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2022 DIGILAW 1038 (GUJ)

KAMLESH TIRTHDAS GANGWANI v. STATE OF GUJARAT

2022-09-15

SAMIR J.DAVE

body2022
JUDGMENT : SAMIR J. DAVE, J. 1. By way of this revision application, the applicant has prayed to quash and set aside the order dated 19.07.2021 passed by the learned Sessions Judge, Vadodara below application Exhibit-5 in Sessions Case No. 238 of 2019 whereby, the said application was allowed and the case was ordered to be remitted to the Magisterial Court concerned for trial u/s. 304A of IPC. 2. The facts in brief are that in connection with a vehicular accident that took place on 21.09.2017, a complaint being C.R. No. I-94 of 2017 came to be registered with Vadi Police Station, Vadodara City u/s. 279 and 304 of IPC and Sections 177, 184 and 134 of the Motor Vehicles Act. In the said vehicular accident, the father of the applicant herein passed away. The offending vehicle, i.e. an Eicher Tempo, was driven by respondent No. 2 herein. At the end of investigation, charge-sheet was filed before the concerned trial Court and the case was committed to the Sessions Court concerned. 3. During the course of proceedings before the Sessions Court, the Public Prosecutor concerned preferred application Exhibit-5 stating that the case involves offence punishable u/s. 304A of IPC and no ingredients of Section 304 of IPC are satisfied or disclosed and thereby, requested to remit the case to the Magisterial Court concerned for trial. After hearing both the sides, the Court below allowed application Exhibit-5 and remitted the case to the Magisterial Court by way of the impugned order. Hence, this revision application. 4. Mr. Ashish Dagli, learned advocate appearing for the applicant, submitted that the Court below has seriously erred in law in passing the impugned order. He submitted that the Public Prosecutor before the Court below, at the first place, was not empowered by law to file such an application and secondly, the Court below ought not to have passed the impugned order without appreciating the evidence on record. It was, accordingly, urged to quash and set aside the impugned order and to direct the Sessions Court concerned to try the case from the stage the same is pending. 5. Learned advocate Mrs. Kapadia appearing for respondent No. 2 submitted that the provisions of Section 304A of IPC is attracted in this case in view of the material on record and accordingly, urged to dismiss the revision application. 6. Heard learned advocates on both the sides. 5. Learned advocate Mrs. Kapadia appearing for respondent No. 2 submitted that the provisions of Section 304A of IPC is attracted in this case in view of the material on record and accordingly, urged to dismiss the revision application. 6. Heard learned advocates on both the sides. Having gone through the material on record, this Court is of the view that the application Exhibit-5 preferred by the Public Prosecutor was misconceived inasmuch as there is no provision under the law that enables the Public Prosecutor to file such an application. Whether the case falls u/s. 304 or 304A of IPC could have been decided by the trial Court, only after the evaluation of the entire evidence that may be led by the prosecution as well as by the defence, if any. Ultimately, upon appreciation of the entire evidence on record, at the end of the trial, the trial Court may take one view or the other but when investigation has got over and charge-sheet has also been filed, the trial Court could not have reached to such a conclusion and that too, on the basis of an application filed by the Public Prosecutor. 7. It is well settled law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial Court and the accused is required to defend himself only with regard to the offence for which he has been charged. In other words, the prosecution case is limited by the charge, which forms the foundation of the trial. Thus, when charge has already been framed, the trial Court ought not to have passed the impugned order since it has altered the entire scope of the trial, which is not permissible. 8. In the background facts, it would be beneficial to refer to a recent decision of the Apex Court in the case of Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey and Others passed in Criminal Appeal No. 4599 of 2021 dated 26.07.2022 more particularly, on the observations made in paragraphs-28 to 33, which reads thus: “28. In Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460 , this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression “there is ground for presuming that the accused has committed an offence.” There is an inbuilt element of presumption. In Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460 , this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression “there is ground for presuming that the accused has committed an offence.” There is an inbuilt element of presumption. It referred to its judgment rendered in the case of State of Maharashtra vs. Som Nath Thapa and Others, (1996) 4 SCC 659 and to the meaning of the word “presume” placing reliance upon Blacks’ Law Dictionary, where it was defined to mean “to believe or accept upon probable evidence” and “to take as true until evidence to the contrary is forthcoming.” In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, incriminating material and evidences put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the Court forming its final opinion and delivering its judgment......” (Emphasis supplied) 29. What did the trial court do in the case on hand? We have no doubt in our mind that the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought fit to discharge the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the “cardio respiratory failure” the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem repot of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor’s statement in court is alone the substantive evidence. The 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 the witness-box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court. 30. The prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the post mortem report, the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question. 31. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the post mortem report, the death of the deceased on account of “cardio respiratory failure” cannot be said to be having any nexus with the incident in question. 31. Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same. 32. We may now proceed to consider the issue on hand from a different angle. It is a settled position of law that in a criminal trial, the prosecution can lead evidence only in accordance with the charge framed by the trial court. Where a higher charge is not framed for which there is evidence, the accused is entitled to assume that he is called upon to defend himself only with regard to the lesser offence for which he has been charged. It is not necessary then for him to meet evidence relating to the offences with which he has not been charged. He is merely to answer the charge as framed. The Code does not require him to meet all evidence led by prosecution. He has only to rebut evidence bearing on the charge. The prosecution case is necessarily limited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject-matter of the 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. 33. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject-matter of the 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. 33. Once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution thereafter would not be in a position to lead any evidence beyond the charge as framed. To put it otherwise, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302 IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC. In such circumstances, in the facts of the present case, it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its original case as put up in the charge-sheet. Such approach of the trial court at times may prove to be more rationale and prudent.” 9. The powers of this Court in revisional jurisdiction under Section 397 Cr.P.C. are well settled. In the case of Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460 , the Apex Court has discussed the scope and ambit of Section 397 Cr.P.C. The observations made in paragraphs-12 and 13 are relevant for our purpose. It reads thus: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.” 10. Considering the facts of the case and the principle laid down by the Apex Court in the above decisions, this Court is of the view that the impugned order passed by the trial Court is not sustainable in the eyes of law and deserves to be quashed and set aside. 11. In the result, the application is allowed. The impugned order 19.07.2021 passed by the learned Sessions Judge, Vadodara below application Exhibit-5 in Sessions Case No. 238 of 2019 is quashed and set aside and the Sessions Court concerned is directed to proceed further with the trial in the sessions case. With the above direction, the revision stands disposed of. Rule is made absolute.