Madhya Pradesh High Court
Shikha Dwivedi vs The State Of Madhya Pradesh on 7 May, 2025
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
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CRA No.614-2024
I N T H E H I G H C O U RT O F M A D H YA P R A D E S H
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
CRIMINAL APPEAL No.614 of 2024
Shikha Dwivedi
Versus
The State of Madhya Pradesh & Another
..................................................................................................
Appearance:
Shri Prakash Upadhyay - Senior Advocate assisted by Shri Utkarsh
Agrawal - Advcoate for the appellant.
Shri Amit Sharma - Government Advocate for the respondent
No.1/State.
None for the complainant/victim despite service of notice.
....................................................................................................
Reserved on : 25.04.2025
Pronounced on : 07.05.2025
.................................................................................................
ORDER
This criminal appeal under Section 14-A of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
has been filed assailing the order dated 16.12.2023 (Annexure-A/1)
passed in Special Case No.151/2023 (State of MP Vs. Ashish @ Vipul
Mishra & others) by learned Special Judge, Scheduled Castes and the
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Scheduled Tribes (Prevention of Atrocities) Act, District Rewa
(M.P.), by which, charges for commission of offences under Sections
294 of IPC and Section 302 r/w 34 of IPC; in alternate, Section 302 of
IPC and Sections 3(1)(r), 3(2)(v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 have been
framed against the appellant/accused.
2. The facts, in short, giving rise to the present revision are
that on 28.06.2023 at around 05:00 pm, complainant Rajkumar Kol
resident of Village-Pipra, Police Station-Semariya, District-Rewa
appeared at Police Station-Semariya alongwith Ramprasad Kol
stating that on 28.06.2023, he alongwith Ramprasad Kol and Lallu @
Rajbahor Kol had gone for grazing the goats at Pipra Hills. At around
01:00 pm, two unknown persons riding on a black colour Deluxe
motorcycle came and abused Ramprasad by uttering filthy words
relating to mother & sister and assaulted Ramprasad by means of
wood-sticks. Hearing the noise raised by Ramprasad, when he and
Lallu Kol reached on the spot, they both fled away from the
motorcycle. He could not see the number plate of the motorcycle.
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Both the persons are unknown, but they can identify them. Ramprasad
had sustained injuries on his back & head and is not able to lodge
FIR, therefore; on his behalf, he has come to lodge the FIR. FIR
bearing Crime No.274/2023 for commission of offences under
Sections 294, 323, 34 of IPC was registered at Police Station-
Semariya, District-Rewa. Ramprasad was taken to Sanjay Gandhi
Memorial Hospital (SGMH), Rewa and Shyam Shah Medical College
(SSMC), Rewa. On 02.07.2023, he succumbed to his injuries. In post-
mortem report, nine ante-mortem injuries were noticed on his dead
body and cause of death was shown to be cardio respiratory failure as
a result of head injury and its complications. After investigation,
charge-sheet has been filed against seven persons for commission of
offences under Sections 294, 323, 34, 302 of IPC and Section 3(2)(v)
of SC/ST (Prevention of Atrocities) Act, 1989.
3. Learned Special Judge, SC/ST (Prevention of Atrocities)
Act, Rewa by the impugned order dated 16.12.2023 framed charges
against the present appellant & six other accused persons for
commission of offences under Sections 294 of IPC and Section 302
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r/w 34 of IPC; in alternate, Section 302 of IPC and Sections 3(1)(r),
3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989. Hence, this criminal appeal.
4. It is submitted by learned counsel for the appellant that
appellant Shikha Dwivedi is a woman. In FIR dated 28.06.2023
lodged by complainant Rajkumar Kol, incident is alleged to have
been caused by two unknown persons only who had reached at the
place of occurrence from the motorcycle and had assaulted
Ramprasad Kol (since deceased). It is further submitted that in FIR,
there is no whisper about the presence of any woman/lady on the spot.
It is contended that statements of so-called eye-witnesses Rajkumar
Kol and Lallu @ Rajbahor Kol were recorded on 01.07.2023 for the
very first time. In their statements, they stated that Vipul Mishra
resident of Bhamra alongwith ten other boys with four motorcycles
was standing there and they had assaulted Ramprasad Kol by means
of lathis and wood-sticks causing injuries to him. It is submitted that
in their statements recorded on 01.07.2023, they have nowhere stated
about the presence of appellant Shikha Dwivedi or any woman on
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spot. It is submitted that their statements were again recorded on
20.07.2023 and they again gave the same statements.
5. It is contended by learned counsel for the appellant that
after a considerable period of three months of the date of incident, on
28.09.2023, supplementary statements of Rajkumar Kol and Lallu @
Rajbahor were again recorded under Section 161 of CrPC and in it,
they stated that seven-eight boys including Vipul Mishra @ Ashish
Mishra and one girl had assaulted Ramprasad Kol and three-four
motorcycles were also standing there. They stated that out of all the
assailants, they knew only Vipul Mishra not the others; but later, they
came to know about other assailants who are Vipul Mishra, Shivam
Tiwari, Karamjeet Tripathi, Rishab Tiwari, Amar Mishra, Azad
Singh, Vineet Singh and Shikha Dwivedi (present appellant). It is
contended that for the very first time, name of the present appellant
was disclosed by the witnesses almost after three months of incident.
No Test Identification Parade was conducted to ensure whether
appellant is the same woman who was involved in maar-peet or not.
Therefore, it was not justified on the part of the Trial Court to frame
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charges against the appellant who is a lady. As such, no charge for
commission of aforesaid offences is made out against her. Thus, the
learned Trial Court has committed error in framing the charges
against appellant Shikha Dwivedi. Hence, it is prayed that this appeal
may be allowed & impugned order dated 16.12.2023 (Annexure-A/1)
passed in Special Case No.151/2023 (State of MP Vs. Ashish @ Vipul
Mishra & others) by learned Special Judge, SC/ST (Prevention of
Atrocities) Act, District Rewa (M.P.), framing the charges for
commission of offences under Sections 294 of IPC and Section 302
r/w 34 of IPC; in alternate, Section 302 of IPC and Sections 3(1)(r),
3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 against appellant Shikha Dwivedi may be set-
aside.
6. On the other hand, learned counsel for the State has
opposed the prayer made by learned counsel for the appellant. It is
submitted that in their supplementary statements recorded under
Section 161 of CrPC after three months of the incident, witnesses
Rajkumar Kol and Lallu @ Rajbahor Kol have stated that later, they
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came to know about the names of other accused persons. As per their
statements, appellant Shikha Dwivedi was present on spot and had
assaulted Ramprasad Kol (since deceased). It is contended that for
framing of charges mere strong suspicious is sufficient, therefore, the
learned Trial Court has not committed any error in framing the
charges for commission of aforesaid offences against appellant
Shikha Dwivedi. Hence, no interference is required to the impugned
order dated 16.12.2023 passed by learned Special Judge, SC/ST
(Prevention of Atrocities) Act, Rewa.
7. I have heard learned counsel for the parties at length and
have perused the material available on record and in the case diary.
8. In order to appreciate the submissions made on behalf of
the parties, the issue that arises for consideration in the present
criminal appeal is that whether there exists a prima facie case for
framing charges against appellant Shikha Dwivedi.
9. It is settled that at the stage of framing the charges, the
Court has the power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case against the
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accused has been made out and 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. No roving inquiry into pros and
cons of the matter and weighing the evidence is necessary as if the
trial is conducted.
10. On perusal of the Trial Court order dated 16.12.2023
passed in Special Case No.151/2023, it is apparent that Trial Court
has not assigned any reason for framing the charges against the
appellant except that there is a prima-facie case against all the
accused persons and as such, has framed the charges. The learned
Trial Court in its order dated 16.12.2023 passed in Special Case
No.151/2023 observed as under:-
^^----izdj.k vkjksi ij vkns'k rFkk vkjksi fojpuk gsrq fu;r
gSA vkjksfi;k f'k[kk f}osnh dh vksj ls rdZ fd, x, gS fd
vfHk;kstu }kjk vkjksfi;k dh ?kVuk es dksbZ lafyIrrk ugha n'kkZbZ
xbZ gS rFkk mlds fo#) tks lk{; vfHkys[k ij gS og xzkg~;
izd`fr dh ugha gSA 'ks"k vfHk;qDrx.k dh vksj ls Hkh ;g rdZ fd;k
x;k gS fd muds fo#) lk{; xzkg~; izd`fr dh ugha gSA
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izdj.k ds voyksdu ls lHkh vfHk;qDrx.k ds fo#)
izFken`"V~;k /kkjk&294] 302 lgifBr 34 fodYi esa 302]
Hkk0n0fo0 ,oa /kkjk&3¼1½¼vkj½] 3¼2½¼5½ vtk0@vttk0
¼vR;k0fuok0½ vf/k0 ds varxZr vkjksi yxk, tkus gsrq ;Fks"V
vk/kkj ifjyf{kr gksrs gSA vr% mijksDr /kkjkvks ds vkjksi mifLFkr
vfHk;qDrx.k ij ,oa dsUnzh; tsy jhok es fu#) vfHk;qDrx.k ij
tfj, vf/koDrk fojfpr fd;k tkdj lquk, ,oa le>k, tkus ij
mifLFkr vfHk;qDrx.k ,oa dsUnzh; tsy jhok es fu#)
vfHk;qDrx.k dh vksj ls muds vf/koDrk us vijk/k ls badkj
fd;k rFkk fopkj.k pkgkA mudh Iyh vafdr dh xbZA
/kkjk&294 n0iz0l0 ds varxZr vfHk;kstu ds nLrkostksa dks
fn[kk, tkus ij mifLFkr vfHk;qDr ,oa dsUnzh; tsy jhok esa
fu#) vfHk;qDrx.k dh vksj ls mlds vf/koDrk us mudh lR;rk
ls badkj fd;kA---**
11. On perusal of the FIR recorded on the same day, it is
apparent that in it, there is no mention about presence of any
girl/lady/woman on spot. In FIR, allegations are made against only
two unknown persons. In the statements of eye-witnesses viz.
Rajkumar Kol and Lallu @ Rajbahor Kol recorded on 01.07.2023
under Section 161 of CrPC, 1973, there is no mention about presence
of any girl/lady on spot and taking active participation in causing
injuries to Rajprasad Kol (since deceased). Even, in their second
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statements again recorded under Section 161 of CrPC on 20.07.2023,
it is stated by them that injuries were caused by seven-eight boys and
out of these boys, they knew only the name of Vipul Mishra @ Ashish
Mishra. It is worth mentioning that for the very first time, in the
supplementary statements recorded on 28.09.2023 which is third
statement under Section 161 of CrPC, name of the present appellant
and other co-appellants/accused have been taken. However, it cannot
be over looked that no Test Identification Parade was conducted to
ensure whether appellant Shikha Dwivedi is the same lady who was
present on the sport or not. Thus, it is apparent that police statements
of both the eye-witnesses viz. Rajkumar Kol and Lallu @ Rajbahor
Kol have been improved after a considerable period of three months
of the incident and for the very first time, name of Shikha Dwivedi
(present appellant) has surfaced on 28.09.2023.
12. Section 227 of the CrPC reads thus:
"227. Discharge.- If, upon consideration of the
record of the case and the documents submitted therewith,
and after hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers that there is
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not sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reasons for so
doing."
13. Section 228 of the CrPC reads thus:-
"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, 3 [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
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whether he pleads guilty of the offence charged or claims to
be tried."
14. The purpose of framing a charge is to intimate to the
accused the clear, unambiguous and precise nature of accusation that
the accused is called upon to meet in the course of a trial. [See:
decision of a Four Judge Bench of Hon'ble the Apex Court in V.C.
Shukla v. State through C.B.I., please see 1980 SCC (Cri) 695].
15. Hon'ble the Apex Court in the case of Union of India vs.
Prafulla Kumar Samal and another; (1979) 3 SCC 4, (AIR 1979
SC 366) has considered the scope of enquiry a judge is required to
make while considering the question of framing of charges. In
paragraph 10 of the judgment laid down the following principles: −
"(1) That the Judge while considering the question
of framing the charges under section 227 of the Code 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.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which has not
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been properly explained the Court will be, fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By and
large however if two views are equally possible and the
Judge is satisfied that the evidence produced before him
while giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to
discharge the accused.
(4) That in exercising his jurisdiction under section
227 of the Code the Judge which under the present Code is
a senior and experienced Judge cannot act merely as a Post
office or a mouth−piece 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 appearing in the case and so on.
This however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial."
16. Hon'ble the Apex Court in the case of Sajjan Kumar vs.
CBI [(2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371], considering the
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scope of Sections 227 and 228 CrPC, noted the following principles.
Para 21 is as under:-
"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
dis− close 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
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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 there from 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.
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(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."
17. Hon'ble the Supreme Court in the case of Dipakbhai
Jagdishchndra Patel vs. State of Gujarat, (2019) 16 SCC 547, has
discussed the law relating to the framing of charge and discharge,
elaborately in paragraphs 15 and 23. The same are reproduced as
under:-
"15. We may profitably, in this regard, refer to the
judgment of this Court in State of Bihar v. Ramesh Singh
wherein this Court has laid down the principles relating to
framing of charge and discharge as follows:
"4.....Reading Sections 227 and 228 together in
juxtaposition, as they have got to be, it would be clear
that at the beginning and 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
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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. 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. If the evidence
which the prosecutor proposes to adduce to prove the
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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....
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."
* * * * * *
"23. At the stage of framing the charge in accordance
with the principles which have been laid down by this
Court, what the Court is expected to do is, it does not act as
a mere post office. The Court must indeed sift the material
before it. The material to be sifted would be the material
which is produced and relied upon by the prosecution. The
sifting is not to be meticulous in the sense that the Court
dons the mantle of the Trial Judge hearing arguments after
the entire evidence has been adduced after a full−fledged
trial and the question is not whether the prosecution has
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made out the case for the conviction of the accused. All that
is required is, the Court must be satisfied that with the
materials available, a case is made out for the accused to
stand trial. A strong suspicion suffices. However, a strong
suspicion must be founded on some material. The material
must be such as can be translated into evidence at the stage
of trial. The strong suspicion cannot be the pure subjective
satisfaction based on the moral notions of the Judge that
here is a case where it is possible that accused has
committed the offence. Strong suspicion must be the
suspicion which is premised on some material which
commends itself to the court as sufficient to entertain the
prima facie view that the accused has committed the
offence."
18. Hon'ble the Apex Court in the case of Asim Shariff vs.
National Investigation Agency, (2019) 7 SCC 148, in so many
words, has expressed that the trial court is not expected or supposed
to hold a mini trial for the purpose of marshalling the evidence on
record. The relevant observations as under:-
"18. Taking note of the exposition of law on the
subject laid down by this Court, it is settled that the Judge
while considering the question of framing charge under
Section 227 CrPC in sessions cases (which is akin to
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Section 239 CrPC pertaining to warrant cases) 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; where the
material placed before the Court discloses grave suspicion
against the accused which has not been properly explained,
the Court will be fully justified in framing the charge; by
and large if two views are possible and one of them giving
rise to suspicion only, as distinguished from grave suspicion
against the accused, the trial Judge will be justified in
discharging him. It is thus clear that while examining the
discharge application filed under Section 227 CrPC, it is
expected from the trial Judge to exercise its judicial mind to
determine as to whether a case for trial has been made out
or not. It is true that in such proceedings, the Court is not
supposed to hold a mini trial by marshalling the evidence
on record." (emphasis supplied)
19. On perusal of above case laws and Sections 227 & 228 of
CrPC, 1973, it is apparent that the Court is required to consider the
'record of the case' and documents submitted therewith and, after
hearing the parties, may either discharge the accused or where it
appears to the court and in its opinion there is ground for presuming
that the accused has committed an offence, it shall frame the charge.
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Once the facts and ingredients of the Section exists, then the Court
would be right in presuming that there is ground to proceed against
the accused and frame the charge accordingly. This presumption is not
a presumption of law as such. The satisfaction of the court in relation
to the existence of constituents of an offence and the facts leading to
that offence is a sine qua non for exercise of such jurisdiction.
20. At the initial stage of framing of a charge, the court is
concerned not with proof but with a strong suspicion that the accused
has committed an offence, which, if put to trial, could prove him
guilty. All that the court has to see is that the material on record and
the facts would be compatible with the innocence of the accused or
not. The final test of guilt is not to be applied at that stage.
21. In the light of the above settled position and on scanning
three statements recorded under Section 161 of CrPC and the FIR
lodged by one of the eye-witness viz. Rajkumar Kol, it is apparent that
in first two statements recorded under Section 161 of CrPC, 1973; i.e.
first on 01.07.2023 and second on 20.07.2023, there is no mention
about the name of present appellant Shikha Dwivedi being present on
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the spot. In FIR and in earlier two statements, there is no whisper
about presence of any girl/lady on the spot. After a considerable
period of three months, the statements which are recorded on
28.09.2023 for the very first time, witnesses Rajkumar Kol and Lallu
@ Rajbahor Kol in their supplementary statements have stated that
seven-eight boys alongwith a girl/lady were assaulting Ramprasad
Kol (since deceased) and out of those assailants, they knew only
Vipul Mishra @ Ashish Mishra and later, they came to know about
the names of present appellant and other accused persons to whom
they can identify. It is worth mentioning that no Test Identification
Parade has been conducted to ensure the presence of appellant on the
spot. Thus, learned Trial Court had no material to frame charges
against the present appellant except the supplementary statements of
the two witnesses recorded on 28.09.2023 i.e. after a considerable
period of three months of the incident and this was the third
statements recorded under Section 161 of CrPC, 1973. As no Test
Identification Parade had been conducted and aforesaid two eye-
witnesses had no chance to identify that the appellant is the same lady
or not who was present alongwith the other co-accused persons,
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therefore, I am of the view the there was no material available before
the learned Trial Court to disclose grave suspicion against the present
appellant and to frame charges and proceed with the trial.
22. Undoubtedly; for framing charge, strong suspicion is
sufficient. However, a strong suspicion must be founded on some
material. The material must be such as can be translated into evidence
at the stage of trial. The strong suspicion cannot be the pure
subjective satisfaction based on the moral notions of the Judge that
there is a case where it is possible that accused has committed the
offence. Strong suspicion must be the suspicion which is premised on
some material which commends itself to the court as sufficient to
entertain the prima facie view that the accused has committed the
offence.
23. Improved three statements given with interval of gaps by
the two eye-witnesses do not prima facie show about the presence of
present appellant on spot and taking active participation in
commission of offence of murder of the deceased. Thus, I am of the
considered view that there is nothing on record to show that appellant
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Shikha Dwivedi was present on the spot and she had acted in
furtherance of common intention and had in any way assaulted the
deceased.
24. In view of the above analysis, this Court is conscious that
at the stage of framing of charge, there should be no roving enquiry
into the same; but at the same time, it cannot be over looked that the
requirement of law is that there must be a strong suspicion founded on
some material and the material must be such as can be translated into
evidence at the stage of trial. If two views are possible and one of
them gives rise to suspicion only, as distinguished from grave
suspicion, the Court is empowered to discharge the accused. Thus,
learned Trial Judge was expected to exercise its judicial mind to
determine as to whether a case for trial has been made out or not.
25. As discussed above, there is no prima facie material on
record to hold that there is any material on record to frame the charge
against appellant Shikha Dwivedi, therefore, it was not justified on
the part of the learned Trial Judge to determine that a case for trial is
made out.
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26. In light of the above discussions, it is apparent that even if
all the material available on record by prosecution is accepted as
gospel truth; even then, it is opposed to common sense or the broad
probabilities of the case. It is against the common sense and gives rise
to suspicion only and not the grave suspicion. Therefore, present
appellant Shikha Dwivedi is required to be discharged. Consequently,
this appeal succeeds and the impugned order dated 16.12.2023
(Annexure-A/1) passed in Special Case No.151/2023 (State of MP Vs.
Ashish @ Vipul Mishra & others) by learned Special Judge, SC/ST
(Prevention of Atrocities) Act, District Rewa (M.P.), by which,
charges for commission of offences under Sections 294 of IPC and
Section 302 r/w 34 of IPC; in alternate, Section 302 of IPC and
Sections 3(1)(r), 3(2)(v) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 have been framed against
appellant Shikha Dwivedi is hereby set-aside and as such, present
appellant Shikha Dwivedi is discharged for commission of the
aforesaid offences.
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27. In view of the above, this criminal appeal filed by
appellant Shikha Dwivedi stands allowed.
28. It is made clear that the observation made hereinabove
shall remain confined to the disposal of the present criminal appeal so
far as it relates to appellant Shikha Dwivedi and will have no bearing,
whatsoever with regard to other accused & on the merits of the case.
(DINESH KUMAR PALIWAL)
JUDGE
@shish
