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2020 DIGILAW 630 (KER)

Satheesh Kumar v. State of Kerala

2020-07-23

A.HARIPRASAD, N.ANIL KUMAR

body2020
JUDGMENT : N. Anil Kumar, J. 1. This appeal is directed against the judgment dated 28.7.2016 in S.C. No. 454/2009 passed by the Additional Sessions Judge-II, Thiruvananthapuram whereby the learned Sessions Judge convicted and sentenced accused Nos. 1 and 2 to undergo rigorous imprisonment for three years each and to pay a fine of Rs. 10,000/- each and in default to undergo rigorous imprisonment for three months more for the offence punishable under Section 304 Part II of the Indian Penal Code (hereinafter referred to as the IPC). 2. The prosecution case in brief is as hereunder:- On 04.03.2007 at 10.15 pm, out of prior enmity, accused 1 and 2 in furtherance of their common intention had assaulted the deceased on the road side in front of the house of the deceased with MOs. 1 and 3 choppers and MOs. 2 and 4 wooden sticks, causing serious injuries including head injury. Immediately after the occurrence, his parents came to the scene of occurrence on hearing the hue and cry of the deceased. The injured was taken to their house and later in the morning at 5 am., he was taken to the hospital where he was declared brought dead. It is alleged that A1 and A2 inflicted serious injuries on the deceased with an intention to murder and the accused stood charge sheeted for the offence punishable under Section 302 read with Section 34 of the IPC by the Circle Inspector of Police, Palode, Thiruvananthapuram. 3. Upon committal, the accused 1 and 2 entered appearance before the trial court. After having heard both sides, the learned Sessions Judge framed charge against the accused under Section 302 read with Section 34 of the IPC to which they pleaded not guilty. 4. During the trial, the prosecution examined PWs. 1 to 15 and marked Exts. P1 to P24. On closing the evidence of the prosecution, they were questioned under Section 313(1)(b) of the Cr.P.C. They denied their complicity in the case and pleaded innocence. DW1 was examined and marked Exts. D1 to D3 on their side. DW1 is a night watchman attached to the Agrifarm at Panniyode. 1 to 15 and marked Exts. P1 to P24. On closing the evidence of the prosecution, they were questioned under Section 313(1)(b) of the Cr.P.C. They denied their complicity in the case and pleaded innocence. DW1 was examined and marked Exts. D1 to D3 on their side. DW1 is a night watchman attached to the Agrifarm at Panniyode. On 04.03.2007, while he was on night duty at the office which is 50 m. away from the residence of the deceased, he saw a free fight outside the residence of the deceased between the deceased on one side and his cousins on the other side. The free fight thus ensued from 5 pm in the evening till late in the night. According to him, after 12 am in the night, he heard a hue and cry in front of the house and proceeded to the place. Then he saw the deceased lying in front of the house and on enquiry, he was told that the deceased had jumped into the well. 5. Heard the learned counsel for the appellants Sri. Clarance Miranda and learned Senior Public Prosecutor for the State Sri. S.U. Nazar. 6. The learned counsel for the appellants has taken us through the depositions of various witnesses. According to the learned counsel for the appellants, the conviction under Section 304 Part II of the IPC is wholly unsustainable and none of the injuries sustained by the deceased are sufficient to cause death in the ordinary course of nature. According to the learned counsel for the appellants, PW13-the Doctor who conducted the postmortem, opined that the cause of the death is head injury. According to the learned counsel for the appellants, no question was asked touching the reason for cause of the injury. The learned counsel further contended that the alleged recovery under Section 27 of the Evidence Act was also not proved. Further, Ext. P9 FSL report do not show that MOs. 1 to 4 contained any blood, hair or tissues. According to the learned counsel for the appellants, FIR and Inquest Report were submitted before the court belatedly. It is further contended that the time of occurrence was not proved by the prosecution. 7. Further, Ext. P9 FSL report do not show that MOs. 1 to 4 contained any blood, hair or tissues. According to the learned counsel for the appellants, FIR and Inquest Report were submitted before the court belatedly. It is further contended that the time of occurrence was not proved by the prosecution. 7. The learned Senior Public Prosecutor on the other hand argued that the trial court was perfectly justified in convicting and sentencing the accused for the offence punishable under Section 304 Part II of the IPC. The learned Senior Public Prosecutor argued for the State in support of the impugned judgment. 8. The evidence relating to the postmortem examination would show that PW13, the Assistant Professor of Forensic Medicine, Government Medical College Hospital, Thiruvananthapuram had examined the deceased and noted 33 antemortem injuries on the body of the deceased and issued Ext. P10 postmortem certificate. Ext. P10 would show that the deceased sustained 33 injuries all over his body. The trial court recorded all the antemortem injuries sustained by the deceased in paragraph 15 of the judgment. To avoid repetition of facts, it is not necessary to state all the injuries sustained by the deceased in this judgment. When PW13 was examined, he testified that injury Nos. 1 to 4 which were seen on the head of the deceased had caused the death of the deceased. The details of the injury Nos. 1 to 4 sustained by the deceased are stated hereunder:- "Injuries (Ante mortem) 1. Contusion of scalp 5 x 2.5 x 0.3 cm on the left side of head just behind the root of ear. 2. Contusion of scalp 8 x 5.5 x 0.3 cm, on the back of head overlying the occiput. 3. Contusion of scalp 7.5 x 1.5 x 0.5 cm, overlying the right parietal eminence. 4. Contusion of scalp 2.5 x 2.5 x 0.5 cm, 5 cm outer to occiput. Brain showed bilateral subarachnoid bleeding. Sulci narrowed and gyri flattened." 9. The accused had no case that the death of the deceased was either accidental or suicidal. PW13 stated before the court that the deceased died as a result of injury Nos. 1 to 4 sustained on his head and those injuries could be inflicted with MOs. 1 to 4 which were sufficient in the ordinary course of nature to cause death. Thus, the death of the deceased was homicidal in nature. 10. PW13 stated before the court that the deceased died as a result of injury Nos. 1 to 4 sustained on his head and those injuries could be inflicted with MOs. 1 to 4 which were sufficient in the ordinary course of nature to cause death. Thus, the death of the deceased was homicidal in nature. 10. The trial court had mainly relied upon the evidence of PWs. 1 to 6 and held that the offence under Section 302 of the IPC was not proved by the prosecution. But the prosecution had succeeded in establishing an offence under Section 304 Part II of the IPC and accordingly accused 1 and 2 were convicted and sentenced. 11. The trial court framed charge against the accused as follows:- "That, both of you on 04.03.2007 at about 10.15 pm with intention of causing death of Aji assaulted him by using the base of a chopper and club, due to your previous animosity to him as Aji obtained job contract by quoting less amount of quotation in the Agrifarm Banana Nursery of CW13. Both of you had beaten the above said Aji on the backside of his head, neck, dorsal side, shoulder, waist and other parts of the body, you both beaten him by using your legs on the body of Aji, while he was in the garden bed nearby the way to the house of the above said Aji in continuation of the garden bed starting from Banana Nursery Junction to Panniyottukadavu in Anadumuri, Peringammala Village. That you have assaulted the above said Aji with intention to cause his death knowing fully well that the assault is sufficient to cause the death of the above said Aji. In consequence of the above assault, Aji died at 07.30 am on 05.03.2007 and thereby you both have committed the offence of murder made punishable u/s. 302 of IPC r/w. S. 34 of IPC and within the cognizance of this Court." 12. PW1 lodged Ext. P1 First Information Statement before the police. According to her, the deceased was her first cousin. She stated that the deceased was taken to the Fazeela Hospital, Palode by PW2, the father of the deceased and herself. As suggested by the duty Doctor at Fazeela Hospital, the injured was taken to the Taluk Hospital, Nedumangad. The Doctor, who had examined the deceased, declared that he was brought dead. She stated that the deceased was taken to the Fazeela Hospital, Palode by PW2, the father of the deceased and herself. As suggested by the duty Doctor at Fazeela Hospital, the injured was taken to the Taluk Hospital, Nedumangad. The Doctor, who had examined the deceased, declared that he was brought dead. Evidence of PW1 would indicate that father of the injured (PW2) informed her that A1 and A2 had assaulted him with choppers and wooden sticks causing severe injuries to him. Pursuant to the information received from PW2 before the injured was taken to the hospital, she went to the police station and lodged Ext. P1 FIS implicating A1 and A2 as the accused. It is clear from the evidence of PW1 that she was not an eye witness to the occurrence and she was not aware of the manner in which the occurrence took place. After the confirmation of death of the deceased, she immediately went to the police station and lodged Ext. P1 FIS. 13. PW2 is the father of the deceased. PW2 stated that around 8 pm on 04.03.2007, his son Aji had dinner along with Manoj Kumar and Ajith Kumar and after the dinner, Aji accompanied them to their house. According to him, in between 10 and 11 pm on that day A1 and A2 came to his house in search of Aji and he had informed them that Aji was not available at home. He further stated that they had returned back in an agitated mood and while so he saw MOs. 1 and 3 choppers hanging on their back side. He further stated that A1 and A2 had informed the wife of Aji that they would not permit him to go to the banana farm for quotation work from the very next day onwards. After some time, he heard a hue and cry from the nearby place whereupon he along with PW3 and PW3's brother Shaju rushed to the scene of occurrence with the aid of a torch light. According to him, when they reached the spot they saw accused 1 and 2 assaulting the deceased with MOs. 1 to 4. They stated that they had seen the occurrence with the aid of torch light and moon light available on that day. He further stated that his son Aji was a worker in the banana farm nursery on contract basis from the owner. 1 to 4. They stated that they had seen the occurrence with the aid of torch light and moon light available on that day. He further stated that his son Aji was a worker in the banana farm nursery on contract basis from the owner. A1 and A2 were on inimical terms towards Aji for the reason that Aji had quoted the lowest rate for the work and accordingly he was awarded the contract work to the detriment of A1 and A2. PW2 further stated that instead of taking him to the hospital immediately he was taken to his house and early in the morning, his condition became critical. He was then taken to the hospital where he was declared as brought dead. On cross-examination, PW2 stated that they had not noted any incised injuries on the body of the deceased immediately after the occurrence. He clarified that no injury was found on the body of the deceased which would have been the result of using MOs. 1 and 3 choppers by the accused. 14. During the cross-examination PW2 further admitted that his son Aji had kept a gun without license at his residence. According to him, the police arrested him and his elder son for illegally possessing a gun without license and put them in judicial custody. PW2 did not give any satisfactory explanation regarding the presence of the deceased between 8 pm and 10.15 pm on the date of occurrence. He further stated that after 04.03.2007, he had closed his existing well and made a new one. During the cross-examination, PW2 stated that his son Aji cried aloud between 9.30 pm and 10 pm. However, he stated in emphatic terms that the occurrence took place between 10 and 10.30 pm. He further stated on cross-examination that the accused came to his residence at 9 pm. However, in his 161 statement, he stated that the accused came to his residence on 04.03.2007 around 10 pm. However, in cross-examination, he denied this part of the statement which is marked as Ext. D1. Thereafter, he stated that the occurrence took place between 9 pm. and 9.30 pm. Further he had stated in cross-examination that his statement was recorded by the police after two days from the date of occurrence and his additional statement was recorded on 09.03.2007. 15. PW3 is the mother of the deceased. D1. Thereafter, he stated that the occurrence took place between 9 pm. and 9.30 pm. Further he had stated in cross-examination that his statement was recorded by the police after two days from the date of occurrence and his additional statement was recorded on 09.03.2007. 15. PW3 is the mother of the deceased. PW3 stated that on 04.03.2007 at about 8 pm., the deceased and Manoj left home after taking food to the house of Manoj. She further stated that around 10 pm, the accused came home and made enquiries regarding the deceased. When she replied that Aji was not there, the accused became angry and left the place and while so she noticed the presence of choppers with them. She further stated that around 10.15 pm. she heard a hue and cry of the deceased and on reaching the spot she had seen the accused inflicting injuries on Aji with MOs. 1 to 4. After the attack, the accused left the place. Thereafter, she had brought Aji to her house and at mid night, his condition became critical. Hence he was taken to the hospital where he was declared dead. 16. PW4 shared food along with the deceased on the date of occurrence along with PWs. 2 and 3. He supported the version of PWs. 2 and 3. PW4 is the first cousin of the deceased Aji. He stated that they had dined together and after that Aji had consumed liquor and proceeded to his residence. According to him, intoxicated by the alcoholic effect, Aji spoke agitatedly at his residence and while so his father asked him to go out from the house and accordingly Aji went out of his house. He further stated that around 9 pm he went to the residence of A1-Satheesh and enquired about Aji. On being enquired, he came to know that Aji came there and abused them as well. While so, according to him, A1-Satheesh stamped him without any reason. Thereafter, he had returned home and came to know that Aji was assaulted by the 1st accused and others. 17. PW5 is the first cousin of the deceased Aji. He was present at the residence of Aji on the date of occurrence. He supported the version of PWs. 2 and 3 in full. 18. PW6 was the person who had brought a jeep on the request of PW2. 17. PW5 is the first cousin of the deceased Aji. He was present at the residence of Aji on the date of occurrence. He supported the version of PWs. 2 and 3 in full. 18. PW6 was the person who had brought a jeep on the request of PW2. The deceased was taken to the hospital immediately after the occurrence in the jeep driven by PW8. PWs. 6 and 8 deposed that, while the deceased was taken to the hospital, he was found in an unconscious condition. 19. PW11, Dr. Gladis George, who was working as Assistant Surgeon at the Taluk Hospital, Nedumangad examined the deceased and issued a medical certificate noting linear 5 cm over left scapulry left wrist and right shoulder respectively. 20. PW10 was working as a Banana Development Officer since November 2006, for a period of six years in the Banana Nursery at Peringamala. He stated that the deceased was working as a Contractor and he used to accept quotation for works at a comparatively low rate. 21. PW9 is a witness in Ext. P5 recovery mahazar. He stated that he had signed Ext. P5 mahazar and the police had recorded his statement. PW14-the Village Officer in charge of Peringamala was examined to prove Ext. P11 plan. PW14 prepared Ext. P14 scene plan and had entrusted it to PW15. 22. PW15 took over the investigation on 06.03.2007 and conducted investigation in this case. On 06.03.2007 at 2 pm., he prepared Ext. P12 scene mahazar. He arrested the accused and recorded their statement. While in custody, PW15 questioned the accused. The 1st accused confessed by Ext. P19 that MOs. 1 to 4 were kept inside a cover and placed among the pineapple plants on the road side. He had also confessed that he would show him the choppers and wooden sticks if he would be taken there. Based on such information, PW15 proceeded to the place as led by the accused and recovered MOs. 1 to 4 and MO9 cover by way of Ext. P5 mahazar. The accused 1 and 2 were later produced before the jurisdictional Magistrate and they were remanded to judicial custody. 23. PW13 the Doctor who conducted the postmortem examination confirmed that the death of the deceased was due to head injury. On cross-examination, PW13 stated that subarachnoid haemorrhage was present on the surface of the brain. P5 mahazar. The accused 1 and 2 were later produced before the jurisdictional Magistrate and they were remanded to judicial custody. 23. PW13 the Doctor who conducted the postmortem examination confirmed that the death of the deceased was due to head injury. On cross-examination, PW13 stated that subarachnoid haemorrhage was present on the surface of the brain. He further stated on cross-examination that an arachnoid muscle is a thin membrane covering the brain. According to PW13, there are other reasons for subarachnoid haemorrhage and uncontrolled hypertension is one of the reasons for subarachnoid haemorrhage. Injury Nos. 1, 2 and 4 are allegedly stated as the cause for the death of the deceased. Injury Nos. 1, 2 and 4 are certainly contusions of the scalp. 24. On going through the evidence of PW13, the Doctor who conducted postmortem examination, it is clear that PW13 failed to state the specific reason for the cause of death. What exactly is the specific injury which caused the death of the deceased has not been suggested by the prosecution. PW13 opined that subarachnoid bleeding can be caused by different reasons. So far as the deceased is concerned, he left the house after 9 pm. on the date of occurrence. However, according to the prosecution witnesses including PWs. 2, 3 and 5, they had heard a hue and cry at 10.15 pm. and had gone to the place of occurrence. According to the eye witnesses, they heard a loud cry and on reaching the spot, saw the accused assaulting the deceased with MOs. 1 to 4, while the deceased lay helplessly on the ground. It is highly improbable to believe that after the eye witnesses reached the spot they had actually witnessed the accused 1 and 2 assaulting the deceased with wooden sticks and choppers. In this connection it is pertinent to note that Ext. P9 FSL report prepared by PW12 did not show that MOs. 1 to 4 contain any blood, hair or tissue. PW7 is a signatory in Ext. P4 inquest report prepared by the police. In Ext. P4 inquest report, four witnesses were examined by the police. All the witnesses stated that they had genuine doubt regarding the cause of death of the deceased. 1 to 4 contain any blood, hair or tissue. PW7 is a signatory in Ext. P4 inquest report prepared by the police. In Ext. P4 inquest report, four witnesses were examined by the police. All the witnesses stated that they had genuine doubt regarding the cause of death of the deceased. PW2 stated that he had occasion to see the accused 1 and 2 coming to the house in search of the deceased at 10 pm on the date of occurrence with two choppers hanging on their shoulders. When he was examined, he admitted that he did not state so before the Investigating Officer in his previous statement recorded by the Investigating Officer. 25. The prosecution case is that the occurrence took place after 10 pm on the date of occurrence. According to PW1, she is not an eye witness to the occurrence and she is not aware of the time of occurrence. She lodged Ext. P1 FIS based on the information collected from others. PW2 stated during the cross-examination that he heard a loud cry of the deceased between 10 and 10.30 pm on the date of occurrence. In Ext. D1 contradiction he had stated that the time of occurrence was on 04.03.2007 at 10 pm. However, PW3 stated that the occurrence took place at 10.15 pm. However, she admitted in cross-examination that she had given statement before the Investigating Officer indicating 10 pm as the time of occurrence. Later she stated that the occurrence was in between 10 and 11 pm. She also stated that Aji was brought back home at 11 pm. PW5 stated that the time of occurrence was at 10.15 pm. 26. Going by the evidence of the prosecution, the only inference which could be drawn is that the occurrence in this case took place in between 10 and 11 pm. No reliable evidence was adduced by the prosecution to prove the time of occurrence in accordance with the memorandum of charges framed by the court. 27. Ext. P2 FIR was registered by the police on 05.03.2007 at 16 hours. The occurrence took place on 04.03.2007 at about 10 pm. Ext. P1 FIS was registered under Section 174 of Cr.P.C. Ext. P1 discloses that it had come to the notice of PW1 on 05.03.2007 at about 6.30 am. that Aji was found in an unconscious state at his residence. Ext. The occurrence took place on 04.03.2007 at about 10 pm. Ext. P1 FIS was registered under Section 174 of Cr.P.C. Ext. P1 discloses that it had come to the notice of PW1 on 05.03.2007 at about 6.30 am. that Aji was found in an unconscious state at his residence. Ext. P1 has further disclosed that Aji was taken to the Taluk Hospital, Nedumangad where on examination, the Doctor declared him as brought dead. Although the death was known to PWs. 1 to 6 sufficiently earlier, they did not inform the police regarding the occurrence. Information was furnished to the police at 4 pm. on 05.03.2007. When information was furnished to the police station, PW1 had no case that A1 and A2 had murdered the deceased as alleged by the prosecution. On going through the evidence of PW1, it is clear that PW1 had interacted with PWs. 2, 3, 4 and 5 before lodging Ext. P1 FIS. This would irresistibly lead to the inference that they had no knowledge regarding the fact that the accused 1 and 2 in furtherance of their common intention murdered Aji as alleged by the prosecution. On a perusal of Ext. P1 FIS and Ext. P2 FIR, there is no evidence to show the date of receipt of Ext. P2 before court. The initial of the learned Magistrate who received FIR in court is absent in Ext. P2. In view of the above circumstances, it is difficult for this Court to ascertain as to whether the FIR was received in court promptly. 28. PW4 adduced evidence to show that on the date of the occurrence, the deceased picked up a quarrel at his residence and his father had sent him out of the house. He further stated that after this incident, the deceased went to the house of the 1st accused and picked up quarrel there as well. In view of the circumstances, it is difficult for this Court to ascertain as to how the deceased sustained injuries on the date of occurrence. 29. PW11 the Doctor had examined the deceased when he was brought to the hospital. He had noted three injuries in Ext. P8 wound certificate. However 33 injuries were noted in Ext. P10 postmortem certificate. All the other injuries were abrasions and contusions. It has also come out in evidence that the deceased had consumed alcohol on the date of occurrence. 30. PWs. He had noted three injuries in Ext. P8 wound certificate. However 33 injuries were noted in Ext. P10 postmortem certificate. All the other injuries were abrasions and contusions. It has also come out in evidence that the deceased had consumed alcohol on the date of occurrence. 30. PWs. 2, 3 and 5 stated that they heard a loud cry of the deceased on the date of occurrence and accordingly they rushed to the scene of occurrence. According to PW15, the Investigating officer, their house is situated 30-35 m. away from the place of occurrence. Hence, it is difficult to believe that they could hear the hue and cry of the deceased as alleged by the prosecution. 31. PW3 testified before the court that there was a well in her home and soon after the death, they had stopped fetching water from the well. They had closed the well as well. No plausible explanation was offered for the reason as to why the well at their residence was closed immediately after the occurrence. This is all the more important in view of the contention of the accused that, intoxicated by the alcoholic effect, the deceased jumped into the well and sustained injuries. 32. The normal rule is that an accused is presumed to be innocent until the offence against him is proved beyond doubt. It is therefore the duty of the prosecution to prove its case beyond doubt. It must at first satisfy the evidential burden to show that the allegations levelled against the accused have something to support them. If it cannot satisfy this burden, the accused is entitled to be acquitted. Ext. P11 plan prepared in accordance with Ext. P12 scene mahazar would show that the occurrence place is far away from the residence of PWs. 2 and 3. The occurrence took place in the night. It is essential to prove the source of light to witness the occurrence as alleged by the prosecution during the night. As per Ext. P11 scene plan, an electric post is found 17.52 metres away from the place of occurrence. There is nothing to indicate that any source of street light was available from the aforesaid electric post. Ext. P12 scene mahazar is silent in this regard. As no street lights were available in and around the area PWs. As per Ext. P11 scene plan, an electric post is found 17.52 metres away from the place of occurrence. There is nothing to indicate that any source of street light was available from the aforesaid electric post. Ext. P12 scene mahazar is silent in this regard. As no street lights were available in and around the area PWs. 2, 3 and 5 adduced evidence to show that they had to actually rush to the scene of occurrence after hearing the hue and cry from the deceased in order to witness the scene. They explained that PW2 had a handy torch with him and with the aid of its light they had witnessed the occurrence. On a perusal of the evidence, it is difficult for us to believe that after hearing the hue and cry of the deceased they rushed to the scene of occurrence where they actually saw the accused assaulting the deceased in the manner as alleged by the prosecution. Most probably they had rushed to the scene of occurrence after the alleged assault. According to PWs. 2, 3 and 5, although it was dark, they had seen the accused assaulting the deceased in the light emanated from the handy torch. In view of the descriptions in Exts. P11 and P12, it is difficult for us to believe that they had actually witnessed the occurrence in the presence of light emanated from the street light. The possibility of witnessing the accused assaulting the deceased with the help of torch light and that too in the night is rather doubtful. We are of the view that it is not safe to rely on their version that they had seen the accused with particular weapons in their hands. No scientific examination was done to prove these weapons were actually used by the accused to assault the deceased. It would have been difficult for PWs. 2, 3 and 5 during the night time to notice the details of the weapon as spoken by PWs. 2, 3 and 5. Another factor which caused doubt on the version of PWs. 2, 3 and 5, was that there were no blood stained piece of cloth recovered from the place of occurrence. It is on account of these doubtful features in the evidence of PWs. 2, 3 and 5. Another factor which caused doubt on the version of PWs. 2, 3 and 5, was that there were no blood stained piece of cloth recovered from the place of occurrence. It is on account of these doubtful features in the evidence of PWs. 2, 3 and 5, that we have our own doubt that they had actually witnessed the incident as alleged by the prosecution. The injured was taken to the residence of PWs. 2 and 3 and later in the morning at 5 am, he was taken to the hospital and declared dead at 7.35 am. The conduct of PWs. 2, 3 and 5 in not reporting the matter to any of their close relative, friends or police about the occurrence throws a considerable doubt on the veracity of their evidence before court. The FIR in this case is undated and it is not possible to ascertain the date of submitting the FIR before court pursuant to Ext. P1 FIS lodged by PW1 immediately after the death of the deceased. 33. The Indian Penal Code recognizes two kinds of homicide. Firstly, culpable homicide dealt with between Sections 299 and 304 of the Indian Penal Code, and secondly, not culpable homicide, dealt with by Section 304A of the Indian Penal Code. There are two kinds of culpable homicide. (i) culpable homicide amounting to murder (Sections 300 & 302 of the IPC), and (ii) culpable homicide not amounting to murder (Section 304 of the IPC). Section 304 of the IPC provides punishment for culpable homicide not amounting to murder in the following circumstances:- (1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine. (2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both. (2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both. If there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. 34. Going by the circumstances referred to above, we are of the view that no reliable evidence was adduced by the prosecution to prove that the act was done by the accused with the knowledge that it is likely to cause the death of the deceased but without any intention to cause death or such bodily injury as is likely to cause death. The act allegedly done by the accused was not proved in evidence. The prosecution failed to prove its case beyond reasonable shadow of doubt. Thus, the accused is entitled to get the benefit of doubt. In the result, the appeal is allowed. We set aside the conviction and sentence entered against the appellants/accused Nos. 1 and 2 under Section 304 Part II of the IPC in S.C. No. 454/2009 on the file of the Additional Sessions Judge-II, Thiruvananthapuram. We find that the appellants/accused Nos. 1 and 2 are not guilty for the aforesaid offence. We, therefore, acquit the appellants/accused Nos. 1 and 2. The appellants/accused Nos. 1 and 2 are on bail. Cancelling their bail bonds, this Court directs that they be set at liberty.