JUDGMENT 1. - With the consent of the parties, the appeal is being heard finally. 2. The instant appeal has been filed by the appellants challenging the judgment dated 17.12.2008 passed by the Sessions Judge, Dungarpur in Sessions Case No. 84/2008, whereby the learned Sessions Judge proceeded to convict the appellant Shanker Lal and co-accused Nathu for the offences under Sections 498A and 304-B, Indian Penal Code Both the accused were sentenced to three years rigorous imprisonment for the offence under Section 498-A, Indian Penal Code and a fine of Rs. 500/- and in default of payment of fine a further direction to suffer fifteen days simple imprisonment was made; and for the offence under Section'304-B, Indian Penal Code, each of the accused were sentenced to ten years rigorous imprisonment and a fine of Rs. 1000/- and it default of payment of fine a further direction to suffer one month's simple imprisonment was made. During the course of pendency of the appeal, appellant Nathu expired and, therefore, his appeal has abated. 3. Succinctly stated, the facts of the case are that the complainant Kanti Lal lodged a written report with the Station House Officer, Police Station, Kotawli, Dungarpur on 22.6.2008 alleging inter alia that his daughter Anita was married to the accused-appellant Shanker Lal on 21.4.2008. It was stated in the F.I.R. that after marriage, his daughter Anita had come to his house on three occasions and on the last occasion, i.e. on 15.6.2008, her mother-in-law and brother-in-law had taken her back to the marital home. It was further mentioned in the F.I.R. that whenever Anita used to come to his house, she used to cry and complained that her husband Shanker Lal, father-in-law Nathu and mother-in law used to harass her and treated her with cruelty on account of demand of dowry. She also complained to her father that her silver ornament was forcibly taken away by the accused and was mortgaged. She further told him that the accused were continuously harassing her for bringing money and other dowry articles despite the fact that the complainant had given dowry to best of his capacity at the time of the marriage. He further stated that the deceased was sent back with her mother-in-law and brother-in-law despite her protest. He stated that his daughter was done to death by the accused on 21.6.2008. He further stated that the deceased was sent back with her mother-in-law and brother-in-law despite her protest. He stated that his daughter was done to death by the accused on 21.6.2008. On the basis of this report, and F.I.R. No. 178/2008 was registered for the offences under Sections 498-A and 304-B read with Section 34 Indian Penal Code and investigation commenced. During the course of investigation, the necessary formalities of investigation, i.e. preparation of the site inspection memo, inquest proceedings, seizure of the rope by which the deceased allegedly hanged herself etc., were conducted. On the postmortem of the deceased being conducted by the Medical Board, the following external symptoms and injuries were found to exit on her body."Face congested, both hands and nails cyanosed, leg ⅓rd front also cyanosed; tongue bitten in between teeth and blackish in colour, distended. Blisters present on the gluteal region. Foul smell with undigested food was coming out from both the nostrils. Pus-like discharge was coming out from the vulva and faceal discharge was coming from the antis. The following injuries were found on the body of the deceased. (1) Ligature mark around neck ⅓ transversely and continuously 30 x'h cm. (2) Ligature mark ⅓rd on neck obliquely (this ligature nark has been found to be postmortem). (3) Contusion violet in colour on left breast laterally 3 x 1/z cm. (4) Contusion violet in colour on right breast laterally transversely placed 4x1'hcm. (5) Prick injury left side vulva and clotted blood with swelling of vulva. Ligature mark was situated on ⅓rd portion of the neck below the thyroid cartilage continuous transverse measuring 30 x 2 /z cm. It was deep blackish in colour with hard base. There were marks of abrasions on the margin of ligature-marks and both the cornua of the hyoid bone were found broken. On the dissection of ligature mark being done, the soft tissue muscles were found fractured. Anterior valve of esophagus was also lacerated and through the laceration, undigested food was coming from the stomach to the trachea. The vessels were severely contused. 4. All these injuries, except injury No.2, were found to be ante-mortem in nature. The specific finding of the Medical Officer is that the injury No.2 was postmortem in nature. The death was opined to be due to cardio respiratory failure caused by the ligature marks around neck. 5. The vessels were severely contused. 4. All these injuries, except injury No.2, were found to be ante-mortem in nature. The specific finding of the Medical Officer is that the injury No.2 was postmortem in nature. The death was opined to be due to cardio respiratory failure caused by the ligature marks around neck. 5. Strangely enough, despite these symptoms being found upon post- mortem of the body, the Investigation Officer chose not to file the charge-sheet against the accused Nathu, Shanker and Smt. Nani for the offence under Section 302 Indian Penal Code but instead filed the charge-sheet for the offence under Sections 498-A and 304-B, Indian Penal Code Be that as it may, upon submission of the charge-sheet, the case was committed to the Court of the Sessions Judge, Dungarpur and the learned Sessions Judge also, in a mechanical fashion, proceeded to follow the opinion of the Investigating Officer and did not frame charge against the accused for the offence under Section 302 I.P.C. 6. It is relevant to mention here that initially when the accused were arrested and produced for remand, the offence under Section 302 Indian Penal Code was also found to be made out against them. However, the learned Sessions Judge proceeded to frame the charges for the offence under Sections 304-B and 498-A, Indian Penal Code against the accused stating out in the charges that the deceased committed suicide within the period of seven years from her marriage because of the cruelty committed upon her by the accused on account of demand of dowry. All the accused pleaded not guilty and claimed trial. 7. At the trial, the prosecution examined as many as eight witness in support of its case. The accused, in the statements under Section 313 Criminal Procedure Code took a plea that there was no custom of dowry in their community. The accused Nani took a specific plea that she was admitted in the hospital for operation of her eyes and, therefore, she was not present at the place of the occurrence. Accused- appellant Shanker Lal took the plea that he was falsely implicated in the case. The accused Nani took a specific plea that she was admitted in the hospital for operation of her eyes and, therefore, she was not present at the place of the occurrence. Accused- appellant Shanker Lal took the plea that he was falsely implicated in the case. He was examined as a defence witness and stated that he stayed with his mother in the hospital on 20th and 21st June, 2008 and when he came back to his house in the evening of 21.6.2008, he saw that his wife had committed suicide by hanging herself. 8. The learned trial Judge, on conclusion of the trial, proceeded to convict and sentence the appellant Shanker Lal and his father Nathu Lal for the offences under Sections 304-B and 498-A, Indian Penal Code as stated above. The co-accused Nani was acquitted accepting her plea of alibi. Hence, the two accused preferred the instant appeal challenging their conviction. 9. Learned counsel for the appellant Shanker Lal contended that in this case there is no convincing evidence of the prosecution witnesses that the deceased was harassed for bringing less dowry soon before her death; he, therefore, submits that the conviction of the appellant for the offence under Section 304-B, Indian Penal Code is absolutely erroneous. He contends that even if the evidence of the prosecution witnesses is accepted to be true at its highest also, then too the only offence, which can be said to be made out against the accused, is the offence under Section 498-A, Indian Penal Code He also submits that there are grave discrepancies in the statements of the first informant PW-1 Kanti Lal, PW-2 Mani and PW-3 Jueevraj. He contends that as a matter of fact, the deceased was not happy with her marriage with the appellant and was, as a matter of fact, having love affairs with some other persona and on the affairs being discovered, she committed suicide. He submits that the appellant was not present at the scene of the occurrence when the deceased committed suicide and, therefore, the learned trial Judge committed grave error in conviction and sentencing the appellant as above. 10. Learned Public Prosecutor, on the other hand, has opposed the arguments advanced on behalf of the appellant and submits that a young woman of about 20 years has been done to death within a period of two months from her marriage. 10. Learned Public Prosecutor, on the other hand, has opposed the arguments advanced on behalf of the appellant and submits that a young woman of about 20 years has been done to death within a period of two months from her marriage. He submits that there is a specific allegation of the first informant, i.e. deceased's father, that the deceased was being continuously harassed by the accused persons on account of bringing less dowry and, therefore, the presumption of Section 113-B, Indian Penal Code operates against the accused and, thus, there. is no reason to interfere in the conviction of the appellant as recorded by the learned trial Judge. 11. Upon consideration of the arguments advanced at the bar and having gone through the record of the case, this Court is of the opinion that in this case the specific and cogent material available on the record is to the effect that the deceased met with homicidal death. The body of the deceased was admittedly found inside the house of the accused and the house was allegedly locked from out side. The site inspection plan has been exhibited at the trial as Ex.-2. The statement of accused Shanker Lal, who examined himself on oath, is to the effect that when he reached his house on 21.6.2008, he saw his wife hanging from a hook. If at all this was the case, the accused was under an obligation to have given information to the police immediately on seeing this. The accused, in his statement, has specifically stated that he stayed with his mother in the hospital on 20th and 21st June, 2008 and came back to his house on 21st June, 2008. The deceased admittedly met with an unfortunate death on 21.6.2008. 12. The theory of accused that when he reached home, he saw his wife hanging from a hook, is per se unbelievable. All the marks of injuries found upon the postmortem conducted on the body of the deceased are indicative of the fact that the deceased was first pushed down on the ground face downwards and then she was throttled/ strangulated by rope and thereafter the body was hanged from a hook so as to create evidence for showing that she had committed suicide by hanging herself. The circumstances, which have been found in the postmortem report and the clear opinion of the Medical Board in the postmortem report, is that the death of Anita was because of strangulation. The injury No.2, which is a ligature mark was found to be a postmortem ligature mark. This injury proves it beyond any manner of doubt that the deceased did not commit suicide but was throttled/strangulated. In this background of the matter, it is a matter of utter surprise as to why the trial Court did not frame a charge under Section 302 Indian Penal Code against the accused. Admittedly, accused Shanker Lal was the only person present in the house on 21.6.2008 apart from the deceased. Therefore, the burden of proving as to how the deceased met with homicidal death, lies squarely on him by virtue of Section 106 of the Evidence Act, requires that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Thus, it is the firm opinion of this Court that by non- framing a charge under Section 302 Indian Penal Code the learned trial Judge has committed a grave illegality leading to failure of justice. Section 464(2) Criminal Procedure Code empowers a Court of appeal, confirmation or revision in a case, where in failure of justice has been occasioned, to direct that a proper charge be framed and the trial be recommenced from the point immediately after framing of charge or in case of an error, omission or irregularity in the charge, direct a new trial to be had upon the charge. Section 464(2) reads as under. "Section 464(2). Section 464(2) reads as under. "Section 464(2). - If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction." In view of the findings, which this Court has arrived at above and in view of the observations made by the Hon'ble Apex Court in the case of Rajbir Rajit & Anr. v. State of Haryana, AIR 2011 SC 568 , where the Hon'ble Apex Court has observed that "We further direct all trial Courts in India to ordinarily add Section 302 to the charge of Section 304-B, so that death sentences can be imposed in such heinous and barbaric crimes against women." This Court is of the opinion that re-trial of the accused has to be conducted after framing of charge against him for the offence under Section 302 Indian Penal Code as an alternative charge to the offence under Section 304-B, Indian Penal Code This exercise of powers under Section 464(2) Criminal Procedure Code is absolutely essential and warranted to secure ends of justice in this case. 13. 13. The upshot of the above discussion is that the appeal is allowed and whilst setting aside the judgment dated 17.12.2008 passed by the teamed Sessions Judge, Dungarpur in Sessions case No. 84/2008, convicting the appellant for the offence under Section 304-B, Indian Penal Code, the matter is remanded back to the learned trial Court for holding a de nova trial of the appellant after framing a charge against him for the offence under Sections 498-A and 304-B and in the alternative, under Section 302 Indian Penal Code The trial Judge shall conclude the trial upon remand within a period of six months from today, if necessary, evidence of an expert Medical Officer from the Government Hospital at Udaipur shall be recorded as a Court witness so as to verify the facts emerging from the post- mortem report of the deceased. The opportunity to cross-examine the witness and lead evidence in defence shall be provided to the accused-appellant and thereafter the trial Judge shall decided the matter afresh in accordance with law. The trial Court 'shall decide the case without being influenced by any of the observations made hereinaboveAppeal allowed. *******