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Jharkhand High Court · body

2009 DIGILAW 1475 (JHR)

Kashmira Singh v. State of Jharkhand

2009-11-19

JAYA ROY

body2009
Order Heard the learned counsel for the appellants and the learned counsel for the State and perused the lower court record. 2. Learned counsel of the appellants has raised only one point for consideration for granting bail to the appellants. He has argued that although both the appellants along with others were charged under Sections 364A/34 and 387/34 I.P.C. but, after considering the evidence of the witnesses and materials on record, the trial court has convicted the appellants for the offence under Section 364/34 and under Section 387/34 I.P.C. Thus, without framing any charge under Section 364/34 I.P.C., the appellants cannot be convicted by the trial court for the offence committed under the said section. 3. Mr. Kashyap the learned Sr. Counsel has cited a number of decisions to fortify his submission which are as follows:- (i) 1955 S.C.A. Page-384 (389), Suraj vs. State of U.P. (ii) (1955) 2 S.C.R. Page-1140: AIR 1956 SC 116 : 1956 Cri.L.J. Page-291, Willie (William) Slaney vs. State of Madhya Pradesh. (iii) 1956 S.C. Page 731 Chikkarange vs. State of Mysore. (iv) A.I.R. 1959 (A.P.) Page-477, Bhupalli Malliah and Others. (v) 1993 CLCR Page 0255-SC Subran @ Subramanium & Ors. vs. State of Kerala. 4. Now the question arises as to whether the offence under Section 364 I.P.C. can be considered as a minor offence in relation to the offence under Section 364A I.P.C. In this regard Section 222 of the Code of Criminal Procedure is worth to be quoted which reads as under:- "(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. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied." 5. (4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied." 5. Therefore, provision of Section 222 Cr.P.C. applies to the cases where the charge of an offence consisting of several particulars, some of which, when combined and proved, form a complete minor• offence, the accused can be convicted for the said minor offence though not charged. The principle is that the graver charge gives notice to the accused of all the circumstances going to constitute the minor offence of which he can be convicted. It is very clear that the major and minor offences must be cognate offences which have the main and principal ingredients in common. When an accused is charged with an offence consisting of several particulars and if all the particulars are proved, then it will constitute the main offence. But if only some of those particulars are proved and their combination constitutes a minor offence, the accused can be convicted for the minor offence though he was not charged with it. But while doing so the court must see that the accused should not be prejudiced thereby. In determining the question of prejudice, the nature of the case made at the trial, the evidence given and line of defence are matters to be taken into consideration. 6. The words "minor offence" have not been defined by law but this should be interpreted in its ordinary sense and not in any technical sense. An accused can be convicted for minor offence if he has taken full advantage of cross-examining the prosecution witnesses and answering the questions put to him under Section 313 Cr.P.C. meaning thereby that no prejudice was caused to him. 7. In the instant case the appellants were charged under Section 364A I.P.C. but convicted under Section 364 I.P.C. I shall now consider the ingredients of Section 364 I.P.C. An offence under Section 364 has following essential ingredients:"(i) That the accused kidnapped or abducted any person; (ii) That such kidnapping or abduction was committed so that:(a) such person may be committed; or (b) be put in a danger of being murdered. 8. 8. After perusing the lower court records, I find that the questions put under Section 313 Cr.P.C. to the appellants and the answer given by them leave no manner of doubt that the appellants have been prejudiced in any manner by the omission of the charge under Section 364 I.P.C. 9. In the present case, according to the finding of the trial court, the prosecution has proved all the aforesaid ingredients of Section 364 I.P.C. against the appellants. Therefore, the trial court has rightly convicted the appellants under Section 364 I.P.C. 10. Considering the, decisions cited by the learned counsel of the appellants, in my opinion, the trial court has not committed any error in convicting the appellants under Section 364 I.P.C. without framing charge under the same. Therefore, I do not find any substance in the submission made by Mr. Kashyap. 11. From the evidence of P.Ws. 8, 9 and 10, I find that the appellants were caught and arrested by the police at Mango Chowk alongwith the victim Surender Kumar Tiwary, who was in the Indica Car. The victim Surender Kumar Tiwary was recovered and released from the possession of the appellants and other accused by the police. 12. For the reasons aforesaid, I am not inclined to grant bail to the appellants. Accordingly the prayer for their bail is rejected at this stage.