Short Note : 1. Taking the drawbacks pointed out in the prosecution evidence it is established beyond doubt that there were four or five persons who had obstructed the deceased from taking the cattle away to the cattle pond and one of them was the appellant who dealt a single blow on the head of Gulab. Since another associate has also used the Lathi on the head of Gulab it is not clear as to whose fatal blow fell over the bead and caused death of Gulab. In these circumstances, by dealing a single Lathi How on the head and this blow not being conclusively established to be fatal it is not in order to convict the appellant under section 304, Part II IPC of the Indian Penal Code, and since the appellant was a member of an unlawful assembly the common object of which could be of assaulting and to cause grievous hurt, since fractures were found the proper section to convict the accused would be Sec. 148 and sections 325/149 IPC. Appeal partly allowed.