A is charged with murder by the trial court under Section 302 I.P.C. But the court convicts him for ‘abetment for murder’ without framing the charge for the same. A prefers an appeal for setting aside the conviction on the ground that no charge was framed for ‘abetment for murder’… Will the prosecution succeed?

Question: A is charged with murder by the trial court under Section 302 I.P.C. But the court convicts him for ‘abetment for murder’ without framing the charge for the same. A prefers an appeal for setting aside the conviction on the ground that no charge was framed for ‘abetment for murder’.

The prosecution opposes the admission of appeal on the ground that it is a minor offence and it is not necessary to frame the charge specifically in view of Section 222(2). Will the prosecution succeed? Give reasons for your answer.

Find the answer only on Legal Bites. [A is charged with murder by the trial court under Section 302 I.P.C. But the court convicts him for ‘abetment for murder’ without framing the charge for the same. A prefers an appeal for setting aside the conviction on the ground that no charge was framed for ‘abetment for murder’… Will the prosecution succeed?]

Answer

Section 222 of CrPC, provides as follows:

“(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence., and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it”.

This section applies to cases in which the charge is of an offence which consists of several particulars, a combination of some only of which constitutes a complete minor offence. The graver charge in such cases gives to the accused notice of all the circumstances going to constitute the minor one of which he may be convicted. The latter is arrived at by mere subtraction from the former. The section is not intended to apply to a collateral offence. The major and the minor offences must be cognate offences.

The test is not the gravity of punishment when a person is charged with an offence, consisting of several particulars, and if all the particulars are proved, then it will constitute the main offence, while if only some of those particulars are proved and their combination constitutes a minor offence, the accused can be convicted of the minor offence though not so charged.

But the Court must see that the accused is not prejudiced thereby. In determining the question of prejudice, the nature of the case made at the trial, the evidence is given and the line of defence of the accused are matters to be taken into consideration. [Karali Prasad Guru v. Emperor, (1916) ILR 44 Cal 358]

In the case of State of Maharashtra v. Rajendra Jawanmal Gandhi, AIR 1997 SC 3986 where the evidence showed that though the alleged rape was not actually committed, the accused did attempt to commit it, it was held by the Supreme Court that the accused could be convicted under section 376 read with section 511, though he was not separately charged with attempt to commit rape.

Similarly, in Dasarath Mandal, (1907) 34 Cal 325 the court held that a person charged with an offence under section 304 (culpable homicide) or with one under section 325 (grievous hurt) may be convicted of an offence under section 323 (hurt).

Thus, applying the aforesaid provisions and reasoning through judgement to the present case at hand, it is clear that the accused A charged with murder can be convicted for ‘abetment for murder’ without framing the charge for the same. Since it is a minor offence and it is not necessary to frame the charge specifically in view of Section 222(2). Thus, the argument of the prosecution will succeed.

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