Ghulam Hassan Beigh vs Mohammad Maqbool Magrey & Ors.

Evidence Act, 1872: s. 45 – Expert Opinion – The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to a 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.

Allowing the appeal, Court

HELD: 1. The trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. [Para 27][52-F-H; 53-A]

2. The case on hand, 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. The post mortem report 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. [Para 29][53-F-H; 54-A-D]

3. 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. 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. [Paras 30, 31][54-E-G]

4. 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. 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. [Paras 32, 33][55-B-E]

Union of India v. Prafulla Kumar Samal and another (1979) 3 SCC 4 : [1979] 2 SCR 229; Dipakbhai

Jagdishchndra Patel v. State of Gujarat (2019) 16 SCC

547 : [2019] 6 SCR 701; Sajjan Kumar v. CBI (2010)

9 SCC 368 : [2010] 11 SCR 669; State of Karnataka v. M. R. Hiremath (2019) 7 SCC 515 : [2019]

8 SCR 713 – relied on.

V. C. Shukla v. State through C.B.I. (1980) Supp SCC

92 : [1980] 2 SCR 380 1980 SCC (Cri) 695; State v. S. Selvi (2018) 13 SCC 455; Vikram Johar v. State of Uttar Pradesh (2019) 14 SCC 207 : [2019] 8 SCR 1; Asim Shariff v. National Investigation Agency (2019) 7 SCC

148 : [2019] 8 SCR 799; Bhawna Bai v. Ghanshyam (2020) 2 SCC 217 : [ 2019] 14 SCR 422; Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460; State of

Maharashtra v. Som Nath Thapa and Others (1996) 4 SCC 659 – referred to.