JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. T. Rajendra, learned counsel for the appellant and Mr. Sh. Yangya, learned PP for the State. 2. This appeal has been preferred against the judgment and order dated 20.08.2014 passed in Session Trial No. 16 of 2013 by the appellant (the accused No. 1) who was convicted under Section 498-A/304-B /306/34 IPC and ordered to undergo sentence ranging from 3 to 10 years' rigorous imprisonment and with fine, to run concurrently. 3. We will first deal with an important issue raised by the appellant which if upheld in favour of the appellant, may result in overturning the conviction and sentence. This issue relates to the alteration of charge ordered by the trial court. The appellant and the other co-accused, her mother, were initially charge-sheeted for offences under Sections 498-A and 302 IPC. The initial charges framed by the trial court on 18.11.2005 were as follows:- (i) Firstly, that the appellant and the co-accused on or about 14.7.2000 at Keibul Mayai Leikai, 8 Km. West, being the husband and the mother-in-law of the victim woman Heisnam Ongbi Rebika Devi subjected her to cruelty by wilful conduct which caused physical danger to the life of the said woman and thereby committed the offence punishable under Section 498-A of the Indian Penal Code. (ii) Secondly, the appellant and the co-accused on or about 14.07.2000 at 11:30 am at Keibul Mayai Leikai, 8 Km. West, did commit murder by intentionally causing the death of Heisnam Ongbi Rebika Devi thereby committed the offence punishable under Section 302 of the IPC. On the basis of the aforesaid charges, the trial court examined as many as 13 prosecution witnesses. Thereafter, the defence also produced 4 defence witnesses. After 13 prosecution witnesses and 2 defence witnesses were examined, the prosecution submitted an application on 17.4.2010 for allowing to produce one witness namely, Loitongbam Amarjit Singh, brother of the deceased H. Rebika Devi on the ground that he was a material witness who had been mentioned by some prosecution and defence witnesses including the accused showing that said Shri L. Amarjit Singh was staying in the night at the residence of the accused, the day before the death of the deceased H. Rebika Devi. Though the said application was objected by the accused, the said application was allowed by the Court and accordingly, the said Amarjit Singh was examined as a prosecution witness No. 14 by the Court on 24.05.2013. After recording of evidence of the said Amarjit Singh, the accused were again examined under Section 313 Cr.P.C. on 5.7.2013 and thereafter, the defence produced 2 witnesses being DW-3 and DW-4 who were examined on 18.02.2014 and 10.03.2014 respectively. The matter was, thereafter, taken up for hearing on conclusion of the recording of evidence as mentioned above. The hearing was taken up on 7.05.2014 which continued on 19.05.2014. After hearing the parties, the learned trial court observed on the basis of the materials on record that the allegations against the accused are for committing for cruelty to the deceased victim woman for demand of dowry and abetment of suicide and was of the view that there was no ground for attracting provisions of Section 302 IPC. Accordingly, the trial court after hearing the parties altered the charges to the new charges under Section 498-A, 304-B IPC and 306 IPC read with Section 34 of IPC. After altering and reframing of the charge, the trial court read over and explained the new charges to the accused who pleaded not guilty to the altered charges. The trial court, thereafter, observing that as the stage of the case is for final hearing after examination of the prosecution and defence witnesses, gave opportunities to both the prosecution as well as to the accused persons for leading evidence relating to the altered charges. The prosecution declined to produce any witness. The learned counsel of the accused also submitted before the Court that no witness will be produced from the side of the accused and prayed for fixing the next date of hearing. Accordingly, the final hearing was fixed on 5.06.2014. The matter was finally heard on 5.06.2014 which continued on 30.6.2014 and judgment was delivered on 20.8.2014. As the order passed by the trial court on 19.5.2014 altering the charges has been assailed by the appellant, it will be apposite to reproduce the same as follows: "ORDER 19.05.2014 Accused are present with their counsel. On perusal of the record, my learned predecessor has framed the charges against the accused under Section 498-A and 304 IPC. As the order passed by the trial court on 19.5.2014 altering the charges has been assailed by the appellant, it will be apposite to reproduce the same as follows: "ORDER 19.05.2014 Accused are present with their counsel. On perusal of the record, my learned predecessor has framed the charges against the accused under Section 498-A and 304 IPC. However, having synthetic perusal of the materials on record, the allegation against the accused are for committing cruelty to the deceased victim woman demanding of dowry and abetment of suicide. Thus, I am of the opinion that there is no ground for attracting under Section 304 IPC. The stage of the case is final hearing. Therefore, the charges are altered to the charges under Section 498-A, 304-B and 306 IPC r/w Section 34 IPC. The contents of the charges are read over and explained to the accused and asked whether they pleaded guilty or not. The accused plead not guilty. As the stage of the case is final hearing after the examination of PWs. and DWs, I have given opportunities to the prosecution as well as to the accused persons for leading evidences relating to the altered charges. Learned Additional PP has submitted that no witness will produce from the prosecution side. Learned counsel of the accused persons has also submitted no witness will produce from the side of the accused and prays for fixing the next date as final hearing. Fix 5.06.2014 for final hearing. Sd/- JUDGE Sessions Judge, Bishnupur." 4. The altered charges read as follows: "Hereby charge you Name of the accused:- (1) Heisnam Joykumar Singh, aged about 24 years, S/o H. Ibobi Singh of Keibul Mayai Leikai, P.O. & P.S. Moirang, District Bishnupur, Manipur. (2) Smt. Heisnam Maichon Devi, (54), W/o H. Ibobi Singh of Keibul Mayai Leikai, P.O. & P.S. Moirang, Bishnupur District, Manipur as follows: First - That you on 14.7.2000 at Keibul Mayai Leikai being husband and the mother-in-law of the victim woman, Heisnam Ongbi Rebika Devi subjected such woman to cruelty by willful conduct which caused physical danger to the life of the said woman and thereby committed the offence punishable under Section 498-A of the Indian Penal Code and within the cognizance of this Court. Secondly - On the same day, month, and year the said victim woman, namely, H. Rebika Devi caused dead due to consumed poison due to demand of Dowry by you and have committed the offence punishable under Section 304-B of the Indian Penal Code and within the cognizance of this Court. Thirdly - On the same day, month and year the said victim woman, namely, H. Rebika Devi committed suicide and that you, H. Joykumar and H. Memcha Devi abetted its commission by committing cruelty and demanding dowry and thereby committed the offence punishable under Section 306 of the Indian Penal Code and within the cognizance of this Court. Fourthly - On the same day, month, and year you, H. Joykumar and H. Maichon Devi with common intention committed cruelty and demanding of Dowry thereby causes the dead of H. Rebika Devi by committing suicide and thereby committed the offence punishable under Section 34 of the Indian Penal Code and within the cognizance of this Court." 5. As mentioned above, since both the prosecution as well as the defence declined to produce any witness, the matter was finally heard and judgment was pronounced convicting the present appellant under Sections 498-A , 304-B and 306 of the IPC. 6. Mr. T. Rajendra, learned counsel for the appellant has forcefully argued that even though charges could be altered by the Court at any time before the judgment is pronounced as provided under Section 216 of the Cr.P.C. whenever there is any such alteration or addition to the charges, the Court must form an opinion that it is either likely or not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case. Formation of such an opinion and recording it is according to him an essential requirement of Section 216 Cr.P.C. In case the Court forms the opinion that it is not likely to cause prejudice to either of the parties, the trial will proceed. If the Court forms the opinion that such alteration or addition is likely to prejudice the accused or the prosecutor, the Court may either direct a new trial or adjourn the trial for such period as the case may be. In any event, the Court has to form an opinion as to whether such alteration is likely to cause prejudice or not as the case may be. Mr. In any event, the Court has to form an opinion as to whether such alteration is likely to cause prejudice or not as the case may be. Mr. Rajendra submits that in the present case, no such opinion was formed by the trial Court before proceeding and as such, the decision to proceed with hearing after alteration of charge without forming such opinion has vitiated the trial on the ground of non-application of mind as required under Section 216 Cr.P.C. 7. Mr. T. Rajendra further submits that in view of Section 217 of Cr.P.C. 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 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. In the present case, Mr. Rajendra submits that the Court never offered the accused to recall or re-summon or examine with reference to such altered charges. Mr. Rajendra therefore, submits that on this ground also the trial has been vitiated. He submitted that what had been done by the Court was merely asking the prosecution and the accused to lead evidence relating to the altered charges which is different from giving the opportunity to recall or re-summon and examine a witness who had been summoned. 8. Mr. Rajendra, learned counsel for the appellant submits that alteration of charges has certainly prejudiced the petitioner contending that the ingredients of the offence under Sections 302 and 306 IPC are different as both the offences are of distinct and different categories. One of the initial charges against the petitioner was for an offence under Section 302 IPC which has been subsequently altered to Sections 304-B and 306 IPC and since these two offences are distinct and consist of different ingredients, the trial court ought to have given an opinion as to whether the alteration or addition of charge likely to or not likely to prejudice the accused which the trial court did not, because of which the trial is vitiated. In this regard, Mr. In this regard, Mr. Rajendra has relied on the decision of the Hon'ble Allahabad High Court in Ghan Shyam alias Subhash and Another vs. State of U.P. (2004) Cri. L.J. 967, in which the Hon'ble Allahabad High Court held that the offence under Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr.P.C. and both the offences are all distinct and belong to different categories. The basic constituent of offence under Section 302 IPC is homicidal death whereas under Section 306 IPC it is suicidal death and abetment thereof. Both the charges cannot go together, either the deceased had committed suicide or she was murdered. It was for the trial court to have examined the evidence collected during the investigation then frame the charge. Further, Mr. Rajendra, relying on the decision of the Gauhati High Court in Shri Ram Nagina Roy and Another vs. Mohabir Kanu, 1995 (II) GLT 321 held that whenever there is an alteration of charge, it is the duty of the trial court to examine the accused under Section 313 Cr.P.C. in respect of the amended or added charge and so that the accused is not prejudiced. It has been contended by Mr. Rajendra that such examination of the accused under Section 313 Cr.P.C. was not done by the trial Court before proceeding with the hearing, thus prejudicing the appellant. 9. On the other hand, Mr. Sh. Yangya, learned PP has submitted that under Section 216 of the Cr.P.C. the Court at any time can alter or add any charge before judgment is pronounced which has been done in the present case and there was no irregularity in altering the charge referring to the order dated 19.5.2014 passed by the learned trial Court. Mr. Yangya submits that after the alteration of charges by the learned trial Court, the learned trial Court specifically asked the accused whether he likes to lead evidence relating to the altered charges as required under Section 217 of the Cr.P.C. Since the accused had specifically stated that no witness will be produced from the side of the accused and submitted for proceeding with the hearing of the matter, it cannot be said that any prejudice had been caused by the alteration. He submits that the appellant cannot now take the plea that a prejudice had been caused to him since the accused himself declined to lead any further evidence inspite of being so offered by the Court. 10. That apart, Mr. Yangya also submits that Section 465 of the Cr.P.C. clearly provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, etc. during the trial unless in the opinion the Court a failure of justice has in fact been occasioned thereby. Mr. Yangya, learned PP submits that even if the contention of the appellant that there had been irregularities in invoking the provisions of Section 216 and 217 of the Cr.P.C. as contended by the appellant, since the appellant had failed to show that failure of justice in fact had been occasioned on account of the aforesaid alleged irregularity committed by learned trial court, the impugned conviction ought not be interfered with. Mr. Yangya submits that there are ample evidences on record to sustain the altered charges of the commission of offence under Section 498-A, 304-B and 306 of the IPC against the appellant. As such, Mr. Yangya submits that the contention of the learned counsel for the appellant that the provisions of Section 216 and 217 has not been properly followed by the Court is without any substance. Mr. Yangya, learned PP has placed reliance on the following decisions of the Hon'ble Supreme Court to substantiate his contentions:- (1) Ranbir Yadav vs. State of Bihar, (1995) 4 SCC 392 (2) Dinesh Tiwari vs. State of Uttar Pradesh, (2014) AIRSCW 4665 (3) Girraj Prasad Meera vs. State of Rajasthan, (2014) 13 SCC 674 (4) Sayeeda Farhana Shamim vs. State of Bihar and Another, (2008) 8 SCC 218 11. Having considered the rival contentions of the parties on the issue as to whether the trial had been vitiated on account of alleged improper application of Section 216 and 217 of the Cr.P.C. it seems this issue cannot be decided in isolation without referring to the evidence on record, as Mr. Having considered the rival contentions of the parties on the issue as to whether the trial had been vitiated on account of alleged improper application of Section 216 and 217 of the Cr.P.C. it seems this issue cannot be decided in isolation without referring to the evidence on record, as Mr. Yangya, learned PP has vehemently argued that there are sufficient evidences on record to sustain the altered charges against the appellant and no failure of justice had occasioned due to alteration of charges as the appellant himself declined to lead any evidence after alteration of charges. He also submits that the charges of consumption of poison by the deceased, her torture by the husband, demand for dowry were well known to the appellant before the alteration of charges, hence, it cannot be said that the appellant was prejudiced by the alteration of charges. Therefore, this Court has to refer to the material evidences on record, which would involve hearing the appeal on merit. Accordingly, the Court is of the opinion that the preliminary issue raised by the appellant cannot be considered in isolation but has to be considered while considering the appeal on merit, with reference to the other grounds raised by the appellant. 12. Altered charges as quoted above made against the appellant are for committing offences under Sections 498-A, 304-B and 306 IPC read with Section 34 IPC against the present appellant and her mother. Since the appellant's mother has been acquitted, the examination of this appeal will be confined only in respect of the conviction of the appellant. 13. As regards the charge under Section 498-A IPC, Section 498-A IPC reads as follows:- "498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose of this section "cruelty" means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Explanation - For the purpose of this section "cruelty" means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." The ingredients of Section 498-A IPC are that the married woman must have been subject to cruelty by the husband or the relative of the husband. Cruelty was to be of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman and also means harassment of the woman where such harassment was with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or was on account of failure by her or her relative to meet such demand. The other section under which the appellant has been charged is Section 304-B IPC, which reads as follows:- "304B. Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Explanation - For the purpose of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." Reading of the aforesaid section clearly indicates that the following ingredients must be established to attract the aforesaid Section: (i) death of the married woman was caused by burn or bodily injury or occurs otherwise that under normal circumstances, (ii) the death must have occurred within 7 years of her marriage, (iii) the victim was subject to cruelty or harassment by her husband or the relative of her husband (iv) the cruelty or harassment is in connection with the demand of dowry, (v) such cruelty and harassment must have been soon before the death. As regards Section 306 IPC for abetment of suicide, it is reproduced herein-below: "306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." The basic ingredients of the aforesaid evidence is that (i) the deceased had committed suicide (ii) the accused had by his acts encouraged or abetted commission of the said suicide. 14. We now proceed to examine the evidence on record to see whether there are evidences to substantiate the ingredients as mentioned above. 15. From the perusal of the evidences what comes out is that the deceased woman Rebika Devi died within about 8 months of her marriage to the appellant thus within 7 years of marriage. She got married sometime in December, 1999 and she died on 14.7.2000. This fact is not disputed by any of the parties. We may now proceed to examine as to how the deceased Rebika Devi had died. It is the case of the accused and defence that the said Rebika died because of consumption of poison. We are not at this stage examining the motive for consumption of the poison but about the allegation that the deceased consumed poison because of which she died. 16. It is the case of the accused and defence that the said Rebika died because of consumption of poison. We are not at this stage examining the motive for consumption of the poison but about the allegation that the deceased consumed poison because of which she died. 16. PW-1 Smt. Heisnam Ibemcha Devi who is the younger sister of the appellant and accused, Shri Joykumar Singh who was later declared a hostile witness by the Prosecution stated in her examination-in-chief that her sister-in-law, Smt. Rebika Devi committed suicide by taking poison. During her cross-examination, she also stated that when she entered the room of her sister-in-law she felt the smell of pesticide inside the room of her sister-in-law because of which she presumed that she had taken the said pesticide. PW-1 was with the deceased person immediately before the death took place. She found her sister-in-law rolling in pain on the ground when she (PW-1) came back from the paddy field. She also showed some vomiting material near her sister-in-law. When PW-1 enquired her sister-in-law about her condition, she did not reply except making the sound "OK" and "OK". 17. PW-3 Heisnam Ibobi Singh who is the father of the appellant stated in his examination-in-chief that he found one steel bowl of the size of the paper weigh in front of the bed of his daughter-in-law. He also stated that even though the said bowl did not contain anything, he felt the smell of "Hill Dan" a pesticide. 18. PW-8 Loitongbam Lukhoi Singh who was the father of the deceased Rebika Devi stated in his examination-in-chief that when he arrived at the house of the deceased after hearing the news and inquired from her husband/the accused and others of her death, they stated that she had consumed poison. 19. PW-9 Dr. Mrs. Thounaojam Merry Devi who conducted the post-mortem examination on the death body deceased Rebika Devi stated that blood fluid was seen oozing out of the nostrils and brownish stains were present around the nose and mouth and stomach of the deceased was congested with submucusal haemorrhage with dark brown liquid (about 200 ml) with kerosene like smell. She testified before the Court that the chemical analysis conducted by the CFSL, Kolkata on 3.2.2002 could not detect any common poison. She testified before the Court that the chemical analysis conducted by the CFSL, Kolkata on 3.2.2002 could not detect any common poison. She on the basis of the chemical analysis report gave the opinion that though chemical analysis report showed negative result, the post-mortem finding was consistent with organo phosphorous poisoning. She stated during her cross examination that common insecticide and pesticide which are used in the agricultural field are some of the compounds of the organo phosphorous. She also stated that since there was a gap of 2 years from 2000 to 2002 i.e. of the furnishing of the sample to the Forensic Laboratory and examination by the Forensic expert, it could be the reason for non-detection of the poison by the said Forensic Laboratory. 20. In the examination of the accused appellant by the Court under Section 313 of Cr.P.C. when it was put by the Court to him that there is evidence on the basis of the statement made by the medical expert who conducted postmortem examination over the death body of deceased Rebika Devi that the postmortem finding was consistent with the organo phosphorous poisoning and the injury present on the body of the deceased was fresh at the time of death, the accused appellant had stated the same to be true. He was examined as DW-2. In his statement he stated that when he enquired from the persons who were already inside the room where the deceased was lying, he was told by one Smt. Heisnam Tomberei that some smell of pesticide was found around the house and it seemed that his wife had consumed the pesticide. Accordingly, they gave the lemon juice and banana stem to enable her to vomit. 21. PW-10, the Investigating Officer of the case deposed before the Court that on the basis of information it has been ascertained that Rebika Devi had consumed poison and succumbed to death because of it. 22. DW-3, a neighbour of the appellant who rushed to the house of the appellant found the smell of pesticide in the room where Rebika was being attended by the villagers in her room because of which she felt that Rebika had consumed poison. 22. DW-3, a neighbour of the appellant who rushed to the house of the appellant found the smell of pesticide in the room where Rebika was being attended by the villagers in her room because of which she felt that Rebika had consumed poison. DW-4, another neighbour of the accused stated that when she was working in the paddy field on that day, a boy came to call the father of the appellant and informed that the deceased has consumed poison. 23. Therefore, this Court is of the view that the aforesaid contemporaneous evidences corroborated by post mortem report will be sufficient to establish the fact that the said deceased Rebika Devi died by consumption of poison. Though the final result given by the Forensic Laboratory may not have mentioned existence of poison in the sample, it also did not give a different or contrary opinion on the charge of poisoning, thus to leave any scope for entertaining any doubt about the immediate cause of death due to poisoning. It is also not the case of anybody that the poison was administered to her by somebody else or died of some other cause. Most of the witnesses who had deposed in favour of the appellant had consistently stated that the deceased died by consuming poison. This Court on the basis of the materials on record accepts the prosecution case that Rebika Devi committed suicide by consuming poison. To that extent, this Court confirms the finding of the Trial Court that the death of Rebika Devi was due to consumption of some poisonous substance. 24. This leads to the next question as to what prompted the said deceased Rebika Devi to consume poison which led to her death. It is the charge of the prosecution that the appellant used to frequently harass and torture the deceased for demand of dowry from her which ultimately drove her to commit suicide. On the other hand, it is the case of the appellant that she consumed poison as she was having a relation with one Sanajaoba Singh before her marriage. The defence stand is that the deceased Rebika Devi committed suicide as she was not happy with the marriage with the appellant as she was having an affair with another person namely, Sanajaoba Singh before her marriage with the appellant. 25. The defence stand is that the deceased Rebika Devi committed suicide as she was not happy with the marriage with the appellant as she was having an affair with another person namely, Sanajaoba Singh before her marriage with the appellant. 25. The onus is on the prosecution to establish the charge that the deceased Rebika Devi was subjected to cruelty or harassment by her husband or any relative in connection with the demand for dowry so as to attract the provisions of Sections 498-A and 304-B IPC. 26. We will first deal with the evidence of PW-1, Heisnam Ibemcha Devi who is the younger sister of the appellant. She was declared a hostile witness after she resiled from what she stated before the police during the investigation. She, of course, denied during her cross-examination that the appellant used to ill-treat the victim Rebika Devi for not bringing her gas cylinder and four door almirah and other articles at the time of her marriage and also denied that any injury was caused to her by the appellant. She also stated that her brother and sister-in-law had a blissful married life during her life time. However, she also admitted during her cross-examination that her sister-in-law Rebika Devi frequently visited her parental home without informing her brother and parents. During the cross-examination, attention of the PW-1 was drawn to the statement made by her to the police under Section 161 Cr.P.C. which was marked as "X1" in which it was recorded as "sometimes beaten by my brother Joykumar" and another portion marked as "X2" in which it has been recorded as "one day while she was lying on bed my brother dragged down her from the bed and beaten her." Of course, the PW-1 denied having made such statements to the police. This Court is not relying on her statement made under Section 161 Cr.P.C. to consider the charge. Yet, it can certainly be considered to judge the reliability and credibility of her deposition made before the Court. 27. PW-2 Heisnam Chaoba Singh also deposed that he found both sides of the cheek and the front neck portion of the dead body in reddish colour. PW-2 who was a Sagei relative of the accused was also declared hostile. Yet, it can certainly be considered to judge the reliability and credibility of her deposition made before the Court. 27. PW-2 Heisnam Chaoba Singh also deposed that he found both sides of the cheek and the front neck portion of the dead body in reddish colour. PW-2 who was a Sagei relative of the accused was also declared hostile. He stated in the examination-in-chief that he had seen some watering near the mouth of the deceased which may be saliva and found both sides of cheeks and front neck portion in reddish colour. This is indicative of certain injury received by the deceased which stands corroborated by the post-mortem report which mentions of injury/abrasion marks measuring 0.8 x 0.2 cm, 3 cm. 28. PW-3, the father of the appellant though had denied any ill treatment of the deceased Rebika Devi by the appellant or any other relative, stated that his daughter-in-law used to go frequently to her parental house because of which he advised her not to go to her parental house frequently and stated that his son Joykumar, the appellant, also told her not to go to her parental house frequently. PW-3 was also confronted in course of the cross examination after he was declared hostile by the prosecution with the statement made before the police under Section 161 Cr.P.C. to the effect that sometimes my son, Joykumar Singh beat her but I intervened. PW-3 however, stated that he never made such statement before the police. Similarly, he also denied having made such statement sometimes I heard quarrelling sound of my son, Joykumar Singh with her wife Rebika Devi at night and day very frequently, though he admitted giving his statement to the police. 29. PW-4 who was a seizure witness is of not much significance as far as evidence is concerned on this issue. 30. PW-5, Loitongbam Manaobi Singh who is from the locality of the maternal home of the deceased, stated that after some time of her marriage, the said Rebika Devi used to come to her parental home frequently and sometimes she halted the night at her parental home and returned back to the house of her husband next day and sometimes she used to come in the morning at her parental house and returned back on the same day. He deposed that one day when she came to the residence of her parents, he asked her the reasons for her frequent visit at her parental home, then she replied that as she was tortured by her husband she could not tolerate the hardship and torture suffered at the hands of her husband. At that he consoled her to return back at the residence of her husband as frequent visit at the parental home is not good in the eyes of the society. The statement of PW-5 could not be shaken during the cross examination. It is to be noted that even though the said PW-5 testified about Rebika Devi having harassed tortured by the husband, there is no allegation about demand of dowry. 31. PW-6, Wahengbam (O) Mema Devi a relative and who is from the locality of the parental house of the deceased also stated that the deceased Rebika Devi frequently visited her parental home. She also stated that the deceased Rebika Devi had also come to her house and told her that she was being tortured by the appellant because of which she did not want to return to her husband's house. PW-6 also noted certain bruise marks over the body of the deceased Rebika Devi before the post-mortem. The post-mortem report reflects the existence of external injury/abrasion on the lower part of the left cheek, measuring 0.8 x 0.2 cm, 3 cm. PW-6 also while testifying about the torture of Rebika Devi by her husband did not make any reference to the demand of dowry by the appellant or his family members, though PW-6 is the sister of Rebika's mother. 32. PW-7, Khangembam Shanti Singh is the younger brother of Rebika Devi's mother. He also testified that the deceased Rebika Devi came to her parental house frequently as she could not tolerate the hardship of demand of dowry like dressing table, almirah and two wheelers but she returned to her marital house after being counselled. PW-7 also stated that he witnessed certain injury marks over the body of the deceased before the post-mortem and he put his signature before the inquest report. 33. PW-8 is the father of the deceased Rebika Devi. He deposed that his daughter had come at her house during the month of Rath-Jatra and told her that her husband was demanding gas cylinder, four faced almirah, two wheelers, etc. 33. PW-8 is the father of the deceased Rebika Devi. He deposed that his daughter had come at her house during the month of Rath-Jatra and told her that her husband was demanding gas cylinder, four faced almirah, two wheelers, etc. He also stated that after staying the night on the Rath-Jatra day she was dropped at her maternal home by her brother who halted at the residence of her daughter at his return on the next day, his son told him that her daughter was being assaulted by her mother-in-law and her husband. Though PW-8 had deposed before the Court that there was a demand for dowry, he also stated in his cross examination that the appellant and his mother never requested or asked to give specific awunpot (dowry) or anything at the time of marriage of her daughter. 34. PW-9, Dr. Mrs. Thounaojam Meera Devi who conducted the post-mortem examination of the dead body of the deceased Rebika Devi stated that there was injury/abrasion mark on the lower part of the left cheek measuring 0.8 x 0.2 cm, 3 cm from the angle of the mouth and red in colour. However, no other external injury was found. 35. The I.O. of the case, PW-10, in his statement stated that though the accused person did not force the deceased to consume poison, the deceased Rebika Devi had consumed poison as she could not adjust herself to the system of her husband family as a result she had taken drastic step of consuming poison. 36. PW-14, Amarjit Singh the younger brother of the deceased was examined as the last witness on 24.5.2013. He stated that his sister told him that she was being tortured by her husband and used to come to her parental house, because of which his parents used to console her telling her to have patience and try to live amicably with her husband and her in-laws, and such incident had taken place three/four times in the past. He also stated that on 3rd July, 2000 his sister came to his house on foot in the morning without having her meal and she cried and told that she will not return back to her husband residence on that day. He also stated that on 3rd July, 2000 his sister came to his house on foot in the morning without having her meal and she cried and told that she will not return back to her husband residence on that day. He stated that he escorted his sister to her matrimonial home by a bicycle and on the way they stopped three times to take rest as his sister was already pregnant. He stated that when they reached her matrimonial home, her husband and mother-in-law did not treat her properly. He also stated that in the afternoon after they returned back to her matrimonial home her husband kicked her on the back. At that time, the father-in-law pacified his brother-in-law and not to behave in such a manner. He also deposed that on the night when he was sleeping in the adjacent room he heard the noise of his sister sobbing. On the next day, she told him that her husband said many things saying that she is from a village and she did not bring marriage gift like two wheelers. Serious objections has been raised by the appellant regarding examination of PW-14 contending that he is a biased witness. The cross-examination of PW-14 was merely formal by making suggestions to him which he denied. No attempt was made by the defence to discredit his evidence. The defence also adduced evidence by producing defence witnesses after PW-14 was examined. But, the testimony of the PW-14 could not be shaken. 37. As regards the defence case, DW-1 Heisnam Maichon Devi, the mother of the appellant stated that there was a difference of opinion with the mother of Rebika Devi on the issue of her pregnancy as the mother of Rebika wanted to terminate the pregnancy which her mother had opposed. While she also admitted that the younger brother of the deceased Rebika Devi, namely Amarjit Singh had come to her house along with her deceased daughter-in-law and halted at the residence few days before the date of occurrence, she denied the incident of beating and sobbing as mentioned by the said Amarjit Singh (PW-14). 38. DW-2, the appellant while deposing before the Court claimed that the deceased and the appellant had a blissful married life. 38. DW-2, the appellant while deposing before the Court claimed that the deceased and the appellant had a blissful married life. As regards the visit of his wife on the Rath-Jatra, the appellant DW-1 stated that she had left her parental house inspite of his request not to leave but he stated that when she came the next day along with his brother in the bicycle, her brother was treated nicely by serving fish on the night. He also mentioned about difference of opinion between his mother and the mother of the deceased about the termination of the pregnancy of his deceased wife. The appellant claimed that when he and his mother went on the next day of the incident to the Moirang Police Station they were told by the police officer that the case against him, his father and mother were regarding demand of dowry. According to the appellant his wife committed suicide as she had some grudge with her mother relating to her relationship which she had with a youth locality before her marriage to the appellant. He also stated that she was compelled by her mother to marry him in order to avoid the relationship with the said youth. As regards this claim put up by him, no other credible witnesses have produced to hint that the deceased had an affair with another person before her marriage with the appellant. Hence, this Court does not find this claim trustworthy. 39. DW-3, Heisnam Borni Devi a relative of the appellant also stated that the deceased Rebika Devi frequently went to her parental house after she had conceived for about 2-3 months and sometimes she used to stay at her parental home and her mother also frequently came at her daughter's place. She also stated that when she entered the house of the accused person she found the deceased Rebika Devi lying on the ground near her bed and she found the smell of pesticide because of which she presumed that the said Rebika Devi had consumed pesticide. She also said that she did not know the reason of going by deceased Rebika Devi to her parental home frequently and denied the suggestion that the deceased Rebika Devi went to her house due to torture made by the accused. 40. She also said that she did not know the reason of going by deceased Rebika Devi to her parental home frequently and denied the suggestion that the deceased Rebika Devi went to her house due to torture made by the accused. 40. DW-4, Tongbram Ibemhal Devi, another neighbour stated that as per her knowledge, the appellant and the deceased lived a blissful married life. She also stated that after the death of Rebika Devi her mother stated that she cannot see Sanajaoba, who was alleged to have had an affair with the deceased before her marriage to the appellant, in a state of shock. 41. A close examination of the evidence on record as discussed above would clearly show that while the defence witnesses had denied the allegation of torture of Rebika Devi by her husband because of demand for dowry the prosecution witnesses, other than who had been declared hostile, had been equally emphatic on their statement that the deceased was tortured by her husband because of demand for dowry. As regards the prosecution witnesses who were declared hostile, they were the younger sister, father and other close relatives of the appellant. Though these prosecution witnesses who are relatives of the appellant had mentioned about the torture of the deceased by the appellant in the statements made under Section 161 Cr.P.C. when confronted with these statements, they have totally denied having made such statements while deposing before the Court and on the contrary had deposed that the appellant and the deceased were having a blissful married life. While it will be natural for the close relatives of the appellant/accused to testify in his favour, it may be also stated that it will be equally natural for the relatives of the deceased to testify against the appellant. Therefore, we have to consider the credibility of the statements made by these witnesses vis-a-vis the charges against the appellant. What can be noted is that all these prosecution witnesses who are relatives of the appellant, who had turned hostile, apparently had mentioned about the torture of the deceased by her husband/appellant in their statement made before the police. They, however, have denied having made such statement when confronted with their statements before the Court. What can be noted is that all these prosecution witnesses who are relatives of the appellant, who had turned hostile, apparently had mentioned about the torture of the deceased by her husband/appellant in their statement made before the police. They, however, have denied having made such statement when confronted with their statements before the Court. This Court doubts the veracity of the statements made by these relative witnesses before the Court stating that the appellant and the deceased were living the blissful life, in view of the diametrically contrary statements made before the police under Section 161 Cr.P.C. and also their failure to properly explain the fact that the deceased used to go frequently to her maternal home inspite of objections by the appellant and his family members. Accordingly, the Court is reluctant to believe the defence plea that the appellant and his wife were living a blissful life. On the other hand, the prosecution has painted a grim picture and alleged that the appellant had tortured the deceased because of demand for dowry which ultimately led her to commit suicide. JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. T. Rajendra, learned counsel for the appellant and Mr. Sh. Yangya, learned PP for the State. 2. This appeal has been preferred against the judgment and order dated 20.08.2014 passed in Session Trial No. 16 of 2013 by the appellant (the accused No. 1) who was convicted under Section 498-A/304-B /306/34 IPC and ordered to undergo sentence ranging from 3 to 10 years' rigorous imprisonment and with fine, to run concurrently. 3. We will first deal with an important issue raised by the appellant which if upheld in favour of the appellant, may result in overturning the conviction and sentence. This issue relates to the alteration of charge ordered by the trial court. The appellant and the other co-accused, her mother, were initially charge-sheeted for offences under Sections 498-A and 302 IPC. The initial charges framed by the trial court on 18.11.2005 were as follows:- (i) Firstly, that the appellant and the co-accused on or about 14.7.2000 at Keibul Mayai Leikai, 8 Km. West, being the husband and the mother-in-law of the victim woman Heisnam Ongbi Rebika Devi subjected her to cruelty by wilful conduct which caused physical danger to the life of the said woman and thereby committed the offence punishable under Section 498-A of the Indian Penal Code. West, being the husband and the mother-in-law of the victim woman Heisnam Ongbi Rebika Devi subjected her to cruelty by wilful conduct which caused physical danger to the life of the said woman and thereby committed the offence punishable under Section 498-A of the Indian Penal Code. (ii) Secondly, the appellant and the co-accused on or about 14.07.2000 at 11:30 am at Keibul Mayai Leikai, 8 Km. West, did commit murder by intentionally causing the death of Heisnam Ongbi Rebika Devi thereby committed the offence punishable under Section 302 of the IPC. On the basis of the aforesaid charges, the trial court examined as many as 13 prosecution witnesses. Thereafter, the defence also produced 4 defence witnesses. After 13 prosecution witnesses and 2 defence witnesses were examined, the prosecution submitted an application on 17.4.2010 for allowing to produce one witness namely, Loitongbam Amarjit Singh, brother of the deceased H. Rebika Devi on the ground that he was a material witness who had been mentioned by some prosecution and defence witnesses including the accused showing that said Shri L. Amarjit Singh was staying in the night at the residence of the accused, the day before the death of the deceased H. Rebika Devi. Though the said application was objected by the accused, the said application was allowed by the Court and accordingly, the said Amarjit Singh was examined as a prosecution witness No. 14 by the Court on 24.05.2013. After recording of evidence of the said Amarjit Singh, the accused were again examined under Section 313 Cr.P.C. on 5.7.2013 and thereafter, the defence produced 2 witnesses being DW-3 and DW-4 who were examined on 18.02.2014 and 10.03.2014 respectively. The matter was, thereafter, taken up for hearing on conclusion of the recording of evidence as mentioned above. The hearing was taken up on 7.05.2014 which continued on 19.05.2014. After hearing the parties, the learned trial court observed on the basis of the materials on record that the allegations against the accused are for committing for cruelty to the deceased victim woman for demand of dowry and abetment of suicide and was of the view that there was no ground for attracting provisions of Section 302 IPC. Accordingly, the trial court after hearing the parties altered the charges to the new charges under Section 498-A, 304-B IPC and 306 IPC read with Section 34 of IPC. Accordingly, the trial court after hearing the parties altered the charges to the new charges under Section 498-A, 304-B IPC and 306 IPC read with Section 34 of IPC. After altering and reframing of the charge, the trial court read over and explained the new charges to the accused who pleaded not guilty to the altered charges. The trial court, thereafter, observing that as the stage of the case is for final hearing after examination of the prosecution and defence witnesses, gave opportunities to both the prosecution as well as to the accused persons for leading evidence relating to the altered charges. The prosecution declined to produce any witness. The learned counsel of the accused also submitted before the Court that no witness will be produced from the side of the accused and prayed for fixing the next date of hearing. Accordingly, the final hearing was fixed on 5.06.2014. The matter was finally heard on 5.06.2014 which continued on 30.6.2014 and judgment was delivered on 20.8.2014. As the order passed by the trial court on 19.5.2014 altering the charges has been assailed by the appellant, it will be apposite to reproduce the same as follows: "ORDER 19.05.2014 Accused are present with their counsel. On perusal of the record, my learned predecessor has framed the charges against the accused under Section 498-A and 304 IPC. However, having synthetic perusal of the materials on record, the allegation against the accused are for committing cruelty to the deceased victim woman demanding of dowry and abetment of suicide. Thus, I am of the opinion that there is no ground for attracting under Section 304 IPC. The stage of the case is final hearing. Therefore, the charges are altered to the charges under Section 498-A, 304-B and 306 IPC r/w Section 34 IPC. The contents of the charges are read over and explained to the accused and asked whether they pleaded guilty or not. The accused plead not guilty. As the stage of the case is final hearing after the examination of PWs. and DWs, I have given opportunities to the prosecution as well as to the accused persons for leading evidences relating to the altered charges. Learned Additional PP has submitted that no witness will produce from the prosecution side. The accused plead not guilty. As the stage of the case is final hearing after the examination of PWs. and DWs, I have given opportunities to the prosecution as well as to the accused persons for leading evidences relating to the altered charges. Learned Additional PP has submitted that no witness will produce from the prosecution side. Learned counsel of the accused persons has also submitted no witness will produce from the side of the accused and prays for fixing the next date as final hearing. Fix 5.06.2014 for final hearing. Sd/- JUDGE Sessions Judge, Bishnupur." 4. The altered charges read as follows: "Hereby charge you Name of the accused:- (1) Heisnam Joykumar Singh, aged about 24 years, S/o H. Ibobi Singh of Keibul Mayai Leikai, P.O. & P.S. Moirang, District Bishnupur, Manipur. (2) Smt. Heisnam Maichon Devi, (54), W/o H. Ibobi Singh of Keibul Mayai Leikai, P.O. & P.S. Moirang, Bishnupur District, Manipur as follows: First - That you on 14.7.2000 at Keibul Mayai Leikai being husband and the mother-in-law of the victim woman, Heisnam Ongbi Rebika Devi subjected such woman to cruelty by willful conduct which caused physical danger to the life of the said woman and thereby committed the offence punishable under Section 498-A of the Indian Penal Code and within the cognizance of this Court. Secondly - On the same day, month, and year the said victim woman, namely, H. Rebika Devi caused dead due to consumed poison due to demand of Dowry by you and have committed the offence punishable under Section 304-B of the Indian Penal Code and within the cognizance of this Court. Thirdly - On the same day, month and year the said victim woman, namely, H. Rebika Devi committed suicide and that you, H. Joykumar and H. Memcha Devi abetted its commission by committing cruelty and demanding dowry and thereby committed the offence punishable under Section 306 of the Indian Penal Code and within the cognizance of this Court. Fourthly - On the same day, month, and year you, H. Joykumar and H. Maichon Devi with common intention committed cruelty and demanding of Dowry thereby causes the dead of H. Rebika Devi by committing suicide and thereby committed the offence punishable under Section 34 of the Indian Penal Code and within the cognizance of this Court." 5. Fourthly - On the same day, month, and year you, H. Joykumar and H. Maichon Devi with common intention committed cruelty and demanding of Dowry thereby causes the dead of H. Rebika Devi by committing suicide and thereby committed the offence punishable under Section 34 of the Indian Penal Code and within the cognizance of this Court." 5. As mentioned above, since both the prosecution as well as the defence declined to produce any witness, the matter was finally heard and judgment was pronounced convicting the present appellant under Sections 498-A , 304-B and 306 of the IPC. 6. Mr. T. Rajendra, learned counsel for the appellant has forcefully argued that even though charges could be altered by the Court at any time before the judgment is pronounced as provided under Section 216 of the Cr.P.C. whenever there is any such alteration or addition to the charges, the Court must form an opinion that it is either likely or not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case. Formation of such an opinion and recording it is according to him an essential requirement of Section 216 Cr.P.C. In case the Court forms the opinion that it is not likely to cause prejudice to either of the parties, the trial will proceed. If the Court forms the opinion that such alteration or addition is likely to prejudice the accused or the prosecutor, the Court may either direct a new trial or adjourn the trial for such period as the case may be. In any event, the Court has to form an opinion as to whether such alteration is likely to cause prejudice or not as the case may be. Mr. Rajendra submits that in the present case, no such opinion was formed by the trial Court before proceeding and as such, the decision to proceed with hearing after alteration of charge without forming such opinion has vitiated the trial on the ground of non-application of mind as required under Section 216 Cr.P.C. 7. Mr. Mr. Rajendra submits that in the present case, no such opinion was formed by the trial Court before proceeding and as such, the decision to proceed with hearing after alteration of charge without forming such opinion has vitiated the trial on the ground of non-application of mind as required under Section 216 Cr.P.C. 7. Mr. T. Rajendra further submits that in view of Section 217 of Cr.P.C. 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 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. In the present case, Mr. Rajendra submits that the Court never offered the accused to recall or re-summon or examine with reference to such altered charges. Mr. Rajendra therefore, submits that on this ground also the trial has been vitiated. He submitted that what had been done by the Court was merely asking the prosecution and the accused to lead evidence relating to the altered charges which is different from giving the opportunity to recall or re-summon and examine a witness who had been summoned. 8. Mr. Rajendra, learned counsel for the appellant submits that alteration of charges has certainly prejudiced the petitioner contending that the ingredients of the offence under Sections 302 and 306 IPC are different as both the offences are of distinct and different categories. One of the initial charges against the petitioner was for an offence under Section 302 IPC which has been subsequently altered to Sections 304-B and 306 IPC and since these two offences are distinct and consist of different ingredients, the trial court ought to have given an opinion as to whether the alteration or addition of charge likely to or not likely to prejudice the accused which the trial court did not, because of which the trial is vitiated. In this regard, Mr. Rajendra has relied on the decision of the Hon'ble Allahabad High Court in Ghan Shyam alias Subhash and Another vs. State of U.P. (2004) Cri. In this regard, Mr. Rajendra has relied on the decision of the Hon'ble Allahabad High Court in Ghan Shyam alias Subhash and Another vs. State of U.P. (2004) Cri. L.J. 967, in which the Hon'ble Allahabad High Court held that the offence under Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr.P.C. and both the offences are all distinct and belong to different categories. The basic constituent of offence under Section 302 IPC is homicidal death whereas under Section 306 IPC it is suicidal death and abetment thereof. Both the charges cannot go together, either the deceased had committed suicide or she was murdered. It was for the trial court to have examined the evidence collected during the investigation then frame the charge. Further, Mr. Rajendra, relying on the decision of the Gauhati High Court in Shri Ram Nagina Roy and Another vs. Mohabir Kanu, 1995 (II) GLT 321 held that whenever there is an alteration of charge, it is the duty of the trial court to examine the accused under Section 313 Cr.P.C. in respect of the amended or added charge and so that the accused is not prejudiced. It has been contended by Mr. Rajendra that such examination of the accused under Section 313 Cr.P.C. was not done by the trial Court before proceeding with the hearing, thus prejudicing the appellant. 9. On the other hand, Mr. Sh. Yangya, learned PP has submitted that under Section 216 of the Cr.P.C. the Court at any time can alter or add any charge before judgment is pronounced which has been done in the present case and there was no irregularity in altering the charge referring to the order dated 19.5.2014 passed by the learned trial Court. Mr. Yangya submits that after the alteration of charges by the learned trial Court, the learned trial Court specifically asked the accused whether he likes to lead evidence relating to the altered charges as required under Section 217 of the Cr.P.C. Since the accused had specifically stated that no witness will be produced from the side of the accused and submitted for proceeding with the hearing of the matter, it cannot be said that any prejudice had been caused by the alteration. He submits that the appellant cannot now take the plea that a prejudice had been caused to him since the accused himself declined to lead any further evidence inspite of being so offered by the Court. 10. That apart, Mr. Yangya also submits that Section 465 of the Cr.P.C. clearly provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, etc. during the trial unless in the opinion the Court a failure of justice has in fact been occasioned thereby. Mr. Yangya, learned PP submits that even if the contention of the appellant that there had been irregularities in invoking the provisions of Section 216 and 217 of the Cr.P.C. as contended by the appellant, since the appellant had failed to show that failure of justice in fact had been occasioned on account of the aforesaid alleged irregularity committed by learned trial court, the impugned conviction ought not be interfered with. Mr. Yangya submits that there are ample evidences on record to sustain the altered charges of the commission of offence under Section 498-A, 304-B and 306 of the IPC against the appellant. As such, Mr. Yangya submits that the contention of the learned counsel for the appellant that the provisions of Section 216 and 217 has not been properly followed by the Court is without any substance. Mr. Yangya, learned PP has placed reliance on the following decisions of the Hon'ble Supreme Court to substantiate his contentions:- (1) Ranbir Yadav vs. State of Bihar, (1995) 4 SCC 392 (2) Dinesh Tiwari vs. State of Uttar Pradesh, (2014) AIRSCW 4665 (3) Girraj Prasad Meera vs. State of Rajasthan, (2014) 13 SCC 674 (4) Sayeeda Farhana Shamim vs. State of Bihar and Another, (2008) 8 SCC 218 11. Having considered the rival contentions of the parties on the issue as to whether the trial had been vitiated on account of alleged improper application of Section 216 and 217 of the Cr.P.C. it seems this issue cannot be decided in isolation without referring to the evidence on record, as Mr. Having considered the rival contentions of the parties on the issue as to whether the trial had been vitiated on account of alleged improper application of Section 216 and 217 of the Cr.P.C. it seems this issue cannot be decided in isolation without referring to the evidence on record, as Mr. Yangya, learned PP has vehemently argued that there are sufficient evidences on record to sustain the altered charges against the appellant and no failure of justice had occasioned due to alteration of charges as the appellant himself declined to lead any evidence after alteration of charges. He also submits that the charges of consumption of poison by the deceased, her torture by the husband, demand for dowry were well known to the appellant before the alteration of charges, hence, it cannot be said that the appellant was prejudiced by the alteration of charges. Therefore, this Court has to refer to the material evidences on record, which would involve hearing the appeal on merit. Accordingly, the Court is of the opinion that the preliminary issue raised by the appellant cannot be considered in isolation but has to be considered while considering the appeal on merit, with reference to the other grounds raised by the appellant. 12. Altered charges as quoted above made against the appellant are for committing offences under Sections 498-A, 304-B and 306 IPC read with Section 34 IPC against the present appellant and her mother. Since the appellant's mother has been acquitted, the examination of this appeal will be confined only in respect of the conviction of the appellant. 13. As regards the charge under Section 498-A IPC, Section 498-A IPC reads as follows:- "498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose of this section "cruelty" means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Explanation - For the purpose of this section "cruelty" means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." The ingredients of Section 498-A IPC are that the married woman must have been subject to cruelty by the husband or the relative of the husband. Cruelty was to be of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman and also means harassment of the woman where such harassment was with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or was on account of failure by her or her relative to meet such demand. The other section under which the appellant has been charged is Section 304-B IPC, which reads as follows:- "304B. Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Explanation - For the purpose of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." Reading of the aforesaid section clearly indicates that the following ingredients must be established to attract the aforesaid Section: (i) death of the married woman was caused by burn or bodily injury or occurs otherwise that under normal circumstances, (ii) the death must have occurred within 7 years of her marriage, (iii) the victim was subject to cruelty or harassment by her husband or the relative of her husband (iv) the cruelty or harassment is in connection with the demand of dowry, (v) such cruelty and harassment must have been soon before the death. As regards Section 306 IPC for abetment of suicide, it is reproduced herein-below: "306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." The basic ingredients of the aforesaid evidence is that (i) the deceased had committed suicide (ii) the accused had by his acts encouraged or abetted commission of the said suicide. 14. We now proceed to examine the evidence on record to see whether there are evidences to substantiate the ingredients as mentioned above. 15. From the perusal of the evidences what comes out is that the deceased woman Rebika Devi died within about 8 months of her marriage to the appellant thus within 7 years of marriage. She got married sometime in December, 1999 and she died on 14.7.2000. This fact is not disputed by any of the parties. We may now proceed to examine as to how the deceased Rebika Devi had died. It is the case of the accused and defence that the said Rebika died because of consumption of poison. We are not at this stage examining the motive for consumption of the poison but about the allegation that the deceased consumed poison because of which she died. 16. It is the case of the accused and defence that the said Rebika died because of consumption of poison. We are not at this stage examining the motive for consumption of the poison but about the allegation that the deceased consumed poison because of which she died. 16. PW-1 Smt. Heisnam Ibemcha Devi who is the younger sister of the appellant and accused, Shri Joykumar Singh who was later declared a hostile witness by the Prosecution stated in her examination-in-chief that her sister-in-law, Smt. Rebika Devi committed suicide by taking poison. During her cross-examination, she also stated that when she entered the room of her sister-in-law she felt the smell of pesticide inside the room of her sister-in-law because of which she presumed that she had taken the said pesticide. PW-1 was with the deceased person immediately before the death took place. She found her sister-in-law rolling in pain on the ground when she (PW-1) came back from the paddy field. She also showed some vomiting material near her sister-in-law. When PW-1 enquired her sister-in-law about her condition, she did not reply except making the sound "OK" and "OK". 17. PW-3 Heisnam Ibobi Singh who is the father of the appellant stated in his examination-in-chief that he found one steel bowl of the size of the paper weigh in front of the bed of his daughter-in-law. He also stated that even though the said bowl did not contain anything, he felt the smell of "Hill Dan" a pesticide. 18. PW-8 Loitongbam Lukhoi Singh who was the father of the deceased Rebika Devi stated in his examination-in-chief that when he arrived at the house of the deceased after hearing the news and inquired from her husband/the accused and others of her death, they stated that she had consumed poison. 19. PW-9 Dr. Mrs. Thounaojam Merry Devi who conducted the post-mortem examination on the death body deceased Rebika Devi stated that blood fluid was seen oozing out of the nostrils and brownish stains were present around the nose and mouth and stomach of the deceased was congested with submucusal haemorrhage with dark brown liquid (about 200 ml) with kerosene like smell. She testified before the Court that the chemical analysis conducted by the CFSL, Kolkata on 3.2.2002 could not detect any common poison. She testified before the Court that the chemical analysis conducted by the CFSL, Kolkata on 3.2.2002 could not detect any common poison. She on the basis of the chemical analysis report gave the opinion that though chemical analysis report showed negative result, the post-mortem finding was consistent with organo phosphorous poisoning. She stated during her cross examination that common insecticide and pesticide which are used in the agricultural field are some of the compounds of the organo phosphorous. She also stated that since there was a gap of 2 years from 2000 to 2002 i.e. of the furnishing of the sample to the Forensic Laboratory and examination by the Forensic expert, it could be the reason for non-detection of the poison by the said Forensic Laboratory. 20. In the examination of the accused appellant by the Court under Section 313 of Cr.P.C. when it was put by the Court to him that there is evidence on the basis of the statement made by the medical expert who conducted postmortem examination over the death body of deceased Rebika Devi that the postmortem finding was consistent with the organo phosphorous poisoning and the injury present on the body of the deceased was fresh at the time of death, the accused appellant had stated the same to be true. He was examined as DW-2. In his statement he stated that when he enquired from the persons who were already inside the room where the deceased was lying, he was told by one Smt. Heisnam Tomberei that some smell of pesticide was found around the house and it seemed that his wife had consumed the pesticide. Accordingly, they gave the lemon juice and banana stem to enable her to vomit. 21. PW-10, the Investigating Officer of the case deposed before the Court that on the basis of information it has been ascertained that Rebika Devi had consumed poison and succumbed to death because of it. 22. DW-3, a neighbour of the appellant who rushed to the house of the appellant found the smell of pesticide in the room where Rebika was being attended by the villagers in her room because of which she felt that Rebika had consumed poison. 22. DW-3, a neighbour of the appellant who rushed to the house of the appellant found the smell of pesticide in the room where Rebika was being attended by the villagers in her room because of which she felt that Rebika had consumed poison. DW-4, another neighbour of the accused stated that when she was working in the paddy field on that day, a boy came to call the father of the appellant and informed that the deceased has consumed poison. 23. Therefore, this Court is of the view that the aforesaid contemporaneous evidences corroborated by post mortem report will be sufficient to establish the fact that the said deceased Rebika Devi died by consumption of poison. Though the final result given by the Forensic Laboratory may not have mentioned existence of poison in the sample, it also did not give a different or contrary opinion on the charge of poisoning, thus to leave any scope for entertaining any doubt about the immediate cause of death due to poisoning. It is also not the case of anybody that the poison was administered to her by somebody else or died of some other cause. Most of the witnesses who had deposed in favour of the appellant had consistently stated that the deceased died by consuming poison. This Court on the basis of the materials on record accepts the prosecution case that Rebika Devi committed suicide by consuming poison. To that extent, this Court confirms the finding of the Trial Court that the death of Rebika Devi was due to consumption of some poisonous substance. 24. This leads to the next question as to what prompted the said deceased Rebika Devi to consume poison which led to her death. It is the charge of the prosecution that the appellant used to frequently harass and torture the deceased for demand of dowry from her which ultimately drove her to commit suicide. On the other hand, it is the case of the appellant that she consumed poison as she was having a relation with one Sanajaoba Singh before her marriage. The defence stand is that the deceased Rebika Devi committed suicide as she was not happy with the marriage with the appellant as she was having an affair with another person namely, Sanajaoba Singh before her marriage with the appellant. 25. The defence stand is that the deceased Rebika Devi committed suicide as she was not happy with the marriage with the appellant as she was having an affair with another person namely, Sanajaoba Singh before her marriage with the appellant. 25. The onus is on the prosecution to establish the charge that the deceased Rebika Devi was subjected to cruelty or harassment by her husband or any relative in connection with the demand for dowry so as to attract the provisions of Sections 498-A and 304-B IPC. 26. We will first deal with the evidence of PW-1, Heisnam Ibemcha Devi who is the younger sister of the appellant. She was declared a hostile witness after she resiled from what she stated before the police during the investigation. She, of course, denied during her cross-examination that the appellant used to ill-treat the victim Rebika Devi for not bringing her gas cylinder and four door almirah and other articles at the time of her marriage and also denied that any injury was caused to her by the appellant. She also stated that her brother and sister-in-law had a blissful married life during her life time. However, she also admitted during her cross-examination that her sister-in-law Rebika Devi frequently visited her parental home without informing her brother and parents. During the cross-examination, attention of the PW-1 was drawn to the statement made by her to the police under Section 161 Cr.P.C. which was marked as "X1" in which it was recorded as "sometimes beaten by my brother Joykumar" and another portion marked as "X2" in which it has been recorded as "one day while she was lying on bed my brother dragged down her from the bed and beaten her." Of course, the PW-1 denied having made such statements to the police. This Court is not relying on her statement made under Section 161 Cr.P.C. to consider the charge. Yet, it can certainly be considered to judge the reliability and credibility of her deposition made before the Court. 27. PW-2 Heisnam Chaoba Singh also deposed that he found both sides of the cheek and the front neck portion of the dead body in reddish colour. PW-2 who was a Sagei relative of the accused was also declared hostile. Yet, it can certainly be considered to judge the reliability and credibility of her deposition made before the Court. 27. PW-2 Heisnam Chaoba Singh also deposed that he found both sides of the cheek and the front neck portion of the dead body in reddish colour. PW-2 who was a Sagei relative of the accused was also declared hostile. He stated in the examination-in-chief that he had seen some watering near the mouth of the deceased which may be saliva and found both sides of cheeks and front neck portion in reddish colour. This is indicative of certain injury received by the deceased which stands corroborated by the post-mortem report which mentions of injury/abrasion marks measuring 0.8 x 0.2 cm, 3 cm. 28. PW-3, the father of the appellant though had denied any ill treatment of the deceased Rebika Devi by the appellant or any other relative, stated that his daughter-in-law used to go frequently to her parental house because of which he advised her not to go to her parental house frequently and stated that his son Joykumar, the appellant, also told her not to go to her parental house frequently. PW-3 was also confronted in course of the cross examination after he was declared hostile by the prosecution with the statement made before the police under Section 161 Cr.P.C. to the effect that sometimes my son, Joykumar Singh beat her but I intervened. PW-3 however, stated that he never made such statement before the police. Similarly, he also denied having made such statement sometimes I heard quarrelling sound of my son, Joykumar Singh with her wife Rebika Devi at night and day very frequently, though he admitted giving his statement to the police. 29. PW-4 who was a seizure witness is of not much significance as far as evidence is concerned on this issue. 30. PW-5, Loitongbam Manaobi Singh who is from the locality of the maternal home of the deceased, stated that after some time of her marriage, the said Rebika Devi used to come to her parental home frequently and sometimes she halted the night at her parental home and returned back to the house of her husband next day and sometimes she used to come in the morning at her parental house and returned back on the same day. He deposed that one day when she came to the residence of her parents, he asked her the reasons for her frequent visit at her parental home, then she replied that as she was tortured by her husband she could not tolerate the hardship and torture suffered at the hands of her husband. At that he consoled her to return back at the residence of her husband as frequent visit at the parental home is not good in the eyes of the society. The statement of PW-5 could not be shaken during the cross examination. It is to be noted that even though the said PW-5 testified about Rebika Devi having harassed tortured by the husband, there is no allegation about demand of dowry. 31. PW-6, Wahengbam (O) Mema Devi a relative and who is from the locality of the parental house of the deceased also stated that the deceased Rebika Devi frequently visited her parental home. She also stated that the deceased Rebika Devi had also come to her house and told her that she was being tortured by the appellant because of which she did not want to return to her husband's house. PW-6 also noted certain bruise marks over the body of the deceased Rebika Devi before the post-mortem. The post-mortem report reflects the existence of external injury/abrasion on the lower part of the left cheek, measuring 0.8 x 0.2 cm, 3 cm. PW-6 also while testifying about the torture of Rebika Devi by her husband did not make any reference to the demand of dowry by the appellant or his family members, though PW-6 is the sister of Rebika's mother. 32. PW-7, Khangembam Shanti Singh is the younger brother of Rebika Devi's mother. He also testified that the deceased Rebika Devi came to her parental house frequently as she could not tolerate the hardship of demand of dowry like dressing table, almirah and two wheelers but she returned to her marital house after being counselled. PW-7 also stated that he witnessed certain injury marks over the body of the deceased before the post-mortem and he put his signature before the inquest report. 33. PW-8 is the father of the deceased Rebika Devi. He deposed that his daughter had come at her house during the month of Rath-Jatra and told her that her husband was demanding gas cylinder, four faced almirah, two wheelers, etc. 33. PW-8 is the father of the deceased Rebika Devi. He deposed that his daughter had come at her house during the month of Rath-Jatra and told her that her husband was demanding gas cylinder, four faced almirah, two wheelers, etc. He also stated that after staying the night on the Rath-Jatra day she was dropped at her maternal home by her brother who halted at the residence of her daughter at his return on the next day, his son told him that her daughter was being assaulted by her mother-in-law and her husband. Though PW-8 had deposed before the Court that there was a demand for dowry, he also stated in his cross examination that the appellant and his mother never requested or asked to give specific awunpot (dowry) or anything at the time of marriage of her daughter. 34. PW-9, Dr. Mrs. Thounaojam Meera Devi who conducted the post-mortem examination of the dead body of the deceased Rebika Devi stated that there was injury/abrasion mark on the lower part of the left cheek measuring 0.8 x 0.2 cm, 3 cm from the angle of the mouth and red in colour. However, no other external injury was found. 35. The I.O. of the case, PW-10, in his statement stated that though the accused person did not force the deceased to consume poison, the deceased Rebika Devi had consumed poison as she could not adjust herself to the system of her husband family as a result she had taken drastic step of consuming poison. 36. PW-14, Amarjit Singh the younger brother of the deceased was examined as the last witness on 24.5.2013. He stated that his sister told him that she was being tortured by her husband and used to come to her parental house, because of which his parents used to console her telling her to have patience and try to live amicably with her husband and her in-laws, and such incident had taken place three/four times in the past. He also stated that on 3rd July, 2000 his sister came to his house on foot in the morning without having her meal and she cried and told that she will not return back to her husband residence on that day. He also stated that on 3rd July, 2000 his sister came to his house on foot in the morning without having her meal and she cried and told that she will not return back to her husband residence on that day. He stated that he escorted his sister to her matrimonial home by a bicycle and on the way they stopped three times to take rest as his sister was already pregnant. He stated that when they reached her matrimonial home, her husband and mother-in-law did not treat her properly. He also stated that in the afternoon after they returned back to her matrimonial home her husband kicked her on the back. At that time, the father-in-law pacified his brother-in-law and not to behave in such a manner. He also deposed that on the night when he was sleeping in the adjacent room he heard the noise of his sister sobbing. On the next day, she told him that her husband said many things saying that she is from a village and she did not bring marriage gift like two wheelers. Serious objections has been raised by the appellant regarding examination of PW-14 contending that he is a biased witness. The cross-examination of PW-14 was merely formal by making suggestions to him which he denied. No attempt was made by the defence to discredit his evidence. The defence also adduced evidence by producing defence witnesses after PW-14 was examined. But, the testimony of the PW-14 could not be shaken. 37. As regards the defence case, DW-1 Heisnam Maichon Devi, the mother of the appellant stated that there was a difference of opinion with the mother of Rebika Devi on the issue of her pregnancy as the mother of Rebika wanted to terminate the pregnancy which her mother had opposed. While she also admitted that the younger brother of the deceased Rebika Devi, namely Amarjit Singh had come to her house along with her deceased daughter-in-law and halted at the residence few days before the date of occurrence, she denied the incident of beating and sobbing as mentioned by the said Amarjit Singh (PW-14). 38. DW-2, the appellant while deposing before the Court claimed that the deceased and the appellant had a blissful married life. 38. DW-2, the appellant while deposing before the Court claimed that the deceased and the appellant had a blissful married life. As regards the visit of his wife on the Rath-Jatra, the appellant DW-1 stated that she had left her parental house inspite of his request not to leave but he stated that when she came the next day along with his brother in the bicycle, her brother was treated nicely by serving fish on the night. He also mentioned about difference of opinion between his mother and the mother of the deceased about the termination of the pregnancy of his deceased wife. The appellant claimed that when he and his mother went on the next day of the incident to the Moirang Police Station they were told by the police officer that the case against him, his father and mother were regarding demand of dowry. According to the appellant his wife committed suicide as she had some grudge with her mother relating to her relationship which she had with a youth locality before her marriage to the appellant. He also stated that she was compelled by her mother to marry him in order to avoid the relationship with the said youth. As regards this claim put up by him, no other credible witnesses have produced to hint that the deceased had an affair with another person before her marriage with the appellant. Hence, this Court does not find this claim trustworthy. 39. DW-3, Heisnam Borni Devi a relative of the appellant also stated that the deceased Rebika Devi frequently went to her parental house after she had conceived for about 2-3 months and sometimes she used to stay at her parental home and her mother also frequently came at her daughter's place. She also stated that when she entered the house of the accused person she found the deceased Rebika Devi lying on the ground near her bed and she found the smell of pesticide because of which she presumed that the said Rebika Devi had consumed pesticide. She also said that she did not know the reason of going by deceased Rebika Devi to her parental home frequently and denied the suggestion that the deceased Rebika Devi went to her house due to torture made by the accused. 40. She also said that she did not know the reason of going by deceased Rebika Devi to her parental home frequently and denied the suggestion that the deceased Rebika Devi went to her house due to torture made by the accused. 40. DW-4, Tongbram Ibemhal Devi, another neighbour stated that as per her knowledge, the appellant and the deceased lived a blissful married life. She also stated that after the death of Rebika Devi her mother stated that she cannot see Sanajaoba, who was alleged to have had an affair with the deceased before her marriage to the appellant, in a state of shock. 41. A close examination of the evidence on record as discussed above would clearly show that while the defence witnesses had denied the allegation of torture of Rebika Devi by her husband because of demand for dowry the prosecution witnesses, other than who had been declared hostile, had been equally emphatic on their statement that the deceased was tortured by her husband because of demand for dowry. As regards the prosecution witnesses who were declared hostile, they were the younger sister, father and other close relatives of the appellant. Though these prosecution witnesses who are relatives of the appellant had mentioned about the torture of the deceased by the appellant in the statements made under Section 161 Cr.P.C. when confronted with these statements, they have totally denied having made such statements while deposing before the Court and on the contrary had deposed that the appellant and the deceased were having a blissful married life. While it will be natural for the close relatives of the appellant/accused to testify in his favour, it may be also stated that it will be equally natural for the relatives of the deceased to testify against the appellant. Therefore, we have to consider the credibility of the statements made by these witnesses vis-a-vis the charges against the appellant. What can be noted is that all these prosecution witnesses who are relatives of the appellant, who had turned hostile, apparently had mentioned about the torture of the deceased by her husband/appellant in their statement made before the police. They, however, have denied having made such statement when confronted with their statements before the Court. What can be noted is that all these prosecution witnesses who are relatives of the appellant, who had turned hostile, apparently had mentioned about the torture of the deceased by her husband/appellant in their statement made before the police. They, however, have denied having made such statement when confronted with their statements before the Court. This Court doubts the veracity of the statements made by these relative witnesses before the Court stating that the appellant and the deceased were living the blissful life, in view of the diametrically contrary statements made before the police under Section 161 Cr.P.C. and also their failure to properly explain the fact that the deceased used to go frequently to her maternal home inspite of objections by the appellant and his family members. Accordingly, the Court is reluctant to believe the defence plea that the appellant and his wife were living a blissful life. On the other hand, the prosecution has painted a grim picture and alleged that the appellant had tortured the deceased because of demand for dowry which ultimately led her to commit suicide.