The main legal point established in the judgment is the need for the trial court to form an opinion based on the material placed on record by the Investigating Officer and not conduct a mini trial or critical evaluation of evidence at the stage of framing charges.

JUDGMENT :

1. The present revision petition has been preferred against the order dated 27.07.2010 (hereinafter to be referred as the order impugned) passed by the Court of Learned 1st Additional Sessions Judge, Baramulla (hereinafter to be referred as the trial court) by virtue of which the respondents have been discharged for commission of offences under sections 302, 307 RPC and section 3 of the Public Properties (Prevention of Damages) Act and have been ordered to be charged for commission of offences under sections 304-A, 323, 336, 341, 427, 148 and 149 RPC.

2. The order impugned has been assailed primarily on the ground that the learned trial court has exceeded its jurisdiction and has virtually appreciated the statements of the witnesses recorded under sections 161 and 164-A Cr.P.C. while passing the order impugned as if the trial court was passing final judgment of conviction or acquittal. It is also stated that the trial court has discharged the accused on the ground that there are no chances of conviction of the accused under the provisions of Sections 302, 307 and Section 3 of Public Properties (Prevention of Damages) Act. It is also further stated that the learned trial court has committed a material irregularity by returning a finding that there is contradiction between the opinions submitted by the two medical officers.

3. Briefly stated, the prosecution case is that on 22.02.2010, FIR bearing No. 47 of 2010 was registered in Police Station, Baramulla for commission of offences under sections 148, 149, 302, 307, 336 and 341 RPC and Section 3 of Public Properties (Prevention of Damages) Act on the basis of a reliable information that at Stadium Colony Baramulla, a group of unruly stone pelters boarded the Sumo vehicle of unknown registration number, are raising objectionable slogans and are forcibly de-boarding the passengers from the vehicle coming from Rafiabad in order to enforce a hartal call and beating the passengers and have also caused damage to the vehicles. It was also reported that the said persons have also dragged a lady, namely, Kulsuma W/o Nissar Ahmad Magray with a intention to kill her and infant in her lap, namely, Irfan Ahmad Magray was killed while her another son, namely, Ubaid age 4 years was injured. The riders were having 'dandas and stones' and were doing these activities in order to implement the call of hartal. After the registration of FIR, investigation was started and it was found that the incident had actually occurred near Aqua Impex Foods Baramulla instead of Stadium Colony, Baramulla and after the inspection of place of occurrence, the site plan was prepared by the Investigating Officer and dandas, stones, glass pieces and shoes of different sizes from spot were also recovered and seizure memos were prepared. The statements of the witnesses were recorded. The dead body of the deceased was taken into possession from the Dangi Wacha Hospital and injury memo in respect of the injured child was also prepared but due to his being of tender age the statement was not recorded. PW 29 i.e. Medical Officer, Dangi Wacha Hospital reported the cause of death of the infant as “crushed to death by a mob followed by his bleeding from nose and mouth”. However, the opinion for the injured child was reserved. As the parents of the deceased did not agree for post-mortem, so the body of the deceased (infant) was handed over to them for performing of his last rites. The Medical Superintendent of District Hospital Baramulla was also communicated for report in respect of the treatment and the cause of death of the infant and on receipt of his report, it was found that the cause of death as opined by the Superintendent, District Medical Hospital, Baramulla could be due to “Septicemia”.

4. In order to clear the confusion with regard to the contradictory medical opinions, District Magistrate, Baramulla was requested for the exhumation of the body of the infant but no order was received. The search of the vehicle