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BANERJEE,J.

L...I...T.......T.......T.......T.......T.......T.......T..J The appeal in question tell the tale of a young girl dying out of burn injuries. Whereas the learned Sessions Judge convicted each of the accused being the husband, the father-in-law, the mother-in-law and the brother-in-law under Section 304 B of the Indian Penal Code and 498A/34 together with 120B of the Indian Penal Code and sentenced each of them to undergo imprisonment for life under 304B IPC and a further sentence of 3 years to each of the accused for an offence under 498A IPC and in view of the sentences passed, no need was felt to pass any sentence under Section 120 B IPC. The appeal taken to the High Court stands allowed so far as the appellant Nos.1,2 and 4 are concerned upon taking into consideration of the facts under Section 304 B read with Section 34 of the Indian Penal Code as also under Section 120B of the Code though, however, the conviction under Section 498A read with Section 34 of the Code was confirmed. Arvind Singh, the husband was however, found guilty for murder of the wife Minta Devi and his conviction under 304 B was converted to Section 302 IPC and was sentenced to undergo imprisonment for life besides maintaining the conviction under Section 498A IPC. It is this conviction and sentence which stands challenged in this appeal.

Prosecutions definite case in the matter under reference is kerosene was poured in all round and thereafter with lighted match stick the girl was burnt to death alive. The FIR depicts the case of torture in order to attract Section 498A together with ingredients of charge under Section 304B which stands disbelieved by the High Court and we in the contextual facts accept the observations of the High Court pertaining thereto having regard to the fact that the High Court itself has looked into the original FIR and found it to be so interpolated as contended and it is on this score that the High Court acquitted the accused persons under Section 304B: No exception thus can be taken to the order of acquittal of the charge above and we also record our concurrence therewith.

The High Court however, has not delved into the issue of non-examination of Investigating Officer. We are at a loss to find such an omission on the part of the High Court on such a vital issue.

Mr. Verma, the learned senior counsel appearing in support of the appeal contended that conversion of charge under Section 304B to 302, cannot by stretch be maintained. It has been contended that the Court having recorded a finding that the demand for dowry was interpolated and inserted in the FIR, virtually in a different handwriting, which was done subsequently it is submitted that, it is unsafe to rely on the informant PW5 and the Prosecution case is fit to be rejected outright, more so, when the Investigating Officer has been kept out of court. Mr. Verma contended that since the prosecution failed to prove the charges against any of the accused and that the conviction and sentence under the aforesaid charges including that of the appellant having been set aside, the conviction of the appellant under Section 302 IPC is bad in law and untenable. The charge under Section 302 IPC is a major charge and it entails more severe and greater sentence, being death or imprisonment for life and fine, whereas in a charge under Section 304B, there is imprisonment for 7 years which may extend upto life imprisonment and in that case the court having set aside the conviction under Section 304B read with 34 and 120B IPC, it is neither open nor permissible to punish the accused under Section 302 IPC which in all material particular amounts to enhancement of sentence and inflicting greater punishment unless the petitioner is given an opportunity to show cause without which the court shall not inflict greater punishment [refer to Section385 Cr.P.C.]. Mr. Verma contended here again when a distinct offence under Section 302 IPC is made out, charge should have been framed and read out to the accused appellant [refer Section 216 Cr.P.C.] to avoid prejudice and in that case the circumstances brought in evidence should be put to accused in his examination under Section 313 of the Cr.P.C. which has not been done causing serious prejudice in defence. In any event Mr. Verma contended that the evidence on record does not justify such a conversion of charge There is therefore neither any legal nor even any evidentiary support to such a conversion. The High Court in introducing Section 302 in place of Section 304B, it has been submitted not only committed a grave error of law but proceeded totally against even the entire tenor of the evidence on record. Criminal jurisprudence does not warrant such a conversion on facts of the matter under consideration.

Let us, however, scrutinise the evidence in little more greater detail: the mother was informed about the daughters burn injury at night the parents arrived in the morning finds the daughter in the bed room with excessive burn injuries without however any mention of the impact on the surroundings the deceased supposed to have made a statement to the mother that the in-laws and the husband on a conjoint move poured kerosene on to her and threw a lighted match stick so as to cause burn injuries last of the evidence is that the deceased immediately after such communication passed away without any medical assistance would this evidence be sufficient to prove the charges even under Section 304B and 498A for apart the conversion thereof to 302 by the High Court? We are afraid the evidence is not sufficient enough to reach an irresistible conclusion of the involvement of the husband as the murderer or even being charged with an offence under Section 304B IPC.