High Court Has the Power to Alter Charges and Convict Without Retrial: Appellate Division Observes
On 3 January 2024, a five-member Bench of the Appellate Division, headed by Chief Justice Obaidul Hassan, delivered the judgment in Chaitonya Sarkar v. The State and Another (Criminal Appeal No. 72 of 2019). The Appellate Division dismissed the criminal appeal filed by the accused and upheld the life imprisonment sentence imposed by the High Court Division. The full 21-page judgment was published on the Supreme Court’s website on 15 May 2024.
Background of the Case
On 2 October 2007, a case was filed at Motlab South Police Station in Chandpur against Chaitonya Sarkar for allegedly murdering his wife, Sanchita Rani, over a dowry demand. The informant was the victim’s father, Kartik Baidya.
According to the prosecution, Chaitonya Sarkar had been demanding Tk. 1 lakh as dowry from his wife since the beginning of their married life and had subjected her to physical abuse over the issue. On the morning of the incident, the accused’s father informed the victim’s father by telephone that Sanchita had been admitted to hospital due to illness. Subsequently, the informant and his wife went to the accused’s residence, where they found Sanchita’s dead body.
The defence, however, claimed that Sanchita had committed suicide and that the accused had been falsely implicated in the case.
Following investigation, the police submitted a charge sheet. After trial, the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur, on 19 June 2011, found Chaitonya Sarkar guilty under Section 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000, and sentenced him to death. The other accused were acquitted.
Thereafter, on 11 October 2017, the High Court Division rejected the Death Reference and dismissed the appeals filed by the accused. However, as the allegation of dowry demand was not proved, the High Court Division altered the conviction to one under Section 302 of the Penal Code, 1860, and commuted the death sentence to life imprisonment. The accused subsequently filed an appeal before the Appellate Division.
Submissions of the Defence Before the Appellate Division
The lawyers for the accused argued that since the allegation of murder arising out of a dowry demand had not been established, the High Court Division could not convict the accused under Section 302 of the Penal Code.
According to the defence, the case should have been remanded to the competent court for a fresh trial after framing a proper charge under the relevant legal provision.
The defence further argued that there was no eyewitness to the occurrence and that the conviction was based on circumstantial evidence and the post-mortem report. Therefore, the conviction and sentence were not legally sustainable.
The State, on the other hand, supported the judgments of the Tribunal and the High Court Division and prayed for dismissal of the appeal.
Observations of the Court
1. Medical Evidence Supporting Death by Strangulation
The Appellate Division examined the injuries mentioned in the post-mortem report along with the testimonies of the prosecution witnesses.
The opinion of the autopsy doctor was that Sanchita Rani had died due to asphyxia, shock and internal haemorrhage resulting from strangulation. The death was classified as homicidal in nature.
The Court also discussed the medical differences between hanging and strangulation. The horizontal ligature mark on the victim’s neck, the protrusion of her tongue and the injuries found during the post-mortem examination were consistent with death by strangulation.
The Court further observed that the victim was in the custody of her husband at the relevant time. Upon considering the testimonies of the witnesses, the post-mortem report and other circumstantial evidence, the Court found that the prosecution had successfully established the liability of the accused.
2. Conviction for Murder May Be Sustained Even if the Dowry Allegation Is Not Proved
The Appellate Division agreed with the observation of the High Court Division that there was no satisfactory evidence on record to establish the allegation of dowry demand against the accused.
However, failure to prove the allegation of dowry does not necessarily mean that the charge of murder is also unproved. Since the evidence established the accused’s liability for murder, the High Court Division did not commit any illegality by maintaining the conviction under Section 302 of the Penal Code, 1860.
3. High Court Division Has the Authority to Alter the Charge
The principal legal question before the Court was whether the High Court Division had the jurisdiction to alter a charge framed under Section 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000, to one under Section 302 of the Penal Code, 1860.
In this regard, the Appellate Division followed the decision in State v. Nurul Amin Baitha, reported in 75 DLR (AD) 187.
The Court observed that the powers of an appellate court are co-extensive with those of the original trial court. Accordingly, in appropriate cases, an appellate court may alter or amend a charge and finally dispose of the case.
Where such alteration does not cause prejudice to the accused, there is no necessity to remand the case for a fresh trial.
The Court further emphasized that procedural technicalities should not stand in the way of the administration of justice.
Final Decision of the Appellate Division
The Appellate Division dismissed the criminal appeal filed by Chaitonya Sarkar and upheld the life imprisonment sentence imposed by the High Court Division.
However, the accused was entitled to the benefit of Section 35A of the Code of Criminal Procedure, 1898. Accordingly, the period of custody, where applicable, would be adjusted in calculating the sentence. The accused would also be entitled to any remissions admissible under the Jail Code.
Legal Significance
Through this judgment, the Appellate Division reaffirmed several important legal principles:
- Dowry and murder charges are separately assessable: Failure to prove a dowry demand does not prevent a conviction for murder if sufficient evidence establishes the offence.
- Power to alter charges: The High Court Division, acting as an appellate court, may alter a conviction under the Nari-O-Shishu Nirjatan Daman Ain to one under Section 302 of the Penal Code in appropriate circumstances.
- Fresh trial is not always necessary: A case need not be remanded for retrial where alteration of the charge does not cause prejudice to the accused.
- Circumstantial and medical evidence: Even in the absence of eyewitnesses, consistent circumstantial evidence, medical findings and other supporting evidence may establish criminal liability.
Source: Supreme Court of Bangladesh, Appellate Division, Chaitonya Sarkar v. The State and Another, Criminal Appeal No. 72 of 2019, judgment dated 3 January 2024.
BD Law Post / Masum
