Can a person charged with an offence, which on facts proved reduces it to a minor offence, be convicted of that minor offence, although he was not charged with it?

Question: Can a person charged with an offence, which on facts proved reduces it to a minor offence, be convicted of that minor offence, although he was not charged with it? [WB J.S. 2000]

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Answer

Section 222 in the Code of Criminal Procedure, 1973 lays down provisions as to when the offence proved included an offence charged. The sub-section (2) of this provision runs as under:

“(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.

But when this is not the case, where the circumstances, embodied in the major charge, do not necessarily, and according to the definition of the offence, imputed by that charge, constitute the minor offence also, the principle no longer applies, because notice of the former does not necessarily involve notice of all that constitutes the latter. The section is not intended to apply to a collateral offence. The major and the minor offences must be cognate offences.

Illustration (b) appended to section 222 is relevant here. For instance, A is charged, under section 325 of the Indian Penal Code(45 of 1860), with causing grievous hurt. He proves that he had acted on grave and sudden provocation. He may be convicted under section 335 of that Code. Thus, we can say that a person charged with an offence, which on facts proved reduces it to a minor offence, be convicted of that minor offence, although he was not charged with it.

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