JUDGMENT : 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 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. 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 not released on bail and, therefore, he was in judicial custody as Under Trial Prisoner and because of impugned order certainly he would be immediately released on bail and, therefore, though the order of discharge would always be based upon altogether a different footing, the fact remains that because of such discharge, he released on bail. 8. In view of above factual details, if we peruse the available record, initially, it would be appropriate to recollect the provision of Section 114 of IPC which reads as under: Section 114: Abettor present when offence is committed. “Whenever any person who if absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.” 9. The bare reading of the Section makes it clear that the abettor of any crime would be considered as a criminal of main crime when the said provision envisages that he shall be deemed to have committed such act or offence. Therefore, if accused No.1 has committed a murder of mother of the complainant and if accused No.2 was present at that time with accused No.1 has committed the crime and help him, he can certainly be considered as abettor for abetting the offence of murder committed by accused No.1. Otherwise, he should have objected and opposed the commission of offence by co-accused. Therefore, when Sessions Court has already considered that charges under Section 201 of IPC i.e. for the offence of causing disappearance of evidence of offence with Section 114 of IPC to consider him as an abettor, then, there is no reason for the trial Court to discharge the accused No.2 for the offence under Section 302. 10. I have perused the papers of charge sheet. It would be inappropriate to discuss the evidence at this stage. 10. I have perused the papers of charge sheet. It would be inappropriate to discuss the evidence at this stage. However, it is to be noted that trial Court has simply relied upon some undertaking by police department during investigation. However, except papers of investigation, other communication may not be treated as an evidence. It is also clear from the record that it would be difficult for a single person to manage all the activities right from killing the victim to dragging her and then to throw her in well. It is also clear from evidence that dead body was thrown into a well which can be only possible by two persons or at least with help of some other persons and, therefore, when there is categorical prima facie evidence available in charge sheet that accused No.2 has helped the accused No.1 in disposing the dead body and, thereby, when it can be confirmed from such evidence that accused No.2 was present at the place of incident, considering the common conspiracy of both the accused to kill the victim since she has denied to defend them, it can certainly be said that there is prima facie evidence against accused No.2 also even such evidence is circumstantial and may not be in the form of direct evidence again in the form of statement of any eye witness or other witness. 11. It is also clear that prosecution is yet to adduce evidence and if there is no evidence against the accused No.2 so as to convict him under Section 302 then, he may not be convicted under Section 302 but there is difference in saying that there is no prima facie evidence and there is no evidence at all. Therefore, when there is some prima facie evidence available against the accused No.2, in my opinion the Sessions Court has committed material irregularity and illegality in discharging the accused No.2 from the charges under Section 302 of IPC when he has accompanied accused No.1 in all the activities. 12. Therefore, when there is some prima facie evidence available against the accused No.2, in my opinion the Sessions Court has committed material irregularity and illegality in discharging the accused No.2 from the charges under Section 302 of IPC when he has accompanied accused No.1 in all the activities. 12. If we peruse the settled legal position so far as right to get discharge is concerned, it becomes clear that at the time of considering the application for discharge, Court has not to scrutinize the availability of entire evidence so as to arrive at any particularly findings regarding commission of offence by the accused, more particularly to confirm that whether there is every possibility of conviction of accused. What is required to be considered is to the limited extent to find out, whether there is prima-facie evidence against the accused to believe that he has committed any offence as alleged in the charge sheet. If prima-facie the evidence is available against the accused then there cannot be an order of discharge. 13. It is to be considered that for framing of charge, the Court is required to form an opinion that there is ground for presuming that the accused has committed an offence. 14. Considering above discussion, when it is certain that offence has been committed, then accused has to face the trial. If prosecution fails to prove the charge, he may be acquitted, but there cannot be order of discharge on presumption that there will be no evidence or no reason for conviction. 15. In support of my conclusion, reference to certain judgments of the Apex Court are necessary, which are as under: (1) AIR 1980 S.C. 52 : Supdt. And Remembrance of Legal Affairs, West Bengal vs. Anil Kumar Bhunja – The law regarding discharging the accused u/s.227 of Cr. 15. In support of my conclusion, reference to certain judgments of the Apex Court are necessary, which are as under: (1) AIR 1980 S.C. 52 : Supdt. And Remembrance of Legal Affairs, West Bengal vs. Anil Kumar Bhunja – The law regarding discharging the accused u/s.227 of Cr. P. C. is now well settled as decided by the Full Bench of the Apex Court in that the standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of S.277 or S.228 At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence. (2) AIR 1990 S.C. 1962 = (1990) 4 SCC 76 : Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitender Bhimraj Bijja – Wherein, the Full Bench of the Apex Court has held that consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused and with furtherance sufficient ground to proceed, charge shall be framed and that at that such stage, the trial Court has not to marshal the documents produced before it as it would do on the conclusion of evidence for deciding the charge. The Apex Court considered the scope of S.227 and opined that Court is not expected to make a rowing inquiry into the pros and cons of the issue and weigh the evidence as if a trial is conducted. Accused can be discharged only when there is no prima facie ground to sustain the charge. What is required is the sufficiency of ground to sustain the charge. What is required is the sufficiency of ground for proceeding against the accused and not whether materials on record are sufficient for conviction. After considering the provisions of Ss. 227 and 228 of Cr. P. C, Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? After considering the provisions of Ss. 227 and 228 of Cr. P. C, Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. It is well settled that at the stage of framing charge the Court is not expected to go deep into the probative value of the material on record. If on the basis of materials on record the Court could come to the conclusion that the accused would have committed the offence, the Court is obliged to frame the charge and proceed to the trial. (3) AIR 2001 S.C. 1507 : Om Wati vs. State – In it is observed that accused cannot be discharged on hypothesis, imagination and farfetched reasons. (4) AIR 1997 S.C. 2041 : State of Maharashtra vs. Priya Sharan Maharaj – It is held that at the stage of framing the charge, the Court has to consider the material with a view to find out if there is ground for presuming that accused has committed an offence or that there is no sufficient ground for proceeding against him and not for the charges by arriving at the conclusion that it is not likely to lead to a conviction. (5) AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari – It was held that, the Court at the stage of S.227 and S.228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. Thus it is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. (6) 2005 SC 359: State of Orissa vs. Debendra Nath Padhi – The Apex Court has held that, it is seen from S.227 of the Code that in a case triable before the Court of Session, if the Court on consideration of the record of the case and the documents submitted therewith and after hearing the submission of the prosecution and the accused if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording reasons for doing so. This Section nowhere contemplates an opportunity being given to the accused person to produce evidence in defence at that stage. The Section is quite clear that whatever consideration that has to be made by the Court, will have to be based on the record of the case and documents submitted therewith, and after hearing the submissions of the accused and the prosecution. If after doing so, the Court comes to the conclusion that there is a ground for presuming that the accused has committed an offence, then the Court shall frame charge u/s.228 of the Code, otherwise it shall discharge the accused under S.227 of the Code. If after doing so, the Court comes to the conclusion that there is a ground for presuming that the accused has committed an offence, then the Court shall frame charge u/s.228 of the Code, otherwise it shall discharge the accused under S.227 of the Code. It is further held that: It is clear that all that the Court has to do at the time of framing a charge is to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of the materials placed before it by the investigating agency. There is no requirement in law that the Court at that stage should either given an opportunity to the accused to produce evidence in defence or consider such evidence the defence may produce at that stage. (7) (1997) 4 SCC 393 = 1997 AIR SCW 1833 : State of Maharashtra vs. Priya Sharan Maharaj – Referring to the case of Niranjan Singh Karam Singh Punjabi (supra) held that 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 there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, 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 and even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (8) AIR 2000 SC 2583 : State of MP vs. Mohan Lal Soni – The Court while referring to several previous decisions, held that the crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. (8) AIR 2000 SC 2583 : State of MP vs. Mohan Lal Soni – The Court while referring to several previous decisions, held that the crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It is further held that, each case depends upon its particular facts and circumstances and sometime even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out. (9) (1996) 4 SCC 695 = 1996 AIR SCW 1977: State of Maharashtra V/s. Som Nath Thapa – A three-Judge Bench of Hon'ble Supreme Court has held that, if on the basis of materials on record a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. (10) AIR 1999 SC 3845 = 1999 AIR SCW 3921: State of U.P. V/s. Udai Narayan – The Apex Court has specifically determined in its decision reported in while dealing with the issue regarding discharge of accused from the charges under the Prevention of Corruption Act, 1988 that scanning and scrutinizing the evidence and materials produced by the prosecution is not permitted at the time of deciding the prayer for discharge and that positive conclusion on material record should be avoided as it may affect the trial. (11) AIR 1987 SC 773: State Of Himachal Pradesh Vs. (11) AIR 1987 SC 773: State Of Himachal Pradesh Vs. Krishan Lal Pardhan – The Apex Court has held that for scrutiny within the limits of S. 239, Cr. P. C., all that is required at the stage of framing of charges is to see whether a prima facie case regarding the commission of certain offences is made out. The question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in the case, which cannot be decided on merits without giving the prosecution an opportunity to adduce evidence against the accused. (12) AIR 2007 SC 2149 = 2007 AIR SCW 3683 Soma Chakravarty v. State – It is held as under: It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. 16. Thus, the law on the subject is now well-settled that while considering the discharge application, the Court is required to evaluate the material and documents on record for limited purpose i.e. to find out that whether facts emerged from such material even if taken on their face value, is enough and disclose the existence of all the ingredients to constitute the alleged offences. The Court may, for this limited purpose, sift the evidence as it cannot be expected at such initial stage to accept all that the prosecution story as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. The Court may, for this limited purpose, sift the evidence as it cannot be expected at such initial stage to accept all that the prosecution story as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. 17. I have gone through the record of the case and I am of the opinion that there is sufficient evidence on record to prove the case of the prosecution, whereas explanation by the accused is not trust worthy, since it is not supported by the evidence less prima facie proof. It is well settled that circumstantial evidence is enough to confirm a conviction and, therefore, when case is based upon circumstantial evidence to some extent at least against accused No.2, there cannot be presumption before allowing the prosecution to lead the evidence. 18. Therefore, it is made clear that at any stage, during the trial, when it is proved that there is no evidence against the accused No.2, then, at this stage, Court may exercise the powers under Section 227 of the Code to discharge the accused No.2 pending trial but discharging the accused No.2 at initial stage of framing charge based upon presumption is certainly unwarranted and, therefore, it results into irregularity which in turn results into illegality and, therefore, revision petitions need to be allowed by quashing and setting aside the impugned order. 19. Therefore, order dated 3.8.2016 below Exh.1 in Sessions case No.57/2016 by Sessions Court, Bharuch is hereby quashed and set aside and, thereby Sessions Court is directed to frame charges upon both the accused as per the settled legal position which is discussed hereinabove. However, it is made clear that if at any stage, there is confirmation on record that there is no evidence against the accused No.2, accused No.2 may apply for his discharge at the relevant time. However, it is made clear that if at any stage, there is confirmation on record that there is no evidence against the accused No.2, accused No.2 may apply for his discharge at the relevant time. In that case, trial Court shall decide such application in accordance with law i.e. considering the settled legal position and the available material and evidence on record. Record and Proceedings be sent back to the concerned Court. 20. Since charges are to be framed against both the accused, if accused No.2 has been released on bail, then he shall surrender himself to the judicial custody within a week, else trial Court may issue warrant. 21. In view of above facts and circumstances, both these revision petitions are allowed in aforesaid terms. Rule is made absolute to the aforesaid extent.