The trial Court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record.
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 - Supreme Court.
The Hon’ble Supreme
Court of India allowed the appeal of the Appellant, who is husband of the
deceased who was aggrieved by order of the trial Court as well as the High
Court and directed the trial Court to
pass fresh order framing charge of the offence committed in accordance with
law.
The Bench of Justices
A.M Khanwilkar and Abhay S. Oka of the Supreme Court of India observed that the
trial Court is not expected or supposed to hold a mini trial for the purpose of
marshalling the evidence on record.
The High Court of Jammu and Kashmir at Srinagar
rejected the revision application of the Appellant by affirming the order
passed by the Additional Sessions Judge who discharged the original accused
person from the offence of murder punishable under Section 302 of the Indian
Penal Code and proceeded to frame charge against the accused persons for the
offence of culpable homicide under Section 304 of IPC.
In the present appeal
the Supreme Court has set aside the order of the high Court as well as the
trial Court and remanded the case back
to the trial Court to take an appropriate decision at the end of the trial, as
regards to the nature of the offence, whether it is a case of murder or case of
culpable homicide.
The fact of the case is
that the respondent along with six other accused persons formed an unlawful assembly with
a pre-planned concert assaulted the appellant and his family members after
trespassing into the residential property and started damaging the tin fence.
The wife of the appellant and his daughter in law were also beaten and dragged
when they came to the rescue of the appellant. As a result the wife of the appellant was injured
and clothes of his wife were got torn which outraged her modesty.
After the incident the
appellant lodged an FIR and the same was registered under Sections 147, 354,
323 and 451 of IPC. The injured wife was shifted to a hospital where she
succumbed to injuries. In such circumstances Section 302 was added in the FIR.
Post mortem was conducted and the reason for death was reported to be ‘cardio
respiratory failure’.
After hearing the
prosecution and defence on the question of charge, the trial Court discharged
the accused/respondents of the offence of murder punishable under Section 302
IPC and proceeded to frame charge for the offence of culpable homicide
punishable under Section 304 IPC.
It is pertinent to
state here that the trial Court as well as the High Court got persuaded by the
fact assigned in the post mortem report that appellant’s wife died by cardio
respiratory failure, so cannot be said to have nexus with the alleged assault.
Therefore being
aggrieved by such decision of trial Court, the appellant approached High Court
by way of revision application and High Court too affirmed the decision of the
trial Court. Hence being aggrieved by both the orders, the appellant approached
the Supreme Court.
Now in the Supreme
Court the only question came up for consideration was whether the High Court
was justified in affirming the order passed by the trial Court discharging the
accused/respondents?
The Hon’ble Supreme
Court stated that what the trial Court and High Court passed was erroneous
without giving chance to Public Prosecutor to give a fair idea to the Court as
regards the case of the prosecutor under Section 226 before proceeding to frame
charge against the accused.
Regarding the above
point, the Court referred to several previous decisions namely Union
of India vs Prafulla Kumar Samal and another (1979) 3 SCC 4, Sajjan Kumar vs. CBI (2010) and most recent
case Dipakbhai Jagdishchndra Patel vs. State of Gujarat (2019) 16 SCC 547
which laid down the principles that how a judge is required to make enquiry
while considering the question of framing charges.
1. The Judge while
considering the question of framing the charges has the undoubted power to sift
and weigh the evidence for limited purpose of finding out whether or not a
prima facie case against the accused has been made out.
2. The Court will be
fully justified in framing a charge and proceed with the trial if the materials
before the Court discloses grave suspicion against the accused and which has
not been properly explained.
3. If two views are
equally possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the accused.
4. 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 evidence and the documents
produced before the Court, any infirmities appearing in the case.
The Court,
while dealing with the present case, also referred to most recent case Asim
Shariff vs. National Investigation Agency (2019) 7 SCC 148, wherein it was held that while examining the discharge application
filed under Section 227 CrPC, it is expected from the trial Judge to exercise
its judicial mind to determine as to whether a case for trial has been made out
or not. The trial Court is not expected
or supposed to hold a mini trial for the purpose of marshalling the evidence on
record.
The Court relied
the case of ( Bhawna Bai v. Ghanshyam,
(2020)
2 SCC 217) which held 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 chargesheet presented by the police as it
is without applying its mind and without recording brief reasons in support of
its opinion it 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 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
According to the Hon’ble
Supreme Court, the trial Court have conducted a mini trial while marshalling
the evidence on record by the fact that trial Court discharged the accused from
the offence of murder and proceeded to frame charge for the offence of culpable
homicide under Section 304 of the IPC by only taking into consideration the
medical evidence on record. Such approach of the trial Court is not correct and
cannot be countenanced in law.
“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 report 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 report 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 examination. The expert witness is
expected to put before the Court all 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."
The prosecution
should have been given 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.
“At the stage of
framing of the charge, the trial Court could not have reached to conclusion
merely relying upon the post mortem report on record. The High Court also
overlooked such fundamental infirmity in the order passed by the trial Court proceeded to affirm the same” – Apex Court
viewed.
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The Court also viewed
that the trial Court fell in error by not giving the prosecution an opportunity
to prove all the relevant facts including the post mortem report through the
medical officer concerned by leading
oral evidence and seeking the opinion of the expert.
The Trial Court has
committed grave error in discharging the accused person from section 302 on the
basis of the post mortem report stating that there were no serious injuries and
that the death of the deceased was caused by cardio respiratory failure and
therefore cannot be said to be having any nexus with the incident.
Therefore the Hon’ble
Court set aside the order of the High Court as well as the trial Court and directed the trial Court to pass fresh order
for framing of charge and take appropriate decision in regard to nature of
offence.
Case:
Ghulam Hassan Beigh Versus Mohammad Maqbool Magrey & Ors..
Date of Judgment: 26 July 2022
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