While upholding an order of acquittal of a convict in a kidnapping and murder case, the Supreme Court has taken note of the fact that the expression “minor offence” found in Section 222 is not defined under the Code of Criminal Procedure. The Supreme Court explained that if the two offences are cognate offences and the main ingredients are common, the offence punishable with a lesser sentence can be considered as a minor offence with reference to the other offence.

The Apex Court was considering an appeal filed by the State questioning the correctness of the judgment of the Allahabad High Court acquitting the appellant of the charge under Section 364 of the IPC.

The Division Bench of Justice Aravind Kumar and Justice Augustine George Masih held, “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.”

Advocate Goutham Shiv Shankar represented the Appellant, while Amicus Curiae Jagjit Singh Chhabra represented the Respondent.

Factual Background

The appellant had come to the house of the complainant, took his son from his home on the pretext of watching a movie, and he never returned. His dead body was found the next morning with gunshot wounds. An FIR was registered for the offence punishable under Section 302 of the IPC against the appellant and three others. Based on the chargesheet material and after the accused pleaded not guilty, the Sessions Judge framed the charge against the accused persons. The Sessions Judge convicted the appellant, second Accused, for the offence punishable under Section 364 and acquitted all other accused of the charge under Section 302.

It was held that though the 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 the next morning had been fully established, and this was sufficient to convict the appellant for the offence punishable under Section 364 of IPC. On appeal being filed, the High Court, by the impugned Judgment, allowed the same and held that in the absence of any motive attributed to the appellant, on the sole circumstances that the deceased had gone with the appellant and the conviction could not be sustained under Section 364 of IPC.

Reasoning

On a perusal of the facts of the case, the Bench noted that the Trial Judge held the charge under Section 364 was proved and established, though the charge under Section 302 of the IPC was sustainable. The Appellate Court found that admittedly no charge was 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 that 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) would constitute the offence on account of the nature of the acts or series of acts alleged against the accused.

The Bench stated, “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. Subsection (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.”

The Bench explained that Section 364 of the IPC indicates that if a person kidnaps or abducts any person so that such person may be murdered or may be so disposed of as to be put in danger of being murdered, it 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”, it added.

The Bench further noticed that there was no discussion either in the complaint or in the chargesheet or in the evidence tendered on behalf of the prosecution, namely the deposition of the father and brother of the deceased, indicating that the appellant had forcefully taken the deceased from the house or that the deceased had been abducted by the appellant. The Bench further noticed that the deceased’s brother admitted 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.

Thus, finding no merit in the appeal, the Bench dismissed the same.

Cause Title: The State of Uttar Pradesh v. Ram Swaroop @ Barkat (Neutral Citation: 2026 INSC 256)

Appearance

Appellant: Advocate Goutham Shiv Shankar, AOR Ruchira Goel

Respondent: Amicus Curiae Jagjit Singh Chhabra

Click here to read/download Judgment


Justice Aravind KumarJustice Augustine George Masih

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.