JUDGMENT Surendra Vikram Singh Rathore, J. 1. Under challenge in the instant criminal appeal is the judgment and order dated 1.3.2011 passed by learned Additional Sessions Judge, Court No. 4, Faizabad, in Sessions Trial No. 64 of 2009 arising out of Case Crime No. 1074 of 2008, Police Station Kotwali Bikapur, District Faizabad, whereby the appellant-Deena Nath Dubey was tried for the charges under sections 498-A and 304-B IPC but he was convicted for the offence under section 498-A IPC and was sentenced to undergo rigorous imprisonment for a period of three years and also with fine of Rs. 5,000/- and he was also convicted for the offence under section 304 part II IPC and was sentenced to undergo rigorous imprisonment for a period of 10 years and also with fine of Rs. 10,000/- with default stipulation of one year's additional rigorous imprisonment. All the sentences were directed to run concurrently. 2. Brief facts necessary for the disposal of the present appeal are that the complainant Surya Narayan Pandey lodged an F.I.R. at Police Station Bikapur on 8.11.2008 alleging therein that his daughter Poonam was married with Sadanand Dubey who is son of the present appellant. The marriage was solemnized about 5-6 years prior to her death. No vida ceremony took place in marriage. However, after three years of the marriage ceremony the gauna ceremony took place and in dowry Rs. 51,000/- cash and other items were given but the complainant could not give Hero Honda motorcycle in dowry as demanded by the appellant. Because of the non-fulfillment of this demand of dowry his daughter Poonam was treated with cruelty in different manners. Whenever she used to come to her parental home then she used to narrate the cruelty which she was facing in connection with the dowry demand, but the family of the deceased used to console her that bad weather of his life shall pass away. The appellant declined to send her on the occasion of marriage of her younger sister Kavita only because of the non-fulfillment of his demand. Marriage ceremony of the younger sister of the deceased took place on 22.4.2008. The appellant had threatened the complainant side that in case his demand is not fulfilled then he shall remarry his son Sadanand after killing the victim. Marriage ceremony of the younger sister of the deceased took place on 22.4.2008. The appellant had threatened the complainant side that in case his demand is not fulfilled then he shall remarry his son Sadanand after killing the victim. On 8.11.2008 at about 7-8 a.m. the complainant got an information that his daughter Poonam has been killed by the present appellant and his wife and his daughter Saroj. This F.I.R. was lodged at the police station on the same day at 10.20 a.m. and inquest proceedings took place and the dead body of the deceased was sent for post mortem which was conducted on the same day at 4.45 p.m. According to the post mortem report the deceased was aged about 21 years and following ante-mortem injuries were found on her body (i) Abrasion 1.5 x 0.5 c.m. over frontal region below her margin. (ii) Abrasion 4 c.m. x 0.5 c.m. on anterior aspect of neck, below angle of mordible right side. (iii) Abrasion 0.5 c.m. x 0.2 c.m. over superstructural notch with depression of rib case entangled in lungs inner side. (iv) Bruise over right upper limb extending from 4 deltoid to middle of forearm. (v) Bruise diffusion of both gluteal region. (vi) Bruise diffusion over right calf muscle (posterior aspect of leg). (vii) Bruise over left thigh laterally 8 c.m. x 6 c.m. (viii) Bruise over left upper limb from mid arm to mid forearm. (ix) Lacerated wound 6 c.m. x 0.5 c.m. over shin of right foot, 8 c.m. below knee. (x) Contusion over right parietal region 6 c.m. x 4 c.m., above right ear. (xi) Serum coming from right nostril. 3. On internal examination there was fracture on right parietal bone with subdural haematoma. Cortilages of walls of breast with fracture of both side ribs. Ribs pointing innerside Haemo-therax. Both the lungs were lacerated. Right cell of heart was full and left was empty. Peritoneum of abdomen had blood clots. Buccal cavity was congested. Stomach was empty. Small intestine had gas and pasty substance and large intestine had gas and faecal matter. Liver was lacerated in the size of 4 c.m. x 2.5 c.m. Gall bladder was full. Bladder of urine was empty. Womb was empty. In the opinion of the doctor, the death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries. 4. Liver was lacerated in the size of 4 c.m. x 2.5 c.m. Gall bladder was full. Bladder of urine was empty. Womb was empty. In the opinion of the doctor, the death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries. 4. Initially the case was registered against three accused persons namely present appellant, his wife and his daughter Saroj. However, after concluding the investigation the charge-sheet was filed only against the present appellant. In this case the husband of the deceased was not made an accused as he was in service at Surat. The case of the appellant was that he has been falsely implicated because of enmity. The victim fell from the roof of the house due to which she received injuries and she died and he has given the information of her death and there was no demand of dowry at any point of time nor she was treated with cruelty. 5. No evidence in defence was adduced on behalf of the appellant. 6. During course of trial, the prosecution has examined P.W. - 1, the complainant Surya Narayan Pandey, P.W. - 2 Smt. Malti, mother of the deceased, P.W. - 3 Ram Milan Pandey, father of the complainant, P.W. - 4 Dr. A.K. Pandey, who has conducted the post mortem of the deceased, P.W. - 5 Nayab Tahsildar, Vijay Pratap Singh, who has conducted inquest proceedings, P.W. - 6 Head Constable Sanjay Kumar Singh, who has prepared the chik report and G.D. of this case, P.W. - 7 Circle Officer, Prem Chand, who has investigated this case and P.W. - 8 Homeguard, Amar Nath Singh who has taken the dead body of the deceased in sealed condition for post mortem. 7. Submission of the learned Counsel for the appellant was that in this case doctor has opined that the injuries could have been caused by a fall and P.W. - 3 has not given any statement that there was any demand of dowry or consequential ill treatment. It has further been submitted that section 304 part II IPC cannot be treated to be a minor offence of section 304-B IPC. It has further been submitted that the sentence inflicted upon the appellant for the offence under section 304part II IPC was excessive and the conviction of the appellant is not sustainable under law. 8. It has further been submitted that section 304 part II IPC cannot be treated to be a minor offence of section 304-B IPC. It has further been submitted that the sentence inflicted upon the appellant for the offence under section 304part II IPC was excessive and the conviction of the appellant is not sustainable under law. 8. Learned Additional Government Advocate has submitted that in this case the Trial Court has rightly convicted the appellant. The deceased had received as many as 11 injuries and there was absolutely no plausible explanation of such injuries. The defence of the appellant was that she had fallen from the roof, does not inspire confidence as large number of injuries could not have been caused by a single fall. It has further been submitted that it was the duty of the appellant to inform the police regarding such an unnatural death but the appellant failed to give any information to the police. It has also been submitted that during trial a defence was taken on behalf of the appellant that the victim fell on the wood which was to be used as cooking fuel due to which she sustained injuries and she was under treatment at home. However, no evidence in defence to explain as to how the incident took place could be furnished by the appellant and therefore, judgment of the Trial Court needs no interference. In view of the provision of section 106 of the Indian Evidence Act it was duty of the appellant to explain the circumstances under which the victim died as he was the master and in possession of the house wherein the victim has died, so he was the best person to explain these circumstances. 9. Before proceedings further it is pertinent to mention here that the husband of the deceased and the Devar of the deceased were working in Surat for the last about two years. In the F.I.R., the mother-in-law and the sister-in-law of the deceased were also arrayed as accused. However, no charge-sheet was filed against them as there was no allegation of demand of dowry against them. So only the present appellant Deenanath Dubey, who happens to be father-in-law of the deceased and only male person living in the said house, was tried in this case. 10. However, no charge-sheet was filed against them as there was no allegation of demand of dowry against them. So only the present appellant Deenanath Dubey, who happens to be father-in-law of the deceased and only male person living in the said house, was tried in this case. 10. In the instant case the trial Court has held that no offence under section 304-B IPC was made out as there was no reliable evidence regarding demand of dowry. This finding was based solely on the ground that P.W. - 3, the grand father of the deceased Ram Milan Pandey has not given any statement regarding demand of dowry. In this background, two questions arise for the consideration of this Court, (i) whether an offence under section 304 part II IPC can be treated as minor offence of an offence under section 304-B IPC, and (ii) whether the finding of the Trial Court that there was no reliable evidence regarding demand of dowry and consequential ill treatment. 11. There is no dispute to the legal situation that the Trial Court enjoys the power to convict for minor offence by virtue of section 222 of the Code of Criminal Procedure. 12. Section 222 (1) and (2) reads as under Section 222 , Cr.P.C. deals with a case when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. The next provision is section 222(2), Cr.P.C. which 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. Looking at the provisions under sections 222(1) and 222(2) it is discernible that an accused may be convicted and sentenced for offences not charged with any major offence if the facts are proved that may reduce it to a minor offence. 13. In the case of Lakhjit Singh v. State of Punjab 1994 Supp. (1) SCC 173, the Apex Court examined this point. In that case the accused was charged and tried for the offence under section 302 of the I.P.C. but the ingredients of the section were absent. 13. In the case of Lakhjit Singh v. State of Punjab 1994 Supp. (1) SCC 173, the Apex Court examined this point. In that case the accused was charged and tried for the offence under section 302 of the I.P.C. but the ingredients of the section were absent. However, the ingredients of section 306 of the I.P.C. were present. In that situation the Apex Court converted the conviction from section 302 to 306 of the I.P.C. In that case, it was argued that the accused cannot be tried under section 306 of the I.P.C. because he did not have the opportunity to meet the charge under section 306 of the I.P.C. However, the argument was not found correct and the accused was convicted under section 306 of the I.P.C. 14. The scope of section 222 of the Cr.P.C. was dealt with by the Hon'ble Supreme Court in the case of Shamnsaheb M. Multtani v. State of Karnataka 2001 (42) ACC 495 (SC). In that case it was opined that when an accused is charged with a major offence and this offence is not proved the accused can be convicted for the minor offence if the ingredients of the minor offence are available. The Apex Court had an occasion to explain in this case as to what a minor offence is. It was held that although expression "minor offence" is not defined in the Code, it can be discerned from the context that the test of a minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offence wherein the main ingredients are common, the one punishable amongst them with a lesser sentence can be regarded as a minor offence vis-a-vis the other offence. Section 222 (5) Cr.P.C. reads as under 15. Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. Illustrations attached to the section would also make the legal position clear. (a) A is charged, under section 407 of the Indian Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. Illustrations attached to the section would also make the legal position clear. (a) A is charged, under section 407 of the Indian Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was riot entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section 406. (b) A is charged, under section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code. 16. The illustrations provided in the section would bring the above point home well. Only if the 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. In the case of Shamnsaheb (supra), the accused was charged under section 302, IPC but convicted and sentenced under section 304-B, IPC and it was held that the composition of the offence under section 304-B, IPC is vastly different from the formation of the offence of murder under section 302, IPC and hence the former cannot be regarded as minor offence. It was also held that without affording an opportunity to the accused, a conviction under section 304B, IPC would lead to real and serious miscarriage of justice and as a result the Apex Court set aside the conviction and sentence passed on the accused by the High Court and remanded the case to the Trial Court to proceed against the accused from the stage of defence evidence giving him notice that Unless he disproves the presumption, he would be liable to be convicted under section 304-B, IPC. 17. There is no doubt that when the accused is charged with a major offence, he can be convicted of a minor offence. It is true that what is major offence and what is minor offence is not defined. 17. There is no doubt that when the accused is charged with a major offence, he can be convicted of a minor offence. It is true that what is major offence and what is minor offence is not defined. The gravity of offence must depend upon the severity of the punishment that can be identified, but the major and the minor offences must be cognate offences which have the main ingredients in common, and a man charged with one offence which is entirely of a different nature from the offence which is proved to have been committed by him, cannot in the absence of a proper charge be convicted of that offence, merely on the ground that the facts proved constitute a minor offence. 18. The ingredients to constitute an offence under section 304 IPC are entirely different from that of the offence under section 304-B IPC. In order to constitute an offence under section 304-B IPC the ingredients which are necessary to constitute the said offence are as under The ingredients to constitute an offence under section 304-B IPC are as under (a) The death should have been caused within seven years of her marriage and such death must be an unnatural death. (b) The deceased was subjected to cruelty or harassment by her husband or her relatives. (c) Such cruelty or harassment was for, or in connection with, any demand for dowry. (d) Such cruelty or harassment was soon before her death. Ingredients to constitute an offence under section 304 IPC may be summed up as under Subject to certain exceptions culpable homicide is murder if the act by which the death caused is done....... (1) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or (4) with the knowledge that the act is so unminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 19. 19. An offence under section 304 IPC is a minor offence of an offence of murder but it cannot be termed as minor offence of an offence under section 304-B IPC, as the ingredients are entirely different. The finding of the Trial Court to the contrary becomes unsustainable under law. 20. So far as the second point is concerned, P.W. - 1 father of the deceased, in his examination-in-chief has stated that in the marriage he could not give Hero Honda motorcycle and 'Handa' (a big brass utensil) which was demanded by Deenanath Dubey. He has also stated that the family members of the appellant used to threaten her that demand be fulfilled otherwise she shall be killed and they used to beat her. On this point, P.W. - 1 Surya Narayan Pandey was cross-examined also and in his cross-examination he has stated that the demand of motorcycle and Handa were settled prior to the marriage. Admittedly, in this case after marriage no Vida ceremony took place and the Vida ceremony took place only after three years of marriage. This witness has also stated that after marriage and till Gauna the demand of motorcycle and Handa was not pressurized. This witness was given a suggestion on behalf of the appellant which reads as under ^^;g dguk xyr gS fd eksVjlkbZfdy rFkk gUMk dh ekWax dsoy nhukukFk us gh dh FkhA^^ 21. In the F.I.R. also, the demand of dowry is alleged to have been made by the present appellant only. Even during trial, the allegation of demand was made only against the present appellant and not against the other family members. This contrary statement was put to the witness during cross-examination and again this witness has stated that after about one year of the Gauna ceremony this demand was again made and he has assured that when the finances would be available then their demand shall be fulfilled. It transpires from the evidence that because of such ill treatment the deceased came back to her parental house but as the wife of the present appellant suffered a paralysis attack so she was called by Deenanath and after assurance of her husband Sadanand that she shall not be ill treated, the victim was sent to her matrimonial home for looking after her ailing mother-in-law. P.W. - 2 has also made allegation of demand of dowry against Deenanath and this witness has stated that this demand was made after the gauna when the deceased came back to her parental house and Deenanath came to their house after about 20 days of the Gauna and made such a demand. This witness has stated that her daughter used to make complaint regarding marpeet only against Deenanath and Deenanath used to demand dowry from them. Learned Counsel for the appellant has drawn the attention of this Court towards the statement of P.W. - 2 Smt. Malti wherein she has stated that Deenanath on his mobile allowed the deceased to talk with her. On the strength of this statement it is argued that had there been any ill treatment by appellant Deenanath then he would not have permitted the deceased to talk with her mother. P.W. - 3 is the grand father of the deceased who was also a witness of the inquest proceedings. This witness has only proved the inquest report and has not given any statement regarding demand of dowry. But it is pertinent to mention here that neither in the examination-in-chief nor in his cross-examination any question was put to this witness regarding demand of dowry. In cases of dowry death the demand of dowry and ill treatment spreads in a long period of time and it is not like any other normal crime wherein the entire incident takes place in the presence of the eye witnesses in a very short time. So in cases of dowry death witnesses gather the incident which took place during several years and as per their own memory and power to reproduce that in their own words, they express how and when demand of dowry was made. So on this point, minor contradictions in the evidence of witnesses are bound to occur. So such contraction does not go to the root of the case. 22. Which discrepancies are material and would affect trial has also been considered by Hon'ble Apex Court in the case of Jeewan and Others v. State of Uttarakhand, reported in para 21 as under "21. Now, let us examine the law in relation to discrepancies. Discrepancy has to be material and seriously affecting the case of the prosecution. Every minor and immaterial discrepancy would not prove fatal to the case of the prosecution. Now, let us examine the law in relation to discrepancies. Discrepancy has to be material and seriously affecting the case of the prosecution. Every minor and immaterial discrepancy would not prove fatal to the case of the prosecution. The Court has to keep in mind that evidence is recorded after years together and to expect the witnesses to give a minute to minute account of the occurrence with perfection and exactitude would not be a just and fair rule of evidence. The law in this regard is well settled. Even an omission or discrepancy in the inquest report may not be fatal to the case of the prosecution. The Court would have to examine the entire case and discuss the prosecution evidence in its entirety to examine the real impact of a material contradiction upon the case of the prosecution. Trustworthy evidence cannot be rejected on fanciful ground or treated to be in the nature of conjectures. In this regard, reference can be made to the case of Brahm Swaroop and another v. State of Uttar Pradesh 2010 (71) ACC 975 (SC), where the Court held as under: 10. Omissions in the inquest report are not sufficient to put the prosecution out of Court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery, etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses; cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest (See Pedda Narayana v. State of A.P., Khujji v. State of M.P., George v. State of Kerala, Sk. Ayub v. State of Maharashtra, Suresh Rai v. State of Bihar, Amar Singh v. Balwinder Singh, Radha Mohan Singh v. State of U.P. and Aqeel Ahmad v. State of U.P.) 11. In Radha Mohan Singh, a three-Judge Bench of this Court held: (SCC p. 460, para 11) 11. ... Ayub v. State of Maharashtra, Suresh Rai v. State of Bihar, Amar Singh v. Balwinder Singh, Radha Mohan Singh v. State of U.P. and Aqeel Ahmad v. State of U.P.) 11. In Radha Mohan Singh, a three-Judge Bench of this Court held: (SCC p. 460, para 11) 11. ... No argument on the basis of an alleged discrepancy, overwriting, omission or contradiction in the inquest report can be entertained unless the attention of the author thereof is drawn to the said fact and he is given an opportunity to explain when he is examined as a witness in Court. 12. Even where the attention of the author of the inquest is drawn to the alleged discrepancy, overwriting, omission or contradiction in the inquest report and the author in his deposition has also admitted that through a mistake he omitted to mention the crime number in the inquest report, this Court has held that just because the author of the report had not been diligent did not mean that reliable and clinching evidence adduced by the eyewitnesses should be discarded by the Court. [Vide Krishna Pal (Dr.) v. State of U.P.] 13. In view of the law referred to hereinabove it cannot be held that any omission or discrepancy in the inquest is fatal to the prosecution's case and such omissions would necessarily lead to the inference that F.I.R. is ante-timed. Shri N.K. Sharma, Sub-Inspector (P.W. 7), had denied the suggestion made by the defence that till the time of preparing the report the names of the accused persons were not available. He further stated that the column for filling up the nature of weapons used in the crime was left open as it could be ascertained only by the doctor what weapons had been used in the crime. Thus, the submissions made in this regard are preposterous." 23. Since it is a case of 304-B IPC, therefore, presumption under section 113-B of the Indian Evidence Act also becomes important. 24. Hon'ble Apex Court in the case of Satvir Singh and others v. State of Punjab and another 2001 (43) ACC 912 (SC), wherein it was held that "Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties." 25. In a recent judgment in the case of Pradeep Kumar v. State of Haryana 2014 (86) ACC 919 (SC), the Hon'ble Apex Court has considered the legal position regarding section 304-B IPC and 113-B of Indian Evidence Act and has observed in para 23 as under "The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in section 304-BIndian Penal Code and the wording in the presumptive section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption Under section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: " 26. In the instant case there is no dispute to the fact that the victim was married in the year 2003 and the fact that the Gauna ceremony took place in the year 2005 is also admitted fact which has been admitted by the appellant in his statement under section 313 Cr.P.C. It is a fact that the victim died on 8.11.2008. It is also a conclusively established fact that she died an unnatural death and the number of injuries, as mentioned above clearly shows that parietal bone of the deceased was fractured and ribs were also fractured and penetrated into lungs, so it establishes that she was treated with cruelty soon before her death because these injuries were the cause of her death. Demand of dowry and consequential ill treatment also stands established. 27. The defence of the appellant was that she was being treated in her house and several injuries were received only due to fall from the roof. Learned Counsel for the appellant has drawn the attention of the Court towards the statement of the doctor wherein, in his cross-examination, he has stated that the head injury may be caused by a fall. The injury on the ribs may also be caused by a fall on a hard substance. But these statements cannot be taken to be the statements that all such injuries which have been received by the deceased could have been the result of a single fall. No such question was put to the doctor whether all these injuries could have been caused by a single fall from the roof. The manner in which ribs, which are on the front part of the body were fractured, the parietal bone which was on the top of the head was also fractured, so all these injuries could not have been caused by a single fall, which shows that she was mercilessly treated with cruelty which resulted into her death. There is a specific allegation of demand of dowry which was supported by the evidence but the trial Court decided otherwise. So the finding of the trial Court that there was no evidence regarding demand of dowry becomes unsustainable under law. 28. Discrepancies have to be material and seriously affecting the case of the prosecution. Every minor and immaterial discrepancy would not prove fatal to the case of the prosecution. The Court has to keep in mind that evidence is recorded after years together and to expect the witnesses to give a minute to minute account of the occurrence with perfection and exactitude would not be a just and fair rule for appreciation of evidence. The law in this regard is well settled. 29. The Court has to keep in mind that evidence is recorded after years together and to expect the witnesses to give a minute to minute account of the occurrence with perfection and exactitude would not be a just and fair rule for appreciation of evidence. The law in this regard is well settled. 29. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the Court in order to render the evidence unacceptable, that the Courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution. Even if there are some omissions, contradictions or discrepancies, the entire evidence cannot be discarded. After exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvements, the Court can come to the conclusion as to whether the residual evidence is sufficient to convict the accused. 30. Now coming to the point whether in this appeal conviction under section 304 part II IPC can be converted under section 304-B IPC. Powers of appellate Court have been described in section 386 Cr.P.C. Section 386 Cr.P.C. reads as under-- 386. 30. Now coming to the point whether in this appeal conviction under section 304 part II IPC can be converted under section 304-B IPC. Powers of appellate Court have been described in section 386 Cr.P.C. Section 386 Cr.P.C. reads as under-- 386. Power of the Appellate Court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-- (a) In an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) In an appeal from a conviction-- (i) Reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) Alter the finding, maintaining the sentence, or (iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) In an appeal for enhancement of sentence-- (i) Reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court competent to try the offence, or (ii) Alter the finding maintaining the sentence, or (iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) In an appeal from any other order, alter or reverse such order; (e) Make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." 31. So the appellate Court has power to alter the finding and the only restriction in an appeal against conviction is that the sentence cannot be enhanced. In the instant case all the ingredients to constitute an offence under section 304-B IPC were present and the finding of the Trial Court that 304-B IPC was not made out was not correct. Accordingly, the finding of the Trial Court becomes unsustainable under law and this Appellate Court holds that the offence committed by the appellant was squarely covered under section 304-B IPC. The appellant has also been convicted for the offence under section 498-A IPC. 32. Hon'ble Apex Court in the case of Shanti v. State of Haryana 1991(28) ACC 107 (SC), has held that there is no need to pass a separate sentence under section 498-A IPC when accused is convicted under section 304-B IPC. Relevant para of the said judgment reads as under "Further it must be borne in mind that a person charged and acquitted under section 304-B IPC can be convicted under section 498-A IPC without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charge under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under section 498-A IPC in view of the substantive sentence being awarded for the major offence under section 304-B IPC. Since the offence under section 304-B IPC is proved against the appellant, hence, there is no need to inflict separate sentence under section 498-A IPC". 33. The next question required to be addressed in the instant appeal is whether adequate sentence has been passed against the appellant or he deserves any leniency on the point of sentence. Under section 304-B IPC minimum sentence of 7 years has been prescribed which may extend upto imprisonment for life. 34. Submission of the learned Counsel for the appellant is that in this case, the sentence is on higher side and is too harsh. The appellant has been sentenced with imprisonment for a period of ten years. Under section 304-B IPC minimum sentence of 7 years has been prescribed which may extend upto imprisonment for life. 34. Submission of the learned Counsel for the appellant is that in this case, the sentence is on higher side and is too harsh. The appellant has been sentenced with imprisonment for a period of ten years. Law is settled on the point that undue sympathy to accused in awarding adequate sentence would do more harm to the justice delivery system and undermine the confidence of public in the efficacy of law and society. 35. In Sevaka Perumal and another v. State of Tamil Nadu (1991) 3 SCC 471 , after referring to the decision in Mahesh v. State of M.P. (1987) 3 SCC 80 , Hon'ble Apex Court observed that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. The Court further observed that if the Courts do not protect the injured, the injured would then resort to private vengeance and, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 36. In State of M.P. v. Saleem alias Chamaru and another's 2005 (52) ACC 956 (SC), the Court opined that the object of sentencing should be to protect society and to deter the criminal that being the avowed object of law. It further ruled that it is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 37. In Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC 175 , the Hon'ble Apex Court while giving emphasis on relevance of imposition of adequate sentencing in the social context observed thus: The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". In our view, if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance. 38. In State of Karnataka v. Krishnappa 2000 (40) ACC 903 (SC), a three-Judge Bench, of Hon'ble Apex Court while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. 39. In Jameel v. State of Uttar Pradesh 2011 (75) ACC 342 (SC), the trial Court had convicted the Appellant therein Under section308Indian Penal Code along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the Appellant were affirmed. By the time the matter came to be considered by this Court, the Appellant had already undergone eight months in custody. While reducing the sentence, the Court observed as under: In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. 40. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. 40. . In Shyam Narain v. State (NCT of Delhi) 2013 (82) ACC 478 (SC), it has been ruled by Hon'ble Apex Court that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim. The aforementioned case laws have been referred by the Hon'ble Apex Court in its recent judgments in the case of Sumer Singh v. Surajbhan Singh and others 2014 (86) ACC 325 (SC). 41. In the facts of the instant case the deceased had received large number of injuries which established that soon before her death she was treated with utmost cruelty. Her parietal bone and ribs were fractured. 42. The defence taken by the appellant appears to be prima facie improbable and unreliable as in such case no treatment of the deceased was possible in the house. Apart from it, no evidence in defence, was adduced on behalf of the appellant that none had beaten the deceased. No person of the vicinity could be produced by the appellant in his defence to support his defence story. Apart from it, no evidence in defence, was adduced on behalf of the appellant that none had beaten the deceased. No person of the vicinity could be produced by the appellant in his defence to support his defence story. Apart from it P.W. - 6 Naib Tehsildar has stated during trial that Appellant who was present at that time told that deceased had died due to illness. This statement of the witness has not been challenged or controverted by defence in cross-examination. So the defence theory of fall from roof was only an after thought and cooked up defence case. 43. This Court is of the considered view that the appellant does not deserve any leniency on the point of sentence. If the State would have preferred any appeal for enhancement of sentence then such an appeal would have great substance. As no such appeal for the enhancement of sentence, either by the victim or by the State has been preferred, therefore, under law no enhancement in the sentence is permissible. Remanding back the case for re-trial after amendment in the charge would cause great hardship to the prosecution. 44. Before parting with the judgment, I would like to say that only because of such nature of cases Hon'ble Apex Court has emphasised the need to frame alternative charge under section 302 IPC in cases of 304-B IPC. Reference may be made to the case of Rajbir v. State of Haryana 2010 (71) ACC 90 (SC), and clarified in the case of Jasvinder Saini v. State (Govt. of NCT Delhi) 2013 (83) ACC 132 (SC). 45. Accordingly, this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant is hereby modified from section 304 part (II) IPC to section 304-B IPC and the sentence imposed by the trial Court is hereby confirmed. The appellant is on bail. His bail is cancelled. He shall be taken into custody forthwith to serve out the remaining part of sentence inflicted by the Trial Court. He will not have to serve out sentence inflicted by the Trial Court for the offence under section 498-A IPC. 46. Office is directed to communicate this order to the Court concerned forthwith for immediate compliance and also to send back the lower Court record.