1. State challenged the acquittal of an accused charged with murder, where the trial court convicted for abduction despite no formal charge being framed. (Para 1 , 2 )
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2026 Supreme(SC) 277
SUPREME COURT OF INDIA
ARAVIND KUMAR, AUGUSTINE GEORGE MASIH, JJ
The State of Uttar Pradesh – Appellant
Versus
Ram Swaroop @ Barkat – Respondents
Criminal Appeal No. 443 of 2012
Decided On : 18-03-2026
Advocates appeared:
For Appellant(s) : Mr. Goutham Shiv Shankar, Adv. Ms. Ruchira Goel, AOR
For the Respondent(s): Mr. Jagjit Singh Chhabra, Amicus Curiae Mr. Jagjit Singh Chhabra, AOR
For Appellant(s) : Mr. Goutham Shiv Shankar, Adv. Ms. Ruchira Goel, AOR
For the Respondent(s): Mr. Jagjit Singh Chhabra, Amicus Curiae Mr. Jagjit Singh Chhabra, AOR
IMPORTANT POINT
Minor offence – If two offences are cognate offences and main ingredients are common, offence punishable with lesser sentence can be considered as a minor offence with reference to other offence.
Headnote:
Indian Penal Code, 1860 – Section 364 – Criminal Procedure Code, 1973 – Section 222 – Kidnapping – Appeal against acquittal – Charge framed against appellant was for offence punishable under Section 302 IPC – If two offences are cognate offences and main ingredients are common, offence punishable with lesser sentence can be considered as a minor offence with reference to other offence – Offence under Section 364 of IPC cannot be said to be a lesser offence in relation to offence under Section 302 of IPC to be brought within meaning of Section 222 of Cr.P.C. – High Court was fully justified and correct in reversing finding of Trial Judge in convicting appellant for offence punishable under Section 364 though charged for 302 of IPC – There is no whisper either in complaint or in charge-sheet or in evidence tendered on behalf of prosecution that appellant had forcefully taken deceased from house or deceased having been abducted by appellant – Appeal dismissed. (Paras 8, 9, 10, 11 and 12)
Facts of the case:
State is questioning the correctness of Judgment of 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 Trial Court for offence punishable under Section 364 of IPC by reversing the said finding of the Trial Court.
Findings of Court:
The expression “minor offence” found in Section 222 is not defined under the Code, it can be discerned from context which is not merely that prescribed punishment is less than major offence.
Result : Appeal dismissed.
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2. The state argued for conviction on a lesser offence based on found evidence, while the accused contended that distinct, non-cognate offences require formal charges for conviction. (Para 6 , 7 )
3. The Court observed that abduction for murder and murder are distinct offences, requiring separate charges under the Code, and cannot be invoked as a minor offence under section 222. (Para 8 , 10 )
4. An accused cannot be convicted of a distinct, non-cognate offence for which no charge was framed, as it violates fair trial norms and exceeds the scope of minor offences. (Para 4 , 9 , 10 )
5. The appeal is dismissed, affirming the acquittal for the charge of abduction due to the absence of a formal charge in the indictment. (Para 11 , 12 )
6. Can an accused be convicted for a minor offence not included in the original charge?
Yes, but only if the offences are cognate and share common ingredients. The court held that 'minor offence' for the purpose of Section 222 Cr.P.C. means a cognate offence with a lesser sentence where ingredients are common, not merely one with a lesser potential punishment. (Para 9 , 10 )
7. Is an offence under Section 364 IPC considered a minor offence relative to Section 302 IPC?
No. The Court held that abduction for murder under Section 364 IPC and murder under Section 302 IPC are separate and distinct offences. They are not cognate offences, meaning one cannot be treated as a minor offence of the other under Section 222 Cr.P.C. for conviction purposes in the absence of a formal charge. (Para 8 , 10 )
ORDER
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.
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.
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 . It was held that though prosecution failed to prove the charge of murder under of , 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 of . 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 of .
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 of is not a minor offence compared to Section 302 of 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 of .
5. We have heard the arguments of Shri Goutham Shivshankar, learned Counsel appearing for the Appellant and Shri Jagjit Singh Chhabra, learned Advocate-on-Record appearing for the Respondent – Accused.
6. It is the contention of the learned Counsel appearing for the Appellant that High Court had erred in holding that conviction under Section 364 of IPC was invalid merely due to absence of formal charge, despite their being clear evidence and full opportunity having been afforded to the accused to defend his case. He would further elaborate his submission by contending that of is a cognate offence to Section 302 , and as such the trial court had rightly invoked Section 222 Cr.P.C to convict the appellant on a lesser charge which was based on the same set of facts. He would further contend that the High Court had ignored crucial circumstantial evidence proving direct role of the accused in alluring the deceased shortly before the murder and this has led to miscarriage of justice. On these grounds, he seeks for the impugned order being set aside and the Judgment of the trial court being restored. In support of the proposition that an accused can be convicted for a lesser offence though the charge for the bigger offence has been framed, he relies upon the judgment of this Court in Rafiq Ahmad alias Rafi vs. State of Uttar Prades
