GHULAM HASSAN BEIGH versus MOHAMMAD MAQBOOL MAGREY & ORS.

[2022] 13 S.C.R. 34

[2022] 13 S.C.R.

GHULAM HASSAN BEIGH

MOHAMMAD MAQBOOL MAGREY & ORS.

(Criminal Appeal No. 1041 of 2022)

BJULY 26, 2022

[A. M. KHANWILKAR, ABHAY S. OKA ANDJ. B. PARDIWALA, JJ.]

Code of Criminal Procedure, 1973: 226, 227 and 228 – PenalCode, 1860: 147, 302, 323, 354 & 451 – Accused persons formedCan unlawful assembly and laid an assault on the appellant and hisfamily members and during the assault wife of the appellantsuccumbed to the injuries inflicted on her by the accused persons –Cause of death of the deceased in the post mortem report was “cardiorespiratory failure” – Charge sheet against the accused personsDfor the offence of murder along with other offences – Trial courtdischarged the accused persons of the offence of murder andproceeded to frame charge for the offence of culpable homicidepunishable u/s.304 of the IPC – High Court affirmed the order oftrial court discharging the accused persons of the offence of murder– On appeal, held: Trial court is enjoined with the duty to apply itsEmind at the time of framing of charge and should not act as merepost office – The material which is required to be evaluated by theCourt at the time of framing charge should be the material which isproduced and relied upon by the prosecution – All that is requiredat this stage is that the Court must be satisfied that the evidenceFcollected by the prosecution is sufficient to presume that the accusedhas committed an offence – Whether the case falls under ss.302 or304 Part II, IPC could be decided only after the evaluation of theentire oral evidence that may be led by the prosecution as well asby the defence, if any, comes on record – At the stage of framing ofthe charge, the trial court could not have reached to such aGconclusion merely relying upon the port mortem report on record.

Evidence Act, 1872: Evidentiary Value of Post Mortem Report– The post mortem report, by itself, does not constitute substantiveevidence – The post mortem report of the doctor is his previousstatement based on his examination of the dead body – The doctor’sH

statement in court is alone the substantive evidence – The postmortem report can be used only to corroborate his statement unders.157, or to refresh his memory under s.159, or to contradict hisstatement in the witness box under s.145 of the Evidence Act, 1872.

Evidence Act, 1872: s. 45 – Expert Opinion – The expertwitness is expected to put before the Court all materials inclusive ofthe data which induced him to come to conclusion and enlightenthe Court on the technical aspect of the case by explaining theterms of science so that the Court although, not an expert may formits own judgment on those materials after giving due regard to theexpert’s opinion because once the expert’s opinion is accepted, it isnot the opinion of the medical officer but of the Court.

Allowing the appeal, Court

HELD: 1. The trial court is enjoined with the duty to applyits mind at the time of framing of charge and should not act as amere post office. The endorsement on the charge sheet presentedby the police as it is without applying its mind and without recordingbrief reasons in support of its opinion is not countenanced by law.However, the material which is required to be evaluated by theCourt at the time of framing charge should be the material whichis produced and relied upon by the prosecution. The sifting ofsuch material is not to be so meticulous as would render theexercise mini trial to find out the guilt or otherwise of theaccused. All that is required at this stage is that the Court mustbe satisfied that the evidence collected by the prosecution issufficient to presume that the accused has committed an offence.Even strong suspicion would suffice. Undoubtedly, apart fromthe material that is placed before the Court by the prosecution inthe shape of final report in terms of Section 173 of CrPC, theCourt may also rely upon any other evidence or material which isof sterling quality and has direct bearing on the charge laid beforeit by the prosecution. [Para 27][52-F-H; 53-A]

2. The case on hand, the trial court could be said to haveconducted mini trial while marshalling the evidence on record.The trial court thought fit to discharge the accused persons fromthe offence of murder and proceeded to frame charge for the

DEF

36SUPREME COURT REPORTS

Aoffence of culpable homicide under Section 304 of the IPC byonly taking into consideration the medical evidence on record.The trial court as well as the High Court got persuaded by thefact that the cause of death of the deceased as assigned in thepost mortem report being the “cardio respiratory failure”, thesame cannot be said to be having any nexus with the allegedBassault that was laid on the deceased. Such approach of the trialcourt is not correct and cannot be countenanced in law. The postmortem report, by itself, does not constitute substantiveevidence. Whether the “cardio respiratory failure” had any nexuswith the incident in question would have to be determined on theCbasis of the oral evidence of the eye witnesses as well as themedical officer concerned i.e. the expert witness who may beexamined by the Prosecution as one of its witnesses. The postmortem report of the doctor is his previous statement based onhis examination of the dead body. It is not substantive evidence.The doctor’s statement in court is alone the substantive evidence.DThe post mortem report can be used only to corroborate hisstatement under Section 157, or to refresh his memory underSection 159, or to contradict his statement in the witness boxunder Section 145 of the Evidence Act, 1872. medical witnesscalled in as an expert to assist the Court is not witness of factEand the evidence given by the medical officer is really of anadvisory character given on the basis of the symptoms found onexamination. The expert witness is expected to put before theCourt all materials inclusive of the data which induced him tocome to the conclusion and enlighten the Court on the technicalaspect of the case by explaining the terms of science so that theFCourt although, not an expert may form its own judgment on thosematerials after giving due regard to the expert’s opinion becauseonce the expert’s opinion is accepted, it is not the opinion of themedical officer but of the Court. [Para 29][53-F-H; 54-A-D]

3. The prosecution should have been given opportunity toGprove all the relevant facts including the post mortem reportthrough the medical officer concerned by leading oral evidenceand thereby seek the opinion of the expert. It was too early onthe part of the trial court as well as the High Court to arrive atthe conclusion that since no serious injuries were noted in theH

post mortem report, the death of the deceased on account of“cardio respiratory failure” cannot be said to be having any nexuswith the incident in question. Whether the case falls under Section302 or 304 Part II, IPC could have been decided by the trialcourt only after the evaluation of the entire oral evidence thatmay be led by the prosecution as well as by the defence, if any,comes on record. Ultimately, upon appreciation of the entireevidence on record at the end of the trial, the trial court may takeone view or the other i.e. whether it is case of murder or case ofculpable homicide. [Paras 30, 31][54-E-G]

4. It is settled position of law that in criminal trial, theprosecution can lead evidence only in accordance with the chargeframed by the trial court. Where higher charge is not framed forwhich there is evidence, the accused is entitled to assume thathe is called upon to defend himself only with regard to the lesseroffence for which he has been charged. It is not necessary thenfor him to meet evidence relating to the offences with which hehas not been charged. He is merely to answer the charge asframed. The Code does not require him to meet all evidence ledby prosecution. He has only to rebut evidence bearing on thecharge. The prosecution case is necessarily limited by the charge.It forms the foundation of the trial which starts with it and theaccused can justifiably concentrate on meeting the subject matterof the charge against him. He need not cross examine witnesseswith regard to offences he is not charged with nor need he giveany evidence in defence in respect of such charges. Once thetrial court decides to discharge an accused person from the offencepunishable under Section 302 of the IPC and proceeds to framethe lesser charge for the offence punishable under Section 304Part II of the IPC, the prosecution thereafter would not be in aposition to lead any evidence beyond the charge as framed. [Paras32, 33][55-B-E]

Union of India v. Prafulla Kumar Samal and another(1979) 3 SCC 4 : [1979] 2 SCR 229; DipakbhaiJagdishchndra Patel v. State of Gujarat (2019) 16 SCC547 : [2019] 6 SCR 701; Sajjan Kumar v. CBI (2010)9 SCC 368 : [2010] 11 SCR 669; State of Karnataka

[2022] 13 S.C.R.

Av. M. R. Hiremath (2019) 7 SCC 515 : [2019]8 SCR 713 – relied on.

V. C. Shukla v. State through C.B.I. (1980) Supp SCC92 : [1980] 2 SCR 380 1980 SCC (Cri) 695; State v. S.Selvi (2018) 13 SCC 455; Vikram Johar v. State of UttarBPradesh (2019) 14 SCC 207 : [2019] 8 SCR 1; AsimShariff v. National Investigation Agency (2019) 7 SCC148 : [2019] 8 SCR 799; Bhawna Bai v. Ghanshyam(2020) 2 SCC 217 : [ 2019] 14 SCR 422; Amit Kapoorv. Ramesh Chander (2012) 9 SCC 460; State ofMaharashtra v. Som Nath Thapa and Others (1996) 4CSCC 659 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1041 of 2022.

From the Judgment and Order dated 26.11.2020 of the High CourtGof Jammu & Kashmir at Srinagar in CM(M) No. 99 of 2020.

Ramesh Kumar Mishra, Sandeep Pandey, Advs. for the Appellant.

Ms. Taruna Ardhendumauli Prasad, Amritesh Raj, Ms. ShreyaSrivastava, Ashish Madaan, S. Ananya Sahu, Ahmad Ibrahim, DhirajHAbraham Philip, Advs. for the Respondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. Leave granted.

2. This appeal is at the instance of the original complainant(husband of the deceased) and is directed against the order passed bythe High Court of Jammu and Kashmir at Srinagar dated 26.11.2020 inthe CM (M) No. 99 of 2020 by which the High Court rejected the revisionapplication filed by the appellant herein thereby affirming the order passedby the Additional Sessions Judge, Sopore (trial court) discharging theoriginal accused persons (respondents Nos. 1 to 7 herein) from theoffence of murder punishable under Section 302 of the Indian PenalCode (for short, ‘IPC’). Upon affirmation the trial court proceeded toframe charge against the accused persons for the offence of culpablehomicide punishable under Section 304 of the IPC.

FACTUAL MATRIX

3. It appears from the First Information Report (FIR) bearingNo. 26/20 dated 22.03.2020 lodged by the appellant with the police stationsituated at Dangiwacha that on the fateful day, the accused personsformed an unlawful assembly and laid an assault on the appellant and hisfamily members after trespassing into the residential property of theappellant herein. It is the case of the prosecution that all the accusedpersons trespassed into the residential property of the appellant and starteddamaging the tin fence. When the appellant herein tried to restrain theaccused persons from causing any further damage, they all startedassaulting the appellant by giving fisticuffs. One of the accused personsis said to have hit the appellant with wooden log. The wife of theappellant herein and his daughter-in-law viz. Rubeena Ramzan came tothe rescue of the appellant. The accused persons are alleged to havecaught hold of the deceased (wife of the appellant herein) and thedaughter-in-law and both were beaten up causing injuries. It is furtheralleged that the two female members of the family were dragged by theaccused persons as result the clothes of the deceased got torned therebyoutraging her modesty.

4. In connection with the aforesaid incident, the appellant went tothe police station at Dangiwacha and lodged the FIR. The FIR wasinitially registered for the offences punishable under Sections 147, 354,323 and 451 respectively of the IPC. The deceased (wife of the appellant)

EFG

Ahad to be shifted to hospital as she suffered injuries on her body. Nosooner the deceased was brought to the hospital than she was declareddead by the doctor on duty. In such circumstances, Section 302 of theIPC came to be added in the FIR. The post mortem of the body of thedeceased was performed. The statements of the various eye witnessesto the incident were recorded. Various panchnamas were drawn. AtBthe end of the investigation, the police filed charge sheet against theaccused persons for the offence of murder along with other offences asenumerated above.

5. The cause of death of the deceased as assigned in the postmortem is “cardio respiratory failure”. No poison was detected in theCviscera.

6. It appears that the trial court heard the prosecution as well asthe defence on the question of charge. Ultimately, the trial court thoughtfit to discharge the accused persons of the offence of murder punishableunder Section 302 of the IPC and proceeded to frame charge againstDthe accused persons for the offence of culpable homicide punishableunder Section 304 of the IPC.

7. The appellant herein, being aggrieved by such decision of thetrial court to discharge the accused persons of the offence of murder,challenged the legality and validity of the order by filing revisionEapplication before the High Court. The High Court thought fit to affirmthe order passed by the trial court discharging the accused persons ofthe offence of murder.

8. In such circumstances referred to above, the appellant hascome up with the present appeal before this Court.F

ANALYSIS

9. Having heard the learned counsel appearing for the parties andhaving gone through the materials on record, the only question that fallsfor our consideration is : Whether the High Court was justified in affirmingthe order passed by the trial court discharging the accused persons ofGthe offence of murder?

10. At this stage, we may look into the reasons assigned by thetrial court as well as by the High Court for the purpose of dischargingthe accused persons of the offence of murder.

11. The trial court in its order dated 23.10.2020 observed inparagraphs 29 and 30 respectively as under :-

“29. Scanning the evidence of prosecution, statements of theprosecution witnesses and statement of the deceased beforeher death who in their statements have stated that the accusedpersons entered the compound of the complainant and gavea blow with some object to the complainant, with the resultcomplainant got injured and the accused persons outragedthe modesty of the wife and daughter-in-law of thecomplainant. While going through the statement under section161 Cr.P.C. of the deceased, which was recorded instantlyafter the alleged commission of offence, deceased has statedthat the accused persons entered the compound and attackedhis husband who was given blow by some object with theresult he got injured while as she and her daughter-in-lawtried to intervene upon which the accused persons caughthold of them by hair and started beating with hands with theresult she got injured and her modesty was outraged. Medicalopinion on file reflect that there was no injury on any otherpart of the body of the deceased except over upper and lowerlips with abrasions on face. Whether such act has caused thedeath of the deceased has not been mentioned anywhere inthe record. Injury as reflected in the injury memo also doesnot reflect any such consequence which could lead to thedeath of the deceased.Report received from FSL also doesnot reflect anything which could in any way lead to theconclusion of death by the commission of the offence. In thesecircumstances it could not be said that the ingredients of sec302 IPC are made out and the instant case does not fall withinthe paraments laid down under sec 302 IPC.

30. Penal code recognizes two kinds of homicides – i) culpablehomicide, that deals between sections 299 and 304 IPC andii) non-culpable homicides, which deals with section 304-AIPC. There are two kinds of culpable homicides; a) culpablehomicide 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 homicide notamounting to murder. The accused person on virtual mode

who are lodged in Sub Jail Baramulla, who pleaded not guiltyand claimed to be tried. Copy of charge sheet was sent toSuperintendent Sub Jail Baramulla for obtaining signaturesof the accused persons who shall after obtaining the sameattest the same and forward the charge sheet to this court.Prosecution shall produce evidence on next date of hearing.Put up on 04.11.20.” (emphasis supplied)

12. The High Court, while affirming the aforesaid order passedby the trial court, held as under:-

“9. The perusal of the order passed by trial court reveals thatthe trial court after considering the statement of the eyewitnesses including the injured witnesses and the statementof the deceased has come to the conclusion that theingredients of offence under section 302 I.P.C are lacking.The injury report of the deceased reflects that she wasexamined at 3.15 p.m. on 22.03.2020 and except slightbleeding over upper and lower lips, there was no injury onany part of the body of the deceased Aisha Begum and atthat time she had not suffered cardiac arrest. In the post mortemreport, the concerned Medical Officer has given opinionregarding death of Aisha Begum that the deceased died dueto cardiac arrest with alleged history of scuffle withneighbours. Even the deceased Aisha Begum in her statementhas stated that the respondent Nos. 1 to 7 entered theircompound and gave blow upon her husband (petitioner) asresult of which he got injured and when she and her daughter-in-law tried to intervene, they also got hold of them and startedbeating her as result of which she got injured and outragedher modesty. The cause of death in the post mortem report iscardiac arrest and not that the deceased died as result ofinjury suffered by her. It would be relevant to note that thedeceased was examined on 22.03.2020 at 3.15 P.M by MedicalOfficer. She was declared brought dead on 23.03.2020 in theHospital at 1.37 A.M as per the death certificate placed onrecord by the petitioner. The trial court has rightly come tothe conclusion that no offence under section 302 IPC is madeout against the respondent Nos. 1 to7. There is no force in thecontention of the petitioner that the trial court has critically

evaluated the evidence but the trial court has simply examinedthe material facts so as to find out as to whether there issufficient material to charge the private respondents forcommission of offence under section 302 IPC or not and theconclusion of the trial court is rather the only conclusionthat can be drawn from the material brought on record by theprosecution.” (emphasis supplied)

13. We shall now take notice of the individual orders passed bythe trial court framing charge against the accused persons. One suchorder framing the charge reads thus:-

“Charge is hereby framed against you Midasir AhmadMagrey that on 22.03.20 you in collusion with the otheraccused persons trespassed into the courtyard of the houseof the complainant and you all started uprooting the tin fence.When the complainant asked you and other accused personsnot to cause any damage, you all started assaulting thecomplainant with weapon as result the complainantsuffered injuries and fell down on the ground. You also causedinjuries to the wife of the complainant and outraged hermodesty. The wife of the complainant died in the midnighthours on 22/23.03.2020. Therefore, you are to be tried forthe offence punishable under Sections 451, 323, 324 and304 of the IPC.”

14. We shall now look into the police statement of one of the eyewitnesses recorded under Section 161 of the Code of Criminal Procedure,1973 (for short, ‘CrPC’) dated 23.03.2020. The statements of all othereye witnesses are on the same footing. The statement thus reads:-

“Statement of Wali Mohammad Sheikh R/o: Ghulam Mohi-ud-din Sheikh R/o Yarbugh, age – 59 Years, Occupation –Farmer under Section 161 Cr.PC dated 23-03-2020

I am resident of Yarbugh and am Farmer by profession.On 22-03-2020, I went to offer Prayers and was returningfrom the Mosque towards my Home. On the way I saw that theaccused persons namely 1. Mohammad Maqbool MagrayS/o Mohammad Shaban Magray; 2. Zahoor Ahmad MagrayS/o Mohammad Shaban Magray; 3. Tariq Ahmad MagrayS/o Mohammad Shaban Magray; 4. Mudasir Ahmad Magray

S/o Mohammad Shaban Magray; 5. Abdul Rashid Beigh S/oMohammad Beigh; 6. Suhail Ahmad Beigh S/o Abdul RashidBeigh; and 7. Nasir Ahmad Beigh S/o Abdul Rashid BeighResidents of : Yarbugh Rafiabad, in an unlawful assemblywith preplanned concert, entered the residential compoundof complainant and started breaking his Tin Fence. Thecomplainant objected to such act and told them that the saidTin Wall was constructed mutually. On listening to this, theaccused persons forming an assembly, caught hold of thecomplainant and started beating him up with kicks and blows.Further, they hit the complainant with wooden log as resulthe got injured. The wife of complainant namely Mst. AshiyaBegum and Daughter-in-law of the complainant namelyRubeena Ramzan came to the rescue the complainant. Theaccused persons also caught hold of them and beat them upwith kicks and blows thereby causing injuries to both. Thesaid two ladies were dragged by the accused persons due towhich their modesty was outraged and the Feran worn by thewife of the complainant was also tore off by the accusedpersons. The complainant then filed written complaint withthe Police Station Dangiwacha in the incident. At 10:00 PM,the wife of the complainant namely Mst. Ashiya Begum whowas beaten and injured by the accused persons complainedof severe complications and was rushed to hospital for medicaltreatment and on way she succumbed to death. In fact, thedeceased died due to the assault and beating of accusedpersons and injuries by them. Today, Police Dangiwacharecorded my statement and I attested my signature upon it.Hence, my statement.”

POSITION OF LAW

15. Section 226 of the CrPC corresponds to sub-section (1) of theold Section 286 with verbal changes owing to the abolition of the jury.GSection 286 of the 1898 Code reads as under:-

“286.(1) In case triable by jury, when the jurors have beenin chosen or, in any other case, when the Judge is ready to hearthe case, the prosecutor shall open his case by reading from theIndian Penal or other law the description of the offence charged,

and stating shortly by what evidence he expects to prove the guiltof 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 accusedappears or is brought before the Court in pursuance of acommitment of the case under section 209, the prosecutor shallopen his case by describing the charge brought against theaccused and stating by what evidence he proposes to provethe guilt of the accused.”

Section 226 of the CrPC permits the prosecution to make the firstimpression regards case, one which might be difficult to dispel. In notinsisting upon its right under Section 226 of the CrPC, the prosecutionwould be doing itself disfavour. If the accused is to contend that thecase against him has not been explained owing to the non-compliancewith Section 226 of the CrPC, the answer would be that the Section173(2) of the CrPC report in the case would give fair idea thereof, andthat the stage of framing of charges under Section 228 of the CrPC isreached after crossing the stage of Section 227 of the CrPC, whichaffords both the prosecution and accused fair opportunity to put forwardtheir rival contentions.

16. Section 227 of the CrPC reads thus:

“227. Discharge.–

If, upon consideration of the record of the case and the documentssubmitted therewith, and after hearing the submissions of theaccused and the prosecution in this behalf, the Judge considersthat there is not sufficient ground for proceeding against theaccused, he shall discharge the accused and record his reasonsfor so doing.”

17. Section 228 of the CrPC reads thus:

“228. Framing of charge.- (1) If, after such consideration andhearing as aforesaid,the Judge is of opinion that there is groundfor presuming that the accused has committed an offence which-(a) is not exclusively triable by the Court of Session, he may framea charge against the accused and, by order,

Atransfer the case for trial to the Chief Judicial Magistrate,or any other Judicial Magistrate of the first class and direct theaccused to appear before the Chief Judicial Magistrate, or as thecase may be, the Judicial Magistrate of the first class, on suchdate as he deems fit, and thereupon such Magistrate shall try theoffence in accordance with the procedure for the trial of warrantBcases instituted on police report;

(b) is exclusively triable by the Court, he shall frame in writing acharge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-Csection (1), the charge shall be read and explained to the accusedand the accused shall be asked whether he pleads guilty of theoffence charged or claims to be tried.”

18. The purpose of framing charge is to intimate to the accusedthe clear, unambiguous and precise nature of accusation that the accusedDis called upon to meet in the course of trial. [See: decision of FourJudge 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 sessions case, warrant case, or asummons case, the point is that prima facie case must be made outEbefore charge can be framed. Basically, there are three pairs of sectionsin the CrPC. Those are Sections 227 and 228 relating to the sessionstrial; Section 239 and 240 relatable to trial of warrant cases, and Sections245(1) and (2) with respect to trial of summons case.

20. Section 226 of the CrPC, over period of time has gone, inFoblivion. Our understanding of the provision of Section 226 of the CrPCis that before the Court proceeds to frame the charge against the accused,the Public Prosecutor owes duty to give fair idea to the Court asregards the case of the prosecution.

21. This Court in the case of Union of India v. Prafulla KumarSamal and another, (1979) 3 SCC 4, considered the scope of enquiry aGjudge is required to make while considering the question of framing ofcharges. After an exhaustive survey of the case law on the point, thisCourt, in paragraph 10 of the judgment, laid down the following principles:-

“(1) That the Judge while considering the question of framingthe charges under section 227 of the Code has the undoubtedH

power to sift and weigh the evidence for the limited purposeof finding out whether or not prima facie case against theaccused has been made out.

(2) Where the materials placed before the Court disclose gravesuspicion against the accused which has not been properlyexplained the Court will be, fully justified in framing chargeand proceeding with the trial.

(3) The test to determine prima facie case would naturallydepend upon the facts of each case and it is difficult to laydown rule of universal application. By and large howeverif two views are equally possible and the Judge is satisfiedthat the evidence produced before him while giving rise tosome suspicion but not grave suspicion against the accused,he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 ofthe Code the Judge which under the present Code is seniorand experienced Judge cannot act merely as Post office ora mouth-piece of the prosecution, but has to consider the broadprobabilities of the case, the total effect of the evidence andthe documents produced before the Court, any basic infirmitiesappearing in the case and so on. This however does not meanthat the Judge should make roving enquiry into the prosand cons of the matter and weigh the evidence as if he wasconducting trial.”

22. There are several other judgments of this Court delineatingthe scope of Court’s powers in respect of the framing of charges in acriminal case, one of those being Dipakbhai Jagdishchndra Patel v.State of Gujarat, (2019) 16 SCC 547, wherein the law relating to theframing of charge and discharge is discussed elaborately in paragraphs15 and 23 resply and the same are reproduced as under:

“15. We may profitably, in this regard, refer to the judgmentof this Court in State of Bihar v. Ramesh Singh wherein thisCourt has laid down the principles relating to framing ofcharge and discharge as follows:

“4…..Reading Sections 227 and 228 together injuxtaposition, as they have got to be, it would be clearthat at the beginning and initial stage of the trial the truth,

veracity and effect of the evidence which the prosecutorproposes to adduce are not to be meticulously judged. Noris any weight to be attached to the probable defence of theaccused. It is not obligatory for the Judge at that stage ofthe trial to consider in any detail and weigh in sensitivebalance whether the facts, if proved, would be incompatiblewith the innocence of the accused or not. The standard oftest and judgment which is to be finally applied beforerecording finding regarding the guilt or otherwise of theaccused is not exactly to be applied at the stage of decidingthe matter under Section 227 or Section 228 of the Code.At that stage the Court is not to see whether there issufficient ground for conviction of the accused or whetherthe trial is sure to end in his conviction. Strong suspicionagainst the accused, if the matter remains in the region ofsuspicion, cannot take the place of proof of his guilt at theconclusion of the trial. But at the initial stage if there is astrong suspicion which leads the Court to think that thereis ground for presuming that the accused has committedan offence then it is not open to the Court to say that thereis no sufficient ground for proceeding against the accused.The presumption of the guilt of the accused which is to bedrawn at the initial stage is not in the sense of the lawgoverning the trial of criminal cases in France where theaccused is presumed to be guilty unless the contrary isproved. But it is only for the purpose of deciding primafacie whether the court should proceed with the trial ornot. If the evidence which the prosecutor proposes toadduce to prove the guilt of the accused even if fullyaccepted before it is challenged in cross examination orrebutted by the defence evidence, if any, cannot show thatthe accused committed the offence, then there will be nosufficient ground for proceeding with the trial…. If thescales of pan as to the guilt or innocence of the accusedare something like even at the conclusion of the trial, then,on the theory of benefit of doubt the case is to end in hisacquittal. But if, on the other hand, it is so at the initialstage of making an order under Section 227 or Section228, then in such situation ordinarily and generally the

order which will have to be made will be one under Section228 and not under Section 227.”

“23. At the stage of framing the charge in accordance withthe principles which have been laid down by this Court, whatthe Court is expected to do is, it does not act as mere postoffice. The Court must indeed sift the material before it. Thematerial to be sifted would be the material which is producedand relied upon by the prosecution. The sifting is not to bemeticulous in the sense that the Court dons the mantle of theTrial Judge hearing arguments after the entire evidence hasbeen adduced after full-fledged trial and the question isnot whether the prosecution has made out the case for theconviction of the accused. All that is required is, the Courtmust be satisfied that with the materials available, case ismade out for the accused to stand trial. strong suspicionsuffices. However, strong suspicion must be founded on somematerial. The material must be such as can be translated intoevidence at the stage of trial. The strong suspicion cannot bethe pure subjective satisfaction based on the moral notionsof the Judge that here is case where it is possible thataccused has committed the offence. Strong suspicion must bethe suspicion which is premised on some material whichcommends itself to the court as sufficient to entertain the primafacie 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 Sections227 and 228 CrPC. The principles which emerged therefrom have beentaken note of in para 21 as under: (SCC pp. 376-77)

“21. On consideration of the authorities about the scope ofSections 227 and 228 of the Code, the following principlesemerge:

(i) The Judge while considering the question of framingthe charges under Section 227 CrPC has the undoubtedpower to sift and weigh the evidence for the limited purposeof finding out whether or not prima facie case againstthe accused has been made out. The test to determine primafacie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclosegrave suspicion against the accused which has not beenproperly explained, the court will be fully justified inframing charge and proceeding with the trial.

(iii) The court cannot act merely as post office or amouthpiece of the prosecution but has to consider the broadprobabilities of the case, the total effect of the evidenceand the documents produced before the court, any basicinfirmities, etc. However, at this stage, there cannot be aroving enquiry into the pros and cons of the matter andweigh the evidence as if he was conducting trial.

(iv) If on the basis of the material on record, the courtcould form an opinion that the accused might havecommitted offence, it can frame the charge, though forconviction the conclusion is required to be proved beyondreasonable doubt that the accused has committed theoffence.

(v) At the time of framing of the charges, the probativevalue of the material on record cannot be gone into butbefore framing charge the court must apply its judicialmind on the material placed on record and must be satisfiedthat the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court isrequired to evaluate the material and documents on recordwith view to find out if the facts emerging therefrom takenat their face value disclose the existence of all theingredients constituting the alleged offence. For this limitedpurpose, sift the evidence as it cannot be expected even atthat initial stage to accept all that the prosecution statesas gospel truth even if it is opposed to common sense orthe broad probabilities of the case.

(vii) If two views are possible and one of them gives rise tosuspicion only, as distinguished from grave suspicion, thetrial Judge will be empowered to discharge the accusedand at this stage, he is not to see whether the trial will endin conviction or acquittal.”

24. The exposition of law on the subject has been furtherconsidered by this Court in State v. S. Selvi, (2018) 13 SCC 455 : (2018)3 SCC (Cri) 710, followed in Vikram Johar v. State of UttarPradesh, (2019) 14 SCC 207 : 2019 SCC OnLine SC 609 : (2019) 6Scale 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 party, in so many words has expressed that the trial court is notexpected or supposed to hold mini trial for the purpose of marshallingthe evidence on record. We quote the relevant observations as under:-

“18. Taking note of the exposition of law on the subject laiddown by this Court, it is settled that the Judge whileconsidering the question of framing charge under Section227 CrPC in sessions cases(which is akin to Section239CrPC pertaining to warrant cases) has the undoubtedpower to sift and weigh the evidence for the limited purposeof finding out whether or not prima facie case against theaccused has been made out; where the material placed beforethe Court discloses grave suspicion against the accused whichhas not been properly explained, the Court will be fullyjustified in framing the charge; by and large if two views arepossible and one of them giving rise to suspicion only, asdistinguished from grave suspicion against the accused, 32018(13) SCC 455 4 2019(6) SCALE 794 the trial Judge willbe justified in discharging him. It is thus clear that whileexamining the discharge application filed under Section227 CrPC, it is expected from the trial Judge to exercise itsjudicial mind to determine as to whether case for trial hasbeen made out or not. It is true that in such proceedings, theCourt is not supposed to hold mini trial by marshalling theevidence on record.”

(emphasis supplied)

26. In the case of State of Karnataka v. M.R. Hiremath, reportedin (2019) 7 SCC 515, this Court held as under:-

“25. The High Court ought to have been cognizant of thefact that the trial court was dealing with an application fordischarge under the provisions of Section 239 CrPC. The

parameters which govern the exercise of this jurisdiction havefound expression in several decisions of this Court. It is asettled principle of law that at the stage of considering anapplication for discharge the court must proceed on theassumption that the material which has been brought on therecord by the prosecution is true and evaluate the material inorder to determine whether the facts emerging from thematerial, taken on its face value, disclose the existence of theingredients necessary to constitute the offence. In State of T.N.v. N. Suresh Rajan,(2014) 11 SCC 709, adverting to theearlier decisions on the subject, this Court held: (SCC pp.721-22, para 29)“29. … At this stage, probative value of the materials hasto be gone into and the court is not expected to go deepinto the matter and hold that the materials would not warranta conviction. In our opinion, what needs to be consideredis whether there is ground for presuming that the offencehas been committed and not whether ground forconvicting the accused has been made out. To put itdifferently, if the court thinks that the accused might havecommitted the offence on the basis of the materials onrecord on its probative value, it can frame the charge;though for conviction, the court has to come to theconclusion that the accused has committed the offence.The law does not permit mini trial at this stage.”

27. Thus from the aforesaid, it is evident that the trial court isenjoined with the duty to apply its mind at the time of framing of chargeand should not act as mere post office. The endorsement on the chargesheet presented by the police as it is without applying its mind and withoutrecording brief reasons in support of its opinion is not countenanced bylaw. However, the material which is required to be evaluated by theCourt at the time of framing charge should be the material which isproduced and relied upon by the prosecution. The sifting of such materialis not to be so meticulous as would render the exercise mini trial to findout the guilt or otherwise of the accused. All that is required at this stageis that the Court must be satisfied that the evidence collected by theprosecution is sufficient to presume that the accused has committed anoffence. Even strong suspicion would suffice. Undoubtedly, apart from

the material that is placed before the Court by the prosecution in theshape of final report in terms of Section 173 of CrPC, the Court mayalso rely upon any other evidence or material which is of sterling qualityand 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, thisCourt observed in paragraph 30 that the Legislature in its wisdom hasused the expression “there is ground for presuming that the accusedhas committed an offence”. There is an inbuilt element of presumption.It referred to its judgement rendered in the case of State of Maharashtrav. Som Nath Thapa and others, (1996) 4 SCC 659, and to the meaningof the word “presume”, placing reliance upon Blacks’ Law Dictionary,where it was defined to mean “to believe or accept upon probableevidence”; “to take as true until evidence to the contrary isforthcoming”. In other words, the truth of the matter has to come-out when the prosecution evidence is led, the witnesses are crossexamined by the defence, incriminating material and evidences putto the accused in terms of Section 313 of the Code, and then theaccused is provided an opportunity to lead defence, if any. It isonly upon completion of such steps that the trial concludes with theCourt forming its final opinion and delivering its judgement.....”(emphasis supplied)29. What did the trial court do in the case on hand? We have nodoubt in our mind that the trial court could be said to have conducted amini trial while marshalling the evidence on record. The trial court thoughtfit to discharge the accused persons from the offence of murder andproceeded to frame charge for the offence of culpable homicide underSection 304 of the IPC by only taking into consideration the medicalevidence on record. The trial court as well as the High Court got persuadedby the fact that the cause of death of the deceased as assigned in thepost mortem report being the “cardio respiratory failure”, the same cannotbe said to be having any nexus with the alleged assault that was laid onthe deceased. Such approach of the trial court is not correct and cannotbe countenanced in law. The post mortem report, by itself, does notconstitute substantive evidence. Whether the “cardio respiratory failure”had any nexus with the incident in question would have to be determinedon the basis of the oral evidence of the eye witnesses as well as themedical officer concerned i.e. the expert witness who may be examined

Aby the Prosecution as one of its witnesses. To put it in other words,whether the cause of death has any nexus with the alleged assault onthe deceased by the accused persons could have been determined onlyafter the recoding of oral evidence of the eye witnesses and the expertwitness along with the other substantive evidence on record. The postmortem repot of the doctor is his previous statement based on hisBexamination of the dead body. It is not substantive evidence. The doctor’sstatement in court is alone the substantive evidence. The post mortemrepot can be used only to corroborate his statement under Section 157,or to refresh his memory under Section 159, or to contradict his statementin the witness-box under Section 145 of the Evidence Act, 1872. medicalCwitness called in as an expert to assist the Court is not witness of factand the evidence given by the medical officer is really of an advisorycharacter given on the basis of the symptoms found on examination.The expert witness is expected to put before the Court all materialsinclusive of the data which induced him to come to the conclusion andenlighten the Court on the technical aspect of the case by explaining theDterms of science so that the Court although, not an expert may form itsown judgment on those materials after giving due regard to the expert’sopinion because once the expert’s opinion is accepted, it is not the opinionof the medical officer but of the Court.

30. The prosecution should have been given opportunity to proveEall the relevant facts including the post mortem report through the medicalofficer concerned by leading oral evidence and thereby seek the opinionof the expert. It was too early on the part of the trial court as well as theHigh Court to arrive at the conclusion that since no serious injuries werenoted in the post mortem report, the death of the deceased on accountFof “cardio respiratory failure” cannot be said to be having any nexuswith the incident in question.

31. Whether the case falls under Section 302 or 304 Part II, IPCcould have been decided by the trial court only after the evaluation ofthe entire oral evidence that may be led by the prosecution as well as byGthe defence, if any, comes on record. Ultimately, upon appreciation ofthe entire evidence on record at the end of the trial, the trial court maytake one view or the other i.e. whether it is case of murder or case ofculpable homicide. But at the stage of framing of the charge, the trialcourt could not have reached to such conclusion merely relying uponthe port mortem report on record. The High Court also overlooked suchH

fundamental infirmity in the order passed by the trial court and proceededto affirm the same.

32. We may now proceed to consider the issue on hand from adifferent angle. It is settled position of law that in criminal trial, theprosecution can lead evidence only in accordance with the charge framedby the trial court. Where higher charge is not framed for which thereis evidence, the accused is entitled to assume that he is called upon todefend himself only with regard to the lesser offence for which he hasbeen charged. It is not necessary then for him to meet evidence relatingto the offences with which he has not been charged. He is merely toanswer the charge as framed. The Code does not require him to meetall evidence led by prosecution. He has only to rebut evidence bearingon the charge. The prosecution case is necessarily limited by the charge.It forms the foundation of the trial which starts with it and the accusedcan justifiably concentrate on meeting the subject-matter of the chargeagainst him. He need not cross-examine witnesses with regard to offenceshe is not charged with nor need he give any evidence in defence inrespect of such charges.

33. Once the trial court decides to discharge an accused personfrom the offence punishable under Section 302 of the IPC and proceedsto frame the lesser charge for the offence punishable under Section 304Part II of the IPC, the prosecution thereafter would not be in positionto lead any evidence beyond the charge as framed. To put it otherwise,the prosecution will be thereafter compelled to proceed as if it has nowto establish only the case of culpable homicide and not murder. On theother hand, even if the trial court proceeds to frame charge under Section302 IPC in accordance with the case put up by the prosecution still itwould be open for the accused to persuade the Court at the end of thetrial that the case falls only within the ambit of culpable homicidepunishable under Section 304 of IPC. In such circumstances, in the factsof the present case, it would be more prudent to permit the prosecutionto lead appropriate evidence whatever it is worth in accordance with itsoriginal case as put up in the chargesheet. Such approach of the trialcourt at times may prove to be more rationale and prudent.

34. In view of the aforesaid discussion, the order of the HighCourt 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. Theorders passed by the High Court and the trial court are hereby set aside.

AThe trial court shall now proceed to pass fresh order framing charge inaccordance with law keeping in mind the observations made by thisCourt.

36. We clarify that we have otherwise not expressed any opinionon the merits of the case. The observations in this judgment are absolutelyBprima facie and relevant only for the purpose of deciding the legalityand validity of the order discharging the accused persons of the offenceof murder punishable under Section 302 of the IPC. We once againclarify that ultimately it is for the trial court to take an appropriate decisionas regards the nature of the offence at the end of the trial.

Devika Gujral

Appeal allowed.

(Assisted by : Rahul Rathi, LCRA)