RAMESH MADHAV BAPAT, J, J.

( 1 ) HEARD the learned Public Prosecutor at the admission stage.

( 2 ) THE accused-respondent was prosecuted for offences punishable under Sections 302 and 379 of the Indian penal Code in Sessions Case No. 24 of 1997 tried by the learned Sessions Judge, nizamabad.

( 3 ) ON evidence, the learned Sessions Judge held that the prosecution could not prove the charge against the accused- respondent under Section 302 of the Indian penal Code, but held that the charge under section 379 of the Indian Penal Code was proved. Therefore, the accused-respondent was acquitted of the charge under section 302 of the Indian Penal Code, but he was convicted for the offence punishable under Section 379 of the Indian Penal Code and was sentenced to suffer imprisonment for two years.

( 4 ) THE State of Andhra Pradesh felt aggrieved in not convicting the accused- respondent for the offence punishable under section 302 of the Indian Penal Code, and therefore, filed the present appeal.

( 5 ) THE learned Public Prosecutor has taken us through the judgment of the trial Court. The trial Court held that it has been the case of the prosecution that the accused-respondent had purchased pesticides and mixed the same in the cooked food of the deceased and thereby caused his death.

( 6 ) ADMITTEDLY there are no direct eye- witnesses. But to prove that the accused- respondent had purchased pesticides, the owner of the shop, from where the accused allegedly purchased the pesticides, was examined as PW3. The prosecution tried to prove Ex. P15 receipt saying that under the said receipt the accused-respondent purchased pesticides. But the said receipt was produced in the Court about one year after the offence. Therefore, the learned Sessions Judge held that it is not difficult for the prosecution to manipulate the said receipt and produce it before the Court. The learned Sessions judge therefore, rejected that part of the evidence. If this part of the evidence is rejected, then nothing remains in the prosecution case to connect the accused with the crime. Therefore, we are of the considered view that the learned Sessions judge has rightly acquitted the accused.

( 7 ) IN the last paragraph of the judgment the learned Sessions Judge observed that the accused committed theft of gold chain of PW1 who happened to be the wife of the deceased. The learned judge further held that no specific charge was framed against the accused-respondent for an offence punishable under Section 379 ipc. The accused can be convicted for an offence punishable under Section 379 ipc because the offence punishable under Section 379 IPC is a lesser offence that the offence punishable under section 302 IPC. This observation is totally wrong.

( 8 ) THE expression of minor offence has not been defined anywhere in the Indian penal Code. It is to be taken not in technical but in ordinary sense. It has no reference with the quantum of punishment prescribed under a particular section. In the present case, the learned Judge might have thought that the offence punishable under section 302 IPC prescribed the punishment of death or imprisonment for life. Whereas the offence of theft punishable under section 379 IPC prescribes much lesser punishment. Taking the wrong view of the matter, the learned Judge appears to have convicted the accused-respondent herein for an offence punishable under Section 379 ipc.

( 9 ) SECTION 222 (2) Cr. PC lays down that when a person is charged with an offence and the facts are not proved, which reduces it into a minor offence, he may be convicted of minor offence though he is not charged with it. For example if a person is of a charge of an offence punishable under Section 302 IPC the accused can be convicted for an offence punishable under Section 304 Part I or part II IPC or the fact discloses that only the offence under Section 326 or 325 or 324 or 323 IPC is proved, even though there is no specific charge of the above offences, the accused can

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