JUDGMENT Aftab Alam, J. 1. There is a single appellant before this court. The trial court has found him guilty of culpable homicide not amounting to murder and has sentenced him to undergo rigorous imprisonment for ten years under Section 304 of the Penal Code. As regards the appellant's conviction, it is not clear whether it was under Part one or Part two of that section. 2. The prosecution case was instituted on the basis of the fardbeyan (Ext. 1) of the informant, Bhola Prasad, PW 6 recorded by an Assistant Sub Inspector of Pirbahore Police Station at P.M.C.H. on 9.6.1986 at 1.45 PM. The Pirbahore police sent the fardbeyan to the Masaurhi police station under whose jurisdiction the occurrence took place. Thereupon, a formal HR. (Ext. 4) was drawn up on 16.6.86 giving rise to Masaurhi P.S. Case No. 86/1986 for an offence under Section 302 of the Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. 3. According to the prosecution case the informant's sister Punni Devi was married with the appellant in 1981. At her in laws' place she was subjected to great cruelty for her father's failure to fulfil the appellant's demand for a motor cycle and a table fan. On occasions she had also expressed the apprehension that she would be killed if the demand of her husband were not fulfilled. Her father and her brothers were unable to fulfil the demands due to their penury. Further case of the prosecution was that in the morning of 9.6.86 the informant and his father came to learn through Tunnu Ram, PW 3 that Punni Devi was burnt by her husband and his parents and she was taken to Patna on the pretext of getting her treated. On getting this information, the informant and his family members came to P.M.C.H. at Patna where they found the dead body of his sister in a burnt condition. On seeing the informant and his family members, the in-laws of his sister fled away. Concluding his statement in the fardbeyan, the informant said that it was his belief that the appellant and his parents had burnt his sister for non-fulfilment of their demands of dowry. 4. On seeing the informant and his family members, the in-laws of his sister fled away. Concluding his statement in the fardbeyan, the informant said that it was his belief that the appellant and his parents had burnt his sister for non-fulfilment of their demands of dowry. 4. It may be noted here that this occurrence took place in June, 1986, i.e. a few months before the introduction of Section 304-B in the Penal Code which appears to eminently cover the circumstances leading to the death of the young bride. 5. On conclusion of investigation the police submitted charge sheet, dated 19.9.86 against the appellant along with his father and mother. In the charge sheet the appellant's mother was shown as absconder while the appellant and his father were in custody. On the basis of the charge sheet, a charge under Section 306 of the Penal Code was framed against the appellant and his father Tulsi Ram and they were put on trial. 6. In support of its case, the prosecution examined nine witnesses. PW 1 and PW 6 (the informant) were the two brothers of the deceased Punni Devi and PW 2 was her father. PW 3 Tunnu Ram was the brother-in-law of one of the sons of PW 2. He lived at the same place as the appellant and acted as a mediator between the two familties in the dispute arising from the appellant's demand for dowry. PW 4 was the nephew of PW 2 (described him as his ‘Phupha’). He along with PW 2 had gone to see Punni Devi at her Sasural just one day before the occurrence. They were not allowed to see the girl by her in-laws and had to return back without seeing her. PW5 was tendered. PW 7 was a formal witness who proved the inquest report. PW 8 was the doctor who conducted the post mortem examination on the body of the deceased. He told the court that Punni Devi had died due to the burn injuries and in his opinion the burn injuries could not possibly be self inflicted. PW 9 was the Investigating Officer. 7. The defence also examined some witnesses in support of its case that Punni Devi got burn while preparing meal within a room which was closed from inside. 8. PW 9 was the Investigating Officer. 7. The defence also examined some witnesses in support of its case that Punni Devi got burn while preparing meal within a room which was closed from inside. 8. PWs 1, 2, 3, 4, 5 and 6 supported the prosecution allegations that the appellant persistently made the demand for a motor cycle and a table fan in dowry; that Punni Devi was subjected to great cruetly for non-fulfilment of those demands; that on a number of occasions she expressed the apprehension that she would be killed in case motor cycle and table fan were not given to her husband (the present appellant)and also asked some of the witnesses to take her back to her home; that they came to learn that on 8.6.86 she was burnt by her husband and his parents and was taken to Patna on the pretext of getting her treated. 9. I do not, however, propose to deal with the prosecution evidence at any great length because I find that the trial suffers from some serious lacunae which would prove fatal to the prosecution case. 10. As noted above, at the time of submission of the charge sheet both the appellant and his father were in custody. It appears that later the appellant's father Tulsi Ram was granted bail but the appellant continued to remain in custody. While the appellant was in custody, the informant was examined before the court on 11.5.1988 as PW6 even without the appellant's production in court. The trial court's order sheet, dated 11.5.1987 reads as follows : "Accused Madan Ram not produced from jail. Accused Tulsi Ram files Hazri and is present in dock. One pw. is also in attendance. Case called out. Further trial resumed. PW 6 (Bhola Prasad) examined, proves Ext. 1, (fardbeyan) and Ext. 2 (carbon copy of inquest report), cross examined and discharged. Put up on 12.5.87 for further evidence as has already been fixed from before. Accused as before." 11. I find myself unable to justify the court's action in examining such an important witness as the informant himself behind the back of the appellant. 12. It further appears that the last witness on behalf of the prosecution, PW 9, the Investigating Officer was examined on 6.7.87. Thereafter the Addl. Accused as before." 11. I find myself unable to justify the court's action in examining such an important witness as the informant himself behind the back of the appellant. 12. It further appears that the last witness on behalf of the prosecution, PW 9, the Investigating Officer was examined on 6.7.87. Thereafter the Addl. PP conducting the trial filed a petition for amendment of the charge and for framing charge against the accused under Section 302 of the Penal Code. The trial court allowed this petition by order, dated 13.7.87 and directed to alter the charge from Section 306 to 302 of the Penal Code. Later on that date, the trial court passed the following order : "Accused Madan Ram produced from custody and accused Tulsi Ram is present. Existing charge u/s 306 I.P.C. is superceded and amended charge u/s 302 I.P.C. against both the accused is framed and explained to them in Hindi to which they plead not guilty and claimed to be tried. The prosecution is directed to produce the witnesses, examined and discharged, for further cross-examination as desired by the defence. Put up on 23.7.87 and 24.7.87 for the further cross examination of the P.Ws. already examined, cross examined and discharged. Accused as before." (emphasis added) 13. From the records, however, it appears that the only prosecution witnesses who were recalled for further cross examination in pursuance of the afore-quoted order were PWs 3, 8 and 9. Neither PWs 1 and 6, the two brothers of the deceased nor PW 2, her father, nor PW 4, the nephew of her father were recalled for cross examination. 14. The examination of the informant, PW 6 behind the back of the appellant was in contravention of the provision contained in Section 274 of the Code of Criminal Procedure and that alone was sufficient to vitiate the trial. See Ram Shankar Rai vs. State, 1975 B.B.C.J. 485 : 1975 PLJR 450 (paras 5 and 6). 15. 14. The examination of the informant, PW 6 behind the back of the appellant was in contravention of the provision contained in Section 274 of the Code of Criminal Procedure and that alone was sufficient to vitiate the trial. See Ram Shankar Rai vs. State, 1975 B.B.C.J. 485 : 1975 PLJR 450 (paras 5 and 6). 15. Further the omission to recall the prosecution witnesses, excepting PWs 3, 8 and 9 following the amendment of the charge from Section 306 to section 302 of the Penal Code was in complete violation of Section 217 of the Code of Criminal Procedure which is as follows: "217 : Whenever a charge is altered or added to by the court after the commencement of the trial, the prosecutor and the accused shall be allowed (a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice ; (b) also to call any further witness whom the Court may think to be material." 16. A Bench decision of this court in Chhanka Dhanuk and others vs. Emperor, A.I.R. 1927, Patna 398 observed as follows: "The learned Sessions Judge thereupon amended that part of the charge to voluntarily causing hurt. When the defence asked to be allowed to recall the witnesses, the learned Sessions Judge refused on the ground that the defence could not show on what points further cross-examination was necessary. In the first place I would point out that any alteration of the charge was unnecessary. The charge was quite correct. It is the usual form of charge when the common object is to do violence to some person. It is immaterial whether the offence to commit which there was a common object was assault, simple hurt, or grievous hurt. In such circumstances, it is quite sufficient to say that the common object was to assault a person or persons. But once a charge has been altered or added to, the provisions of S. 231 apply. It is immaterial whether the offence to commit which there was a common object was assault, simple hurt, or grievous hurt. In such circumstances, it is quite sufficient to say that the common object was to assault a person or persons. But once a charge has been altered or added to, the provisions of S. 231 apply. The learned Sessions Judge was bound to recall any witness which the prosecution or the accused desired to examine, with reference to the alteration or additions. I agree that it is difficult to see what further questions could have been asked, but the revisions of the section are peremptory." emphasis added. 17. It may be noted that the present case stands on a far better footing. In the reported decision the alteration of the charge was held to be unnecessary and this court had further agreed with the trial court that it was difficult to see what further questions could have been asked to the prosecution witnesses. Even then having regard to the peremptory language of Section 231 of the Code of Criminal Procedure, 1898 (corresponding to the present Section 217 of the Code of Criminal Procedure, 1973) this court held that the Sessions Judge was bound to recall any witness which the prosecution, the accused desired to examine with reference to the alteration or addition in the charge. In this case the charge was altered from Section 306 to 302 of the Penal Code and therefore it was incumbent upon the trial court to recall all the prosecution witnesses as directed by it in the order dated 13.7.1987 for further cross examination by the accused. 18. Having regard to such lacunae, I am of the view that it would not be entirely safe to sustain the appellant's conviction on the basis of the trial conducted in this case. The benefit of the lapses committed in the conduct of the trial must accrue to the appellant. I accordingly set aside the judgment and order of conviction passed by the trial court and acquit the appellant of the charge(s). 19. In the result, this appeal is allowed and the appellant is discharged from the liability of his bail bond.