Culpable homicide not amounting to murder under Section 304 (Part II) is established when an accused, driven by a sudden domestic quarrel, causes death through acts performed with 'knowledge' of their likely fatal consequences, even in the absence of premeditated intent.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against the judgment dated 07.01.2009 and order of conviction and sentence dated 09.01.2009 under Section 304 (Part II) of the Indian Penal Code passed by the Learned Additional District and Sessions Judge, Fast Track Court No.4, Barasat, North 24 Parganas in Sessions Case No.31(6) 05/Session Trial No.01(4) 06 corresponding to Barasat P.S. Case No.78 of 2004 under Section 304 of the Indian Penal Code, convicting and sentencing the appellant under Section 304 (Part II) of the Indian Penal Code to suffer rigorous imprisonment for a period of 5 years and further to pay fine of Rs.1,000/, in default, to suffer imprisonment for six (06) months and period of detention, if any, undergone by the convict during pendency of investigation, enquiry and trial shall be set off with the period of sentence under Section 428 of the Code of Criminal Procedure.

2. The appellant, the widow of late Chhabed Ali, had been a permanent resident of Konkapur, Ichhapur Nilganj Gram Panchayat, P.S.- Barasat, District- North 24 Parganas, lived with her only daughter and son-in-law.

3. The prosecution case described on 15.02.2004 at 8:10 hrs., one Md. Innach Ali (PW-1), son of late Abdul Jabbar Ali of Konkapur, P.S.- Barasat, lodged a written complaint at the Barasat Police Station stating his cousin Md. Chhabed Ali, son of late Ali Ahammad of Konkapur under Ichhapur Nilgank Gram Panchayat, P.S.- Barasat, was married about 20 years ago used to be inebriated occasionally. There was a dispute between Chhabed Ali and his wife Masuda Bibi and Masuda Bibi, who incidentally assaulted Chhabed Ali with a bamboo stick. Chhabed Ali sustained injury on his person on the night of 14/15.02.2004 round about 12:00 hrs. Chhabed Ali became sick and was taken to his bed in the room by his wife Masuda Bibi. On the next morning Chhabed Ali was found lying dead.

4. A.S.I., Barasat Police Station, Sandip Kumar Panja (PW-8) recorded the case on the basis of complaint of Innach Ali (PW-1) written by one Md. Rauf Ali and initiated Barasat P.S. Case No.78/04 dated 15.02.2004 under Section 304 of the Indian Penal Code against the appellant.

5. On completion of investigation, charge-sheet was submitted by Rabindra Chandra Bhowmik, S.I. of Barasat Police Station (PW-9) under Section 304 of the Indian Penal Code against the appellant. The formal charge was framed against the appellant under Section 304 (Part I) of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.

6. During trial, nine witnesses were examined on behalf of prosecution and certain documents were marked as exhibits.

7. The Learned Advocate representing the appellant argued as follows:-

i. Several prosecution witnesses, namely PW-1 Innach Ali and PW-4 Mourjan Bibi, were related to the deceased and admittedly had inimical relations with the appellant thereby rendering their evidence doubtful and untrustworthy.

ii. The prosecution failed to examine the most vital witnesses, namely the daughter and son-in-law of the deceased, who were allegedly present at the time of the incident. The non-examination of these material witnesses weakened the prosecution case.

iii. The medical evidence did not support the prosecution version. The post-mortem report revealed only six superficial abrasions on the body of the deceased and no fracture or internal injury was found. Hence, the cause of death as alleged could not be established.

iv. The Learned Trial Court f