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33. In support of the convention that the State not having filed the appeal this court has no power to alter the finding of acquittal in respect of offence under section 304-B into finding of conviction, reliance is placed by Mr. Sood to a decision Privy Council in Kishan Singh v. Emperor, (1928) 29 Cri LJ 828 : (AIR 1928 PC 254). In the cited decision the accused was charged for offence under Section 302 IPC but was convicted of offence under section 304, IPC. The State did not file any appeal against the implied acquittal of accused of offence under section 302. The State, however, filed a revision petition for enhancement of sentence and seeking conviction of the accused for offence under section 302. The High Court reserving the decision of the trial court convicted the accused of offence under section 302. The Privy Council reversing the decision of the High Court held that the High Court had no power to convict the accused for offence under section 302 since the State had not filed any appeal against the judgment of the trial court acquitting the accused of offence under section 302 IPC. Two points of distinction have to be kept in view. One - in that case there was no alternate charge. Two, the conviction was for minor offence whereas charge was for graver offence. The cited decision has no applicability to the facts and circumstances of the present case.

35. The Supreme Court has affirmed the view expressed by Privy Council in Kishan Singh's case, 1928 (29) Cri LJ 828, the controversy as to the ambit of power to alter the finding within the meaning of Section 423(1)(b)(2) of the old Code thus stands settled by the Supreme Court.

36. In view of the aforesaid the correct legal position, therefore, is that where an accused is charged with a major offence but is convicted of a minor offence and State does not file an appeal against the order of acquittal of the major offence but the accused files an appeal against the order of conviction of the minor offence, while considering the said appeal of the accused, the High Court has no jurisdiction to alter the finding of acquittal of major offence into a finding of conviction. This legal proposition or the decisions referred to above, however, have no applicability to the facts and circumstances of the present case. Here the conviction of the accused is not for minor offence. In the cited decisions there was acquittal in respect of major offence whereas in the present case there is an order of conviction in respect of the major offence and there is no express or implied order of acquittal in respect of the minor offence. In the present case if the accused Prakash Chander had been convicted of the offence under section 304-B, IPC and acquitted of offence under section 302, IPC, this court would have been powerless to convict him of offence under section 302 IPC while deciding his appeal against the order of conviction for offence under section 304B, IPC in absence of an appeal against the order of acquittal by the State in respect of offence under Section 302 IPC. That, however, is not the case, The position is just reverse.

38. The present case, in our view, is on much stronger footing. The accused has not been acquitted of offence under section 304B, IPC but only charge has been cancelled which is not permissible in law. That does not, on the facts and circumstances of the case as already noticed above, amount to acquittal. Assuming, however, that tantamounts to an implied acquittal, it would only show that the said acquittal was for the reason that he was held guilty of the main offence of murder and not independently. Our conclusion that in view of two reasonable views it would not be safe to hold Prakash Chander guilty of offence under section 302 IPC, is not an impediment for his conviction under section 304-B, IPC. In our view the point in issue is squarely covered by Kalawati's case.

60. The prosecution has discharged its initial burden. All the four ingredients for offence under section 304B, IPC have been established. Thus, presumption has to be drawn against Prakash Chander. There is nothing on record to show the rebuttal of the said presumption. Accordingly, we hold accused Prakash Chander guilty of offence under section 304B, IPC.

61. There is also an appeal filed by Leela Wanti against the order convicting her for offence under section 498, IPC by modifying the charge under section 304B to one under Section 498A, IPC. The aforesaid discussion for offence under Section 304B, IPC against Prakash Chander would equally apply to Leela Wanti as well but in view of the fact that she has been convicted of a lesser offence i.e. Section 498-A, which implies her acquittal for the higher offence, i.e. Section 304B, IPC and the State not having filed any appeal against her implied acquittal under Section 304B, IPC, the law laid down in State of Andhra Pradesh v. T. Narayana, (supra), would be applicable and this court would have no power to convict Leela Wanti for offence under section 304B, IPC.