The determination of intention and evaluation of evidence for charge/discharge should be made during the trial, and the court should proceed on the assumption that the material brought by the prosecution is true.

JUDGMENT :

1. The present petition has been filed by the petitioner for quashing of order dated 23.09.2011 passed by the learned Sessions Judge, Jammu (hereinafter to be referred as the trial court) in a criminal challan, titled, State vs. Vijay Kumar pursuant to the FIR No. 32/2009 registered on the statement made by the complainant, Jeet Kumar S/o. Subash Chander, by virtue of which the petitioner has been charged under section 302 R.P.C.

2. The allegations against the petitioner are that on 14.09.2009 in the morning at around 9.30 A.M, the complainant was standing near the shop of “General Merchants” and suddenly he heard the noise from the house of Surinder Kumar and he went to the house of Surinder Kumar, where Surinder Kumar and Vijay Kumar were fighting with each other and during the scuffle, Vijay Kumar, petitioner herein by way of a knife (Chhuri) hit near the right ear of the Surinder Kumar, as a result of which, the blood started oozing out and Surinder Kumar fell down. Initially FIR was registered under sec. 307 R.P.C. but as the deceased succumbed to the injuries, so later on offence under section 302 R.P.C. was added.

3. The petitioner has sought quashing of order dated 23.09.2011 (supra) primarily on the ground that it was sudden fight between the Vijay Kumar and the Surinder Kumar and the petitioner due to sudden and grave provocation hit the deceased with the knife near the right ear as a result of which he died and further that the petitioner had no intention to murder the deceased.

4. Mr. D. S. Saini, learned counsel for the petitioner has reiterated the grounds those have been taken in the petition. He has also relied upon the judgments of the Supreme Court in 2011 (2) SCC(Cri) 370, AIR 2011, SC 564, AIR 1989 SC 1094 and 2011 CrLJ 2475.

5. Heard and perused the record.

6. As per the mandate of sections 267 and 268 of the Code of Criminal Procedure (now sections 227 and 228 of the Cr.P.C.), while considering the issue of framing of charge/discharge of the accused, the learned trial court has to form an opinion on the basis of material placed on record by the Investigating Officer as to whether there is sufficient ground for presuming that the accused has committed an offence or not and the material on record would constitute the statement of witnesses, injury report/post-mortem report along with other material relied upon by the prosecution. At this stage, learned trial court cannot indulge in critical evolution of the evidence that can be done at the time of final appreciation of evidence after the conclusion of the trial.

7. The charge can be framed against the accused even when there is a strong suspicion about the commission of offence by the accused and at the same time, the learned trial court is not expected to merely act as a post office and frame the charge just because challan for commission of a particular offence has been filed against the accused. The learned trial court can sift the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfils the ingredients of the offences or not. But at the same time, the learned trial court cannot conduct a mini trial to find out as to whether the accused/respondents can be convicted for a particular offence or not. If the ingredients are lacking then, the court has no option but to discharge.

8. The Apex Court in Sajjan Kumar v. CBI reported in (2010) 9 SCC 368 after considering of its various pronouncements has culled out the following principles of law:-

“Exercise of jurisdiction under Sections 227 and 228 Cr.P.C.

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 Cr.P.C. 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. The test to