Judgment Anand Prasad Sinha, J. 1. This application is directed against the concurrent findings of the two courts below, by which the petitioners have been found guilty for the offence punishable under Sections 323/34 of the Indian Penal Code (hereinafter to be called as "the said Code") and each has been sentenced to pay a fine of Rs. 500.00 , in default to undergo simple imprisonment for 20 days each. 2. The prosecution case briefly stated is that while, the complainant was going to his shop the petitioners surrounded him. Thereafter Ram Khelawan Mistri (petitioner No.4) ordered to assault the complainant, upon which all the petitioners assaulted him by fists and slaps. 3. The learned counsel for the petitioners has mainly confined his argument on the appreciation of the evidence. It has been rightly argued that for an offence under Sec. 323 of the said Code, application of Sec. 34 of the said Code does not appear to be correct. It is because when there is assault on the back of the complainant, which is an offence under Sec. 323, the question of common intention in furtherance of assault did not arise at all. In order to apply Sec. 34 of the said Code which is for common intention posture and gesture are essential. However, I am inclined to accept that the occurrence has not been stated correctly. It is because the was no occasion for the petitioner Ram Khelawan Mistri to assault the complainant if he had ordered to assault. There was also no occasion for starting assault only after the order to assault. 4. Moreover, there were some injuries on the person of the complainant and in furtherance of that it is difficult to say that the manner of assault is correct, and unless specific allegation is made it is difficult to convict the accused persons. It is because that it is not stated that who had assaulted in what manner and in absence of that it is difficult to adjudicate that who had assaulted and who had not assaulted. In this view of the matter the petitioners are entitled to the benefit of doubt and acquittal. 5. In the result this application is allowed and the judgment and order of conviction and sentence passed against the petitioners are hereby set aside.