JUDGMENT Henderson, J. - Only one point has been taken on behalf of the Appellant. He has been convicted of an offence punishable under sec. 304, Part II of the Indian Penal Code in connection with the death of a man named Lachman. There is no evidence which would entitle the jury to say that this particular Appellant actually caused the unfortunate man's death. Accordingly, he could only be convicted under the provisions of sec. 34 of the Indian Penal Code. The learned Deputy Legal Remembrancer has drawn our attention to what is said with regard to that matter by the learned Judge in his charge to the jury. Unfortunately, it was entirely divorced from the realities of the case and the evidence bearing upon it was not specifically put before the jury at all. After reading the section the learned Judge says this: You will have to carefully consider whether the persons had all really wished and intended that the particular act was to be performed by them. If you think that this assault on the head of Lachman was intended by every one i.e., to say that everyone intended that such an injury to cause death or grievous hurt should be inflicted then you would think that the accused had come within the purview of sec. 34 I. P. C. 2. Now, as a mere exposition of general law that statement is quite all right. But it has no reference to the realities of the case, because upon it the learned Judge should have framed a charge of murder, read with sec. 34 and, in the alternative, a charge of grievous hurt, read with sec. 34, I. P. C. In my opinion, that is the proper way in which the case ought to have been put before the jury. Having been so put, it is quite possible that they would have found this particular Appellant guilty of grievous hurt. But that was not the way in which the case was actually put before the jury. The charge was one punishable under sec. 304, Part II of the Indian Penal Code. As I had to point out only the other day, the moment the prosecution drop the murder charge, the only common intention is one to give a beating; whereas sec. 34 deals with intention, Part II of sec. 304 deals with knowledge. The charge was one punishable under sec. 304, Part II of the Indian Penal Code. As I had to point out only the other day, the moment the prosecution drop the murder charge, the only common intention is one to give a beating; whereas sec. 34 deals with intention, Part II of sec. 304 deals with knowledge. The result is that in order to establish this particular charge there has to be a peculiar combination of knowledge and intention which would hardly arise in real life. I do not say that the jury cannot possibly convict on such a charge; but before they do so the matter must be thoroughly explained to them. The evidence bearing upon the intention on the one hand and the knowledge on the other must be carefully put before the jury. Nothing of that kind was done in the present case and it is, therefore, impossible to uphold this verdict. 3. It was suggested to us by the learned Deputy Legal Remembrancer that we might alter the conviction into one under sec. 325. Now, here again, that is a section to which it is not easy to apply sec. 34. Grievous hurt is a pure creation of the statute, and it cannot be easy to say that it was the common intention to cause one particular form of hurt rather than another. Provided this is explained to a jury and provided that evidence with regard to a common intention is carefully laid before them, their opinion on such a point will be extremely valuable. We are not prepared to go into the evidence ourselves and say whether we think that the common intention was to cause grievous hurt rather than simple hurt. In view of the fact that the muddle was made by the prosecution itself, I am not prepared to harass the Appellant with a retrial. 4. I would accordingly allow this appeal, alter the conviction into one under sec. 323 of the Indian Penal Code and reduce the sentence to rigorous imprisonment for one year. 5. I am of the same opinion and agree with the proposed direction of my learned brother. 4. I would accordingly allow this appeal, alter the conviction into one under sec. 323 of the Indian Penal Code and reduce the sentence to rigorous imprisonment for one year. 5. I am of the same opinion and agree with the proposed direction of my learned brother. There is no doubt, to my mind, that the reason why the prosecuting authorities in this country shrink from bringing murder charges against accused persons is that they are well aware of the disinclination on the part of the jury to bring in verdicts which may entail the infliction of the death penalty. That, however, does not absolve the learned Judges from altering, if necessary, the charges against the accused if the evidence would justify such alteration. What so often happens and has happened in this Court is that the Judge accepts what he thinks is the line of least resistance and the Court then becomes involved in deciding a very difficult and a very artificial question as to whether there can be a common intention on the part of a band of ruffians to commit culpable homicide not amounting to murder where on the actual question of the crime the basis is one of both intention and knowledge. As my brother has pointed out, it is not impossible to conceive a common intention to commit a crime resulting in death which does not absolutely amount to murder. But circumstances would justify that such a charge must be very infrequent. I have no doubt to my mind that the proper charge on the prosecution evidence in this case was to put to the jury the question of a common intention to commit murder with an alternative lesser intention to commit a crime of inflicting grievous hurt. In view of the observations I have made above, I agree with the order made by my learned brother.