Honble SHARMA, J.–Appellant Ramanand was the accused on the fie of learned Additional Sessions Judge Neem Ka Thana District Sikar in Sessions case No. 62/2000. Learned Judge vide judgment dated December 19, 2001 convicted and sentenced the appellant as under:- U/S. 302 IPC: To suffer imprisonment for life and fine of Rs. 22,000/-, in default to further suffer two years simple imprisonment. U/S. 201 IPC: To suffer simple imprisonment for three years and fine of Rs. 3,000/-, in default to further suffer three months simple imprisonment. Substantive sentences were directed to run concurrently. Five co-accused persons, who were family members of the appellant, were however acquitted. (2). It is the prosecution case that in the afternoon of September 21, 2000 Anita, who got married with the appellant some 10 years back, along with her daughter Ekta aged one and a half year were burnt to death in the residential house of the appellant. A written report (Ex. P.2) was submitted at Police Station Patan by Rakesh Agrawal (PW. 2), brother of Anita, on September 22, 2000 at 6.15 AM. Case under Section 302 IPC was registered and investigation commenced. After usual investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge Neem Ka Thana, District Sikar. Charges under Sections 498-A, 302/34 and 201 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. In defence no ocular evidence was produced but report Ex.D-1, lodged by appellant on September 21, 2000 at 9.11 PM was placed on record. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. (4). Death of deceased Anita was indisputably homicidal in nature. As per postmortem report (Ex. P. 13) she received following ante mortem burn injuries:- Fairly built & nourished PM liquidity present all over the body. Partially burnt clothes are present on body. No smell like kerosene like substance. The whole body has burns (post mortem in nature) except back of truck and hips. Burns limited upto skin only. As per postmortem report (Ex. P. 13) she received following ante mortem burn injuries:- Fairly built & nourished PM liquidity present all over the body. Partially burnt clothes are present on body. No smell like kerosene like substance. The whole body has burns (post mortem in nature) except back of truck and hips. Burns limited upto skin only. Hair and head & public area are partially burnt and axillary hair are totally burnt face is swollen. Tongues is protuded swollen. Eyes are partially open conjunctive having patechial haemorrhage both hands are clinched. Bloody froth is coming out of both nostrils and mouth. In the opinion of Dr. Surendra Kumar Meena (PW. 10) the cause of death was asphyxia due to strangulation (throttling). Death of deceased Ekta was indisputably homicidal in nature. As per postmortem report (Ex. P. 12) she received following ante mortem burn injuries:- Fairly built & nourished PM liquidity present on back of body, RM present all over body. Partially burnt clothes are present on body. No smell like kerosene, like substance. The whole body has burnt (PM in nature) except back of trunk and hips. Burns limited upto skin only. Hair of head burnt partially. Face is swollen. Tongue is protruded swollen. Eyes are partially open conjunctive having petechial haemorrhage. Both hands are claimed Bloody froth is coming out of both nostrils and mouth. In the opinion of Dr. Surendra Kumar Meena (PW. 10) the cause of death was asphyxia due to strangulation (throttling). (5). Strangely all the star witnesses of the prosecution did not support the prosecution case and they were declared hostile. Radhey Shyam (PW. 1), father of the Anita, deposed that his daughter never made any complaint to him about the cruel treatment or demand of dowry by the appellant or other members of his family. Anita gave birth to a female child, who also died but he did not know as to in what manner she died. Informant Rakesh Agrawal (PW. 2) though admitted that he submitted written report (Ex. P. 2) at Police Station Patan and put his signatures on the report, did not support the prosecution case. He did not know as to in what manner Anita and her daughter died. Informant Rakesh Agrawal (PW. 2) though admitted that he submitted written report (Ex. P. 2) at Police Station Patan and put his signatures on the report, did not support the prosecution case. He did not know as to in what manner Anita and her daughter died. He also stated that he used to visit the house of his sister but she never made any complaint in regard to cruel behaviour or demand of dowry by the appellant. Smt. Geeta (PW. 3) mother and Gopal (PW. 4) cousin of Anita disowned their previous statements. Bajrang (PW. 5), Ramji Lal (PW. 6) and Nand Lal (PW. 7) also did not support the prosecution case. All these witnesses were declared hostile. (6). Strenuous attempt was made in the grounds of the appeal and also vehemently contended by Mr. A.K. Gupta, the learned counsel that the judgment of trial Court is vitiated on the ground that it is a moral conviction, based on no evidence. According to learned counsel, the room where Anita and Ekta were found burnt was bolted from inside and the appellant at the relevant time was not present in his house. Marriage of appellant with Anita had taken place some ten years back from the date of incident and there is no evidence on record that the appellant had ever treated Anita cruelly or demanded dowry, therefore, charge under Section 302 IPC is not made out. (7). On scanning the evidence we find that following salient features of the case need be noticed:- (i) Report (Ex. (7). On scanning the evidence we find that following salient features of the case need be noticed:- (i) Report (Ex. D-1) lodged by the appellant on September 21, 2000 at 9.11 PM which reads as under:- ^^lsok esa] Jheku ,l-,p-vks- lkgc] ih-,l-ikVu ekU;oj] uez fuosnu gS fd esjh iRuh vkt lk;adky 5&1@2 cts tydj [kRe gks xbZ eSa nqdku ij Fkk rFkk esjs HkkbZ Hkh nqdku ij FksA esjh ekrkth o NksVs HkkbZ dh ?kj okyh fcgkj gekjs ?kj xbZ gqbZ FkhA esjh iRuh v)Z fof{kIr Fkh mlesa nkSjs vkrs FksA ihNs ls og tydj [kRe gks xbZA tc ?kj esa /kqavk mBk vkSj fpYykgV dh vkokt vkbZ rks iM+kSlh Hkkx dj nqdku ij vk;s mUgksaus eqÖks [kcj nhA eSa ?kj ij x;k Åij tkdj dejs esa fdaokMksa dks /kDdk nsdj [kksyk rks esjh iRuh o cPph tydj [kRe gks pqdh FkhA lsok esa mijksDr fjiksVZ isk gSA esjh kknh gq, djhc ¼10½ nl lky gks xbZ gSA rkjh[k 21-9-2000 g- Hkonh; jkekuUn vxzoky iq= Jh foosoj n;ky vkj-,l- Mkcyk** (ii) It is established from the evidence of Nand Lal (PW. 1) that at the time of incident Anita and her daughter Ekta were alone in the house, the door of the room was bolted from inside and the neighbours broke open the door and found Anita and Ekta lying burnt. (iii) Although informant Rakesh Agrawal (PW. 2) disowned his statement under Section 161 Cr.P.C. and was declared hostile, yet he admitted that he lodged report (Ex. P. 2) at Police Station Patan and pout his signatures over the report. (iii) Although informant Rakesh Agrawal (PW. 2) disowned his statement under Section 161 Cr.P.C. and was declared hostile, yet he admitted that he lodged report (Ex. P. 2) at Police Station Patan and pout his signatures over the report. The written report handed over by Rakesh Agrawal reads as under:- ^^,l ,p vks ikVu tkap dj nksf"k;ksa ds fo:) dk;Zokgh djs g- vkuUnh yky Jheku ,l Mh ,e lkgc uhedkFkkuk fo"k;%& eqdnek ntZ djus ckcrA 22-9-2000 ,l Mh ,e Jhekuth fuosnu gS fd eSa jkdsk dqekj vxzoky vyoj dk jgus okyk gwa esjh cgu vfurk tks Mkoyk jsYos LVsku ij jkekuUn iq= foosoj n;ky tkfr egktu ds lkFk kknh gqbZ Fkh ftlds ,d yMdh ,drk gqbZ ,oa nksuksa dks dy fnukad 21-9-2000 dks djhc 3 cts nksigj ckn jkekuUn fouksn dqekj] ewypUn] egsk o budk ,d HkkbZ ftldk uke eqÖks ;kn ugha iq= Jh foosoj n;ky ewypUn dh vkSj jkekuUn dh eka bu lHkh us ngst dh Hkq[k feVkus dh mn~ns; ls esjh cgu o Hkkath dks dsjkslhu rsy Mkydj tyk dj [kRe dj fn;kA ykks ekSds ij iMh gqbZ gSA eqyftek lcqr u"V djus dh otg ls tykus ij mrk: gS eSaus esjh lkFkh o esjs ifjokj tu us euk djus ij ekjihV gekjs lkFk dh esjh cgu dks ngst ds fy, mDr lHkh igys ls Hkh ekjihV o ijskku djrs Fks geus nks pkj erZck leÖkk;k Hkh gS ysfdu ngst ds Hkq[k ds fy, cgu o Hkkath dks tykdj ekj fn;k x;k gesa nsj jkr dks lwpuk feyus ij o ekSds ij igqapus ds ckn esa fjiksVZ djus esa nsjh gqbZ gSA vr% izkFkZuk i= izLrqr dj fuosnu gS fd e`r kjhjksa dks iksLV ekVZe djok;k tkdj nksf"k;ksa dks n.M dh ltk fnykbZ tkosaA 22-9-2000 lqxuk ckbZ dh /keZkkyk ds lkeus vjkoyh izsl ds ikl vyojA izkFkhZ g- jkdsk vxzoky** (iv) The report appears to have been handed over to Sub Divisional Magistrate who directed the SHO to make enquiry and proceed against the culprits. (v) Another hostile witness Gopal (PW. 4) in his cross examination admitted that till Anita gave birth to female child, there was tension in her house. (8). The crucial question in the case is whether Anita herself poured kerosene on her and her daughter Ekta and committed suicide or it is a homicide. The site is the first floor of the house of the appellant. The occurrence took place at 3 PM. (8). The crucial question in the case is whether Anita herself poured kerosene on her and her daughter Ekta and committed suicide or it is a homicide. The site is the first floor of the house of the appellant. The occurrence took place at 3 PM. There was nobody in the house and door of the room, where the incident occurred, was bolted from the inside and it was broken open by the neighbours. During investigation, the near relatives of Anita made allegations that cause of death of Anita and Ekta was greed of dowry. But at the trial all the relatives of appellant did not support the prosecution case. The appellant raised plea of alibi. In such a situation charger under Section 302 IPC is not established against the appellant. From the evidence it however appears that the appellant abetted suicide and committed crime punishable under Section 306 IPC. (9). As already noticed the appellant was charged under Section 498A, 302 and 201 IPC. Charge under Section 306 IPC was not framed against him. We have therefore to adjudge whether the appellant can be convicted of the offence which he is shown to have committed although he was not charged with it. Relevant case law on the point is required to be noticed. In K. Prema S. Rao vs. Yadla Sriniwas Rao ( 2003 (1) SCC 217 = RLW 2003(2) SC 200, their Lordships of Supreme Court propounded thus:- ``22. Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304-B and in the alternative Section 498-A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternative charge framed under Section 498A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to driver her to commit suicide. In the alternative charge framed under Section 498A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to driver her to commit suicide. The provisions of Section 221 Cr.P.C. take care of such situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 CrPC needs reproduction: 221. Where it is doubtful what offence has been committed- (1) If single act or series of acts is of such a nature that it is doubtful which if several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case 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), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. 25. As provided in Section 215 CrPC omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial Court for framing charge under Section 306 iPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306 IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing `dowry death under Section 304 B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113 A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A IPC. The appellant was charged for an offence of higher degree causing `dowry death under Section 304 B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113 A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498 A IPC. (10). This view was followed by the Division Bench of this Court in Smt. Batool vs. State of Rajasthan (2003 (3) WLC (Raj.) 169) = RLW 2003(4) Raj. 2466. (11). In Sushil Kumar Sharma vs. Union of India (2005) 6 SCC 281 = RLW 2005(3) SC 433, the Apex Court indicated as under. (Para 11) ``One other provision which is relevant to be noted in Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband suicide, while under the former provision suicide is abetted and intended. (12). In Randhir Singh vs. State of Punjab (2004) 13 SCC 129 , the Apex Court observed as under:- (Para 12) ``Abetment involves a mental process of instigating a person or intertionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. (13). In State of West Bengal vs. Orilal Jaiswal (1994) 1 SCC 73 , the Apex Court observed that:- ``the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. (14). The Apex Court in Sangaraboina Sreenu vs. State of Andhra Pradesh ( AIR 1997 SC 3233 ) observed as under:- ``Where the accused was acquitted of charge under Sec. 302 Penal Code, which was the only charge framed against him, the High Court could not convict him of offence under Sec. 306 Penal Code. It is true that Sec. 222, Cr.P.C. entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Sec. 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC, within the meaning of Sec. 222 Cr.P.C., for the two offences are of distinct and different categories. (15). In Lakhjit Singh vs. State of Punjab (1994 Supp. (1) SCC 173) the Apex Court observed as under:- (Para 9) ``The learned counsel, however, submits that since the charge was for the offence punishable under Section 302 Indian Penal Code, the accused were not put to notice to meet a charge also made against them under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 Indian Penal Code and; therefore, presumption under Section 113A of Indian Evidence Act cannot be drawn and consequently a conviction under Section 306 cannot be awarded. We are unable to agree. The facts and circumstances of the case have been put forward against the accused under Section 313 Cr.P.C. and when there was a demand for dowry it cannot be said that the accused are prejudiced because the cross examination of the witnesses, as well as the answers given under Section 313 of the Cr.P.C. would show that they had enough of notice of the allegations which attract Section 306 Indian Penal Code also. That apart, what all Section 1113A of Evidence Act says is that the court, having regard to the other circumstances of the case can presume. Therefore, the circumstances in this case would show that the accused have been demanding dowry even within a short period after the marriage and the deceased also had to live in her parents house and it is the husband who went and brought her back. The deceased followed him and unfortunately, the incident has taken place. Since there is no direct evidence regarding administration of position to the deceased as such, the only course left is to hold that the prosecution has proved only suicide. In these circumstances, Section 306 is attracted. For these reasons, the conviction of the appellants under Section 302 and sentence of imprisonment for life are set aside. Instead, they are convicted under Section 306 Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for 5 years and sentence of fine of Rupees 2000 with default clause are confirmed. (16). In Hira Lal vs. State (Govt. of NCT) Delhi (2003) 8 SCC 80 it was held by the Apex Court that though no charge was framed under Section 306 IPC, that is inconsequential. On the facts of the case, even though it is difficult to sustain the conviction under Section 304 B IPC, there is sufficient material to convict the accused appellant in terms of Section 306 IPC along with Section 498 IPC. (17). Having carefully weighed the charges read over to the appellant we find that the case of demand of dowry and cruelty with Anita was put forward and the appellant had enough notice of the allegations which attract section 306 IPC and it cannot be said that the appellant is prejudiced. (18). From the facts appeared this possibility cannot be ruled out that the appellants behaviour with Anita was cruel from the very beginning since she could not deliver the child even after eight years of marriage. Even after the delivery of female child it appears that Anita was not properly treated by the appellant and it may be inferred that on the date of incident Anita was badly tortured by the appellant. The cruel behaviour of appellant dragged Anita to take the life of her daughter and to commit suicide. It is apparent that demise of Anita and Ekta was a custodial death. The cruel behaviour of appellant dragged Anita to take the life of her daughter and to commit suicide. It is apparent that demise of Anita and Ekta was a custodial death. When the death occurred in the custody of appellant he was an obligation at least to give a plausible explanation for the cause of death. It was obligatory on the appellant to show as to what was the immediate cause that persuaded Anita to commit suicide. In Ganehsi Lal vs. State of Maharashtra (1993 Criminal Law Reporter (SC) 311), the Honble Supreme Court indicated as under:- (Para 11) ``When the death had occurred in their custody the appellant is under an obligation in Section 313 CrPC statement at least to give a plausible explanation for the cause of her death. No such attempt was even made excepting denying the prosecution case. (19). Thus we find that though no charge under Section 306 IPC was framed, that is inconsequential. On the facts of the instant case, even though it is difficult to sustain the conviction under Section 302 IPC, there is sufficient material to convict the appellant in terms of Section 306 IPC. (20). For these reasons, we partly allow the appeal of appellant Ramanand and instead of Section 302 IPC we convict him under Section 306 IPC. In view of the fact that the appellant Ramanand has already remained in custody for a period of more than five years and four months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however acquit him of the charge under Section 201 IPC. Appellant Ramanand, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (21). The impugned judgment of learned trial Judge stands modified as indicated above.