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The aforesaid eventualities fell within the ambit of miscarriage of justice whereupon de novo trial is warranted.

46. Because of the fact that on account of grave illegality having been committed by the learned lower Court during conduction of trial leading to miscarriage of justice as held hereinabove. Though, Section 221 of the Cr.P.C. does permit to convict an accused even if he is not charged and is found legally permissible in terms of Section 464 Cr.P.C., but considering the fact that Section 304B I.P.C. as well as Section 302 I.P.C. lie on different pedestal, prescribing two distinct criterion for consideration and further, considering the principle decided by the Apex Court in ShamSaheb M. Multtani vs. State of Karnataka reported in (2001) 2 SCC 577, it has become abundantly clear that the appellants have to be given an opportunity to defend themselves. That being so, the same is set aside. Appeal is allowed. Matter is remitted back to the learned lower Court to proceed afresh in light of finding recorded hereinabove. Appellants are directed to be produced before the learned lower Court.