IMPORTANT POINT
Culpable homicide not amounting to murder established when the accused acted with knowledge that her actions could result in death, despite lacking intent to kill.

J UDGMENT :

KAUSHIK GOSWAMI, J.

Heard Mr. K. Bhattacharjee, learned Counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent.

2. This appeal is preferred against the judgment & order dated 25.07.2011, passed by the learned Additional Sessions Judge (FTC) No.2, Kamrup, Guwahati in Sessions Case No. 137(K)/2008 corresponding to G.R. Case No. 2774/05 of Chief Judicial Magistrates’ Court, Kamrup, Guwahati, whereby the appellant/accused was convicted under Section 304 (Part-II) of Indian Penal Code (hereinafter referred to as “ IPC ”) and sentenced to Rigorous Imprisonment for 3 years and to pay fine of Rs.1,000/-; in default to Simple Imprisonment for one month.

3. The brief case of the prosecution is that on 25.05.2005 at around 5 p.m. when the informant’s wife deceased Dalima Bibi had gone to the house of Tajima Bibi i.e. appellant/accused and confronted her about assaulting her son and daughter, a heated exchange of words had taken place between them and in the process the appellant/accused had allegedly administered a kick on the abdomen of the informant’s wife. It is the specific case of the prosecution that the deceased was 8 months pregnant at the time of occurrence and though she was taken to Guwahati Medical College Hospital, however, she died on 28.05.2005. Accordingly, an FIR was lodged and the Investigating Officer (PW-6) investigated the case and submitted the Charge-sheet against the appellant/accused under Section 302 of IPC . The prosecution had examined as many as 8(eight) PWs and defence had examined 1(one) witness.

4. The trial Court after hearing convicted the appellant/accused under Section 304 (Part-II) of IPC and sentenced there under. Situated thus, the present appeal has been preferred.

5. Mr. K. Bhattacharjee, learned Counsel for the appellant submits that there are inconsistencies in the testimonies of the eyewitnesses and therefore the said testimonies are not trustworthy and credential and hence the conviction based on such testimonies is liable to be set aside. He further submits that the informant (PW-1) has not explained in the FIR as whether the doctor who examined deceased had been informed about the incident. He further submits that it has clearly come out from the prosecution evidence that it was raining at the time of the incident and therefore the possibility that the deceased while going to the house of the appellant/accused which is at an embankment slipped due to the rain and fell on the ground for which she later on died cannot be ruled out. He further submits that in fact, the Post-mortem Report and the opinion of the Medical Officer support the said possibility. That being so, he submits that there are two views possible and therefore the view which is favorable to the accused is to be accepted and hence the conviction warrants interference.

6. Per contra, Mr. P. S. Lahkar, learned Additional Public Prosecutor, Assam submits that the testimonies of the eyewitnesses corroborate each other on all material particulars and therefore is trustworthy and wholly reliable. He further submits that minor exaggeration shall not discredit the version of the eyewitnesses and therefore the conviction warrants no interference from this Court. He further submits that it has clearly come out from the prosecution evidence that the accused had kicked the deceased on her abdomen when she was 8(eight) months pregnant and therefore she had the requisite knowledge of causing death to the deceased. In that view, he submits that an offence under Section 304 (Part-II) of IPC is clearly made out. He further submits that the medical evidence also corroborates the manner of assault as claimed by the prosecution. He therefore submits that the impugned judgment & order of conviction warrants no interference from this appellate Court.

7. I have heard both the learned Counsels appearing for the contending parties, and also perused t