Section 221 of the Code of Criminal Procedure covers cases where it is doubtful what offence has been committed, and provides that if a single act (or a series of acts) is of such a nature that it is doubtful which of several offences such facts will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges can be tried together; or, he may be charged, in the alternative, of having committed some of the said offences.
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If, in such a case, the accused is charged with only one offence and it appears in evidence that he has committed a different offence for which he might have been charged as above, he may be convicted of the offence which he is shown to have committed, although he was not charged for that particular offence.
Illustrations to Section 221:
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(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust of cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.
(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or of receiving stolen goods. He may be convicted of criminal breach of trust, or of receiving stolen goods (as the case may be), though he was not charged with such offence.
(c) A states on oath before the Magistrate that he saw В hit С with a club. Before the Sessions Court, A states on oath that В never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false.
S. 221 applies only to a case where there is a single act or a series of acts, of such a nature that it is doubtful which of the several offences is constituted by the criminal act or acts. This section comes into play only when there is some doubt as to which offences have been committed.
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It contemplates a state of facts which constitute a single offence, but where it is doubtful whether the act or acts involved may amount to one or other of several cognate offences. In other words, S. 221 applies only to those rare cases where the prosecution cannot establish exclusively any one offence.
It has been held that if the Magistrate is not able to ascertain facts that exist which would justify a conviction, he must, of course, acquit the accused. But, where the Magistrate has found that facts do exist which establish that the accused must have committed some offence, although it is doubtful what exactly that offence was, a conviction for the least serious offence would be in order. (Balu Ram,—Cr. L.J. 152)