( 1 ) LEAVE granted. ( 2 ) THIS appeal has been filed against the judgment and order dated 12-9-2000 passed by the High Court of Madras in Criminal Appeal No. 54 of 1991. On 26-3-2001, when the matter came up for admission hearing, after considering the finding of fact against Accused 3, namely, Rajendran, son of ramasamy Gounder, his petition was rejected. Further, in this appeal the only question which requires consideration is whether the Appellant (Original accused 2) could be convicted for the offence punishable under Section 326 read with Section 34 IPC. , ( 3 ) IT is the prosecution version that four accused faced trial on the allegation that on 19-9-1989 in the morning Accused 1 had tied his cow in the lands allotted to the deceased Chinnasamy. Accused 1 and the deceased were brothers. The deceased immediately made a complaint to his mother. On the previous day of the occurrence also the accused went for tying the cow in the land of the deceased. It is alleged that when the deceased went to the land, PW 1 also followed him. At that time Accused 1 to 4 were at a distance of about five feet from where the cow was tied. All the four accused surrounded the deceased and there was a quarrel. Then Accused 2 hit the deceased on his left chest with his right elbow. Accused 3 hit the deceased on the back of his head with the spade handle. It is also alleged that Accused 1 hit the deceased on his left face with the firewood and Accused 4 gave fist- blow on the chest of the deceased. Thereafter, the deceased fell down and subsequently died. After completing the necessary investigation the accused were charge-sheeted for the offence punishable under Section 302 IPC. The sessions Court by its judgment and order dated 3-12-1999 convicted Accused 1 for offence punishable under Section 323 IPC and acquitted Accused 4. Accused 2 and 3 were convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment. ( 4 ) AGAINST that order, the convicted accused preferred an appeal. The high Court arrived at a conclusion that Accused 2 and 3 were required to be convicted for the offence punishable under Section 326 read with Section 34 ipc and sentenced them to rigorous imprisonment for five years. ( 4 ) AGAINST that order, the convicted accused preferred an appeal. The high Court arrived at a conclusion that Accused 2 and 3 were required to be convicted for the offence punishable under Section 326 read with Section 34 ipc and sentenced them to rigorous imprisonment for five years. Against that judgment and order this appeal is filed. ( 5 ) LEARNED counsel for the appellant submitted that considering the prosecution version as it is, it would be difficult to hold beyond reasonable doubt that the appellant who gave a push by his elbow to the deceased is required to be punished for the offence punishable under Section 326 IPC on the ground that the said injury had caused fracture of 3rd and 4th ribs of the deceased. He submitted that in any case, it is the prosecution version that accused 4 has also given fist-blows on the chest of the deceased and if that be accepted then it is likely that fist-blows given by Accused 4 might have caused fracture of the ribs. Finally, he submitted that at present the accused is aged about 66 years and he has undergone sentence at least more than 8 months and, therefore, sentence may be reduced appropriately. ( 6 ) CONSIDERING the facts stated above, in our view, it would be difficult to hold that the prosecution has proved its case beyond reasonable doubt that by giving elbow-blow to the deceased, the appellant has caused fracture of 3rd and 4th ribs of the deceased, particularly, in view of the evidence of the prosecution witnesses that Accused 4 gave fist-blows to the deceased. It is to be stated that the trial court has arrived at the conclusion that Accused 1 to 4 had no common intention to commit murder of Chinnasamy. After arriving at the said conclusion, the Court convicted Accused 2 and 3 for the offence punishable under Section 302 IPC. That order was rightly set aside by the high Court. But the High Court erroneously arrived at the conclusion that accused 2 was liable to be punished for the offence under Section 326 read with Section 34 IPC. After arriving at the said conclusion, the Court convicted Accused 2 and 3 for the offence punishable under Section 302 IPC. That order was rightly set aside by the high Court. But the High Court erroneously arrived at the conclusion that accused 2 was liable to be punished for the offence under Section 326 read with Section 34 IPC. Once it is held that all of a sudden a quarrel took place and at that time Accused 2 was unarmed and had only given an elbow-push to the deceased, it would be difficult to hold that he shared common intention with Accused 3 who gave spade handle-blow on the head of the deceased. Hence, at the most Accused 2 can be convicted for the offence punishable under Section 323 IPC and the sentence of 8 months already undergone by him is more than sufficient for the said offence. ( 7 ) IN the result, the appeal is partly allowed. The impugned order passed by the High Court is modified accordingly. The appellant, if not required in connection with any other case, be released forthwith.