ORDER : This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 to quash Annexure-B order, whereby the learned Ist Additional Assistant Sessions Judge, Thiruvananthapuram by invoking power under Section 216 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C') altered the charge and incorporated charge for the offence under Section 304 (B) of the Indian Penal Code, 1860 (for short 'the IPC') also against the petitioner/accused adverting to the evidence tendered by the prosecution witnesses who were examined as PWs 1 to 17. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the order and the relevant provisions. 3. The learned counsel for the petitioner argued that in order to fasten criminal culpability upon a person, the ingredients stated under Section 304-B of IPC read with Section 113B of the Indian Evidence Act, 1872 shall be established by the prosecution. When a court alters charge by exercising power under Section 216 of Cr.P.C., the evidence relied on, for exercising the said power, must be convincing to find the ingredients for the offence, to which charge to be altered. 4. The learned counsel for the petitioner placed depositions of PWs 1 to 6 and 13, the crucial witnesses who were given evidence in support of prosecution, while trying the petitioner for the offences punishable under Sections 498-A and 306 of IPC, on the basis of court charge already framed; to contend that none of the witnesses given evidence to the effect that the victim was subjected to cruelty or harassment by the accused in connection with any demand for dowry, one among the vital ingredients to attract offence under Section 304-B of IPC. Therefore, Annexure-B order is unsustainable and the same sought to be quashed. 5. The learned Public Prosecutor also submitted that even though there is allegation of cruelty as borne out from the evidence adduced before the trial court, cruelty or harassment in connection with any demand for dowry could not be foreseeable from the evidence tendered. 6. The learned counsel for the petitioner placed a decision of this Court reported in Ajayakumar and Ors. 6. The learned counsel for the petitioner placed a decision of this Court reported in Ajayakumar and Ors. V. State of Kerala [MANU/KE/2469/2022], [2022 Crl.LJ 4258], [ 2022 (3) KLJ 747 ], [II (2022) DMC 695 Ker.] where this Court considered the ingredients to attract the offences punishable under Sections 304-B and 306 of IPC read with Section 113 B of the Indian Evidence Act, 1872 and in the said decision in paragraph No.18, this Court set out the ingredients to constitute the offence under Section 304-B as under; “18. Thus the ingredients to constitute an offence under Section 304B are: (a) There was an unnatural death of a woman; (b) that woman had been married within 7 years preceding her aforesaid unnatural death, and (c) soon before her death she was subjected to cruelty or harassment. Again (i) such cruelty or harassment had been caused to her by her husband or husband's other relative; (ii) that such cruelty or harassment was for or in connection with any demand for dowry. In all dowry death cases the standard of appreciation of evidence has to be in the light of the provisions contained in Section 113A of the Evidence Act.” 7. In paragraph Nos. 19 and 20, this Court considered the impact of Section 113 B of the Evidence Act and held as under; “19. It is relevant to note that when an offence under Section 304B of I.P.C is alleged, the same has a proximate nexus with Section 113B of the Evidence Act, 1872 which reads as follows: “Section 113B: Presumption as to dowry death;-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation:-- For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).” 20. Explanation:-- For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).” 20. Section 113B of the Evidence Act in the later part mandates drawing of presumptions that the husband or relative of the husband of the victim girl have caused her death and this presumption of dowry death corresponds to presumption as to dowry death envisaged in Section 113B of the Evidence Act, 1872. Section 304B(1) of the I.P.C, 1860 has 2 limbs. First limb defines dowry death and the second limb deals with the legal consequence of occurrence of dowry death namely, that the husband or such other relative of the husband who soon before the death of the lady was found to have subjected the lady to cruelty or harassment shall conclusively be held to be guilty of the offence of dowry death. In the decision reported in [MANU/SC/0792/2015: 2015 (8) Scale 270 : AIR 2015 SC 3043 : 2015 Crl.J 4021 (SC)], V.K.Mishra v. State of Uttarakhand, a 3 Judge Bench of the Apex Court while dealing with Section 304B of IPC and 113B of the Evidence Act, inter alia, held, after referring another decision reported in [MANU/SC/0022/2015: AIR 2015 SC 980 ], Shersing alias Partapa v. State of Haryana that the word `shown' instead of `proved' in Section 304B of I.P.C indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, `shown' would have to be read upon to mean `proved', but only to the extent of preponderance of probability. It was held further that in a case of demand for dowry, independent and direct evidence with regard to the occurrence is ordinarily not available. That is why the legislature had introduced Section 113A and 113B in the Evidence Act by permitting presumptions to be raised in certain circumstances.” 8. In a recent judgment of this Court in Crl.M.C.No.6229/2024 dated 06.11.2024 in Shaji v. State of Kerala [2024:KER:87131] also this Court considered the ingredients at length. The relevant paragraphs read as under: “xxxxx 10. That is why the legislature had introduced Section 113A and 113B in the Evidence Act by permitting presumptions to be raised in certain circumstances.” 8. In a recent judgment of this Court in Crl.M.C.No.6229/2024 dated 06.11.2024 in Shaji v. State of Kerala [2024:KER:87131] also this Court considered the ingredients at length. The relevant paragraphs read as under: “xxxxx 10. Gazing the ingredients to bring home offence under Section 304-B of IPC, the statutory provision is as under: 304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 11. Thus as per Section 304-B of I.P.C, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death [Kans Raj v State of Punjab AIR 2000 SC 2324 : (2000) 5 SCC 207 ; Satvir Singh v State of Punjab AIR 2001 SC 2828 : (2001) 8 SCC 633 : 2002 SCC (Cri) 48, State of AP. v Raj Gopal Asawa AIR 2004 SC 1933 : (2004) 4 SCC 470 , Baljeet Singh v State of Haryana AIR 2004 SC 1714 ; Biswajit Halder @ Babu Halder v State of West Bengal (2008) 1 SCC 202 .] 12. v Raj Gopal Asawa AIR 2004 SC 1933 : (2004) 4 SCC 470 , Baljeet Singh v State of Haryana AIR 2004 SC 1714 ; Biswajit Halder @ Babu Halder v State of West Bengal (2008) 1 SCC 202 .] 12. The expression "soon before her death" used in S. 304-B, I.P.C. and S. 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined: [Baldev Singh v. State of Punjab (A.I.R. 2009 S.C. 913).] 13. The term dowry means some customary payments in connection with birth of a child or other ceremonies that are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence, the dowry mentioned in section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage [Satvir Singh v State of Punjab AIR 2001 SC 2828 : (2001) 8 SCC 633 : 2002 SCC (Cri) 48.] 14. The primary ingredient to attract the offence under S. 304- B is that the death of a woman must be a "dowry death". It is obvious that S. 304-B is a stringent provision, meant to combat a social evil of alarming proportions: [Rajinder Singh v. State of Punjab A.I.R. 2015 S.C. 1359: (2015) 6 S.C.C. 477 )] 15. In a latest decision reported in Satbir Singh and Another v. State of Haryana [2021 KHC 6284] the Apex Court dealt with the offence under Section 304-B of IPC and summarised the Law under Section 304-B read with Section 113 B of the Evidence Act, 1872 as under: “i. Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand. ii. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B,IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act operates against the accused. iii. The phrase “soon before” as appearing in Section 304-B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives. iv. iii. The phrase “soon before” as appearing in Section 304-B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives. iv. Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental. v. Due to the precarious nature of Section 304-B IPC read with 113-B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial. vi. It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under S. 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the Court to question the accused fairly, with care and caution. vii. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of S. 304-B, IPC read with S.113-B, Evidence Act. viii.S.232, CrPC provides that, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts. ix. Such discretion must be utilized by the Trial Courts as an obligation of best efforts. ix. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of S. 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under S.233, CrPC, which is also an invaluable right provided to the accused. x. In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, we may caution that the above provisions should not be allowed to be misused as delay tactics. xi. Apart from the above, the presiding Judge should follow the guidelines laid down by this Court while sentencing and imposing appropriate punishment. xii. Undoubtedly, as discussed above, the menace of dowry death is increasing day by day. However, it is also observed that sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court need to be cautious in its approach.” 16. The learned counsel for the petitioner placed decision in Challa Sathyavathi v. State of Telangana [2019 KHC 3591] where the Apex Court considered the essentials to constitute the offence under Section 304-B of IPC, with reference to paragraph 12, to point out the ingredients of the offence which have been already discussed. 17. Section 80 of the Bharatiya Nyaya Sanhita, 2023 ('BNS for short' hereafter) is the corresponding to S.304-B of IPC and the same is verbatim reproduction of Section 304- B of IPC. Xxxxx” 9. When analysing the ingredients to attract the offence under Section 304B of IPC one among the most essential ingredients is that “ such cruelty or harassment was for or in connection with demand for dowry.” If this ingredients could not be found from the evidence adduced, the court should not alter the charge by exercising power under Section 216 of Cr.P.C., though it has been provided under Section 216 of Cr.P.C that a court may alter charge or add to any charge at any time before judgment is pronounced. 10. 10. On scrutiny of the order impugned, it has been observed by the learned Sessions Judge that “presumption u/s.113 (b) of Evidence Act shall be raised only if the woman was subjected to cruelty or harassment by her husband or his relatives, such cruelty or harassment was in connection with any demand for dowry and the cruelty or harassment was made soon before her death. On perusing the entire facts and circumstance it can be seen that except demand for dowry the other facts and circumstance prevails in this case.” Thus the learned Additional Assistant Sessions Judge also is of the opinion that the evidence available did not suggest that there was cruelty or harassment connected with the demand for dowry. Although I have gone through the depositions of PWs 1 to 6 and 13, the court witnesses, their evidence did not suggest that there was cruelty or harassment demanding dowry or in connection with demand for dowry, though cruelty or harassment for other reasons stated by the witnesses. Therefore, the learned Assistant Sessions Judge went wrong in altering the charge for the offence under Section 304-B of IPC by invoking power under Section 216 Cr.P.C. and in view of the matter, the order impugned is liable to be interfered. 11. In the result, this petition stands allowed. Annexure-B order stands set aside with direction to the learned Ist Additional Assistant Sessions Judge, Thiruvananthapuram to continue with the trial for the offences punishable under Section 498-A and 306 of IPC for which charge already framed. 12. Interim order of stay shall stand vacated. Registry is directed to forward a copy of this Order to the jurisdictional court concerned for information and further steps.