JUDGMENT : Tarlok Singh Chauhan, J. The appellant has been convicted and sentenced by the learned Additional Sessions Judge, Hamirpur, H.P., vide impugned judgment and order dated 31.8.2016/5.9.2016 in Sessions Trial No.5/2015, to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and in case of default of payment of fine, to further undergo rigorous imprisonment for six months and aggrieved thereby has filed the instant appeal. 2. The prosecution case, in brief, is that on 26.10.2014 at about 6.35 A.M., PW7 Pritam Singh, Vice President of Gram Panchayat, Bir Bagehra telephonically informed the police of Police Station Sujanpur vide rapat, Ext.PW16/A that one Kashmir Singh, son of Gopal Dass, resident of Bir had been done to death by Sunny Kumar, Krishan Kumar etc. and the dead body was sent to CHC Sujanpur. On receiving this information, a team headed by PW18 ASI Khem Singh was sent to village Bir Bagehra and another team headed by PW15 ASI Sham Lal to CHC Sujanpur. PW18 ASI Khem Singh on visiting village Bir Bagehra met the wife of deceased namely Smt. Piaro Devi, who vide statement, Ext.PW1/A reported that on 25.10.2014 at about 8.00 P.M., her brother-in-law Krishan Kumar telephonically called her husband Kashmir Singh (deceased) to his house to treat some one. On this, Kashmir Singh left to his house. After some time when she also tried to leave the house to go to the house of Krishan Kumar, she found the door to be bolted from outside. At about 12.00 in night, Ruma Kumari, daughter-in-law of Krishan Kumar, came to her house and on disclosing that Krishan Kumar, his wife Swarna Devi and the appellant were beating Kashmir Singh, asked her to come to their house. On this, she along with her daughter Priyanka accompanied Ruma to her house and on reaching there found the appellant giving beatings to her husband with a stick and Krishan Kumar and his wife with fist and leg blows. Kashmir Singh on account of their beatings had become unconscious and was brought back to the house. At home, she noticed blue marks on his back and that he was crying in pain. PW1 Piaro Devi while stating so also stated that Krishan Kumar and the appellant while giving beatings to Kashmir Singh were saying as to whether he would repeat the act of teasing. At home, she noticed blue marks on his back and that he was crying in pain. PW1 Piaro Devi while stating so also stated that Krishan Kumar and the appellant while giving beatings to Kashmir Singh were saying as to whether he would repeat the act of teasing. She specifically stated that her husband Kashmir Singh had died due to beatings given by the appellant, Krishan Kumar and Swarna Devi. 3. The statement, Ext.PW1/A was sent through Constable Anil Kumar to Police Station, on the basis of which, FIR, Ext.PW16/B was registered. On identification of complainant, i.e. PW1 Piaro Devi, spot map, Ext.PW18/A was prepared. PW15 ASI Shyam Lal on visiting CHC Sujanpur moved an application Ext.PW15/A to the Medical Officer for medical examination of deceased. Medical Officer concerned as per endorsement over said application reported that deceased was brought dead at 7.15 A.M. on 26.10.2014 in an ambulance 108. PW15 then took photographs of the dead body Ext.PW15/B-1 to Ext.PW15/B-4 and filled in inquest forms, Ext.PW15/C, Ext.PW15/D and Ext.PW15/E respectively. The body of the deceased was brought to regional hospital Hamirpur for postmortem and vide application Ext.PW15/F, Dr. Ravi Sharma and Dr. Nikhil on having formal examination vide report, Ext.PW19/A, referred the dead body for postmortem to RPGMC, Tanda, where on moving an application, Ext.PW15/G on 27.10.2014 postmortem was conducted vide report, Ext.PW10/A. PW8 Dheeraj during postmortem took photographs, Ext.PW8/A-1 to Ext.PW8/A-16 and handed over the same along with CD, Ext.PW8/B and certificate to that effect, Ext.PW8/C to the police. The appellant, Krishan Kumar and Swarna Devi were arrested. 4. The appellant on 28.10.2014 vide disclosure statement, Ext.PW6/A in the presence of PW6 Kusuma Kumari and Jyoti Parkash got stick Ext.P2 recovered from a field in the back of his house, which on being sealed in a cloth parcel was taken into possession vide memo Ext.PW1/C. Spot map of recovery, Ext.PW18/D, was also prepared. On the very same day, the appellant vide memo, Ext.PW6/B on identifying the spot in the room of the house of his father Krishan Kumar where alleged beatings were given to the deceased, also got recovered his shirt, Ext.P7 from the room in presence of PW6 Kusuma Devi and Jyoti Parkash vide memo, Ext.PW6/C. Photographs qua recovery of danda and shirt were taken and exhibited as Ext.PW18/F-1 to Ext.PW18/F-7. 5. 5. PW1 Piaro Devi vide memo, Ext.PW1/C in presence of PW6 Kusuma and Jyoti Parkash also produced torn pants of her deceased husband, Ext.P4 and pieces of broken mobile, Ext.P5, which was in the pocket of deceased at the relevant time. The said parcels containing clothes of the appellant, deceased and danda were deposited with PW16 HC Ravi Kumar, MHC Police Station Sujanpur. PW13 Constable Lalit Kumar on being handed over by PW10 Dr. Vijay Arora the parcels containing viscera, clothes of deceased, blood sample, one sealed envelop along with CD and photographs deposited the same with PW16 HC Ravi Kumar. On deposit of aforesaid articles vide Malkhana register entry Ext.PW16/D, on 30.10.2014 PW16 sent the same along with copy of postmortem report, FIR etc. with PW12 Constable Yogesh Chauhan to RFSL, Mandi vide RC Ext.PW16/E for chemical analysis. Ext.PW10/B, Ext.PW10/C and Ext.PW10/N are the reports to that effect from RFSL, Mandi. On going through reports, Ext.PW10/B and Ext.PW10/C, PW10 Dr. Vijay Arora gave his final opinion about the cause of death vide report Ext.PW10/D to be haemorrhagic shock due to multiple injuries sustained by multiple blunt force impacts. On 9.2.2015 PW10 on seeing stick Ext.P2 gave his opinion, Ext.PW10/E that the injuries sustained by the deceased could be possible with the same. 6. On moving an application, Ext.PW9/A, copies of jamabandi and Aks Shajra of the place of occurrence Ext.PW9/B and Ext.PW9/C were obtained. Copies of consumer application forms of mobile No.86269-39547, Ext.PW14/B, mobile No.88944-05795 Ext.PW14/C along with copies of billing address Ext.PW14/D and call details Ext.PW14/E on being obtained from the office of Bharti Airtel Shimla were taken into possession. The mobile No. 86269-39547 was found to be used by the deceased. 7. The statements of the witnesses were recorded as per their respective version. On completion of investigation, PW18 ASI Khem Singh handed over the case file to PW20 ASI Parkash Chand, who on preparing challan, filed the same in the court for the trial of the accused and after finding a prima facie case, the appellant alongwith Krishan Kumar and Swarna Devi was charged and put to trial for commission of offences punishable under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. 8. In order to prove its case, the prosecution examined as many as 20 witnesses. 8. In order to prove its case, the prosecution examined as many as 20 witnesses. After closer of the prosecution evidence, statements of the appellant along with Krishan Kumar and Swarna Devi under Sections 313 Cr.P.C. were recorded, in which they denied the prosecution case in its entirety and claimed false implication. They tendered copies of rapat Nos. 4 and 5 dated 26.10.2014 Ext.DA in evidence, but did not examine anyone in defence. 9. The learned Additional Sessions Judge after evaluating the evidence vide impugned judgment and order dated 31.8.2016/5.9.2016 acquitted Krishan Kumar and Swarna Devi; and convicted and sentenced the appellant, as aforesaid. It is against the aforesaid judgment/order of conviction and sentence, the appellant has preferred the instant appeal. 10. It is vehemently argued by the learned counsel for the appellant that the appellant has been falsely implicated in this case and on the basis of the evidence led by the prosecution he was required to be acquitted as no case whatsoever has been proved against him. He would further argue that if the prosecution case is taken to be proved even then only a case under Section 304, part-II IPC can be said to have been made out and therefore, conviction and sentence under Section 302 IPC by the learned Additional Sessions Judge is unwarranted and deserves to be set aside. On the other hand, the learned Additional Advocate General would vehemently argue that impugned judgment convicting and sentencing the appellant under Section 302 IPC is based on correct appreciation of oral as well as documentary evidence and cannot be faulted with, therefore, calls for no interference. 11. We have heard the learned counsel for the parties and have also gone through the record of the case carefully. 12. In order to appreciate the rival contentions of the parties, it would be necessary to refer to the evidence that has come on record. 13. PW1 Piaro Devi is the wife of Kashmir Singh and stated that on 25.10.2014, at about 7.30-7.45 P.M. Krishan Kumar telephonically called the deceased to his house for treatment of someone. At about 3.30-3.45 A.M., Ruma Kumari, wife of the appellant came to her house and told that she was being called to her house. On this, she along with her daughter PW2 Priyanka accompanied Ruma Kumari to her house. At about 3.30-3.45 A.M., Ruma Kumari, wife of the appellant came to her house and told that she was being called to her house. On this, she along with her daughter PW2 Priyanka accompanied Ruma Kumari to her house. On reaching there, they found Krishan Kumar standing on the door of his house and the appellant beating her husband with a danda inside the room. When he was requested not to give beatings to her husband, the appellant also tried to assault them with danda. She along with Priyanka then went to the house of her sister-in-law PW4 Hira Devi (Nanad) and called her on the spot. When they returned to the spot, by that time the police had also reached there. She found her husband lying inside the room in an unconscious state and thereafter, the appellant and one police personnel brought him to their house. The police personnel while returning home asked them to visit the police station in the morning. She checked the body of her husband and found some injuries on his back, which had turned blue in colour. She then visited the house of her brother-in-law PW3 Ranjeet Singh and on telling him that the condition of her husband was serious requested to take her husband to the hospital. The ambulance 108 was called and when they were proceeding to hospital, her husband died on the way. Thereafter, the police visited her house and recorded her statement, Ext.PW1/A. 14. PW2 Priyanka is daughter of PW1 Piaro Devi. She stated that on 25.10.2014 at about 12.00 in midnight, Krishan Kumar called her father to his house for the purpose of treatment and thereafter Ruma Devi came to their house and on her calling she along with her mother visited the house of the appellant. On reaching there, she saw the appellant giving beatings to her father and when they objected to, he showed the stick to them. Thereafter, she along with her mother returned to their house and whereafter her father was brought by the police and the appellant to their house. Having not supported the case of the prosecution in its entirety, this witness was then examined by the Public Prosecutor and during the course whereof, she admitted that stick which was shown to her by the appellant was the same with which he was giving beatings to her father. Having not supported the case of the prosecution in its entirety, this witness was then examined by the Public Prosecutor and during the course whereof, she admitted that stick which was shown to her by the appellant was the same with which he was giving beatings to her father. She also stated that when they reached the house of the appellant, her father was lying down inside the room. She admitted that Krishan Kumar and Swarna Devi were also giving beatings to her father. 15. Before discussing the statement of PW3 Ranjeet Singh it would be noticed that during the course of investigation, he had claimed to have heard noise on the midnight of 25/26.10.2014 at about 12.00, which according to him, was coming from the house of Kashmir Singh. On hearing this, firstly, his wife came out and she alongwith PW1 Piaro Devi and PW2 Priyanka started moving towards the house of Krishan Kumar. He also followed them and on reaching the house of Krishan Kumar, he saw that the appellant was giving beatings to the deceased with a stick, whereas Krishan Kumar and Swaran Lata were giving fist and leg blows inside their house. However, when this witness entered into the witness box, he did not support the prosecution case and stated that on 26.10.2014 at about 4.00 A.M. when he was sleeping in his house, he was got awaken by PW1 Piaro Devi, who told to him that Kashmir Singh on being beaten up had been left at home by the police and the appellant and his condition was critical. On hearing this, he went to the house of Piaro Devi, where she showed him back of Kashmir Singh, which had turned black in colour. He was lying in an unconscious state. He thereafter went to the house of his sister Hira Devi and returned along with her and 3-4 persons of the village. Ambulance 108 was called in which Kashmir Singh was removed to hospital at Sujanpur, where he was declared brought dead by the doctors. 16. He was lying in an unconscious state. He thereafter went to the house of his sister Hira Devi and returned along with her and 3-4 persons of the village. Ambulance 108 was called in which Kashmir Singh was removed to hospital at Sujanpur, where he was declared brought dead by the doctors. 16. PW4 Hira Devi is another witness who has not supported her statement recorded by the police under Section 161 Cr.P.C. As per prosecution, this witness on hearing noise along with her son Sanjeev Kumar went to the house of Krishan Kumar and on reaching there found appellant giving sticks blows, Krishan Kumar and Swaran Lata leg and fist blows to Kashmir Singh. By that time, PW1, PW2 and PW3 and Sita Devi had already reached there and thereafter Piaro Devi took her husband Kashmir Singh to her house. However, while appearing in the witness box this witness gave a contrary version by stating that on the relevant day when she was at home Piaro Devi came there during night time and told that the appellant was giving beatings to her husband and requested to accompany her to the house of Krishan Kumar. On this she along with her son Sanjeev Kumar accompanied PW1 to the house of accused Krishan Kumar but by that time police had already reached there. 17. This is the entire evidence of the so-called eye witnesses. 18. As per the prosecution, stick (danda) Ext.P2 is stated to be the weapon of offence with which beatings were given to the deceased by the appellant. The same was got recovered from the appellant after he having made a disclosure statement to this effect. PW6 Kusuma Kumari and Jyoti Parkash are the witnesses to the recovery proceedings. As regards Jyoti Parkash, he was not examined in the court as witness being repetitive in nature. Kusuma Kumari while appearing as PW6 stated that on 28.10.2014, they were called to the police station by the then SHO, where the appellant after being taken out from the lock-up made a disclosure statement, Ext.PW6/A, to the effect that he could get the danda recovered and in pursuance of such statement, he got recovered the danda from the backside of his house vide memo, Ext.PW1/B. Stick, Ext.P2 on being shown to her was stated to be the same which had been got recovered by the appellant. However, PW6 in her cross-examination stated that she did not go to the backside of the house at the time when the appellant had brought the stick, but denied the suggestion of the defence that the stick was not recovered at the instance of the appellant in her presence. Ext.PW18/F-1 to Ext.PW18/F-7 are the photographs regarding recovery of stick. 19. PW 19 Dr. Ravi Sharma had conducted a preliminary medical examination of the deceased before referring his dead body for postmortem to RPGMC Tanda. In his cross-examination, he stated that at the time of examination, there was no blood stained injuries on the person of the deceased. On being shown the stick, Ext.P2, he admitted that possibility of causing blood stained injuries with the same could not be ruled out. He further stated that the injuries mentioned in Ext.PW19/A could be caused by kick blows and by way of fall on hard surface. However, his statement is not of much significance in view of the postmortem having been conducted by a team of doctors at RPGMC Tanda. In this background, it is the testimony of PW10 Dr. Vijay Arora, Professor and Head of the Forensic Medicine Department, RPGMC, Tanda, who had conducted the postmortem on the dead body of the deceased, which goes relevant. 20. PW10 Dr. Vijay Arora, found the following ante-mortem injuries on the person of the deceased: (e) An abrasion 4x1 cm, linear, vertical was present at right side of front of chest bluish reddish discoloured. (f) An abrasion, 8 x 0.5 cm, reddish bluish was present at right forearm back aspect. (g) A grazed abrasion, 3 x 2 cm, bluish red discoloured at right shoulder region. (h) Multiple crusted, abraded laceration size varies 3 x 2 m to 2 x 2 cm, muscle deep present at right knee region. (i) Contusion bluish discoloured in an area 30 x 25 cm was present at right buttock, outer leg region. (j) Contusion, reddish blue discoloured, 15 x 10 cm was present at right upper outer leg region. (k) Contusion, reddish blue discoloured, 30 x 25 cm, tram track in appearance, at left thigh outer aspect and left buttock region. (l) A tram track appearance contusion, 12 x 3 cm was present at left lower flank region, reddish blue discoloured. (m) Contusion 30 x 20 cm, at upper half of back, reddish blue discoloured. (k) Contusion, reddish blue discoloured, 30 x 25 cm, tram track in appearance, at left thigh outer aspect and left buttock region. (l) A tram track appearance contusion, 12 x 3 cm was present at left lower flank region, reddish blue discoloured. (m) Contusion 30 x 20 cm, at upper half of back, reddish blue discoloured. (n) Abrasion 3 x 2 cm, reddish blue discoloured at left knee and adjoining area. 21 On internal examination, he found the following injuries:- Scalp and vertebrae were grossly intact. A thin 3 x 2 cm minor sub scalp haematoma was present at frontal aspect. Membranes and brain were pale. Spinal cord was not opened. In thorax –left 6th and 7th ribs were fractured associated with haematoma at chest wall. Pleurae, larynx, trachea and both lungs were pale. Weight of lungs was 700 gms. Pericardium was pale. Coronary arteries were patent. Rest – NAD. In abdomen – walls NAD. Peritoneum was pale. Mouth, pharynx and esophagus were pale. Mouth, lips and teeth were intact. Stomach contained about 50 ml yellowish fluid, mucosa was pale and any peculiar smell was not ascertained. All other abdominal organs were pale. Right kidney contained 3.5 x 3.4 cm blackish hard stone. Bladder was empty. Genitalia –NAD. The opinion regarding cause of death was kept pending till viscera analysis report. The probable time elapsed between injury and death was about few hours and between death and postmortem examination was about 24-36 hours. 22. He deposed that as per reports, Ext.PW10/B and Ext.PW10/C, he opined that cause of death was haemorrhagic shock due to multiple injuries sustained by multiple blunt force impacts and the injuries mentioned in post mortem report could be possible by stick, Ext.P2. 23. It would be evidently clear from the testimonies of the aforesaid prosecution witnesses that the appellant in fact had given beatings to the deceased. This is so stated by all the prosecution witnesses and there is nothing on record which may impeach their credibility. Even though PW3 and PW4 did not wholly support their statements as were recorded by the police under Section 161 Cr.P.C., but nonetheless they have fully supported their version that it was the appellant who had given beatings to the deceased. 24. Even though PW3 and PW4 did not wholly support their statements as were recorded by the police under Section 161 Cr.P.C., but nonetheless they have fully supported their version that it was the appellant who had given beatings to the deceased. 24. The presence of the deceased earlier in the house of the appellant and thereafter in his own house has already been duly established and proved by the prosecution particularly in the evidence of PW1 to PW4. This aspect of the matter has been minutely and meticulously analyzed and discussed by the learned Additional Sessions Judge and, therefore, we see no reason to differ with such findings in view of the clear, cogent and convincing evidence led by the prosecution. However, nonetheless the question still remains as to whether the appellant could have been convicted for offence punishable under Section 302 IPC or could have been convicted for lesser offence more particularly under section 304 Part II IPC. 25. At this stage, it would be necessary to refer to certain provisions of IPC, which are as under:- 300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing. or doing harm to any person. Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defense. Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense. Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 302. Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 302. Punishment for murder Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine. 304. Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder shall be punished with 104[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the 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. 26 At the outset, it is relevant to setout some of the factors, which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive and each case has to be seen from its special perspective. 26 At the outset, it is relevant to setout some of the factors, which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive and each case has to be seen from its special perspective. The relevant factors are as under:- (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without pre-meditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. [Refer: Gurumukh Singh vs. State of Haryana, (2009) 15 SCC 635 ] 27 Whether the case falls under Section 302 or 304 Part I or 304 Part II IPC is the question, which is required to be decided on the facts of each case. [Refer: Gurumukh Singh vs. State of Haryana, (2009) 15 SCC 635 ] 27 Whether the case falls under Section 302 or 304 Part I or 304 Part II IPC is the question, which is required to be decided on the facts of each case. The intention to cause death can be gathered generally from a combination of a few or several following, among other, circumstances: (21) nature of the weapon used; (22) whether the weapon was carried by the accused or was picked up from the spot; (23) whether the blow is aimed at a vital part of the body; (24) the amount of force employed in causing injury; (25) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (26) whether the incident occurs by chance or whether there was any premeditation; (27) whether there was any prior enmity or whether the deceased was a stranger; (28) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (29) whether it was in the heat of passion; (30) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (31) whether the accused dealt a single blow or several blows. [Refer: Pulicherla Nagaraju alias Nagaraja Reddy vs. State of A.P., (2006) 11 SCC 444 ] 28 Adverting to the facts, it would be noticed that the beatings alleged to have been given to the deceased were by stick, Ext.P2, kick and fist blows. That apart, even at the time when the police had come on the spot, the condition of the deceased was not so serious so as to shift him to hospital and it was for this reason that the deceased was taken by the appellant along with accompanying police personnel to his house. Lastly, even the injuries that were noticed on the person of the deceased apparently did not seem to be so serious, whereby one could have thought that he would succumb to the same. The prosecution has failed to prove any intention on the part of the appellant to cause death of the deceased. 29 It is more than settled that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder falling under Section 304 IPC. The prosecution has failed to prove any intention on the part of the appellant to cause death of the deceased. 29 It is more than settled that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder falling under Section 304 IPC. 30 In Jagriti Devi vs. State of H.P., (2009) 14 SCC 771 , it was held that the expressions “intention” and “knowledge” postulate the existence of a positive mental attitude, which is absent in the instant case. 31 There is no evidence of motive or previous enmity and the incident has taken place on the spur of the moment. There is also no evidence regarding the intention behind the fatal consequence of the beatings. 32 Thus, considering all these aspects, we are of the view that the appellant is guilty of commission of an offence under Section 304 Part II and not under Section 302 IPC. Accordingly, the impugned judgment and order dated 31.8.2016/5.9.2016, convicting and sentencing the appellant to undergo life imprisonment with a fine of Rs. 10,000/- under Section 302 IPC is altered and the appellant is convicted and sentenced to undergo 10 years’ rigorous imprisonment with a fine of Rs.50,000/- and in default of payment of fine to further undergo 2 years’ rigorous imprisonment under Section 304 Part II IPC. Since the deceased has left behind a family, the fine thus recovered shall be paid as compensation to his family members. 33 The appeal is partly allowed to the extent mentioned hereinabove. Pending application(s), if any, also stands disposed of.