JUDGMENT M. K. Mukherjee, J: The petitioner and two others were placed on trial before the learned Additional Sessions Judge, 1st Court Murshidabad, to answer a charge under s. 302 read with s. 34 of the Indian Penal Code, which was based on the following allegations: 2. Over construction of a boundary wall around his house on 29.1.88, Saraj Dutta (P.W.2) had a quarrel with the members of the family of the petitioner. To settle the matter the petitioner requisitioned the services of Ram Chandra Das (the deceased). Pursuant thereto, Ramchandra came and tried to pacify both the parties. All on a sudden, the petitioner threw a brickbat aiming Ram Chandra and he fell down on the ground. Thereafter, the other two accused also assaulted Ram Chandra and his wife Niyoti Das. Subsequently, Ram Chandra died in the hospital. 5. On conclusion of the trial, the learned Judge, while acquitting the three accused of the charge under s. 302/34 convicted them under s. 323/34 of the Indian Penal Code and sentenced each of them to suffer simple imprisonment for 14 days. Aggrieved thereby, the petitioner alone has filed this revisional application. 4. On perusal of the judgment, we find that the learned trial Judge has recorded a categorical finding that on the evidence adduced during trial, it could not be said whether the petitioner or Gangadhar, (one of the other two accused) threw brickbat towards Ram Chandra, which hit him on his head and caused his subsequent death. The learned Judge has, however, found that there was a sudden fight between the two groups, and in course of exchange of brickbats by them, Ram Chandra died and, therefore, all the three accused persons were guilty of the offence under s. 325/34 of the Indian Penal Code." 5. We are unable to sustain the impugned conviction on the basis of the above finding for the simple reason that to convict a person under s. 323 of the Indian Penal Code, it has to be established, beyond reasonable doubt, that he had actually caused the voluntary hurt. To put it differently, considering the nature of offence, which is punishable under s. 323 of the Indian Penal Code, there is no scope for bringing in aid s. 34 of the Indian Penal Code to punish a person, who himself has not voluntarily caused hurt. 6. To put it differently, considering the nature of offence, which is punishable under s. 323 of the Indian Penal Code, there is no scope for bringing in aid s. 34 of the Indian Penal Code to punish a person, who himself has not voluntarily caused hurt. 6. We, therefore, allow this application, set aside the impugned order of conviction and sentence and acquit the petitioner. S.P. Rajkhowa, J.: I agree. Impugned conviction and sentence set aside.