Scribd
Upload
7 views

Reference

Uploaded by

sarsunaps
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
7 views

Reference

Uploaded by

sarsunaps
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 2

Distinction between Acquittal and Discharge

(1) A discharge takes place where there is no prima facle case made out against the accused and he has not been
put on his defence, nor any charge framed against him to which he could plead. But after the accused has been
called upon to enter on his defence or a charge has been framed against him on a prima facie case having been
made out by the prosecution, the accused can either be convicted or acquitted but not discharge.

(2) A man who is discharged may again be charged with the same offence if other testimony should be discovered
(Section 437) but a man who has been acquitted cannot be put on his trial again for the offence of which he has
been acquitted. (Section 403)

(3) An order to discharge is not judgment, but order of an acquittal is in the nature of a judgment.

(4) An order of acquittal is judgment which is always final. Whereas order of discharge leaves the matter indefinite
for all purposes of judicial inquiry.

(5) A discharge is a defence against fresh proceedings only if fresh facts and better evidence are not available
against the accused. An acquittal by a court of competent jurisdiction bars a retrial for the same offence based on
the same facts even if fresh facts and better evidence is discovered, or on the same facts for any other offence for
which a different charge from the one made against him might have been made under Section 221(1) or for which
he might have been convicted under Section 221(2), CrPC.

(6) A discharge take place before formal framing of the charges and before the accused is called upon to enter into
his defence. An order of acquittal is passed only when charges have been framed and the accused has been tried on
the charges so framed and he has been called upon to enter into his defence and has disproved the prosecution
story.

(7) Discharge does not establish the innocence of the accused but it only means that no prima facie case could be
made out to justify further inquiry in respect of the accusations. An order of acquittal establishes the innocence of
the accused as it is a sentence of not guilty. It amounts to absolution of the party charged with an offence. It is
recorded only after judgment. A person once acquitted cannot be tried for the same offence (Section 300).

Evidence of defence (Section 233)

If an accused is not acquitted under Section 232, they are called to present defence evidence under Section 233(1),
which is mandatory to protect their interest. The judge is also required to file a written statement of the accused in
the records. The accused can apply for process to compel witnesses or document production under Section 233(3),
but the judge must issue the process unless deemed vexations or for delay or defeating justice. The court's right to
deny an opportunity for defence evidence is limited to cases where the reasons for refusal are recorded in writing.
The defence witness is examined in chief and then cross-examined by the prosecution.

In State of MP v. Badri Yadav, (2006), prosecution witnesses were falsely accused of being coerced and tutored by
police. The accused applied for recalling and re-examining those already examined under Section 311 but was
rejected. The SC ruled that under Section 233, the accused can enter upon defense and apply for the issue of any
process for compelling the attendance of witnesses. However, there is no provision in the CrPC that allows
witnesses to be juxtaposed as defense witnesses and examined on behalf of the accused. Such witnesses who file
affidavits would be liable for prejury. The court has the discretionary power to summon or recall witnesses if
necessary for a just decision, but can refuse to exercise this power if the request is made for vexation, delay, or
defeating justice.
Arguments (Summing up of the Case) (Section 234)

After the above mentioned two stages of evidence are complete, the prosecution has to sum up his case and the
pleader of the accused is entitled to reply. However under the Proviso of the Section 234 if the pleader of the
accused has raised any point of law, the prosecution may with the permission of the judge, make his submissions
with regard to such point of law.
The judge has a discretion to permit or not the prosecution to make its submissions. But normally the permission is
not refused unless the point of law raised by the accused is so insignificant as not to prejudice the case of the
prosecution in any way. Ordinarily it would be in the interest of justice that opportunity is afforded to the
prosecution to make its submissions.
In Gopal v. State of Haryana, 1993, the appellant was charged with murdering his wife due to poison consumption.
The defense plea claimed that the appellant's impotency caused her to remain unhappy and not give birth
throughout her life. However, the trial court rejected this plea, stating that it had been taken for the first time at the
trial stage and there was no evidence to prove the factum of impotency.

The judgment of acquittal or conviction (Section 235) is a crucial aspect of the trial process. After hearing arguments
and points of law, the judge must give a judgment in the case. If the accused is convicted, the judge must hear the
accused on the question of sentence and pass the sentence accordingly. In Santa Singh v. State of Punjab, AIR 1976
SC 2386, the SC noted that Section 235(2) allows both the prosecution and the accused to present facts and
material related to the question of sentence. However, care must be taken to ensure that this hearing is not abused
or turned into an instrument for unduly protracting proceedings.

The application of Section 235(2) arises only after the conviction is recorded, leaving the question of sentence,
which involves not only the accused but also society. The court is in a different domain where facts and factors
operate differently than those involved in the question of conviction. In Motilal v. State of MP (2004), the appellant
was convicted for offences under Sections 306 and 498A, IPC, and a minimum sentence was awarded. The appellant
did not seek an adjournment or grant of further time for making submission on sentence, making the plea of non-
compliance of Section 235(2) at this belated stage before the Supreme Court untenable.

You might also like