Judgment M.L.Visa, J. 1. This appeal by the sole appellant Rama Kant Rai is directed against the judgment and order dated 29th April, 1989 passed by the Sessions Judge, Gopalganj, in Sessions Trial No.157 of 1983 convicting and sentencing the appellant to undergo rigorous imprisonment for seven years under section 304, Part II of the Indian Penal Code. 2. The prosecution case, in short, is that on 25.5.82 at about 11 P.M. informant Fulbaso Devi (P.W.7) got her fardbeyan recorded by A.S.I. Hari Prasad (P.W.8) stating therein that one week ago on a Wednesday a buffalo and a calf belonging to appellant entered her field which she had taken on batai from one Rajbanshi Rai and started grazing sugarcane crops. Her son Dinesh Rai went to the field and caught the buffalo and calf and took them to a place known as Brahma Baba. The appellant reached there and started abusing Dinesh Rai and thereafter he assaulted him with fists and slaps. Seeing this occurrence the villagers Ram Sewak Rai (PW.5), Chandrama Rai (not examined) and others reached there and in their presence also the appellant assaulted Dinesh Rai with fists and slaps on his Panjra (rib-cages) and twisted his neck as the result of which Dinesh Rai fell on the ground and became unconscious. Thereafter the villagers brought son of informant to her house and one day thereafter he was taken to. Samaur Hospital where he remained admitted for treatment and on 25.5.82 at about 5 P.M. he died of injuries sustained by him. The dead body of the deceased was brought to the house of the informant where A.S.I. Hari Prasad (P.W.8) reached and recorded the fardbeyan (Ext.2) of informant. He also prepared inquest report (Ext.3) and the dead body of the deceased was sent to Gopalganj Hospital for post mortem examination and formal FIR was drawn under section 304 IPC. After investigation charge sheet under section 302 IPC was submitted against the appellant and after taking cognizance case was committed to the court of Sessions where charge under section 302 IPC was framed against the appellant. 3. After investigation charge sheet under section 302 IPC was submitted against the appellant and after taking cognizance case was committed to the court of Sessions where charge under section 302 IPC was framed against the appellant. 3. The case of the appellant before the court below was that the deceased was working as a labourer in brick-kiln of one Nand Kishore Shashi and some time prior to the alleged date of occurrence some bricks which were stacked fell upon him as the result of which the deceased died due to injuries and at the instance of one Deo Narayan Verma, Surpanch of Gram Panchayat, against whom the uncle of appellant had contested, the appellant has been falsely implicated in this case. 4. The trial court after trial found the appellant guilty under section 304, Part II IPC and accordingly convicted and sentenced him to undergo R.I. for a period of 7 years. 5. In order to prove its case the prosecution examined 10 witnesses. P.Ws.4, 5 and 6 have been declared hostile. P.W.10 has been tendered. P.W.2 is a formal witness who has proved his signature (Ext.1/1) on inquest report. P.W.8 Hari Prasad is the I.O. P.W.9 Mundrika Prasad is the doctor who had held autopsy on the dead body of the deceased. P.W.7 the informant, P.W.1 Maina Rai and P.W.3 Raj Kishore Rai are the witnesses to the occurrence. 6. P.W.9 the doctor, who had held autopsy on the dead body of the deceased, has stated that on 26.5.82 he held post mortem examination on the dead body of the deceased and did not find any external injury on his person but on dissection he found that the abdominal cavity contained bilious fluid mixed with ficeal matter and there was a rupture over the ante mesentric border of ileum and in his opinion death was due to shock as a result of rupture of stomach and ileum. According to him, the injury was grievous and was sufficient to cause death in ordinary course of nature and such injury was possible by fists and fats. 7. According to him, the injury was grievous and was sufficient to cause death in ordinary course of nature and such injury was possible by fists and fats. 7. P.Ws.1, 2 and 7 have stated that a she-buffalo and a calf belonging to the appellant had entered the field of informant and were grazing the sugarcane crops and deceased caught hold of that she-buffalo and calf when the appellant reached there and tried to snatch the cattie from the possession of the deceased and on protest he assaulted the deceased with fists. P.W.1 has said that besides assaulting the deceased by fists and blows, the appellant twisted his neck also but P.W.3 and 7 have not stated anything on the point of twisting the neck of the deceased and the doctor had also not found any injury on the neck of the deceased. In this view of the matter the evidence of P.W.1 that appellant had twisted the neck of the deceased can not be believed. But so far on the point of assault by blows given to the deceased by appellant is concerned, the evidence of P.Ws. 1, 2 and 7 is consistent. Although learned counsel appearing on behalf of the appellant has drawn my attention towards some contradiction in the evidence of these witnesses by submitting that P.W.1 has categorically stated that deceased died on the next day in the hospital and not after 6-7 days which is against the case of the prosecution. Similarly he has further submitted that P.W.3 and 7 have stated that they had gone to the place of occurrence along with the deceased but none of them has stated about the presence of other in his evidence. In my opinion, these are quite minor contradictions and not of such importance that on the point of assault make the case of prosecution doubtful. 8. In this case, the court below has observed that appellant did not use any weapon and admittedly the allegation against him is of assaulting the deceased with fists and therefore it is not a case in which it can be assumed that the appellant intended either to cause death of the deceased or any injury sufficient to cause death or even likely to cause death. On the basis of this observation the court below has found the appellant guilty under section 304, Part II IPC. 9. On the basis of this observation the court below has found the appellant guilty under section 304, Part II IPC. 9. From the entire evidence on record I find that the allegation against the appellant is that he gave some blows to the deceased. Admittedly the appellant at the time of occurrence was not armed with any weapon. The occurrence took place when the appellant tried to snatch his she-buffalo and calf from the possession of the deceased who made protest and thereafter the appellant gave some blows by fist to the deceased. No doubt the doctor, in his evidence, has stated that rupture in abdomen leading to the death of the deceased may be caused by fists and blows but then the facts of the case do not show that the appellant had any knowledge that the injuries which he was causing by his fists may likely cause death of the deceased. In absence of any knowledge which can be attributed to the appellant that the nature of injuries caused by him to the deceased was likely to cause death, the appellant can not be held guilty under section 304, Part II IPC because for an offence under section 304, Part II, knowledge that the act committed by the accused is likely to cause death is essential which is missing in the present case. So I find that this case comes within the purview of section 323 IPC. 10. The appellant was examined under section 313 Cr. P.C. on 3.10.86. On that day, his age was assessed as 55 years, So the appellant by this time must be about more than 65 years. In this view of the fact. I think that sentence for the period already undergone in custody and fine of Rs.1000/- will sufficient to meet the ends of justice. 11. In the result, this appeal is dismissed with modification to the effect that the appellant is sentenced for the period already undergone in custody in connection with this case and to pay a fine of Rs.1,000/- and in default to pay fine to undergo R.I. for two months. The amount of fine deposited by the appellant will be paid by the court below to informant, the mother of deceased. In case the informant is not found alive the amount will be deposited in Govt. treasury in usual manner. 12. The amount of fine deposited by the appellant will be paid by the court below to informant, the mother of deceased. In case the informant is not found alive the amount will be deposited in Govt. treasury in usual manner. 12. The appellant is directed to deposit the amount of fine within two months from today failing which his bail bonds shall stand cancelled and steps shall be taken td remand him to jail custody to serve the sentence passed in case of default in paying the amount of fine.