The Supreme Court has held that an accused who is charged with an offence under Section 302 of the IPC cannot be convicted for an offence under Section 364 of the IPC by taking recourse to Section 222 of the CrPC. The Court reasoned that Section 364 IPC is not a ‘minor offence’ in relation to Section 302 IPC. The two are separate and distinct offences, are not cognate, and their essential ingredients are not common.
Therefore, convicting an accused under Section 364 IPC without framing a specific charge for it, when the original charge was for Section 302 IPC, is a violation of fair trial norms and is not legally sustainable, added the Court.
A Two-Judge Bench comprising Justice Aravind Kumar and Augustine George Masih observed that the primary issue was whether the respondent could be convicted under Section 364 IPC when the charge was framed only under Section 302 IPC. The Bench upheld the view of the High Court that had overturned the conviction, stating that convicting the accused for the said charge without prior notice would cause serious prejudice.
On ‘Minor Offence’ under Section 222 CrPC, the Bench analysed whether Section 364 IPC could be considered a ‘minor offence’ in relation to Section 302 IPC, which would permit a conviction under Section 222 of the CrPC without a specific charge. The Bench observed that the expression ‘minor offence’ is not defined in the Code. The test is not merely that the prescribed punishment is less; for an offence to be considered minor, the two offences must be cognate, and their main ingredients must be common.
The Bench compared the composition of Section 364 IPC (kidnapping or abducting in order to murder) with Section 302 IPC (murder). It concluded that they are separate and distinct offences and, by no stretch of imagination, can be construed as cognate offences. It reiterated that if the composition of two offences is vastly different, one cannot be regarded as a minor offence vis-à-vis the other.
The Bench also noted that there was no evidence from the prosecution witnesses, i.e., the father and brother of the deceased, to suggest that the respondent had forcefully taken or abducted the deceased. In fact, the witness admitted that his statement regarding the murder was based on hearsay. This lack of evidence to support the ingredients of abduction further weakened the prosecution’s case for a Section 364 conviction.
Briefly, the prosecution’s case is that on Nov 25, 1998, the respondent-accused (Ram Swaroop) came to the house of the complainant (Puran) and took the complainant’s son, Dinesh, on the pretext of watching a movie. Dinesh did not return, and his dead body, with gunshot wounds, was discovered the following morning. Resultantly, an FIR was registered for the offence punishable under Section 302 of the IPC against the respondent and three others. The Additional Sessions Judge, Fast Track Court, acquitted all accused of the charge under Section 302 IPC but convicted the respondent for the offence punishable under Section 364 of the IPC.
The Trial Court held that while the charge of murder was not proven, the act of the accused luring the deceased from his house was established, which was sufficient to convict under Section 364 IPC. On appeal, the High Court of Allahabad acquitted the respondent, primarily on the ground that no charge under Section 364 IPC had been framed, which caused serious prejudice and violated fair trial norms. The High Court also held that Section 364 IPC is not a minor offence compared to Section 302 IPC.
Appearances:
AOR Ruchira Goel and Advocate Goutham Shiv Shankar, for the Appellant
AOR Jagjit Singh Chhabra, for the Respondent
