time has gone , in
oblivion. Our understanding of the provision of Section 226 of the CrPC
is that before the Court proceeds to frame the charge against the accused,
the Public Prosecutor owes a duty to give a fair idea to the Court as
regards the case of the prosecution.
21. This Court in the case of Union of India v. Prafulla Kumar
Samal and another, (1979) 3 SCC 4, considered the scope of enquiry a
judge is required to make while considering the question of framing of
charges. After an exhaustive survey of the case law on th e point, this
Court, in paragraph 10 of the judgment, laid down the following principles:-
“(1) That the Judge while considering the question of framing
the charges under section 227 of the Code has the undoubted
47
power to sift and weigh the evidence for the limited purpose
of finding out whether or not a prima facie case against the
accused has been made out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been pr operly
explained the Court will be, fully justified in framing a charg e
and proceeding with the trial.
(3) The test to determine a prima facie case would naturall y
depend upon the facts of each case and it is difficult to l ay
down a rule of universal application. By and large however
if two views are equally possible and the Judge is s atisfied
that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the ac cused,
he will be fully within his right to discharge the accuse d.
(4) That in exercising his jurisdiction under secti on 227 of
the Code the Judge which under the present Code is a senior
and experienced Judge cannot act merely as a Post office or
a mouth-piece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the ev idence and
the documents produced before the Court, any basic infirmiti es
appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into th e pros
and cons of the matter and weigh the evidence as if h e was
conducting a trial.”
22. There are several other judgments of this Court delineati ng
the scope of Court’s powers in respect of the framing of c harges in a
criminal case, one of those being Dipakbhai Jagdishchndra Patel v.
State of Gujarat, (2019) 16 SCC 547, wherein the law relating to the
framing of charge and discharge is discussed elaborately in paragraphs
15 and 23 resply and the same are reproduced as under:
“15. We may profitably, in this regard, refer to the judgm ent
of this Court in State of Bihar v. Ramesh Singh wherein t his
Court has laid down the principles relating to fram ing of
charge and discharge as follows:
“4…..Reading Sections 227 and 228 together in
juxtaposition, as they have got to be, it would be clear
that at the beginning and initial stage of the trial the t ruth,
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
veracity and effect of the evidence which the prosec utor
proposes to adduce are not to be meticulously judged. Nor
is any weight to be attached to the probable defence of the
accused. It is not obligatory for the Judge at that stage of
the trial to consider in any detail and weigh in a sensitiv e
balance whether the facts, if proved, would be incompatible
with the innocence of the accused or not. The standard of
test and judgment which is to be finally applied be fore
recording a finding regarding the guilt or otherwise of the
accused is not exactly to be applied at the stage of deciding
the matter under Section 227 or Section 228 of the Code.
At that stage the Court is not to see whether there is
sufficient ground for conviction of the accused or whether
the trial is sure to end in his conviction. Strong suspic ion
against the accused, if the matter remains in the region o f
suspicion, cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if ther e is a
strong suspicion which leads the Court to think that there
is ground for presuming that the accused has committ ed
an offence then it is not open to the Court to say that there
is no sufficient ground for proceeding against the accused.
The presumption of the guilt of the accused which is to be
drawn at the initial stage is not in the sense of t he law
governing the trial of criminal cases in France where the
accused is presumed to be guilty unless the contrar y is
proved. But it is only for the purpose of deciding prima
facie whether the court should proceed with the tria l or
not. If the evidence which the prosecutor proposes to
adduce to prove the guilt of the accused even if fu lly
accepted before it is challenged in cross examinatio n or
rebutted by the defence evidence, if any, cannot show that
the accused committed the offence, then there will b e no
sufficient ground for proceeding with the trial…. I f the
scales of pan as to the guilt or innocence of the accus ed
are something like even at the conclusion of the trial, t hen,
on the theory of benefit of doubt the case is to end in hi s
acquittal. But if, on the other hand, it is so at the initial
stage of making an order under Section 227 or Secti on
228, then in such a situation ordinarily and generally the
49
order which will have to be made will be one under Section
228 and not under Section 227.”
“23. At the stage of framing the charge in accordance with
the principles which have been laid down by this Court, what
the Court is expected to do is, it does not act as a mere post
office. The Court must indeed sift the material before i t. The
material to be sifted would be the material which is produced
and relied upon by the prosecution. The sifting is n ot to be
meticulous in the sense that the Court dons the mantle of t he
Trial Judge hearing arguments after the entire evidence has
been adduced after a full-fledged trial and the que stion is
not whether the prosecution has made out the case f or the
conviction of the accused. All that is required is, the Court
must be satisfied that with the materials available, a case is
made out for the accused to stand trial. A strong su spicion
suffices. However, a strong suspicion must be founded on so me
material. The material must be such as can be translated into
evidence at the stage of trial. The strong suspicion cannot be
the pure subjective satisfaction based on the moral notions
of the Judge that here is a case where it is possib le that
accused has committed the offence. Strong suspicion mus t be
the suspicion which is premised on some material wh ich
commends itself to the court as sufficient to entertain the pr ima
facie view that the accused has committed the offence.”
23. In Sajjan Kumar v. CBI [(2010) 9 SCC 368 : (2010) 3 SCC
(Cri) 1371] , this Court had an occasion to consider the scope of Sections
227 and 228 CrPC. The principles which emerged therefrom have been
taken note of in para 21 as under: (SCC pp. 376-77)
“21. On consideration of the authorities about the scop e of
Sections 227 and 228 of the Code, the following pri nciples
emerge:
(i) The Judge while considering the question of fra ming
the charges under Section 227 CrPC has the undoubted
power to sift and weigh the evidence for the limited pur pose
of finding out whether or not a prima facie case ag ainst
the accused has been made out. The test to determine prima
facie case would depend upon the facts of each case.
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
(ii) Where the materials placed before the court disc lose
grave suspicion against the accused which has not b een
properly explained, the court will be fully justifi ed in
framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the e vidence
and the documents produced before the court, any basic
infirmities, etc. However, at this stage, there canno t be a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court
could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the prob ative
value of the material on record cannot be gone into but
before framing a charge the court must apply its judi cial
mind on the material placed on record and must be satisfied
that the commission of offence by the accused was possibl e.
(vi) At the stage of Sections 227 and 228, the cour t is
required to evaluate the material and documents on record
with a view to find out if the facts emerging therefrom t aken
at their face value disclose the existence of all t he
ingredients constituting the alleged offence. For this limited
purpose, sift the evidence as it cannot be expected even at
that initial stage to accept all that the prosecution states
as gospel truth even if it is opposed to common sens e or
the broad probabilities of the case.
(vii) If two views are possible and one of them gives ri se to
suspicion only, as distinguished from grave suspicion, th e
trial Judge will be empowered to discharge the accu sed
and at this stage, he is not to see whether the trial will end
in conviction or acquittal.”
51
24. The exposition of law on the subject has been f urther
considered by this Court in State v. S. Selvi, (2018) 13 SCC 455 : (2018)
3 SCC (Cri) 710, followed in Vikram Johar v. State of Uttar
Pradesh, (2019) 14 SCC 207 : 2019 SCC OnLine SC 609 : (2019) 6
Scale 794.
25. In the case of Asim Shariff v. National Investigation Agency,
(2019) 7 SCC 148, this Court, to which one of us (A.M. Khanwilkar, J.)
was a party, in so many words has expressed that the trial court is not
expected or supposed to hold a mini trial for the purpose of marshalling
the evidence on record. We quote the relevant observations as under:-
“18. Taking note of the exposition of law on the subject l aid
down by this Court, it is settled that the Judge wh ile
considering the question of framing charge under Se ction
227 CrPC in sessions cases(which is akin to Section
239 CrPC pertaining to warrant cases) has the undoubte d
power to sift and weigh the evidence for the limited purpose
of finding out whether or not a prima facie case against the
accused has been made out; where the material placed before
the Court discloses grave suspicion against the accused w hich
has not been properly explained, the Court will be fully
justified in framing the charge; by and large if two views are
possible and one of them giving rise to suspicion o nly, as
distinguished from grave suspicion against the accu sed, 3
2018(13) SCC 455 4 2019(6) SCALE 794 the trial Judge will
be justified in discharging him. It is thus clear that while
examining the discharge application filed under Sec tion
227 CrPC, it is expected from the trial Judge to exercise its
judicial mind to determine as to whether a case for tri al has
been made out or not. It is true that in such proceedin gs, the
Court is not supposed to hold a mini trial by marshalling the
evidence on record .”
(emphasis supplied)
26. In the case of State of Karnataka v. M.R. Hiremath, reported
in (2019) 7 SCC 515, this Court held as under:-
“25. The High Court ought to have been cognizant of the
fact that the trial court was dealing with an applica tion for
discharge under the provisions of Section 239 CrPC. The
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
parameters which govern the exercise of this jurisdiction have
found expression in several decisions of this Court . It is a
settled principle of law that at the stage of consi dering an
application for discharge the court must proceed on the
assumption that the material which has been brought on th e
record by the prosecution is true and evaluate the material in
order to determine whether the facts emerging from the
material, taken on its face value, disclose the existence of the
ingredients necessary to constitute the offence. In State of T.N.
v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the
earlier decisions on the subject, this Court held: (SCC pp.
721-22, para 29)
“29. … At this stage, probative value of the materials has
to be gone into and the court is not expected to go dee p
into the matter and hold that the materials would not warrant
a conviction. In our opinion, what needs to be considered
is whether there is a ground for presuming that the offenc e
has been committed and not whether a ground for
convicting the accused has been made out. To put it
differently, if the court thinks that the accused might have
committed the offence on the basis of the materials on
record on its probative value, it can frame the cha rge;
though for conviction, the court has to come to the
conclusion that the accused has committed the offen ce.
The law does not permit a mini trial at this stage.”
27. Thus from the aforesaid, it is evident that the trial cour t is
enjoined with the duty to apply its mind at the time of framing of charge
and should not act as a mere post office. The endorsement on the charge
sheet presented by the police as it is without applying its mind and without
recording brief reasons in support of its opinion is not countenanced by
law. However, the material which is required to be evaluated by the
Court at the time of framing charge should be the material which is
produced and relied upon by the prosecution. The sifting of such material
is not to be so meticulous as would render the exercise a mini trial to find
out the guilt or otherwise of the accused. All that is required at this stage
is that the Court must be satisfied that the evidence c ollected by the
prosecution is sufficient to presume that the accused has committed an
offence. Even a strong suspicion would suffice. Undoubtedly, apart from
53
the material that is placed before the Court by the prose cution in the
shape of final report in terms of Section 173 of CrPC, the Court may
also rely upon any other evidence or material which is of sterling quality
and has direct bearing on the charge laid before it by the prosecution.
(See : Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).
28. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, this
Court observed in paragraph 30 that the Legislature in it s wisdom has
used the expression “ there is ground for presuming that the accused
has committed an offence”. There is an inbuilt element of presumption.
It referred to its judgement rendered in the case of State ofMaharashtra
v. Som Nath Thapa and others, (1996) 4 SCC 659, and to the meaning
of the word “presume”, placing reliance upon Blacks’ Law Dictionary,
where it was defined to mean “ to believe or accept upon probable
evidence”; “to take as true until evidence to the c ontrary is
forthcoming”. In other words, the truth of the matter has to come
out when the prosecution evidence is led, the witnesse s are cross-
examined by the defence, incriminating material and evide nces put
to the accused in terms of Section 313 of the Code, and then the
accused is provided an opportunity to lead defence, if any. It is
only upon completion of such steps that the trial concludes with t he
Court forming its final opinion and delivering its judgement.....”
(emphasis supplied)
29. What did the trial court do in the case on hand? We have no
doubt in our mind that the trial court could be said to have conducted a
mini trial while marshalling the evidence on record. The trial court thought
fit to discharge the accused persons from the offence of murde r and
proceeded to frame charge for the offence of culpable homicide und er
Section 304 of the IPC by only taking into consideration the me dical
evidence on record. The trial court as well as the High Court got persuaded
by the fact that the cause of death of the deceased as assigne d in the
post mortem report being the “cardio respiratory failure”, the same cannot
be said to be having any nexus with the alleged assault that was laid on
the deceased. Such approach of the trial court is not correct and cannot
be countenanced in law. The post mortem report, by itself, doe s not
constitute substantive evidence. Whether the “cardio respiratory failure”
had any nexus with the incident in question would have to be determined
on the basis of the oral evidence of the eye witnesses as well as the
medical officer concerned i.e. the expert witness who may be examined
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
by the Prosecution as one of its witnesses. To put it in ot her words,
whether the cause of death has any nexus with the alleged assa ult on
the deceased by the accused persons could have been determined only
after the recoding of oral evidence of the eye witnesses and the exp ert
witness along with the other substantive evidence on record. T he post
mortem repot of the doctor is his previous statement based on his
examination of the dead body. It is not substantive evidence. The doctor’s
statement in court is alone the substantive evidence. The post mortem
repot can be used only to corroborate his statement under Section 157,
or to refresh his memory under Section 159, or to contradict his statement
in the witness-box under Section 145 of the Evidence Act, 1872. A medical
witness called in as an expert to assist the Court is not a witness of fact
and the evidence given by the medical officer is really of an advisory
character given on the basis of the symptoms found on examina tion.
The expert witness is expected to put before the Court a ll materials
inclusive of the data which induced him to come to the conclusion and
enlighten the Court on the technical aspect of the case by explaining the
terms of science so that the Court although, not an expert may form its
own judgment on those materials after giving due regard to the expert’s
opinion because once the expert’s opinion is accepted, it is not the opinion
of the medical officer but of the Court.
30. The prosecution should have been given opportunity to prove
all the relevant facts including the post mortem report through the medical
officer concerned by leading oral evidence and thereby seek the opinion
of the expert. It was too early on the part of the trial court as well as the
High Court to arrive at the conclusion that since no serious injuries were
noted in the post mortem report, the death of the deceased o n account
of “cardio respiratory failure” cannot be said to be having any nexus
with the incident in question.
31. Whether the case falls under Section 302 or 304 Part II, IPC
could have been decided by the trial court only after the evaluat ion of
the entire oral evidence that may be led by the prosecution as well as by
the defence, if any, comes on record. Ultimately, upon appreciation of
the entire evidence on record at the end of the trial, the trial court may
take one view or the other i.e. whether it is a case of murder or case of
culpable homicide. But at the stage of framing of the cha rge, the trial
court could not have reached to such a conclusion merely relying upon
the port mortem report on record. The High Court also overlooked such
55
fundamental infirmity in the order passed by the trial court and proceeded
to affirm the same.
32. We may now proceed to consider the issue on hand from a
different angle. It is a settled position of law that in a criminal trial, the
prosecution can lead evidence only in accordance with the charge framed
by the trial court. Where a higher charge is not framed for which there
is evidence, the accused is entitled to assume that he is cal led upon to
defend himself only with regard to the lesser offence for which he ha s
been charged. It is not necessary then for him to meet evidence relating
to the offences with which he has not been charged. He is mere ly to
answer the charge as framed. The Code does not require him to meet
all evidence led by prosecution. He has only to rebut evidence bearing
on the charge. The prosecution case is necessarily limited by the charge.
It forms the foundation of the trial which starts with it and the accused
can justifiably concentrate on meeting the subject-matter of the charge
against him. He need not cross-examine witnesses with regard to offences
he is not charged with nor need he give any evidence in defence i n
respect of such charges.
33. Once the trial court decides to discharge an accused pe rson
from the offence punishable under Section 302 of the IPC and proceeds
to frame the lesser charge for the offence punishable under Section 304
Part II of the IPC, the prosecution thereafter would not be in a position
to lead any evidence beyond the charge as framed. To put it otherwise,
the prosecution will be thereafter compelled to proceed as if it has now
to establish only the case of culpable homicide and not murder. On the
other hand, even if the trial court proceeds to frame charge under Section
302 IPC in accordance with the case put up by the prosecutio n still it
would be open for the accused to persuade the Court at the end o f the
trial that the case falls only within the ambit of culpab le homicide
punishable under Section 304 of IPC. In such circumstances, in the facts
of the present case, it would be more prudent to permit the prosecution
to lead appropriate evidence whatever it is worth in accordance with its
original case as put up in the chargesheet. Such approach of the trial
court at times may prove to be more rationale and prudent.
34. In view of the aforesaid discussion, the order of the High
Court as well as the order of the trial court deserve to be set aside.
35. In the result, this appeal succeeds and is hereby allowed. The
orders passed by the High Court and the trial court are hereby set aside.
GHULAM HASSAN BEIGH v. MOHAMMAD MAQBOOL
MAGREY & ORS. [J. B. PARDIWALA, J.]
The trial court shall now proceed to pass a fresh order framing charge in
accordance with law keeping in mind the observations made by this
Court.
36. We clarify that we have otherwise not expressed any opinion
on the merits of the case. The observations in this judgment are absolutely
prima facie and relevant only for the purpose of deciding the legality
and validity of the order discharging the accused persons of the offence
of murder punishable under Section 302 of the IPC. We once again
clarify that ultimately it is for the trial court to take an appropriate decision
as regards the nature of the offence at the end of the tri al.
Devika Gujral Appeal allowed.
(Assisted by : Rahul Rathi, LCRA)