1. Feeling aggrieved with the judgment dated 7th June, 2002 rendered by the Additional Sessions Judge, Ganj Basoda, District Vidisha (M.P.) in Sessions Trial No. 34/2002, the appellants have preferred this appeal, whereby the learned Judge while acquitting the appellants from the charge under section 302 or 302/34 of IPC and under section 304-B of IPC or 304-B/34 of IPC, has convicted the appellants for the offence punishable under section 306 of IPC and has imposed 10 years' rigorous imprisonment alongwith fine of Rs. 100/- on each of the appellants.

2. The facts, in brief, are that on 8th November, 2001, Ramkunwar Bai died due to burn injuries. The appellants are mother-in-law and husband respectively. After receiving the information, marg No. 71/01 was registered against the appellants for the offence punishable under section 304-B/34 of IPC at police station Ganj Basoda, District Vidisha. After completing the investigation, challan was filed. The case was committed and appellants have been tried for the aforesaid offence alongwith offence of murder under section 302 of IPC or 302/34 of IPC but they have been acquitted by the learned Judge from the aforementioned charges and without there being a charge under section 306 of IPC, they have been convicted and sentenced as aforesaid.

3. The only contention of Shri R.K. Goyal, learned advocate appearing on behalf of the appellants is that admittedly there was no charge under section 306 of IPC and the appellants were not tried for the same. The offence under section 306 of IPC is not minor offence of the offences of murder or dowry death which is punishable under sections 302 and 304-B of IPC. Hence, even with the aid of the provision mentioned in section 222 of CrPC, they could not be convicted for the aforementioned offence. He has further submitted that not only no charge was framed for that offence, but no questions or incriminating circumstances in that regard, were put to the appellants during their examination under section 313 of CrPC. In that way the appellants have become prejudiced. Hence, they deserve acquittal.

4. Shri Praveen Newaskar, learned Public Prosecutor appearing on behalf of State has frankly admitted that it is true that with regard to this offence, no incriminating circumstances were put to the appellants before the trial Court during recording of their statements under section 313 of CrPC. But, at the same time he has submitted that when the charges under sections 302 and/or 304-B of IPC were framed and the appellants have been tried for the same, they could very well be convicted under section 306 of IPC, if it is proved. He has also submitted that if the Court comes to the conclusion that the conviction cannot be maintained as there was no charge, the case may be remanded.

5. On perusal of para 41 of the impugned judgment, it appears that the learned Judge has followed the observations of the apex Court in the case of Shamnsaheb M. Multtani v. State of Karnataka, 2001 (1) Supreme 348 and has observed that the apex Court has considered that if the offence of murder is not proved, then in that case, in absence of charge under section 304-B of IPC, an accused can be convicted for that offence. On perusal of this judgment, it appears that the apex Court has observed that when charge under section 302 of IPC is framed, conviction under section 304-B of IPC is permissible, provided accused is offered an opportunity to discharge his burden by putting him notice regarding prima facie view of the Court that he is liable to be convicted under section 304-B of IPC. In that case, the Court further observed that as the accused was not put to notice of that offence, hence, the case was remanded. But here in this case, conviction is not under section 304-B of IPC from the charge under section 302 of IPC. In the present case question is different as mentioned herein-above. In the case of Virendra Kumar v. State of U.P., 2007 AIR SCW 854, it is obse