Ram Labhaya J.-This is a jail appeal from the order of the Sessions Judge, L. A. D., dated 3-6-1950 by which Jinaram Kachari, appellant, was convicted under s. 460,1. P. C. and under 8. 304, Part u, I. P. C., read with S. 84, I. P. C. He was sentenced to undergo B. I. for 3 years under 8. 460 and to 4 years B. I. under 8. 304 Part: II. Both the sentences were to rue concurrently. [2] This case was admitted to a hearing on the question of sentence. The charge against the appellant was the two heads. It was as follows: (1) That you, on or about the 5th day of June 1946 at Seoni village under Rangia P. S. jointly with Jetha-ram Rabha and 2 others committed .lurking house breaking by night by cutting Sindhia and entering: into the dwelling house of Tomaram Deka and that you along with others at the time of committing such offence voluntarily caused death of Tomaram and thereby committed an offence punishable under S. 460, Penal Code, and within a cognizance of the Court of Sessions. (2) That yon, on or about the 5th day of June 1949 at Sioni village under Bangia P. 8. committed culpable 'homicide amounting to murder by causing the death of Tomaram Deka in furtherance of the common Intention of yourself and by other and two others and thereby committed an offence punishable under 3. 304/34, Fecal Code, and within a cognizance of the Court of Sessions. [3] Under the first bead; the charge was that the appellant with Jethuram Rabba and 2 others committed lurking house breaking by night by cutting Singhis and entering into the dwelling house of Tomaram Deka and that he long with others at the time of committing this offence voluntarily caused the death of Tomaram Deka. It is clear that according to the charge death of Tomaram was caused by the appellant along with others. This was regarded as a necessary ingredient of 8. 460,1. P. C. [4] Under the second head the accusation against him was that in furtherance of the common intention of all he committed an offence under 8. 801 read with S. 34, I. P. 0. This is a repetition of one of the ingredients of the first head of the charge.
460,1. P. C. [4] Under the second head the accusation against him was that in furtherance of the common intention of all he committed an offence under 8. 801 read with S. 34, I. P. 0. This is a repetition of one of the ingredients of the first head of the charge. The only question is as to whether, in the circumstances of this case, a separate conviction under 8. 304 read with S. 34, I. P. 0., was justifiable. The learned Government Advocate has conceded that it was not. The error in the verdict of the jury is apparent. by due to a misdirection on a question of law. This also is not disputed. [6] We agree with the learned Government advocate and hold that conviction under 8. 304, part II, read with S, 34, I. P. 0., cannot stand. The conviction under this bead is quashed and the petitioner is acquitted of the charge under 8. 304 part II read with 8. 34, I. P. 0. His conviction and sentence under s. 460, I. P. 0., shall stand. The appeal is allowed to the extent indicated above. [6] Thadani C. J-I agree. D.H. Appeal partly allowed,