JUDGMENT 1. (Oral) - This criminal appeal has been filed by accused-appellant Vishwakumar assailing judgment dated 29.03.2010 passed by Additional District and Sessions Judge (Fast Track), Sikar (for short 'the trial court') whereby he has been convicted for the offence punishable under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 10,000/-, in default whereof, to further undergo rigorous imprisonment for six months. 2. Facts, in brief, giving rise to the present appeal are that a written report (Exhibit P-3) was submitted by Sitaram Sharma (PW.2) on 14.05.2004 to S.H.O., Police Station Khandela alleging that marriage of his daughter Mamta was solemnized with Vishwakumar on 09.05.2004. On 12.05.2004 at 9.00 A.M. two persons from Guman Singh Ki Dhani, Tan Kotdi came and told him that his daughter had disappeared from her in-laws' house and was not traceable since 3.00 A.M. in the morning. He went to the said village with them, where he met the appellant and his father Prabhu Dayal Sharma. He enquired about his daughter but they pleaded ignorance and rather stated that had he given motor cycle and more dowry, he would have certainly known about his daughter. The complainant, Sitaram Sharma (PW.2), lodged a missing person report (Exhibit P-2) at Police Station Khandela. Thereafter, on 14.05.2004, in the morning, he receive information from Guda Police Station to come to Guman Singh Ki Dhani as dead body of his daughter was found lying in the well. Complainant along with several other persons reached Guman Singh Ki Dhani, where the police had taken out dead body of his daughter from the well in the presence of the complainant and other family members. On seeing the dead body, it was clear that dead body of his daughter was thrown into the well after murdering her. The complainant expressed doubts against the appellant and his father Prabhu Dayal and other relatives. 3. On receipt of written report (Exhibit P-3), FIR No. 64/2004 (Exhibit P-4) was chalked out for offences under Sections 398-A, 304-B IPC. Doctor conducted post mortem of the deceased. Medical Board opined that cause of death seems to be Cardio Respiratory failure due to Asphyxia, but final opinion would be given after receiving of FSL report. Cause of Asphyxia was due to smothering. The police then started investigation and arrested accused-appellant and his other family members. Doctor conducted post mortem of the deceased. Medical Board opined that cause of death seems to be Cardio Respiratory failure due to Asphyxia, but final opinion would be given after receiving of FSL report. Cause of Asphyxia was due to smothering. The police then started investigation and arrested accused-appellant and his other family members. Upon completion of investigation, challan under Sections 498-A and 304-B IPC was filed against the accused-appellant Vishwakumar and investigation against other accused was kept pending under Section 173(8) Cr.P.C. Thereafter, on 19.11.2007, challan was filed against other accused namely Prabhu Dayal, Savitri and Laxmi under Sections 302, 304-B, 498-A. 120-B, 201 IPC and Section 4 of the Dowry Prohibition Act, 1961. The trial court, however, framed charges against accused-appellant for the offences punishable under Sections 302 and 304-B IPC. The appellant challenged the aforesaid order of framing charge by filing S.B. Criminal Misc. Revision Petition No. 546/2005. Learned Single Judge of this Court while partly allowing the revision petition vide order dated 01.02.2006 quashed and set aside charge framed against the accused-appellant for offence punishable under Section 304-B, but sustained the charge framed against him for offence punishable under Section 302 IPC. Thereafter, amended charge under Section 302 IPC was framed against the accused-appellant and charges under Sections 302 or 302/34 IPC were framed against rest of the accused-persons. The accused-persons abjured the charges and claimed trial. The prosecution produced 17 witnesses and exhibited 25 documents. Thereafter, the accused were examined under Section 313 Cr.P.C. wherein they pleaded innocence. In defence, they examined two witnesses and produced certain documents. The trial court, on conclusion of the trial, vide judgment and order dated 29.03.2010 acquitted the co-accused namely Prabhu Dayal, Savitri and Laxmi, but convicted and sentenced the accused-appellant in the manner indicated above. 4. We have heard Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of the accused-appellant as well as Mr. R.S. Raghav, learned Public Prosecutor appearing on behalf of the State. 5. Mr. Biri Singh Sinsinwar, learned Senior Counsel submitted that marriage of the appellant was solemnized with the deceased on 09.05.2004 and thereafter, she came to the house of the appellant, but in the night intervening 11 and 12.05.2004, she went missing from the house in the night about 3.00 A.M. Information was given to father of the deceased immediately, who resides in Gram Dudia, Police Station Guda Gaudji. He came to the house of the appellant. Appellant's father, Prabhu Dayal Sharma and his father-in-law, Sita Ram Sharma (PW.2) jointly submitted a missing person report (Exhibit D-1) stating therein that the deceased was missing from the house of the appellant since 11.05.2004 from 3.00 A.M. along with her ornaments and certain cash amount. Thereafter, second report (Exhibit P-2) was submitted by Sita Ram Sharma (PW.2) at Police Station Khandela on 12.05.2004 stating therein that his daughter was married to the appellant on 09.05.2004 and came to there in-laws house on 10.05.2004. On 12.05.2004 at 9.00 A.M., in the morning, he receive information that she had gone missing from the appellant's house since 3.00 A.M. and he wants a thorough enquiry because he had doubts against in-laws of his daughter, who were misleading him and not telling the truth. It was thereafter that third typed report (Exhibit P-3) was submitted by Sitaram Sharma (P.W.2) to the police on 14.05.2004, on the basis of which FIR (Exhibit P-4) was registered and charge sheet was filed. 6. It is argued that three different versions were given by the complainant in three different FIRs. Even though, charge for offence punishable under Section 304-B IPC was quashed by learned single Judge of this Court, yet all the prosecution witnesses have alleged that deceased was murdered for the reason of not bringing sufficient dowry. This fact is borne out from the first information report itself wherein it is alleged that when the complainant enquired from the appellant and his fattier about his daughter, they told that had he (informant) given motor cycle and more dowry, he would have certainly found out his daughter. Referring to inquest report (Exhibit P-1), learned Senior Counsel submitted that the deceased committed suicide, which is evident from the fact that she left the bedroom of her husband on third day of marriage in petticoat and blouse and at that time, she was wearing all ornaments and fell into the well situated in front of the house of the appellant. If the site plan of the well (Exhibit D-4) is seen in the light of statement of Dr. Babu Lal Sharma (P.W. 10), who conducted post mortem of the deceased, it would clearly reveal that she had fallen into the well, which did not have much water. Dr. If the site plan of the well (Exhibit D-4) is seen in the light of statement of Dr. Babu Lal Sharma (P.W. 10), who conducted post mortem of the deceased, it would clearly reveal that she had fallen into the well, which did not have much water. Dr. Babu Lal Sharma (P.W. 10) has stated that dead body of the deceased was decomposed and there was one lacerated wound in the size of 5 x 2 cm towards back side of skull on left side, which was blunt in nature. There was no ligature mark on the neck, but eyes were oozing out. Or internal examination, her brain material was found decomposed. Her wine pipe and larynx were also healthy, but lungs had collapsed. Heart was empty but Large Vessels were healthy. Swelling in the Labia Majora and Labia Minora was claimed by Dr. Babu Lal Sharma (PW.10) by saying that if sexual intercourse takes place with the newly wedded girl, this was quite natural due to laceration. Nature of injuries, which the deceased receive, could be possible due to fall in reverse position of the body whereby the head would first hit on the surface. Asphyxia due to smothering was possible, which led to her death. It is argued that evidence proved that there was not much water in the well. Trilok (PW.6), who went inside the well to take the dead body out, has stated that the depth of the well was equal to the length of 50 hands (size of the full arm length) and that the dead body was lying upside down in the mud which had entered mouth and nose of the deceased. Well was situated ai small distance from the house of the complainant. This proves that there was not much water in the well and it was almost dry. 7. Mr. Biri Singh Sinsinwar, learned Senior Counsel has argued that there is no evidence as to how the deceased reached the well. Well was situated ai small distance from the house of the complainant. This proves that there was not much water in the well and it was almost dry. 7. Mr. Biri Singh Sinsinwar, learned Senior Counsel has argued that there is no evidence as to how the deceased reached the well. He has taken the Court through the statements of the prosecution witnesses and argued that entire thrust of the evidence adduced by the prosecution is on the allegation that the deceased was subjected to cruelty soon before her death and that owing to failure of the complainant to satisfy the greed and demand of dowry of the appellant and his family members, his daughter was put to death Sitaram Sharma (PW.2) in his statement alleged that immediately on reaching house of the appellant, he first met Prabhu Dayal Sharma and the appellant and enquired about the deceased They both taunted that had he (Sitaram) given motor cycle and Rs. 50,000/-, he would be aware where his daughter was and on returning back to his Village Dudia, he told this fact to his family members. Smt. Bhagauti Devi (PW.5), mother of the deceased and wife of Sitaram Sharma (P.W.2), have also corroborated this fact that after returning from the house of the appellant, Sitaram told the family members that the appellant and his father and other family members had taunted him for not satisfying the demand of dowry of Rs. 50,000/- and motor cycle. Pradeep Kumar Sharma (PW.7), son of her daughter, who accompanied Mamta to the house of appellant, told her 10-15 days after the incident that Mamta conveyed him about this that her in-laws were demanding a sum of Rs.50,000/- and motor cycle and also complaining that she had brought very cheap clothes in the dowry and they were also doubting her chastity. Pradeep Kumar Sharma (P.W.7), aforesaid grandson of Sitaram (PW.2), who had accompanied Mamta to her in-laws place has stated that in the evening of 11.05.2004, the appellant, his mother Savitri Devi, sister Laxmi Devi and other relatives were sitting on the roof. The appellant told him that Sitaram had spent very minimal amount on the marriage and had not given gold chain to him. This has lowered down their reputation in the society. Mother of the appellant, Savitri Devi told that the appellant was her only son and she had not been given good cloth. The appellant told him that Sitaram had spent very minimal amount on the marriage and had not given gold chain to him. This has lowered down their reputation in the society. Mother of the appellant, Savitri Devi told that the appellant was her only son and she had not been given good cloth. Appellant's sister Laxmi Devi also complained that the appellant was her only brother, but the parents of the deceased' neither gave motor cycle, nor Rs. 51,000/-, which was their bare minimum expectation. Pradeep Kumar Sharma (PW. 7) has stated that the information that the deceased has gone missing from the house was given to his grandfather (Nana), Sitaram (P.W.2) by Aunt, i.e. family member of the appellant. The police has taken three statements of this witnesses under Section 161 Cr.P.C. His first statement under Section 161 Cr.P.C. was recorded by Investigating Officer on 30.05.2004, which is Exhibit D-6. Second statement was recorded on 30.11.2004, which is Exhibit D-7 and third statement was recorded on 18.01.2005, which is Exhibit D-5. Latter two statements have been recorded by the prosecution with inordinate delay and therefore, they ought not to be relied. Even then, this witness, when he appeared in the court, has alleged about demand of dowry and that the deceased was subjected to cruelty and harassment by the appellant and his family members soon before death because motor cycle and enough dowry was not given to them. Suresh (PW.13), brother of the deceased has also stated that when the appellant and his family members were departing from their house along with the deceased, Ramesh Kumar, maternal cousin of the appellant had abused their family for not giving enough dowry and for letting them down. On 12.05.2004, Ramesh and one Gopal came to their house and informed that the deceased was missing since 3.00 A.M. 8. Mr. Biri Singh Sinsinwar, learned Senior Counsel referred to the findings recorded by the learned trial court in para 21 of the judgment wherein it has observed that since this Court has quashed framing of the charge against the appellant for commission of offence punishable under Section 304-B IPC and held only framing of charge under Section 302 IPC justified, therefore, it was not required to deal with the evidence on that charge in greater details. Even then, the trial court observed that despite quashing of charge under Section 304-B IPC, prosecution witnesses have adduced evidence that the accused-appellant and his family members used to harass and taunt the deceased for not bringing enough dowry. This appears to bean attempt on their part to again make it a case of dowry death whereas Pradeep Kumar Sharma (P.W.7) and Sitaram Sharma (PW.2) in their police statements given at the time of preparing of inquest report (Exhibit P-1) did not make any such allegation. At the same time, learned Senior Counsel referred to Site Plan (Exhibit P-5), which was prepared on 14.05.2004, wherein in Column No. 4(iii)(2) it is clearly alleged that it was a case of murder on demand of dowry and in point No. 5 of column 9, again it has been mentioned that it was a case of murdering the deceased and then throwing her dead body into the well. Even the informant, Sitaram (PW.2) in his statement recorded under Section 161 Cr.P.C. on 14.05.2004, has made the allegation of demand of dowry in the same way in which he made such allegation in FIR (Exhibit P-4). 9. Learned Senior Counsel referred to findings recorded by the learned trial court in para 31 of the judgment wherein it has disbelieved the statements of prosecution witnesses with regard to allegation of demand of dowry and observed that this matter now cannot be examined from the perspective of presumption of Section 113B of the Indian Evidence Act. The witnesses have tried to prove this to be a case of bride killing for the demand of dowry because the deceased died within seven years of the marriage so that presumption under Section 113(B) of the Indian Evidence Act can be drawn against the accused whereas this matter now no longer can be tried on the charge framed under Section 304-B IPC. This observation has been made by the learned trial court on the ground that since this Court has quashed framing of the charge under Section 304- B IPC against the accused-appellant, now it is no longer open for the court to convict the accused for that offence. This observation has been made by the learned trial court on the ground that since this Court has quashed framing of the charge under Section 304- B IPC against the accused-appellant, now it is no longer open for the court to convict the accused for that offence. Even though ingredients of offence under Section 304-B IPC would be satisfied and attracted, learned trial court still convicted the accused-appellant under Section 302 IPC by invoking Section 106 of the Indian Evidence Act and held that since the deceased was lastly with the appellant in the bedroom alone, he also owed an explanation as to what happened to the deceased while inside the bedroom and this fact was especially within his knowledge and the law will take a presumption against the accused-appellant, unless he gives satisfactory explanation. Learned Senior Counsel submitted that since the deceased did not die in the bedroom, but she went out of the room in petticoat and blouse and fell into the well, which was situated at some distance outside the house of the appellant, provisions of Section 106 of the Indian Evidence Act cannot be applied in such a situation. Therefore, the trial court was not wholly justified in convicting the accused-appellant. 10. Learned Senior Counsel further submitted that despite charge for the offence punishable under Section 304-B IPC having been quashed by this Court, there is no impediment in law for convicting the accused-appellant again for the offence punishable under Section 304-B IPC because at the time of framing of charge, the trial court based its order merely on the evidence collected by the prosecution, but at the time of recording conviction, it has to look into the testimony of the prosecution witnesses and other evidence. There being limited scope, there is no impediment in law to convict the accused-appellant for offence under Section 304-B IPC again. The view taken by the' learned trial court is against the basic provisions of Code of Criminal Procedure. Learned Senior Counsel, in support of his arguments, relied upon the judgment of Division Bench of Delhi High Court in the case of Prakash Chander v. The State, 1995 Cr.L.J. 368 where in a case of bride burning alternative charge framed under Section 304-B IPC against appellant Prakash Chander was cancelled by the trial court and accused was convicted for commission of offence punishable under Section 302 IPC. Delhi High Court in appeal relying on the Constitution Bench judgment of the Supreme Court in Smt. Kalawati & Another v. State of Himachal Pradesh, AIR 1953 SC 131 still convicted the accused Prakash Chander for offence punishable under Section 304-B IPC. Learned Senior Counsel also cited judgment of Division Bench of this Court in Shyam Lal v. State of Rajasthan, 2015 (2) RCC (Raj.) 672 and judgment of Single Bench of this Court in Kajju Lal v. State of Rajasthan, 2007 (1) WLC (Raj.) 717 . 11. Mr. R.S. Raghav, learned Public Prosecutor appearing on behalf of the State support the judgment of the learned trial court and argued that since the deceased was lastly seen with the appellant in his bedroom, the fact about what happened to her thereafter was especially within the knowledge of the accused-appellant and, therefore, by virtue of Section 106 of the Indian Evidence Act, he had to give an explanation thereabout. Learned Public Prosecutor, in support of his argument, relied upon the decision of the Supreme Court in Dharmendrasinh alias Mansing Ratansingh v. State of Gujarat, AIR 2002 SC 1937 and Nerendra v. State of Karnataka, 2009 (6) SCC 61 . Learned Public Prosecutor submitted that once this Court had quashed the charge under Section 304-B IPC framed against the accused-appellant, it was not open to the trial court to convict the accused-appellant for that offence, even if the prosecution witnesses have made allegations to the effect that the deceased was subjected to cruelty for demand of dowry soon before her death. Conviction of the accused-appellant for offence punishable under Section 302 IPC was perfect and just. Learned Public Prosecutor, in this connection, submitted that the very fact that the deceased had disappeared from the bedroom of the appellant allegedly at 3.00 A.M. on 12.05.2004 with ail the ornaments on her body and in the Site Plan (Exhibit P-5), stone containing blood stains was found near the well, clearly goes to show that she was first murdered and then thrown into the well. Learned Public Prosecutor submitted that all the circumstances were put to the accused-appellant on the basis of which evidence was given by the prosecution witnesses, but he, in his examination under Section 313 Cr.P.C., gave a false explanation that he did not demand any dowry and the deceased was not happy with the marriage and, therefore, she committed suicide and he is innocent. 12. Learned Public Prosecutor referred to statement of Dr. Babu Lal Sharma (PW.10) and submitted that nature of injuries, which were sustained by the deceased, clearly show that she was killed outside the well and thereafter, her dead body was thrown into the well. This is also evident-from the statement of Pradeep Kumar Sharma (P.W.7), who has stated that while he was sleeping in the house of the accused-appellant, he was waken up by Laxmi Devi, sister of the appellant at about 6.00 A.M., who told him that his aunt (Mausi) had fled from the house about 2.00-3.00 A.M. in the morning. He went outside home and found all family members sitting there and the brother-in-law (Jijaji) of appellant's father, Jairaj was saying that he heard hue and cry at about 2.30-3.00 A.M. in the morning, while he was sleeping on the roof, but when he came down, he could not find from where such hue and cry was coming. 13. Were have given our thoughtful and anxious consideration to the rival submissions, scanned the material on record and studied the cited decisions. 14. Even though, this appeal seeks to challenge the conviction of the accused-appellant for the offence punishable under Section 302 IPC, but we for the present do not propose to go into that aspect as what has been argued on behalf of the accused-appellant is that the conclusion arrived at by the learned trial court about its inability to examine the accused from the stand point that whether despite evidence by all the prosecution witnesses that the deceased was subjected to cruelty and harassment for demand of dowry soon before her death, it was not open to the trial court to examine the accused-appellant from that view point, in view of earlier decision of this Court, whereby learned Single Judge of this Court quashed the charge framed against the accused-appellant for the offence punishable under Section 304-B IPC and that only charge for which the accused-appellant could be tried was under Section 302 IPC. Indirectly, what is sought to be canvassed is that despite ingredients of Section 304-B having been satisfied, the accused-appellant has, by default, been convicted for the offence punishable under Section 302 IPC, that too by invoking Section 106 of the Indian Evidence Act and holding that since the deceased was lastly with the appellant in the bedroom, this fact was especially within his knowledge as to what happened to her thereafter, whereas the deceased had not died in the bedroom, but her dead body was found in the well situated at some distance from the appellant's house. 15. Reliance has been placed by learned Senior Counsel appearing on behalf of the accused-appellant on the judgment delivered by Delhi High Court In Prakash Chander (supra), which was a case of bride burning and who died in the house of husband at midnight. The accused-husband Prakash Chander, his parents, sister and brother were charged for the offence punishable under Section 302/34 IPC. While others were acquitted, the husband was convicted for offence under Section 302 IPC and sentenced to death. His mother Leela Wanti, who was charged for offence under Section 304-B IPC, was instead convicted under Section 498-A IPC Division Bench of Delhi High Court headed by Hon'ble Mr. Justice Y.K. Sabharwal, as His Lordship then was, in the aforesaid case relied upon the Constitution Bench judgment of the Supreme Court in Smt. Kalavati & Another (supra) and held that since the accused Prakash Chander was convicted under Section 302 IPC and charge framed against him for commission of offence punishable under Section 304-B IPC was cancelled, cancellation of charge does not amount to acquittal and High Court can examine whether the commission of offence under Section 304-B IPC was established or not. 16. Constitution Bench of the Supreme Court in Smt. Kalawati & Another (supra) was dealing with a case where one Ranjit Singh was charged for commission of offence punishable under Section 302 IPC for murder of one Bikram Singh and Smt. Kalawati was charged for commission of offence punishable under Section 114 and 302 IPC with abetment of murder. While Ranjit Singh was found guilty of the offence, however, the trial court acquitted Kalawati for offence of abetment under Section 302 read with Section 114 IPC, but found her guilty under Section 201 IPC. Both of them filed appeal before the Court of Judicial Commissioner, Himachal Pradesh. While Ranjit Singh was found guilty of the offence, however, the trial court acquitted Kalawati for offence of abetment under Section 302 read with Section 114 IPC, but found her guilty under Section 201 IPC. Both of them filed appeal before the Court of Judicial Commissioner, Himachal Pradesh. State also filed appeal against the order of acquittal of Smt. Kalawati. Appeal of Ranjit Singh was dismissed and appeal of Smt. Kalawati was allowed and her conviction under Section 201 IPC was set aside, but at the same time, appeal filed by the State was also allowed and Kalawati was convicted for offence under Section 302 read with Section 114 IPC. Both Ramit Singh and Smt. Kalawati approached the Supreme Court challenging the judgment of Judicial Commissioner, but State did not file any appeal to challenge the acquittal of Smt. Kalawati from offence punishable under Section 201 IPC. The Supreme Court set aside the conviction of Smt. Kalawati under Section 302 read with Section 114 IPC, but she was yet held guilty for offence punishable under Section 201 IPC. In those facts, argument was canvassed before the Supreme Court on behalf of Smt. Kalawati that since she was acquitted of offence under Section 201 IPC by Judicial Commissioner and no appeal was filed by the State against such acquittal, she cannot be convicted by the Supreme Court again for offence punishable under Section 201 IPC. Repelling such argument, the Supreme Court held as under:- "It was urged for her by Mr. Mathur that as she was acquitted of this offence by the Judicial Commissioner, and as there has been no appeal by the Government against the acquittal, she cannot now be convicted of the same by this Court. This argument proceeds on a fallacy. Section 201 is not restricted to the case of a person who screens the actual offender; it can be applied even to a person guilty of the main offence, though as a matter of practise Court will not convict a person both of the main offence and under Section 201. The Judicial Commissioner acquitted Kalawati of the offence under section 201 for which she was convicted by the Sessions Judge, only because he thought that the main offence itself, namely, murder, was brought home to her. The Judicial Commissioner acquitted Kalawati of the offence under section 201 for which she was convicted by the Sessions Judge, only because he thought that the main offence itself, namely, murder, was brought home to her. But if we think for the reasons given above that it would not be safe to convict her of the main offence, the acquittal is no legal impediment to her conviction under Section 201. It was held by the Privy Council in Begu v. King-Emperor, 1925 (26) Cri LJ 1059 , that in a charge of murder under section 302 a conviction under Section 201 without a further charge being made was warranted by the provisions of section 237, Criminal Procedure Code, if Kalawati had been acquitted of an offence under section 201 independently of the charge of murder against her, it would have been a different matter. But as her acquittal is so intimately related to the charge of the main offence, and as it took place only for the reason that she was held guilty of murder, there is no bar to the restoration of the conviction under Section 201." 17. Delhi High Court in Prakash Chander (supra), commenting on the order of the Additional Sessions Judge, who cancelled the alternative charge of Section 304-B IPC framed against the appellant therein observed that cancellation of the charge after the evidence has been led is unknown to criminal jurisprudence. Before a charge is framed an accused may be discharged if the facts and circumstances so justify, but after the charge is framed, the accused has either to be found guilty or not guilty of the charge. It was, therefore, held that learned trial court committed manifest error by holding that alternate charge does not survive and on the question whether cancellation of charge amounts to acquittal, Delhi High Court held that cancellation of charge under Section 304-B IPC does not amount to an order of acquittal. Delhi High Court also relied upon the judgment of the Andhra Pradesh High Court in Vemuri Venkateswara Rao v. State of Andhra Pradesh, 1992 Cri.L.J. 563 , in which case, accused-husband and another were convicted for commission of offences punishable under Sections 302, 201 and 498-A IPC. Delhi High Court also relied upon the judgment of the Andhra Pradesh High Court in Vemuri Venkateswara Rao v. State of Andhra Pradesh, 1992 Cri.L.J. 563 , in which case, accused-husband and another were convicted for commission of offences punishable under Sections 302, 201 and 498-A IPC. Andhra Pradesh High Court, on appreciation of evidence, came to the conclusion that it was a case of harassment and demand of dowry and unnatural death within a period of seven years of marriage and, therefore, presumption under Section 113-B of the Indian Evidence Act should be drawn for offence punishable under Section 304-B IPC. It was held that even if there was no separate charge under Section 304-B IPC, it cannot be said that any prejudice is caused to the accused since the facts noticed in the charges, if put together satisfy the ingredients of Section 304-B IPC as well. Delhi High Court on that basis held that cancellation of charge framed under Section 304- IPC does not amount to an order of acquittal, but at the same time setting aside of order of conviction for the offence under Section 302 IPC is not an impediment for the High Court to examine whether commission of offence under Section 304-B IPC stands established or not. It was held that State having not filed any appeal against order of cancellation of charge is of no effect. Delhi High Court finally altered the conviction of the accused from Section 302 IPC to that of 304-B IPC. 18. While we, in view of the provisions of Code of Criminal Procedure, are inclined to agree with the Delhi High Court to the extent it held that mere cancellation of charge for commission of offence under Section 304-B IPC does not amount to an order of acquittal and that State having not filed appeal there against, order of cancellation of charge is of no effect, but we are afraid we cannot agree with the latter part of the ratio of the aforesaid judgment where Delhi High Court has altered the conviction under Section 302 IPC to one under Section 304-B IPC for the mere reason that the charges framed against the accused-appellant therein satisfied the ingredients of latter offence. This is because in the scheme of Code of Criminal Procedure, the discretion vests with the trial court under Section 228 Cr.PC. to frame the charge. This is because in the scheme of Code of Criminal Procedure, the discretion vests with the trial court under Section 228 Cr.PC. to frame the charge. While Section 227 Cr.PC. provides that if, upon consideration of the record of the case and the documents submitted therewith and after hearing submissions of the accused and prosecution in this behalf, the trial court considers that there is not sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for doing so. Section 228 Cr.P.C. provides that if, after such consideration and hearing as aforesaid, the trial court is of the opinion that there is ground for presuming that accused has committed an offence which- (a) xxxxxx (b) is exclusively triable by the Court, it shall frame in writing a charge against the accused. 19. Sub-Section (2) of Section 228 Cr.P.C. further provides that where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 20. In the present case, the accused had the right to question the correctness of the order framing charges for commission of offences punishable under Sections 304-B and 302 IPC. Learned single Judge of this Court on the basis of evidence collected by the Investigating Officer till then and on analysis of aforesaid provisions, while quashing and setting aside the charge framed under Section 304-B IPC, sustained the charge framed under Section 302 IPC. Thus, order of framing charge dated 06.06.2005 was modified accordingly. Notwithstanding the fact that this order was passed by this Court in revision petition filed by the accused-appellant, this order, on conjoint reading of provisions of Sections 227 and 228 Cr.PC., can not be termed as an order of discharge under Section 227 Cr.P.C. so far as charge under Section 304-B IPC is concerned And this does not preclude the court, if the evidence led before it so justify to again revert back and convict the accused-appellant for that offence. In other words, by mere order of discharge under Section 227 Cr.P.C. from one of the two offences, the trial court is not denuded of its power to revert back to convict the accused for such offence for which the accused stood discharged, if the evidence so justifies. In other words, by mere order of discharge under Section 227 Cr.P.C. from one of the two offences, the trial court is not denuded of its power to revert back to convict the accused for such offence for which the accused stood discharged, if the evidence so justifies. This is, in our opinion, a manifest error in the judgment of the learned trial court. The interest of the accused is, of course, paramount but at the same time the court has also to keep in view the compelling public interest to see that because of a manifest error, the administration of criminal jurisprudence is not reduced to total ineffectiveness, which will breed dissatisfaction amongst the public. Like all procedural laws, Code of Criminal Procedure is also designed to subserve the ends of justice and not to frustrate them by mere technicalities. It would be duty of every court to find out whether on discharge of the accused from one offence, if he goes to trial for another offence, whereas the evidence which has been adduced justify his conviction for the former and not the latter. 21. Having held so, let us now come to the reason why we cannot agree with the view taken by Delhi High Court in Prakash Chander (supra), which in taking that view had concurred with the view taken by the Andhra Pradesh High Court in Vemuri Venkateswara Rao (supra). We, in taking that view, are fortified by three Judges Bench judgment of the Supreme Court in Shamnsaheb M. Multtani v. State of Karnataka, 2001 (2) SCC 577 , which; still holds the field and otherwise is a case where accused was charged for offence punishable under Sections 302 and 498-A IPC on the allegation that he caused death of the bride after subjecting her to harassment with demand of dowry within a period of seven years of marriage. The Supreme Court observed that when a person is tried with offence under Section 302 and 498-A IPC on the allegation that he caused death of a bride after subjecting her to harassment with demand of dowry within a period of seven years of marriage, situation may arise that the offence of murder is not established against the accused but, nonetheless, all other ingredients necessary for commission of offence punishable under Section 304-B IPC would stand established, can the accused be convicted for offence under Section 304-B IPC whereas the said offence was not part of the charges framed in the case. In other words, whether in a case where prosecution] failed to prove the charge under Section 302 IPC but on the facts, the ingredients of Section 304-B IPC have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge ? 22. Faced with this scenario, the Supreme Court taking note of Sections 221 and 222 of the Code of Criminal Procedure observed that the two provisions deal with the power of a criminal court to convict the accused of an offence, which is not included in the charge. The primary condition for application of Section 221 of the Code is that the court should have felt doubt at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of Acts alleged against the accused. In such a case, this section permits to convict the accused of the offence which tie is shown to have committed though he was not charged with it. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars." This Section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-Section (2) of Section 222 Cr.P.C. deals with a similar, but slightly different situation, in which it is provided that when a person is charged with an offence and facts are proved which reduce it to minor offence, he may be convicted of the minor offence, although he is not charged with it. Sub-Section (2) of Section 222 Cr.P.C. deals with a similar, but slightly different situation, in which it is provided that when a person is charged with an offence and facts are proved which reduce it to minor offence, he may be convicted of the minor offence, although he is not charged with it. In that context, the Supreme Court examined and observed that only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. Dealing with the argument whether offence of Section 304-B IPC can be considered as minor offence in the context of Section 302 IPC, it was held by their Lordships that composition of offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC. So, when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he cause the death of a bride after subjecting her to harassment with a demand for dowry within a period of seven years of marriage, a situation may arise, as in that case offence of murder was not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304 B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge ? The Supreme Court while examining that question considered the effect of Section 464 of the Code of Criminal Procedure, according to which a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice. Then arose the related question whether in a situation when the charge is framed under Section 302 IPC only, conviction under Section 304-B IPC would occasion failure of justice ? While considering this question, their Lordships in para 31 to 35 of the judgment (supra) observed thus : "31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. While considering this question, their Lordships in para 31 to 35 of the judgment (supra) observed thus : "31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory' presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accuse has no notice of the offence under Section 304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304-B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years. 32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration : If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B, IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. 33. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. 33. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law. 34. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304-B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption. 35. As the appellant was convicted by the High Court under Section 304-B IPC, without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under section 304-B IPC." 23. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under section 304-B IPC." 23. The Supreme Court in the aforesaid case, while setting aside the conviction of the appellant therein under Section 304-B awarded by the High Court, remanded the matter to the trial court from the stage of defence evidence requiring that he is put to notice that unless he disproves the presumption under Section 113B of the Indian Evidence Act, he is liable to be convicted under Section 304-B IPC 24. In the aforesaid case (supra), three accused, i.e. husband of the deceased, his brother and father were put to trial. While the trial court acquitted all three of them, on appeal filed by the State of Karnataka, Division Bench of Karnataka High Court confirmed the acquittal of other two accused by the trial court, i.e. brother and father of the accused-husband, but convicted the accused-husband for offence punishable under Section 304-B IPC. The matter was, therefore, remanded to the trial court by the Supreme Court to the extent of accused-husband only We, in the present case, have noticed from the record that circumstances as to the fact that the deceased was subjected to cruelty for demand of dowry soon before her death were put to the accused-appellant as question No. 2 with reference to testimony of various prosecution witnesses namely Sitaram Sharma (P.W.2), Smt. Bhagauti Devi (PW.5) and Pradeep Kumar Sharma (PW.7), but since the charge framed against him under Section 304-B IPC was quashed by this Court, he had no opportunity to produce his defence in respect of the rebuttal of the presumption under Section 113B of the Indian Evidence Act for the said offence. 25. 25. We, therefore, while setting aside conviction of the accused-appellant under Section 302 IPC, remand the matter to the trial court to proceed against the appellant (not against the other three accused whose acquittal remains unchallenged now) from the stage of defence evidence by requiring the trial court to put the accused-appellant to notice that unless he disproves the presumption under Section 113B of the Evidence Act, he is liable to be convicted under Section 304-B IPC.The appeal is disposed of with the aforesaid observation and direction. *******