1. Heard learned advocates for the respective parties. Perused the record.

2. The Petitioner herein is original complainant whereas respondent Nos.2 and 3 are original accused who are facing charges under Sections 302, 201, 114 of the Indian Penal Code, 1860 (for short ‘IPC') read with Section 135 of Gujarat Police Act.

3. The prosecution case is to the effect that on 6.1.2016, the dead body of one Shambhuben w/o Vithalbhai B. Kuvadiya, mother of the petitioner complainant was found from the well and prosecution has confirmed in the charge sheet that since deceased has not agreed to pay Rs.3,000/- in advance to the respondent No.3, who was cultivating the land of the deceased in partnership, respondent No.3 has killed the deceased and thrown her dead body in the well.

4. However, after investigation, the investigating agency has filed charge sheet against respondent Nos.2 and 3 being son and father respectively and, therefore, while framing the charge, the Sessions Court has by its order dated 3.8.2016 below Exh.1 i.e. the charge sheet, discharged the respondent No.2 herein from the offence under Section 302 of IPC and Section 135 of the Gujarat Police Act though charges under Section 302 is framed against respondent No.3 as accused No.1 while framing the charge under Sections 201 and 114 of IPC against both of them. Therefore, the complainant has challenged such order in this revision petition.

5. If we peruse the impugned order, it seems that the advocate of respondent No.2 being accused No.2 before the trial Court has submitted that there is no evidence against him with respect to the offence under Section 302 of IPC even if all the documents and statement of the prosecution are believed as it is and, therefore, it is submitted that when there is no evidence or suspicion against accused No.2 for the offence under Section 302, the charge under such Section should not be framed. The trial Court has thereupon recorded that since there is no eye witness to the alleged offence, the Court has to consider the sufficiency of material before framing the charge and that Court is not required to accept the version of the prosecution so as to ask the accused to face the trial even in absence of evidence against him. The trial Court has after quoting the provision of Section 227 of the Code of Criminal Procedure, 1973 (For Short ‘Code') considered that the judge shall discharge the accused since there is no sufficient ground for proceeding against him. Thereby, confirming that there appears to be no evidence to indicate involvement of the accused in the offence of murder and since it is not forthcoming from the papers of the charge sheet that accused No.2 has abetted the offence or conspired in the commission of crime and when statements of witnesses are also confirming the involvement of accused No.1 alone and thereby there is no iota of evidence against accused No.2 to proceed against him under Section 302 of IPC, the trial Court has discharged him from such charges.

6. The trial Court has gone further in discussing the prima facie evidence for confirming that allegation regarding vital plea is only against the accused No.1 and not against accused No.2 and, therefore, confirmed that no role is attributable to accused No.2 for the charges of murder. The trial Court has also discarded the submission by the prosecution that when accused No.2 was not released on bail by the Sessions Court at the relevant time, they may not be discharged but deemed it fit to frame charges against accused No.2 under Sections 201 and 114 of IPC.

7. When complainant has, by filing the application at Exh.17 submitted to stay the impugned order so as to enable the complainant to challenge it before the High Court, the trial Judge has refused to stay the impugned order confirming that trial should continue against accused No.1 under Section 302 and accused No.2 be discharged under Section 302. It is to be noted here that till such date, the accused No.2 was