Mandhata Singh, J.-Written report of the informant Sk. Chuttu @ Bhuttu is made basis for the F.I.R. which in short is that on 18.1.1992 at about 9.30 p.m. there cropped up a quarrel in between the informant and the appellant along with Jainuddin for land. They abused which the informant protested. Ashiruddin ordered to teach a lesson complying thereon all the accused persons entered informant's courtyard, surrounded him, attempted to cause assault, his wife Gulejan with a baby in her lap came, intervened just to rescue her husband which was reacted by the accused appellant in pushing her to down along with her child, result was falling down of the child on earth and her death, thereafter accused persons including this appellant left the place.

2. After concluding the trial, appellant is only convicted for the offence under Section 323 and 304/34 of the Indian Penal Code, by passing impugned judgment and order of conviction and sentence validity of which has been questioned through filing of this appeal.

3. In all six witnesses were examined. They are PW 1 Sk. Jalaluddin, PW 2 Chuttu @ Bhuttu informant of the case, PW 3 Samiruddin brother of the informant, PW 4 Gulejan wife of the informant, PW 5 Doctor and PW 6 the I.O. of the case.

4. All the four material witnesses namely P.Ws 1, 2, 3 and 4 are constant on the point that Gulejan was pushed by this appellant. She fell down with her child in lap which resulted into the death of the child. They are from the same family, may be said interested raised in the trial Court also but rightly has been replied that it was 9.30 p.m. of the month of January in rural area, possibility of coming of others was rare so, there was no reason to disbelieve or doubt these witnesses about pushing the lady which has been taken for constituting offence under Section 323 and 304 of the Indian Penal Code. Doctor is on the point of death of the child who conducted post mortem on dead body of the child and I.O. of the case is on the point that investigation was fir and in their statement (examination in chief or cross examination) also no infirmity is found.

5. Submission of learned counsel for the appellant is specific on the point that the act alleged and established does not constitute the offence under Section 304 of the Indian Penal Code as intention or knowledge is lacking, more specifically it is said that intention at all was lacking for Gulejan even that she was to be killed. Nature of injury would constitute offence under Section 304 of the Indian Penal Code about having knowledge that act of pushing would result in her death which also was done while she came in rescue of her husband is her chief is doubted. She was not assaulted in any other way, admittedly no harm was to be caused to the child in her lap nor any direct act was done to harm the child. It only can be said that a lady was pushed but no care was taken that a child was also in her lap, if that is taken into consideration, constitution of offence under Section 304 of the Indian Penal Code does not arise. Section 304 of the Indian Penal Code runs as follows :

"304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with (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."

6. Part I describes the act with intention and part II describes the act with knowledge and both are found lacking in this case then Section 304A of the Indian. Pena