Legal Provisions of Section 221 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Where it is doubtful what offence has been committed?
This section comes into operation where it appears that the accused person can be alternatively or cumulatively charged when it is doubtful whether the facts proved are capable of holding him guilty either of the principal offence or the abatement of the offence.
ADVERTISEMENTS:
Sub-section (2) gives wide power to the Court to convict the accused of an offence which is not subject of the charge provided (i) the offence for which the accused is found guilty is established by evidence; and (2) having regard to information available with the prosecution, it is doubtful as to which one or more offences would be established by evidence.
Commenting on the scope and applicability of the provisions contained in Section 221 of the Code, the Supreme Court in Nanak Chand v. State of Punjab, held that subsection (2) of the section is entirely dependent on the provisions of sub-section (1) of the section.
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The provisions of sub-section (1) would apply only in cases where there is no doubt about the facts which can be proved by evidence but a doubt arises as to which of the several offences have been committed on the proved facts in which case, any number of charges, can be framed. And if there has been an omission to frame a charge, then under sub-section (2), the conviction could be arrived at on the evidence although no charge for that particular offence has been framed.
ADVERTISEMENTS:
Where though alternative charges were framed, but evidence was led solely in support of one for which accused were convicted and no prejudice to accused was shown, it was held that the proceedings in such a case were not vitiated.
Reading both the sub-sections of this section together makes it clear that this section comes into operation when on admitted facts of the case a doubt arises whether the offence (illegal act or omission) committed by the accused falls under one or the other section of the Penal Statute.
Thus a person charged under Section 307, IPC may be convicted for an offence under Section 326 even if he was not charged under the latter section, if on the facts and evidence in the case he could be charged alternatively under the two sections.
In Sorbab Ali v. State of Assam the accused was charged of causing death of a pregnant lady by administering poison to her. The High Court set aside the conviction under Section 302, IPC but convicted him for an offence under Section 314, IPC on the same charge, holding that the broad facts necessary for Section 314, IPC were seen incorporated in the existing charge and, therefore, no prejudice was caused to the accused because of this alteration of the charge.
ADVERTISEMENTS:
In Suresh Kumar v. State of Haryana, the accused was charged under Section 302, I.P.C. for causing death of his wife. Deceased had died within nine months of marriage. It was alleged that she was being harassed as her parents failed to meet the demand of dowry made by the accused.
In this case the provision relating to presumption as to dowry death under Section 113-A of the Evidence Act would be attracted. But in the absence of framing of specific charge under Section 304-B, I.P.C., the conviction of the accused under Section 302, I.P.C. was set aside. The High Court however, remanded the case for fresh consideration on merits after framing of a proper charge.
