JUDGMENT : Gautam Kumar Choudhary, J . Both these appeals arise out of the common judgment of conviction and sentence passed under Sections 304B and 498A/34 of the IPC. 2. Appellant- Ranjeet Sao is the husband, who was married to the deceased in 2011. After the marriage, the appellants made a dowry demand of Rupees One Lakh and a motorcycle and used to torture the deceased physically and mentally in reference to it. Several times, Panchayti was held in this regard, but things did not improve and the deceased used to confide to the informant about the threat to her life arising out of the dowry demand. On 20.05.2014, informant received information at around 10 O’ clock that she had been killed by her in-laws. 3. On the basis of the written report of C.S. Gupta (P.W. 6), Dandai P.S. Case No.47/14 was registered against the appellants under Sections 498A, 304B/34 of the IPC and Section 3/4 of the Dowry Prohibition Act. Police on investigation, found the case true and submitted charge sheet. The appellants were jointly put on trial for offences under these Sections 498A, 304B, 201/34 and 302/34 of the IPC. 4. Altogether seven witnesses were examined on behalf of the prosecution and relevant document including post-mortem examination report has been proved and marked as Exhibit 2. 5. After prosecution evidence, the statement of accused was recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence was pleaded in statement made by the appellants. Four witnesses have been examined on behalf of the defence. 6. Learned trial Court convicted the appellants under Sections 304B, 498A/34 of the IPC while acquitting of the charge under Section 302 of the IPC. 7. During pendency of the appeal, the co-ordinate Bench of this Court, issued notice to the appellant- Ranjeet Sao in Cr. Appeal (D.B.) No.1305 of 2016 as to why his sentence to undergo rigorous imprisonment for ten years under Section 304B/34 of the IPC, be not enhanced, considering the post-mortem examination report wherein the death was found to be caused due to asphyxia by ante-mortem throttling and thereafter, the dead body having been burnt thereafter. 8. It is argued by the learned counsel on behalf of appellants (father- in-law and mother-in-law) in Cr. 8. It is argued by the learned counsel on behalf of appellants (father- in-law and mother-in-law) in Cr. Appeal (D.B.) No.1257 of 2016 that in order to prove the charge under Section 304B of the IPC, it is necessary for the prosecution to establish that soon before the death, deceased was subjected to cruelty in reference to the dowry demand. In the present case, marriage took place in 2011 whereas the date of incidence is 20.05.2014 i.e. after a lapse of about three years. There is no evidence on record to show that there was any dowry demand or harassment to the deceased which became the proximate cause for her unnatural death. None of the independent witness has come forward to buttress the charge of dowry demand or harassment. On the contrary, D.W. 1, D.W. 2, D.W. 3 and D.W. 4, who are the co-villagers of the appellants, have deposed that the in-laws were living separately, since after one year of the marriage and they have never made any dowry demand or subjected the deceased to cruelty. In the absence of any evidence to establish these ingredients which are fundamental to prove the charge, conviction under Section 304B of the IPC of these appellants, is bad in law and is fit to be set aside. 9. As per the FIR, a Panchayat was held to resolve the marital discord, but neither any document nor any member of the Panchayat, has come to support the prosecution case of dowry demand and subjecting the deceased to cruelty. 10. It is argued by the learned counsel on behalf of the appellant- Ranjeet Sao in Cr. Appeal (D.B.) No.1305 of 2016 that in the absence of any appeal against the judgment of acquittal passed under Section 302 of the IPC, conviction under Section 302 cannot be made as it is, beyond the appellate jurisdiction of this Court. Appellant has been acquitted of the charge under Section 302 of the IPC and convicted under Section 304B of the IPC and neither the victim nor the State has preferred appeal against the said order of acquittal, therefore, the instant appeal against conviction is confined to examine whether the judgment of conviction under Section 304B and 498A of the IPC was justified or not. 11. 11. With regard to the conviction of appellant- Ranjeet Sao under Section 304B, argument advanced is more or less on the same line as made on behalf of the other appellants. 12. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that charge in this case has been framed inter alia under Section 302 of the IPC and this Court has every power to modify the finding as well as the sentence in terms of Section 386 of the Cr.P.C. As per the post-mortem examination report, death was homicidal in nature as a result of Asphyxia caused by throttling and therefore, this is a case of offence under Section 302 of the IPC. It is argued that it is travesty of the justice that in offence of such a serious nature appellant has been let off with a sentence of ten years imprisonment. FINDING 13. There is not a shade of doubt that deceased died a homicidal death and thereafter, she was burnt. A bare perusal of the post-mortem examination report (Exhibit 2) shows that the death was by Asphyxia due to ante-mortem throttling. Doctor (P.W. 7) has opined that burn was post-mortem in nature. Meaning thereby, that the 23 years lady, who was the wife of the appellant- Ranjeet Sao was first throttled to death and then the body was set on fire, resulting in 99% burn injury all over the body. 14. Learned trial Court has noted that Investigating Officer could not be examined because of his death. Law is settled that statement recorded by the Investigating officer is not a substantive piece of evidence, but can used for the purposes of contradiction in terms of Section 162 of the Cr.P.C and Section 145 of the Evidence Act. If some contradiction appears in the testimony of a witness vis-a-vis his statement under Section 161 of the Cr.P.C., defence can draw the attention of witness to the previous statement and then get the said statement proved by the I.O. Prerequisite of drawing contradiction is that, first the attention of the witness should be drawn towards the previous statement. As the I.O. had died in the present case therefore, the defence could have proved the relevant part of the case diary in terms of Section 32(2) of the Evidence Act, as they were recorded during official course of business. As the I.O. had died in the present case therefore, the defence could have proved the relevant part of the case diary in terms of Section 32(2) of the Evidence Act, as they were recorded during official course of business. Prosecution could also prove the part of diary, like the description of place of occurrence, in which he stood as direct eye witness and his statement in case diary was just memorandum made in the official course of business. For better appreciation Section 32(2) of the Evidence Act is extracted below: 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. — (1) **** (2) Or is made in course of business.—When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. Entries made by a police officer in his diary during an investigation, are admissible as has been held in R v. Abdul Aziz, A 1932 A 442. 15. Defence did not choose to get the case diary proved and therefore, cannot now take the plea of prejudice. The Investigating Officer in this case has not been examined, but this by itself, cannot be a ground to disbelieve the testimony of witnesses as defence has failed to elicit any vital contradiction in their account vis-a-vis their statement given under Section 161 of the Cr.P.C. There is no law that a prosecution case should be junked only for the reason that the Investigating Officer has not been examined, unless and until it has led to serious prejudice to the defence. [see Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311 ] 15. Place of this gruesome incidence, subjecting the deceased to cruelty in reference to the dowry demand soon before her death has been established by the consistent evidence of the witnesses. [see Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311 ] 15. Place of this gruesome incidence, subjecting the deceased to cruelty in reference to the dowry demand soon before her death has been established by the consistent evidence of the witnesses. P.W. 1 has deposed that the deceased was in her Sasural after 5-6 years of her marriage and was resident of the same village where the matrimonial home of the deceased was. P.W. 2 has deposed that after the marriage, there was normal marital relationship for about one year and thereafter, demand of Rupees One Lakh and a motorcycle was made and when the demand was not met, she was killed in her matrimonial home on 20.05.2014. It has been deposed by this witness that about 20 days before the occurrence, Kanchan Devi had come to her parental home where she had expressed her apprehension that appellants will cause her death. When he came to know about this, he along with 8-10 persons went to matrimonial home of the deceased where specific dowry demand was made by her mother-in-law. He was also threatened that second marriage of the appellant- Ranjeet Sao will be performed. This witness was a neighbor of the informant and claims to be privy to this information. His attention was drawn to his statement made under Section 161 of the Cr.P.C. with regard to his claimed conversation 2-3 times with the deceased, to which he said that he did not remember it. It is not expected of a person to chronicle, the exact dates and time when a person has normal conversation with anyone. There is no vital contradiction in the testimony of this witness so as to completely discard the account as given by him. P.W. 3 is relative of the deceased who has corroborated the allegation of dowry demand of Rupees One Lakh and the deceased being assaulted with regard to it. He has testified that Panchayat was held thrice in this regard. This witness is a co-villager of the accused persons and he has deposed that his house was just from 200 yards from the house of the deceased. He has admitted that demand of dowry was not made in his presence. P.W. 4 is the cousin sister of the deceased and is also a resident of the same village where the matrimonial home of the deceased was situated. He has admitted that demand of dowry was not made in his presence. P.W. 4 is the cousin sister of the deceased and is also a resident of the same village where the matrimonial home of the deceased was situated. She has deposed that the deceased was killed in reference to dowry demand of Rupees One Lakh and a motorcycle. During her life time, she was harassed and assaulted by the accused persons. She has deposed that she was on visiting term with her sister who used to confide with her about the dowry demand. P.W. 5 also comes from the same village where matrimonial home of the deceased was situated. It has come in her testimony that the deceased used to torture by the in-laws and on some occasions, she had intervened to pacify the matter, but the accused persons did not pay any heed and continued to assault the deceased. She came to know about the incidence and when she went to her matrimonial house, she found her in a burnt condition and her body was covered with paper. In her cross- examination, she has admitted that demand was not made from her, but this was told by the deceased. P.W. 6 is the informant of the case and the elder brother of the deceased. He has deposed that on receiving the information, he went to Garhwa and found the dead body of her sister in the hospital with several burn injuries. He has also stated about the persistent dowry demand made by the appellants. 16. On combined reading of the testimony of witnesses, I do not see any reason to disbelieve their account. Unlike, most of the dowry death cases, the witnesses do not come from the parental home of the deceased, but majority were resident of the same village where the matrimonial home was situated and therefore, they had firsthand knowledge about the marital strife that took place in the matrimonial home of the deceased, which ultimately resulted in her homicidal death. 17. The question that beseechs the consideration of this Court is whether on the basis of these evidences charge has been proved. 18. As discussed above, this is a case of death caused by throttling and the burn injury was post-mortem, suggestive of the fact that dead body was set on fire post hoc to give it an impression of accidental death. 18. As discussed above, this is a case of death caused by throttling and the burn injury was post-mortem, suggestive of the fact that dead body was set on fire post hoc to give it an impression of accidental death. It will be relevant at this juncture to consider the defence put forward by the accused persons to the incriminating evidence. There is no specific or consistent defence taken either in the suggestion given to the witnesses in cross-examination or in the statement under Section 313 of the Cr.P.C. It has been suggested to P.W. 2 and P.W. 4 that injury sustained was caused by accidental burn while cooking food. Whereas to P.W. 3, P.W. 5 and P.W. 6, it has been suggested that the deceased committed suicide because she was not happy with the marriage. In the statement under Section 313 of the Cr.P.C, there is no such specific plea of defence. Defence witnesses are silent about the cause of death, but have simply denied that appellants- Mahangu Sao and Kamla Devi had made any dowry demand and had no hand in the death of the deceased. 19. Fact of the matter remains that homicidal death takes place in the matrimonial home, followed by post-mortem burning of the dead body and no explanation has come forward either from the husband- Ranjeet Sao or the in-laws. On the contrary, false defence has been taken during trial regarding cause of death being accidental or suicidal which is in the teeth of the medical evidence. It was incumbent on the part of the appellants under Section 106 of the Evidence Act to throw light on the homicidal death of the young lady, which they failed to discharge the onus cast on them. Defence witnesses say that Appellants- Mahngu Sao and Kamla Devi were living separately, but they have not stated where they had been living. In this view of matter, the defence version cannot be accepted. 20. As discussed above, there is consistent evidence that there was persistent dowry demand which extended upto the time of death of the deceased, even 20 days before the incidence, as discussed above, such demand was made. 21. In this view of matter, the defence version cannot be accepted. 20. As discussed above, there is consistent evidence that there was persistent dowry demand which extended upto the time of death of the deceased, even 20 days before the incidence, as discussed above, such demand was made. 21. On these evidences, the foundational facts of unnatural death within seven years and subjecting the deceased to cruelty in reference to dowry demand soon before the death, has been established, for drawing statutory presumption under Section 113B of the Evidence Act. 22. The appellants have failed to rebut the presumption of dowry death. 23. Argument advanced on behalf of the appellant- Ranjeet Sao that since it is an appeal from conviction, therefore, in the absence of appeal against acquittal, liability of the appellant under Section 302 of the IPC cannot be adjudicated in the appellate jurisdiction, cannot be accepted. The interdict under Section 386 of the Cr.P.C. in appeal against conviction is against enhancing the sentence without notice. There is no bar in modifying the finding or sentence. Here since the notice has been issued for enhancement of sentence, this Court is not denuded of its power of modifying the finding under Section 304 B of the IPC to that under Section 302 of the IPC, in view of the fact that charge was framed both under Sections 302 and 304B of the IPC. The position law will be clear from bare reading of Section 386(b)(iii) of the Cr.P.C. which reads as under: - 386. The position law will be clear from bare reading of Section 386(b)(iii) of the Cr.P.C. which reads as under: - 386. Powers 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)*** (b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried 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; It has been held in R. Janakiraman v. State, (2006) 1 SCC 697 “ If an appellate court may alter the finding of guilt of the accused from one section to another, while maintaining the sentence, we see no reason why the extent of the offence should not be changed in an appeal against conviction. We are, therefore, of the view that the High Court did not exceed its jurisdiction in exercising the power of appeal under Section 386 CrPC”. The appellate Court can, in an appeal from conviction, can alter the finding of the trial Court, and find the appellant guilty of an offence of which he has been acquitted by that Court. [See Queen Empress Vs. Jabanulla, (1896) ILR 23 Cal 975; Hanuman Sarma Vs. Emperor, (1932) 0 Supreme (Cal) 105; Zamir Qasim Vs. Emperor, AIR 1944 All 137 ] 24. Be that as it may, taking into account the fact that the predominant cause behind homicidal death of the deceased was dowry demand, the judgment of conviction passed by the learned trial Court under Sections 304B and Section 498A/34 of the IPC, is affirmed. 25. Although homicidal death for dowry is proved, but in the absence of direct evidence to the offence of murder and, individual role of each of the appellants in it, the charge under Section 302 of the IPC is not proved against the appellants. 26. 25. Although homicidal death for dowry is proved, but in the absence of direct evidence to the offence of murder and, individual role of each of the appellants in it, the charge under Section 302 of the IPC is not proved against the appellants. 26. It is precisely to meet such situation Section 304 B of the IPC and Section 113B of the Evidence Act has been enacted. In view of the discussions made in the foregoing paragraphs, charge under Sections 304 B and 498A of the IPC is established against all the appellants. 27. Considering the nature of offence where the deceased was throttled to death and the body was set on fire in reference to dowry demand, sentence of appellant- Ranjeet Sao is enhanced to imprisonment for life with a fine of Rs.25,000/- under Section 304 B. In default of payment of fine, SI of six months. Sentence awarded under Section 498A of the IPC awarded by the trial Court is affirmed. 28. Judgment of conviction and sentence passed against appellant- Mahangu Sao is affirmed . 29. As far as appellant- Kamla Devi is concerned taking into account the fact that she is suffering from breast cancer, while affirming her conviction, she is sentenced to RI of seven years and a fine of Rs.5000/- under Section 304B of the IPC. In default of payment of fine, will undergo SI for 15 days. Judgment of conviction and sentence passed under Section 498A of the IPC against this appellant, is affirmed. She may be released from time to time by the State Government on Parole for her treatment. With this modification in finding and sentence, both the Criminal Appeals stand dismissed with modification of sentence . Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.