JUDGMENT : Sanjay K. Agrawal, J. 1. The short question involved in this criminal appeal under Section 374(2) of the CrPC at the instance of the appellant herein is, whether the trial Court is justified in convicting him for offences under Sections 304B & 302 of the IPC simultaneously and awarding imprisonment for life in both the above-stated offences separately. 2. The aforesaid question arises in the following factual backdrop: - Prosecution case in brief: - 3. Case of the prosecution, in short, is that on 5-7-2013 in between 10:00 a.m. and 01:00 p.m., at Village Lagra, Police Station City Kotwali, Mungeli, the sole appellant herein along with two other accused persons (now acquitted), within seven years of marriage, treated his wife Badan Bai with cruelty demanding dowry by which on the said date, she died unnatural death, as such, she suffered dowry death punishable under Section 304B of the IPC. The appellant herein and other co-accused persons were alternatively charged with the offence of committing murder punishable under Section 302 of the IPC alleging that they have strangulated Badan Bai by which she was done to death. Initially, father of the deceased namely, Bhagwat (PW-4) reported the matter naming the appellant herein stating that his daughter has died unnatural death and named the appellant herein for the offence under Section 302 of the IPC pursuant to which morgue Exs.P-16 & P-17 were registered by Mitthu Das (PW-8) – Village Kotwar and thereafter, on the report of the father of the deceased – Bhagwat (PW-4), FIR was registered vide Ex.P-24 and inquest over the dead body of the deceased was conducted vide Ex.P-14. Dead body of deceased Badan Bai was sent for postmortem to District Hospital, Mungeli vide Ex.P-17. Postmortem was conducted by a team of two doctors namely, Dr. Govind Prasad Kaushik (PW-16) and Dr. Ranjana Sahu vide Ex.P-17A and cause of death was opined to be throttling leading to asphyxia, and query report is Ex.P-25. Pursuant to the memorandum statement of the appellant herein recorded vide Ex.P-5, iron hook, bloodstained dupatta (scarf) of the deceased and clothes of the appellant were seized from him vide Ex.P-7. Seized articles were sent for chemical examination to the FSL, Raipur, but no report was brought on record. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. Seized articles were sent for chemical examination to the FSL, Raipur, but no report was brought on record. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused/appellant herein along with two other co-accused persons (now acquitted) was charge-sheeted for offence under Section 304B and alternatively under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Chief Judicial Magistrate, Mungeli, and the case was committed to the Court of Sessions, Mungeli from where the learned Additional Sessions Judge, Mungeli received the case on transfer for trial. 5. The accused/appellant herein and other acquitted co-accused persons abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as eighteen witnesses and exhibited 28 documents. The defence has not examined any witness, however, exhibited one document Ex.D-1 i.e. the statement of Shrawan Sonkar recorded under Section 161 of the CrPC, in support of its case. The accused/appellant and two other co-accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. Finding of the trial Court: - 6. The accused/appellant and two other co-accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. Finding of the trial Court: - 6. The trial Court after appreciating oral and documentary evidence available on record, firstly held the death of deceased Badan Bai to be homicidal in nature and further held that the deceased died within one year of her marriage with the appellant herein, as the appellant herein has subjected her to cruelty demanding dowry and further relying upon the memorandum statement of the appellant, held in paragraph 44 of the judgment that the appellant herein has admitted the fact of committing her murder and further drawn presumption under Section 113B of the Evidence Act and thereafter, applying Section 106 of the Evidence Act relying upon the decision of the Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 , while acquitting the two other co-accused persons namely, Jugnu Sonkar & Kevra Bai Sonkar – father-in-law & mother-in-law of the deceased, respectively, proceeded to convict the appellant for offences under Sections 304B & 302 of the IPC simultaneously and awarded separate punishment of imprisonment for life in both the offences, which is sought to be challenged by the appellant way of this criminal appeal under Section 374(2) of the CrPC. Submissions of parties: - 7. Mr. T.R. Chandrakar, learned counsel appearing for the appellant, would only submit that the appellant is in jail since 30-9-2013, therefore, in view of Section 304B(2) of the IPC, as the minimum sentence is seven years and the appellant had already suffered more than 10 years of jail sentence, he be sentenced to the period already undergone by him, as no offence under Section 302 of the IPC would be made out against him. 8. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State/respondent, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt. 8. Mr. H.A.P.S. Bhatia, learned Panel Lawyer appearing for the State/respondent, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt. He would further submit that in view of the evidence available on record, the trial Court is absolutely justified in convicting the appellant under Sections 302 & 304B of the IPC simultaneously and rightly directed to undergo imprisonment for life in both the offences, separately and as such, the appeal deserves to be dismissed. 9. Mr. Ashish Tiwari, learned amicus curiae, would submit that the trial Court has only held the death to be homicidal in nature and thereafter, did not hold any enquiry to find out by scanning the evidence that the accused by his acts has caused the death of the deceased with the intention of causing death, but for the exceptions carved out in Section 300 of the IPC, which may amount to culpable homicide not amounting to murder, all other instances of culpable homicide would be punishable as murder under Section 302 of the IPC. He would further submit that the word ‘culpable homicide’/‘murder’ has not been employed in Section 304B of the IPC and Section 304B only provides minimum punishment of seven years imprisonment. As such, the trial Court before convicting an accused under Section 302 of the IPC could have scanned the evidence and could have made enquiry even after holding the death to be homicidal in nature that homicidal death was caused, with an intention to attract Section 302 IPC and it is not falling under any other exceptions carved out under Section 300 of the IPC. He has brought to the notice of this Court the relevant decisions of the Supreme Court in this regard. 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record carefully and thoroughly as well. Charges framed by the trial Court: - 11. He has brought to the notice of this Court the relevant decisions of the Supreme Court in this regard. 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record carefully and thoroughly as well. Charges framed by the trial Court: - 11. The trial Court has framed charge against the appellant herein under Section 304B of the IPC and in alternative, also framed charge under Section 302 of the IPC, which states as under: - @@vkjksi i=@@ eSa] fgjsUnz flag rsdke] vij l= U;k;k/kh'k] eqaxsyh vki jktdqekj vk0 tqxuq ij fuEufyf[kr vkjksi yxkrk gwa fd%& ¼1½- vkius fnukad 5&7&13 ds 10 cts ls 13 cts ds e/; ,oa blds iwoZ xzke yxjk Fkkuk flVh dksrokyh eWqxsyh {ks=kf/kdkj ds varxZr e`frdk cnuckbZ ds ifr ;k ifr ds ukrsnkj gksrs gq, fookg ds lkr o"kZ ds Hkhrj ngst esa eksVjlkbdy] tsojkr] ykus ds fy, 'kkjhfjd ,oa ekufld :i ls izrkfM+r fd;k] ftlds ifj.kkeLo:i lkekU; ifjfLFkfr;ksa ls fHkUu mldk xyk nckdj mldh ngst e`R;q dkfjr fd;sA ,slk djds vkius og vijk/k fd;k tks/kkjk 304&ch Hkk0n0l0 ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA fodYi esa vkius mlh fnukad le; ,oa LFkku ij e`frdk cnuckbZ dk xyk nckdj mldh e`R;q dkfjr dj gR;k fd;k] ,slk djds vkius og vijk/k fd;k tks/kkjk 302 Hkk0n0l0 ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA eSa vknsf'kr djrk gwa fd mijksDr vijk/k ds fy, rqEgkjk fopkj.k bl U;k;ky; }kjk fd;k tkosxkA lgh@& ¼fgjsUnz flag rsdke½ vij l= U;k;k/kh'k] eqaxsyh Discussion and analysis: - 12. Having noticed the charge framed against the appellant herein under Section 304B of the IPC and in alternative, under Section 302 of the IPC, we shall proceed to consider the submissions of learned counsel for the parties and the gist of the two offences. 13. The gist of the two offences punishable under Section 302 of the IPC and Section 304B of the IPC is the extinction of life under unnatural circumstances and there is nothing in the two sections to either explicitly or impliedly exclude either of the two if one is applicable. At this stage, it would be appropriate to notice Sections 299, 300 & 302 of the IPC, which state as under: - “299. At this stage, it would be appropriate to notice Sections 299, 300 & 302 of the IPC, which state as under: - “299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 302. Punishment for murder.—Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.” 14. Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Lawful homicide, or simple homicide, includes several cases falling under the General Exceptions (Chapter IV). Unlawful homicide includes—(1) Culpable homicide not amounting to murder (Section 299), Murder (Section 300), Rash or negligent homicide (Section 304-A), and Suicide (Sections 305 & 306). Halsbury classifies homicide as follows: “The term “homicide” is used to describe the killing of a human being by a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide.”[Halsbury’s Laws of England, 4th Edn, vol II, para 1151, p 613.] 15. "Homicide", as derived from Latin, literally means the act of killing a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide.”[Halsbury’s Laws of England, 4th Edn, vol II, para 1151, p 613.] 15. "Homicide", as derived from Latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See Chenda @ Chanda Ram v. State of Chhattisgarh, (2013) 12 SCC 110 .) 16. Shuarf-ud-din J, in the matter of Reaz-ud-din Shaikh v. Emperor, (1910) 11 Cr LJ 295 held as under: - ....all murder is culpable homicide, but all culpable homicide is not murder... subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Panel Code but the act notwithstanding continues to be within section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within section 300, since it is not murder, is culpable homicide not amounting to murder." 17. Section 302 of the IPC provides punishment for murder prescribing that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. As such, for charging an accused under Section 302 of the IPC, the prosecution has to prove by evidence that the accused by his acts has caused the death of the deceased with the intention of causing death. As such, for charging an accused under Section 302 of the IPC, the prosecution has to prove by evidence that the accused by his acts has caused the death of the deceased with the intention of causing death. But for the exceptions carved out in Section 300 of the IPC which may amount to culpable homicide not amounting to murder, all other instances of culpable homicide would be punishable as murder under Section 302 of the IPC because it shall come within the definition of murder as described under Section 300 of the IPC. However, Section 304B of the IPC, which defines dowry death, states as under: - "304B. 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 purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (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." The above provision was inserted by Act 43 of 1986 and came into force with effect from 19-11-1986. 18. A careful perusal of the definition of Section 304B of the IPC would show that neither the words 'culpable homicide' nor the word 'murder', finds place in Section 304B. The expression used therein is 'the death of woman deceased' (sic). In view of the compelling nature of the presumption drawable under Section 113B of the Evidence Act, the applicability of the said Section 113B is always to be confined to the cases covered by Section 304B of the IPC and the applicability of Section 113B is limited to cases 'when the question is whether a person has committed the dowry death of a woman ..." that too requires proof of two further facts. Firstly, it is shown that soon before her death such a woman had been subjected by such person to 'cruelty' or 'harassment' and, secondly, that the cruelty of her husband was 'for or in connection with any demand for dowry'. If these two facts are established by evidence, the presumption under Section 113B of the Evidence Act as to the commission of the offence under Section 304B of the IPC would be attracted straightway. 19. In order to convict an accused for the offence punishable under Section 304B of the IPC, the following essentials must be satisfied— The death of a woman should be caused by burn or bodily injury or otherwise than under normal circumstances. Such death should have occurred within seven years of the marriage. Soon before the death of deceased, she must have been subjected to cruelty or harassment by her Husband or any relative of her Husband. Such cruelty or harassment should be for or in connection with demand for dowry. Thus, if the aforesaid ingredients are established by the prosecution by leading appropriate reliable evidence, such death shall be called dowry death and the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. 20. Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death, which reads as under:- "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 has 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)." 21. The aforesaid provision shows that if the woman has been subjected to cruelty as defined in Section 498A of the IPC, the court may presume that such person has caused dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides as under:- "2. Definition of "dowry". The aforesaid provision shows that if the woman has been subjected to cruelty as defined in Section 498A of the IPC, the court may presume that such person has caused dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides as under:- "2. Definition of "dowry". In this Act," dowry" means any property or valuable security given or agreed to be given either directly or indirectly- a. by one party to a marriage to the other party to the marriage; or b. by the parents of either party to a marriage or by a other person, to either party to the marriage or to any other person; at or before or after the marriage us consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies." 22. To attract the provisions of Section 304B of the IPC, one of the main ingredients of the offence, which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B of the IPC and Section 113B of the Evidence Act is present with the idea of proximity test. 23. In the matter of Appasaheb and another v. State of Maharashtra, (2007) 9 SCC 721 , it has been held by the Supreme Court as under:- “9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. 10. Section 2 of the Dowry Prohibition Act reads as under: “2. Definition of ‘dowry’.- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly. 10. Section 2 of the Dowry Prohibition Act reads as under: “2. Definition of ‘dowry’.- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly. (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.” 11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving and taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (see Union of India v. Garware Nylons Ltd and Chemical and Fibres of India Ltd. v. Union of India). A demand for money on account of some financial stringency or for making some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz demand for dowry is not established, the conviction of the appellants cannot be sustained.” 24. It appears from the record that initially, FIR was lodged only under Section 302 of the IPC and thereafter, while submitting charge-sheet before the trial Court, Section 304B of the IPC was also added, it appears, in view of the decision of the Supreme Court in the matter of Rajbir v. State of Haryana, (2010) 15 SCC 116 in which all the trial courts in India were directed 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. However, it was clarified by their Lordships of the Supreme Court in the matter of Jasvinder Saini v. State (Govt. of NCT of Delhi), (2013) 7 SCC 256 and it was held by their Lordships that the direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. It was further held that 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. Their Lordships pertinently held as under: - "15. It is common ground that a charge under Section 304-B 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 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B 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 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 304-B 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 case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568 ]. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir 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." 25. Similarly, in the matter of Vijay Pal Singh and others v. State of Uttarakhand, (2014) 15 SCC 163 , it has been held that Section 304B is not substitute for Section 302 of the IPC and observed as under: - "18. However, it is generally seen that in cases where a married woman dies within seven years of marriage, otherwise than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as to whether the offence falls under Section 302 of IPC. Sometimes, Section 302 of IPC is put as an alternate charge. However, it is generally seen that in cases where a married woman dies within seven years of marriage, otherwise than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as to whether the offence falls under Section 302 of IPC. Sometimes, Section 302 of IPC is put as an alternate charge. In cases where there is evidence, direct or circumstantial, to show that the offence falls under Section 302 of IPC, the trial court should frame the charge under Section 302 of IPC even if the police has not expressed any opinion in that regard in the report under Section 173(2) of the Cr.P.C. Section 304B of IPC can be put as an alternate charge if the trial court so feels. In the course of trial, if the court finds that there is no evidence, direct or circumstantial, and proof beyond reasonable doubt is not available to establish that the same is not homicide, in such a situation, if the ingredients under Section 304B of IPC, are available, the trial court should proceed under the said provision. In Muthu Kutty and another v. State by Inspector of Police, T.N., (2005) 9 SCC 113 , this Court addressed the issue and held as follows: "20. A reading of Section 304-B, IPC and Section 113-B, Evidence Act together makes it clear that law authorises a presumption that the husband or any other relative of the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. The provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302, IPC, if they directly cause death. This conceptual difference was not kept in view by the courts below. But that cannot bring any relief if the conviction is altered to Section 304, Part II. No prejudice is caused to the accused-appellants as they were originally charged for offence punishable under Section 302, IPC along with Section 304-B IPC." "19. In a recent decision, this Court in Jasvinder Saini v. State (Govt. of NCT of Delhi)7 observed thus: 15. It is common ground that a charge under Section 304-B 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 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B 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 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. 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 304-B 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 case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568 ]. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir 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." *** *** *** 23. In two of the early decisions of this Court, after the introduction of Section 304B of IPC, the ingredients of the offence and the interplay of Section 304B of IPC with Sections 498A, 302, 306 of IPC have also been discussed. In State of Punjab v. Iqbal Singh, (1991) 3 SCC 1 , the Court in paragraph 8 stated that: "8. ... The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113-A and 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members Section 498-A, IPC would be attracted. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members Section 498-A, IPC would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B, IPC. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, Section 113-B, Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302, IPC. Then we have a situation where the husband or his relative by his willful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306, IPC. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide. ..." *** *** *** 32. Now, the question as to why the High Court, having entered a conclusion that it is a case of murder at the hands of the appellants, yet chose to convict them only under Section 304B of IPC. As we have already indicated, it could have been a case for the High Court or for that matter this Court for issuing notice for enhancement of punishment to those against whom there is evidence to connect them with the murder. As we have already indicated, it could have been a case for the High Court or for that matter this Court for issuing notice for enhancement of punishment to those against whom there is evidence to connect them with the murder. The incident being of 1991, the prosecution having not chosen to link all the circumstances in a chain with no missing links to reach the irresistible and conclusive finding on involvement of the accused, the High Court would have thought it more prudent to convict the accused only under Section 304B of IPC. No doubt, in such a case, the High Court should not have entered a categoric finding on murder since once the court enters such a finding, the punishment can only be under Section 302 of IPC. Having regard to the circumstances which we have referred to above, we are of the view that though this case could have been dealt with under Section 302 of IPC, at this distance of time and in view of the lack of evidence on the chain of circumstances, it will not be proper for this Court to proceed under Section 302 of IPC, for enhancement of punishment. There are no such problems as far as the presumption under Section 113B of the Indian Evidence Act, 1872 is concerned. Once the ingredients of Section 304B of IPC, are established, the presumption is that the death has been caused by the husband or his relatives, who caused the cruelty or harassment. That presumption can safely be drawn in the instant case, as we have already discussed above, as all the ingredients under Section 304B of IPC have been proved beyond doubt in the present case particularly since there is no direct evidence on the part of the appellants to rebut the same." 26. Returning to the facts of the case in light of the principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that in the instant case, three accused persons were tried i.e. husband of the deceased Rajkumar Sonkar (appellant herein), father-in-law Jugnu Sonkar @ Sukhiram Sonkar (now acquitted) and mother-in-law Kevra Bai Sonkar (now acquitted). The prosecution firstly registered offence under Section 302 of the IPC, but while submitting charge-sheet also added Section 304B of the IPC and the trial Court having framed charge under Section 304B of the IPC and Section 302 of the IPC, in alternative, proceeded to assess the evidence and appreciate the evidence and firstly recorded finding in paragraph 34 of the judgment that death is on account of manual strangulation and held the death to be homicidal in nature and thereafter, in paragraph 40 proceeded to acquit the two accused persons (father-in-law and mother-in-law) and further held that FIR has only been lodged against Rajkumar (appellant). The trial Court has also recorded a finding in paragraph 44 of the judgment that marriage of the appellant was solemnized with the deceased one & half year prior to the date of offence and it is the evidence on record that she was subjected to harassment and cruelty in connection with demand of dowry. The trial Court has further relied upon the memorandum statement of the appellant in which he is said to have admitted causing death of his wife which is wholly inadmissible in evidence, as inculpatory part is inadmissible in evidence in view of the principle of law laid down by their Lordships of the Supreme Court in umpteen number of cases. 27. The Supreme Court in the matter of Asar Mohammad and others v. State of U.P., AIR 2018 SC 5264 , with reference to the word “fact” employed in Section 27 of the Evidence Act, has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge of the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67 observed as under :- “13. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67 observed as under :- “13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 , in particular, paragraphs 23 to 29 thereof. The same read thus : “23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus : (IA p. 77) “... it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” 28. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” 28. However, the trial Court in paragraph 47 of the judgment has drawn presumption under Section 113B of the Evidence Act and lastly held that since the dead body was found in the room of the appellant and it suffered so many injuries which has not been explained by the appellant, in view of the decision of the Supreme Court in Trimukh Maroti Kirkan (supra), the appellant is guilty of the offence of murder and also recorded a categorical finding of dowry death in paragraph 49 of the judgment which states as under: - ^^¼49½ mijksDr leLr U;k;n`"Vkarks] vfHk;kstu lk+{; ,oa leLr ifjfLFkfr;ksa ds ewY;kadu ds i'pkr~ fu"d"kZ ;g gS fd izdj.k esa vfHk;kstu }kjk ;qfDr;Dr lansg ls ijs ;g izekf.kr fd;k x;k gS fd e`rdk cnuckbZ dh e`R;q mlds fookg ds lkr o"kZ ds Hkhrj lkekU; ifjfLFkfr;ksa ls fHkUu voLFkk esa gqbZ gS ,oa mldh e`R;q ds Bhd iwoZ ngst dh ekax ds laca/k esa mls 'kkjhfjd ,oa ekufld :i ls izrkfM+r fd;k x;kA ;g Hkh izekf.kr gS fd e`rdk dh mijksDr ngst dh ekax ds laca/k esa gR;k vkjksih jktd`ekj }kjk dh x;h vr% vkjksih jktdqekj dks/kkjk&304 ch ,oa/kkjk& 302 Hkk0na0fo ds rgr~ nks"kfl) fd;s tkus ds i;kZIr vk/kkj ekStwn gSaA tgka rd vU; lgvfHk;qDrx.k vkjksih tqxuw ,oa vkjksfi;k dsojkckb dk iz'u gS] izdj.k esa vkbZ vfHk;kstu lk{; ls muds }kjk vijk/k fd, tkus ds laca/k esa lansg dh fLFkfr fufeZr gksrh gS vr% mijksDr nksuksa vkjksihx.k tqxuw ,oa dsojkckbZ dks lansg dk ykHk nsrs gq, nks"keqDr fd;k tkuk mfpr gSA 29. From the aforesaid finding recorded by the trial Court, it appears that the trial Court has clearly held that death of the deceased was homicidal in nature. Homicidal death is chargeable and punishable under Section 302 of the IPC and Section 304B of the IPC if circumstances prevail triggering these provisions as held by their Lordships of the Supreme Court in the matter of Sher Singh alias Partapa v. State of Haryana, (2015) 3 SCC 724 (see paragraph 11). Homicidal death is chargeable and punishable under Section 302 of the IPC and Section 304B of the IPC if circumstances prevail triggering these provisions as held by their Lordships of the Supreme Court in the matter of Sher Singh alias Partapa v. State of Haryana, (2015) 3 SCC 724 (see paragraph 11). The trial Court has also held that death of the deceased has taken place within seven years of marriage and it was in connection with demand of dowry, but did not make any enquiry as to whether the death was caused intentionally or it may fall within the meaning of Section 300 of the IPC and punishable under Section 302 of the IPC, except holding that dead body of the deceased was found in the room of the appellant and invoked Section 106 of the Evidence Act and other incriminating circumstances were neither considered nor held proved by the trial Court in the impugned judgment, whereas finding with regard to Section 304B of the IPC has been specifically recorded after drawing presumption under Section 113B of the Evidence Act. As such, in absence of five golden principles to prove the panchsheel of a case based on circumstantial evidence as held by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , we are of the considered opinion, that the trial Court is absolutely unjustified in convicting the appellant under Section 302 of the IPC and as such, his conviction and sentences for offence under Section 302 of the IPC are hereby set aside and consequently, he is acquitted of the said charge, however, his conviction for offence under Section 304B of the IPC is hereby affirmed. 30. At this stage, it has been contended by learned counsel for the appellant relying upon the decision of the Supreme Court in the matter of Hem Chand v. State of Haryana, AIR 1995 SC 120 that in light of the provisions contained in 304B of the IPC which prescribes minimum sentence of seven years in case of demand of dowry, extreme punishment of life imprisonment should not have been awarded, as it has to be awarded in rare cases and not in every case, and case of the appellant herein would not fall within the meaning of rare cases. Their Lordships pertinently observed in paragraphs 7 & 8 of the report as under: - “7. … Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304, I.P.C. 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, I.P.C. 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 S. 304-B, I.P.C. 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, I.P.C. 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. 8. Hence, we are of the view that a sentence of 10 years' R.I. would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under S. 304B, I.P.C., reduce the sentence of imprisonment for life to 10 years' R.I. ...” Conclusion:- 31. Returning to the facts of the case finally, it is quite vivid that the trial Court did not record specific reasons and did not hold that it is a case where the extreme punishment of life imprisonment would be imposed and did not hold it to be a rare case. Therefore, in our considered opinion sentence of ten years' rigorous imprisonment would meet the ends of justice and accordingly, the appellant is awarded ten years' rigorous imprisonment under Section 304B of the IPC. Therefore, in our considered opinion sentence of ten years' rigorous imprisonment would meet the ends of justice and accordingly, the appellant is awarded ten years' rigorous imprisonment under Section 304B of the IPC. The appellant is in jail since 30-9-2013, thereby he had already completed ten years and therefore he be released forthwith, if not required in any other case. 32. The criminal appeal is partly allowed to the extent indicated herein-above. The question is answered accordingly. 33. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for necessary information and action, if any. 34. While parting with the record, this Court appreciates the assistance rendered by Mr. Ashish Tiwari, Advocate, who in a very short notice, appeared as amicus curiae and not only argued the matter with excellence, but has also submitted brief written submission.