JUDGMENT

N. P. SINGH, J.:—This appeal is on behalf of the sole appellant who has been convicted under Section 304, Part I of the Indian Penal Code (hereinafter referred to as "the Penal Code") and has been sentenced to undergo rigorous imprisonment for two years by the High Court.

2. The appellant along with Sitaram Mandal and Tribhanga Mandal were charged for offence under Sec. 307 read with Section 34 for attempting to commit the murder of Gopal Chandra Ravidas. They had also been charged under Section 379 of the Penal Code for committing the theft of the paddy crops from plot No. 2760 of village Amjhore, P.S. Baliapur, District Dhanbad.

3. According to the prosecution case, on 26-10-1975 at about 12.00 noon the informant Bishnu Ravidas (PW-9) and his brother Gopal Chandra Ravidas having learnt that the accused persons were harvesting their paddy from the plot aforesaid went there. When they protested as to why their crops were being harvested, accused Sitaram Mandal caught hold of the hands of Gopal Chandra Ravidas and Harendra Nath Mandal, the appellant, assaulted Gopal Chandra Ravidas on his head with the 4back portion of a Tangi. At that very time, accused Tribhanga Mandal assaulted informant with a lathi on his right hand.

4. On a consideration of the evidence on record, the learned Sessions Judge convicted appellant Harendra Nath Mandal and Sitaram Mandal for offence under Section 30% read with Section 34 of the Penal Code and sentenced the appellant, Harendra Nath Mandal to undergo rigorous imprisonment for seven years and accused Sitaram Mandal to undergo rigorous imprisonment for five years. Accused Tribhanga Mandal was convicted under Section 323 and sentenced to undergo rigorous imprisonment for six months. All of them were also convicted under Section 379 of the Penal Code and sentenced to one year rigorous imprisonment each. The sentences were directed to run concurrently.

5. During the pendency of the appeal before the High Court, Sitaram Mandal died and his appeal abated. The learned Judge, however, set aside the conviction and sentence under Section 307 read with Section 34 passed against the appellant Harendra Nath Mandal but convicted him under Section 304, Part I of the Penal Code and sentenced him to two years rigorous imprisonment. The conviction and sentence under Section 379 were also set aside. The conviction and sentence under Section 323 of the Penal Code against Tribhanga Mandal were also set aside and he was acquitted of the charges levelled against him. It was rightly urged on behalf of the appellant that when Gopal Chandra Ravidas to whom this appellant is alleged to have given a blow by the back portion of a Tangi, has survived the injury aforesaid, there was no question of convicting the appellant under Section 304, Part I of the Penal Code.

6. Section 304 does not create an offence but provides the punishment for culpable homicide not-amounting to murder. In view of Section 299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In view of Section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. It is well known that if a death is caused and the case is covered by any one of the five exceptions of Section 300 then such culpable homicide shall not amount to murder. S. 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the