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.

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