JUDGMENT : 1. Since these two appeals are in respect of the same judgment rendered by the Sessions Court and since common questions of law and facts are involved in these two appeals, in order to avoid repetition of facts and law, they are taken up together to dispose of them cby this common judgment. 2. Criminal Appeal No.2884/2010 is preferred by the appellant/accused No.1 and Criminal Appeal No.1343/2010 is preferred by the appellants/accused Nos.2 and 3. Both the appeals are filed under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment and order of conviction dated 7th December 2010 passed by the Principal Sessions Judge, Belgaum, in S.C. 145/2010 whereby the learned Trial Judge convicted appellants/accused Nos.1 to 3 for the offences punishable under Sections 304 II, 323, 324, 506 read with Section 34 of the Indian Penal Code and also being aggrieved by the sentence imposed by the order dated 9th December 2010. The appellants in both the appeals have challenged the legality and correctness of the judgment and order of conviction passed by the Trial Court on the grounds as mentioned in the respective appeal memorandums. 3. The appellants in both the appeals have challenged the legality and correctness of the judgment and order of conviction passed by the Trial Court on the grounds as mentioned in the respective appeal memorandums. 3. Brief facts of the prosecution case, as per Ex.P.1 lodged by P.W.1, the father of the deceased, are that P.W.1 is residing at the address as mentioned in the complaint and is doing agriculture; he is having a daughter by name Shobha Urf Pinki and a son by name Supreet; about four years ago, his son Supreet was admitted to Raibag Mahaveer English Medium School to study; said Supreet was residing in the Hostel of the said school while he was studying; as on the date of the incident, Supreet was studying the second standard; whenever the complainant P.W.1 used to visit his son, Supreet was complaining that all the teachers were giving ill-treatment to him in the hostel, they were beating him and whenever he (Supreet) told them that he was not feeling well, he was not taken to the hospital for treatment, but he was given tablet in the hostel itself and he told his father that he would go along with him (father) and asked to take along with him; however, he (complainant) left his son to study in the said school; on 28.12.2009, he and his wife Sannathi went to hostel to see Supreet and even at that time, Supreet complained that the teachers namely Uma teacher (accused No.2) and Parvathi teacher (accused NO.3) and other teachers were assaulting him and also that there was no proper arrangement in the hostel and he told that he would come to the house; then, he and his wife told Supreet that he has to compete the education of that year and from the next year he will be admitted to another school. On 31.12.2009, the complainant had been to jatra (fair) at Badami and stayed there. On 01.01.2010, at about 9.45 a.m., one Sanjay Laxman Nemannavar phoned the complainant informing him that something has happened to Supreet and is serious and asked the complainant to come immediately. Complainant came to Raibag and then he went to the Naik Hospital and saw Supreet lying dead and blood oozing from his nostrils and mouth, the toes of the left leg of Supreet were muddy and there were abrasion injuries. Complainant came to Raibag and then he went to the Naik Hospital and saw Supreet lying dead and blood oozing from his nostrils and mouth, the toes of the left leg of Supreet were muddy and there were abrasion injuries. When P.W1 enquired with the doctor as to what happened to his son, the doctor told that people from Mahaveer School had brought the boy at 7.00 a.m. on that day and when he saw the said boy, he was already dead, and thereafter, those people left the dead body of the said boy and went away from the hospital. The complainant also stated in the complaint that his son Supreet was aged 9 years and died because something happened to him, however, he has suspicion on the teachers and the persons working in the hostel and also suspicion with regard to the death of his son and requested the police that action has to be taken in that regard. On the basis of the said complaint-Ex.P.1, firstly, a UDR case was registered in UDR 1/2010 under Section 174(3) of Cr.P.C. Thereafter, on 08.01.2010, P.W.1 filed another complaint with the Raibag Police Station wherein he has stated that he has already made a complaint on 01.01.2010 informing that his son expired because something happened to him and he was having suspicion on the teacher and the hostel people. He further stated in the complaint that on 08.01.2010, in the morning at about 10.00 a.m., one Mrutyunjaya Shanthinath Patil (P.W.22), who was also studying in 10th standard of Mahaveer School and who is his relative, came to the house of P.W.1 as there was holiday to the school. At that time, P.W.1 enquired said Mrutyunjay Shanthinath Patil as to what happened to Supreet. At that time, P.W.1 enquired said Mrutyunjay Shanthinath Patil as to what happened to Supreet. Then, the said Mrutyunjay Shanthinath Patil told the complainant that deceased Supreet was asking the hostel Supre- in-tendent-Srikanth Ramappa Betageri (accused no.1), Kumari Uma Potdar (accused No.2) and Kumari Parvathi (accused No.3), in front of others, that they were not giving the proper food and they are not taking him to the hostel and because of that reason all the three persons were angry towards deceased Supreet; on 30.12.2009 at 6.30 p.m., accused Nos.2 and 3 and accused No.1 assaulted Supreet and Vikas Soudhi stating that they were arguing with them; on 31.12.2009 all the three were telling Supreet and Vikas Soudhi and they can complain to anybody they want and that they would not give anything to eat and no food was provided to them; in the evening when Supreet was running fever, he was not taken to the hospital and all the three persons i.e., accused Nos.1 to 3 gave croc in tablets to Supreet and made him to sleep in the hostel. At that time, Supreet was telling all the three as they had not given any food and they not taken him to the hospital for getting treatment and he will tell the same before his father whenever his father comes to the hostel. On 01.01.2010 at 1.30 a.m., when Mrutyunjaya Shanthinath Patil woke up to answer first call of nature, he saw all the accused persons i.e., accused Nos.1 to 3 assaulting Supreet in the dining hall of the hostel asking him that he is complaining his father and when Supreet became unconscious, they lifted him and put him on the cot in the said hostel. On seeing him (Mrutyunjaya Shanthinath Patil), they warned that if he disclosed this fact to anybody, same thing will happen to him also what has happened to Supreet and they threatened him not to tell about the incident to anybody and because of that reasons, he did not tell anybody about the incident. It is also stated in the complaint that after telling about the said incident, Mrutyunjaya Shanthinath Patil requested the complainant not to disclose this fact to anybody otherwise, the accused will not leave him and also that his education career will be ruined. It is also stated in the complaint that after telling about the said incident, Mrutyunjaya Shanthinath Patil requested the complainant not to disclose this fact to anybody otherwise, the accused will not leave him and also that his education career will be ruined. He told all these things with fear and as told by Mrutyunjaya Shanthinath Patil all the accused persons assaulted Supreet on the thigh portion and also to the toes and left leg and caused injuries and as the accused persons assaulted Supreet, there was bleeding from the nostrils and mouth and he expired because of the said reasons. Therefore, he has stated that all the accused persons i.e., accused Nos.1 to 3 are responsible for causing the death of Supreet and action may be taken against them. This complaint is produced as per Ex.P.2. on the basis of Ex.P.2, a case came to be registered in Raibag Police Station Crime No.10/2010 on 08.01.2010 against all the three accused persons for the offences punishable under Sections 323, 324, 506 and 302 read with Section 34 of the Indian Penal Code. 4. There after wards, the Investigating Officer conducted investigation in the mater and filed charge sheet against all the three accused persons for the above mentioned offences. 5. After considering the charge-sheet material, the learned Sessions Judge heard both sides and then he framed the charge against the accused persons and posted the matter for conducting trial. 6. In support of its case, the prosecution, in all, examined 30 witnesses as P.Ws.1 to 30, got marked the documents Exs.P.1 to P.77 and also got marked the material object M.Os.1 to 8. On the side of the defence, no witness was examined nor any document was got marked. After hearing both sides and considering the material placed before him, ultimately the learned Session Judge convicted the accused persons for the offences punishable under Section 323, 324, 506 and 304 part II read with Section 34 of the IPC and imposed the sentence as mentioned in the order of the learned Sessions Judge. Being aggrieved by the judgment and order of conviction, so also the quantum of sentence imposed the appellants are before this Court in both the above appeals. 7. Being aggrieved by the judgment and order of conviction, so also the quantum of sentence imposed the appellants are before this Court in both the above appeals. 7. Heard the arguments of the learned counsel appearing for appellant/accused No.1, arguments of the learned counsel appearing for appellants/accused No.2 and 3, so also heard the arguments of learned High Court Government Pleader in respect of both the appeals. 8. Learned counsel appearing for the appellant/accused No.1 during the course of his argument firstly draw the attention of this Court to the charged framed by the learned Sessions Judge and he made the submission referring to the charge that there is no charge as against appellant/accused No.1 for the offence punishable under Section 302 of the IPC. He made the submission that though there is no such a charge framed, but surprisingly the Trial Court convicted the appellant/accused No.1, even for the offence under Section 304 part II of the IPC. Learned counsel took the Court to the entire material i.e. deposition of witnesses exhibited documents and he made the submission that firstly, so far as the case of the prosecution is concerned, there are no eyewitnesses to the incident and case of the prosecution rests only on the circumstantial evidence. He also made the submission that though prosecution claims that 8 days after the date of the alleged incident, PW-22 Mrutyunjaya Patil said to have informed PW-1 that it is accused No.1 to 3 assaulted the deceased Supreet at about 1.30 a.m. on 01.01.2010 and thereby accused his death. Learned counsel made the submission that said Mrutyunjaya Patil PW-22 not at all supported the case of the prosecution and he turned hostile. Hence, he made the submission that in view of this that there is no other any witness, who have actually seen the alleged incident. Learned counsel made the submission that said Mrutyunjaya Patil PW-22 not at all supported the case of the prosecution and he turned hostile. Hence, he made the submission that in view of this that there is no other any witness, who have actually seen the alleged incident. So far as the other materials are concerned learned counsel made the submission that looking to the final opinion of the Doctor who conducted post mortem examination over dead body of the deceased, it is very clear that death is not because of any assault and he has given this opinion that on revising the FSL report, Histopathology report, and the p.m. findings of the deceased Supreet Jayanand Durgannavar, aged about 09 years, the Doctor PW-23 opined that deceased by name Supreet Jayanand Durgannavar appears to have died of “Vasovagal shock due to Asphyxia, secondary to Febrile Convulsions.” Hence, learned counsel made the submission that looking to this final opinion of the Doctor, it also goes to show that the death is not because of the alleged assault as claimed by the prosecution. It is also his contention, when further opinion was sought from the Doctor regarding the real cause of death framing 3 questionnaire to the Doctor as per the document Ex.P- 46, wherein it was sought from the Doctor to know, whether there is any possibility of the death of Supreet, because he was assaulted and he was having a shock for such assault? The second one, whether there is any possibility of his death that when he was suffering from fever and he was not provided with food for one days and there after wards, when he was provided with the meals and after the meals if he was given Croc in tablets ? and the third one it is mentioned that the Doctor has given the opinion that death is because of the Asphyxia. But under which circumstances this will happen and for what reason there will be such Asphyxia, to cause the death and asked the Doctor to give a specific and definite opinion about the same. Learned counsel submitted referring to Ex.P-47 the opinion of the Doctor in that regard that questionnaire No.1 and 3 the Doctor has mentioned that there is a possibility of causing the death and so far as point No.2 Doctor has stated that there is no possibility of causing the death. Learned counsel submitted referring to Ex.P-47 the opinion of the Doctor in that regard that questionnaire No.1 and 3 the Doctor has mentioned that there is a possibility of causing the death and so far as point No.2 Doctor has stated that there is no possibility of causing the death. Hence, referring to this opinion of the Doctor, learned counsel submitted that Doctor’s opinion if there is a vomiting and if any food particles entered into respiratory track, then entered into the lungs, then there is a possibility of causing the death. Hence, he made the submission that because there was a vomiting by Supreet, there is every possibility that the food particles entered into the respiratory track caused the death of deceased Supreet. Regarding the injury said to have been sustained by Supreet, learned counsel made the submission that though Doctor PW-15 to whose clinic the deceased was taken at the first instance, though the Doctor stated that there were injuries on the thighs and to the toes of the left lower limb of Supreet. The learned counsel referring to the cross-examination of the Doctor PW-3 said that, if there was any such assault on the thighs, the injuries become black after 4, 5 days. Hence, he submitted that looking to this evidence of PW-23 itself, it will not support the case of the prosecution that there was assault made by any of the accused. 9. Hence, he submitted that prosecution has not placed any material to believe that during the night of 31.12.2009 and 01.01.2010 the accused No.1 assaulted the deceased as claimed by the prosecution. Learned counsel further made the submission that the deceased was suffering from fever and he was provided with Croc in tablets. Under such circumstances the possibility of the opinion of the Doctor, that if there is vomiting and food particles entering to the respiratory track death can be caused. Learned counsel further made the submission that the deceased was suffering from fever and he was provided with Croc in tablets. Under such circumstances the possibility of the opinion of the Doctor, that if there is vomiting and food particles entering to the respiratory track death can be caused. Therefore, the learned counsel made the submission that so far as accused No.1 is concerned, the prosecution material by way of evidence and the documents clearly goes to show though he was the Hostel Super indent, he was not staying in the said hostel during night and he was staying nearby said hostel in his house and 01.01.2010, when the other accused informed him over phone, immediately he came to the said hostel and with the help of the peon he took Supreet to the hospital of PW-15. Hence, he submitted that looking to the entire prosecution material, there is no overt act as such by accused No.1. The lower Court though there is no supporting material as against accused No.1 for the alleged offence under Section 304 part II of the IPC is concerned, wrongly convicted the said accused person, even for the offence under Section 304 part II. Hence, learned counsel submitted that looking to the entire prosecution material there is no cogent satisfactory and acceptable material placed by the prosecution, so far as the appellant/accused No.1. Therefore, there has been wrong conviction by the Trial Court, the judgment and order of conviction passed by the Trial Court is not in accordance with the material placed on record. The judgment and order of conviction is also perverse and hence he submitted to allow the appeal and to set-aside the judgment and order of conviction passed by the learned Sessions Judge and to acquit the appellant/accused No.1 in respect of all the offences. 10. Learned counsel appearing for appellants/accused Nos.2 and 3 firstly he submitted that he will adopt the argument advanced by learned counsel for appellant/accused No.1 and in addition to that learned counsel for accused Nos.2 and 3 also took this Court to the entire material referring to the deposition of the witnesses and the exhibited documents. 10. Learned counsel appearing for appellants/accused Nos.2 and 3 firstly he submitted that he will adopt the argument advanced by learned counsel for appellant/accused No.1 and in addition to that learned counsel for accused Nos.2 and 3 also took this Court to the entire material referring to the deposition of the witnesses and the exhibited documents. Learned counsel made the submission that the main case of the prosecution that PW-22 is the eyewitness in the case and after 08 days of the incident, he informed PW-1 and PW-2 that it is accused Nos.1 to 3 assaulted the deceased at about 01.30 a.m. on 01.01.2010, caused the injuries to him and because of the said injuries Supreet was dead. Learned counsel made the submission that, when PW-22 was examined before the Court he turned hostile and not supported case of the prosecution and even during the course of cross-examination of PW-22 also he has not supported prosecution case. Therefore, absolutely there is no material to come to the conclusion that accused No.2 and 3 have assaulted the deceased. Learned counsel further made the submission that so far as the voluntary statement of accused No.3 and at the instance of such voluntary statement there is a recovery of the stick in the presence of panch witnesses, again the prosecution has not placed the acceptable material. Therefore, he made the submission, even the recovery panchanama is also not established satisfactorily. Hence, if the evidence of PW-22 is looked into, it clearly goes to show prosecution falsely implicated accused Nos.1 and 2 and hence, he submitted judgment and order of conviction passed by the Trial Court is patently illegal and it is not sustainable in law. Hence, the learned counsel submitted to allow the appeal and to set-aside the judgment and order of conviction passed as against accused No.2 and 3 and the accused No.2 and 3 may be acquitted from all the charges. 11. Per contra the learned HCGP, while arguing in respect of both the appeals, firstly he made the submission that the accused No.1 being the Super indent of the said hostel and accused Nos.2 and 3 being the wardens of the said hostels is not in dispute and even it is admitted during the course of the Trial and there is document Ex.P-14 to that effect. Hence, he submitted that even with regard to Supreet the boy only aged about 09 years who was studying in the 2nd standard this fact is also not disputed by the defence. Therefore, it is his contention, when the boy was studying in the said school, staying in the hostel along with the accused it was the bounden duty and responsibility of all the 3 accused persons to take care of the boy Supreet and if he was suffering from any aliments it was the bounden duty to take the deceased boy to the hospital for getting the proper treatment. Learned HCGP also made the submission referring to the first complaint under Ex.P-1 that even while lodging the first complaint Ex.P-1 also, the father PW-1 make it very clear that on 28.12.2009 when he had been to the said hostel to meet Supreet he made a complaint before the father PW-1 that the teachers in the hostel namely Uma teacher and Parvathi teacher, so also the other teachers were assaulting him, they were not taking him to the hospital for getting treatment, proper food was not provided in the hostel. Hence, learned HCGP made the submission that this statement which is said to have been made by the deceased Supreet before the father prior to his death just 3 days prior to the incident is concerned, is also a relevant piece of evidence while appreciating the case of the prosecution. He also made the submission that the another factum looking to the materials on record that before taking Supreet to the clinic of PW-15 Doctor Naik, Supreet was already dead, while he was in the hostel itself. Referring to the prosecution material learned HCGP made the submission that there is a material from the mouth of prosecution witnesses that 4 hours earlier to the boy taken to the Naik’s Hospital he was already dead. Therefore, it is his submission, when the death has taken place in the hostel, when the accused are in-charge of the said hostel, it is for them to explain under what circumstances the death has taken place, if not he was not assaulted as claimed by the defence. Therefore, it is his submission, when the death has taken place in the hostel, when the accused are in-charge of the said hostel, it is for them to explain under what circumstances the death has taken place, if not he was not assaulted as claimed by the defence. He also made the submission, that the Doctor’s opinion the second possibility the if there is a vomiting and if any food particles entered into respiratory track, there after wards entered into the lungs portion, there is a possibility of causing the death is concerned, learned HCGP submitted that there is no material placed by way of defence that the boy vomited prior to his death. When, regarding the vomiting there is no material at all, the question of assuming that he might have died because of vomiting and food particles entering into respiratory track will not arise at all. Learned HCGP further made the submission, that looking to the Doctor’s evidence PW-15 has deposed before the Court that, when he was brought to his clinic he was already dead and he has seen there was a frothy and the blood soaking through the nostrils and the mouth of the deceased and PW-23 the Doctor who conducted P.M examination also noticed the injuries on the body of the deceased that on the thigh portion there were injuries and to the toes of the left lower limb there were abrasion injuries. Learned HCGP made the submission that regarding these injuries also there is no proper explanation by the defence during the course of the Trial of the proceedings. Hence, he made the submission that all these aspects were properly taken care of by the learned Session Judge and then he rightly comes to the conclusion that it is accused Nos.1 to 3, who are responsible for causing the death of the deceased. Regarding the defect in the framing of the charge is concerned that it is no doubt true there is no specific mentioning about accused No.1 causing the offence under 302 of IPC is concerned, he made the submission that during the course of the trial the accused no.1 was knowing for which offence he was being tried and on that line there was cross-examination that he has not at all assaulted not caused the death of the deceased. So this knowledge while conducting the trial of the case itself is sufficient and simply non-mentioning the alleged offence specifically in the charge will not take away the entire judgment as illegal. In this connection, the learned HCGP relied upon two decisions of the Hon’ble Apex Court reported is as under 1. (2011) 9 Supreme Court Cases 272 in the case of Mohan Singh v/s State of Bihar. 2. Criminal Appeal No.656 of 2005 – Rafiq Ahmed @ Rafi v/s State of U.P. 12. Hence, the learned HCGP lastly made the submission that there is no illegality in the judgment and order of conviction passed by the learned Sessions Judge, the judgment and order of conviction is fully supported by sound and valid reasons, no grounds are made out by the appellants before this Court to interfere into the said judgment and order of conviction. Hence, he submitted both the appeals may be dismissed, confirming the judgment and order of conviction passed by the learned Sessions Judge. Even he has submitted that on the sentence aspect also it is appropriate, reasonable and proportionate. Therefore, even there is no ground made out for disturbing the finding with regard to the sentence aspect also. 13. I have perused the grounds urged in both appeal memorandum, judgment and order of conviction and the sentence imposed by the Trial Court as against the appellants accused Nos.1 to 3. The oral evidence of prosecution witnesses PW-1 to 30 and the documents produced as per Exs.P-1 to P-77 and I have also considered oral submissions made by learned counsels on the side of the appellant, so also the oral submissions of learned HCGP made at the bar. 14. With regard to some of the facts they are admitted even according to both sides. The boy Supreeth, who is deceased in this case he was admitted to the school, wherein the accused No.1 was working as a Superintendent of the Hostel and accused Nos. 2 and 3 are the wardens of the said hostel. It is no doubt true, at the first instance, when the complaint/report was filed by PW-1 the father of the said child as per Ex.P-1, it is not against anybody. 2 and 3 are the wardens of the said hostel. It is no doubt true, at the first instance, when the complaint/report was filed by PW-1 the father of the said child as per Ex.P-1, it is not against anybody. But however the father mentioned in the said complaint Ex.P-1 also that, when ever he go to meet his son, the son was making a complaints that the teachers in the said school that they were assaulting him, not providing proper food and he was not taken to the hospital for treatment and Ex.P- 1 goes to show that the boy took the specific names of the accused Nos.2 and 3 along with other teachers which is mentioned in general, so the question is about the relevancy and admissibility of this statement said to have been made by the deceased son before the father regarding the allegations made about the teachers, more particularly accused Nos.2 and 3. Though, directly the statement of the child is not regarding the death is concerned, but earlier to that the assault made on him by the teachers. In this connection, Section 32 of the Indian Evidence Act is relevant. Section 32(1) of the Evidence Act it deals with dying declaration and it reads as under : (1) When it relates to because of death. - when the statement is made by a person as to the cause of his death or as to any of the circumstance of the transaction which resulted in his death, in cases in which the cause of that person’s death comes in question. So this provision section 32(1) containing two parts one is, if the statement made by the deceased with regard to the cause of death and the second portion is, as to any of the circumstances of the transaction which resulted in his death, they are relevant piece of evidence and statement of the deceased boy Supreeth made 3-4 days earlier to the death regarding the assault said to have been made by the teachers upon him, particularly accused No.2 and 3 not providing any food, not taking him to the hospital they are admissible as a relevant piece of evidence as per the second part of section 32(1) of the Indian Evidence Act. 15. 15. The case of the prosecution though as per Ex.P-1 no details are furnished except raising the suspicion as against the accused persons, but 8 days thereafter that is 08.01.2010 PW-1 lodged another complaint stating that PW-22 Mrutunjay Patil the relative met with PW-1 and 2 and when the father enquired with said Mrutunjay Patil, who was also studying in the said school in 10th standard, who was also residing and staying in the same hostel, wherein deceased boy was staying as to what has happened to Supreeth. Then at that time this PW-22 informed PW-1 and PW-2 exactly what has happened. He informed that on 01.01.2010 at about 1.30 a.m., when he woke up to go to answer first call of nature he has seen all the three accused persons along with Supreeth in the dining hall of the said hostel and they were assaulting the boy. He also informed PW-1 and 2 that all the three accused after seeing PW-22 they have threatened him if, he disclosed the said fact before anybody same thing will happen to him also what has happened to Supreeth. Further, he informed PW-1 and 2, they threatened him not to disclose this fact before anybody. It is no doubt true, when PW-22 Mrutyunjay Patil examined before the Court, he turned hostile and he not supported the prosecution case. So, on that basis the learned counsels appearing for the appellant side strenuously argued that when PW-22 turned hostile, there is no other material to base conviction of the accused persons. In this connection the material to be appreciated by the Court Ex.P-23 the spot panchanama, if the contents of the said panchanama are perused, there are two panchas in the presence of whom this panchanama said to have been conducted by the prosecution, one is Appasaheb Sabappa Mugulkod, who has been examined as PW-11 and another pancha No.2 Sri.Kumar Gopal Kurade, looking to the first paragraph of this panchanama, wherein it is stated that, both of them were called to the dining hall in the Mahaveer Hostel and the Laxmisen Education Institution, accordingly they present there and the next sentence is important in connection with Raibag Police Station Crime No.10/2010 for the offences punishable under Sections 302, 506 read with section 34 of the IPC. The witness Sri. The witness Sri. Mrutyunjay Shantinath Patil, resident of Konnur taluk Gokak and residing at Mahaveer school, Raibag, was requested to be present when the panchanama is going to be conducted, it is specifically stated in the said panchanama that Mrutyunjay Patil, who was present at that place, shown the spot to the police and the panch witnesses, and the proceedings are recorded in the panchanama. 16. So the contents of the panchanama clearly goes to show that it is Mrutyunjay Patil PW-22, who shown the spot to the police as well as panch witness. In this connection, I am also referring to the evidence of PW-11 one of the panch witness i.e., Appasaheb Mugulkod. Looking to his examination in chief, he deposed that he had seen one Kumar Gopal Kurade CW-7 at the time of panchanama who is the co-pancha. On 10.01.2010 he was summoned to Mahaveer residential school run by Laxmisen Education Society by Raibag Police. Like him CW-7 was also summoned to that place at that time. The boy by name Mrutyunjaya showed them the place namely the room where deceased Supreeth used to sleep the dining hall in the said school. He also further deposed on that, in the room where the said hostelites including Supreeth used to sleep they noticed the cots having different vertical compartments in the dining hall, they noticed dining tables and chairs. The panchanama was drawn at that place as per Ex.P-23 and he attested as per Ex.P-23(A). The next sentence is important the contents of the Ex.P- 23 being now read over to him he affirm the said contents as true and said act the said panchanama was drawn at 5.30 to 6.00 p.m., photos were also taken at the said place and as per Ex.P-24 and P-25. Looking to the cross examination of this witness there is no specific suggestion that PW-22 Mrutyunjay Patil he was not at all presented at the spot, he has not shown the spot to the police and panchas. Therefore in the absence of such suggestion made to the witness, whatever he has deposed in the examination in chief stands established by the prosecution, so far as the panchanama Ex.P-23 is concerned. Therefore in the absence of such suggestion made to the witness, whatever he has deposed in the examination in chief stands established by the prosecution, so far as the panchanama Ex.P-23 is concerned. So this also clearly goes to show that it is PW-22 Mrutyunjay, who knows the place of incident that is dining hall, accordingly he shown it and pointed out to the police and the panch witnesses. Therefore only because of Mrutyunjay Patil PW-22 turned hostile that doesn’t mean that the entire evidence is to be brushed aside and so far as his statements are concerned the evidence of PW-30 the Investigation Officer is also relevant. PW-30 the Investigation Officer in his evidence at para No.4 of his deposition at page No.2, wherein he has stated that on 10.01.2010 he secured PW-22 and along with him, he visited the spot with two panchas namely PW-11 Appasaheb and CW-7 Kumar Gopal Burade and the photographer PW-28. The place of occurrence was Mahaveer residency school run by Laxmisen Education Society. The next sentence is very important PW-22 showed that dining hall in the said school and also the room in which the deceased used to sleep. So this Investigation Officer also spoken about the presence of PW-22 Mrutunjay patil and it is Mrutyunjay patil who showed the spot to the police and the panch witnesses and even during the course of cross-examination of this PW-30 also, there is no suggestion that Mrutyunjay patil was not at all present there, he has not at all shown the said spot. Apart from that so far as PW-22 Mrutyunjay patil no doubt he turned hostile, but the statements were got exhibited as per Ex.P-39, 39(A) and 40 and PW-30 who said to have recorded the said statements the Investigation Officer during his cross-examination at the paragraph No.17 of the said cross-examination in the last portion of the said paragraph when it was suggested to him that he did not further examine witness Mrutyunjay Patil PW- 22., Mahaling CW-21 and Ex.P-39, 39(A) and 40 are all fabricated documents. The witness PW-30 the Investigation Officer denied the said suggestion, so Exhibits P-39 and 39(A) so far as the statements of Mrutyunjay Patil before the Investigation Officer it is confirmed through the evidence of PW-30 in this case. 17. The witness PW-30 the Investigation Officer denied the said suggestion, so Exhibits P-39 and 39(A) so far as the statements of Mrutyunjay Patil before the Investigation Officer it is confirmed through the evidence of PW-30 in this case. 17. Coming to the medical aspects of the case, the defence claim is that the death is not caused by assault, it is cause of the reason that as there was vomiting and the food particle entered into respiratory track, thereafterwards to the lungs portion and as opined by the doctor in his opinion Ex.P-47, the possibility at Sl.No.3 because of that reason death has taken place and it is not because of the assault. In this connection, let me examine the material whether the defence was able to establish firstly, that there was vomiting unless and until there is a vomiting there is no question of the food particle entering into the respiratory track there by to the lungs. I have examined all the panchanama the spot panchanama and another panchanama which was conducted in the clinic of PW- 15 Doctor Naik at the first instance. Looking to the panchanamas no where mentioned that there was vomiting or there are signs of vomiting. Even under the panchanamma all the clothes of the deceased were seized. There is no mention that the clothes of the deceased becomes dirty because of the vomiting by the deceased. Absolutely there is no material placed on record by way of cross examination during the course of trial, that before his death, the deceased vomited. So, the Doctor’s opinion is that it is not simply that the food particle entering into the respiratory track, but if it also enters into the lungs portion. In this connection, I have examined P.M. report and the contents of the lungs as stated by the doctor who conducted the Post Mortem examination. There is no mention by the doctor that in the lungs portion he found the food particles. This clearly goes to show that the defence set up by the accused persons that the death is because of food particle entering into respiratory track and then to the lungs portion. Apart from that the material placed on record clearly goes to show that prior to his death one day the entire day that is on 31.12.2009 the deceased Supreeth was not at all provided with the food. Apart from that the material placed on record clearly goes to show that prior to his death one day the entire day that is on 31.12.2009 the deceased Supreeth was not at all provided with the food. So the question of vomiting, even on that ground also regarding the food particles found in the stomach portion it cannot be believed at all. So this clearly goes to show only with intention to escape from the clutches of law such a defence has been set up and coming to the other possibility the medical evidence it has come on record through the mouth of the Doctor PW-15 the boy was taken to his hospital and he was brought dead, means death is not in the hospital, it is taken place in the hostel itself and there was frothy and blood it was soaking from the nostrils at the mouth of the said boy. If come to the evidence of PW-23 the another Doctor who conducted the Post Mortem examination he has stated that there are injuries on the thighs of the boy, there are injuries of the toes of the left lower limb of the boy abrasion injuries. So, it is for the defence to explain because they are in custody of the child, being the hostel warden and being the hostel Superintendent. I can understand if the death has taken place in the outside field somewhere else. But when a person is holding the custody of the child, the boy is aged of 9 years only, Section 106 of Evidence Act is made applicable in this situation that the entire liability, responsibility is on the accused persons to explain the situation, what has happened when the boy was in the Hostel. 18. In this background, if one appreciated the entire material, it clearly goes to show that PW-22 Mrutyunjaya Patil has witnessed the incident personally and he has stated before PW-1 and 2, because otherwise there is no possibility of the boy sustaining such injuries and in the absence of explanation by the accused side how the boy met with such injuries. In this background, if one appreciated the entire material, it clearly goes to show that PW-22 Mrutyunjaya Patil has witnessed the incident personally and he has stated before PW-1 and 2, because otherwise there is no possibility of the boy sustaining such injuries and in the absence of explanation by the accused side how the boy met with such injuries. Therefore, even the medical evidence the Doctor gave the opinion about the possibility that if the boy is assaulted and because of the shock by such assault, there is a possibility of causing the death of the boy is also the medical opinion as per Ex.P-47 the first opinion. 19. It is the case of the prosecution that, on 31.12.2009 itself the boy was suffering from fever, even then he was not sent to the hospital for treatment, he was not provided with food and only the “crocine tablet” was given to the said boy. In this connection looking to the evidence of PW-9 on page No.3 of his deposition, during the course of cross-examination the witness has deposed, it is further true that, he came to know that, crocine tablet was given by accused Nos.2 and 3 to the deceased-Supreet. By the evidence of this PW-9 the fact that the boy was suffering from fever is also established, but even then the boy was not taken to the hospital for the purpose of treatment. The allegation by the prosecution as against the accused persons, as complained by the boy himself before his father PW-1 that, food was not provided properly, whenever he was suffering from ailments he was not taken to the hospital, so evidence of PW-3 probablizes the evidence of PW-1. Though it is the defence and also the case of the prosecution that, PW-15 Dr. Anilkumar Naik is the doctor who was entrusted to go to the hospital to see the boy’s health condition etc., In spite of that the accused persons, neither accused No.1 nor accused Nos.2 and 3 called the said doctor to the hostel in order to get treatment to deceased Supreet nor he was taken to the hospital for the purpose of treatment. Therefore this also goes to show how the children were treated in the said hostel when they were suffering from some ailments. 20. Therefore this also goes to show how the children were treated in the said hostel when they were suffering from some ailments. 20. Looking to the cross-examination of the prosecution witnesses and more particularly the cross: examination of PW-1 the father of the deceased-Supreet and the cross-examination of the PW-30-Investigating Officer, the defence not made out a case that, these two witnesses having enmity or grudge towards the accused persons in order to implicate them in a false case. I have also perused the evidence of the Investigating Officer who spoken about conducting the panchanama and also recording the statement of witnesses in the case. In the absence of any material placed on record the evidence of PW-30 Investigating Officer cannot be ignored by this Court only on the ground that, he is a Police Officer. Apart from that, so far as Ex.P-23 Spot Panchanama is concerned, I have already referred to the evidence of pancha witness PW-11. Through the evidence of PW-11 and PW-30, the panchanama has been proved by the prosecution to the satisfaction of the Court and in this regard the trial Court rightly appreciated the material placed on record. 21. Looking to the statement of accused recorded in examination of the accused under Section 313 of Cr.P.C., which provided an opportunity to the accused persons to explain about the incriminating material deposed against them during the course of trial and they have to explain about the things within their knowledge, as I have already observed above in the case on hand, the deceased boy was staying in the said hostel itself, so also the accused Nos.2 and 3; the accused No.3 was having overall supervision being a hostel Superintendent. I have perused the statement of accused No.1 recorded under Section 313 of Cr.P.C., wherein he answered to question No.8, that Supreet was taken to Dr.Ajit Kumar; after examining the boy doctor told that, he was dead and in that connection went to submit a report to the police; police have not at all received the said report. Perusing the statements of accused Nos.2 and 3 recorded under Section 313 of Cr.P.C., to the question No.8, accused Nos.2 and 3 stated that, they do not want to say anything more and when they were asked as to they wanted to examine any witness, for that also they said ‘No’. Perusing the statements of accused Nos.2 and 3 recorded under Section 313 of Cr.P.C., to the question No.8, accused Nos.2 and 3 stated that, they do not want to say anything more and when they were asked as to they wanted to examine any witness, for that also they said ‘No’. When they are Superintendent and warden of the Hostel, the reason for the death of the deceased-Supreet is within their knowledge, they are competent persons to explain reasons about the death. This becomes very important material, in view of the fact that there were fatal external injuries on the body of the deceased-boy. But they have not explained when such opportunity was given to the accused persons, how the incident has taken place; how there were injuries to the body of the deceased, there is no proper material placed by the defence during the examination of the accused persons. This is also one of the reasons apart from appreciating the other prosecution material to come to the conclusion that the prosecution proved its case beyond all reasonable doubt. Perusing the judgment and order of conviction passed by the trial Court, the trial Court considered each and every aspect of the material, both oral and documentary and rightly comes to the conclusion that though the prosecution was not able to prove the alleged offence punishable under Section 302 of the IPC, they were responsible for the offence under Section 304-PartII of the IPC and accordingly convicted them for the said offence. 22. Apart from the other offence for which the accused persons are convicted, regarding charge aspect is concerned and the contention of the learned counsel appearing for the appellant/accused No.1 that, there is no specific charge against accused No.1 that, he committed the alleged offence punishable under Section 302 of IPC. I have perused the principles enunciated in two decisions relied upon by the learned High Court Government Pleader and also looking to the materials placed on record in the case on hand, the cross-examination process by the defence on behalf of accused No.1 clearly goes to show that, he understood for which offence he is going to be tried and accordingly the prosecution witnesses were examined and suggestion was also made to the witnesses that, accused No.1 was not involved in committing the murder of deceased-Supreet. Therefore the learned High Court Government Pleader is justified in making his submission, omission of making a specific mention in charge will not take away the entire prosecution case. Unless and until it is shown by the defence what is the prejudice caused to it. Therefore the learned HCGP made out a case that, it will not affect to the case of the defence. 23. Considering all these aspects of the matter and the reasonings adopted by the trial Court in its judgment, I am of the clear opinion that, the judgment and order of conviction passed by the learned Sessions Judge is in accordance with the materials placed on record, no illegality has been committed, nor there is perverse and capricious view taken by the Court below. No interference is required in the judgment and order of conviction either to modify the order or to set aside the same. I have also perused the material so far as quantum of sentence imposed by the trial Court, which is proportionate and reasonable and proper and hence there is no merit in both the appeals. Accordingly, both appeals are dismissed.