JUDGMENT Hon’ble Sunil Hali, J.—By means of this application, applicants have prayed for quashing of the proceedings arising out of charge-sheet (No. 119 A of 2010) dated 6.6.2010 submitted in Case Crime No. 8 of 2010, under Sections 366 and 376 IPC, P.S. Bilsi, District Budaun. Applicants are facing trial in S.T. No. 308 of 2012, under Sections 363, 366 and 376 IPC, arising out of case Crime No. 8 of 2010, P.S. Bilsi, District Budaun. 2. Allegations against the applicants are that on 3.1.2010 around 8.30 p.m. the prosecutrix was contacted by them on mobile. It is further averred that the applicants were harassing her which fact was revealed by her to her brother Mr Bhoorey. On the basis of the telephonic call made from the mobile the applicants are said to have informed the prosecutrix that his brother has suffered accident. On hearing this, she rushed towards home and while running towards home she was abducted by the applicants and was given some sedative due to which she became unconscious and on becoming conscious she found herself in a room. Both the applicants kept her confined and committed rape on her. It is also averred that applicant P.C. Sharma who resides in Budaun also committed rape on her. She was let off by the applicants near a forest in Budaun. Thereafter she contacted her brother on phone. This, in nut-shell, is the statement of the prosecutrix. 3. It is also important to note that the prosecutrix was examined by the doctor. Statement of girl was also recorded under Section 164 Cr.P.C. In her statement recorded under Section 164 Cr.P.C. she has admitted that rape was committed against her will. On specific question being put to her as to whether she understands the meaning of rape she replied in affirmative. Doctor’s statement is also on the file. Doctor has in his statement stated that there were no spermatozoa found. No definite opinion can be given about rape. 4. Applicants have come up before this Court for quashing of the proceedings on the ground that no offence is made out against the applicants. In order to substantiate his plea learned counsel for the applicants has stated that present case has been filed on account of previous enmity with the complainant party who happens to be closely associated with one Tejender Sagar, Neeraj Sharma @ Meenu. In order to substantiate his plea learned counsel for the applicants has stated that present case has been filed on account of previous enmity with the complainant party who happens to be closely associated with one Tejender Sagar, Neeraj Sharma @ Meenu. Case set out by the complainant is that an FIR vide Case Crime No 378 of 2008 (complaint Case No. .. 755 of 2010), under Sections 363, 376(G) and 506 IPC was registered against one Neeraj Sharma @ Meenu. Victim was sister of the present applicants. In the said case, process was issued by the Magistrate on 18.8.2009. Neeraj Sharma @ Meenu, Tejendra Sagar, and one member of legislative assembly namely Yogendra Sagar were summoned. Their bail application was considered by this Court in Criminal Misc Application No. 30150 of 2010. This Court had observed that the applicant in the said bail application has filed various cases against the present applicants only to harass them in order to enter into some compromise. It is also noted by this Court that the power has been exercised by the present applicant to falsely implicate the innocent family of the proseutrix, who was sister of the present applicants. Approximately 20 cases have been filed by the accused persons against the present applicants. 5. It is further averred by the learned counsel for the applicants that the statement of the prosecutrix does not inspire any confidence so as to provide a ground for proceedings against the applicants. It is also stated that the prosecution story has not been supported by any medical evidence. In nut-shell his grievance is that the present prosecution has been launched only to wreck vengeance on the applicants who had earlier filed an FIR against Neeraj Sharma @ Meenu said to be closely associated with the complainant of this case. 6. On the other hand, case of the respondents is that the present FIR has been filed by Mr Bhoorey who is brother of the prosecutrix,. Admittedly, there is nothing on the record to suggest that Bhoorey is somehow associated with Neeraj Sharma @ Meenu, Tejendra Sagar and Yogendra Sagar. Thus, the contention of the learned counsel for the applicants that the present case has been filed to wreck vengeance is misplaced. Statement of the prosecutrix clearly points out to the fact that she was raped by the applicants. Thus, the contention of the learned counsel for the applicants that the present case has been filed to wreck vengeance is misplaced. Statement of the prosecutrix clearly points out to the fact that she was raped by the applicants. It is further averred that even if the medical evidence does not support the prosecution case that by itself would not be a ground to discard the statement. 7. Lastly, it is stated that this is not the stage to examine as to whether the statement of the prosecutrix is reliable or not as the trial in the case has not yet commenced. 8. Heard learned counsel for the parties and perused the material on record. Under Chapter XVIII of the Criminal Procedure Code, Trial Court has to frame charge on the basis of principle laid down under Sections 226 and 227 Cr.P.C. To facilitate, relevant provisions of the code are quoted herein below: 226. Opening case for prosecution. When the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 227. Discharge. If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge. 227. Discharge. If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1[ or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, 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 claims to be tried. The import of Section 227 Cr.P.C. is that the Court may upon consideration of the record of the case and the documents submitted before the Court and after hearing the submission of accused and the prosecution considers that there is no sufficient ground to proceed against the accused he shall discharge the accused and record his reasons for so doing. Section 228 Cr.P.C. provides that if on such consideration and hearing as aforesaid the Court is of opinion that there is ground for presuming that the accused has committed an offence, it shall frame charge. It is on considers of the material and report if the Court presumes that the accused has committed offence he may frame charge. Expression presume mentioned herein above contemplates that if there is prima facie view that there is strong suspicion that the accused has committed offence the Court can frame charge. It is on considers of the material and report if the Court presumes that the accused has committed offence he may frame charge. Expression presume mentioned herein above contemplates that if there is prima facie view that there is strong suspicion that the accused has committed offence the Court can frame charge. The word presume has not to be misunderstood that there must be sufficient material and evidence which would not lead to the conviction of the accused. It’s prima facie view based upon the material appended with the report under Section 173 Cr.P.C. The powers of the Court at the stage of the framing charge is circumscribed by the mandate of Section 228 Cr.P.C. What is required to be shown by the applicants at the stage of seeking discharge is to see as to whether the evidence which has come on record does disclose the commission of the cognizable offence or not. The Court at this stage cannot enter into arena of critically examining the evidence to find out the inconsistency in the statement of the witnesses. Any endeavour made by the Court to enter into arena of analysing the evidence critically would be against the scheme of the Code. It is also not proper at this stage for the Court to examine the issue of animosity raised by the accused regarding filing of the FIR. 9. In State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 , Hon’ble Apex Court interpreted Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. Para 4 of the said judgment is pressed into service which reads as under: “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— ... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the 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 matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 10. Discharge of accused under Section 227 Cr.P.C. was extensively considered by Hon’ble Apex Court in P. Vijayan v. State of Kerala and another, (2010) 2 SCC 398 ; wherein it was held as under: “10. ....... If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. ....... If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 11. While considering the very same provisions i.e., framing of charges and discharge of accused, again in Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368 , Hon’ble Apex Court held thus: “19. It is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. 20. A Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 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 CrPC 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 determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 12. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 12. From the above decisions, it is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. A judicial magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post office and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Court finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Court should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. This provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. While analyzing the role of the accused on the basis of the charge-sheet and the materials supplied alongwith it, the above principles have to be kept in mind. 13. Applying this principle in the present case, what is being contended by learned counsel for the applicants is that the statement of the prosecutrix cannot be relied upon in the face of the medical evidence. The language of the FIR is at the behest of Neeraj Sharma @ Meenu, Tejendra Sagar and one Yogendra Sagar against whom one FIR was lodged by the present applicants for having committed rape of their sister. 14. The language of the FIR is at the behest of Neeraj Sharma @ Meenu, Tejendra Sagar and one Yogendra Sagar against whom one FIR was lodged by the present applicants for having committed rape of their sister. 14. In so far as the first question is concerned, the prosecutrix has very categorically stated that she was raped by the applicants even though statement is not being supported by the medical evidence. Prima facie prosecutrix has deposed against the applicants not only under Section 161 Cr.P.C. but also under Section 164 Cr.P.C. It is also trite that sole testimony of the prosecution stands at par with that of injured witness. It is not necessary to insist for corroboration if the evidence of the prosecution inspires confidence and appears to be credible. 15. Merely because the medical evidence does not support the case of the prosecutrix it alone cannot be a ground to discard the story. This view has been held by the Hon’ble Apex Court in the case of Wahid Khan v. State of Madhya Pradesh, AIR 2010 SC 1 . Second contention of the learned counsel for the applicants is that the present application has been filed only to harass the applicants who have filed a case against the aforesaid three accused persons as stated herein above. Present complaint has been filed by Mr Bhoorey who is not an accused in those case. In absence of any such proof this Court cannot conclude that the present proceedings have been launched to wreck vengeance on the applicants. For the aforesaid reasons, the application is dismissed. However, it is open for the applicants to raise all the issues before the Trial Court in case charge has not been framed. ——————