SHAMNSHAEB M. MULTTANI versus STATE OF KARNATAKA

Citation: [2001] 1 S.C.R. 514 · Decided: 24-01-2001 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
SHAMNSHAEB M. MUL TT AN! 
v. 
STATE OF KARNATAKA 
JANUARY 24, 2001 
s· 
[K.T. THOMAS, R.P. SETHI AND B.N. AGRAWAL, JJ.] 
Penal Code, 1860: 
Section 302 and 304-8-Accused, along with his brother and father, 
C charged under Section 302 for murdering his wife-Trial court acquitted the 
accused as all the witnesses turned hostile-However, High court convicted 
the accused under Section 304-8 although no charge was framed by the trial 
court-Validity of-Held: Accused cannot be convicted alternatively under 
Section 304-B without the said offence being specifically put in the charge-
D Hence, conviction under Section 304-8 set aside-Case remanded to trial 
court for disposal afresh after giving opportunity to the accused. 
Code C!f Criminal Procedure, 1973: 
Section 22 I-Conviction of qccused-For offence not included in the 
E charge-Power of criminal court-Scope and ambit of-Held: It is permissible 
for the court to convict the accused for an offence not charged if there is 
doubt as to which of the several acts constitute the offence. 
F 
G 
H 
Section 222-Minor offence-Tests to determine-Held: The test of 
minor-offence is not merely that the prescribed punishment is less than the 
major offence-Only if the offences are cognate ones, wherein the main 
ingredients are common, does the offence punishable with a lesser sentence 
constitute a minor offence. 
Criminal Trial: 
Burden of proof-Held: Always lies on the prosecution-It never shifts 
to the accused-Accused can show that the prosecution has failed to make 
out a case against him-No compulsory presumption will assist the 
prosecution in such a situation. 
Words and Phrases: 
514 
j 
..._... 
SHAMNSHAEB M. MUL TT ANI v. STATE OF KARNATAKA 
. SIS 
"Minor offence "-Meaning of-In the context of S.222 of the Code of A 
--. 
Criminal Procedure, 1973. 
The appellant, along with his brother and father, was tried by the trial 
court under Section 302 of the Penal Code, 1860 for the murder of the 
appellant's wife. As all the witnesses turned hostile, trial court acquitted 
them. On appeal, the High Court convicted the appellant under Section 304- B 
• 
B IPC although no charge was framed by the trial court. Hence this appeal . 
The following question arose before this Court:-
Whether the accused who was charged under Section 302 IPC could 
be convicted alternatively under S.304-B IPC, without the said offence being c 
specifically put in the charge? 
Allowing the appeal, the Court 
HELD: I.I. Sections 221 and 222 of the Code of Criminal Procedure, 
1973 are the two provisions dealing with the power of a criminal court to D 
conv~ct 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 offraming the charge, as to which of the 
,Ai 
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 E 
he is shown to have committed though he was not charged with it." 
(520-H; 521-A-B( 
1.2. Section 222 (1) of the Code permits the court to convict the 
• 
accused "of the minor offence, though he was not charged with it." Although 
the expression "minor offence" is not defined in the Code it can be discerned F 
from the context that the test of minor offence is not merely that the prescribed 
punishment is less than that for the major offence. 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. (521-C-EJ 
1.3. The composition of the offence under Section 304-8 of the Penal 
Code, 1860 is vastly different from the formation of the offence of the murder 
under Section 302 IPC and hence the former cannot be regarded as minor 
offence vis-a-vis the latter. (521-Fl 
G 
Lakhjit Singh v. State of Punjab, (19941 Supp. 1 SCC 173 and H 
516 
SUPREME COURT REPORTS 
(200 l] 1 S.C.R. 
A Sangraboina Sreenu v. State of A.P., 119971 5 SCC 348, referred to. 
2. One of the cardinal principles of natural justice is that no man 
should be condemned without being heard, ("Audi alterum partem"). But the 
law reports are replete with instances of courts hesitating to approve the 
contention that failure of justice had occasioned merely because a person 
B w

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