JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 11.03.2004, passed by the learned Additional Session Judge (FTC), Bongaigaon, in Session Case No. 82 (B)/99, the three appellants, namely, Md. Samsul Sheikh (since deceased). Md. Yar Ali, and Md. Sarifuddin Sheikh @ Md. Salimuddin Sk, stand convicted under Section 304, Part II, IPC and each of them stand sentenced to undergo rigorious imprisonment for three years and pay a fine of Rs. 500/- and, in default of payment of fine suffer rigorious imprisonment for a further period of one month. The prosecution's case may, in brief, be described as under. That on the night of 28.12.1997, while Mofizul, son of Siraj Ali (since deceased), was enjoying 'Bhojbhat' (some sort of picnic) with his friends at backside of a tea-stall, Siraj Ali came their in angry mood, caught hold of Mofizul, and started assaulting him for having sold goat and, at that time, Siraj was holding a dagger in his hand. Having been informed about what Siraj was doing, accused Salim went running to the place of occurrence and, on arriving there, he, having found Siraj assaulting his son, Mofizul, and holding a dagger in his hand, tried to restrain Siraj, but Siraj asked him not to interfere. In the mean while, hearing the cries raised from the place of occurrence, accused Samsul (since deceased) and accused Yar Ali, too, came running to the place of occurrence and, all of them, having failed to restrain Siraj Ali from assaulting his son, they picked up pieces of firewood, which were lying near the place of picnic, and assaulted Siraj with the pieces of firewood. As a result of the blows, given by the pieces of fire wood, Siraj sustained injuries on his hand, feet and also on his head fell down on the ground. Accused Samsul and others, then, made arrangement for treatment of Siraj at Civil Hospital, Dhubri; but, on the way to Civil Hospital, Dhubri, he succumbed to his injuries. Thereafter, a First Information Report (in short, 'FIR') was lodge by Marium Begum, widow of the said Siraj Ali, alleging assault on her husband by the said three accused persons. Based on this FIR, Bijin Police Station Case No. 143/97, under Section 302/ 34, IPC, was registered against accused Md. Samsul Sheikh (since deceased), Md. Yar Ali and Md. Sarifuddin Sheikh @ Md. Salimuddin Sheikh. Based on this FIR, Bijin Police Station Case No. 143/97, under Section 302/ 34, IPC, was registered against accused Md. Samsul Sheikh (since deceased), Md. Yar Ali and Md. Sarifuddin Sheikh @ Md. Salimuddin Sheikh. During investigation, police held inquest over the dead body of Sirij and post-mortem examination was also performed on the said dead body. On completion of investigation, police laid a charge sheet against the said three accused persons under Section 302/ 34. 2. During trial, when a charge under Section 302, IPC read with Section 34, IPC was framed, the accused aforementioned pleaded not guilty there to. In support of their case, prosecution examined as many as six witnesses. The accused persons were, then, examined under Section 313, Cr PC and, in their examination aforementioned, they denied that they had committed the offence as alleged to have been committed by them, their defence being that of total denial. No evidence was, however, adduced by the defence. 3. While holding the three accused persons aforementioned not guilty of the offence charged with, that is, of the offence of murder under Section 302, IPC, the learned trial Court, having found that the accused were guilty of offence under Section 304, Part II, IPC, convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence, passed against them, the three accused persons preferred this appeal. However, during the pendency of the appeal, accused-appellant No. 1, namely, Samsul Sheikh, has died and this appeal has abated as far as accused-appellant, Samsul Sheikh, was concerned. The appeal has, therefore, remained alive so far as accused Md. Yar Ali and Md. Sarifuddin Sheikh are concerned. 4. I have heard Md. M.U. Mahmud, learned counsel for the accused-appellants, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 5. While considering the present appeal, it needs to be noted that there are four eye-witnesses to the occurrence, namely, PW 1, PW 3, PW 5 and PW 6, PW 6 being the son of deceased Siraj Ali. 6. Let me, first come to the evidence of PW 1. According to his evidence, on the night of occurrence, at about 9-00/9-30 p.m., when he was sitting in the tea-stall of one Samsul, a boy informed him that Sirij Ali (since deceased) was assaulting his son, Mofizul. 6. Let me, first come to the evidence of PW 1. According to his evidence, on the night of occurrence, at about 9-00/9-30 p.m., when he was sitting in the tea-stall of one Samsul, a boy informed him that Sirij Ali (since deceased) was assaulting his son, Mofizul. On being so informed, he (PW 1) rushed to the backside of the tea stall and found Siraj Ali assaulting his son, Mofizul, and, at that time, Siraj was holding a dagger in his hand. It is also in the evidence of PW 1 that when he (PW 1) tried to intervene, Siraj Ali restrained him saying that he (PW 1) should not interfere. PW 1 has also deposed that, in the mean while, accused Samsul, Salim and Yar Ali also arrived there and they assaulted Siraj Ali with pieces of firwood in order to protect Siraj's son and, as a result of the said assault, Siraj fell down on the ground, whereupon he (PW 1) took Siraj to his house ans asked accused Samsul to make arrangement for treatment of Siraj. PW 1 has further deposed that accused Samsul got Siraj hospitalized, at Bongaigaon, for his treatment and from there, while Siraj was being shifted to Civil Hospital, Dhubri, he died. 7. What transpires from the evidence of PW 1 is that Siraj was assaulting his son, Mofizul, holding a dagger in his hand and that PW 1 tried to interfere and save Mofizul, but Siraj restrained PW 1 from interfering, whereupon the three accused aforementioned came there and they assaulted Siraj with pieces of firewood in order to protect Siraj's son from the assault at the hands of his father, who was armed with a deadly weapon like dagger. 8. Leading support to the evidence of PW 1, PW 3 has deposed that, on the night of the occurrence, he, along with some boys of his village, had made arrangements for a 'Bhojbhat' (some sort of picnic) and they were cooking food at the back side of the tea stall of Samsul, where Siraj's son, Mofizul, too, was present. It is in the evidence of PW 3 that while they were so cooking food, Siraj came there, caught hold of his son, Mofizul, and started assaulting him for selling goat and that, at that time, Siraj Ali was holding a dagger in his hand. It is in the evidence of PW 3 that while they were so cooking food, Siraj came there, caught hold of his son, Mofizul, and started assaulting him for selling goat and that, at that time, Siraj Ali was holding a dagger in his hand. It is in the evidence of PW 3 that when Siraj was assaulting his son, the three accused persons came there and rescued Mofizul from the hands of the, deceased by assaulting Siraj. 9. In his cross-examination, PW 3 has clarified that Siraj Ali, while assaulting his son, was in drunken state and was shouting that he would kill his son. 10. Broadly in tune with the evidence of PW 1 and PW 3, PW 5 has deposed that, on the night of the occurrence, he, having heard hulla, rushed to place of occurrence and saw Siraj Ali assaulting his son, Mofizul, and though he (PW 5) asked Siraj Ali not to assault his son, Siraj Ali did not listen to him and, in the meanwhile, accused Yar Ali, who was present at the place of occurrence, called his uncle, Samsul, whereupon accused Samsul and accused Salim came running to the place of occurrence and accused Salim assaulted Siraj with a piece of fire wood. In his cross examination, PW 5 has stated that he saw Siraj Ali assaulting his son and that, at that time, Siraj was holding a dagger in his hand. 11. The evidence of PW 6, son of the deceased, is to the effect that, on the night of occurrence, he, along with some other boys of his village, arranged a picnic and, while they were cooking food at the back side of a tea stall, his father, Siraj, came there and assaulted him and, at that time, his father, Siraj, was holding a dagger in his hand and that while he was so assaulted, his uncle, Samsul, asked Siraj Ali not to assault him (PW 6), but Siraj did not pay any heed and accused Samsul, then, assaulted Siraj with a firewood and that accused Yar Ali also assaulted Siraj Ali with a piece of firewood and that he (PW 6) fled away from the place of occurrence out of fear. 12. 12. It is also necessary to note, while considering the evidence of PW 6, that PW 6 has deposed that accused had friendly relation with the deceased and that the accused person had taken the deceased for treatment when the deceased had sustained injuries. 13. So far as the informant (PW 7) is concerned, she has, admittedly, not seen the occurrence as she was not present at the place of occurrence. Her evidence is same as the evidence of PW 2 and, thus, her evidence as well as the evidence of PW 2 are nothing, but hearsay. What is, however, important to note in the evidence of PW 7 is that, she, too, has deposed that her husband had good relation with the accused persons. Thus, the accused persons not only had cordial relations with the deceased, but they even took the deceased to the hospital for treatment. 14. What surfaces from the above discussion of the evidence on records is that a group of boys had arranged a picnic in the village and, at the place of the picnic, at about 9-00/9-30 p.m., while those boy were cooking food, Siraj Ali arrived there in drunken state and started assaulting his son, Mofizul, on the ground that his son had sold his goat in the bazzar and that, while Siraj arrived at the place of occurrence and assaulted his son, he (Siraj Ali) was holding a dagger in his hand. Witnessing the dangerous scene, not only accused Yar Ali, who was present there, tried to restrain Siraj Ali from assaulting his son (PW 6), but even PW 1 and others tried to restrain Siraj Ali. However, they all were asked by Siraj Ali not to interfere and, on accused yar Ali raising cries, accused Samsul and accused Salim came running and all three of them, then, assaulted Siraj Ali with pieces of fire wood lying at the place of occurrence. It is also in the evidence on record that the accused persons had picked up the pieces of fire wood lying at the place, where food was being cooked. This shows, as rightly pointed out by the learned trial Court, that the accused persons had assaulted Siraj Ali in order to save his son from being injured or killed. It is also in the evidence on record that the accused persons had picked up the pieces of fire wood lying at the place, where food was being cooked. This shows, as rightly pointed out by the learned trial Court, that the accused persons had assaulted Siraj Ali in order to save his son from being injured or killed. The learned trial Court has further held that Siraj Ali had been assaulted by the three accused persons in furtherance of their common intention to assault Siraj. 15. What needs to be, now, noted is that the common intention, as the learned trial Court has itself ascertained, was to assault Siraj Ali in order to save Siraj's son from being harmed. Thus, the assault on Siraj Ali, at the hands of the accused persons, was aimed at saving the son of the deceased Siraj Ali. The learned trial Court has, however, found the accused-appellants guilty under Section 304, (Part II), IPC. Can this conviction be sustained? 16. While considering the conviction of the accused appellants, under Section 304, (Part-II), IPC, it needs to be pointed out that section 304, (Part-II), IPC is attracted, when a person commits culpable homicide not amounting to murder, if the act is done with knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 17. A person, in order to be held liable under Section 304, (Part-II), IPC, must, therefore, be held to have assaulted another person with the knowledge that the assault was likely to cause death or the person assaulting must have had the knowledge that the injury was likely to cause death of the injured. In the present case, the common intention as ascertained by the learned trial Court, was to assault Siraj Ali in order to prevent him from causing any physical harm to his son (PW 6). The post-mortem examination, conducted on Siraj's dead body, shows that Siraj had sustained an abrasion on his upper right arm and another abrasion on his left leg. These two injuries were, admittedly, simple in nature. However, what proved to be fatal was the injury caused on the occipital region of his head, which was bone deep, and the shock and hemorrhage, resulting from the said injury on the head, caused the death of Siraj. 18. These two injuries were, admittedly, simple in nature. However, what proved to be fatal was the injury caused on the occipital region of his head, which was bone deep, and the shock and hemorrhage, resulting from the said injury on the head, caused the death of Siraj. 18. There is nothing in the evidence on record to show as to who had caused the injury on the occipital region of the said deceased. There is, admittedly, no evidence to indicate that any of the accused had intent ended to cause death of said deceased. In the absence of any evidence, showing as to who had given the blow on the head of the deceased, which proved to be fatal, none of the three accused could have been legally held to have had assaulted Siraj Ali with the knowledge that the assault was likely to cause his death. It may be reiterated that, in order to sustain a conviction under section 304(2), a person must be held to have, at least, the knowledge that the injury was likely to cause death. 19. In the present case, there is no evidence, as already indicated above, as to who had given the fatal blow. The fatal blow could not have, therefor, been attributed to any of three accused appellants, particularly, when, according to the learned trial Court itself, the accused merely intended to assault Siraj Ali in order to save his son. The learned trial Court could not have, therefore, held that the accused had the knowledge that the injury was likely to cause death, when it is not known as to who had given the fatal blow and when there is no indication from the evidence on records that the three accused had shared a common intention to assault the deceased on his head; more so, when, even the learned trial Court has not come to the conclusion that any of the accused intended to cause Siraj's death. 20. Situated thus, it becomes clear that, in the absence of any evidence attributing the fatal blow to any of three accused persons, none of the three accused could have been held liable for commission of offence under Section 304 (Part-II), IPC or Section 324, IPC. 20. Situated thus, it becomes clear that, in the absence of any evidence attributing the fatal blow to any of three accused persons, none of the three accused could have been held liable for commission of offence under Section 304 (Part-II), IPC or Section 324, IPC. The three accused persons could not have been held to guilty of offence even under Section 323, IPC in as much the assault by the three accused persons on Siraj was to save Siraj's son from being seriously hurt or even killed. In the circumstances as discussed here in before, no case of conviction under Section 304, (Part-II), IPC or under any other penal provisions can be said to have been made out against the accused appellants. 21. In the result and for the reasons discussed above, this appeal succeeds. The accused appellants are held not guilty of the offence under Section 304, (Part-II), IPC and/or any other penal provisions and they are acquitted of offence under Section 304, (Part-II), IPC. The sentence, passed against them, is also here by set aside. 22. With the above observations and directions, this Criminal appeal stands disposed of. Send back the LCR.