A conviction for an uncharged offence is permissible under Section 222 Cr.P.C. only if the offence is 'minor'—defined by a lesser punishment and ingredients inherently subsumed within the charged crime. Identical sentencing ranges between two offences preclude one from being considered a minor offence of the other.

ORDER :

JOBIN SEBASTIAN, J.

1. This criminal revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, challenging the judgment of conviction and the order of sentence passed against the revision petitioner for the offence punishable under Section 324 of Indian Penal Code by the Judicial First Class Magistrate Court-II, Ernakulam, as per judgment dated 02.06.2015 in C.C. No.961/2005, which was confirmed in appeal by the Additional Sessions Court-IV, Ernakulam, by judgment dated 01.01.2016 in criminal appeal No.272/2015. The revision petitioner is the first accused in the said case and the remaining accused were acquitted by the trial court.

2. The prosecution case can be epitomized as follows;

The accused, three in number, were employees in a private bus bearing registration No.KL-7-AU-9176. While so, on 01.08.2015, at 6.00 p.m., the first accused drove the bus through Sahodharan Ayyappan Road at overspeed, which was questioned by CW1 (PW1), a Police Constable attached to Ambalamedu Police Station. Infuriated by the same, all the accused, in furtherance of their common intention, showered abuses against PW1 and the first accused, stabbed PW1 on the neck with a screwdriver and voluntarily caused hurt to PW1. The second and third accused also assaulted PW1 by fisting and beating him repeatedly. According to the prosecution, at the relevant time, PW1 was in the discharge of his official duties, and the accused acted with an intention to deter him from discharging the said duty. Thus, the accused is alleged to have committed the offences punishable under Sections 294(b) and 332 r/w 34 of the IPC.

3. In order to establish the guilt of the accused, the prosecution had examined six witnesses as PW1 to PW6 and the documents produced from the side of the prosecution were marked Exts.P1 to P8. A contradiction in the statement of the prosecution witness brought out during cross-examination was marked as Ext. D1. The alleged weapon of offence was exhibited, identified and marked as MO1. After the closure of the prosecution evidence, the accused were questioned under Section 313 of the Cr.P.C., during which they denied all the incriminating circumstances brought out against them in evidence. Thereafter, the accused were called upon to enter upon their defence and adduce evidence, if any, in support thereof.

However, no evidence whatsoever was adduced on the side of the defence.

4. After hearing both sides, the learned Magistrate found all the accused not guilty of the offence punishable under Sections 294(b) and 332 r/w 34 IPC and acquitted them on the said charges. However, the first accused was found guilty of the offence punishable under Section 324 of and convicted him, although no specific charge was framed under the said section. The first accused was sentenced to undergo simple imprisonment of two years and to pay a fine of Rs.6,000/- for the offence for which he was convicted.

5. Aggrieved by the judgment of conviction and the order of sentence passed by the trial court, the first accused preferred Criminal Appeal No.272/2015 before the Sessions Court, Ernakulam. The learned Additional Sessions Judge, who heard the appeal, confirmed the conviction and sentence imposed on the first accused by the trial court. Aggrieved thereby, the first accused has preferred the present revision petition.

6. Heard Sri. C. P. Udayabhanu, the learned counsel appearing for the revision petitioner, and Sri. G. Sudheer, the learned Public Prosecutor. The records were also perused.

7. This is a case in which a police officer was allegedly attacked by the ac