The State Of Uttar Pradesh vs Ram Swaroop @ Barkat

2026 INSC 256 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 443 OF 2012

THE STATE OF UTTAR PRADESH ….APPELLANT(S)

VERSUS

RAM SWAROOP @ BARKAT …RESPONDENT(S)

ORDER

1. State is questioning the correctness of the Judgment of the High Court of

Judicature at Allahabad rendered in Criminal Appeal No.3739 of 2009

dated 04.03.2009, whereunder the appellant came to be acquitted who had

been convicted by the Additional Sessions Judge, Fast Track Court No. - 1

in Sessions Trial No.209 of 2001 on 27.06.2006 for the offence punishable

under Section 364 of IPC by reversing the said finding of the Trial Court.

2. The gravamen of the prosecution case is: appellant had come to the house

of the complainant Shri Puran on 25.11.1998 and took Dinesh son of the

complainant from his home on the pretext of watching a movie and he

Signature Not Verified never returned. It was stated that his dead body was found the next Digitally signed by NEHA GUPTA Date: 2026.03.19

morning with gun shot wounds and based on a written report lodged by the 10:41:35 IST Reason:

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father of the deceased, an FIR came to be registered for the offence

punishable under Section 302 of IPC against the appellant and three others.

On the basis of chargesheet material and after accused pleaded not guilty

the Sessions Judge framed the charge against the accused persons on

12.09.2003.

3. To drive home the guilt of the accused persons the prosecution examined

its witnesses and learned Sessions Judge on appreciation of evidence by

Judgment dated 27.06.2006 convicted the appellant, Accused no.2 for the

offence punishable under Section 364 of IPC and acquitted all other

accused of the charge under Section 302 of IPC. It was held that though

prosecution failed to prove the charge of murder under Section 302 of IPC,

the fact that the accused took the deceased from his house and the body

was found next day morning had been fully established and this was

sufficient to convict the appellant for the offence punishable under Section

364 of IPC. It came to be further held that since no enmity was there

between deceased Ram Swaroop and the appellant, the act of luring the

deceased by the appellant was sufficient to convict the appellant under

Section 364 of IPC.

4. On appeal being filed the High Court by the impugned Judgment dated

04.03.2009 allowed the appeal primarily on the ground that no charge

under Section 364 of IPC was framed and held convicting the accused for

2 the said charge without prior notice would cause serious prejudice and had

violated the fair trial norms. It was further held that Section 364 of IPC is

not a minor offence compared to Section 302 of IPC and they involve

distinct legal ingredients and cannot be interchanged as permitted under

Section 222 of Cr.P.C. It was further held that in the absence of any motive

attributed to the appellant, on the sole circumstances of deceased had gone

with the appellant cannot sustain conviction under Section 364 of IPC.

5. We have heard the arguments of Shri Goutham Shivshankar, learned

Counsel appearing for the Appellant and Shri Jagjit Singh Chhabra,

learned Advocate-on-Record appearing for the Respondent – Accused.

6. It is the contention of the learned Counsel appearing for the Appellant that

High Court had erred in holding that conviction under Section 364 of IPC

was invalid merely due to absence of formal charge, despite their being

clear evidence and full opportunity having been afforded to the accused to

defend his case. He would further elaborate his submission by contending

that Section 364 of IPC is a cognate offence to Section 302, and as such

the trial court had rightly invoked Section 222 Cr.P.C to convict the

appellant on a lesser charge which was based on the same set of facts. He

would further contend that the High Court had ignored crucial

circumstantial evidence proving direct role of the accused in alluring the

deceased shortly before the murder and this has led to miscarriage of

3 justice. On these grounds, he seeks for the impugned order being set aside

and the Judgment of the trial court being restored. In support of the

proposition that an accused can be convicted for a lesser offence though

the charge for the bigger offence has been framed, he relies upon the

judgment of this Court in Rafiq Ahmad alias Rafi vs. State of Uttar

Pradesh1. He would also draw the attention of the Court to the Judgment

of Sangaraboina Sreenu vs. State of Andhra Pradesh2, which has been

relied upon by the Trial Court by contending that same has been overruled

by this Court in Dalbir Singh vs. State of U.P.3.

7. Per contra, the learned Counsel appearing for the Respondent – Accused

would support the impugned order and contends that offence punishable

under Section 364 is not a cognate offence of Section 302 of IPC but on

the other hand, it is independent, separate and distinct and as such when

the charge was framed for the offence punishable under Section 302 of IPC

the appellant could not have been convicted for the offence punishable

under Section 364 of IPC by taking umbrage under Section 222 of Cr.P.C.

He would submit that Trial Court itself had observed that there was no

motive on the part of the appellant and in the absence of motive the

appellant could not have been convicted for an offence punishable under

1 (2011) 8 SCC 300 2 (1997) 5 SCC 348 3 (2004) 5 SCC 334 4 Section 364 of IPC. In support of his submission, he has relied upon the

Judgment of this Court in Shamnsaheb M. Multtani vs. State of

Karnataka4.

8. Having heard the learned Counsels appearing for the parties, we deem it

proper to note that the charge framed against the appellant was for the

offence punishable under Section 302. While appreciating the evidence

tendered by the prosecution, the learned Trial Judge took note of Section

362 of IPC to jump to a conclusion that accused Ram Swaroop –

Appellant, who had arrived at the house of the deceased and had called the

deceased to accompany him on the pretext of watching a movie would fall

within the ambit of committing the “abduction of deceased Dinesh” or in

other words, the accused had exercised deceit upon deceased for the

purpose of securing him from his house with the object and motive of

committing murder of the deceased. Hence, the learned Trial Judge held

the charge under Section 364 as proved and established, though charge

under Section 302 of IPC is sustainable. The Appellate Court found that

admittedly no charge had been framed under Section 364 of IPC and took

note of Section 221 and 222 of Cr.P.C. which enables the Criminal Court

to convict the accused of an offence which is not included in the charge, by

holding the primary condition for application of Section 221 is that the

4 (2001) 2 SCC 577 5 Court should have felt at the time of framing of 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. It held that 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. By relying upon the Judgment of Shamnsaheb M.

Multtani (supra), it arrived at a conclusion that the offence under Section

364 of IPC cannot be said to be a lesser offence in relation to the offence

under Section 302 of IPC to be brought within the meaning of Section 222

of Cr.P.C.

9. The expression “minor offence” found in Section 222 is not defined under

the Code, it can be discerned from the context which is not merely that the

prescribed punishment is less than the major offence. In other words, if the

two offences are cognate offences and the main ingredients are common,

the offence punishable with lesser sentence can be considered as a minor

offence with reference to the other offence. This Court in Shamnsaheb M.

Multtani (supra) has held as under :-

“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

6 one punishable among them with a lesser sentence can be regarded as minor offence vis-à-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-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a women subjecting her to cruelty). As the word “cruelty” is explained as including, inter alia, “harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”.”

10. The composition of the offence under Section 304-B is vastly different

from the offence of murder indicated under Section 302 IPC and hence the

former cannot be regarded as a minor offence vis-a-vis the latter. Section

222(1) of the Code deals with a case where 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

reduces it to a minor offence he may be convicted of the minor offence

although he is not charged with it. As noticed hereinabove, the expression

“minor offence” is not defined under the Code, as to whether the act of

abduction/ kidnapping defined under Section 364 can be construed as a

minor offence would be the question. Section 364 of the IPC would

7 indicate that if a person kidnaps or abducts any person in order that such

person may be murdered or may be so disposed of as to be put in danger of

being murdered would be punishable with imprisonment for life or

rigorous imprisonment for a term which may extend to 10 years. This

provision when compared with Section 302 would clearly indicate that

they are separate and distinct offences and by no stretch of imagination can

be construed as cognate offences. As such, we are of the considered view

that the High Court was fully justified and correct in reversing the finding

of the learned Trial Judge in convicting the appellant for the offence

punishable under Section 364 though charged for 302 of IPC.

11. We also note with benefit that there is no whisper either in the complaint

or in the chargesheet or in the evidence tendered on behalf of the

prosecution namely the deposition of PW-1 and PW-2 that is father and

brother of the deceased indicating that the appellant had forcefully taken

the deceased from the house or the deceased having been abducted by the

appellant. In fact, PW-2 admits in his deposition that he had given the

statement that appellant, Satish and Ramesh had committed the murder of

his brother, on the basis of hearsay. These factors cumulatively persuade us

to reject the contentions raised by the learned Counsel appearing for the

Appellant.

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12. For the reasons stated above, we do not find any merit in this appeal and

consequently it stands dismissed. Pending applications, if any, shall stand

disposed of.

......................................................J. [ARAVIND KUMAR]

........................................................J. [AUGUSTINE GEORGE MASIH]

NEW DELHI;

MARCH 18th, 2026.

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