Whether court can convict an accused of a minor offence if he charged for a major offence?

 28. We may also make a reference to another three-Judge Bench judgment of this Court in the case of Shamnsaheb M.

Multtani vs. State of Karnataka [(2001) 2 SCC 577] which was not noticed in the case of Dalbir Singh (supra). In that case, the accused initially had been charged with an offence under  Section 302 IPC but was convicted for an offence under Section 304B IPC as according to the High Court there was no failure of justice. This Court found error in the judgment of the High Court convicting the accused of an offence under Section 304B as the accused was not put at notice of the adverse presumption that the Court is statutorily bound to draw on satisfaction of two ingredients of Section 304-B.

Therefore, this Court remanded the matter. It also noticed the conflict of views expressed in the cases of Lakhjit Singh (supra) and Sanagaraboina Sreenu (supra) and mentioned that in `cognate offences', the main ingredients are common and the one amongst them that is punishable with a lesser sentence can be regarded as a minor offence. The Court, finding that the ingredients of Sections 302 and 304B are different, held as follows:

"15. Section 222(1) of the Code deals with a case "when 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.

"222. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."

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-`-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-`-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".

18. So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?

XXX XXX XXX

30. But the peculiar situation in respect of an offence under Section 304-B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this:

Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him.

No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304-B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either  by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.

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Supreme Court of India

Rafiq Ahmed @ Rafi vs State Of U.P on 4 August, 2011

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Whether Court can convict accused charged under S 302 of IPC for an offence of dishonestly receiving stolen property?

The learned Public Prosecutor relying on sections 221 and 222 of the Code of Criminal Procedure, 1973 pressed for a conviction of the appellant for an offence punishable under section 411 of the Indian Penal Code on the ground that there is acceptable evidence that M.O. 1 and M.O. 7 series were recovered from a place pointed out by the appellant. We may say at once that neither section 221 nor section 222 applies to the facts of the case.

14. The prosecution has no case at the commencement of the trial that the appellant had committed robbery or theft or any other cognate offence. The charge against the appellant is specific and categoric and he has been charged only for an offence punishable under section 302 I.P.C. There are no facts or particulars alleged in the charge showing or indicating that the appellant had committed any offence other than murder. Sub-section (2) of section 221 is controlled by sub-section (1) as is clear from the opening words' "If in such a case" in sub-section (2). While sub-section (1) of section 221 corresponds with section 236; sub-section (2) corresponds with section 237 of the Code of Criminal Procedure, 1898. The general rule is that an accused person cannot be convicted of an offence in the absence of a specific charge in that respect; but sections 221 and 222 of the Code are the two exceptions to the said rule. The omission to frame a separate and specific charge in cases not covered by the above sections will be an incurable irregularity. The framing of a charge is a vital and important part of the trial. The omission to frame a charge is a serious defect which should be vigilantly guarded against, as in some cases it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted. It is clear from section 221 that the said section applies only to a case where a single act or series of acts alleged against an accused is of such a nature that it is doubtful which of the several offences, the facts which can be proved will constitute. This doubt or uncertainty, no doubt, arises at the commencement of the trial when the charge has been framed against the appellant. And this doubt can be resolved at the end of the trial. The learned State Prosecutor relied on sub-section (2) of section 222 of the New Code. That also, according to us, has no application to the present case. This section corresponds to section 238 of the Old Code. Relying on sub-section, it is argued that the facts proved in the case constitute a minor offence. The minor offence contemplated under sub-section (2) of this section must be a cognate offence in relation to the main offence. In a case where the minor offence disclosed in the evidence is one, the ingredients of which are entirely different from the main offence with which the accused was charged, he cannot be convicted in the absence of a specific charge for the minor offence proved by invoking the aid of sub-section (2) of section 222 of the Code. The major and minor offences must have the main ingredients in common. An accused charged with one offence which is entirely of a different type from the offence which is proved to have been committed cannot in the absence of a proper charge be convicted of that offence merely on the ground that the facts proved constitute a minor offence. Where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other. It is with reference to the main major offence referred to in section 222 of the New Code that an offence has to be treated as minor within the meaning of sub-section (2) of that section. We are fortified in our views in this regard by decisions of various High Courts. See Raghunath Singh v. State (1), Kanhaiya Lal v. Feliram (2) Makkhan v. Emperor (3) and Bheemappa v. State of Mysore (4). This apart, the recovery of M.O. 1 and M.O. 7 series has been treated and used by the prosecution only as a piece of evidence in support of the murder charge. In the absence of the charge for robbery or theft, the appellant cannot be convicted under section 411 I.P.C. and in the circumstances of the case, it cannot be said that he has not been prejudiced. The necessary ingredients of the said offence also have not been proved beyond reasonable doubt.

IN THE HIGH COURT OF KERALA

Decided On: 15.06.1977

Vazhambalakkal Thomachan  Vs.   State of Kerala

Hon'ble Judges/Coram:
P. Janaki Amma and S.K. Kader, JJ.

Citation : 1978 CriLJ 498, MANU/KE/0130/1977

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Leading Supreme Court Judgment on basic concept of minor offence under S 222 of CRPC

Section 222(1) of the Code deals with a case "when 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 reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it."{Para 16}

17. 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-a-vis the other offence.

18. The composition of the offence under Section 304B 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-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A 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."

19. So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge?

20. A two Judge Bench of this Court (K. Jayachandra Reddy and G.N. Ray, JJ) has held in Lakhjit Singh and anr. vs. State of Punjab MANU/SC/0905/1994 that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the court to convict the accused of the latter offence.

21. But without reference to the above decision, another two Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar, JJ) has held in Sangaraboina Sreenu vs. State of A.P. MANU/SC/0816/1997 : 1997CriLJ3955 : 1997CriLJ3955 that it is impermissible to do so. The rationale advanced by the Bench for the above position is this:

"It is true that Section 222 CrP.C. entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof."

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 907 of 1998

Decided On: 24.01.2001

Shamnsaheb M. Multtani Vs  State of Karnataka

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When it is permissible for court to convict accused of minor offence though he was not charged with it?

 Section 222(1) of the Code deals with a case when 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 reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it.

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.

Allahabad High Court

Dara Singh And Another vs State Of U.P. on 17 June, 2016

Bench: Amar Singh Chauhan

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When accused can be convicted U/S 302 of IPC even though he is charged U/S 396 of IPC?

For the reasons afore-recorded, we are of the considered view that no prejudice has been caused to the appellant by his conviction for an offence under Section 302 IPC though he was initially charged with an offence punishable under Section 396 IPC read with Section 201 IPC. Further, the nature of injuries namely three incised wounds, three abrasions and severing of the trachea, caused by a sharp-edged weapon as noticed by the High Court in para 34 of its judgment, indicate that the accused knew that the injury inflicted would be sufficient in the ordinary course of nature to cause death. The `prejudice' has to be examined with reference to the rights and/or protections available to the accused. The incriminating evidence had been clearly put to the accused in his statement under Section 313 Cr.P.C. The circumstances which constitute an offence under Section 302 were literally put to him, as Section 302 IPC itself is an integral part of an offence punishable under Section 396 IPC. The learned counsel appearing for the appellant has not been able to demonstrate any prejudice which the appellant has suffered in his right to defence, fair trial and in relation to the case of the prosecution. Once the appellant has not suffered any prejudice, much less a serious prejudice, then the conviction of the appellant under Section 302 IPC cannot be set aside  merely for want of framing of a specific/alternate charge for an offence punishable under Section 302 IPC. It is more so because the dimensions and facets of an offence under Section 302 are incorporated by specific language and are inbuilt in the offence punishable under Section 396 IPC. Thus, on the application of principle of `cognate offences', there is no prejudice caused to the rights of the appellant.

Supreme Court of India

Rafiq Ahmed @ Rafi vs State Of U.P on 4 August, 2011

Bench: B.S. Chauhan, Swatanter Kumar

 REPORTABLE

Citation;(2011)8 SCC300,2011 CRLJ4399

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Leading Supreme Court Judgment on cognate offences

 Usually an offence of grave nature includes in itself the essentials of a lesser but cognate offence. In other words, there are classes of offences like offences against the human

body, offences against property and offences relating to cheating, misappropriation, forgery etc. In the normal course of events, the question of grave and less grave offences would arise in relation to the offences falling in the same class and normally may not be inter se the classes. It is expected of the prosecution to collect all evidence in accordance with law to ensure that the prosecution is able to establish the charge with which the accused is charged, beyond reasonable doubt. It is only in those cases, keeping in view the facts and circumstances of a given case and if the court is of the view that the grave offence has not been established on merits or for a default of technical nature, it may still proceed to punish the accused for an offence of a less grave nature and content. We have already noticed that a person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentials are satisfied with the evidence on record. Examples of this kind have already been noticed by us like a charge being framed under Section 302 IPC and the accused being punished under Section 304, Part I or II, as the circumstances and facts of the case may demand. Furthermore, a person who is charged with an offence under Section 326 IPC can be finally convicted for an offence of lesser gravity under Section 325 or 323 IPC, if the facts of the case so establish. Alike or similar offences can be termed as `cognate offences'.

 This expression has also been recognized and applied to the criminal jurisprudence as well not only in the Indian system but even in other parts of the world. Such offences indicate the similarity, common essential features between the offences and they primarily being based on differences of degree have been understood to be `cognate offences'. Black's Law Dictionary (Eighth Edition) defines the expression `cognate offences' as follows:

cognate offences. A lesser offence that is related to the greater offense because it shares several of the elements of the greater offense and is of the same class or category. For example, shoplifting is a cognate offence of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property."

26. Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on

record, the Courts can always exercise its power to punish the accused for one or the other provided the accused does not suffer any prejudice as afore-indicated.

Supreme Court of India

Rafiq Ahmed @ Rafi vs State Of U.P. on 4 August, 2011

Bench: B.S. Chauhan, Swatanter Kumar

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