JUDGMENT Sandeep Mehta, J. - Heard learned counsel for the accused-appellant as well as learned Public Prosecutor and perused the record including the impugned judgment. 2. This judgment will decide the Application for Suspension of Sentences (Bail) No.1295/2019 filed by the applicant-Jasraj under Section 389 Cr.P.C. as well as the appeal preferred by him under Section 374 (2) Cr.P.C. against the judgment dated 11.11.2019 passed by Additional Sessions Judge, Women Atrocities Cases, Metropolitan Jodhpur in Sessions Case No.63/2017 whereby, he was convicted and sentenced as below:- Conviction for offence under Sections Sentence Default Sentences 498-A IPC 3 Years S.I. with fine of Rs.10,000/- 3 Months' S.I. 304-B IPC Life Imprisonment - 201 IPC 3 Years' S.I. with fine of Rs.10,000/- 3 Months' S.I. 3. All the sentences were ordered to run concurrently. Succinctly stated, facts relevant and essential for disposal of the appeal are narrated hereinbelow. 4. Smt. Chhotu Devi (the deceased) was married to the appellant about three years prior to her homicidal death. Smt. Chhoti and the appellant had gone to the house of her brother-inlaw Shyam Lal and sister Smt. Chaina situated at Mogda Kallan on 08.09.2017. They stayed overnight with them. On 09.09.2017, information was received that dead body of Smt. Chhotu was lying in the water tank constructed in the house of Shyam Lal. Her uncle Narpat Ram PW-2 lodged a written report (Ex.P/5) at the Police Station Kudi Bhagtasani, Jodhpur alleging inter alia that his niece Smt. Chhotu had been married to Jasraj (the appellant herein) about three years ago. She was often harassed, humiliated and assaulted by Jasraj on account of bringing insufficient dowry. He further alleged that Jasraj had killed Smt. Chhotu by drowning her in the water tank because his greed for dowry was not satisfied. On the basis of the report afore-stated, FIR No.261/2017 (Ex.P/11) came to be registered at the Police Station Kudi Bhagtasni, Jodhpur for the offences under Sections 498-A and 304-B of the IPC. The dead body of Smt. Chhotu was subjected to postmortem at the All India Institute of Medical Sciences, Jodhpur from where, a postmortem report (Ex.P/12) was issued as per which, 22 minor injuries were noticed and the following finding was recorded regarding cause of death of the lady. "Based on autopsy findings, we are of the opinion that the deceased died due to smothering. "Based on autopsy findings, we are of the opinion that the deceased died due to smothering. However blood and viscera are preserved to rule out any associated poisoning or intoxication." 5. The Viscera reports tested negative for presence of alcohol and poison etc. During investigation, it came to light that Smt. Chhotu's parents had passed away some time back and her uncle used to look after her. After investigation, a charge sheet came to be filed by the Police concluding that the offences under Sections 498-A, 304-B and 201 IPC were made out against the accusedappellant. The case was committed to the Court of Additional Sessions Judge, Women Atrocities Cases, Jodhpur for trial, where question of charge was considered by a detailed order dated 09.02.2018 which is reproduced hereinbelow for the sake of ready reference. "IMAG 1" 6. Thus, on a perusal of the quoted parts of the trial court's order, it is manifest that though the trial court formed a definite opinion that the accused had murdered the deceased, but despite that while, framing the formal charge, only the accusations under Sections 498-A, 304-B and 201 IPC were read out to the accused in the following manner:- "IMAG 2" 7. The trial was commenced. The prosecution examined as many as 15 witnesses and exhibited 22 documents to prove its case. It may be stated here that Shyam Lal, the brother-in-law (PW-3) (Behnoi) and Chaina (PW-4) the sister of Smt. Chhotu did not utter a word in their evidence that Smt. Chhotu had ever been harassed or humiliated by the accused-appellant soon before her death on account of demand of dowry. The Medical Jurist (PW-14) Dr. Tanuj Kanchan gave a pertinent opinion that as per the findings in the postmortem report (Ex.P/12) and the marks of violence noticed on the body of the deceased, she had been murdered by smothering her air passage. The trial court concluded at Para No.82 of the impugned judgment that Smt. Chhotu Devi was first brutally beaten by the accused Jasraj and thereafter her nose and mouth were smothered/compressed leading to her asphyxial death. Her dead body was then thrown into the water tank so as to give the incident an appearance of suicide. The trial court drew much water from the presumptions under Sections 113B and 106 of the Evidence Act and thereafter, proceeded to convict the appellant as above. Her dead body was then thrown into the water tank so as to give the incident an appearance of suicide. The trial court drew much water from the presumptions under Sections 113B and 106 of the Evidence Act and thereafter, proceeded to convict the appellant as above. The relevant conclusions recorded by the trial court in the impugned judgment are extracted hereinbelow for ready reference. "IMAG 3" 8. The matter came up before this Court on 10.08.2020 for consideration of the Application No.1295/2019 seeking suspension of sentences awarded to the appellant. While hearing the arguments of learned counsel for the parties, this Court carefully perused the impugned judgment, the original record, the postmortem report of the deceased (Ex.P/12), the evidence of the Medical Jurist Dr. Tanuj Kanchan (PW-14), the evidence of material prosecution witnesses as well as the evidence of the Investigating Officer Shri Simratharam (PW-15). 9. It is an admitted position as emanating from the record that on the fateful night, the appellant and the deceased Smt. Chhotu had gone to the house of Shyam Lal (brother-in-law of Smt. Chhotu) and Chaina (Sister of Smt. Chhotu) and stayed there. The appellant and Smt. Chhotu went to the terrace for sleeping. Shyam Lal (PW-3), Chaina (PW-4) and Bhera Ram (brother of Shyam Lal) were sleeping on the ground floor. Neither Shyam Lal nor Chaina stated in their evidence that they heard any commotion which presumably, must have taken place under normal circumstances, when Smt. Chhotu was assaulted because it is impossible to believe that as many as 22 ante-mortem injuries could have been inflicted to the lady without her putting up resistance or without making any degree of noise. The defence took a pertinent plea that Bhera Ram, brother of Shyam Lal tried to outrage the modesty of the victim and in this process, he killed Smt. Chhotu because she resisted his lecherous advances. It was further claimed that the appellant was framed for the murder in order to save Bhera Ram who surprisingly was not examined by the prosecution. 10. The fervent contention of Shri Sunil Mehta, learned counsel representing the accused-appellant was that no charge of murder was framed against the appellant. The prosecution, failed to lead convincing evidence to establish that the accused ever harassed or humiliated Smt. Chhotu on account of demand of dowry, what to talk of such conduct soon before her death. 10. The fervent contention of Shri Sunil Mehta, learned counsel representing the accused-appellant was that no charge of murder was framed against the appellant. The prosecution, failed to lead convincing evidence to establish that the accused ever harassed or humiliated Smt. Chhotu on account of demand of dowry, what to talk of such conduct soon before her death. He thus urged that the impugned judgment, whereby the appellant was convicted by the trial court, for the offences under Sections 304-B, 498A and 201 IPC is perverse and the findings recorded therein are without any foundation. Thus the accused is entitled to be released on bail during pendency of the appeal by suspending the sentences awarded to him by the trial court. 11. Shri Anil Joshi, learned Public Prosecutor candidly conceded that the medical evidence and the attending circumstances as available on record, clearly establishes that the case was one of murder but the Investigating Officer, for reasons best known to him did not file a charge sheet against the accused for the offence under Section 302 IPC. Even in the detailed charge order dated 09.02.2018, there was a clear reference to the fact that Smt. Chhotu had been murdered, but despite that, the Presiding Officer failed to frame a specific charge for offence under Section 302 IPC against the accused. The learned Public Prosecutor also did not make any such request to the trial court. Not only this, even after the Medical Officer had testified before the trial court, with a pertinent opinion that the death of Smt. Chhotu was homicidal in nature, the Presiding Officer failed to exercise powers under Section 216 Cr.P.C. for altering and framing the appropriate charge against the accused-appellant i.e. one under Section 302 IPC as was essential in view of the evidence available on record. This in our opinion has resulted into a gross miscarriage of justice. Hon'ble the Supreme Court had the occasion to examine this important legal aspect in the case of Rajbir & Ors. Vs. State of Haryana, (2011) AIR SC 568 , wherein it was observed as below:- 3. We fail to see why the High Court has reduced the sentence of petitioner No. 1 Rajbir. It appears to be a case of barbaric and brutal murder. This is borne out by the injuries which are in the evidence of Doctor, PW 2, which are as follows: 1. We fail to see why the High Court has reduced the sentence of petitioner No. 1 Rajbir. It appears to be a case of barbaric and brutal murder. This is borne out by the injuries which are in the evidence of Doctor, PW 2, which are as follows: 1. A diffused contusion radish in colour on right side of face extending between left half of both lips and upto right pinna. And from the zygomatic area to right angle mandible. On dis-section underline tissue was found Ecchymosed. 2. On right side of neck, a diffused contusion 3.5 cm x 2.5 cm situated 2.5 cm -2- posterior inferior to right angle of mandible. On dis-section underlying area was Ecchmosed. 3. A contusion size of 7.5 cm x 5 cm over left side of neck just below angle of mandible. Underlying area on dissection was Ecchymosed. 4. Multiple reddish contusion of various sizes from 0.5 cm x 0.5 cm to 1 cm x 0.5 cm on both lips including an area of 6 x 4 cms. On dissection, underlying area was Ecchymosed. 5. A laceration of size of 1.5 cm x 1 cm present inside the lower lip corresponding to lower incisor tooth and all of the neck on both sides below thyroid bone was found Echhymosed on dis-section. Scalp and skull were healthy. Uterus contained a male foetus of four months. Cause of death in our opinion was due to smothering and throttling which was ante-mortem in nature and was sufficient to cause death in ordinary course of nature. 4. The above injuries, prima facie, indicate that the deceased Sunita's head was repeatedly struck and she was also throttled. 11. We further direct all trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women. 12. Rajbir'S judgment was further considered and explained in the case of Jasvinder Saini & Ors. Vs. State (Govt. of NCT of Delhi), (2014) AIR SC 841 wherein it was observed as below:- 12. 12. Rajbir'S judgment was further considered and explained in the case of Jasvinder Saini & Ors. Vs. State (Govt. of NCT of Delhi), (2014) AIR SC 841 wherein it was observed as below:- 12. A reading of the order which the trial Court subsequently passed on 23rd February 2011 directing addition of a charge under Section 302 Indian Penal Code makes it abundantly clear that the addition was not based on any error or omission whether inadvertent or otherwise in the matter of framing charges against the accused. Even the Respondents did not plead that the omission of a charge under Section 302 Indian Penal Code was on account of any inadvertent or other error or omission on the part of the trial Court. The order passed by the trial Court, on the contrary directed addition of the charge under Section 302 Indian Penal Code entirely in obedience to the direction issued by this Court in Rajbir's case (supra). Such being the position when the order passed by the trial Court was challenged before the High Court the only question that fell for determination was whether the addition of a charge under Section 302 Indian Penal Code was justified on the basis of the direction issued by this Court in Rajbir's case (supra). The High Court has no doubt adverted to that aspect and found itself to be duty bound to comply with the direction in the same measure as the trial Court. Having said so, it has gone a step further to suggest that the autopsy surgeon's report was prima facie evidence to show that the offence was homicidal in nature. The High Court has by doing so provided an additional reason to justify the framing of a charge under Section 302 Indian Penal Code. 13. Be that as it may the common thread running through both the orders is that this Court had in Rajbir's case (supra) directed the addition of a charge under Section 302 Indian Penal Code to every case in which the accused are charged with Section 304-B. 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. 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. It is common ground that a charge under Section 304B Indian Penal Code is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 Indian Penal Code or a dowry death punishable under Section 304B Indian Penal Code depends upon 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 Indian Penal Code the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 Indian Penal Code, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. 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 Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 Indian Penal Code without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir's case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir's case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court. [Emphasis supplied] 14. [Emphasis supplied] 14. In the light of what we have said above, the order passed by the trial Court and so also that passed by the High Court are clearly untenable and shall have to be set aside. That would not, however, prevent the trial Court from reexamining the question of framing a charge under Section 302 Indian Penal Code against the Appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial Court comes to the conclusion that there is any room for doing so. The trial Court would in that regard keep in view the decision of this Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors, (2004) 5 SCC 347 where this Court has recognized the principle that in cases where the trial Court upon a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is necessary, it is free to do so. Reference may also be made to the decisions of this Court in Ishwarchand Amichand Govadia and Ors. v. State of Maharashtra and Anr, (2006) 10 SCC 322 and the decision of the Calcutta High Court in Rajendra Singh Sethia v. State and Ors, (1989) CriLJ 255 and that delivered by the Allahabad High Court in Shiv Nandan and Ors. v. State of U.P, (2005) CriLJ 3047 which too are to the same effect. In any such fresh exercise which the trial Court may undertake, it shall remain uninfluenced by the observations made by the High Court on merits of the case including those touching the probative value of the autopsy surgeon's opinion. 13. The facts of the case at hand are almost akin to those which were considered by the Hon'ble Supreme Court in the case of Rajbir (Supra). The trial court was under an obligation to frame a charge under Section 302 IPC against the accused in view of the evidence available on record. 14. Thus, we are of the firm opinion that it is a fit case wherein, the powers conferred upon the High Court by virtue of Section 386 Cr.P.C. read with Section 216/391 Cr.P.C. have to be exercised so as to sub-serve the ends of justice. 14. Thus, we are of the firm opinion that it is a fit case wherein, the powers conferred upon the High Court by virtue of Section 386 Cr.P.C. read with Section 216/391 Cr.P.C. have to be exercised so as to sub-serve the ends of justice. The abject failure of the trial court to frame charge against the appellant for the offence under Section 302 IPC in view of the unimpeachable medical and other circumstantial evidence available on record has resulted into a gross failure of justice and hence, the same needs to be rectified even at the appellate stage. 15. Accordingly, the appeal deserves to be and is hereby allowed. The impugned judgment dated 11.11.2019 passed by the learned Additional Sessions Judge, Women Atrocities Cases, Metropolitan Jodhpur in Sessions Case No.63/2017 is quashed and set aside. Thus the matter is remitted back to the trial court. Technically speaking as the language of the charge, which we have reproduced hereinbefore clearly conveyed to the accused that he would be facing trial for murder, opportunity of examining the witnesses afresh and leading evidence would not be necessary but inspite thereof, since we are remanding the matter to the trial court for fresh decision after adding the graver charge under Section 302 IPC which entails capital punishment, an opportunity deserves to be given to the prosecution as well as the accused to seek recalling of such witnesses, which may be necessary for just decision of the case. The trial court shall frame an additional/alternative charge for offence under Section 302 IPC against the accused-appellant. After the altered charge in the above terms is read out to the accused, the prosecution as well as the defence will be given reasonable opportunity to lead additional evidence which would include recalling of witnesses, if so desired. After fresh examination of the accused-appellant under Section 313 Cr.P.C., he shall be provided an apposite opportunity to lead defence evidence and thereafter, the case shall be decided afresh without being prejudiced by any of the findings recorded in the judgment dated 11.11.2019. Any observations made by us in the order shall not prejudice either the prosecution or the defence. 16. Any observations made by us in the order shall not prejudice either the prosecution or the defence. 16. In view of the peculiar facts noted above, we hereby direct that the further proceedings of the case upon remand shall be undertaken and conducted by the learned Sessions Judge Metropolitan, Jodhpur, who shall decide the case expeditiously and preferably within the next six months. 17. Since we have set aside the judgment of conviction on the fundamental procedural defect and are remitting the matter to the trial court for fresh decision, we hereby direct that the accused who has been in custody from 10.09.2017 shall be released on bail during the course of trial upon furnishing bail and bonds (the amount whereof shall be fixed by the trial court) to the satisfaction of the trial court. 18. The application for suspension of sentences is thus disposed of. The appeal is allowed accordingly. 19. Record be sent back forthwith.