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TMI Blog2022 (7) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused persons for the offence of culpable homicide punishable under Section 304 of the IPC. FACTUAL MATRIX 3. It appears from the First Information Report (FIR) bearing 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 persons formed an unlawful assembly and laid an assault on the appellant and his family members after trespassing into the residential property of the appellant herein. It is the case of the prosecution that all the accused persons trespassed into the residential property of the appellant and started damaging the tin fence. When the appellant herein tried to restrain 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 daughterinlaw 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 herein) and the daughterinlaw and both were beaten up causing injuries. It is further alleged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by the trial court as well as by the High Court for the purpose of discharging the accused persons of the offence of murder. 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 the prosecution witnesses and statement of the deceased before her death who in their statements have stated that the accused persons entered the compound of the complainant and gave a blow with some object to the complainant, with the result complainant got injured and the accused persons outraged the modesty of the wife and daughterinlaw of the complainant. While going through the statement under section 161 Cr.P.C. of the deceased, which was recorded instantly after the alleged commission of offence, deceased has stated that the accused persons entered the compound and attacked his husband who was given a blow by some object with the result he got injured while as she and her daughterinlaw tried to intervene upon which the accused persons caught hold of them by hair and started beating with hands with the result she got injured and her modesty was outraged. Med ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cardiac arrest with alleged history of scuffle with 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 daughterinlaw tried to intervene, they also got hold of them and started beating her as a result of which she got injured and outraged her modesty. The cause of death in the post mortem report is cardiac arrest and not that the deceased died as a result of injury suffered by her. It would be relevant to note that 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 placed 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 critically evaluated the evidence but the trial court has simply examined the material facts so as to find out as to whether there is sufficient material to charge the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to this, 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. Ashiya Begum and Daughterinlaw 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 both. The said two ladies were dragged by the accused persons due to which their modesty was outraged and the Feran worn by the wife of the complainant was also tore off by the accused 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 Begum who was beaten and injured by the accused persons complained of severe complications and was rushed to hospital for medical treatment and on way she succumbed to death. In fact, the deceased died due to the assault and beating of accused persons and injuries by them. Today, Police Dangiwacha recorded my statement and I attested my signature upon it. Hence, my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 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 such 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 subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claimsto 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: decision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 22. There are several other judgments of this Court delineating the scope of Court's powers in respect of the framing of charges 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 judgment of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing 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 truth, veracity and effect of the evidence which the prosecutor 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 consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a fullfledged trial and the question is not whether the prosecution has made out the case for 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 suspicion suffices. However, a strong suspicion must be founded on some 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 possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 24. The exposition of law on the subject has been further 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 laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases(which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage." 27. Thus from the aforesaid, it is evident that the trial court 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 collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses as well as the medical officer concerned i.e. the expert witness who may be examined by 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 on the deceased by the accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The 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 witnessbox 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 examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subjectmatter of the charge against him. He need not crossexamine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges. 33. Once the trial court decides to discharge an accused person 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 prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC. In such circumstances, in the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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