JUDGMENT : Shree Chandrashekhar, J. The sole appellant has questioned the judgment of his conviction under section 302 of the Indian Penal Code. 2. In Sessions Case No. 45 of 2009, the appellant was charged under section 304-B of the Indian Penal Code for committing dowry death of his wife namely, Hena Bibi on 06.10.2008 at village-Lagwa. After both parties have led evidence and the case was posted for judgment on 25.11.2009, in the light of the direction issued by the Supreme Court in “Rajbir Alias Raju and Another Vs. Sate of Haryana” reported in (2010) 15 SCC 116 ”, additional charge under section 302 of the Indian Penal Code was framed against the appellant, however, as provided under section 217 of the Code of Criminal Procedure the prosecution witnesses were not recalled and thus the appellant was not afforded an opportunity to cross-examine the prosecution's witnesses on the amended charge. 3. The appellant has been convicted under section 302 of the Indian Penal Code. 4. Referring to the judgment in “R. Rachaiah Vs. Home Secretary, Bangalore reported in (2016) 12 SCC 172 , Mr. Anil Kumar, the learned Senior counsel for the appellant submits that the trial in Sessions Case No. 45 of 2009 was vitiated on account of failure of the learned Additional Sessions Judge to follow the mandatory provision under sections 216 and 217 of the Code of Criminal Procedure. The learned Senior counsel for the appellant has raised an alternative argument that the offence under section 304-B of the Indian Penal Code has otherwise not been proved by the prosecution. 5. On the basis of the written report dated 06.10.2008 of Rustam Sheikh, Jarmundi P.S Case No. 238 of 2008 was registered against the appellant under section 304-B of the Indian Penal Code. In his written report, the informant has stated that after marriage whenever his daughter came home she informed him about demand of dowry of Rs.10,000/-by her husband and whenever he had gone to the matrimonial home of his daughter he has found the appellant quarreling with her. His daughter, namely, Hena Bibi was married about three years before she was done to death by her husband. In the morning of 05.10.2008 the informant's wife stayed in the house of her daughter. His daughter, namely, Hena Bibi was married about three years before she was done to death by her husband. In the morning of 05.10.2008 the informant's wife stayed in the house of her daughter. On that day also his daughter was assaulted by her husband and she was thrown out of the house due to non-fulfillment of dowry demand. His wife started for home for bringing Rs. 10,000/-and his daughter also came outside the village to see off her. Next day noon, his son-in-law informed him that Hena Bibi is serious and after sometime he called again and said that your daughter has died. On getting such information when he came to Lagwa he found the dead body of his daughter on a cot and the villagers informed him that she has died of diarrhoea. They also told him that her husband had taken her to Nonihat where she was treated by Dr. Sahdeo Bhandari who, however, referred to take her outside for better treatment, but on the way she has died. 6. During the trial, the prosecution has examined ten witnesses; the informant is P.W.6. 7. Dr. Ashok Kumar Gupta who has conducted the post-mortem examination at 3:45 p.m on 07.10.2008 has observed blood mixed froth coming from mouth and nose of Hena Bibi. He has found cyanosis present on all the nails and finger, but rigour-mortis was not present in her limbs. There was no injury on head, mouth, shoulder, chest and abdomen or hip of the deceased and in the opinion of the doctor death was caused due to poisoning. 8. On a glance at the evidences led by the prosecution during the trial it is revealed that the prosecution has led evidence against the appellant on the charge under section 304-B of the Indian Penal Code. Father of the deceased, namely, Rustam Sheikh-P.W.6, uncle of mother of the deceased, namely, Md. Jabbarudin-P.W.1, maternal uncle of the deceased, namely, Md. Abbas-P.W.3, maternal grandfather of the deceased, namely, Md. Humayu-P.W.4 and mother of the deceased, namely, Julekha Bibi-P.W.5 have spoken about demand of dowry and harassment of Hena Bibi. P.W.3 and P.W.6 have seen dead body of Hena Bibi on a cot in her matrimonial home. The informant has stated in the written report that marriage of his daughter was solemnized with the appellant about three years prior to the incident. 9. P.W.3 and P.W.6 have seen dead body of Hena Bibi on a cot in her matrimonial home. The informant has stated in the written report that marriage of his daughter was solemnized with the appellant about three years prior to the incident. 9. Prima-facie, we find that death of Hena Bibi has occurred otherwise than under normal circumstances within seven years of her marriage and from the evidence of P.W.5 and P.W.6 it appears that soon before her death Hena Bibi was subjected to cruelty by her husband in connection with demand of Rs.10,000/-. 10. From the evidences led by the prosecution during the trial, it is thus apparent that all the prosecution witnesses have led evidence in connection to dowry death of Hena Bibi. 11. The powers of the court to alter and add any charge are unfettered. It can be exercised at any stage of the trial. In “Jasvinder Saini and Others Vs. State (Government of NCT of Delhi)” reported in (2013) 7 SCC 256 , the Supreme Court has observed thus; “11. .................Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.” 12. However, in the judgments of Supreme Court we find a word of caution that alteration or addition of charge must be for the offence made out by the defence recorded during the course of the trial. By an order dated 02.12.2009, an additional charge under section 302 of the Indian Penal Code was framed against the appellant. Against this order the appellant came before this Court in Cr.M.P No. 1645 of 2009 which was dismissed by an order dated 25.03.2010. By an order dated 02.12.2009, an additional charge under section 302 of the Indian Penal Code was framed against the appellant. Against this order the appellant came before this Court in Cr.M.P No. 1645 of 2009 which was dismissed by an order dated 25.03.2010. That being the factual scenario, we are not inclined to examine whether sufficient evidence was led in course of the trial before the court framed additional charge under section 302 of the Indian Penal Code. Another reason why we are not inclined to go into the merits of the evidences laid by the prosecution against the appellant is that on a pure question of law, that on account of prejudice caused to him as the appellant was not afforded an opportunity to cross-examine the witnesses as provided under section 217 of the Code of Criminal Procedure, the appellant succeeds. 13. Section 216 and Section 217 of the Code of Criminal Procedure are extracted below: “216. Court may alter charge : (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 217. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.” 217. Recall of witnesses when charge altered.-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- (a) 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; (b) also to call any further witness whom the Court may think to be material. ” 14. Sub-section 4 of Section 216 of the Code of Criminal Procedure provides that in the opinion of the court if the alteration or addition of a charge is likely to cause prejudice to the accused or the prosecutor, the court may either direct a new trial or adjourn the trial for such period as may be necessary. The Hon'ble Supreme Court in “R. Rachaiah” case has held as under: “10. The bare reading of Section 216 reveals that though it is permissible for any court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and (4) of Section 216 of the Code. Sub-section (3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section (4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.” 11. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or resummon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the court is to even allow any further witness which the court thinks to be material in regard to the altered or additional charge.” 15. The records of Sessions Case No. 45 of 2009 would reveal that after framing of the additional charge under section 302 of the Indian Penal Code on 02.12.2009, the trial was not adjourned, the witnesses were not recalled and the appellant was convicted vide judgment dated 20.04.2010. 16. The above being the factual scenario, we are of the opinion that serious prejudice has been caused to the appellant during the trial of Sessions Case No. 45 of 2009. He was not afforded an opportunity to defend himself against the charge under section 302 of the Indian Penal Code and the judgment of conviction under section 302 of the Indian Penal Code in Sessions Case No. 45 of 2009 has been passed in gross violation of the principles of natural justice. 17. Having found so, conviction and sentence of the appellant under section 302 of the Indian Penal Code are set-aside. 18. Mrs. Priya Shrestha, the learned A.P.P states that the appellant has remained in custody for more than 11 years. 19. Mr. 17. Having found so, conviction and sentence of the appellant under section 302 of the Indian Penal Code are set-aside. 18. Mrs. Priya Shrestha, the learned A.P.P states that the appellant has remained in custody for more than 11 years. 19. Mr. Anil Kumar, the learned Senior counsel for the appellant submits that in view of the mitigating circumstances leaning towards the appellant even if it is found that the appellant has committed the offence under section 304-B of the Indian Penal Code the maximum sentence that can be inflicted upon him be ten years. 20. In “Hem Chand Vs. State of Haryana” reported in (1994) 6 SCC 727 , the Supreme Court has observed thus: “7. Now coming to the question of sentence, it can be seen that Section 304-B IPC lays down that: “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.” The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B IPC also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 IPC. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr. Usha Rani PW-6 and Dr. Indu Lalit PW-7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decomposed. On the other hand, Dr. Dalbir Singh PW-13 who also examined the dead body and gave his opinion, deposed that he noticed some injuries at the time of re-post-mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B IPC would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable under Sections 304-B and 201 IPC have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B IPC was made out. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B IPC was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.” 21. In “State of Punjab Vs. Manjit Singh and others” reported in AIR 2009 SC 2888 , the Supreme Court has observed thus: “12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regarding to the aggravating and mitigating circumstances vis-a-vis an accused in each case.” 22. In the above state of affairs, we are not inclined to examine whether the offence under section 304-B of the Indian Penal Code is proved against the appellant and, accordingly, on setting-aside of his conviction under section 302 of the Indian Penal Code, the appellant stands acquitted. 23. Accordingly, the judgment of conviction under section 302 of the Indian Penal Code and the sentence of R.I for life and fine of Rs.5000/-inflicted upon him under section 302 of the Indian Penal Code by the learned 5th Additional Sessions Judge, (F.T.C), Dumka in Sessions Case No. 45 of 2009 are set-aside. 24. The appellant, namely, Md. Azad @ Md. Azad Sk. 24. The appellant, namely, Md. Azad @ Md. Azad Sk. shall be released forthwith, if not wanted in connection with any other case. 25. In the result, Criminal Appeal (DB) No. 438 of 2010 is allowed. 26. Let a copy of the Judgment be transmitted to the court concerned through FAX. 27. Let the lower-court records be sent to the court concerned forthwith.