Supreme Court: Accused charged of a major offence can be convicted of minor offence if found guilty

 Needless to mention, it is well settled by a catena of decisions of this Court that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of a minor offence if the facts established indicate that such minor offence has been committed.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1224 of 1999

Decided On: 19.11.1999

State of Himachal Pradesh Vs. Tara Dutt and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik, M. Srinivasan and M.B. Shah, JJ.

Author: G.B. Pattanaik, J.

Citations: AIR 2000 SUPREME COURT 297, 2000 (1) SCC 230,  MANU/SC/0729/1999.

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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.

Reportable

Supreme Court of India

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

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Whether accused can be punished for major offence after being charged with minor offence?

Section 215 Cr.P.C. provides that omission to frame charge will not be treated as material unless it has resulted in any failure of justice by accused being misled by such error or omission. Such failure of justice includes violation of legal rights of accused. In judging a question of prejudice, the court must act with broad vision and look to the substance of the case and main concern should be to ensure as to whether the accused knew what he was being tried for and whether the facts established were explained to him fairly and whether the accused had been given full and fair opportunity to defend him. Provisions of Section 222(1) CrPC provides that when accused is charged with one offence, he may be convicted for other minor offence of similar nature. The question remains to be considered is as to whether accused can be punished for major offence after being charged with minor offence, if there is no prejudice and quantum of punishment is not more than that of minor offence. 

18. In this matter, the accused-appellant was charged for offence under Section 304-B I.P.C., in which maximum punishment was imprisonment for life, but he was punished for the charge under Section 302 I.P.C., which was a major offence, in which maximum punishment is death sentence. Apart from it, the nature of both the offences are different and law of evidence relating to both the offences are entirely different. Therefore, it is immaterial that in present case, this finding of learned Sessions Judge may be correct that having knowledge of facts of the charge, nature of evidences adduced. In spite of the understanding of accused to defend the charge of murder, the questions put to him under Section 313 Cr.P.C. regarding offence of murder and opportunity to adduce evidence apparently for the murder charge, there is always a possibility that accused-appellant was not heard and afforded opportunity to defend his case for major offence of Section 302 I.P.C. Because of not being charged for the same. Therefore, considering the verdict of Apex Court in Shamnsaheb M. Multtani's case (supra), as above, this appeal deserves to be allowed for him only. 

ALLAHABAD HIGH COURT

 JAIL APPEAL No. - 4846 of 2011 

Tejveer @ Pappi V  State 

Hon'ble Arvind Kumar Tripathi, J. 

Hon'ble Pramod Kumar Srivastava, J. 

Citation: 2017 CRLJ(NOC) 144 ALL

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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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