GUMAN MAL LODHA, J.—This appeal is directed against the judgement of the trial court whereby the appellants, namely, Moharsingh and Narain Singh, were convicted and sentenced as under:— Narain Singh & Moharsingh, U/s 304 Part 2 I. P. C—5 years R. I, U/s 323 I.P.C.-3 months R.I. 2. A short point has been argued by Shri B.K. Pathak the learned counsel for the appellants, but with great emphasis that the offence cannot travel beyond S. 325 I.P.C. only assumption that the finding of the trial court regarding appellants joining at the house of Kishansingh and coming out together with lathi and beating (he deceased, are correct. 3. Developing his submissions, Shri Pathak pointed out that fatal injury has been caused by Kishan Singh who is not appellant in this appeal and has already been convicted by separate trial earlier. These appellants of this appeal are said to be authors of the other injuries which are simple in nature. 4. An important features of this case is that the present appellants Narainsingh and Moharsingh are not related to Kishansingh nor live in the same house or nearby, and the prosecution has not shown as to how they came in the house of Kishansingh and what was the motive of joining Kishansingh accused. 5. Shri Pathak then argued that as a matter of fact only simple injuries were caused by the present appellants and, therefore, they are liable for the offence under S. 325 I. P. C. 6. Shri S. B. Mathur, the learned Public Prosecutor has opposed the appeal and according to him, all are responsible for the act of Kishansingh accused and as they came together and with common object, they, by virtue of Sec. 341 I.P.C. are liable for the injuries on the person of the deceased inflicted by Kishansingh accused, which resulted in the death of Sukha (deceased). 7. I have carefully considered the rival contentions of the learned counsel for the parties. It would be pertinent to refer to the judgment in Ghariby vs. State (1) wherein the observations of full Bench decision in State vs. Saidu Khan (2) were extracted and those observations were of the then Justice Wanchoo who ultimately adorned the office of the Cheif Justice of India. It would be pertinent to refer to the judgment in Ghariby vs. State (1) wherein the observations of full Bench decision in State vs. Saidu Khan (2) were extracted and those observations were of the then Justice Wanchoo who ultimately adorned the office of the Cheif Justice of India. Para 9 reads as under: "If we now turn to S. 304 Penal Code, we find out that before a person can be convicted under the latter part of the section, the court must record a finding that the act which caused death was done with the knowledge that it was likely to cause death, but without any intention to cause death, , or to cause such bodily injuries as is likely to cause death. Accordingly if four persons attach another with the lathis, with the common intention of beating him we have an illustration of a criminal act done by several persons in furtherance of the common intention of ail. If death is caused to as a result of one of the injuries inflicted by some of these persons, they would all be surely guilty under S. 325 Penal Code, in view of the provisions of S. 34, the question may arise, if held guilty of grover offence under Sec. 307 Penal Code. It will be seen that a particular knowledge is an essential ingredient of the offence under S. 304, latter part. Unless a Court can record a finding that an accused person had the knowledge that the act done by him and bis companion was likely to cause death the accused cannot be rightly held guilty under S. 304, second part. This was the view taken by a Full Bench of our court in-State Vs. Saidu Khan, AIR 1951 All 21 (A). At page 43 of the report Wanchoo J, observed as follows: "I am, therefore, of opinion that it is possible to convict an accused person of an offence under S. 304, Part II, read with S. 34, Penal Code, provided the court is of the opinion that each person taking part in committing the crime in furtherance of the common intention of all had knowledge that their act was likely to cause death. This is my answer to the first question." 8. The first question referred to the Full Bench was, "whether it is possible to convict an accused person of an offence under. This is my answer to the first question." 8. The first question referred to the Full Bench was, "whether it is possible to convict an accused person of an offence under. S. 304 Part IT read with S. 34 Penal Code." 9. In the light of the above observation let, me examine ingredients and impart of S. 34 IPC which reads as under: "34. Acts done by several persons in furtherance of common intention, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 10. In the treatise, Indian Penal Code by All India Reporter Ltd. Nagpur(Vol. 1) (WW. Chitaley & V.B. Bakhale-3rd edn.) at page 161, the author had discussed the import of S. 34 I.P.C. as under: "Suppose, on the evidence, the Court comes to the conclusion that A,B and C only planned to do such acts as could be expected to cause grievous hurt. In such a case, although death is actually caused as a result of the attack on D, this section will not apply and the assailants will not be liable for the death. The reason is that the doing of an act causing the death of D was not within the scope of their design. If the Court finds that any one of the assailants was responsible for the death, he alone will be liable only for causing grievous hurt. Thus, the same criminal act may give rise to two offences (1) grievous hurt and (2) culpable homicide. This shows that the expressions "criminal act" and "offence" do not mean the same thing for the purpose of this section. When it is said that several persons do "a criminal act" in furtherance of their common intention, It is not an offence that they plan or carry out. But it is an act or series of acts that they plan and carry out. The offence or "offences" are committed in the course of their carrying out their criminal design. When it is said that several persons do "a criminal act" in furtherance of their common intention, It is not an offence that they plan or carry out. But it is an act or series of acts that they plan and carry out. The offence or "offences" are committed in the course of their carrying out their criminal design. When determining the question whether this section applies to a case, what has to be seen is whether a "criminal act" as explained above was planned and whether the act which constituted by the act done in the same manner and to the same extent as the actual does of such act." 11. Three questions posed were, (a) what was the kind of act planned, (b) what was the act actually done and, (c) whether such act was of the kind planned. There after, their answers were given as noted above. Shri S. B. Mathur on the contrary, placed reliance upon the decision of the Apex Court in Mer Dhanna Sida vs. State of Gujarat (3) wherein while dealing with impart of S. 304 Part 2 IPC their Lordships of the Apex Court observed that inference regarding common intention to cause injuries which were likely to cause death, inference can be drawn from the number of injuries caused, the circumstances in which they came to be caused and the ferocity of the attack on the deceased; that, all persons participating in such attack would be imputed with the knowledge that they were likely to cause injuries which were likely to cause death; and factual and medical evidence in that case; their Lordships held that the accused must be convicted under S. 304 Part II read with Section 34 I. P. C. 12. In the present case, it has not come on record that the accused party (all appellants along with Kishansingh) planned to commit the murder of Sukha. That can easily be inferred because the trial court has not convicted this accused Kishansingh for the offence under S. 302 but convicted them under S. 304 Part II IPC. Section 304 Part II reads as under: "304. Punishment for culpable homicide not amounting to murder. That can easily be inferred because the trial court has not convicted this accused Kishansingh for the offence under S. 302 but convicted them under S. 304 Part II IPC. Section 304 Part II reads as under: "304. Punishment for culpable homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life; or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with, fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death." Now since there was no intention to cause death, the plan of the accused being not there, only question to be considered is what was the act done. Obviously the act done by Kishansingh accused causing fatal injuries was not according to the common plan of all the accused. Kishansingh accused can be attributed knowledge of causing death ordinarily but that knowledge cannot be extended by any legal fiction to the present appellants, because, S. 34 IPC contemplates common intention. In view of the above, the conviction of these appellants cannot be sustained under S. 304 Part 2 I. P. C. These accused appellants can be attributed intention to cause grievous injuries which were caused by Kishansingh accused, and, therefore, for that they can be held guilty under S. 325 IPC. The appellants have been convicted and sentenced by the trial court for 5 years, R.I. Their conviction and sentence are altered from S. 304 Part II IPC to S. 325 IPC. 13. In the result, this appeal is partly allowed to the extent that while maintaining the conviction & sentence of the accused—appellants under S. 323, IPC, their conviction is altrered from S, 304 Part 2 IPC to S. 325 IPC they are sentenced to undergo 2 years R. 1. and to pay a fine of Rs. 1,000/- each. The appellants would entitle to the benefit of S. 438, Cr. and to pay a fine of Rs. 1,000/- each. The appellants would entitle to the benefit of S. 438, Cr. P. C. The appellants are on bail. They shall surrender to their bail bonds. The trial court is directed to execute the sentence upon the appellants according to law.