JUDGMENT Lodge, J. - This is an appeal against convictions and sentences under S. 304, Part II, Penal Code, read with S. 34 of that Code. Four persons were placed on their trial before the Assistant Sessions Judge of Dacca and a common jury. The charge against all four was under S. 304/34, Penal Code. The jury returned a unanimous verdict finding all the accused guilty under S. 304, Part II. The learned Assistant Sessions Judge accepted this verdict. He sentenced Hasan Ali alias Hasu under S. 304, Part II to undergo rigorous imprisonment for five years and he sentenced the other three accused persons, namely, Sona Mia son of Noaj Ali, Kanchu son of Abdul Aziz and Sona Mia son of Jabbar Ali Sarkar under S. 304, Part II each to undergo rigorous imprisonment for two years only. The three accused persons who were sentenced each to undergo rigorous imprisonment for two years have appealed to this Court. 2. The case for the prosecution was as follows: In the afternoon on 27th January 1943, one Taleb Hossain was returning home when he saw the three appellants and the other accused Hasu standing near Jabbar Ali's house, Hasu armed with Ramdao and the three appellants armed with lathis. He had enmity with them and had reason to suppose that they might be about to assault him. In fear of assault he turned away and went in a different direction towards his home. Near the house of Warish Hazi, the four persons, namely, the three appellants and Hasu caught him up; the three appellants beat him with lathis, and he fell to the ground. Thereupon, Jabbar Ali Sarkar gave orders to chop off his head. Hasu then began to strike Taleb Hossain with his dao. Neighbours came, the assailants fled. Taleb Hossain was taken to the thana and then to hospital where he died on 7th February 1943. Medical evidence shows that he had a number of injuries caused by a sharp cutting instrument and his death was due to those injuries. Medical evidence further shows that there was only one injury found on the dead body which had been caused by a blunt instrument. The case for the prosecution depended principally upon the evidence of three eye-witnesses. It is essential to state exactly what those three eye-witnesses say. Medical evidence further shows that there was only one injury found on the dead body which had been caused by a blunt instrument. The case for the prosecution depended principally upon the evidence of three eye-witnesses. It is essential to state exactly what those three eye-witnesses say. Sabdar Ali, P. W. 2 deposed: I heard a cry from the west of our house that somebody was killing somebody. The cry was to the effect "Maira felalo; Maira felalo" (I am going to be killed I am going to be killed). I can at once to that direction. That was to the west of our cowshed. I found that it was Taleb Hossain, who was raising that cry. Sonamian son of Jabbarali Sarkar was then assaulting him with a lathi. Then Kanchu son of Abdul Aziz and Sona Mian son of Noajali and also Sonamian son of Jabbarali, all of them, then began to assault him with three lathis of bamboos. Hasu Mian son of Jabbarali Sarkar was then standing close by with a Ramdao in his hand. The Ramdao was 2 to 2 1/2 cubits in length. Jabbar Ali Sarkar also came there presently afterwards, and passed orders that Taleb Hossain's head might be chopped off. Then Hasu gave 3 or 4 strokes with the Ramdao more on his head than on his body. Then the assailants went away to Jabbarali's house. Sukur Mamud, P. W. 3 deposed as follows: I found that three persons Sona Mian son of Jabbar Ali, Sona Mian son of Noaj and Kanchu son of Abdul Aziz had been assaulting Taleb Hossain with lathis, and I further found that Jabbar Ali Sarkar came there and gave orders for chopping off his head and Hasu gave him several dao blows, 2 or 3 in number, on his head and person. The dao used was a Ramdao. It was a long ago. The assailants then went away to their respective houses. I know the assailants. Alfat Ali, P. W. 4 in his examination-in-chief stated: I heard a row and I ran to the place of occurrence and I found that two Sona Mian and Kanchu were beating Taleb Hossain with lathis in their hands. Hasan Ali then gave dao blows on his head with a Ramdao, after orders were given by Jabbar Ali Sarkar for taking off his head. Hasan Ali then gave dao blows on his head with a Ramdao, after orders were given by Jabbar Ali Sarkar for taking off his head. Thereafter, the assailants ran away to their respective homes. After assaulting Taleb Hossain, the first three assailants turned homewards when on the orders being given by Jabbar Ali Sarkar, Hasan Ali gave dao blows on the head of Taleb Hossain when he was still in a sitting posture. In cross-examination this witness stated: I caught hold of a piece of bamboo lying there being afraid that they might assault even the members of my family. Out of fear of me or for some other reason, those three assailants then left towards the south. Then Jabbar Ali Sarkar gave orders from that boundary line of his homestead, and then Hasu came there gave dao blows on the head of Taleb Hossain with the Ramdao in his hand. 3. Now, the evidence of Alfat Ali, if believed, indicates that the three appellants beat Taleb Hossain with lathis and desisted from the assault and turned away before any orders were given by Jabbar Ali and before any injury was inflicted by Hasu with a dao. The evidence of Sabdar Ali and Sukur Mamud is not quite so definite as that, but even that evidence does suggest that the three appellants struck Taleb Hossain with daos before Jabbar gave any order and did not strike him again after Jabbar Ali gave orders. Their evidence also indicates that before Jabbar Ali gave orders Hasan Ali did not join in the assault, that Hasan only joined in the assault after Jabbar Ali had given orders to chop off Taleb Hossain's head. The evidence of Sabdar Ali and Sukur Mamud is not inconsistent with the evidence of Alfat Ali. It is possible on this evidence to hold that the three appellants had entirely desisted from the attack before Hasan Ali took part therein and if that was so the three appellants would only be responsible in the eye of law for that part of the assault which took part prior to Jabbar Ali's orders. 4. In my opinion, it was essential that the learned Judge should explain to the jury exactly what would be the consequence if the three appellants had desisted from the assault before Hasan Ali took part therein. 4. In my opinion, it was essential that the learned Judge should explain to the jury exactly what would be the consequence if the three appellants had desisted from the assault before Hasan Ali took part therein. The learned Judge in his charge gave a general explanation as to the effect of S. 34, Penal Code. He did not ask the jury to decide whether all the accused intended the assault by Hasan Ali. He did not ask the jury to consider what would be the effect of S. 34 if the three appellants intended merely the beating which they had given before Jabbar Ali's orders were issued. In fact, the charge to the jury suggests that the jury had merely to find whether all the four accused then on trial took part in the occurrence, and if so, the jury were to find all the accused guilty of the same offence. In my opinion, if the law had been adequately explained to the jury it was possible, nay even probable, that the jury would have found the accused appellants before us guilty under S. 323/34 and they would have found Hasan Ali alone guilty under S. 304, Part II. There can be no doubt from the evidence and from the verdict of the jury that the accused persons were guilty of that part of the assault described by the three eye-witnesses. 5. In the result, in my opinion, the appeal should be allowed in part only. The appellants before us should be convicted not under S. 304, Part II but under S. 323, Penal Code. They have already served nearly seven months' rigorous imprisonment since their conviction. That period of imprisonment, in my opinion, is ample for the crime committed. Hence, it is ordered that the appeal is allowed in pact, the conviction is altered from one under S. 304, Part II to one under S. 323, Penal Code, and the sentence of the appellants in this case is reduced to the period already served. The appellants will be released forthwith. Latifur Rahman, J. 6. I agree.