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-à-vis the other
offence.”
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 39 OF 2012
Mr. Shrinivas Guramkondu, V/s The State of Goa,
CORAM : U.V. BAKRE, J.
DATE : 17th November, 2014
Citation;2015 ALLMR(cri)1003
This appeal is filed by the accused no. 2 of Sessions
Case No. 35/2009 against the judgment and order dated
30.07.2011, passed by the learned Additional Sessions Judge
(FTC-I), South Goa, Margao (trial Court) in the said Sessions
Case, by which the accused no. 2 has been sentenced for
offence punishable under Section 506(ii) of the Indian Penal
Code (I.P.C., for short), to undergo rigorous imprisonment for
four years and to pay fine of ` 5,000/-, in default to undergo
rigorous imprisonment for four months.
which the accused had been in
The period during
custody has been set off in
terms of Section 428 of Criminal Procedure Code (Cr.P.C., for
short).
3.
In all four accused persons were tried by the trial
Court for offence punishable under Sections 307, 353, 189,
CRIA No. 39 of 2012
3
506(i) read with Section 34 of I.P.C. and Section 3 read with
Section 25 of the Arms Act.
4.
Charge was framed on 15.01.2010, in respect of the
said offences and the prosecution had examined 12 witnesses in
support of its case.
The statement of the accused persons
under Section 313 of Cr.P.C. was recorded.
The accused
persons denied the case of the prosecution and did not examine
any witness.
5.
The
learned
trial
Court
framed
points for
determination and after considering the entire material on
record held that the prosecution failed to prove the charge
against any of the accused persons for the offence punishable
under Sections 307, 353, 189, 506(i) read with Section 34 of
I.P.C. and Section 3 read with Section 25 of the Arms Act.
However, the learned trial Court held the accused nos. 2 and 3
guilty of the offence punishable under Section 506(ii) of I.P.C.
and convicted them as stated earlier.
The accused no. 2 is
aggrieved by the said judgment and order of conviction and
sentence passed by the learned trial Court and has preferred
CRIA No. 39 of 2012
4
this appeal.
6.
The point no. 2 for determination as framed by the
learned trial Court, reads thus:
“Whether the prosecution has proved that the
accused persons with their common intentions
gave threats of injury to the public servants
i.e. P.C. Shri Narendra Parit and P.C. Shri
Nilesh Sawant while they were doing their duty
as public servants and committed offence
punishable under Sections 189, 506(i) read
with Section 34 of I.P.C. ?”
The answer by the learned trial Court to the above
point is as follows:
“Partly proved to the extent that accused nos.
2 and 3 have committed offence punishable
under Section 506(ii) of I.P.C.”
7.
Section 222 of the Code of Criminal Procedure (Cr.P.C.)
provides as under:
“222.
When
offence
proved
included
in
offence charged – (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
authorise 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.”
8.
Admittedly, no charge was framed by the trial Court in
respect of the offence punishable under Section 506(ii) of I.P.C..
It is clear from the above provision of Section 222 of Cr.P.C.
that the Court would be entitled to convict the accused person
for offence which is minor in comparison for which the accused
is tried for. Let us therefore see whether the offence punishable
under Section 506(ii) of I.P.C. is minor as compared to the
offences punishable under Sections 189 and 506(i) of I.P.C..
Section 189 of I.P.C. reads as under:
“189. Threat of injury to public servant.—
Whoever holds out any threat of injury to any
public servant, or to any person in whom he
believes that public servant to be interested, for
the purpose of inducing that public servant to do
any act, or to forbear or delay to do any act,
connected with the exercise of the public functions
of such public servant, shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine, or
with both.”
Section 506 of I.P.C. provides as under:
“506. Punishment for criminal intimidation.—
Whoever
commits,
the
offence
of
criminal
intimidation shall be punished with imprisonment
of either description for a term which may extend
to two years, or with fine, or with both;
CRIA No. 39 of 2012
7
If threat be to cause death or grievous hurt,
etc.—And if the threat be to cause death or
grievous hurt, or to cause the destruction of any
property by fire, or to cause an offence punishable
with death or imprisonment for life, or with
imprisonment for a term which may extend to
seven years, or to impute, unchastity to a woman,
shall be punished with imprisonment of either
description for a term which may extend to seven
years, or with fine, or with both.”
9.
as
From the above, it is clear that Section 189 of I.P.C.
well
as
Section
506(i)
of
I.P.C.
is
punishable
with
imprisonment for a term which may extend to two years or with
fine or with both.
But Section 506(ii) of I.P.C. is punishable
with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.”
Thus,
offence under Section 506(ii) of I.P.C. cannot be termed as
minor offfence as compared to the offences under Sections 189
and 506(i) of I.P.C..
10.
In paragraph 20 of the impugned judgment, the
learned trial Court has observed that application of Section 307
of I.P.C. is ruled out since the ingredients of said offence, which
necessarily involve the intention to kill or the knowledge to that
effect, are missing from the facts of the case. The learned trial
Court, however, held that since the accused nos. 2 and 3
criminally intimidated the police constables by lifting beer
bottles, by aiming pistol towards P.C. Narendra Parit and then
by firing from the pistol while both the constables were running
away from the scene of offence, the ingredients of Section
506(ii) of I.P.C. are attracted in the instant case since threat
was to cause death or grievous injury to both the police
constables. Mr. Pavithran, learned Counsel for the accused no. 2
has relied upon the case of “Shamnsaheb M. Multtani Vs.
State of Karnataka”, [(2001) 2 SCC 577], wherein
Hon'ble Apex Court, at paragraphs 15 and 16 has held thus:
“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
the
different, situation.
'222.(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.'
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-à-vis the other
offence.”
11.
The ingredients of Section 307 of I.P.C. are totally
different from that of Section 506(ii) of I.P.C. The two offences
are
not
cognate
offences
wherein
main
ingredients
are
common. Similarly, the ingredients of Section 353 of I.P.C. are
different from the offence under Section 506(ii) of I.P.C. In my
view, a person charged with the offences punishable under
Sections 307, 353, 189, 506(i) read with Section 34 of I.P.C.
and Section 3 read with Section 25 of the Arms Act cannot be
convicted for an offence under Section 506(ii) of I.P.C., without
a charge under that Section. In the case of “Sabbi Mallesu
and Ors. Vs. State of Andhra Pradesh” (AIR 2006 SC 2747),
relied upon by learned Counsel for the accused no. 2, the
Hon'ble Supreme Court observed that the power of the Court
to alter the charges is neither in doubt nor in dispute but in
terms of Sub-section (2) of Section 246, Cr.P.C., it was
obligatory on the part of the learned sessions Judge to bring it
to the notice of the accused and explain the same to the
accused. It has been held that the same having not been done,
it cannot be said that the requirements of Section 246 of Cr.P.C.
stood complied with. In the case of “Alizar Pereira Vs. The
State of Goa”, [ 2014 ALL MR (Cri.) 1664], also relied upon
by the learned Counsel for the accused no. 2, this Court has
held that it is a settled position of law that the accused should
be made aware of the charge for which he is going to be tried
before the Court. If the charge is not framed under a particular
Section then to convict the accused of that particular charge for
that particular offence in the absence of a charge is an illegality.
12.
In the complaint (Exhibit-41) filed by PW7, Nagendra
Parit, there is no allegation that the accused no. 2 gave threat
to cause death or grievous hurt, or to cause the destruction of
any property by fire, or to cause an offence punishable with
death or imprisonment for life, or with imprisonment for a term
which may extend to seven years, or to impute unchastity to a
woman. There is no allegation that any threatening was given
with intent to cause alarm to PW6, Nagendra or to any one else.
Though Ayaz Sayeed, PW7 deposed that the accused no. 2 then
removed the gun and aimed at him and told that he was going
to kill them all, however, there is no corroboration to the said
statement from any other witness. Such a statement without
corroboration is not wholly reliable.
13.
In the circumstances above, the learned trial Court
could not have convicted the accused no. 2 and sentenced him
for offence punishable under Section 506(ii) for which, no
charge was framed as against him and also, no trial was held
for the said offence and lastly no sufficient evidence was there
on record, with regard to the said offence.
14.
In
view
of
the
above,
the
judgment
dated
30.07.2011, passed by the learned trial Court, thereby holding
the accused guilty under Section 506(ii) of I.P.C. cannot be
sustained. Hence, the said judgment, to that extent, is liable to
be quashed and set aside and the accused no. 2 is entitled for
acquittal.
15.
In the result, the appeal is allowed. The impugned
Judgment convicting and sentencing the accused no. 2 of the
offence under Section 506(ii) of I.P.C., is quashed and set aside.
The accused no. 2 is acquitted of the offence punishable under
Section 506(ii) of I.P.C. The accused no. 2 shall be released, if
not required in any other case. Muddemal properties to be dealt
with in the manner as directed by the trial Court.
16.
The appeal stands disposed of accordingly.
U. V. BAKRE, J.
EV
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