2022 Supreme(SC) 625

SUPREME COURT OF INDIA
A.M. KHANWILKAR, ABHAY S. OKA, J.B. PARDIWALA, JJ.
Ghulam Hassan Beigh – Appellant
Versus
Mohammad Maqbool Magrey & Ors. – Respondents
Criminal Appeal No. 1041 of 2022 (Arising Out of S.L.P. (Criminal) No. 4599 Of 2021)
Decided On : 26-07-2022

IMPORTANT POINTS
(1) Framing of charge – In a criminal trial, prosecution can lead evidence only in accordance with charge framed by trial court – Where a higher charge is not framed for which there is evidence, accused is entitled to assume that he is called upon to defend himself only with regard to lesser offence for which he has been charged--Prosecution case is necessarily limited by charge.
(2) Post mortem report, by itself, does not constitute substantive evidence.
(3) Framing of charge – Even a strong suspicion would suffice.

Headnote:

(A) Criminal Procedure Code, 1973 – Sections 227 and 228 – Discharge of accused – Purpose of framing a charge is to intimate to accused clear, unambiguous and precise nature of accusation that accused is called upon to meet in course of a trial – Prima facie case must be made out before a charge can be framed – Trial court is not expected or supposed to hold a mini trial for the purpose of marshalling evidence on record – Trial court is enjoined with duty to apply its mind at the time of framing of charge and should not act as a mere post office – Endorsement on charge-sheet presented by Police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law – However, material which is required to be evaluated by Court at the time of framing charge should be material which is produced and relied upon by prosecution – Sifting of such material is not to be so meticulous as would render exercise a mini trial to find out guilt or otherwise of accused – All that is required at this stage is that Court must be satisfied that evidence collected by prosecution is sufficient to presume that accused has committed an offence – Even a strong suspicion would suffice – Apart from material that is placed before Court by prosecution in shape of final report in terms of Section 173 of Cr.P.C., Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on charge laid before it by prosecution. (Paras 18, 19, 25 and 27)

(B) Criminal Procedure Code, 1973 – Section 291 – Indian Evidence Act, 1872 – Section 145 – Deposition of medical expert – Post mortem report of doctor is his previous statement based on his examination of dead body – It is not substantive evidence – Doctor’s statement in court is alone substantive evidence – 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 witness-box under Section 145 of Evidence Act, 1872 – A medical witness called in as an expert to assist Court is not a witness of fact – Evidence given by medical officer is really of an advisory character given on the basis of symptoms found on examination – Expert witness is expected to put before Court all materials inclusive of data which induced him to come to conclusion and enlighten Court on technical aspect of case by explaining terms of science so that Court although, not an expert may form its own judgment on those materials after giving due regard to expert’s opinion because once expert’s opinion is accepted, it is not opinion of medical officer but of Court. (Para 29)

(C) Indian Penal Code, 1860 – Section 302 – Criminal Procedure Code, 1973 – Section 227 – Murder – Discharge of accused – There is an inbuilt element of presumption – Trial court could be said to have conducted a mini trial while marshalling evidence on record – Trial court thought fit to discharge accused persons from offence of murder and proceeded to frame charge for offence of culpable homicide under Section 304 of IPC by only taking into consideration medical evidence on record – Such approach of trial court is not correct and cannot be countenanced in law – Post mortem report, by itself, does not constitute substantive evidence – Whether cause of death has any nexus with alleged assault on deceased by accused persons could have been determined only after recoding of oral evidence of eye witnesses and expert witness along with other substantive evidence on record – Prosecution should have been given opportunity to prove all relevant facts including post mortem report through medical officer concerned by leading oral evidence and thereby seek opinion of expert – Whether case falls under Section 302 or 304 Part II, IPC could have been decided by trial court only after evaluation of entire oral evidence that may be led by prosecution as well as by defence, if any, comes on record – At the stage of framing of charge, trial court could not have reached to such a conclusion merely relying upon port mortem report on record – High Court also overlooked such fundamental infirmity in order passed by trial court and proceeded to affirm the same – Orders passed by High Court and trial court set aside – Trial court shall now proceed to pass a fresh order framing charge in accordance with law. (Paras 28, 29, 30, 31, 34 and 35)

(D) Criminal Procedure Code, 1973 – Section 228 – Framing of charge – In a criminal trial, prosecution can lead evidence only in accordance with charge framed by trial court – Where a higher charge is not framed for which there is evidence, accused is entitled to assume that he is called upon to defend himself only with regard to lesser offence for which he has been charged – It is not necessary then for him to meet evidence relating to offences with which he has not been charged. He is merely to answer charge as framed – Code does not require him to meet all evidence led by prosecution – He has only to rebut evidence bearing on charge – Prosecution case is necessarily limited by charge – It forms foundation of trial which starts with it and accused can justifiably concentrate on meeting subject-matter of charge against him – He need not cross-examine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges. (Para 32)

Facts of the case:

Present appeal at instance of the original complainant (husband of deceased), is directed against the order passed by the High Court of Jammu and Kashmir at Srinagar dated 26.11.2020 in the CM (M) No. 99 of 2020 by which the High Court rejected the revision application filed by the appellant herein thereby affirming the order passed by Trial Court discharging the original accused persons (respondents Nos. 1 to 7 herein) from the offence of murder punishable under Section 302 of the Indian Penal Code. Upon affirmation the trial court proceeded to frame charge against the accused persons for the offence of culpable homicide punishable under Section 304 of the IPC.

Only question that falls for consideration is whether the High Court was justified in affirming order passed by the trial court discharging accused persons of the offence of murder?

Findings of Court:

Observations in this judgment are absolutely prima facie and relevant only for the purpose of deciding legality and validity of the order discharging the accused persons of the offence of murder punishable under Section 302 of IPC. Ultimately it is for the trial court to take an appropriate decision as regards the nature of the offence at the end of the trial.

Result : Appeal allowed.