IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION

      Present:

Mr. Justice Obaidul Hassan, Chief Justice                     Mr. Justice M. Enayetur Rahim

                    Mr. Justice Md. Ashfaqul Islam

                    Mr. Justice Md. Abu Zafor Siddique

                    Mr. Justice Jahangir Hossain

CRIMINAL APPEAL NO.72 OF 2019

(From the judgment and order dated 11.10.2017 passed by the High Court Division in Death Reference No.38 of 2011 with Criminal Appeal No.3787 of 2011 and Jail Appeal No.147 of 2011).

Chaitonya Sarkar  ……..….Appellant

           -Versus-

The State and another  .…..….Respondents

For the appellant  :  Mr. Shaikh Azmol Hayat, Advocate with

Mr.  Hamidur  Rahman,  Advocate, instructed  by  Mr.  Md.  Nurul  Islam Chowdhury, Advocate-on-Record.

For the respondent  :  Mr. Md. Sarwar Hossain, Deputy Attorney No.1  General  with  Mr.  Mohammad  Saiful

Alam,  Assistant  Attorney  General, instructed by Mr. Haridas Paul, Advocate- on-Record.

For the respondent  :  Not represented.

No.2

Date of hearing and  :  The 03rd day of January, 2024

judgment

JUDGMENT

Obaidul Hassan, C.J. This Criminal Appeal by leave granting order dated 15.07.2019 in Civil Petition for Leave to Appeal No.148 of 2018 is directed against the judgment and order of conviction and sentence passed by the High Court Division on 11.10.2017 in Death Reference No.38 of 2011 heard analogously with Criminal Appeal No.3787 of 2011 and Jail Appeal No.147 of 2011 arising out of Motlab South Police Station Case No.03 dated 02.10.2007 corresponding to

G.R. No.90 of 2007 and Nari-O-Shishu Nirjatan Daman Case No.01 of 2008 dismissing the appeal converting the conviction of the appellant awarded under Section 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (for short Nari-O-Shishu Ain) to one under Section 302 of the Penal Code, 1860 and thereby commuting the sentence of the appellant from death penalty to imprisonment for life.

The  prosecution  case,  in  short,  is  that  one  Kartick  Baidya lodged an ejahar with the Motlob South Police Station being Motlob South  Police  Station  Case  No.03  dated  02.10.2007  under  Sections 11(Ka)/30  of  Nari-O-Shishu  Ain  alleging,  inter  alia,  that  Sanchita Rani,  daughter  of  the  informant  was  married  to  the  accused Chaitonya  Sarker.  After  marriage  they  were  living  together  as husband and wife, but from the very beginning of their conjugal life the  accused-appellant  had  been  demanding  dowry  amounting Tk.1,00,000.00 from the victim Sanchita Rani and used to assault her. On  02.10.2017  at  about  09:00  a.m.  one  Kanailal,  the  father  of  the accused told the informant over mobile phone that due to physical illness  the  victim  was  got  admitted  into  the  Motlab  Hospital. Thereafter, the informant along with his wife came to the house of the accused-appellant on the same day at 1.00 p.m. and found the dead body of the victim therein. On query to the inmates of the house they told that the victim committed suicide.

The  Investigating  Officer,  after  completing  investigation, submitted Charge Sheet being No.88 dated 11.11.2007 under Section 11(Ka)/30 of Nari-O-Shishu Ain against the convict-appellant and others.  The  case  was  eventually  transferred  to  the  Nari-O-Shishu Nirjatan Daman Tribunal No.2, Chandpur (for short Tribunal) for trial and charge was framed against the convict-appellant and others under the aforesaid provisions of law. To substantiate the case, the prosecution examined as many as seven witnesses. Upon closure of the  evidence  of  the  prosecution  witnesses,  the  convict-appellant along with others were examined under Section 342 of the Code of Criminal Procedure to which they pleaded innocence. They informed the Court that they would not adduce any evidence in support of their plea.

The  defence  case,  as  it  reveals  from  the  trend  of  cross- examination  is  that  the  convict-appellant  along  with  others  were innocent and the victim committed suicide, but they had been falsely implicated in this case.

Tribunal  after  considering  the  evidences  and  materials  on record vide judgment and order dated 19.06.2011 found the convict- appellant guilty and sentenced him to death penalty under Section 11(Ka) of Nari-O-Shishu Ain and acquitted the rest of the accused persons. Death sentence proceeding has been submitted to the High Court  Division  by  way  of  Reference  by  the  Tribunal  and  the

Reference  has  been  noted as  Death Reference  No.38  of  2011.  The convict-appellant  also  preferred  Criminal  Appeal  No.3787  of 2011 and Jail Appeal No.147 of 2011 before the High Court Division.

The  High  Court  Division  vide  judgment  and  order  of conviction  and  sentence  dated  11.10.2017  rejected  the  Death Reference  and  dismissed  the  Criminal  Appeal  and  Jail  Appeal. However, the High Court Division converted the conviction of the appellant from Section 11(Kha) of Nari-O-Shishu Ain to one under Section  302  of  the  Penal  Code,  1860  and  the  death  sentence  was commuted to imprisonment for life. 

Being  aggrieved  by  and  dissatisfied  with  the  impugned judgment  and  order  of  conviction  and  sentence  dated  11.10.2017 passed by the High Court Division, the convict-appellant filed the Criminal Petition  for  Leave  to  Appeal  No.148  of 2018  before  this Division and leave was granted on 15.07.2019 and hence the instant Criminal Appeal.

Mr. Shaikh Azmol Hayat with Mr. Hamidur Rahman, learned Advocates appearing for the convict-appellant took us through the First Information Report(FIR), the Inquest Report, the Post Mortem Report, the Charge Sheet, testimonies of the witnesses, the judgments and  orders  passed  by  the Tribunal and  the  High  Court  Division, connected materials on record submits that the High Court Division to consider the judgment and order of conviction and sentence is bad

in law as well as in facts and, as such, the impugned judgment and order of conviction and sentence is liable to be set aside. The learned Counsel for the appellant contend next that the High Court Division came to a finding that demanding of dowry resulting the murder of the  victim  is  not  proved  and,  thus,  set  aside  the  sentence  under Section  11(Ka)  of  Nari-O-Shishu  Ain  and  under  the  said circumstances, the High Court Division should have sent back the record  for fresh  trial  to  the  appropriate  Court  having jurisdiction upon framing charge under proper legal provisions, but the High Court Division wrongly and illegally convicted the appellant under Section 302 of the Penal Code and sentenced him imprisonment for life. The learned Counsel argue further that there is no eye witness of the occurrence and the alleged conviction and sentence is based on circumstantial evidence along with post mortem report which cannot be treated as conclusive evidence to prove the guilt of the appellant, but the High Court Division failed to consider that the judgment and order of conviction and sentence is based on surmise and conjecture and not on legal evidence and, as such, the impugned judgment and order of conviction and sentence is liable to be scraped.

In  opposition  Mr.  Md.  Sarwar  Hossain,  learned  Deputy Attorney  General  with  Mr.  Mohammad  Saiful  Alam,  Assistant Attorney General appearing for the respondent No.1 put forth their submissions supporting the judgment and order of conviction and

sentence passed by the High Court Division and the Tribunal and prayed for dismissal of the appeal.

Now, to ascertain whether the prosecution has been able to prove the charge against the convict-appellant let us examine and analyze the depositions of the witnesses adduced by the prosecution.

P.W.1, Kartik Baidya, the informant and father of the victim Sanchita stated in his deposition that the victim was married to the accused-appellant three months earlier of the date of occurrence. At the time of marriage ceremony he gifted gold ornaments weighing five  bhories  to  the  victim  and  gave  cash  money  amounting Tk.55,000.00  to  the  accused  and  also  spent  Tk.2.5-3.00  lac  in  the marriage. On 02.10.2007 in the morning the father of the accused- appellant  told  the  informant  that  his  daughter  was  admitted  to hospital due to serious illness. Soon after the informant started for the house of the accused, but on the way he came to know that the victim was killed by the accused persons. The accused persons had been demanding  dowry  amounting  Tk.1,00,000.00  from  the  victim  on several occasions, but on her failure to pay the dowry the accused persons killed the victim. On arrival of the informant at the house of the accused-appellant at about 2:00 p.m. he found the dead body of the victim at the door of the house. Subsequently, the police came to the  spot  and  preparing  inquest  report,  took  his  signature  on  the report and took the dead body to the police station. The informant

filed ejahar with the police station. This witness identified the FIR and his  signature  thereon  as  Exhibits-1  and  1/1  respectively  and  also identified the inquest report and his signature thereon as Exhibits-2 and 2/1 respectively.

During cross-examination he stated that within three months of marriage the victim came to his house twice to visit them. He did not assault the victim when she came to his house last time. He knew Kanailal the son of his neighbour Hiralal. He did not state in the FIR about getting the victim with Kanai at 9 O’clock in the night. He denied the defence suggestion to the effect that everyone knew about the love affair of the victim with Kanailal. He further denied the suggestion  that  the  accused-appellant  declined  to  take  the  victim with him in her in-law’s house last time the victim visited the house of the informant. He further denied the suggestion that the victim solemnized her marriage with Kanailal at Kalibari. He further denied the defence suggestion that the victim committed suicide and the accused was implicated in the case falsely. This witness stated in his cross-examination that he found the tongue of the victim coming out of her mouth.

P.W.2,  Kanika  Rani,  the  mother  of  the  victim  stated  in  his deposition that the accused persons killed his daughter for dowry amounting Tk.1,00000.00. The father-in-law of the victim informed them that the victim was sent to the hospital for physical illness.

Subsequently, on going to the house of the accused-appellant found the  dead  body  of  the  victim.  The  accused  killed  the  victim  by strangulation with saree.

During  cross-examination  she  stated  that  accused  Chaitanya and  the  victim  went  to  visit  their  house  4/5  days  before  the occurrence. She further stated that the victim had no relation with Kanailal, the son of Hiralal. She denied the defence-suggestion that her daughter had illicit relation with Kanailal and she saw the victim with  Kanailal  and  informed  the  said  fact  to  her  husband,  who assaulted  the  victim  for  the  said  reason.  She  further  denied  the suggestion that the victim committed suicide and the accused was implicated in the case falsely.

P.W.3,  Md.  Monir  Hossain  stated  in  his  deposition  that  the police made inquest of the dead body and prepared inquest report and  he  put  his  signature  thereon.  This  witness  identified  his signature in the inquest report as Exhibit-2/2. The police seized some alamats  in  his  presence  and  prepared  seizure  list  and  he  put  his signature  thereon.  This  witness  identified  the  seizure  list  and  his signature therein as Exhibits-3 and 3/1 respectively.

During cross-examination he stated that he did not read the seizure  list  and  post  mortem  report  before  putting  his  signatures therein.

P.W.4, Abdul Matin Farazi deposed that he put his signatures in the seizure list and the inquest report. This witness identified his signature in the inquest report and the seizure list as Exhibits-2/3 and 3/2 respectively.

During  cross-examination  he  stated  that  he  did  not  know anything about the occurrence.

P.W.5,  Dr.  Azharul  Islam,  stated  in  his  deposition  that  on 03.10.2007 while he was posted as Medical Officer at Chandpur Sadar Hospital held autopsy upon the cadaver of victim Sanchita Rani and

gave the following opinion:

“Death in my opinion was due to asphyxia, shock and internal hemorrhage  resulting  from  strangulation  which  was  ante mortem and homicidal in nature.”

This  witness  identified  the  post  mortem  report  and  his

signature therein as Exhibits-4 and 4/1 respectively.

During cross-examination he stated that internal hemorrhage may cause without injury. The injuries were caused 24-36 hours back. He denied the defense-suggestion that he prepared the post mortem report being influenced by the prosecution.

P.W.6, Doyal Baidya stated in his deposition that on 02.10.2007 at about 09:00 a.m. hearing about the illness of the victim went to the house of the accused-appellant and found the dead body inside. He came to know that the accused persons murdered the victim for the demand of dowry. He found the victim’s saree wrapped around her

throat.  The  accused  persons  fled  away  leaving  the  dead  body unattended.

During cross-examination he stated that the father of the victim first knew about illness of victim over phone. He stated further that the victim had no love affair with Kanailal. He denied the defense- suggestion that he did not go to the place of occurrence and the victim had love affair with Kanailal. He further denied the suggestion that he deposed falsely.

P.W.7,  Md.  Shajahan  Miah,  Sub-Inspector  of  Police  and  the Investigating  Officer  stated  in  his  deposition  that  during investigation  he  visited  the  place  of  occurrence  and  recorded  the statements of witnesses under Section 161 of the Code of Criminal Procedure and prepared the sketch map and index and also prepared the inquest report of the cadaver of victim. He sent the dead body of the victim to the morgue for autopsy. He identified the sketch map, index  and  his  signatures  therein  as  Exhibits-5,  5/1,  6,  6/1 respectively. He also identified his signature in the inquest report as Exhibits-2/4.  He  also  seized  some  alamats  including  a  saree  and prepared the seizure list. This witness identified the said seizure list and  his  signature  therein  as  Exhibits-7,  7/1  respectively.  He identified the alamats as material Exhibits I-III. After investigation he submitted charge sheet against the accused persons.

During cross-examination he stated that he untied the knot of saree on the throat of the dead body of victim and found no sign of hanging.  He  denied  the  defense-suggestion  that  it  was  a  case  of suicide or that he submitted a false report implicating the accused persons in this case.

These are the witnesses adduced by the prosecution. Out of seven  witnesses  P.W.1  is  the  informant  and  father  of  the  victim Sanchita Rani, P.W.2 is the mother of the victim, P.Ws.3 & 4 are the witnesses of inquest report, P.W.5 is the doctor performing autopsy of the dead body while P.W.7 is the Investigating Officer and P.W.6 is the local witness. 

It is undisputed that the dead body of the victim Sanchita Rani was found in the house of the convict-appellant. P.W.1 stated in his deposition that he found the dead body of the victim in the house of the convict-appellant. P.W.1 identified his signature in the inquest report as Exhibit-2/1. P.W.2 stated in her deposition that he saw the dead body of the victim in the house of the convict-appellant. P.W.3 is one of the witnesses to the inquest report and he identified his signature in the inquest report as Exhibit-2/2. P.W.4 also identified his signature in the inquest report as Exhibit-2/3. P.W.6 deposed that he saw the victim’s dead body in the house of the convict-appellant. P.W.7 is the Investigating Officer, who prepared the inquest report of

the  victim  and  he  identified  the  inquest  report  and  his  signature therein as Exhibits-2 and 2/4 respectively.

Now let us examine the post mortem report of the dead body of victim.  P.W.5  is  the  Doctor,  who  conducted  autopsy  upon  the cadaver of the victim and he identified the post mortem report and his signature therein as Exhibits-4 and 4/1 respectively. P.W.5 gave

the following opinion in the post mortem report:

“Death in my opinion was due to asphyxia, shock and internal hemorrhage  resulting  from  strangulation  which  was  ante mortem and homicidal in nature.”

At this juncture, it is congenial to know the difference between

a death due to hanging and strangulation. The differences between hanging and strangulation is well described in world-acclaimed book titled ‘Modi’s Medical Jurisprudence and Toxicology’, 23rd edition at page 583-584 which is extracted under-

“The differences between hanging and strangulation are given below in tabulated form:

Hanging  Strangulation

1  Mostly suicidal.  1 2  Face  Usually pale and  2

petechiae rare.

3  Saliva    Dribbling  out  3

of the mouth down on the chin and chest.

4  Neck  Stretched  and  4

Mostly homicidal.

Face   Congested,  livid and  marked  with petechiae.

Saliva No  such dribbling.

Neck   Not so.

elongated  in  fresh

bodies.

5  External  signs  of  5  External  signs  of asphyxia,  usually  not  asphyxia,  very  well well marked.  marked  (minimal  if death due to vasovagal

and  carotid  sinus

effect).

6  Bleeding from the nose,  6  Bleeding from the nose

mouth  and  ears  very  and ears may be found. rare.

7.  Ligature mark      7  Ligature mark    

Oblique,  non- Horizontal or transverse continuous  placed  up  continuous,  round  the in the neck between the  neck,  low  down  in  the chin and the larynx, the  neck below the thyroid, base  of  the  groove  or  the  base  of  the  groove furrow  hard,  yellow  or furrow being soft and and parchment-like.  reddish.

8  Abrasions  and  8  Abrasions  and

ecchymoses  round  ecchymoses  round about the edges of the  about  the  edges  of  the of  the  ligature  mark,  ligature mark, common. rare.

9  Subcutaneous  tissues  9  Subcutaneous  tissues

under the mark   under the mark  White,  hard  and  Ecchymosed.

glistening. 

10  Injury to the muscles of  10  Injury to the muscles of the neck    Rare.  the neck    Common.

11  Carotid  arteries,  11  Carotid  arteries,

internal coats ruptured  internal coats ordinarily in  violent  cases  of  a  ruptured.

long drop.

12  Fracture  of  the  larynx  12  Fracture  of  the  larynx

and trachea  Very rare  and  trachea Often and that too in judicial  found also hyoid bone. hanging.

13  Fracture-dislocation  of  13  Fracture-dislocation  of

the cervical vertebrae  the cervical vertebrae Common  in  judicial  Rare.

hanging.

14  Scratches,  abrasions  14  Scratches,  abrasions

and bruises on the face,  fingernail  marks  and neck and other parts of  bruises on the face,

the body  neck and other parts of Usually not present.  the  body Usually

present.

15  No  evidence  of  sexual  15  Sometimes  evidence  of

assault.  sexual assault.

16  Emphysematous bullae  16  Emphysematous  bullae on   the  surface  of  the  on  the  surface  of  the lungs    Not present.  lungs      May  be

present.

In view of the above it is transparent that in case of hanging ligature mark is seen oblique, non-continuous placed up in the neck between the chin and the larynx while in case of strangulation the ligature mark is seen horizontal or transverse. In the inquest report (Exhibit-2) P.W.7, S.I. Md. Shahjahan Mia stated that while untying

the knot of saree he found a horizontal ligature mark on the neck of the  victim  from  which  it  is  clear  that  the  death  was  caused  by strangulation.

The inquest report states that a long blood stain was found on the  upper  part  of  the  left  thigh  of  the  victim  which  bears  the testimony  of  homicidal  strangulation.  Since  in  homicidal strangulation bleeding from the nose and ears may be found.

Again, in case of strangulation the tongue of the victim usually comes out of the mouth, but P.W.1 stated in his cross-examination that he saw the tongue of the victim out of her mouth which is a sign of homicidal strangulation. Furthermore, in hanging saliva is found dribbling out of the mouth of the victim down on the chin and chest while in case of strangulation no saliva was found dribbling. In the case in hand, the inquest report did not mention about the dribbling of saliva out of the mouth of victim for which it can be termed as the case of homicidal death by strangulation.

In the Post Mortem Report the following injuries were found:

“One  ecchymosis  over  the  mid  abdomen  size  6”x  4”.  One swelling over the both parietal region in the head size 3”x2”. One almost circular ligature mark high up of the neck.”

Such injuries clearly indicate the case of strangulation inasmuch as in case  of  strangulation  scratches,  abrasions  fingernail  marks  and bruises on the face, neck and other parts of the body remain usually present.

In  view  of  the  discussion  made  above,  we  are  led  to  the conclusion that the victim was killed by strangulation by the convict- appellant. It is evident from the record of the case that on the relevant date and time of occurrence the victim was under the custody of her husband,  the  convict-appellant  and  as  such  he  cannot  escape  his liability of killing the victim.

It  is  evident from  the  record that the P.Ws.1-7 corroborated each other supporting the prosecution case. All P.Ws. had been cross- examined by the defence elaborately but nothing could be elicited to shake their credibility in any manner whatsoever. The Tribunal on correct appreciation of the evidences on record convicted the convict- appellant  and  the  High  Court  Division  also  lawfully  upheld  the conviction  of  the  appellant  and  as  such  we  do  not  find  any perversion in the impugned judgment and order of the High Court Division.

However, on going through the impugned judgment and order of the High Court Division it appears that the High Court Division altered  the  conviction  of  the  convict-appellant  one  under  Section 11(Ka) of Nari-O-Shishu Ain to the one under Section 302 of the Penal Code on the observation that the prosecution had not been able to prove  the  allegation  against  the  convict-appellant  of  demanding dowry from the victim. We endorse the aforesaid observation of the High Court Division as well and as such the said observation does

call for interference by this Division since there is no satisfactory evidence available on the record against the convict-appellant about demanding of dowry from the victim.

Now  a  pertinent  question  arises  whether  the  High  Court Division has the jurisdiction to convert the conviction of an accused under Section 11(Ka) of Nari-O-Shishu Ain to one under Section 302 of the Penal Code. The said issue has already been fairly settled by this Division in the case of State vs. Nurul Amin Baitha reported in 75 DLR(AD)187. The relevant portion of the case is extracted below:

“17. In order to convict a person under minor offence, though  charged  under  major  offence,  the  ingredients constituting the offence under the minor offence should be common as that of the ingredients constituting major offence and to convict him, some of the ingredients of the major offence could be absent. Since the offence under Sections 11(Ka)/30 of the Ain is a graver offence wherein the charge as to killing of the wife has been framed along with charge of demanding dowry than that of the case under Section 302/34 where the charge of killing of any person is usually be brought against accused, we are of the view that the alternation of charge from 11(Ka) of the Ain  to  Section  302  of  the  Penal  Code  will  not  cause prejudice to the accused.

18. The interest of justice should be the ultimate goal in the use of this power. In Thakur Shah V. Emperor AIR 1943 PC  192;  the  Privy  Council  said,  “The  alteration  or addition is always, of course, subject to the limitation that

no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the  charge  made  or  is  not  given  full  opportunity  of meeting it and putting forward any defence open to him on  the  charge  finally  preferred.”  The  purpose  behind providing  Courts  with  the  right  to  alter  charges  is  to avoid a miscarriage of justice.

19.     Joint  trial  of  different  offences  under  different enactments does not vitiate proceedings in the absence of prejudice to  the accused, particularly  when  the special enactment authorizes the Court to try different offences jointly  where  a  charge  is  framed  for  one  offence,  but offence committed is found to be some other than the one charged, provided, the same facts can sustain a charge for the latter offence, the accused can be convicted for such an offence. Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal.
20.     The Appellate Court’s jurisdiction is co-extensive with that  of  the  trial  Court  in  the  matter  of  assessment, appraisal and appreciation of the evidence and also to determine the disputed issues.
21.     The  High  Court  Division  has  a  wide  appellate jurisdiction over all Courts and Tribunals in Bangladesh inasmuch as it may, in its discretion, from any judgment and  order  of  conviction  and  sentence  passed  by  any Court  of  Sessions  and  Tribunal.  When  the  Tribunal  is empowered to try a case as Tribunal as well as Court of Sessions, we are of the view that it could not be without jurisdiction in view of the facts and circumstances of the

particular  case  to  conform  the  judgment  and  order  of conviction  under  Section  11(Ka)  converting  or  altering charge to one under Section 302 of the Penal Code. The technicalities must not be allowed to stand in the way of importing justice. It is observed that depending on the facts and circumstances of a particular case in the larger interest  of  justice  the  Court  may  overlook  a  mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court may pass any appropriate order which will serve the interest of justice best. Procedure has always been viewed as the handmaid of justice and not meant  to  hamper  the  cause  of  justice  or  sanctify miscarriage of justice. It is intended to achieve the ends of justice and normally, not to shut the doors of justice for the parties at the very threshold.

22. Accordingly, we find substances in the submission of the  learned  Attorney  General  that  the  finding  of  this Division that High Court Division is not authorized to convert the conviction under Sections 11(Ka)/30 of the Ain into one under Sections 302/34 of the Penal Code is not correct view, hence such observation is liable to be reviewed.
23. Our final conclusion is that the High Court Division as an  Appellate  Court  has  the  jurisdiction  to  convert  the conviction  under  Section  11(Ka)/30  of  the  Ain  to  one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case. An Appellate Court has the same power as that of the trial Court i.e. the Tribunal and  therefore,  as  an  Appellate  Court  the  High  Court

Division in the present case is competent to convert the conviction to secure the ends of justice. Undoubtedly such an  Act  of  the  High  Court  Division  shall  in  no  way prejudice  the  accused  and  State;  otherwise  order  of remand shall entail unnecessary time, money and energy due  to  fruitless  or  useless  prosecution  and  defence. Similarly, the Tribunal which is created under the Ain shall be deemed to be the Court of Sessions of original jurisdiction  and,  is  entitled  to  alter/amend  the  charge framed  under  Section  11(Ka)  of  the  Ain  to  one  under Section 302 of the Penal Code and to dispose of the case finally  in  accordance  with  law  if  the  accused  is  not otherwise prejudiced.”

(underlines supplied by us)

The settled proposition of law as evident from the above is that the High Court Division as an appellate Court is entitled to alter or amend the charge framed against the accused under Section 11(Ka) of Nari-O-Shishu Ain to one under Section 302 of the Penal Code and to dispose of the case finally in accordance with law since the appellate Court has the same power as that of the trial Court and the case is not required to be sent to the Court of competent jurisdiction for holding trial afresh. In the case in hand, although the High Court Division upheld the conviction of the convict-appellant passed by the Tribunal but altered the sentence under 11(Ka) of Nari-O-Shishu Ain to one under Section 302 of the Penal Code, 1860 and in doing so the High Court Division did not commit any illegality. Since the offence under

Section 11(Ka) of Nari-O-Shishu Ain wherein the charge as to killing of the wife along with charge of demanding dowry framed against the convict-appellant is a graver offence than that of the charge under Section 302 of the Penal Code for committing murder of the victim and, as such, we are of the view that the alteration of charge against the convict-appellant from Section 11(Ka) of Nari-O-Shishu Ain to Section 302 of the Penal Code will not cause prejudice to him.

In  the  result,  the  instant  Criminal  Appeal  preferred  by  the convict-appellant is dismissed without any order as to costs.

The conviction and sentence of life imprisonment awarded to the appellant by the High Court Division is maintained. However, the convict-appellant will get the benefit of Section 35A of the Code of  Criminal  Procedure  in  calculation  of  his  sentence  and  other remissions as admissible under the Jail Code.

C.J.

J.

J.

J.

J.

The 03rd day of January, 2024

RRO; Total words-4,782