Exploring Conviction Dynamics for Offences in Criminal Law

When a criminal trial concludes, the court does not always face a simple binary choice between full conviction and acquittal. What happens when the prosecution charges an accused with a serious offence, but the evidence at the end of trial tells a different – and less grave – story? Indian criminal law has a clear and considered answer: the court can convict the accused for the lesser offence that the evidence actually proves. This principle is at the heart of what is known as “conviction for an offence charged,” and it reflects one of the most pragmatic and fair-minded features of the Indian criminal justice system.

The legal foundation: what does “conviction for offence charged” mean?
Section 222 CrPC and its successor: Section 245 BNSS
The concept of an “included” offence: what qualifies?
Practical illustrations: how courts apply this principle
Criminal breach of trust: the carrier example
Grievous hurt reduced by provocation
Attempt when the completed offence is not proved
Murder reduced to culpable homicide
The one-way street: courts cannot convict upward
The “cognate” test and preventing prejudice
Doubtful cases: Section 244 BNSS and alternative charges
Why this flexibility matters for justice

The legal foundation: what does “conviction for offence charged” mean?

At the outset of every criminal trial, the court frames a charge against the accused. A charge is a formal written statement specifying the exact offence the accused is alleged to have committed. Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 – which replaced the older Code of Criminal Procedure (CrPC) – Sections 234 to 247 comprehensively govern the framing and joinder of charges. The charge defines the boundaries of the trial, and the accused must be put on fair notice of exactly what case they have to meet.

But evidence gathered before trial does not always match perfectly with what emerges during trial. A charge of murder may be supported by evidence that proves only culpable homicide not amounting to murder. A charge of causing grievous hurt may, through the accused’s own proof of provocation, collapse into simple hurt. The question that arises is this: should the accused walk free simply because the prosecution overshot the precise legal label? The answer, firmly, is no. This is where the concept of conviction for the offence charged – and the allied power to convict for a lesser included offence – comes in.

Section 222 CrPC and its successor: Section 245 BNSS

Under the old CrPC, Section 222 was the cornerstone provision. It allowed a court to convict an accused of a minor or lesser offence included within the charged offence, even if that lesser offence was never separately charged. The BNSS, 2023 carries this principle forward, virtually unchanged in substance, under Section 245. Section 245 BNSS has four key sub-sections:

Sub-section (1) – When the charged offence has multiple ingredients (particulars), and only some of those ingredients are proved, but that combination of proved particulars constitutes a complete lesser offence, the accused can be convicted of the lesser offence even though it was never separately charged.

Sub-section (2) – When an accused is charged with an offence, and the facts proved during trial operate to reduce it to a minor offence (e.g., provocation reducing grievous hurt to a lesser hurt), the court can convict for the reduced, lesser offence.

Sub-section (3) – When an accused is charged with a completed offence, they can be convicted for an attempt to commit that offence, even if the attempt was never independently charged.

Sub-section (4) – A critical safeguard: none of the above operates to permit conviction for a minor offence if the procedural conditions required to initiate proceedings for that minor offence have not been satisfied. This prevents the provision from being used as a backdoor to convict for offences that could not have been independently prosecuted.

The concept of an “included” offence: what qualifies?

The central legal idea in Section 245 BNSS is the notion of an included offence – a lesser offence that is already embedded within the greater charged offence. An offence is considered included when it shares some, but not all, of the ingredients of the charged offence, and when those shared ingredients, standing alone, constitute a complete and distinct offence under the law.

Crucially, the Karnataka High Court in Junaid B v. State of Karnataka clarified that the minor offence must be a cognate offence of the major offence – it must share some of the constituting ingredients of the main offence. A completely different offence, with entirely different ingredients, does not qualify. The court also emphasised that the test is not merely the gravity of punishment but whether the proved facts constitute some of the elements of the charged offence.

This is an important distinction. An accused charged with attempt to murder under Section 307 IPC (now BNS equivalent) can be convicted for causing grievous hurt under Section 326 IPC (now BNS equivalent) because these offences share overlapping ingredients of intentional injury. But a court cannot use this provision to convict a person charged with, say, theft, for an entirely unrelated offence like defamation – the two share no common ingredients at all.

Practical illustrations: how courts apply this principle

The law itself provides concrete illustrations that make the principle easy to understand.

Criminal breach of trust: the carrier example

Under Section 314 of the Bharatiya Nyaya Sanhita (BNS), 2023, if a person is charged with criminal breach of trust in respect of property entrusted to them as a carrier – a more specific and aggravated form of the offence – but the evidence only proves a general criminal breach of trust (without the carrier relationship), the court can still convict them under the general provision. The carrier element was not proved, but the core of the offence – the breach of trust – was.

Grievous hurt reduced by provocation

If a person is charged with causing grievous hurt under Section 115 BNS, but during trial they successfully establish that they acted under grave and sudden provocation, the facts effectively reduce the offence to a lesser one. The court can convict them under Section 120 BNS (grievous hurt on provocation) – a lesser provision – even though that section was never part of the original charge.

Attempt when the completed offence is not proved

If Raj is charged with theft but the evidence only establishes that he attempted to steal and was caught in the act, he need not be acquitted simply because the full offence of theft was not consummated. Section 245(3) BNSS allows the court to convict him for the attempt, even without a separate charge for it. This ensures the trial does not become a wasteful exercise due to a gap between the charge and what the evidence actually establishes.

Murder reduced to culpable homicide

One of the most significant and commonly occurring applications of this principle involves the distinction between murder and culpable homicide not amounting to murder. When an accused is charged with murder but the evidence at trial only proves culpable homicide (because the required intention or knowledge for murder is not established), the court can return a conviction under the lesser provision – without acquitting the accused entirely.

The one-way street: courts cannot convict upward

A critical limitation of this framework must be clearly understood: the flexibility runs only downward, not upward. The Karnataka High Court has unequivocally held that while a trial court has the power to convict an accused for a lesser offence when the charges were framed for a major offence, it cannot do the reverse. When charges are framed for a lesser offence, the court cannot convict and sentence the accused for a more serious offence punishable with greater imprisonment without first formally altering the charge under Section 239 BNSS and giving the accused a proper opportunity to meet the upgraded charge.

This asymmetry is deliberate and fundamental to fairness. An accused who prepared their defence against a murder charge is not unfairly surprised by a conviction for culpable homicide – the facts and evidence that matter were always before the court. But an accused who came prepared to defend against a charge of simple hurt would be seriously prejudiced if the court suddenly convicted them for grievous hurt or a more serious offence they never had notice of.

The “cognate” test and preventing prejudice

Two conditions must be satisfied before a court invokes Section 245 BNSS. First, the lesser offence must be a cognate offence – it must be composed of some of the ingredients constituting the main offence and be a part of it, not an entirely independent offence. Second, the lesser offence must be independently proved beyond reasonable doubt, the accused must not suffer any prejudice from the conviction, and it must not result in a failure of justice. These conditions, laid down by the Supreme Court in Rafiq Ahmad v. State of U.P. (2011) 8 SCC 300, remain good law under the BNSS regime.

The prejudice test is not merely procedural. The question is whether the accused, knowing the charge framed against them, had a fair and full opportunity to defend themselves against the facts that the court ultimately relied upon to convict them of the lesser offence. If the answer is yes, conviction for the lesser offence is valid. If the accused was genuinely misled in their defence – if the legal shift caused real harm to how they prepared their case – then a conviction based on it would not be sustainable.

Doubtful cases: Section 244 BNSS and alternative charges

Section 245 BNSS operates alongside another important provision – Section 244 BNSS, which deals with situations where it is doubtful which offence the facts will constitute. In such cases, the prosecution is permitted to charge the accused with multiple offences in the alternative. If the accused is charged with one alternative offence but the evidence discloses a different alternative offence for which they could have been charged, they can still be convicted for the proved offence. Together, Sections 244 and 245 BNSS create a flexible but principled framework that prevents the rigidity of charge-framing from letting an offender escape justice on a technicality.

Why this flexibility matters for justice

The significance of these provisions goes beyond procedural convenience. Section 245 BNSS gives flexibility to criminal law – it ensures that a conviction reflects the actual extent of the proven wrong, rather than an all-or-nothing gamble tied to the precise label the prosecution chose at the charge-framing stage. It prevents acquittals that would otherwise result not because the accused is innocent, but because the prosecution framed the charge slightly too high. At the same time, the safeguards built into the provision – the cognate test, the prejudice test, and the procedural prerequisite condition in sub-section (4) – ensure that this flexibility does not become a weapon against the accused’s right to fair notice and a fair trial.

For victims and society, these provisions ensure accountability. For the accused, they ensure that the punishment fits only what was actually proved. And for courts, they provide the legal tools to deliver verdicts that are grounded in evidence rather than constrained by the inexact science of pre-trial charge drafting.

What do you think? If the prosecution consistently charges accused persons with the most serious possible offence hoping for a conviction on a lesser included one, does that compromise the integrity of the charging process? And should the law go further and allow courts, in limited circumstances, to convict for a more serious offence than charged – provided the accused is given a proper opportunity to respond?

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Table of Contents

The legal foundation: what does “conviction for offence charged” mean? 🔗

Section 222 CrPC and its successor: Section 245 BNSS 🔗

The concept of an “included” offence: what qualifies? 🔗

Practical illustrations: how courts apply this principle 🔗

Criminal breach of trust: the carrier example 🔗

Grievous hurt reduced by provocation 🔗

Attempt when the completed offence is not proved 🔗

Murder reduced to culpable homicide 🔗

The one-way street: courts cannot convict upward 🔗

The “cognate” test and preventing prejudice 🔗

Doubtful cases: Section 244 BNSS and alternative charges 🔗

Why this flexibility matters for justice 🔗