JUDGMENT - KANADE V.M., J.:---The appellants were charged under sections 342 and 302 read with section 34 of the Indian Penal Code for having committed murder of Rani who was a child, aged about 2 and half years. The trial Court convicted the appellants and sentenced them to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/-, i/d to suffer further rigorous imprisonment for one month for an offence under section 342 read with section 34 of the Indian Penal Code. The trial Court further convicted the appellant No. 3 for an offence punishable under section 109 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 500/-, i/d to suffer further rigorous imprisonment for nine months. Similarly, the trial Court convicted the appellants 1 and 2 for an offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for life and to pay fine of Rs. 500/-, i/d to suffer further imprisonment for nine months. Sentences are ordered to run concurrently. The appellants have challenged the aforesaid judgment and order passed by the Additional Sessions Judge, Bhandara in Sessions Trial No. 168 of 96 on 28-11-1999. The appellants No. 1 to 3 are original accused Nos. 1, 2 and 3 and for the sake of convenience, there are hereinafter referred to as original accused Nos. 1, 2 and 3 respectively. Accused No. 1 is the husband of accused No. 2. Accused No. 3 was a teacher teaching in a school. However, he left the job and thereafter was known as Daulatbaba and it is alleged by the prosecution that he was doing sorcery and used to perform black magic and had number of followers. Accused Nos. 1 and 2 were ardent followers of accused No. 3. 2. It is the case of the prosecution that accused Nos. 1 and 2 had three children one son and two daughters and at the time of the alleged incident, accused No. 2 was in advanced stage of her pregnancy. It is alleged by the prosecution that accused No. 3 used to visit the residence of accused Nos. 1 and 2 and on one occasion, has performed certain rituals in their house. It is alleged by the prosecution that accused No. 3 had told accused Nos. It is alleged by the prosecution that accused No. 3 used to visit the residence of accused Nos. 1 and 2 and on one occasion, has performed certain rituals in their house. It is alleged by the prosecution that accused No. 3 had told accused Nos. 1 and 2 that their last child Rani who was 2 years old will bring ill-luck to them and, therefore, it was necessary to perform certain rituals. It is further alleged that accused No. 3 had warned accused Nos. 1 and 2 to get Rani out of his sight whenever he had visited the residence. It is alleged by the prosecution that as a result of this command which was given by accused No. 3, accused Nos. 1 and 2 confined their child Rani in a bath room which admeasuring 3.4 x 4.4 and did not give food or water to the child at the behest of accused No. 3 as a result of which child Rani died of starvation. It is the case of the prosecution that accused Nos. 1 and 2 used to write various letters to accused No. 3 informing him about their plight and about the illness suffered by all the members of family and used to implore him to suggest remedy or a panacea to cure all illness of the family, it is the case of the prosecution that accused No. 3 had also given replies to the said letters from time to time. It is the case of the prosecution that the sons of the landlord had seen that child Rani was kept in captivity in bathroom and was not given food and water and a complaint was made to the police by the said landlord on 8-8-1996, yet no action was taken by the police. The said landlord found that the child had expired and had seen the dead body in the bathroom and a complaint was lodged in the Police Station. Police recorded statements of witnesses. They carried out panchanama and the Investigating Officer was of the view that prima facie case was made out against the accused and, therefore, charge-sheet was filed against the accused under sections 342, 302 read with section 34 of the Indian Penal Code. The trial Court framed charge under sections 342, 302 read with section 34 of the Indian Penal Code. The accused pleaded not guilty to the said charge. The trial Court framed charge under sections 342, 302 read with section 34 of the Indian Penal Code. The accused pleaded not guilty to the said charge. 3. The trial Court, on the basis of evidence adduced by the prosecution, convicted the accused and imposed sentence of rigorous imprisonment and fine on them, as aforesaid. The accused are challenging the said judgment and order of the trial Court in this appeal. 4. We have heard learned Advocate appearing on behalf of the accused and also learned A.P.P. on behalf of the State. Learned Counsel appearing on behalf of the accused has taken us through the depositions recorded by the Sessions Judge as also the other documentary evidence produced on record. We have also gone through the judgment and order passed by the Sessions Court. Learned Counsel appearing on behalf of the accused has also taken us through the medical evidence and has also relied on various books written by medical experts. 5. Mr. Mardikar, learned Counsel appearing on behalf of the accused submitted that the charge framed against the accused was defective as it did not disclose as to how the accused had committed the murder of deceased Rani and then he stated that they were charged under section 302 read with section 34 of the Indian Penal Code for having committed murder of deceased Rani. He submitted that as a result of defective charge, no opportunity was given to the accused to defend their case. He, therefore, submitted that there is serious lacuna in the prosecution case and that the accused were entitled to get benefit. In support of the said submission, he relied on judgment of the Apex Court in the case of (Devilal and another v. State of Rajasthan)1, A.I.R. 1971 S.C. 1444. The Apex Court in the said case has held that if the bedrock of the prosecution case was not brought to the notice of the accused and that they did not know what the prosecution case was, the whole prosecution case would fall like a pack of cards. In that case, the prosecution case was that around mid-night of 11th June, 1966, Dhannaram and Sultan went to a liquor shop at village Daulatpura. Dhannaram is the nephew of Motaram and Sultan is Motarams son. There were two groups. One was Motarams and the other was of Binjaram and Nathuram. In that case, the prosecution case was that around mid-night of 11th June, 1966, Dhannaram and Sultan went to a liquor shop at village Daulatpura. Dhannaram is the nephew of Motaram and Sultan is Motarams son. There were two groups. One was Motarams and the other was of Binjaram and Nathuram. There was enmity between the two groups. The Apex Court held that if the bedrock of the prosecution case that Brijlala and Nathu came armed with guns to throw a challenge to Motaram and his sons could not be proved as a fact, the whole prosecution case would fall like a pack of cards. In criminal trials it is of prime importance for the accused to know as to what the exact prosecution case is. If the privot of the prosecution is not accepted a new prosecution case cannot be made to imperil the defence and under these circumstances, the Apex Court acquitted the accused. 6. Learned A.P.P. appearing on behalf of the State submitted that the facts of the present case are entirely different. He submitted that the charge was properly framed. 7. In our view, the submission made by learned Counsel on behalf of the accused cannot be accepted for the sample reason that section 211 of the Code of Criminal Procedure provides that every charge under the Code should state the offence with which the accused is charged and secondly, if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. For ready reference, section 211 Cri.P.C. is quoted below:--- 211. Contents of charge.---(1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the Court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to Award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed." Similarly, section 212 Cri.P.C. states that particulars as to time, place and person should be mentioned in the charge. Section 212 Cri.P.C. reads as under:- 212. Particulars as to time, place and person.---(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219; Provided that the time included between the first and last of such dates shall not exceed one year." 8. The trial Court has framed the charge as follows:- "That you all the accused in between 1-8-1996 to 14-8-1996, in furtherance of common intention wrongfully confined Ku. Rani Meshram in the house at village petrol pump (Jawaharnagar). The trial Court has framed the charge as follows:- "That you all the accused in between 1-8-1996 to 14-8-1996, in furtherance of common intention wrongfully confined Ku. Rani Meshram in the house at village petrol pump (Jawaharnagar). Tah and District Bhandara and thereby committed offence punishable under section 342 r/w 34 of the Indian Penal Code and within my cognizance. That on the above said date, time and place you all the accused in furtherance of common intention wrongfully confined the girl Rani with intention to commit murder by intentionally or knowingly causing her death and thereby committed offence punishable under section 302 r/w 34 of the Indian Penal Code and within my cognizance. And I hereby direct that you all be tried by me on the above said charges." 9. In our view, there is due compliance of the provisions of sections 211 and 212 of the Criminal Procedure Code and, therefore, the charge is properly framed. 10. Mr. Mardikar, learned Counsel appearing on behalf of the accused further submitted that so far as accused No. 3 is concerned, though a specific charge under section 109 of the Indian Penal Code of abetment was not framed against the said accused, even then the Sessions Court while convicting him under section 302 I.P.C., has convicted him for section 109 of the Indian Penal Code also. He, therefore, submitted that in the absence of specific charge being framed, the accused No. 3 should not have been convicted for abetment of the offence. We are unable to accept the said submission. The accused No. 3 has been charged under section 302 read with section 34 of the Indian Penal Code. The provisions of section 221 of the Code of Criminal Procedure are very much clear on this point wherein it is specifically clarified that if the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1) of section 221 Cri.P.C., he may be convicted of the offence which he is shown to have committed, although he was not charged with it. In view of the provisions of section 221 of the Code of Criminal Procedure, in our view, the submission of learned Counsel appearing on behalf of the accused will have to be rejected. 11. In view of the provisions of section 221 of the Code of Criminal Procedure, in our view, the submission of learned Counsel appearing on behalf of the accused will have to be rejected. 11. Learned Counsel appearing on behalf of the accused submitted that so far as oral evidence adduced by the prosecution is concerned, nothing has come on record to show that the accused Nos. 1 and 2 had confined their own daughter in a bathroom. He submitted that from the evidence of the witnesses, it has been brought on record that child Rani was seen in the courtyard of the house and one occasion, was witnessed on the road. He submitted that on the evidence of son of the landlord who had stated that he had seen the child Rani confined in a bathroom, cannot be accepted in view of the fact that it was not possible to see inside bathroom from the terrace. Learned Counsel further submitted that Dr. Dattatraya Trivedi (P.W. 4) had opined that it was difficult to give an opinion as to whether the death was caused either because of starvation or because of illness or due to bacterial pneumonia. He relied upon Modis Medical Jurisprudence and Toxicology (26th Edition). He has taken us through Chapter X thereof. He, therefore, submitted that neither the theory of starvation at the hands of accused Nos. 1 and 2 was proved by prosecution nor the theory of confinement of girl in the bathroom was proved. He submitted that in the alternative, if the Court came to the conclusion that accused Nos. 1 and 2 had neglected to look after the child, it cannot be said that they have committed murder of their own child who was two years old. He submitted that at the highest, the offence, if any, may fall under section 304 Part II of the Indian Penal Code. 12. Learned A.P.P. appearing on behalf of the State, however, vehemently opposed the said submission made by learned Counsel for accused. He submitted that P.W. 2 Rajesh, P.W. 5 Rajratan and P.W. 7 Jaiprakash had categorically and specifically stated that they had seen that the said child was confined in bathroom and was not given any food. He stated that P.W. 5 Rajratan has stated in his evidence that as early as on 8-8-1996 he had gone to the Police Station and had made a report. He stated that P.W. 5 Rajratan has stated in his evidence that as early as on 8-8-1996 he had gone to the Police Station and had made a report. He submitted that these witnesses had seen the child kept in the bathroom on a gunny bag and that there was one cane, toys, some utensils and one empty plate etc. lying by the side of Rani. He submitted that the defence version that Rani was suffering from some sort of skin disease and therefore she was kept in the bathroom, cannot be accepted. He submitted that the medical evidence clearly establishes the prosecution case that the girl Rani had died of starvation. 13. The facts which have been presented before us are quite disturbing a child who was barely two years old has died on account of starvation, which is clearly established by the medical evidence which is brought on record. The prosecution case that the accused Nos. 1 and 2 were virtually under the spell of accused No. 3 also has been established. We shall refer to the said evidence at a later stage. The picture which emerges from the evidence adduced by the prosecution is such that admittedly, the child Rani was found dead in the bathroom and her body was lying on a gunny bag and beside her dead body, there was one cane, few toys, some utensils, and one empty plate etc. Letters which were seized by the police from the house of accused No. 3 and also from the house of accused Nos. 1 and 2 clearly establish that the accused Nos. 1 and 2 were devotees of accused No. 3. 14. P.W. 6 Fulchand who has been examined as a pancha witness for proving spot panchanama as well as inquest panchanama has stated in his evidence that accused No. 1 was residing in the house of Parasram Rangari as a tenant. He has also stated that on 14-8-1996 he went to the house of accused and he found that the dead body of Rani was lying in the bath room. Now, therefore, it has been established that the dead body of deceased Rani was found in the bathroom. 15. P.W. 7 Jaiprakash who is son of landlord has deposed that accused Nos. 1 and 2 had two daughters Pavitrabai and Rani and one son by name Gholu. Now, therefore, it has been established that the dead body of deceased Rani was found in the bathroom. 15. P.W. 7 Jaiprakash who is son of landlord has deposed that accused Nos. 1 and 2 had two daughters Pavitrabai and Rani and one son by name Gholu. He has also deposed that accused No. 3 used to come to the house of accused No. 1. He has stated that he had seen Rani standing near the bathroom and that her father was scolding her with a wooden stick in his hand and asking her not to go in the kitchen. He has further stated that accused No. 2 used to tell him and his family members that whenever Baba i.e. accused No. 3 used to come to their house, his chest gets conjested, and, therefore, they were keeping her alone. This particular testimony of P.W. 7 Jaiprakash has not been challenged in the cross-examination. This witness has also stated that accused No. 2 had told him that Rani had died and that thereafter he was taken by accused No. 2 to the bathroom where dead body of Rani was seen. He has further deposed that he has seen one small towel, one cut sweater, small lamp (kerosene oil lamp), some toys and gunny bag in the bathroom. This witness has also identified the said articles which were shown to him. In his cross-examination he has admitted that though he had stated to the police that accused No. 2 had informed him about the death of Rani and she had taken him to bathroom and on opening the bathroom she showed him the dead body of Rani, but he could not assign any reason as to why the said fact was recorded in his police statement. It is, no doubt, true that this witness has tried to improve his case by stating that he had seen the dead body in the bathroom. However, merely on that count, his testimony cannot be discarded. Firstly, because the fact that the dead body of Rani was found in the bathroom has been established by the prosecution. It is not seriously challenged by the defence though the defence case is that after Rani died, her body was taken to the bathroom. The fact, therefore, is established that the dead body of deceased Rani was found in the bathroom. It is not seriously challenged by the defence though the defence case is that after Rani died, her body was taken to the bathroom. The fact, therefore, is established that the dead body of deceased Rani was found in the bathroom. Coupled with the testimony of P.W. 7 Jaiprakash, P.W. 5 Rajratan also has stated in his evidence that accused No. 3 used to visit the house of accused Nos. 1 and 2 and that he was performing certain rituals in the house. He has also stated that accused No. 3 Daulat @ Baba had told the accused Nos. 1 and 2 that Rani was bringing ill-luck to them. P.W. 5 Rajratan has deposed that accused No. 3 used to distribute Angara (necromen) prasad to number of people and also to accused Nos. 1 and 2. He has further stated that brother of Rani had told him that she was kept in the bathroom. He has stated that when he had gone in the bathroom to supervise the work of electrical fitting which was going on, the accused No. 1 had told him not to open the door of the bathroom. He had told the accused No. 1 and had tried to persuade him not to be under the spell of accused No. 3. However, accused No. 3 did not pay any heed. This witness has also stated that on 8-8-1996 he had gone to the Police Station and had informed the police that Rani was kept in the bathroom and was not being provided food. However, the police did not accept his report in writing and thereafter on 14-8-1996 he came to know that the girl Rani had expired in the bathroom in the house of accused No. 1. This witness has also corroborated the evidence of P.W. 7 Jaiprakash and has stated that there was one gunny bag kept in the bathroom on which Rani slept and that he had seen one cane, toys, some utensils etc. He deposed that on 12-8-1996 when accused No. 1 had gone to Bhivapur, he had asked accused No. 2 to remove the dead body on which she replied that she would not do it unless the accused No. 3 Daulat @ Baba comes. He deposed that on 12-8-1996 when accused No. 1 had gone to Bhivapur, he had asked accused No. 2 to remove the dead body on which she replied that she would not do it unless the accused No. 3 Daulat @ Baba comes. He has further stated that thereafter on 14-8-1996 he came to know that child Rani had expired and then he went to the Police Station and lodged report which was recorded as first information report (Exhibit 41) and Crime No. 70/96 was registered. In cross-examination, this witness has admitted that on or about 3rd or 5th August, 1996 he had seen Rani in the middle-room and that there were bristles and white spots on her body. He admitted that he had expressed anger with accused Nos. 1 and 2 because of the activities of accused No. 3 and because of the nuisance he wanted that the accused Nos. 1 and 2 should vacate their house. This witness in cross-examination has reiterated his earlier statement and has stated that he had personally seen that Rani was confined in the bathroom while he was brushing his teeth. He has further stated that girl Rani was standing at one time in the open side near the bathroom and that she was not permitted to enter into the house by accused No. 1. He has stated that he is as also the accused Nos. 1 and 2 are Buddhist by religion, but accused Nos. 1 and 2 were performing pooja of Lord Shiva he did not like that. Inspite of these admissions in the cross-examination, the main testimony of P.W. 5 Rajratan that he had seen Rani in the bathroom and that she was confined there, has remained unshaken. It is true that this witness had admitted in cross-examination that when he had gone to the Police Station to lodge complaint on 8-8-1996, police had not taken the said complaint. However, on this count alone his testimony cannot be discarded as his testimony is corroborated by P.W. 7 Jaiprakash in respect of confinement of Rani in the bathroom and the presence of accused No. 3 in the house of accused Nos. 1 and 2. P.W. 5 Rajratan has categorically stated that some rituals were performed by accused No. 3 in the house of accused Nos. 1 and 2. 16. 1 and 2. P.W. 5 Rajratan has categorically stated that some rituals were performed by accused No. 3 in the house of accused Nos. 1 and 2. 16. From the evidence of these two witnesses, it is established that Rani was confined in the bathroom and was not given food and water. This fact is further corroborated by the medical evidence which is adduced by prosecution by examining Dr. Trivedi (P.W. 4). P.W. 4 Dr. Trivedi who has proved post-mortem report, has stated that if solid food or liquid food is not provided to the child, the death may occur within 10-15 days. He has further stated that in children any infection can get exaggerated due to severe calory malnutrition and, therefore, according to him, probable cause of death was due to septisemic shock due to consolidative chest disease with severe protein calories malnutrition. In cross-examination, he has stated that septisemic shock is due to spread of infectious organism such as bacteria in the body causing damage to the various organs by the action of toxins from the bacteria. A perusal of the post-mortem note shows that the body of deceased Rani was greatly emaciated and cold; eyes and tongue were dry; there was no oozing of any fluid; skin was shrivelled; temple was hallow; muscle was pale and right lung was pale and collapsed and there was consolidated upper lobe. Post-mortem report further shows that the left lung of the deceased was pale and collapsed and there was no bleeding on cut fibrosed upper and middle lobe. Post-mortem report further shows that the heart was small, pale and empty; large vessels were collapsed and pale; abdomen walls had become dry shrivelled; peritoneum was pale; cavity was empty, pale with no fluids and tissues were fatty; cheeks were hallow; stomach, large intestine and small intestine were empty; liver gall bladder was pale and on cut section there were necrotic black spots; black clot was found in spleen and it was pale and bladder was found empty. Further, by way of additional remarks, the doctor has stated that no fluid or any material was found in the stomach and it was not possible to give exact opinion as to the time of death and last meal. 17. Further, by way of additional remarks, the doctor has stated that no fluid or any material was found in the stomach and it was not possible to give exact opinion as to the time of death and last meal. 17. Modi, in his Medical Jurisprudence Toxicology (22nd Edition) edited by B.V. Subrahmanyam, page 298 has given external and internal post-mortem appearance in respect of a person who dies as a result of starvation. Relevant portion is reproduced below:- "(i) External The body is greatly emaciated and emits a disagreeable offensive odour. A careful examination may reveal evidence of violence, suggesting neglect and cruelty. The eyes are dry, red and open with sunken eyeballs. The cheeks and temples are hollow. The tongue is dry and coated. The skin is dry and shrivelled, and is, sometimes, excoriated or ulcerated. Bedsores are often present. The muscles are pale, soft and wasted, and the fat is almost completely absent in the subcutaneous and intracellular tissues, as well as in the omentum, mesentery, and around the internal organs. Some facts may be present in cases where death has occurred rapidly from the sudden withdrawal of both food and water. It should be remembered that the entire absence of food throughout the body is never seen in wasting diseases, such as tuberculosis, diabetes, etc. (ii) Internal The brain is usually normal although it is sometimes pale and soft. The meningeal vessels are congested, and there is frequently some serious effusion in the ventricles. The heart is smaller in size, and the muscles are pale and flabby. The chambers are generally empty. The lungs are pale and collapsed, and exude very little blood when cut. At times, the lungs may be oedematous, and may show hypostatic congestion at the base. The heart, reduced in size and weighing 130-150 g. shows brown atrophy. A transparent gelatinous material replaces the subepicardial fat. The stomach is small, contracted and empty. It may contain undigested food; if it was given to the deceased shortly before death, in order to avert a suspicion of wilful starvation. The mucous membrane of the stomach and the upper part of the small intestine are more or less stained with bile. The intestines are empty and contracted, but the lower portion of the large intestine may sometimes contain hard, scyballous faecal matter and may often present more or less evidence of inflamation. The mucous membrane of the stomach and the upper part of the small intestine are more or less stained with bile. The intestines are empty and contracted, but the lower portion of the large intestine may sometimes contain hard, scyballous faecal matter and may often present more or less evidence of inflamation. Food is absent from the mesentery and the omentum. These hollow viscera shows an extensive thinning and translucency of their walls indicating thereby, that no food has passed through the stomach for a considerable time. Sometimes ulcers can be found in their walls; these are very likely due to irritation resulting from the injudicious ingestion of substances to appease hunger. The atrophied liver may show nerosis due to protein deficiency, the spleen, the kidneys and the pancreas are small and shrunken. The galls bladder is usually distinded and contains dark, inspissated bile. The urinary bladder is empty." From the medical evidence on record i.e. evidence given by Dr. Trivedi (P.W. 4), it is noticed that post-mortem appearance as indicated in Modis Medical Jurisprudence and Toxicology is deposed to by Dr. Trivedi also and, therefore, there remains no doubt in our mind that the death of child Rani in the instant case, was owing to starvation. We cannot accept the submission of learned Advocate appearing on behalf of accused that the cause of death of the girl was due to chest and lung disease and that as a result of the said disease, the child had lost her apetite and had not consumed solid food or liquid diet. He has relied on one article titled "Tuberculosis in Children" by P.M. Udani as also an extract from the Book "Treatment and Prognosis" edited by G.S. Clayden and R.L. Hawkins. In the Article "Tuberculosis in Children" by P.M. Udani it is mentioned that tuberculosis is a major health problem in developing countries. It is frequently encountered in children, particularly in those belonging to the low socio-economic group. In "Treatment and Prognosis" edited by G.S. Clayden and R.L. Hawkins, it has been mentioned that the diagnosis of protein energy malnutrition is made when there is nutritional oedema. It is often divided into marasmus of kwashiorkor in which condition as a result of malnutrition, there is progressive wasting and emanciation of the body which results in death due to anaemia, anorexia and nervosa etc. 18. It is often divided into marasmus of kwashiorkor in which condition as a result of malnutrition, there is progressive wasting and emanciation of the body which results in death due to anaemia, anorexia and nervosa etc. 18. Having come to the conclusion that the child Rani had died due to starvation, the next question which falls for consideration is, as to whether the said starvation was due to deliberate non-supply of food or water by the accused Nos. 1 and 2 or as a result of sheer negligence on the part of the accused or due to loss of apetite caused as a result of disease suffered by the said child. In order to establish that there is deliberate deprivation of food and water on the part of accused Nos. 1 and 2 at the instance and instigation of accused No. 3, there must be cogent and clear evidence which can establish this fact. Though, it is no doubt true that Rani being a child of two years old was in the custody of accused Nos. 1 and 2, accused No. 3 was staying in a different village which is at a distance of 100 kms. from Jawaharnagar where accused Nos. 1 and 2 were staying. Though P.W. 5 Rajratan and P.W. 7 Jaiprakash have stated that they had seen that Rani was kept in the bathroom, there is no evidence suggest that she was starved continuously. 19. Learned A.P.P. appearing on behalf of the State has submitted that it was open for the accused to give proper treatment to the child by admitting her in the hospital. Unfortunately, in this case, though the Investigating Officer during the course of investigation had noticed that the accused Nos. 1 and 2 had contacted two doctors and some treatment was given by accused Nos. 1 and 2, those doctors were not examined. Similarly, Pavitrabai, another daughter of the accused Nos. 1 and 2 whose statement was recorded, has also not been examined by the prosecution. If the prosecution had examined another daughter of accused Nos. 1 and 2 as a witness, she could have thrown some light as to whether, in fact, any food was given to the deceased or not and whether there was deliberate deprivation of food and water by the parents/accused Nos. 1 and 2. If the prosecution had examined another daughter of accused Nos. 1 and 2 as a witness, she could have thrown some light as to whether, in fact, any food was given to the deceased or not and whether there was deliberate deprivation of food and water by the parents/accused Nos. 1 and 2. If the doctors had been examined by the prosecution, they would have been in a position to state the actual condition of child Rani. They could have certainly pointed out whether child Rani was suffering from any skin disease because of which child Rani was not allowed to mix with other children and, therefore, she was confined in the house. It is, therefore, difficult to hold that there was deliberate starvation by accused Nos. 1 and 2 at the behest of accused No. 3. Accused No. 3 had visited the residence of accused Nos. 1 and 2 only on couple of occasions. From the correspondence between accused Nos. 1 and 2 on one hand and accused No. 3 on the other, accused No. 2 had expressed her anxiety in respect of the physical condition of child Rani. In our view, therefore, submission on behalf of the learned A.P.P. that there was deliberate deprivation of food and water by accused Nos. 1 and 2 at the behest of accused No. 3 cannot be accepted. 20. The fact, however, remains that Rani died of starvation which has been amply proved by the medical evidence on record and, therefore, it was the duty of accused Nos. 1 and 2 in whose custody the child Rani was, to protect the life of their own child who was two years old, by ensuring and providing food and water as also proper medical treatment. The accused in their statement under section 313 Cri.P.C. have not offered any explanation as to how the child died of starvation. They have also not explained these facts which were within their knowledge as to why no treatment was given to the child. It was open for the parents/accused Nos. 1 and 2 to have admitted their child Rani in the hospital where proper medical treatment could have been given. In the absence of any explanation about the facts which were within the special knowledge of accused Nos. It was open for the parents/accused Nos. 1 and 2 to have admitted their child Rani in the hospital where proper medical treatment could have been given. In the absence of any explanation about the facts which were within the special knowledge of accused Nos. 1 and 2 and in view of the evidence of P.W. 5 Rajratan and P.W. 7 Jaiprakash who have stated that no proper care was taken by accused Nos. 1 and 2 and they continued to be under the sway and swell of accused No. 3, it will have to be held that the act of accused Nos. 1 and 2 in not giving proper food, water and medical treatment was such that in the ordinary course of nature, it would cause death of child Rani. In our view, therefore, though it cannot be said that there was deliberate intention on the part of the accused Nos. 1 and 2 to kill their daughter Rani, but they definitely had knowledge that there action would result in injury which was likely to cause death of their child Rani. Thus, the accused Nos. 1 and 2 are guilty for having committed an offence under section 304, Part II of the Indian Penal Code. The findings of the Sessions Court holding the said accused guilty of the offence of murder under section 302 read with section 34 I.P.C. will have to be altered and changed to section 304, Part II of the Indian Penal Code. 21. Sofar as accused No. 3 is concerned, he has undoubtedly played a crucial role in the life of accused Nos. 1 and 2. He was an influencing factor and he had shown his displeasure on seeing the child Rani. However, apart from the evidence of witnesses who have stated that accused No. 3 had visited the house of accused Nos. 1 and 2, there is no other material evidence on record to show that he was indulging in practices such a black magic. The police had searched his house and panchanama to that effect was also prepared and pancha witness has been examined. From the search of his house, the police could only secure certain letters which he had received from various people who were his devotees. The police had searched his house and panchanama to that effect was also prepared and pancha witness has been examined. From the search of his house, the police could only secure certain letters which he had received from various people who were his devotees. Several letters which were written to him by accused No. 1 have been proved by the prosecution, perusal of these letters shows that the accused No. 1 was very much concerned about Rani as she was not taking milk and also in respect of the ailment suffered by him and other members of his family. From these letters, it is seen that accused No. 1 has implored upon accused No. 3 to cure them from the ailments and other miseries which they had suffered. Apart from these letters which were found at the residence of accused No. 3, no other articles have been found which would implicate him and show that accused No. 3 was performing black magic or sorcery. Similarly, from the house of accused Nos. 1 and 2 also nothing has been found in their house which would indicate that certain rituals of black-magic were performed or there was any intention of sacrificing the child at the instance of accused No. 3. In this view of the matter, it cannot be said that the accused No. 3 has abetted the offence committed by accused Nos. 1 and 2. In our view, therefore, the accused No. 3 will have to be acquitted of the offence with which he is charged and held guilty by the trial Court. The finding of the trial Court will have, therefore, to be set aside and quashed in respect of the conviction and sentence imposed on the accused No. 3. 22. Mr. S.N. Mardikar, learned Counsel appearing on behalf of the accused submitted that the accused No. 2, mother of deceased Rani, has given birth to child after she was granted bail and that child had died immediately on the next day. She suffered a great shock on account of death of Rani and child which was subsequently born. He submitted that leniency may be shown to her and she be sentenced for the period which she has already undergone in prison. In our view, the said submission cannot be accepted. We have already indicated that the child Rani has died due to inaction of the accused No. 2 also. He submitted that leniency may be shown to her and she be sentenced for the period which she has already undergone in prison. In our view, the said submission cannot be accepted. We have already indicated that the child Rani has died due to inaction of the accused No. 2 also. She was equally responsible for not providing food, water and medical treatment to the child Rani. Therefore, we feel that the ends of Justice would be met by convicting the accused No. 2 along with accused No. 1 for the offence under section 304, Part II I.P.C. and imposing sentence as indicated below. 23. In the result, appeal is partly allowed. Appeal is allowed in respect of accused No. 3 and he is acquitted of the offences with which he was charged. He be released forthwith if not required in any other case. The conviction of accused Nos. 1 and 2 is altered from section 302 read with section 34 of the Indian Penal Code and it is converted to that of section 304, Part II read with section 34 of the Indian Penal Code. Accused No. 1 is in jail since 21-8-1996. Accused No. 2 was released on bail on 19-12-1996. Both the accused Nos. 1 and 2 are, therefore, sentenced under the circumstances of the case, to undergo rigorous imprisonment for six years and the period undergone by them in jail will have to be adjusted in calculating the total period of six years imprisonment. Accused No. 2 shall surrender within four weeks from today. Appeal partly allowed. -----