I. A. Ansari, J.:- By judgment and order, dated 25.03.2004, passed, in Sessions Case No. 33 of 2000, by the learned Sessions Judge, Nagaon, the present accused-appellant was convicted under Section 304 Part-II IPC and Section 323 IPC and sentenced to suffer rig­orous imprisonment for a period of 3 (three) years, for his conviction under Section 304 Part-II IPC, and to pay a fine of Rs. 1,000/- and, in default of fine, suffer rigorous imprisonment for another period of three months and also to undergo, for his conviction under Section 323 IPC, to suffer rigorous imprisonment for a period of 1 (one) month and pay a fine of Rs. 1,000/- and, in default, to suffer rigorous imprisonment for a further period of 15 days, both the sentences having been run concur­rently. 2. Aggrieved by his conviction and the sentences passed against him, the appellant has preferred this appeal. 3. The prosecution's case may, in brief, be described thus: Vijoy Rabi Das was as­saulted by the accused, on 18.09.1998, at 9 PM and on witnessing the assault on Vijoy Rabi Das, Shyam Badan Rabi Das (since deceased) and Nandalal Rabi Das intervened and they too were assaulted by Ismail Seikh by a bamboo lathi. With the injuries sustained on his stomach by a lathi Shyam Badan Rabi Das was admitted to the civil hospital, Nagaon, where he died after four days. An FIR having been registered, in this regard, on the basis of the information lodged by Vijoy Rabi Das, a case under Section 341/323/3257 302 IPC was registered. During the course of investigation, inquest was held over the dead body of Shyam Badan Rabi Das, the lathi, by which the assault was allegedly came to be caused, seized, post mortem examina­tion was conducted on the said dead body and, on completion of investigation, a charge sheet was laid under Sections 341/323/325/302 IPC. 4. During trial, charges under Sections 323 and 302 IPC were framed against the ac­cused-appellant. To the charges, so framed, the accused pleaded not guilty, hi support of their case, prosecution examined as many as 9 (nine) witnesses including the doctor. In his examination under Section 313 Cr.P.C., the accused denied that he had committed the offences alleged to have been committed by him, his case being that of total denial. No evidence was, however, adduced by the de­fence. In his examination under Section 313 Cr.P.C., the accused denied that he had committed the offences alleged to have been committed by him, his case being that of total denial. No evidence was, however, adduced by the de­fence. On conclusion of the trial, the learned trial Court, having found the accused- appel­lant guilty under Sections 323 and 304 Part-II of the IPC, convicted the accused accord­ingly and passed sentences against him as mentioned above. Aggrieved by his convic­tion and the sentences passed against him, the accused has preferred this appeal. 5. I have heard Mr. P. Kataki, learned counsel for the accused-appellant, and Mr. K Munir, learned Additional Public Prosecu­tor, Assam. 6. While considering the present appeal, what needs to be noted is that though attempt had been made on behalf of the accused-ap­pellant to show that the evidence given by P W1 and P W2 ought not to have been relied upon by the learned trial Court a close scrutiny of the evidence of these two witnesses clearly bring out that the accused-appellant had assaulted PW2, namely, Vijoy Rabi Das, and on witnessing the assault on P W 2, Shyam Badan Rabi Das, (i.e., the deceased) and PW6, namely, Nandalal Rabi Das, inter­vened. The accused picked up a lathi, which was lying nearby, and pushed the lathi into the stomach of Shyam Badan Rabi Das, who, having sustained injury on his stomach, was admitted into the civil hospital, where he died after four days. 7. The assault on PW2, namely, Vijoy Rabi Das, at the hands of the accused is well proved. Similarly the assault at the hand of the accused of Shyam Badan Rabi Das is also well proven inasmuch as the defence could not elicit anything from the cross-examination of the prosecution witness to show that their evidence given to the effect that the accused-appellant had pushed a lathi into the stomach of the said deceased is incorrect or untrue. 8. What is, now, pertinent to note is that according to the medical evidence on record, as revealed from the evidence of the doctor (PW7), on conducting examination of the abdomen, he found that peritoneum cavity contained dark coloured fluid. There was no external injury anywhere on the dead body. The doctor has opined that the cause of death was due to shock as a result of the injury to the stomach resulting into septic peritonitis. 9. There was no external injury anywhere on the dead body. The doctor has opined that the cause of death was due to shock as a result of the injury to the stomach resulting into septic peritonitis. 9. A bare scrutiny of the findings of the doctor and the opinion given by him clearly show that the death of Shyam Badan Rabi Das was not due to injury caused by the accused-appellant, but due to septic peritonitis. It is, thus, as a result of infection, which had developed subsequent to the causing of the injuries, which led to the death of the de­ceased, hi such circumstances, the injury, by itself, cannot be said to have caused the death of the said deceased. This aspect of the case appears to have not been taken note of by the learned trial Court. 10. In order to attract conviction of a per­son under Section 304 Part-II IPC, an injury has to cause death and the accused must be proved to have had, at least, the knowledge that the injury was likely to cause death. In the present case, the death was, in the light of the medical evidence on record, as a result of infection from the wound developed, the wound having been caused by the assault at the hands of the accused as described above. While, therefore, the accused could not have been convicted under Section 304 Part-II IPC, he could have been convicted under Section 324 IPC inasmuch as Section 324 IPC lays down, inter alia, that whoever, ex­cept in the case provided for by Section 334, voluntarily causes hurt by means of any in­strument for shooting, stabbing or cutting, or any instrument, which, used as a weapon of offence, is likely to cause death, shall be pun­ished with imprisonment of either description for a term, which may extend to three years, or with fine, or with both. In the facts and attending circumstances of the present case, the accused ought to have been convicted not under Section 304 Part-II IPC, but under Section 324 IPC inasmuch as he has volun­tarily caused hurt to the deceased by a lathi, which was used as a weapon of offence, is likely to cause death. In the facts and attending circumstances of the present case, the accused ought to have been convicted not under Section 304 Part-II IPC, but under Section 324 IPC inasmuch as he has volun­tarily caused hurt to the deceased by a lathi, which was used as a weapon of offence, is likely to cause death. As far as the conviction of the accused-appellant, under Section 323 IPC, for assault on PW 2 (Vijoy Rabi Das) is concerned, the evidence on record clearly makes out a case against the accused for his conviction under Section 323 IPC. 11. Thus, while the accused-appellant's conviction under Section 323 IPC, cannot be interfered with, conviction under Section 304 Part-II IPC, cannot be sustained and must, therefore, be set aside. 12. Because of what have been discussed and pointed out above, the conviction of the accused-appellant under Section 304 Part-II is hereby set aside; he is hereby convicted under Section 324 IPC. This apart, convic­tion under Section 323 IPC is hereby maintained. 13. Considering the fact that the accused-appellant had not, in the light of the evidence on record, assaulted the deceased with pre­determined mind nor was the accused carrying any weapon from before, this Court is of the view that a sentence of rigorous imprisonment of 4 (four) months with a fine of Rs. 500/- would meet the ends of justice and, in default of payment of fine suffer rigorous im­prisonment for another period of 15 days. 14. In the result and for the foregoing rea­sons, this appeal partly succeeds. While the conviction of the accused-appellant under Section 323 IPC and the sentence passed against him, in this regard, as mentioned above is maintained, the conviction and sentence of the accused-appellant under Section 304 Part-II IPC is, as mentioned above, set aside, he is convicted under Section 324 IPC and he is sentenced, for his conviction under Sec­tion 324 IPC, to suffer rigorous imprisonment for a period of four months with a fine of Rs. 500/- and, in default, suffer rigorous impris­onment for another period of 15 days. The sentences passed against the accused-appel­lant, for his conviction under Sections 323 and 324 IPC of the IPC, shall run concurrently. 15. The period of imprisonment, already undergone by the accused- appellant, shall be set off in terms of the provisions of Sec­tion 428 Cr.P.C. 16. 500/- and, in default, suffer rigorous impris­onment for another period of 15 days. The sentences passed against the accused-appel­lant, for his conviction under Sections 323 and 324 IPC of the IPC, shall run concurrently. 15. The period of imprisonment, already undergone by the accused- appellant, shall be set off in terms of the provisions of Sec­tion 428 Cr.P.C. 16. The accused-appellant is hereby di­rected to surrender, forthwith, in the Court of learned Chief Judicial Magistrate, Nagaon, in order to undergo the sentences of imprisonment passed against him for his conviction under Section 324 IPC and Section 323 IPC. 17. With the above observations and di­rections, this appeal is disposed of. 18. Send back the LCR.