ORDER : 1. The learned High Court Government Pleader takes notice for the respondent State. 2. I have heard the learned counsel appearing for the petitioners and learned High Court Government Pleader appearing for the respondent State. 3. This petition is filed to set aside the order dated 31.10.2019 passed by III Additional Sessions Judge, Vijayapur, in S.C.No.130/2015. 4. The petitioners are arraigned as accused Nos.1 to 3 respectively. Charge sheet was filed against them for the offences punishable under Sections 498A, 304B r/w Section 34 of Indian Penal Code and under Section 4 of the Dowry Prohibition Act, 1961. The learned Sessions Judge framed charges for the aforesaid offences by an order dated 04.07.2016. When the trial was pending, learned Public Prosecutor filed an application under Section 216 of Criminal Procedure Code to amend the charge by including the charge for murder punishable under Section 302 of Indian Penal Code. To the said application, the defence filed statement of objection. 5. The learned Sessions Judge by an order dated 31.10.2019 allowed the application filed under Section 216 of Criminal Procedure Code for framing additional charge under Section 302 of Indian Penal Code. Aggrieved by the said order, accused Nos.1 to 3 have preferred the present petition. 6. Learned counsel appearing for the petitioners has contended that the trial court has mechanically proceeded to allow the application to frame additional charge under Section 302 of Indian Penal Code without there being any sufficient material. He submits that the trial court has relied upon the decision of the Hon'ble Apex Court in case of Rajbir alias Raju and another vs. State of Haryana reported in AIR 2011 SC 568 . However, the Hon'ble Apex Court in the subsequent judgment in case of Jasvinder Saini and others vs. State (Government of NCT of Delhi) reported in (2013) 7 SCC 256 has clarified the position of law. He contends that the case of prosecution itself is that the deceased committed suicide by hanging and even the postmortem report also discloses that the cause of death was due to asphyxia as a result of hanging. He submits that there is no allegation whatsoever either in the first information report or in the statements of witnesses recorded during the course of investigation to frame charge under Section 302 of Indian Penal Code. Accordingly, he seeks to allow the petition. 7. He submits that there is no allegation whatsoever either in the first information report or in the statements of witnesses recorded during the course of investigation to frame charge under Section 302 of Indian Penal Code. Accordingly, he seeks to allow the petition. 7. Per contra, the learned High Court Government Pleader has contended that in view of the directions issued by the Hon'ble Apex Court in Rajbir’s case (supra) the trial Court has proceeded to frame additional charge under Section 302 of Indian Penal Code. He submits that the charges can be altered at any time before judgment and there is no prejudice caused to the accused since they will be given ample opportunity to defend themselves. Hence, he seeks to dismiss the petition 8. I have perused the impugned order passed by the Court below. The learned Sessions Judge has proceeded to allow the application filed by the prosecution under Section 216 of Criminal Procedure Code to frame additional charge under Section 302 of Indian Penal Code relying on the decision of Hon'ble Apex Court in Rajbir’s case (supra). In the said decision, the Hon'ble Apex Court at paragraph11 has directed all the trial Courts to ordinarily add Section 302 of Indian Penal Code to the charge of Section 304B of IPC, observing that, death sentence can be imposed in heinous and barbaric offences against a woman. 9. The Hon'ble Apex Court in the case of Jasvinder Saini’s case (supra) at paragraph14 has held as under: “14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.” 10. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.” 10. In Rajbir’s case (supra) the Hon'ble Apex Court has observed that it was a case of barbaric and brutal murder as borne out by the injuries. According to the evidence of doctor, there were several injuries suffered by the deceased. Hence, it was opined that cause of death was due to smothering and throttling which was antemortem in nature which were sufficient to cause death in ordinary course of nature. It was further observed that the above injuries, prima facie, indicate that the deceased was repeatedly struck and she was also throttled. 11. In the instant case, it is not the case of prosecution that the deceased was done to death. According to the prosecution, on account of physical and mental torture meted to the deceased, relating to dowry demand, she committed suicide by hanging. Perusal of the statements of prosecution witnesses go to show that door of the bed room in the first floor of the house of accused was locked from inside and when the door was broke open, deceased was found hanging. According to the postmortem examination report, except ligature mark there are no other injuries seen over the dead body. 12. The Hon'ble Apex Court in Jasvinder Saini’s case (supra) has held that the question whether it is murder punishable under Sections 302 of Indian Penal Code or dowry death punishable under Section 304B of Indian Penal Code depends on the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 of Indian Penal Code the trial Court can and indeed ought to frame a charge of murder under Section 302 of Indian Penal Code, which would then be the main charge and not an alternative charge. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Sections 304B of Indian Penal Code is established. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Sections 304B of Indian Penal Code is established. The ingredients constituting two offences are different, thereby demanding appreciation of evidence from the perspective relevant to the ingredients. 13. In the light of decision of Hon'ble Apex Court in Jasvinder Saini’s case (supra), the trial Court was not proper in mechanically allowing the application filed by the prosecution under Section 216 of Criminal Procedure Code. The trial court has acted mechanically without adverting to the evidence adduced in the case. Hence, the impugned order is not sustainable in law. 14. However, it is open for the prosecution at any stage before judgment to seek for alteration of charge upon a prima facie appraisal of the evidence adduced before it by reexamining the question. While doing so, the trial Court shall be appraised by the decision of Hon'ble Apex Court in Jasvinder Saini’s case (supra) and directions issued in the said decision. With the aforesaid observations, the petition is allowed. The impugned order dated 31.10.2019 passed by III Additional Sessions Judge, Vijayapura, in S.C.No.130/2015 is set aside. Pending I.A.No.1/2019 shall stand disposed of.