Kerala HC Sets Aside Section 324 IPC Conviction Where No Charge Was Framed, Substitutes Section 323 Conviction

Justice Jobin Sebastian held that Section 324 IPC cannot be a minor offence of Section 332 IPC because both carry the same maximum punishment and their ingredients are not cognate, making a chargeless conviction under Section 324 legally unsustainable.

The High Court of Kerala, on 22 May 2026, partially allowed a criminal revision petition filed by Babu Avarachan, setting aside his conviction and two-year sentence under Section 324 of the Indian Penal Code. Justice Jobin Sebastian, sitting singly at Ernakulam, held that a conviction under Section 324 IPC cannot be sustained in the absence of a specific charge under that provision, because Section 324 is not a “minor offence” of Section 332 IPC within the meaning of Section 222 of the Code of Criminal Procedure. The court found, however, that the evidence on record established the commission of simple hurt under Section 323 IPC, which does qualify as a minor offence of Section 332 IPC, and substituted the conviction accordingly with a reduced sentence.

The Incident and the Charges

The case arose from Crime No. 692/2005 registered at Ernakulam Central Police Station. On 1 August 2005, at around 6.00 p.m., Babu Avarachan, the first accused, was driving a private bus bearing registration No. KL-7-AU-9176 along Sahodharan Ayyappan Road at overspeed. PW1, a police constable attached to Ambalamedu Police Station, questioned the accused about the speed. According to the prosecution, all three accused, who were employees of the bus, then abused PW1 in furtherance of their common intention. The first accused stabbed PW1 on the neck with a screwdriver, while the second and third accused fisted and beat him repeatedly.

The prosecution alleged that PW1 was on official duty at the time and that the accused acted with intent to deter him from discharging that duty. The accused were charged under Sections 294(b) and 332 read with Section 34 of the IPC. Six witnesses were examined as PW1 to PW6, documents were marked as Exts. P1 to P8, and the screwdriver was exhibited as MO1. The accused denied all incriminating circumstances under Section 313 CrPC and adduced no defence evidence.

What the Trial Court and Sessions Court Decided

The Judicial First Class Magistrate Court-II, Ernakulam, by judgment dated 2 June 2015 in CC No. 961/2005, acquitted all three accused of the charges under Sections 294(b) and 332 read with Section 34 IPC. The acquittal on Section 332 IPC was primarily because the trial court found no evidence that PW1 was engaged in the discharge of his official duty at the time of the incident.

Despite acquitting the first accused on the framed charges, the trial court convicted him under Section 324 IPC, even though no specific charge had been framed under that provision. He was sentenced to two years' simple imprisonment and a fine of Rs. 6,000/-. The Additional Sessions Court-IV, Ernakulam, confirmed this conviction and sentence by judgment dated 1 January 2016 in Criminal Appeal No. 272/2015. Babu Avarachan then filed Criminal Revision Petition No. 187 of 2016 before the High Court.

The Central Legal Question: Is Section 324 a Minor Offence of Section 332?

The sole question before Justice Sebastian was whether a court can convict an accused under Section 324 IPC when no charge was framed under that section. The answer turned entirely on Section 222 CrPC, which permits conviction for an offence not specifically charged, but only if that offence is a minor offence of the one charged.

The court set out the two conditions that judicial pronouncements have consistently applied to determine whether one offence is a “minor offence” of another: first, the punishment prescribed for the alleged minor offence must be lesser than that for the major offence; and second, the ingredients constituting the minor offence must be inherently included in, and form part of, the major offence charged. Both conditions must be satisfied.

The court referred to the Supreme Court's decision in Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577], where the apex court held that the test of a minor offence is not merely that the prescribed punishment is less. The two offences must be cognate, with their main ingredients in common, before the one carrying a lesser sentence can be regarded as a minor offence of the other.

Why Section 324 Fails the Minor Offence Test

Applying these principles, Justice Sebastian identified a critical divergence between the two provisions. Section 332 IPC requires proof that the accused voluntarily caused hurt to a public servant while such public servant was acting in the discharge of his official duty, or with intent to deter or prevent him from doing so. Section 324 IPC, by contrast, requires that the hurt be caused by means of a dangerous weapon or means. That ingredient, the use of a dangerous weapon or means, is an essential constituent of Section 324 IPC but is entirely absent from Section 332 IPC.

Because the ingredients of Section 324 IPC are not inherently included in the ingredients of Section 332 IPC, the first condition for treating Section 324 as a minor offence of Section 332 is not met. The court then addressed the punishment angle and found that the second condition also fails: both Section 324 and Section 332 IPC prescribe the same maximum punishment, namely imprisonment of either description for a term which may extend to three years, or fine, or both. Since the punishments are identical, Section 324 IPC cannot be regarded as carrying a lesser sentence than Section 332 IPC.

The court concluded that Section 324 IPC is not a minor offence of Section 332 IPC within the meaning of Section 222 CrPC. Accordingly, the conviction and sentence under Section 324 IPC, passed without a specific charge under that provision and confirmed in appeal, could not be legally sustained.

Section 323 IPC as the Correct Substituted Offence

Having set aside the Section 324 conviction, the court examined whether any other offence could be sustained on the evidence. Justice Sebastian held that the act of the accused would constitute an offence under Section 323 IPC for voluntarily causing simple hurt. The essential ingredients of Section 323 IPC are inherently subsumed within Section 332 IPC, and Section 323 IPC prescribes a lesser punishment than Section 332 IPC. Section 323 IPC therefore qualifies as a minor offence included within Section 332 IPC.

On the evidence, the court found that PW1's testimony was convincing and free from omissions and contradictions. Both the trial court and the appellate court had correctly accorded PW1's evidence a special status as that of an injured witness. The medical records showed that PW1 had sought treatment at General Hospital, Ernakulam, immediately after the incident with a history of assault; examination revealed a scratch mark on the right side of the neck and swelling at the right lower arm. The doctor who issued Ext. P2 wound certificate stated that the injuries could have been caused in the manner alleged by the prosecution. There was nothing on record to suggest that PW1 bore any animosity or ill-will towards the first accused.

The court held that the materials on record clearly established the commission of an offence under Section 323 IPC and that the revision petitioner was liable to be convicted thereunder.

Order

Criminal Revision Petition No. 187 of 2016 was allowed in part. The conviction and sentence imposed on Babu Avarachan for the offence under Section 324 IPC were set aside. In their place, the court found him guilty and convicted him under Section 323 IPC. He was sentenced to imprisonment till the rising of the court and directed to pay a fine of Rs. 1,000/-. In default of payment of fine, he is to undergo simple imprisonment for seven days. Subject to this alteration of finding and modification of sentence, the revision petition stands allowed in part.