TaxTMI 
TaxTMI 
2022 (7) TMI 1447
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....or short, 'IPC'). Upon affirmation the trial court proceeded to frame charge against 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 dau....
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....ing the accused persons 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. 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 ....
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....In the post mortem report, the concerned Medical Officer has given opinion regarding death of Aisha Begum that the deceased died due 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 t....
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.... 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 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 t....
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....hy; (1) If, after such consideration and hearing as aforesaid,the Judge is of opinion that there is ground 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, 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 ....
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....ffice or a mouth­piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This 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....
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....e 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 it. The material to be sifted would 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 materi....
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....ted 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 sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished 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 ....
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....is whether there is a ground for presuming that the offence 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 charge; though 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 ....
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....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, does 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 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 Ac....
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.... for which he has 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 merely 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 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, ....