The central legal point established in the judgment is the distinction between murder and culpable homicide not amounting to murder under the Indian Penal Code, and the application of exceptions to murder based on the accused's intention and knowledge.

JUDGMENT :

Sahidullah Munshi, J.

1. This appeal is against the judgment and order of conviction dated 29.05.2008 and sentence dated 30.05.2008 passed by the learned Additional Sessions Judge Jangipur, Murshidabad, in Sessions Trial No. 5 of May 2003 convicting the appellant under Section 323/302 of Indian Penal Code and thereby sentencing the appellant to pay a fine of Rs. 2000/- in default simple imprisonment for three months for committing offence under Section 323 of the Indian Penal Code and further sentencing the appellant to suffer rigorous imprisonment for life and to pay therewith a fine of Rs. 5000/- in default rigorous imprisonment for one year for committing the offence under Section 302 of the Indian Penal Code.

2. The above mentioned Sessions Trial case arose from Suti P.S. Case No. 8/2003 dated 17.01.2003 (G.R. 26 of 2003) which was initiated on the basis of a written complaint lodged by one Angura Bibi against her husband/accused appellant, Salam Sk, complaining inter alia that her husband committed murder of her minor son, aged about 11 months only. Police filed charge-sheet under Sections 323/302 IPC. Charge against the appellant Salam Sk was framed by the learned Court below under Sections 323/302 of Indian Penal Code. Contents of the charge were read over and explained to the appellant in Bengali to which he pleaded not guilty and claimed to be tried. However, the defence case, as it appears from the cross-examination of the prosecution's witnesses as well as from the examination of the accused under Section 313 of the Code of Criminal Procedure it can be ascertained that the accused claim to have been falsely implicated and that the victim child was suffering from illness and in course of massaging well the de facto complainant herself twisted her neck, thereby the victim died.

3. In a nutshell the prosecution case is that the wife of the appellant Angura Bibi had a quarrel with her husband on 16.01.2003 at about 7.00 pm when he came to her place and she complained of her husband of not maintaining her by providing food and clothing and that she refused to stay with her. On such narration the appellant assaulted Angura, snatched away eleven months old son from her custody at about 10.00 pm in that night and she was forced to go out to pass urine leaving her son in the custody of her husband. After Angura returned five-seven minutes later, she found that Asikul was groaning and blood was oozing out from his mouth and the appellant ran away from the room. Later PW2 disclosed to her mother (PW1) that the appellant throttled Asikul. PW1 thereafter, took the child to PW10 Dr. Monu (hostile) to prescribe medicine. The appellant ran away from the room, her elder daughter Mastura Khatoon told her that the appellant throttled Asikul. On Angura's crying some para people rushed at the spot and she took Asikul to Manu doctor with their help. Doctor prescribed medicine but expired at 5.00 am. Prosecution examined fifteen witnesses to prove the case.

4. From the Memo of Arrest it is evident that the appellant was arrested on 17.01.2003 at about 18.35 hours and since then he is in custody meaning thereby he has suffered 16 years in jail. Inquest was conducted by PW15 (Investigating Officer) in presence of PW1 (de facto complainant), PW8 (brother of PW1) and PW11 (scribe). Inquest report was marked as Exbt. 2.

5. Out of the fifteen witnesses de facto complainant (PW1) is the mother of the victim, PW2 is eye witness; PW5, PW6, PW8, PW9, PW12 and PW14 are the relatives of PW1. PW3 who is a neighbor was not examined by the Investigating Officer; PW4 (resident of nearby village) and PW10 (Dr. Monu) were declared hostile. PW7 (Autopsy Surgeon) while examined, deposed "On P.M. examination I found following facts:-

(1) Bruised mark over anterior surface of neck.

(2) Fracture - 2nd cervical vertebrae with collection of blood in the surrounding tissues.

In my opinion the death was caused due to shock and haemorrhage from above injuries whic