The main legal point established in the judgment is the distinction between murder under Section 302 IPC and culpable homicide not amounting to murder under Section 304 Part II IPC, based on the sudden nature of the incident and the absence of premeditation or cruelty in the accused's actions.

JUDGMENT

Partha Sarathi Sen, J. - The present appeal arises out of the judgment and order of conviction dated 17th February, 2009 and 20th February, 2009 passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Dinhata, Coochbehar in Sessions Trial No.2 (2) of 2008 arising out of Sessions Case No.384 of 2007, G.R Case No.143 of 2006, Dinhata Police Station Case No.136 of 2006 dated 7th May, 2006.

2. By the impugned judgment learned trial court found the accused guilty under Section 302 of Indian Penal Code and thus sentenced him to suffer rigorous imprisonment for life and also to pay fine of Rs.10,000/- and simple imprisonment for a further period of six (6) months. The accused felt aggrieved and thus preferred the instant appeal.

3. In order to dispose of the instant appeal, the facts leading to the initiation of Dinhata Police Station Case No. 136 of 2006 is required to be dealt with in a nutshell.

4. On 7th May, 2006, one Apurba Kumar Bose son of late Gyanendra Nath Bose, of Ward No. 1, Babupara, P.S Dinhata, District- Coochbehar lodged a written complaint with the I.C Dinhata P.S stating, inter alia, that on the said very day that is on 7th May, 2016 at about 7 A.M. his son- in-law Bablu Chandra Dey @ Bablu suddenly became excited and assaulted his wife (the daughter of the defacto complainant) by a wooden batam on her head at his own residential house at Mother Lane, Ward No.11 in Dinhata town. It is the further version of the defacto complainant that as a result of such severe blow, his said daughter sustained serious injuries on her head and she fell down on the earth and thereafter the accused sat on the chest of his wife and throttled her neck and as a result whereof his said daughter expired. It is the further version of defacto complainant that subsequently his grandchildren reported the entire incident to him and then and there he took his said daughter to hospital where the attending doctor declared the victim as dead. It is further contended that since on the very fateful day, he was busy in his election duty, some delay has been caused in lodging the FIR.

5. As discussed above, on the basis of the said written complaint, the aforesaid P.S case was started. Investigation was taken up and on completion of the same charge-sheet under Section 302 of the IPC was submitted against the accused. Since ACJM, Dinhata found the case is triable by the Court of Sessions, the instant case was committed to the learned Sessions Judge, Coochbehar and thereafter the said case was transferred to the learned trial judge for disposal.

6. Lower court record reveals that on perusal of the entire materials, learned trial court by his order date 25th February, 2008 framed charges under Section 302 of the IPC as against the accused Bablu Chandra Dey @ Bablu and thereafter the trial proceeded since the accused pleaded his innocence. Lower court record reveals further that in order to bring home the charges, the prosecution has examined as many as 17 witnesses in all and 8 documents have been exhibited including one material exhibit.

Lower court record reveals further that after considering the oral evidence of the prosecution witnesses and the documentary and material evidence and also after examining the accused under Section 313 of the Cr.P.C, learned trial court found that the charge as against the under Section 302 of the IPC has been duly proved by the prosecution and thus convicted the accused under Section 235 (1) of the Cr.P.C giving rise to instant appeal.

7. In support of the instant appeal learned Advocate for the appellant at the very outset draws attention of this Court to the impugned judgment. Attention of this Court is also drawn to the evidence of PW2. It is contended that while passing the impugned judgment, learned trial court has unnecessarily placed much reliance upon the evidence of PW2 who is the minor daughter of the appellant and the victim. It is contended that learned trial court while passin