JUDGMENT : SANJAY KUMAR DWIVEDI , J. 1. Heard Mr. M.B. Lal, learned counsel appearing for the petitioner and Mr. Bishwambhar Shastri, learned A.P.P. for the State. 2. Notice upon the O.P. No. 2 has already been effected, however he has chosen not to appear in the matter and earlier the matter was adjourned several times. 3. This revision petition has been preferred against the order dated 20.09.2019, passed by the learned Additional Sessions Judge-II- FTC, Bokaro, in S.T. No. 278 of 2019, arising out of Chandankiyari P.S. Case No. 15 of 2018 corresponding to G.R. No. 231 of 2018, whereby, the petition filed by the petitioner under Section 227 of the Cr.P.C. for discharge has been rejected by the learned court and the learned court has held that this is a fit case to frame charge under Sections 302 and 304-B of the Indian Penal Code. 4. Mr. M.B. Lal, learned counsel appearing for the petitioner submits that initially the UD case has been filed by the father of the deceased and thereafter the matter was closed. He submits that after 13 months of the occurrence, the brother of the deceased has filed the complaint case, which was sent by the learned court under Section 156(3) of the Cr.P.C. to the police, pursuant to that the FIR was registered and after investigation, the chargesheet was submitted under Section 302 of the Indian Penal code. He further submits that thereafter the discharge petition has been filed under Section 227 of the Cr.P.C., which has been rejected by the learned court and the learned court has been pleased to hold that this is a fit case to frame charge under Sections 302 and 304-B of the Indian Penal Code. He submits that the petitioner is aggrieved with the action of the learned court so far as Section 304-B of the Indian Penal Code is concerned. He further submits that the learned court is having the power to alter the charge, however, in the present case in a discharge petition that has been held in absence of any materials to conclude that Section 304-B of the Indian Penal Code is also made out. On these grounds, he submits that the impugned order may kindly be set aside. 5. On the other hand, Mr. On these grounds, he submits that the impugned order may kindly be set aside. 5. On the other hand, Mr. Shastri, learned A.P.P. appearing for the State has opposed the prayer and submits that the learned court has rightly passed the said order considering the parameters of the discharge petition. 6. It is an admitted position that the learned court has been pleased to take cognizance under Section 302 of the Indian Penal Code by the order dated 29.07.2019. The petitioner herein has filed the discharge petition under Section 227 of the Cr.P.C. and the learned court while deciding the said petition, has held that it is a fit case to frame the charge under Sections 302 and 304-B of the Indian Penal Code. 7. When the discharge petition was filed before the learned court, the learned court was required to decide the same in accordance with law. There is no doubt that the learned court can alter or add any charge at any stage before the judgment when the materials have come in the evidence and found that the charge is defective. Reference may be made to the case of Jasvinder Saini & Ors. Versus State (Government of NCT of Delhi), reported in (2013) 7 SCC 256 wherein, the Hon’ble Supreme Court in paras-11, 12, 13 and 15 has held as follows:- “11. A plain reading of the above would show that the Court’s power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the Court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the Court after commencement of the trial. There can in the light of the above be no doubt about the competence of the Court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. There can in the light of the above be no doubt about the competence of the Court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the Court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the Court. 12. In the case at hand the evidence assembled in the course of the investigation and presented to the trial Court was not found sufficient to call for framing a charge under Section 302 IPC. The trial Court recorded a specific finding to that effect in its order dated 18th March 2009 while framing charges against the appellants before us. The trial Court said: “The two witnesses Kiran Devi and Smt. Dharam Kaur were at the spot when the deceased fell down from the second floor and did not notice anyone on the roof of the house. Thus there is no material for framing of charge Under Section 302 IPC against the accused persons. However, there are specific allegations of dowry demand and torture in the statement given by Sh. Ajay Gautam to the SDM and as also in the statements given by his wife Manisha Gautam and his son Vishal Gautam. The deceased had died under unnatural circumstances. Her death took place at her matrimonial home within seven years of her marriage. There is a presumption Under Section 113-B of the Indian Evidence Act of dowry death. Hence on the basis of material on record, I am of the view that prima facie offence Under Section 498A/304B/34 IPC is made out against all the accused persons.” 13. A reading of the order which the trial Court subsequently passed on 23rd February 2011 directing addition of a charge under Section 302 IPC 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. A reading of the order which the trial Court subsequently passed on 23rd February 2011 directing addition of a charge under Section 302 IPC 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 IPC 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 IPC 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 IPC 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 IPC. 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. 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 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 light of the above judgment and further considering the impugned order, it transpires that the learned court without finding any error and materials of framing charge under Section 304-B of the Indian Penal Code has held that it is a fit case to hold the charge under Sections 302 and 304-B of the Indian Penal Code, which is against the mandate of law. As such, that part of the order, by which, the learned court has held that Section 304-B of the Indian Penal Code is also made out, is not sustainable in the eyes of law. In view of that the learned court will not frame the charge against the petitioner under Section 304- B of the Indian Penal Code and the learned court will proceed by way of framing the charge under Section 302 of the Indian Penal Code. 9. In view of that the learned court will not frame the charge against the petitioner under Section 304- B of the Indian Penal Code and the learned court will proceed by way of framing the charge under Section 302 of the Indian Penal Code. 9. In view of the above, the impugned order dated 20.09.2019, passed by the learned Additional Sessions Judge-II-FTC, Bokaro, in S.T. No. 278 of 2019, arising out of Chandankiyari P.S. Case No. 15 of 2018 corresponding to G.R. No. 231 of 2018, is modified to the above extent. However, it would not prevent the learned trial court from re- examining the question of framing the charge under Section 304-B of the Indian Penal Code against the petitioner, upon prima facie appraisal of evidence adduced before it. 10. This revision petition is allowed in above terms and disposed of. 11. Interim order, granted earlier, stands vacated.