Short Note : The appellant Lalman in this appeal had been convicted under section 302 read with section 34 of the Penal Code for committing the murder of Ramgarib on 13th March 1972. Lalman's father Bholaiyan too was convicted under section 302 read with section 34 of the Code. Held : The question is as to what offence is made out against the appellant. The assault on Ramgarib by the appellant Lalman and his father Bholaiyan was not premeditated. Having regard to the circumstances of the case, it cannot be said that there was any common intention to murder Ramgarib. The only common intention that can be inferred is that both Lalman and his father Bholaiyan intended to cause grievous hurt to Ramgulam. The appellant cannot, therefore, be convicted under section 302 with the aid of section 34 of the Code. However, the appellant can be convicted under section 302 if it is proved that the head injury, which is described as Injury No.2, was caused by the appellant. On this point, Chandrakali (P.W.4) stated that it was the appellant Lalman who caused the head injury. She was, however, confronted with her case diary statement where she had stated that it was Bholaiyan who caused the head injury. Having regard to the contradictory statements given by Chandrakali, it cannot be held beyond reasonable doubt that it was the appellant who caused the injury which resulted in the death of Ramgarib. In the circumstances, the appellant cannot be convicted under section 302 of the Code at all. The appellant can only be convicted under section 325 read with section 34. Appeal partly allowed.