JUDGMENT :- The original accused No.1 Janardhan has preferred this appeal challenging the judgment and order passed by the Additional Sessions Judge, Ambejogai in Sessions Case No.1 of 1993, whereby the appellant was convicted for the offence punishable under Section 304-B of I.P.C. and was sentenced to undergo R.I. for seven years and for the offence punishable under Section 498-A of I.P.C. and was sentenced to undergo R.I. for two years and to pay fine of Rs. 1,000/-. 2. The prosecution case in brief is that the accused No.1 Janardhan was previously married and from his first wife he had five daughters including the accused No.2 Sunita and accused No.3 Praphulla. After death of his first wife, he entered into second marriage with Indubai about 10 to 11 years prior to the incident of this case. Indubai was daughter of P.W.3 Manikrao and P.W.5 Rukhminibai, who are residents of village Jawalban, Tq. Kaij, District Beed. According to prosecution, at the time of Yusuf Wadgaon, on the basis of which, police filed charge-sheet Exh.39 against the accused No.1. However, during pendency of that criminal case in the Court, compromise took place and she returned to her husband's house and as a result of compromise, accused No.1 was acquitted in that criminal case. After disposal of that matter she was again beaten and ill-treated and she returned to her parents place. She reached her parents' place in the morning at about 6.00 a.m. and accused Nos.1 and 2 followed her at about 7.00 a.m. with a request to come back. However, at that time, she was not willing to go back because of beating and ill-treatment to her. She told her father that she would maintain herself by doing labour work but would not return to the house of the accused No.1. In view of this she did not go back. At that time P.W.3 Manikrao asked the accused No.1 to come again after 15 days. However, he did not turn up. Thereafter, P.W.3 Manikrao sent Indubai to her husband's house alongwith his brother P.W.6 Pralhad, about 15 days prior to her death. 3. According to prosecution, during the night between 29-2-92 and 30-6-92, the accused No.1 had beaten her by kicks and fist blows or by some hard substance on the abdomen, as a result of which she died in the farm house. 3. According to prosecution, during the night between 29-2-92 and 30-6-92, the accused No.1 had beaten her by kicks and fist blows or by some hard substance on the abdomen, as a result of which she died in the farm house. Due to the severe beating on abdomen, she had vomits and also motion, therefore, the accused No.1 changed her clothes and kept her wet clothes hidden under the heap of wheat husk. After that he took the dead body of Indubai to his house in the village. On 30-6-92 one person from village Awasgaon went to the house of P.W.3 Manikrao and informed about death of Indubai and thereafter P.W.3 Manikrao, his wife P.W.5 Rukminibai, his brother P.W.6 Pralhad and some other persons went to village A wasgaon. At that time dead body of Indubai was lying in the house of accused No.1. After post mortem examination, Manikrao returned to his village and in the morning of 1-7-1992 he lodged the report Exh.40 with the police. When the accused was in police custody, on 1-7-92 itself on the basis marriage of Indubai her father had agreed to give six Grams gold ring, one gold locket, clothes and utensils as dowry to the accused No.1. However, he could not give gold ring and locket for want of funds. After marriage, Indubai went to live with her husband at village Awasgaon. The accused No.1 had his house at Awasgaon and he had also farm house in his filed Survey No.17. Accused No.1 was living with his daughters in the house in the village while his second wife Indubai was living in the farm house. She lived there for about 2-3 months and then she went to her parents' place first time after the marriage and informed her parents that she was being harassed on account of gold ring and locket and that she was being beaten and not provided food. At that time, she lived with her parents for about 1 or 1-112 years and thereafter accused No.1 alongwith Bankat Shingare and Hanumant Shingare approached P.W.3 Manikrao and assured that he would not harass her in future. At that time, P.W.3 Manikrao gave 10 grams gold ring and new clothes to the accused No.1. He also gave new clothes to Bankat Shingare and Hanumant Shingare and he sent his daughter Indubai alongwith the accused No.1. At that time, P.W.3 Manikrao gave 10 grams gold ring and new clothes to the accused No.1. He also gave new clothes to Bankat Shingare and Hanumant Shingare and he sent his daughter Indubai alongwith the accused No.1. This time she lived with accused No.1 for about one month. However, due to beating and ill-treatment, she again returned to her parent's place and informed them that she was being harassed on account of demand of gold locket. She alleged that accused Nos.2 and 3 used to harass her saying that she could not prepare breads. This time again she lived with her parents for about 1 or 1-1/2 years. Again accused No.1 went to the house of P.W.3 Manikrao alongwith Pandharinath Sakhare and assured good treatment in future and on this assurance, Indubai returned to her husband's house. About 8 to 15 days after that P.W.3 Manikrao got information that accused No.1 again was harassing and beating his daughter and therefore, he went to the house of accused No.1 and took back to his daughter Indubai to his house. After that on 24-12-87 Indubai lodged F.I.R. against the accused No.1 at Police Station Yusuf Wadgaon, on the basis of which, police filed charge-sheet Exh.39 against the accused No.1. However, during pendency of that criminal case in the Court, compromise took place and she returned to her husband's house and as a result of compromise, accused No.1 was acquitted in that criminal case. After disposal of that matter she was again beaten and ill-treated and she returned to her parents' place. She reached her parents' place in the morning at about 6.00 a.m. and accused Nos.1 and 2 followed her at about 7.00 a.m. with a request to come back. However, at that time, she was not willing to go back because of beating and ill-treatment to her. She told her father that she would maintain herself by doing labour work but would not return to the house of the accused No.1. In view of this she did not go back. At that time P.W.3 Manikrao asked the accused No.1 to come again after 15 days. However, he did not turn up. Thereafter, P.W.3 Manikrao sent Indubai to her husband's house alongwith his brother P.W.6 Pralhad, about 15 days prior to her death. 3. In view of this she did not go back. At that time P.W.3 Manikrao asked the accused No.1 to come again after 15 days. However, he did not turn up. Thereafter, P.W.3 Manikrao sent Indubai to her husband's house alongwith his brother P.W.6 Pralhad, about 15 days prior to her death. 3. According to prosecution, during the night between 29-2-92 and 30-6-92, the accused No.1 had beaten her by kicks and fist blows or by some hard substance on the abdomen, as a result of which she died in the farm house. Due to the severe beating on abdomen, she had vomits and also motion, therefore, the accused No.1 changed her clothes and kept her wet clothes hidden under the heap of wheat husk. After that he took the dead body of Indubai to his house in the village. On 30-692 one person from village Awasgaon went to the house of P.W.3 Manikrao and informed about death of Indubai and thereafter P.W.3 Manikrao, his wife P.W.5 Rukminibai, his brother P.W.6 Pralhad and some other persons went to village Awasgaon. At that time dead body of Indubai was lying in the house of accused No.1. After post mortem examination, Manikrao returned to his village and in the morning of 1-7-1992 he lodged the report Exh.40 with the police. When the accused was in police custody, on 1-7-92 itself on the basis of information given by him, Saree, petticoat and blouse of deceased Indubai, which were or her person at the time of death, were recovered from the shed in his field. The clothes which were on her body at the time of being referred to the post mortem examination, were separately seized under panchanama. Spot panchanama at the farm house of the accused as well as at his house were prepared. Post mortem report revealed that she had died due to trauma to the lower abdomen leading to internal bleeding leading to shock and death. 4. After investigation police filed charge-sheet against the accused Nos.1 to 3 for the offences punishable under Section 302 and 498-A r/w. 34 of I.P.C. All three accused were put to trial for the said offences. On behalf of the prosecution, in all eight witnesses were examined and certain documents were also placed on record. The learned trial court acquitted the accused Nos.2 and 3 of both the charges. On behalf of the prosecution, in all eight witnesses were examined and certain documents were also placed on record. The learned trial court acquitted the accused Nos.2 and 3 of both the charges. The learned trial court also acquitted the accused No.1 for the offence punishable under Section 302 of I.P.C. However, he convicted him for offences punishable under Section 304-B and 498-A of I.P.C. and sentenced him as stated above. 5. Heard Mr. V. M. Maney, the learned counsel for the appellant and Mr. P. B. Varale, the learned A.P.P. for the State. The learned counsel for both sides have taken me through the oral and documentary evidence as well as the judgment of the trial court extensively. 6. Mr. Maney, the learned counsel for the appellant vehemently contended that the accused was not charged for the offence of Dowry Death punishable under Section 304- B of I.P.C. but the learned trial court convicted him for the said offence and thereby serious prejudice was caused to him. He further contended that Section 304-B of I.P.C. could not be applicable because Indubai had died about 10 to 11 years after her marriage and the learned trial court rejected the clear documentary evidence and admissions of the prosecution witnesses that the marriage had taken place about 10 to 11 years before her death and had accepted the oral evidence of prosecution witnesses before the court that the marriage had taken place about 6 years prior to death. He also contended that there is no reliable evidence about the demand of any dowry, much less gold locket and the learned trial court committed error in holding that on account of demand of dowry the accused used to treat her with cruelty. According to him, the accused could not be convicted for any of the offences and conviction is liable to be set aside. Mr. Varale, the learned A.P.P. strongly supported the impugned order of conviction and sentence. 7. P.W.3 Manikrao, father of f deceased Indubai deposed in his examination-in-chief that she was married to the accused No.1 appellant about 5 to 6 years before her death. His evidence clearly shows that after marriage at first time she lived with her husband for about 2 to 3 months and thereafter she came to her parents' place and lived there about 1 to 1/2 years. His evidence clearly shows that after marriage at first time she lived with her husband for about 2 to 3 months and thereafter she came to her parents' place and lived there about 1 to 1/2 years. Again Indubai went to reside with the accused and lived there for about one month. Thereafter, she again came back to the house of parents and lived there for about 1 to 1½ years. She again went to the house of the accused and lived there for few days and thereafter she lodged F.I.R. on 24-12-1987 with police against the accused. In the F.I.R. she had stated that she was married to the accused for six to seven years before that. This takes time of marriage to 1981-82. In the report Exh.40 lodged by Manikrao, he had stated that Indubai was married to the accused about 10 to 11 years before that. This report was dated 1-7-1992. The period of marriage shown by him again takes the time of marriage to 1980-81. It is material to note that in the cross-examination he admitted that Indubai was aged about 20 to 22 years at the time of her marriage. In the report Exh.40 he had given age of Indubai at about 32 years. In view of this also it appears that she was married some times in 1980-81. P.W.5 Rukminibai and P.W.6 Pralhad also deposed in their evidence that Indubai was married 5 to 6 years before her death but these witnesses in their police statements have stated that Indubai was married 11 years prior to her death. Surprisingly, the learned trial court over ruled the admissions of these three witnesses in their report and the police statements about the period of marriage and also ignored the contents of her own report dated 24-12-1987 and accepted the oral version of these witnesses that she was married about 5 to 6 years prior to her death. This finding of the trial court is per se wrong and cannot be accepted. Having come to the wrong conclusion that she was married within seven years prior to death, the learned trial court applied Section 304-B of I.P.C. about dowry death and convicted the accused though there was no charge for the same. This finding of the trial court is per se wrong and cannot be accepted. Having come to the wrong conclusion that she was married within seven years prior to death, the learned trial court applied Section 304-B of I.P.C. about dowry death and convicted the accused though there was no charge for the same. Section 304-B defines dowry death thus;- "304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death." To invoke Section 304-B, it is necessary that death must have occurred within seven years after the marriage. In the present case there is clear evidence that Indubai was married to accused No.1 about 10 to 11 years prior to her death, therefore, Section 304-B could not be invoked. 8. Mr. Maney, the learned counsel for the appellant vehemently contended that the ingredients of offence under Section 302 and 304-B of I.P.C. are totally different and the offence of dowry death under Section 304-B cannot be treated as minor offence in relation to offence of murder punishable under Section 302 of I.P.C. and therefore, without charge for the offence under Section 304- B the accused could not be convicted for that offence. In support of this contention he placed reliance upon Shamnsaheb M. Multtani Vs. State of Karnataka, (2001)2 SCC 577 : [2001 ALL MR (Cri) 997 (S.C.)]. Sub-section 2 of Section 222 of Cr.P.C. provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. This aspect was considered by the Supreme Court and the Supreme Court held that only if two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. This aspect was considered by the Supreme Court and the Supreme Court held that only if two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. Having observed that, Their Lordships considered the ingredients of Section 304-B of I.P.C. vis-a-vis the offence of murder punishable under Section 302 of I.P.C. and held that same are vastly different. After quoting definition of dowry death under Section 304-B, Their Lordships observed in para Nos.27 and 28, as follows :- "27. The postulates needed to establish the said offence are: (1) death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113-B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume" that such person had caused the dowry death. 28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both." Their Lordships also quoted an earlier authority of the Supreme Court in Sangaraboina Sreenu Vs. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both." Their Lordships also quoted an earlier authority of the Supreme Court in Sangaraboina Sreenu Vs. State of Andhra Pradesh (1997)5 SCC 348 : [1997 ALL MR (Cri) 1645 (S.C.)], wherein distinction was made in the offences of abetment to commit suicide punishable under Section 306 and the offence of murder punishable under Section 302 of I.P.C. Having referred the same, Their Lordships further observed in para Nos.31 and 32 as follows:- "31. Now take the case of an accused who was called upon to defend only a charge under Section 302, IPC. The burden of proof never Shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304- B, IPC, as he was defending a charge under Section 302, IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304B. IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years. 32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration; If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B, IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act, the husband can lead evidence to show that he had no hand in her death at all. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act, the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B, IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal." In view of these observations it is clear that when the accused is not charged and required to face trial for the offence punishable under Section 304-B, IPC, and is charged only for the offence 302, IPC., if the charge' under Section 302 fails, he cannot be convicted for the offence of dowry death under Section 304-B, IPC. The learned trial court thus committed serious error in invoking Section 304-B, IPC and then convicting the accused for the same without giving him opportunity to defend him for the said offence. Therefore, conviction for the offence under Section 304, IPC cannot be sustained. 9. P.W.3 Manikrao deposed at length about beating and ill-treatment to Indubai at the hands of her husband. His evidence runs on the line of the facts narrated earlier and therefore, need not be repeated. It appears that after marriage with Indubai accused was maintaining two houses. His daughters used to reside in the house which was in the village and deceased Indubai used to reside in the farm house. The accused used to reside at both the places. Evidence of P.W.3 Manikrao reveals that she had lived with her husband intermittently for short periods and several times she returned to her father's place complaining that she was being beaten, ill-treated and harassed by her husband. Four occasions are narrated in the report Exh.40 and also in his oral evidence. It is revealed from the evidence that when third time she left her husband's home, she had been to the police station at Yusuf Wadgaon where she lodged F.I.R. on 24-121987. On the basis of which charge-sheet was filed by the police against the accused No.1 in the Court of J.M.F.C. Kaij. It is revealed from the evidence that when third time she left her husband's home, she had been to the police station at Yusuf Wadgaon where she lodged F.I.R. on 24-121987. On the basis of which charge-sheet was filed by the police against the accused No.1 in the Court of J.M.F.C. Kaij. Exh.39 is the certified copy of that charge-sheet. It appears that after lodging the report, for a period of more than four years she lived with her parents and during that period trial of Regular Criminal Case No.45 of 1988 based on her report dated 24-121987 was going on. It appears that during pendency of trial some compromise took place and she returned to her husband's house. As a result of which the case was not properly prosecuted and accused was acquitted on 3-21992. After that she lived with her husband for some time and again returned to father's place with a determination that she would not go back. However, it appears that her father prevailed over her again and about 15 days prior to her death she was reached back to her husband's house by her uncle P.W.6 Pralhad. Evidence of P.W.3 Manikrao shows that Induabai had blackish complexion and due to this, it was difficult to find suitable match for her and hence, she was married to the accused, who was much older and had five daughters also. It appears that inspite of beating and ill-treatment to her, due to this reason, Manikrao prevailed over her to go back to husband's house. Her mother P.W.5 Rukminibai and her uncle P.W.6 Pralhad also deposed about her grievance about beating and ill-treatment at the hands of her husband. 10. Admittedly, she was living with her husband when she died during the night between 29-6-92 and 30-6-92. On 30-6-92 Manikrao and thus, he appears to be a distant relative of the complainant. In view of this relationship and the delay in disclosing the fact, it was contended that evidence of Vasudeo is not reliable. However, this evidence appears to be true if the spot panchanama Exh.30 at the farm house, seizure panchanama Exh.31 at the farm house and then spot panchanama Exh.29 at the house of the accused in the village and the contents thereof are taken into consideration. However, this evidence appears to be true if the spot panchanama Exh.30 at the farm house, seizure panchanama Exh.31 at the farm house and then spot panchanama Exh.29 at the house of the accused in the village and the contents thereof are taken into consideration. The documents revealed that the accused had admitted before the panchas and police that his wife had died in the farm house but dead body was actually found lying in his house in the village, which clearly shows that dead body was carried from the farm house to his house in the village. It is also material to note that the accused had given specific explanation and cause of death. According to him at about 1.00 a.m. she had abdominal pain, motion and vomiting. 12. Evidence of P.W.1 Dr. Sambhaji Deshmukh and post-mortem report Exh.33 revealed that the post mortem was conducted on 30-6-92 between 2.30 p.m. and 4.30 p.m. No external injury was found. However, pleura, both lungs, pericardium were congested and abdominal walls and peritonea were congested. Red fluid was present in the cavity. Stomach was congested. Colour of small intestine was changed to bluish and black. Large intestine was congested. Spleen was torn and congested. Kidney was also congested. It also revealed that she must have taken her last meal 3 to 4 hours prior to death. In view of the internal injuries Dr. Sambhaji Deshmukh opined that cause of death was trauma to the lower abdomen leading to internal bleeding leading to shock and death. According to him these injuries could be caused by beating with hard and blunt substance or objects on the abdomen. This could also be possible due to forceful kick or fist blows. Taking into consideration the cause of death and the explanation given by the accused, it becomes clear that Indubai had not died accidental or suicidal death. She died homicidal death. 13. As she died homicidal death due to internal injuries which could be possible due to beating on lower abdomen with hard and blunt object or fist and kick blows when she was living with her husband, inference can be drawn that she must have been beaten and her death must have been caused by her husband and none else. It is not the case of the accused that he was not aware about the circumstances in which and when she had died. It is not the case of the accused that he was not aware about the circumstances in which and when she had died. He had dearly taken a plea immediately after the incident that she had died at about 1.00 a.m. in the night due to abdominal pain, motion and vomiting at his house. Abdominal pain, motion and vomiting could be possible due to forceful blows given on the lower abdomen. It is material to note that the clothes which were on the person of Indubai at the time of death, had become wet or were soiled due to motion and vomiting. The accused removed those clothes and had hidden them under a heap of wheat husk in the shed in his field. Those clothes were seized on the basis of information given by him under panchanama. That panchanama is admitted by the accused. The circumstances are that she died homicidal death due to abdominal injuries, which could be possible due to forceful blows with hard and blunt object or kicks and fist blows and that due to the said injuries she had abdominal pain, motion and vomiting resulting in soiling and wetting her clothes and that those clothes were hidden by the accused in the shed in the farm house, that her clothes were changed and dead body was taken to his house. Thus the chain of circumstances is completed which goes to prove that the accused No.1 alone and none else had caused her death. 14. As stated earlier the accused was actually charged for the offence of murder punishable under Section 302, IPC. However, the learned trial court utterly failed to scrutinize and appreciate the evidence properly and did not give any finding about the cause of death and instead of dealing with Section 302 or with lesser offence under Section 304, the learned trial court misdirected itself and convicted the accused for the offence under Section 304-B IPC. It appears that the accused had not used any weapon and in all probabilities, he must have given kick and fist blows on the abdomen causing death. It appears that the accused had not used any weapon and in all probabilities, he must have given kick and fist blows on the abdomen causing death. In these circumstances, it may be inferred that his intention was not to cause death or to cause such injuries which would be sufficient in ordinary course of nature to cause death or that he had knowledge that his act was so dangerous that it must in all probabilities cause death or such bodily injury as is likely to cause death. However, it can be certainly inferred that he had done the act of giving kicks or fist blows on the abdomen with a knowledge that it was likely to cause death or to cause such bodily injury as is likely to cause death. Therefore, the accused had committed an offence of culpable homicide not amounting to murder punishable under Section 304, Part II of IPC. 15. In view of the evidence discussed above, it is proved beyond reasonable doubt that accused caused death of his wife Indubai in the circumstances in which he can be held guilty for the offence punishable under Section 304, Part-II IPC. When the accused is charged for the offence punishable under Section 302, IPC, he may be convicted and sentenced for lesser offence of culpable homicide not amounting to murder in view of provisions of sub-section 2 of Section 222 of Cr.P.C. In this case the accused was charged under Section 302 IPC and he could be convicted for the offence punishable under Section 304, Part-II IPC. But the learned trial court misdirected itself and on the basis of certain inadmissible evidence about the period of marriage, wrongly convicted the accused for the offence under Section 304-B IPC instead of offence under Section 304, Part-II IPC. The Supreme Court was faced with the similar circumstances and facts in Muthu Kutty and another Vs. State, (2005)9 SCC 113 : [2005 ALL MR (Cri) 1523 (S.C.)]. It was found that the accused therein was responsible for setting the married woman ablaze and causing her death, however, the trial court wrongly convicted the accused for the offence under Section 304-B instead of 302, IPC. State, (2005)9 SCC 113 : [2005 ALL MR (Cri) 1523 (S.C.)]. It was found that the accused therein was responsible for setting the married woman ablaze and causing her death, however, the trial court wrongly convicted the accused for the offence under Section 304-B instead of 302, IPC. Their Lordships held that the trial court erred in doing so because provision of Section 304-B was incorporated to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302 of IPC if they directly cause death. It was held that when the accused were charged for the offence of murder under Section 302, IPC and it was found that they were responsible for setting the deceased on fire and causing her death, Section 302 would be attracted and on facts, no prejudice would be caused to the accused-appellant if the conviction from Section 304-B is altered to one under Section 304, Part-II, IPC. The said authority of the Supreme Court is aptly applicable to the facts and circumstances of the present case. In view of the evidence on record it was proved that the accused had caused death and he was guilty of the offence under Section 304 Part-II but he was wrongly convicted for the offence punishable under Section 304-B as he was charged for the offence of murder. As he had faced trial and had cross-examined the witnesses being fully aware about the charge against him, no prejudice would be caused to him if now the conviction under Section 304-B is converted into the conviction under Section 304, Part-II, IPC. 16. For the aforesaid reasons I hold that the accused is liable to be convicted for the offence punishable under Section 304, Part-II of IPC instead of 304-B and therefore, the conviction can be altered accordingly. The manner and the circumstances in which she was beaten to death, provides corroboration to the prosecution story that she was being beaten, ill-treated and subjected to cruelty during her stay with husband. In view of certain improvements as far as the demand of dowry etc., particularly the demand of gold locket and the fact that period of about 10-11 years had passed after marriage, it is difficult to hold that cruelty as defined in explanation (6) of section 498-A is proved. In view of certain improvements as far as the demand of dowry etc., particularly the demand of gold locket and the fact that period of about 10-11 years had passed after marriage, it is difficult to hold that cruelty as defined in explanation (6) of section 498-A is proved. However, habitual beating or ill-treatment meted out to her cannot be equated with ordinary wear and tear or household disputes. Due to beating and ill-treatment four times she was required to leave husband's house and to take shelter with father. She had also lodged report with police. On the last occasion, inspite of her determination not to go back to husband's house, her father had prevailed over her and had sent her back alongwith uncle P.W.6 Pralhad. It was a signal to her that henceforth she would not get shelter even at father's house. In such circumstances, continued beating and ill-treatment was likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health. The circumstances in which she died clearly proves that she was subjected to severe beating. Had she not died due to beating, she could be driven to commit suicide. Hence, in my view, cruelty as defined in explanation (a) to Section 498-A is proved. Therefore, the accused can be held guilty for the offence punishable under Section 498-A, I.P.C. 17. Having come to conclusion that the accused is liable to be convicted for the offence under Section 304, Part-II, IPC instead of Section 304-B, IPC, I heard the learned counsel for the accused-appellant on the point of sentence. He pleaded that the accused is now aged about 60 years. Out of five daughters, two are still unmarried. He has no son to take care of his daughters and therefore, he may be shown liniency. On the other hand Mr. Varale, the learned A.P.P. vehemently contended that in view of the circumstances in which the accused caused death of his wife, he may be awarded maximum sentence prescribed by Section 304, Part-II, IPC i.e. ten years R.I. and fine. Normally, for such offence under Section 304, Part-II, R.I. for 3 to 5 years would be awarded. Varale, the learned A.P.P. vehemently contended that in view of the circumstances in which the accused caused death of his wife, he may be awarded maximum sentence prescribed by Section 304, Part-II, IPC i.e. ten years R.I. and fine. Normally, for such offence under Section 304, Part-II, R.I. for 3 to 5 years would be awarded. However, taking into consideration the age of the accused and the other circumstances stated above and the fact that the period of 14 years has passed after the incident, I find that it would be in the interest of justice if he is awarded R.I. of two years and some fine for the offence under Section 304, Part-II also. 18. For the aforesaid reasons, the appeal is hereby partly allowed. The impugned order convicting the accused for the offence punishable under Section 304-B of I.P.C. is hereby set aside and instead of the same he is now convicted for the offence punishable under Section 304 part-II of I.P.C. and is sentenced to undergo R.I. for two years and to pay fine of Rs.1,000/-, in default to pay fine, to undergo R.I. for three months. The impugned order to the extent of his conviction for the offence punishable under Section 498-A and sentence therein is hereby maintained. Substantive sentence of imprisonment on both counts shall run concurrently. The period during which the accused was in custody during or after trial, shall be set off against substantive sentence of imprisonment under Section 428 of Cr.P.C. The accused shall surrender before the trial court, to undergo the sentence, on or before 6th May, 2006.