JUDGMENT 1. - Instant Misc. Petition No. 700/1998 has been instituted for recalling the order dated January 15, 1998 passed by this court. Looking to the fact that earlier order was not passed on merits, I allow the petition and the order dated January 15,1998 is recalled. 2. In Criminal Revision No. 411/97 the complainant petitioner has called in question the order dated October 16, 1997 of the learned Special Judge (Women Attrocities Cases) Kota (for short the trial court) whereby charges under sections 306 and 498A IPC were framed against the accused non-petitioners and they were exonerated from the offence under section 304 B IPC. 3. Brief resume' of the facts is that one Brij Mohan, next door neighbour of deceased Meena after finding her in flames of fire around 11.00 a.m. lodged a written report with the Police Station Nayapura Kota on May 19, 1997. Lateron a detailed information was furnished to the police on May 21, 1997 by the petitioner, the real brother of deceased Meena. She was married to non-petitioner Dinesh Kumar on June 2, 1996. Dinesh and Meena were residing in the house along with non-petitioner Radha (Jethani of Meena), Radha's husband most of the time remained out in connection with his service in Army. During the course of investigation the Investigating Officer arrested Non- petitioner Dinesh Kumar and Radha and charge sheet under Sections 304 B, 306 and 498 A IPC was filed against them. Learned trial court framed charges under Section 228 Cr.P.C. as indicated herein above. 4. Mr. Suresh Sahni, learned counsel appearing for the complainant petitioner vehemently contended that the learned trial court has not taken into consideration the record of the case and the evidence collected by the investigating agency in a right perspective and committed a grave error in ignoring the material which directly connect the accused not only with section 304 B IPC but also with 302 IPC. It is completely established from the statements of witnesses that accused Dinesh was having illicit relations with his Bhabhi, the accused non- petitioner. Both of them eliminated deceased Meena so that their illicit relations could go smoothly, unchecked and un objected. At the stage of framing charge the trial court was only required to see prima-facie case and was not permitted to peep in the depth of the statements of witnesses. Both of them eliminated deceased Meena so that their illicit relations could go smoothly, unchecked and un objected. At the stage of framing charge the trial court was only required to see prima-facie case and was not permitted to peep in the depth of the statements of witnesses. From the material on record, it is ex-facie established that the deceased was subjected to cruelty soon before her death in connection with the demand of dowry. No witness has stated that while burning the deceased cried for help or writhing in pain, which shows that she was already dead before burning. The circumstances established from record reveal a case of homicide and not suicide. Meena was subjected to a premeditated death and thereafter she was put to burn by the accused Dinesh and Radha and soon after it they left the house to camouflage their guilt with being their non-appearance. They came back shortly after a few minutes. When Dinesh was pursuaded by the crowd to take the deceased to the Hospital for medication, he most callously answered without seeing the deceased that there was no use to take her to the hospital as she was already dead. All these circumstances point towards the fact that Dinesh and Radha after committing murder of Meena, put her body in flames in a room, door of which was found open by the witnesses. 5. Mr. Biri Singh learned counsel appearing for the accused non-petitioners Dinesh and Radha canvassed that from the material on record no prima-facie case under sections 302 and 304 B IPC is made out against the accused non-petitioner. Suspicion cannot take the place of proof and no charge can be framed on the basis of suspicion. Learned counsel further contended that as the statements of two prosecution witnesses have been recorded by the trial court no interference is called for. 6. I have reflected over the rival submissions and carefully scanned the record. 7. Suspicion cannot take the place of proof and no charge can be framed on the basis of suspicion. Learned counsel further contended that as the statements of two prosecution witnesses have been recorded by the trial court no interference is called for. 6. I have reflected over the rival submissions and carefully scanned the record. 7. Following facts and circumstances of the case need be noticed - (i) Brij Mohan, the informant, stated in his report thus- " vkt lqcg djhc 11 cts dh ckr gS fnus'k dh fdjk;snkj dqlqe fpYykbZ rks ftl dejs esa /kqWavk mB jgk Fkk] mlds vUnj ty jgh ehuk ij dEcy Mkyk gqvk FkkA vUnj tkdj ns[kk rks tyus ls ehuk dh e`R;q gks pqdh FkhA " (ii) In the site inspection memo following details have been incorporated - " ,& og LFkku gS tgkWa ij e`rdk ehuk dqekjh dh yk'k iM+h gqbZ Fkh tgkWa ij tys diMs+ ds fu'kku tyh gqbZ jk[k o VqdM+s iMs+ gSa rFkk Q'kZ ij fu'kku tyus ds gSaA ch& og LFkku gS tgkWa ij 5 yhVj dsjksflu dh Hkjh gqbZ tjhdsu j[kh gqbZ gS ftlds mij uhps VkV yxk j[kk gSA tjhdsu iwjh Hkjh gqbZ gSA th& LFkku dejk gS tgkWa QkSth dh iRuh dqlqe jgrh gS gkykr ekSdk&dejs ds Q'kZ ij dsjksflu ds fu'kku ugha gS rFkk lkcwr ekfpl ,oa ekfpl dh tyh gqbZ VwVh rhfy;kWa Hkh ugha gSA 5 yhVj ds dsjkslhu dh tjhdsu iwjh Hkjh gqbZ VkV esa fyiVh lqjf{kr j[kh gqbZ gSA " (iii) Witness Vidya Nand and Ravindra stated- " geus fnus'k ls dgk fd vc rks ehuk dks vLirky ys tkvks vHkh tku gS cp tk,xh rc fnus'k us dgk ;g rks ej xbZ vLirky ys tkus ls dksbZ Qk;nk ugha gSA " (iv) Witness Kusum who was residing in the room adjacent to room of the deceased, deposed " ehuk ds dejs esa ls /kqvka ckgj fudyrk ns[kdj o diM+k tyus dh cncw vkus ls eSa vius dejs ls ckjg fudyh vkSj ns[kk rks dej ds vUnj ehuk ty jgh Fkh----- brus esa gh fnus'k LdwVj ysdj vk x;k vkSj blls fo|kuUn us dgk fd ehuk ty xbZ gS rqjUr gh vkWVks ysdj vkvks rks fnus'k us fcuk ns[ks gh cksyk fd vc rks ej xbZ vkWVks ykus ls ;k Qk;nk--- brus esas gh mldh HkkHkh jk/kk Hkh ogha ij vk xbZA nksuksa dgkWa x, Fks eq>s irk ugha gSA eq>s dqN 'kd rks gksrk gS fd fnus'k rFkk jk/kk ds vkil esa xyr lEcU/k gSA 'kk;n bl ckr dh Hkud ehuk dks iM+ xbZ FkhA bl dkj.k og Mjh&Mjh lh jgrh Fkh rFkk fnus'k vkSj jk/kk ls og Hk;Hkhr jgrh FkhA " (v) A look at the Post mortem report of the dead body of Meena shows that her tongue was protruded. (vi) Witness Ganga Swaroop and Om Prakash stated that Meena was subjected to demand of dowry by Dinesh. (vii) Old mark of burn was found on the hand of Radha at the time of her arrest. 8. In the Book Law of Cruelty Abetment of Suicide and Dowry (1st Edition 1993 Authors Sarva Shri Vijay Rao Mohite and Vandana Charan at Pages 345, 347 have narrated circumstances which may prove suicide by a woman while some amongst them may even completely exclude, rule out and negative the possibility of burns by accidental. A few circumstances read thus- (i) Finding of a cane or bottle of Kerosene (half filled or empty) a match box, half burnt match, stick at or near the place of burning is an important piece of evidence in such a case. (ii) Finding of smell of Kerosene on the flooring and the half burnt clothes found at the place of burning is also important evidence in a case of burns. (iii) Burns caused by Kerosene are usually very severe and known from its characteristics odour and sooty blackening of the burnt parts. (iv) If the place of burning is not in a kitchen but in some other room or a bath room, it would exclude the possibility of accidental burns by gas or stove or working at chulah. (v) Bolting or latching of a door or doors of a room from inside where victim sustained burns may unless explained otherwise by the accused as to why the victim should have bolted it from inside, be a circumstance which can corroborate the theory of suicide. Usually a woman who commits suicide is determined to commit it and does not want to be prevented, obstructed or saved by others, and therefore, latches the door/doors of the room or bath room before she sets here self on fire. 9. In the case on hand it is evident from the material on record that completely filled unused Jaricane of Kerosene was found in the room. Sign or smell of kerosene on the flooring where Meena was lying were not found. Match Box or Match Stick (burnt or half burnt) were not found at or near the place of burning. The room where Meena sustained burns was not bolted from inside. A look at the Post- mortem report reveals that tongue of Meena was protruded. Sign or smell of kerosene on the flooring where Meena was lying were not found. Match Box or Match Stick (burnt or half burnt) were not found at or near the place of burning. The room where Meena sustained burns was not bolted from inside. A look at the Post- mortem report reveals that tongue of Meena was protruded. Conduct of accused Dinesh in not taking to Meena to the hospital, absence of Dinesh and Radha from the house at 11 a.m. leaving meena alone and mark of old burn on the hand of Radha at the time of her arrest are relevant circumstance which ex-facie connect the accused person with the guilt of homicide and rule out of possibility of suicide. 10. In State of Maharashtra v. Som Nath Thapa, ( 1996(4) SCC 659 ) their Lordships of the Supreme Court propounded thus - (para 32) "The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage." 11. There are two sets of evidence available on the record. One set relates to cruelty and dowry death and another relates to homicide. For applicability of section 222 of the Code of Criminal Procedure, the minor or major offences must be cognate offences which have the main ingredients in common. That is not the case with the offences of murder and dowry death. It is obvious that an accused cannot be convicted for an offence under section 304-B IPC, where the charge framed against him is only under section 302 IPC. The reasons are two fold. Cruelty is one of the essential ingredients of the offence of dowry death. That is not the case with the offences of murder and dowry death. It is obvious that an accused cannot be convicted for an offence under section 304-B IPC, where the charge framed against him is only under section 302 IPC. The reasons are two fold. Cruelty is one of the essential ingredients of the offence of dowry death. The offence of dowry death cannot be made out if there is no charge also of the cruelty under section 498-A. Secondly the offence under Section 304 B cannot be said to be a minor offence to the offence under section 302 simplicitor, so as to attract the provisions of Section 222 Cr.RC. The main ingredients of offences of murder and dowry, not being common, they cannot be said to be cognate offences. Neither of these two offences is major or minor in relation to the other so as to attract the provision of section 222 Cr.PC. Alternate charge under section 306 IPC cannot be framed in this case as offence under section 306 relates to suicide and it is not permissible in law to frame charge of murder and a charge in alternative for accused having abetted the suicide as it shows doubt as to facts. But alternative charge under section 304 B can be framed as one of the ingredients of this offence 4s death of woman in abnormal circumstances. 12. Net result of the above discussion is that learned trial court has not properly considered the material on record and framed the charges ignoring the important facts and circumstances. I am conscious of the fact that a few prosecution witnesses have been examined but charge can be altered at any stage of the proceedings. Resultantly, the revision petition stands allowed and impugned order of the learned trial court is modified. Learned trial court shall now frame charge against the accused non-petitioner Dinesh Kumar and Radha under Sections 498 A, 302 and the alternative charge under section 304 B IPC. Record of the case be sent back forthwith. Accused i non-petitioners Dinesh Kumar and Radha are directed appear in the trial court on August 5, 1998. *******