Appeal
State preferred appeal against the High Court acquitted the accused
1. State is questioning the correctness of the Judgment of the High Court of Judicature at Allahabad rendered in Criminal Appeal No.3739 of 2009 dated 04.03.2009, whereunder the appellant came to be acquitted who had been convicted by the Additional Sessions Judge, Fast Track Court No. – 1 in Sessions Trial No.209 of 2001 on 27.06.2006 for the offence punishable under Section 364 of IPC by reversing the said finding of the Trial Court.
Case of the prosecution
Accused took the deceased to watch a movie, but found out the next day as a dead body with gunshot wounds
2. The gravamen of the prosecution case is: appellant had come to the house of the complainant Shri Puran on 25.11.1998 and took Dinesh son of the complainant from his home on the pretext of watching a movie and he never returned. It was stated that his dead body was found the next morning with gun shot wounds and based on a written report lodged by the father of the deceased, an FIR came to be registered for the offence punishable under Section 302 of IPC against the appellant and three others. On the basis of chargesheet material and after accused pleaded not guilty the Sessions Judge framed the charge against the accused persons on 12.09.2003.
Since the accused took the deceased from his house and the body found next day morning is sufficient to convict the accused for the offence punishable under section 364 IPC
3. To drive home the guilt of the accused persons the prosecution examined its witnesses and learned Sessions Judge on appreciation of evidence by Judgment dated 27.06.2006 convicted the appellant, Accused no.2 for the offence punishable under Section 364 of IPC and acquitted all other accused of the charge under Section 302 of IPC. It was held that though prosecution failed to prove the charge of murder under Section 302 of IPC, the fact that the accused took the deceased from his house and the body was found next day morning had been fully established and this was sufficient to convict the appellant for the offence punishable under Section 364 of IPC. It came to be further held that since no enmity was there between deceased Ram Swaroop and the appellant, the act of luring the deceased by the appellant was sufficient to convict the appellant under Section 364 of IPC.
Section 364 IPC is not a minor offence compared to section 302 IPC
4. On appeal being filed the High Court by the impugned Judgment dated 04.03.2009 allowed the appeal primarily on the ground that no charge under Section 364 of IPC was framed and held convicting the accused for the said charge without prior notice would cause serious prejudice and had violated the fair trial norms. It was further held that Section 364 of IPC is not a minor offence compared to Section 302 of IPC and they involve distinct legal ingredients and cannot be interchanged as permitted under Section 222 of Cr.P.C. It was further held that in the absence of any motive attributed to the appellant, on the sole circumstances of deceased had gone with the appellant cannot sustain conviction under Section 364 of IPC.
Analysis
High Court came to a conclusion that section 364 IPC cannot be said to be a lesser offence in relation to section 302 IPC within the meaning of section 222 Cr.P.C
8. Having heard the learned Counsels appearing for the parties, we deem it proper to note that the charge framed against the appellant was for the offence punishable under Section 302. While appreciating the evidence tendered by the prosecution, the learned Trial Judge took note of Section 362 of IPC to jump to a conclusion that accused Ram Swaroop – Appellant, who had arrived at the house of the deceased and had called the deceased to accompany him on the pretext of watching a movie would fall within the ambit of committing the “abduction of deceased Dinesh” or in other words, the accused had exercised deceit upon deceased for the purpose of securing him from his house with the object and motive of committing murder of the deceased. Hence, the learned Trial Judge held the charge under Section 364 as proved and established, though charge under Section 302 of IPC is sustainable. The Appellate Court found that admittedly no charge had been framed under Section 364 of IPC and took note of Section 221 and 222 of Cr.P.C. which enables the Criminal Court to convict the accused of an offence which is not included in the charge, by holding the primary condition for application of Section 221 is that the Court should have felt at the time of framing of the charge as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. It held that in such a case the Section permits to convict the accused of the offence of which he is shown to have committed though he was not charged with it. By relying upon the Judgment of Shamnsaheb M. Multtani (supra), it arrived at a conclusion that the offence under Section 364 of IPC cannot be said to be a lesser offence in relation to the offence under Section 302 of IPC to be brought within the meaning of Section 222 of Cr.P.C.
What is minor offence not defined under the Code but explained by Hon’ble Supreme Court
9. The expression “minor offence” found in Section 222 is not defined under the Code, it can be discerned from the context which is not merely that the prescribed punishment is less than the major offence. In other words, if the two offences are cognate offences and the main ingredients are common, the offence punishable with lesser sentence can be considered as a minor offence with reference to the other offence. This Court in Shamnsaheb M. Multtani (supra) has held as under :-
“16. What is meant by “a minor offence” for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.
17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a women subjecting her to cruelty). As the word “cruelty” is explained as including, inter alia, “harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand””.
Section 364 IPC and section 302 IPC by no stretch of imagination can be construed as similar offences hence High Court is correct in reversing the conviction of section 364 though charged for section 302 IPC
10. The composition of the offence under Section 304-B is vastly different from the offence of murder indicated under Section 302 IPC and hence the former cannot be regarded as a minor offence vis-a-vis the latter. Section 222(1) of the Code deals with a case where a person is charged with an offence consisting of several particulars. The Section permits the Court to convict the accused of the minor offence though he was not charged with it. Sub section (2) deals with a similar, but slightly different situation. When a person is charged with an offence and facts are proved which reduces it to a minor offence he may be convicted of the minor offence although he is not charged with it. As noticed hereinabove, the expression “minor offence” is not defined under the Code, as to whether the act of abduction/ kidnapping defined under Section 364 can be construed as a minor offence would be the question. Section 364 of the IPC would indicate that if a person kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered would be punishable with imprisonment for life or rigorous imprisonment for a term which may extend to 10 years. This provision when compared with Section 302 would clearly indicate that they are separate and distinct offences and by no stretch of imagination can be construed as cognate offences. As such, we are of the considered view that the High Court was fully justified and correct in reversing the finding of the learned Trial Judge in convicting the appellant for the offence punishable under Section 364 though charged for 302 of IPC.
Conclusion
No evidence of accused kidnapped the deceased forcefully further PW.2 gave a statement that the some other persons murdered his brother on hearsay
11. We also note with benefit that there is no whisper either in the complaint or in the chargesheet or in the evidence tendered on behalf of the prosecution namely the deposition of PW-1 and PW-2 that is father and brother of the deceased indicating that the appellant had forcefully taken the deceased from the house or the deceased having been abducted by the appellant. In fact, PW-2 admits in his deposition that he had given the statement that appellant, Satish and Ramesh had committed the murder of his brother, on the basis of hearsay. These factors cumulatively persuade us to reject the contentions raised by the learned Counsel appearing for the Appellant.
Reference
Judgments involved or cited
- Criminal Appeal No. 3739 of 2009 (High Court of Judicature at Allahabad): The impugned judgment dated 04.03.2009, which acquitted the respondent by reversing the Trial Court’s conviction.
- Sessions Trial No. 209 of 2001 (Additional Sessions Judge, Fast Track Court No. 1): The original trial judgment dated 27.06.2006, which convicted the appellant under Section 364 of the IPC.
- Rafiq Ahmad alias Rafi vs. State of Uttar Pradesh (2011) 8 SCC 300: Cited by the Appellant’s counsel to support the proposition that an accused can be convicted of a lesser offence even if charged with a “bigger” offence.
- Sangaraboina Sreenu vs. State of Andhra Pradesh (1997) 5 SCC 348: Relied upon by the Trial Court but noted by the Appellant’s counsel as having been overruled.
- Dalbir Singh vs. State of U.P. (2004) 5 SCC 334: Cited as the authority that overruled the Sangaraboina Sreenu judgment.
- Shamnsaheb M. Multtani vs. State of Karnataka (2001) 2 SCC 577: Relied upon by the Respondent and the High Court to argue that Section 364 is not a “minor offence” relative to Section 302 and that the two are not cognate.
Acts and Sections
Indian Penal Code (IPC)
- Section 302: Punishment for murder. This was the original charge framed against the appellant.
- Section 364: Kidnapping or abducting in order to murder. The Trial Court convicted the appellant under this section despite no formal charge being framed for it.
- Section 362: Defines “abduction”. This section was used by the Trial Judge to conclude that luring the deceased away on the pretext of watching a movie constituted abduction.
- Section 498-A: Husband or relative of husband of a woman subjecting her to cruelty. This was cited within the Shamnsaheb M. Multtani judgment to illustrate how different offenses are composed.
- Section 304-B: Dowry death. Cited as an example of an offense with a “vastly different” composition compared to Section 302.
Code of Criminal Procedure (Cr.P.C.)
- Section 221: Addresses cases where it is doubtful which offense has been committed; it allows a court to convict an accused of an offense they are shown to have committed, even if not charged with it.
- Section 222: Governs when a person charged with one offense can be convicted of a “minor” or “cognate” offense.
- Section 222(1): Permits conviction for a minor offense when the particulars of the major charge include the minor one.
- Section 222(2): Allows conviction for a minor offense if the proved facts reduce the major offense to a minor one.
Party
The State of Uttar Pradesh (Appellant) vs. Ram Swaroop @ Barkat (Respondent) - Criminal Appeal No. 443 of 2012 - 2026 INSC 256 - March 18th, 2026 – Hon’ble Mr. Justice Aravind Kumar and Hon’ble Mr. Justice Augustine George Masih.
