Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2026 INSC 256
CRIMINAL APPEAL NO. 443 OF 2012
THE STATE OF UTTAR PRADESH ….APPELLANT(S)
VERSUS
RAM SWAROOP @ BARKAT …RESPONDENT(S)
O R D E R
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
Signature Not Verified
Digitally signed by
NEHA GUPTA
Date: 2026.03.19
10:41:35 IST
Reason:
morning with gun shot wounds and based on a written report lodged by the
1
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 IPC. It was held that though
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 next day morning had been fully established and this was
sufficient to convict the appellant for the offence punishable under Section
364 of IPC. 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
Section 364 of IPC.
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
2
the said charge without prior notice would cause serious prejudice and had
violated the fair trial norms. It was further held that Section 364 of IPC is
not a minor offence compared to Section 302 of IPC 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 Section 364 of IPC.
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 Section 364 of IPC 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
3
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
1
Pradesh . He would also draw the attention of the Court to the Judgment
2
of Sangaraboina Sreenu vs. State of Andhra Pradesh , which has been
relied upon by the Trial Court by contending that same has been overruled
3
by this Court in Dalbir Singh vs. State of U.P. .
7. Per contra, the learned Counsel appearing for the Respondent – Accused
would support the impugned order and contends that offence punishable
under Section 364 is not a cognate offence of Section 302 of IPC but on
the other hand, it is independent, separate and distinct and as such when
the charge was framed for the offence punishable under Section 302 of IPC
the appellant could not have been convicted for the offence punishable
under Section 364 of IPC by taking umbrage under Section 222 of Cr.P.C.
He would submit that Trial Court itself had observed that there was no
motive on the part of the appellant and in the absence of motive the
appellant could not have been convicted for an offence punishable under
1
(2011) 8 SCC 300
2
(1997) 5 SCC 348
3
(2004) 5 SCC 334
4
Section 364 of IPC. In support of his submission, he has relied upon the
Judgment of this Court in Shamnsaheb M. Multtani vs. State of
4
Karnataka .
8. Having heard the learned Counsels appearing for the parties, we deem it
proper to note that the charge framed against the appellant was for the
offence punishable under Section 302. While appreciating the evidence
tendered by the prosecution, the learned Trial Judge took note of Section
362 of IPC to jump to a conclusion that accused Ram Swaroop –
Appellant, who had arrived at the house of the deceased and had called the
deceased to accompany him on the pretext of watching a movie would fall
within the ambit of committing the “abduction of deceased Dinesh” or in
other words, the accused had exercised deceit upon deceased for the
purpose of securing him from his house with the object and motive of
committing murder of the deceased. Hence, the learned Trial Judge held
the charge under Section 364 as proved and established, though charge
under Section 302 of IPC is sustainable. The Appellate Court found that
admittedly no charge had been 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 the primary condition for application of Section 221 is that the
4
(2001) 2 SCC 577
5
Court should have felt at the time of framing of the charge as to which of
the several acts (which may be proved) will constitute the offence on
account of the nature of the acts or series of acts alleged against the
accused. It held that in such a case the Section permits to convict the
accused of the offence of which he is shown to have committed though he
was not charged with it. By relying upon the Judgment of Shamnsaheb M.
Multtani (supra), it arrived at a conclusion that the offence under Section
364 of IPC cannot be said to be a lesser offence in relation to the offence
under Section 302 of IPC to be brought within the meaning of Section 222
of Cr.P.C.
9. 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. This Court in Shamnsaheb M.
Multtani (supra) has held as under :-
“ 16. What is meant by “a minor offence” for the purpose of Section
222 of the Code? Although the said expression is not defined in the
Code it can be discerned from the context that the test of minor
offence is not merely that the prescribed punishment is less than the
major offence. The two illustrations provided in the section would
bring the above point home well. Only if the two offences are
cognate offences, wherein the main ingredients are common, the
6
one punishable among them with a lesser sentence can be regarded
as minor offence vis-à-vis the other offence.
17. The composition of the offence under Section 304-B IPC is
vastly different from the formation of the offence of murder under
Section 302 IPC and hence the former cannot be regarded as minor
offence vis-à-vis the latter. However, the position would be
different when the charge also contains the offence under Section
498-A IPC (husband or relative of husband of a women subjecting
her to cruelty). As the word “cruelty” is explained as including,
inter alia,
“harassment of the woman where such harassment is
with a view to coercing her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand”.”
10. 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. Sub section (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. As noticed hereinabove, the expression
“minor offence” is not defined under the Code, as to whether the act of
abduction/ kidnapping defined under Section 364 can be construed as a
minor offence would be the question. Section 364 of the IPC would
7
indicate that if a person kidnaps or abducts any person in order that such
person may be murdered or may be so disposed of as to be put in danger of
being murdered 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.
11. We also note with benefit that there is no whisper either in the complaint
or in the chargesheet or in the evidence tendered on behalf of the
prosecution namely the deposition of PW-1 and PW-2 that is father and
brother of the deceased indicating that the appellant had forcefully taken
the deceased from the house or the deceased having been abducted by the
appellant. In fact, PW-2 admits 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. These factors cumulatively persuade us
to reject the contentions raised by the learned Counsel appearing for the
Appellant.
8
12. For the reasons stated above, we do not find any merit in this appeal and
consequently it stands dismissed. Pending applications, if any, shall stand
disposed of.
......................................................J.
[ARAVIND KUMAR]
........................................................J.
[AUGUSTINE GEORGE MASIH]
NEW DELHI;
th
MARCH 18 , 2026.
9
CRIMINAL APPELLATE JURISDICTION
2026 INSC 256
CRIMINAL APPEAL NO. 443 OF 2012
THE STATE OF UTTAR PRADESH ….APPELLANT(S)
VERSUS
RAM SWAROOP @ BARKAT …RESPONDENT(S)
O R D E R
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
Signature Not Verified
Digitally signed by
NEHA GUPTA
Date: 2026.03.19
10:41:35 IST
Reason:
morning with gun shot wounds and based on a written report lodged by the
1
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 IPC. It was held that though
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 next day morning had been fully established and this was
sufficient to convict the appellant for the offence punishable under Section
364 of IPC. 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
Section 364 of IPC.
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
2
the said charge without prior notice would cause serious prejudice and had
violated the fair trial norms. It was further held that Section 364 of IPC is
not a minor offence compared to Section 302 of IPC 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 Section 364 of IPC.
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 Section 364 of IPC 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
3
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
1
Pradesh . He would also draw the attention of the Court to the Judgment
2
of Sangaraboina Sreenu vs. State of Andhra Pradesh , which has been
relied upon by the Trial Court by contending that same has been overruled
3
by this Court in Dalbir Singh vs. State of U.P. .
7. Per contra, the learned Counsel appearing for the Respondent – Accused
would support the impugned order and contends that offence punishable
under Section 364 is not a cognate offence of Section 302 of IPC but on
the other hand, it is independent, separate and distinct and as such when
the charge was framed for the offence punishable under Section 302 of IPC
the appellant could not have been convicted for the offence punishable
under Section 364 of IPC by taking umbrage under Section 222 of Cr.P.C.
He would submit that Trial Court itself had observed that there was no
motive on the part of the appellant and in the absence of motive the
appellant could not have been convicted for an offence punishable under
1
(2011) 8 SCC 300
2
(1997) 5 SCC 348
3
(2004) 5 SCC 334
4
Section 364 of IPC. In support of his submission, he has relied upon the
Judgment of this Court in Shamnsaheb M. Multtani vs. State of
4
Karnataka .
8. Having heard the learned Counsels appearing for the parties, we deem it
proper to note that the charge framed against the appellant was for the
offence punishable under Section 302. While appreciating the evidence
tendered by the prosecution, the learned Trial Judge took note of Section
362 of IPC to jump to a conclusion that accused Ram Swaroop –
Appellant, who had arrived at the house of the deceased and had called the
deceased to accompany him on the pretext of watching a movie would fall
within the ambit of committing the “abduction of deceased Dinesh” or in
other words, the accused had exercised deceit upon deceased for the
purpose of securing him from his house with the object and motive of
committing murder of the deceased. Hence, the learned Trial Judge held
the charge under Section 364 as proved and established, though charge
under Section 302 of IPC is sustainable. The Appellate Court found that
admittedly no charge had been 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 the primary condition for application of Section 221 is that the
4
(2001) 2 SCC 577
5
Court should have felt at the time of framing of the charge as to which of
the several acts (which may be proved) will constitute the offence on
account of the nature of the acts or series of acts alleged against the
accused. It held that in such a case the Section permits to convict the
accused of the offence of which he is shown to have committed though he
was not charged with it. By relying upon the Judgment of Shamnsaheb M.
Multtani (supra), it arrived at a conclusion that the offence under Section
364 of IPC cannot be said to be a lesser offence in relation to the offence
under Section 302 of IPC to be brought within the meaning of Section 222
of Cr.P.C.
9. 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. This Court in Shamnsaheb M.
Multtani (supra) has held as under :-
“ 16. What is meant by “a minor offence” for the purpose of Section
222 of the Code? Although the said expression is not defined in the
Code it can be discerned from the context that the test of minor
offence is not merely that the prescribed punishment is less than the
major offence. The two illustrations provided in the section would
bring the above point home well. Only if the two offences are
cognate offences, wherein the main ingredients are common, the
6
one punishable among them with a lesser sentence can be regarded
as minor offence vis-à-vis the other offence.
17. The composition of the offence under Section 304-B IPC is
vastly different from the formation of the offence of murder under
Section 302 IPC and hence the former cannot be regarded as minor
offence vis-à-vis the latter. However, the position would be
different when the charge also contains the offence under Section
498-A IPC (husband or relative of husband of a women subjecting
her to cruelty). As the word “cruelty” is explained as including,
inter alia,
“harassment of the woman where such harassment is
with a view to coercing her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand”.”
10. 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. Sub section (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. As noticed hereinabove, the expression
“minor offence” is not defined under the Code, as to whether the act of
abduction/ kidnapping defined under Section 364 can be construed as a
minor offence would be the question. Section 364 of the IPC would
7
indicate that if a person kidnaps or abducts any person in order that such
person may be murdered or may be so disposed of as to be put in danger of
being murdered 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.
11. We also note with benefit that there is no whisper either in the complaint
or in the chargesheet or in the evidence tendered on behalf of the
prosecution namely the deposition of PW-1 and PW-2 that is father and
brother of the deceased indicating that the appellant had forcefully taken
the deceased from the house or the deceased having been abducted by the
appellant. In fact, PW-2 admits 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. These factors cumulatively persuade us
to reject the contentions raised by the learned Counsel appearing for the
Appellant.
8
12. For the reasons stated above, we do not find any merit in this appeal and
consequently it stands dismissed. Pending applications, if any, shall stand
disposed of.
......................................................J.
[ARAVIND KUMAR]
........................................................J.
[AUGUSTINE GEORGE MASIH]
NEW DELHI;
th
MARCH 18 , 2026.
9