JUDGMENT Raj Beer Singh, J. This application under Section 482 CrPC has been preferred against the order dated 5.6.2024, passed by learned Session Judge, Rampur in S. T. No. 297 of 2022 (State v. Narendra Pal and others), under Sections-498-A, 304- B IPC and Sections-3/4 of D. P. Act, Police Station-Khajuria, District-Rampur, whereby it was directed that alternative charge under Section 302/34 IPC be also framed against the accused / applicants. 2. Heard learned counsel for the applicants and learned AGA for the State and perused the record. 3. Perusal of record shows that the applicants / accused are facing trial in the aforesaid case. On 28.11.2022 the trial Court framed charges against them for offence under Sections 498-A, 304-B IPC and Sections-3 / 4 of D. P. Act. It appears that during trial the public prosecutor has moved an application stating that in post-mortem report, cause of death of deceased has been shown asphyxia as a result of ante-mortem throttling and the autopsy surgeon has already been examined during trial as PW 5 and thus, charge under Section 302/34 IPC be also framed against accused-applicants in alternative to the aforesaid charges. It appears that said application was allowed by the trial Court vide order dated 5.6.2024 and it was directed that alternative charge under Section 302/34 IPC be also framed against accused persons. 4. The main contention of learned counsel for the applicants is that in such matter charge under Section 302 IPC can not be framed in alternative to charge of Section 304B IPC and thus, impugned order is against law and therefore, liable to be set aside. In support of his contention, learned counsel has placed reliance upon following case laws:- i. Jasvinder Saini v. State (Govt. of NCT of Delhi) (2013) 7 SCC 256 ii. (2001) 2 SCC 577 Shamnsaheb M. Multtani v. State of Karnataka iii. State of Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 iv. P. Kartikalakshmi v. Sri. Ganesh (2017) 3 SCC 347 v. Kalicharan v. State of UP (2023) 2 SCC 583 ; and vi. Ram Varma v. State AIR 1956 All 466 5. (2001) 2 SCC 577 Shamnsaheb M. Multtani v. State of Karnataka iii. State of Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 iv. P. Kartikalakshmi v. Sri. Ganesh (2017) 3 SCC 347 v. Kalicharan v. State of UP (2023) 2 SCC 583 ; and vi. Ram Varma v. State AIR 1956 All 466 5. Learned AGA submits that as the cause of death of death has been shown due to ante-mortem throttling, thus, the death of deceased is homicidal in nature and therefore, there is no illegality or perversity in framing charge under Section 302/34 in alternative to the charge under Section 304B IPC. 6. I have considered the rival submissions and perused the record. 7. The moot question involved in this matter is whether in aforesaid facts and circumstances during trial charge under Section 302/34 IPC can be framed as an alternative to the charge of Section 304B IPC. In Case of Jasvinder Saini (supra), Hon'ble Apex Court in paras 14 and 15 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's case (supra) directed the addition of a charge under Section 302 IPC 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. 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. 15. It is common ground that a charge under Section 304B IPC 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 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. 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 IPC or a dowry death punishable under Section 304B IPC 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 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, 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 IPC 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." 8. In case of Shamnsaheb M. Multtani (supra) the appellant was not charged under Section 304B IPC and the question was raised whether the accused, who was charged under Section 302 IPC, could be convicted alternatively under Section 304B IPC without the said offence being specifically put in charge. In that matter appellant was convicted by the High Court under Section 304B IPC. In paras 31 to 36, the Hon'ble Apex Court has held as under:- "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. 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 accused has no notice of the offence under Section 304B 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 304B 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 304B IPC read with Section 113B of the Evidence Act. But if the murder of his wife was actually committed either by a decoit 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 304B 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 304B 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 304B 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 304B IPC. 36. To facilitate the trial court to dispose of the case afresh against the appellant in the manner indicated above, we set aside the conviction and sentence passed on him by the High Court and remand the case to the trial court." 9. 36. To facilitate the trial court to dispose of the case afresh against the appellant in the manner indicated above, we set aside the conviction and sentence passed on him by the High Court and remand the case to the trial court." 9. In case of P. Kartikalakshmi (supra) in paras 7 and 8, the Hon'ble Apex Court has held: "7. We were taken through Sections 221 & 222 of the Cr.P.C. in this context. In the light of the facts involved in this case, we are only concerned with Section 216 Cr.P.C. We, therefore, do not propose to examine the implications of the other provisions to the case on hand. We wish to confine ourselves to the invocation of Section 216 and rest with that. In the light of our conclusion that the power of invocation of Section 216 Cr.P.C. is excl usively confined with the Court as an enabling provision for the purpose of alteration or addition of any charge at any time before pronouncement of the judgment, we make it clear that no party, neither de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge, because it is not provided under Section 216 Cr.P.C. If such a course to be adopted by the parties is allowed, then it will be well nigh impossible for the Criminal Court to conclude its proceedings and the concept of speedy trial will get jeopardized. 8. In such circumstances, when the application preferred by the appellant itself before the Trial Court was not maintainable, it was not incumbent upon the Trial Court to pass an order under Section 216 Cr.P.C. Therefore, there was no question of the said order being revisable under Section 397 Cr.P.C. The whole proceeding, initiated at the instance of the appellant, was not maintainable. Inasmuch as the legal issue had to be necessarily set right, we are obliged to clarify the law as is available under Section 216 Cr.P.C. To that extent having clarified the legal position, we make it clear that the whole proceedings initiated at the instance of the appellant was thoroughly misconceived and vitiated in law and ought not to have been entertained by the Trial Court. As rightly pointed out by the learned senior counsel for respondent no.1, such a course adopted by the appellant and entertained by the Court below has unnecessarily provided scope for protraction of the proceedings which ought not to have been allowed by the Court below." 10. The Case of State of Andhra Pradesh v. C. G. Rao (supra) is not found relevant for the controversy involved in the present matter. Similarly in case of Kalicharan (supra), the peculiar issue was regarding defect of non-framing of charge and that case law is also not relevant for the present controversy. 11. It appears that in case of Jasvinder Saini (supra) the trial Court has framed charge under Sections 498-A, 304-B IPC and during trial in view of the directions issued in case of Rajbir v. State of Haryana, (2010) 15 SCC 116 , the charge under Section 302 was also framed. The appellant has preferred a Writ Petition against that order which was dismissed by the High Court. In appeal before the Hon'ble Apex Court, the Court held that earlier the trial Court has not found evidence sufficient for framing charge under Section 302 IPC and the charge under Section 302 was framed entirely in compliance of the directions issued by the Apex Court in Rajbir's case (supra). The Apex Court held that the said direction of the case of Rajbir's case was not to be followed mechanically and without due regard to the nature of evidence. The charge under Section 304B IPC is not a substitute for the charge of murder punishable under Section 302 IPC. The question whether it is a murder punishable under Section 302 IPC or dowry death punishable under Section 304B IPC, would depend upon situation and evidence of a particular case and if there is evidence to prima facie support the charge under Section 302 IPC, the trial Court can only frame the charge under Section 302 IPC, which would then be main charge and not alternative charge. If main charge of murder is not proved in trial, the trial Court can look into evidence to determine whether alternative charge of dowry death punishable under Section 304B IPC is established. In the instant case initially the trial Court has framed charges for offence under Sections 498-A, 304-B IPC and Sections-3 / 4 of D. P. Act. If main charge of murder is not proved in trial, the trial Court can look into evidence to determine whether alternative charge of dowry death punishable under Section 304B IPC is established. In the instant case initially the trial Court has framed charges for offence under Sections 498-A, 304-B IPC and Sections-3 / 4 of D. P. Act. During trial, the Court added charge under section 302 IPC as alternative to charge under section 304B IPC. It is not in dispute that that as per the post-mortem report, cause of death of deceased has been shown asphyxia as a result of ante-mortem throttling and thus, prima facie it appears a case of homicidal death and a case for charge under section 302 IPC is made. However, as noticed above, in such facts and circumstances the charge under Section 302 IPC would have to be main charge and not alternative charge. Thus, the impugned order is not in accordance with law and hence, liable to be set aside. 12. In view of aforesaid the impugned order dated 5.6.2024 passed by learned Sessions Judge, Rampur in S. T. No. 297 of 2022 (State v. Narendra Pal and others), under Sections-498-A, 304-B IPC and Sections-3/4 of D. P. Act, Police Station-Khajuria, District-Rampur is set aside. The trial court shall pass an order afresh in accordance with law. 13. Application under section 482 CrPC is allowed in above terms.