TMI Blog2022 (7) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 sessions trial; Section 239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2) with respect to trial of summons case - 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. his Court in the case of Union of India v. Prafulla Kumar Samal and another [ 1978 (11) TMI 151 - SUPREME COURT] , 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 the point, this Court held that in exercising his jurisdiction under section 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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. Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation 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 charge, the trial court could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly 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 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 herein) 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 daughter in law 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 daughter in law 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. Medical opinion on file reflect that there was no injury on any other part of the body of the deceased except over upper and lower lips with abrasions on face. Whether such act has caused the death of the deceased has not been mentioned anywhere in the record. Injury as reflected in the injury memo also does not reflect any such consequence which could lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 private respondents for commission of offence under section 302 IPC or not and the conclusion of the trial court is rather the only conclusion 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 person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 statement. POSITION OF LAW 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 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 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 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 sessions trial; Section 239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2) with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 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 consider in any detail and weigh in a sensitive 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 before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri) 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 case against the accused has been made out; where the material placed before the Court discloses grave suspicion against the accused which 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 only, as distinguis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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