In a very significant observation with far reaching consequences, the Supreme Court has as recently as on July 26, 2022 in an extremely laudable, learned, landmark and latest judgment titled Ghulam Hassan Beigh vs Mohammad Maqbool Magrey & Ors in Criminal Appeal No. of 2022 (Arising out of S.L.P. (Criminal) No. 4599 of 2021) and cited in 2022 LiveLaw (SC) 631 minced just no words to observe that a trial court could not discharge the accused from murder charges merely relying on post mortem report indicating cause of death as cardio respiratory failure. The Bench of Apex Court comprising of Justices AM Khanwilkar, Abhay S Oka and JB Pardiwala observed that:
The post mortem report by itself, does not constitute substantive evidence. The doctor’s statement in court is alone the substantive evidence. Very rightly so!

At the outset, this brief, brilliant, bold and balanced judgment authored by Justice JB Pardiwala for a Bench of Apex Court comprising of Justice AM Khanwilkar, Justice Abhay S Oka and himself sets the ball rolling by first and foremost putting forth in para 2 that:
This appeal is at the instance of the original complainant (husband of the deceased) and 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 the Additional Sessions Judge, Sopore (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 (for short, ‘IPC’). 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.

FACTUAL MATRIX
To put things in perspective, the Bench then envisages in para 3 that:
It appears from the First Information Report (FIR) bearing No. 26/20 dated 22.03.2020 lodged by the appellant with the police station situated at Dangiwacha that on the fateful day, the accused persons formed an unlawful assembly and laid an assault on the appellant and his family members after trespassing into the residential property of the appellant herein. It is the case of the prosecution that all the accused persons trespassed into the residential property of the appellant and started damaging the tin fence. When the appellant herein tried to restrain the accused persons from causing any further damage, they all started assaulting the appellant by giving fisticuffs. One of the accused persons is said to have hit the appellant with a wooden log. The wife of the appellant herein and his daughter-in-law viz. Rubeena Ramzan came to the rescue of the appellant. The accused persons are alleged to have caught hold of the deceased (wife of the appellant herein) and the daughter-in-law and both were beaten up causing injuries. It is further alleged that the two female members of the family were dragged by the accused persons as a result the clothes of the deceased got torned thereby outraging her modesty.

While continuing in the same vein, the Bench then lays bare in para 4 that:
In connection with the aforesaid incident, the appellant went to the police station at Dangiwacha and lodged the FIR. The FIR was initially registered for the offences punishable under Sections 147, 354, 323 and 451 respectively of the IPC. The deceased (wife of the appellant) had to be shifted to a hospital as she suffered injuries on her body. No sooner the deceased was brought to the hospital than she was declared dead by the doctor on duty. In such circumstances, Section 302 of the IPC came to be added in the FIR. The post mortem of the body of the deceased was performed. The statements of the various eye witnesses to the incident were recorded. Various panchnamas were drawn. At the end of the investigation, the police filed charge sheet against the accused persons for the offence of murder along with other offences as enumerated above.

As we see, the Bench then mentions in para 5 that:
The cause of death of the deceased as assigned in the post mortem is cardio respiratory failure. No poison was detected in the viscera.

Simply put, the Bench then discloses in para 6 that:
It appears that the trial court heard the prosecution as well as the defence on the question of charge. Ultimately, the trial court thought fit to discharge the accused persons of the offence of murder punishable under Section 302 of the IPC and proceeded to frame charge against the accused persons for the offence of culpable homicide punishable under Section 304 of the IPC.

As it turned out, the Bench then observed in para 7 that:
The appellant herein, being aggrieved by such decision of the trial court to discharge the accused persons of the offence of murder, challenged the legality and validity of the order by filing a revision application before the High Court. The High Court thought fit to affirm the order passed by the trial court discharging the accused persons of the offence of murder.

Needless to say, the Bench then states in para 8 that:
In such circumstances referred to above, the appellant has come up with the present appeal before this Court.

Be it noted, the Bench then minces no words to state unequivocally in para 27 that:
Thus from the aforesaid, it is evident that 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. (See : Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).

Most significantly, the Bench then minces no words to point out in para 29 that, 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. 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 recording of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record.

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.

Most forthrightly, the Bench then pointed out in para 30 that:
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.

Adding more to it, the Bench then further states in para 31 that:
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 reached to such a conclusion merely relying upon the post 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.

To put it differently, the Bench then specifies in para 32 stating that:
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.

Most remarkably, the Bench then deems it apposite to put forth in para 33 that, 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 chargesheet. Such approach of the trial court at times may prove to be more rationale and prudent.

As a corollary, the Bench then holds in para 34 that:
In view of the aforesaid discussion, the order of the High Court as well as the order of the trial court deserve to be set aside.

As a consequence, the Bench then also holds in para 35 that:
In the result, this appeal succeeds and is hereby allowed. The orders passed by the High Court and the trial court are hereby set aside. The trial court shall now proceed to pass a fresh order framing charge in accordance with law keeping in mind the observations made by this Court.

Finally and as a clarity, the Bench then seeks to clarify in para 36 that:
We clarify that we have otherwise not expressed any opinion on the merits of the case. The observations in this judgment are absolutely prima facie and relevant only for the purpose of deciding the legality and validity of the order discharging the accused persons of the offence of murder punishable under Section 302 of the IPC. We once again clarify that 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.

In conclusion, the Apex Court has thus made it indubitably clear that the post-mortem report is by itself not a substantive evidence. It was also made absolutely clear by the Apex Court that a Court can’t discharge a murder accused only based on it. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.