When Charge Was Framed For Lesser Offence, Court Can’t Convict Accused For Major Offence Without Alteration Of Charge: Allahabad HC
The Allahabad High Court, Lucknow Bench has held that when the charge was framed for a lesser offence, the Trial Court cannot convict the accused for a major offence without alteration of charge.
The Court was deciding a criminal appeal against the judgment of the Additional Sessions Judge, Pratapgarh by which the appellants (accused persons) were convicted under Section 307 of Indian Penal Code (IPC) read with Section 34 IPC.
A Single Bench of Justice Renu Agarwal observed, “Trial court has power to find the accused guilty for lesser offence even if charge is made for major offence, but when the charge was framed for lesser offence the court cannot convict the accused for major offence without alteration of charge. Hence when the prosecution has proved prosecution version regarding major offence under section 307 IPC and it is proved by the evidence that all the appellants acted with common intention then trial court rightly convicted appellants under section 307 IPC read with section 34 IPC.”
Advocate Sumit Kumar Srivastava appeared for the appellants while AGA Ajay Kumar Srivastava appeared for the State.
Brief Facts -
When the informant was planting paddy in his fields, the accused-appellants assaulted him with lathi-danda and fire arm due to old animosity. He tried to escape towards his house, but they started firing and his brother was stuck in the fields, filled with water. His brother was shot when he raised noise, the witnesses reached there and challenged the accused, and then all of them went to their house. Thereafter, an FIR was registered under Section 307 IPC and a report was prepared at the same time and entered into G.D. The Magistrate took the cognisance of the case and after compliance of provisions of Section 207 Cr.P.C., committed the case to the court of session for trial. The charges were framed against the appellants who abjured from the charges and claimed to be tried.
After the conclusion of evidences, the statements of appellants were recorded under Section 313 Cr.P.C. All the accused deposed in their statements that they were innocent and they have been falsely implicated in the case by the informant, as his father was in police department. All the accused persons denied the incident and stated that the case was registered based on a forged written report and witnesses deposed due to animosity. The trial court relied upon the prosecution version and held that the FIR was prompt, accused and informant were residents of the same village, therefore, they were well acquainted with everyone. Based on the evidence on record, the trial court convicted all the four accused under Section 307 read with Section 34 IPC, aggrieved by which, an appeal was filed by the appellants.
The Appellants contended that they were charged with section 307 IPC, but were convicted under section 307 read with section 34 IPC without amending the charge and hence the judgment is liable to be set-aside on that sole ground.
The Court held that the Trial court has power to find the accused guilty for a lesser offence even if charge is made for a major offence, but when the charge was framed for a lesser offence the court cannot convict the accused for a major offence without alteration of charge. "Hence when the prosecution has proved prosecution version regarding major offence under section 307 IPC and it is proved by the evidence that all the appellants acted with common intention then trial court rightly convicted appellants under section 307 IPC read with section 34 IPC. Hence there is no illegality in the judgment of trial court, if the accused-appellants are convicted under section 307 read with section 34 IPC", the Court held.
Accordingly, the High Court dismissed the appeal.
Cause Title- Phullan and 3 Others v. State of U.P. (Neutral Citation: 2023:AHC-LKO:75070)
