JUDGMENT Honble S.N.H. Zaidi, J.—This criminal appeal has been filed by Ram Swaroop @ Barkat against the judgment and order dated 27.6.2006 passed by Additional Sessions Judge/Fast Track Court No. 1, Hathras in Sessions Trial No. 209/2001, State v. Hira and others, convicting the appellant and sentencing him to 10 years rigorous imprisonment and a fine of Rs. 5,000/- under Section 364 of Indian Penal Code, for short IPC, and in default of payment of fine further simple imprisonment for 5 months. 2. The prosecution case as revealed from the record, in brief, is that on 25.11.1998 at about 8.30 p.m. the appellant Ram Swaroop @ Barkat came to the house of complainant PW-1 Geetam Singh in Mohalla Naurangabad, town and P.S. Sikandra Rau of district Hathras and invited complainants son Dinesh to see movie and took Dinesh away with him but when Dinesh did not return in the night then on 26.11.1998 the complainant went to the house of appellant to inquire about his son but he was not present in his house and when the complainant was going towards Lakshmi Talkies then he saw the dead body of Dinesh lying in a Nala beside the road. There were injuries on the dead body and it was smeared with blood. Several persons, including PW-3 Ram Babu and PW-6 Sine Mistri, assembled on the spot and informed the complainant that on 25.11.1998 at about 10 p.m. when they were coming from the market, they saw Hira, Satish Chandra, Ramesh Chandra and appellant Ram Swaroop @ Barkat drinking wine in the candle light in the Veranda of Kanchan and Dinesh was sitting amongst them. 3. The complainant got the written report Exhibit Ka-1 scribed by one Mohar Singh and gave it at P.S. Sikandra Rau on 26.11.1998 at 8 a.m. On the basis of report an FIR under Section 302 IPC was lodged at the said P.S. against the appellant and three other persons; namely, Hira, Satish Chandra and Ramesh Chandra. It was also mentioned in the report that the wife of Dinesh had lodged a report in 1995 against Hira Lal for causing injuries and outraging her modesty and a case relating to it was pending in the Court and due to that enmity Hira Lal got Dinesh called through the appellant and murdered him. It was also mentioned in the report that the wife of Dinesh had lodged a report in 1995 against Hira Lal for causing injuries and outraging her modesty and a case relating to it was pending in the Court and due to that enmity Hira Lal got Dinesh called through the appellant and murdered him. After the report was lodged, the Investigating Officer, for short I.O. rushed to the place of occurrence and prepared the inquest report of the dead body of Dinesh and sent it for post-mortem examination through Constable Kanhaiya Lal and Kareem Khan. The I.O. also took the sample of plain and blood stained earth from the place of the recovery of dead body after preparing its custody memo Exhibit Ka-5. 4. P.W. 4 Dr. S.K. Sharma conducted the post-mortem examination of the body of Dinesh on 26.11.1998 at 3.35 p.m. and prepared the report Exhibit Ka-2. He found the following ante-mortem injuries on his dead body : (1) Gun shot wound of entry 1 cm x 1 cm x cavity deep (Brain) on the left side of face, 0.5 cm in front of left ear directing forward and upward, margins inverted, blackening and tattooing present around the wound with fracture of left mandible and right parietal bone. (2) Gun shot wound of entry 1 cm x 1 cm x cavity deep on left side of face at the left angle of mandible directing forward and upward towards right side of ear with fracture of mandible, blackening and tattooing present around the wound, margins inverted. According to doctors opinion the cause of death was shock and coma as a result of ante-mortem injuries and he would have died during the intervening night of 25/26.11.1998. 5. The I.O., after concluding the investigation submitted the charge-sheet Exhibit Ka-3 under Section 302, IPC against all the four accused named in the FIR. The Magistrate took cognizance on the charge-sheet and committed the case to the Court of Sessions for trial. The trial Court framed the charge of Section 302 read with Section 34, IPC against Hira, Satish, Ramesh Chandra and the appellant, who pleaded not guilty to the charge and claimed the trial. 6. The prosecution has examined Geetam Singh, Yogendra Kumar, Ram Babu, Dr. The trial Court framed the charge of Section 302 read with Section 34, IPC against Hira, Satish, Ramesh Chandra and the appellant, who pleaded not guilty to the charge and claimed the trial. 6. The prosecution has examined Geetam Singh, Yogendra Kumar, Ram Babu, Dr. S.K. Sharma, Pappu, Sine Mistri, Vrit Pal and Sub-Inspector Lekh Raj Singh as PW-1 to PW-8 respectively and produced documentary evidence, Exhibit Ka-1 to Exhibit Ka-8. Learned defence counsel has admitted the genuineness of certain documents under Section 294 of Code of Criminal Procedure, for short Cr.P.C., and dispensed with the formal proof of charge-sheet (Exhibit Ka-3), Chik FIR (Exhibit Ka-4), custody memo of plain and blood stained earth (Exhibit Ka-5), inquest report (Exhibit Ka-6), site plan of the place of recovery of the dead body of Dinesh (Exhibit Ka-7) and copy of G.D. No. 18 dated 26.11.1998 of P.S. Sikandra Rau relating to the registration of case under Section 302, IPC at Crime No. 485/1998 (Exhibit Ka-8). 7. PW-1 Geetam Singh is the father of the deceased and the complainant of the case. The deceased was taken away from his house by the appellant in his presence. He has fully supported the prosecution case and has proved written report Exhibit Ka-1. PW-2 Yogendra Kumar is the real brother of the deceased and he too was present in the house when the deceased was taken away by the appellant. He has also supported the said circumstance. PW-3 Ram Babu and PW-6 Sine Mistri had allegedly seen the deceased in the company of the appellant and others drinking wine in the Veranda of Kanchan at about 10 p.m. during the intervening night of 25/26.11.1998, but none of these witnesses has supported the prosecution case and have turned hostile. PW-5 Pappu and PW-7 Vrit Pal had allegedly heard the sound of firing and saw the appellant and other accused persons standing in the Gali carrying the arms during the intervening night of 25/26.11.1998 but they too have not corroborated the prosecution case and have turned hostile and the Public Prosecutor has failed to get anything elicited in their cross-examination in support of the prosecution case. PW-4 Dr. S.K. Sharma and PW-8 Sub-Inspector Lekh Raj (I.O.) are formal witnesses and have proved post-mortem report Exhibit Ka-2 and charge-sheet Exhibit Ka-3, respectively. 8. PW-4 Dr. S.K. Sharma and PW-8 Sub-Inspector Lekh Raj (I.O.) are formal witnesses and have proved post-mortem report Exhibit Ka-2 and charge-sheet Exhibit Ka-3, respectively. 8. The appellant and other accused persons in their statements recorded under Section 313, Cr.P.C. have denied their involvement in the murder of Dinesh. The appellant has said that he has been falsely implicated on account of village Party Bandi. Learned defence counsel has produced four documents, per list 56 Kha, in defence of the accused persons. 9. The learned trial Judge has not found the charge of Section 302, IPC proved against the accused persons, including the appellant, and acquitted them of the said charge. He has, however, found the appellant guilty of the offence of Section 364, IPC and sentenced him as stated above. Feeling aggrieved with the judgment and order of the trial Court, Ram Swaroop @ Barkat has preferred this appeal before this Court. 10. I have heard the learned counsel for the appellant, the learned AGA for the State and perused the impugned judgment and gone through the record of the case. 11. There is no direct evidence in respect of the incident of the murder of Dinesh in this case and the charge of Section 302, IPC has been framed against the appellant and others on the basis of certain circumstantial evidence. In a case based on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person (Hakum Singh v. State of Rajasthan, AIR 1977 SC 1063 ; State of U.P. v. Sukhbasi, AIR 1985 SC 1224 ; Padala Veravira Reddy v. State of A.P., AIR 1990 SC 79 ). The learned trial Court has found only one circumstance, i.e., taking away of the deceased by the appellant as proved and has not found proved the other incriminating circumstance, as alleged by the prosecution. The record shows that PWs-3, 5, 6 and 7, the witnesses of other incriminating circumstances, have not said a word in support of those circumstances and have not supported the prosecution case and have been declared hostile by the prosecution. The record shows that PWs-3, 5, 6 and 7, the witnesses of other incriminating circumstances, have not said a word in support of those circumstances and have not supported the prosecution case and have been declared hostile by the prosecution. The learned trial Court has held the appellant guilty of the offence of Section 364, IPC, only on the ground that the deceased was called and taken away by the appellant from his house and thereafter his dead body was recovered on the next morning is fully proved from the evidence of PW-1 Geetam Singh and PW-2 Yogesh Kumar. 12. Learned counsel for the appellant has challenged the impugned judgment on two grounds; firstly, that the alleged circumstance of taking the deceased away by the appellant for showing the movie is not sufficient to hold him guilty for the offence of Section 364, IPC and secondly, that the appellant could not be legally convicted for the offence of Section 364, IPC as he was neither charged nor tried for the said offence and he had been adversely affected in his defence, as the offence of Section 364, IPC is not a minor offence. 13. So far as the circumstance that the appellant had come to the house of Dinesh and invited him to see movie and took him away with him and thereafter his dead body was found on the next morning is concerned, PW-1 Geetam Singh and PW-2 Yogesh Kumar have corroborated this fact. It appears from the record that the deceased and his family members were having no enmity with the appellant otherwise deceased would not have gone with him and the appellant was also having no enmity with the deceased. It, however, appears that the deceased and his family members were inimical with co-accused Hira and others, as PW-1 has said that the wife of Dinesh had lodged a report against accused Hira for causing injuries etc. and in the trial relating to that incident, both Dinesh and his wife had deposed against him, and Hira had challenged to kill them after his acquittal and PW-2 had stated that Ramesh, who is the son of his uncle-in-law, had lodged a report of the murder of his father-in-law against accused Satish and his brother but except this circumstance the prosecution could not adduce sufficient evidence to bring home the charge of Section 302, IPC against the accused persons. However, since there is no evidence of enmity between the appellant and the deceased or his family members, therefore, it cannot be said that the appellant had any motive to kill Dinesh or that in order to kill Dinesh the appellant had abducted him. In my opinion, even if it is accepted that the deceased had gone with the appellant from his house to see the movie, as stated by PW-1 and 2, it cannot be held that the deceased was taken away by the appellant with the intention of causing his murder, in the absence of any motive. Besides that, this circumstance alone cannot be the sole basis for holding the appellant guilty for the offence of Section 364, IPC. In order to hold an accused guilty of any offence on the basis of circumstantial evidence, the circumstances should be so conclusive in nature that when taken together, they should form a complete chain with no gap in it and those circumstances should clearly point towards the guilt of the accused. As stated above, there is only one incriminating circumstance against the appellant which cannot be held to be sufficient or conclusive in nature to exclude the hypothesis of the innocence of the appellant. No chain can be formed with a single circumstance. The trial Court has also not found this circumstance as sufficient to hold him guilty for the charge of murder. In such a circumstance, the trial Court has committed grave error in holding the appellant guilty of abducting Dinesh for murder under Section 364, IPC. 14. So far as the legality of the conviction of the appellant under Section 364, IPC is concerned, admittedly no charge of the said section was framed by the trial Judge against the appellant and only a charge of Section 302/34, IPC was framed against him and other accused persons. Learned counsel for the appellant has referred to the observation of the Supreme Court in the case of Shamnsaheb M. Multtani v. State of Karnataka, AIR 2001 SC 921 , wherein three persons, including the husband, were charged under Section 302, IPC for committing the murder of a lady. The trial Court did not found the charge proved and acquitted all the accused persons. The trial Court did not found the charge proved and acquitted all the accused persons. In the Government appeal against the acquittal, the High Court found that there was no evidence against two accused persons and their acquittal was accordingly confirmed, but found the husband guilty and sentenced him under Sections 498-A and 304-B, IPC, against which the husband had preferred the appeal before the Supreme Court. The Apex Court has said that the Division Bench of the High Court has committed serious error in assuming that Section 304-B, IPC was included in the charge framed against the appellant. It has considered the question, whether in a case where prosecution failed to prove the charge under Section 302, IPC, but on the facts ingredient of Section 304-B, IPC have vinched to the fore, can the Court convict him of that offence, in the absence of the said offence being included in the charge. The Apex Court has observed that : "14. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal Court to convict the accused of an offence which is not included in the charge. The primary condition for application of Section 221 of the Code is that the Court should have felt doubt, at the time of framing 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. 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. But in the nature of the acts alleged by the prosecution in this case, there was absolutely no scope for any doubt regarding the offence under Section 302, IPC, at least at the time of framing of the charge. 15. Section 222(1) of the Code deals with a case "when 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. 15. Section 222(1) of the Code deals with a case "when 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 reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it." 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 one punishable among them with a lesser sentence can be regarded as minor offence vis-a-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-a-vis the latter." 15. A two Judge Bench of the Supreme Court has held in Lakhjeet Singh and another v. State of Punjab, 1994 Suppl. (1) SCC 173, that "if a prosecution failed to establish the offence under Section 302, IPC which alone was included in the charge, but if the offence under Section 306, IPC was made out in the evidence it is permissible for the Court to convict the accused of the latter offence. But without reference to the above decision, another two Judge Bench of the Supreme Court in Sangara Bonia Sreenu v. State of A.P., 1997 (34) ACC 818 (SC), has held that it is impermissible to do so. But without reference to the above decision, another two Judge Bench of the Supreme Court in Sangara Bonia Sreenu v. State of A.P., 1997 (34) ACC 818 (SC), has held that it is impermissible to do so. The rationale advanced by the Bench for the above position is this, "It is true that Section 222, Cr.P.C. entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried, but Section 306, IPC cannot be said to be a minor offence in relation to an offence under Section 302, IPC within the meaning of Section 222, Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302, IPC is homicidal death, those of Section 306, IPC are suicidal death and abetment thereof." 16. Learned AGA has contended that under Section 464, Cr.P.C. the finding of sentence passed by the trial Court cannot be held to be invalid merely on the ground that no charge of Section 364, IPC was framed against the appellant. Sub-section (1) of Section 464, Cr.P.C. reads as under : "No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby." 17. A conviction would be valid even if there is any omission or irregularity in the charge provided it did not occasion a failure of justice. The Apex Court in the case of Shamnsaheb M. Multtani v. State of Karnataka (supra) has held that one of the cardinal principles of natural justice is that no one should be condemned without being heard (audi alteram partem). However, if a particular aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the Court should say that since he was not given the opportunity to explain that aspect, there was failure of justice on account of non-compliance with the principle of natural justice. 18. However, if a particular aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the Court should say that since he was not given the opportunity to explain that aspect, there was failure of justice on account of non-compliance with the principle of natural justice. 18. In the instant case, it cannot be said that appellant was given any opportunity to explain the allegation of abducting Dinesh for murder as he had no notice of the offence of Section 364, IPC and he was defending the charge of Section 302, IPC alone. In the light of the law laid down by the Honble Apex Court in the case of Shamnsaheb M. Multtani v. State of Karnataka (supra), I am of the view that the offence of Section 364, IPC cannot be said to be a lesser offence in relation to the offence of Section 302, IPC within the meaning of Section 222, Cr.P.C. for the two offences are of distinct categories and it would lead to grave miscarriage of justice if the appellant is alternatively convicted under Section 364, IPC and sentenced to rigorous imprisonment and fine. 19. If the trial Court had found that the prosecution had failed to make out the case of Section 302, IPC against the accused persons but the offence of Section 364, IPC has been made out against one of the accused persons, then the trial Court was required to call upon that accused to enter upon his defence in respect of the said offence. Without affording such an opportunity to the accused a conviction under Section 364, IPC would lead to real and serious miscarriage of justice. 20. In view of the above, it is sufficiently established that the learned trial Court has committed serious error in holding the appellant guilty of the offence of Section 364, IPC. Consequently, this appeal succeeds and the impugned judgment and order dated 27.6.2006 convicting and sentencing the appellant under Section 364, IPC are hereby quashed. 21. The appellant is in jail, he be set at liberty forthwith, if his detention in jail is not required in any other case. 22. Office is directed to send the copy of the judgment to the trial Court for issuing the release order at once. ———