JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment and order dated 02.07.2009 passed by the Sessions Judge, Dhubri in Session Case No. 91 of 2006 acquitting one Md. Razaul Haque @ Hussain (herein referred to as "accused person") of offences under Section 302 IPC citing several infirmities' in the judgment impugned. The facts which have emerged during the trial and which are necessary for disposal of the present appeal, in brief, are that one Mumtaz Begum, sister of the informant, was married by accused Md. Razaul Haque @ Hussian sometime in 2003. After the marriage, the accused person allegedly started torturing his wife, both physically and mentally. Such tortures were aimed at forcing family members of the wife of the accused person to meet his demand for the dowry. Such tortures become so unbearable that she had to withdraw from the matrimonial house and to take shelter in the house of her father. 2. A few days before the deceased met her death, she, unable to bear the torture perpetuated on her by her husband, left her matrimonial house and took shelter in the house of her father. On 10.11.2005, the accused came to the house of his father -in -law and took his wife back to his house presumably to live with her peacefully. However, on the night of 13.11.2005, one Abed Ali and Abu Sama came to the house of the informant and reported them that his sister was no more. Since his sister died all of a sudden and without there being any disease whatsoever, they suspected that the accused persons had killed her. 3. Md. Afzal Hussain, the brother of the deceased, lodged an FIR with in - charge, College Nagar Police outpost on 14.11.2005. The -in-charge, College Nagar Police outpost, made GD Entry and forwarded the FIR to the Officer-in-Charge, Dhubri Police Station for doing further needful in accordance with law. On receipt of the FIR, Officer-in-Charge, Dhubri Police Station registered a case vide Dhubri Police Station case No. 395 of 2005 under Section 302 IPC and ordered one R. Malaki to investigate the case, 4. On receipt of the FIR, Officer-in-Charge, Dhubri Police Station registered a case vide Dhubri Police Station case No. 395 of 2005 under Section 302 IPC and ordered one R. Malaki to investigate the case, 4. Being so ordered, R. Malaki, SI of Police, visited the place of occurrence, conducted inquest on the dead body, sent the dead body to the hospital for post mortem, examined the witnesses, did other needful and on the completion of the investigation, he submitted charge sheet under Section 302 IPC against the accused person and forwarded him to the court to stand trial. The Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Sessions since the offence under Section 302 IPC is exclusively triable by the Court of Sessions. 5. On receipt of the case on commitment and after hearing the learned counsel for the accused person, learned Sessions Judge framed charge under Section 302 IPC against the accused person and charge, so framed, on being read over and explained to him, he pleaded not guilty and claimed to be tried. During trial, the prosecution side has examined as many as 7 witnesses including the informant, Medical officer who conducted autopsy as well as the I.O. The statement of the accused person under Section 313 Cr.P.C. was recorded. 6. The accused plea was of total denial but he declined to adduce any evidence of his own. The learned trial court too examined two persons as court witnesses. On conclusion of the trial and after hearing the arguments, advanced by the learned counsel for the parties, the learned trial court acquitted the accused person of offence under Section 302 IPC and set him at liberty forthwith. It is that judgment which has been challenged in this appeal by the State citing several infirmities therein. 7. Opening up the argument on behalf of the State/appellant, Ms S. Jahan submitted that there is indisputable and irrefutable evidence on record to show that the deceased died an unnatural death within two years of her marriage. More importantly, there is also evidence on record to show that soon before her death, the accused person subjected the deceased to harassment and cruelty and same was done in connection with dowry. Situation being so, there are enormous materials on record to conclude that the accused person had committed offence under Section 304B IPC. 8. More importantly, there is also evidence on record to show that soon before her death, the accused person subjected the deceased to harassment and cruelty and same was done in connection with dowry. Situation being so, there are enormous materials on record to conclude that the accused person had committed offence under Section 304B IPC. 8. Therefore, on the materials on record, instead of acquitting the accused person of under Section302 IPC, the learned trial Court ought to have framed charge under Section 304B IPC against the accused person and ought to have convicted him of offence under section 304B IPC. She, therefore, urges this Court to set aside the judgment under challenge and to remand the case to the trial court to frame a charge under Section 304B IPC against the accused person and then proceed with the case in accordance with law. 9. Ms S. Jahan further submits that in order to require the court to convict the accused of offence under Section 304B IPC, prosecution is obliged to prove certain facts. The facts aforesaid are:-- (a) Death of a woman cause by burnt or bodily injury or it occurred otherwise than of normal circumstances, (b) Such death must have occurred within 7 years of her marriage, (c) Deceased must be subjected to cruelty or harassment by her husband or relatives of her husband, (d) Such cruelty or harassment must be have or in connection with demand of dowry and (e) Such cruelty and harassment to the deceased must have been done soon before her death. 10. According to learned Additional P.PMs S. Jahan, in the instant case, the prosecution has duly proved all those facts and circumstances required to be proved make out the charge under Section304B IPC. Since the trial court did not convict the accused of offence under Section 304B IPC inspite of there being sufficient evidence to do so, the judgment of the trial court is liable to be set aside. 11. On the other hand, the learned counsel for the respondents Mr. Since the trial court did not convict the accused of offence under Section 304B IPC inspite of there being sufficient evidence to do so, the judgment of the trial court is liable to be set aside. 11. On the other hand, the learned counsel for the respondents Mr. I. Choudhury had submitted that there is no evidence on record to come to conclusion that the accused person is guilty of offence either under Section 302 or under Section 304B IPC and \therefore, the learned trial court was entirely right in acquitting the accused person of offence under Section 302 IPC and as such, he urges this Court to dismiss the appeal on affirming the judgment rendered by the trial court. 12. We have given our anxious consideration to the arguments, so advanced by the learned counsel for the parties having regard to the judgment under challenge as well as the evidence on record. Before we proceed further, we find it necessary to have a look at the evidence on record and the evidence of Doctor who conducted autopsy on the body of the deceased is first taken up for consideration. He was Dr. Raj Kumar Mahatoo and was examined as PW 3. 13. According to him, on 14.11.2005, while he was posted at Dhubri Civil Hospital had conducted post mortem examination of the body of the deceased Mumtaz Begum and found the following:-- External appearance: Healthy female, rigor mortis present in all four limbs, eyes closed, upper eye lid of right side swollen. Forth coming out from both nostrils, bruise over right frontal area of skull extending to right upper eye lid, chronic boil present over both legs, (disease condition of skin).Cranium and spinal cord : Bruise over right frontal area of scalp, fracture of right frontal bone, both tables subdural haematoma present 10 cm x 4 cm x 4cm. Laceration of membrane of right anterior cranial fossa. Contusion of brain right frontal lobe of cerebrum. Thorax : Congestion of both lungs. Abdomen: Semi solid food particles present in the stomach. Genital organs: Uterus of 24 weeks size, one dead female foetus of 24 weeks size found in uterine cavity. More detailed description : The injuries described were ante-mortem in nature. There was fracture of right frontal bone with subdural haematoma 4 cm c 4 cm x 4 cm. Abdomen: Semi solid food particles present in the stomach. Genital organs: Uterus of 24 weeks size, one dead female foetus of 24 weeks size found in uterine cavity. More detailed description : The injuries described were ante-mortem in nature. There was fracture of right frontal bone with subdural haematoma 4 cm c 4 cm x 4 cm. The laid was pregnant bearing a female foetus of 24 weeks size. In my opinion, the cause of death was comma as a result of head injury sustained by the deceased. Ext 4 is PM report. Ext 4 (1) is my signature. Ext. 4(2) is the signature of Director of Health Services XXX declined. 14. The evidence of Doctor further reveals that the deceased who was healthy young woman died a homicidal death and head injury had occasioned the death of the deceased. 15. So situated, let us see who occasioned such homicidal death of the deceased. We have carefully gone through the evidence on record. A perusal of the evidence of CW 1 Md. Manir Uddin and CW 2 Msstt, Safia Bibi who are the parents of the deceased shows that the accused person married the deceased about two years before her death. An affair between them had ended up with such marriage. However, their marital life was not in right track for long since sometime after marriage, the accused started torturing his wife and such torture was mainly to realise dowry from the parents of the deceased. 16. Their evidence also shows that in order to satisfy the demand of the accused person, the father of the deceased paid some money to make the life of the deceased in her matrimonial house comfortable. But even thereafter, the cruelty, which the deceased was subjected to, continued for which the deceased on occasions took shelter in the house of her parents. Even few days before her death, she came to the house of her father but the accused took her back to his house presumably on doling out promise to live with her as husband and wife peacefully. 17. On perusal of evidence of other PWs, we have also found that other PWs namely, PW 4, and PW 5 had specifically stated that the accused person used to torture the deceased and such torture was to force the deceased to meet his demand for dowry. 17. On perusal of evidence of other PWs, we have also found that other PWs namely, PW 4, and PW 5 had specifically stated that the accused person used to torture the deceased and such torture was to force the deceased to meet his demand for dowry. Even PW 1 and PW 2 support such claim of PW 4 and PW 5 that the accused started to torture the deceased soon after his marriage with her. The story, recorded in the FIR (Ext. 1), lends some support to the claims, made by the PWs aforesaid. 18. On the perusal of the materials on record, we have found that it is true that the prosecution could not make out the charge under Section 302 IPC. But then, there are materials which prima facie show that the learned trial Court could have framed charge under Section 304B IPC against the accused person and then proceed against him in accordance with law but same was not done. 19. One may note here that offence under Section 304B and Section 302 IPC are two independence offences and as such, in a case, where the accused person is facing trial allegedly for having committed offence under Section 302 IPC only, it is not permissible under the law to convict the accused under Section 304B IPC even if materials on record justify the same. In that event, the Court is duty bound to frame fresh charge under Section 304B IPC and then to proceed in accordance with law. 20. In view of above, we are of the opinion that the prayer made by learned Additional P.PMs S. Jahan needs to be accepted with which we accordingly do. 21. Consequently, while maintaining the order of acquittal of the accused person of offence under Section 302 IPC, we direct the trial court to frame charge under Section 304B IPC against the accused person and then to proceed with the trial in accordance with law. 22. It is needless to say that the accused person shall have all the right to recall witnesses already examined and have right to adduce his own evidence if he is so advised. 23. With the above, the present appeal is allowed. 24. The, accused is directed to appear before the trial court on 26.02.2014 without fail to enable the trial court to proceed with the case as indicated above. LCR be return forthwith. 23. With the above, the present appeal is allowed. 24. The, accused is directed to appear before the trial court on 26.02.2014 without fail to enable the trial court to proceed with the case as indicated above. LCR be return forthwith. Appeal allowed