(1) THIS appeal by special leave is directed against a judgment of the Punjab and Haryana High court and confined to the question of nature of the offence and sentence. Prosecutions case is detailed in the judgment of the High court and it is not necessary for us to repeat them all over again, particularly in view of the short point raised by the learned counsel for the appellant. According to the case as set out in the FTR as also in the charge framed against the accused persons it was said that 5 persons viz., Piara Singh the appellant, Sukhminder Singh, Gurmail Singh, Avtar Singh and Zora Singh participated in the assault and caused injuries on the person of the deceased from the wrong side of the Toki. During the course of the trial the accused persons claimed that they were not known to the informant or the witnesses and. therefore, they should be put at a TI parade so as to be identified by the witnesses. This plea however was not accepted by the court, obviously because of the fact that the informant had not only given the names of the accused but also had stated that the accused persons were known to the informant. The High court seems to have acquitted all the other four accused persons except the appellant Piara Singh mainly on the ground that in the circumstances a TI parade ought to have been held and since no TI parade had been held. the accused were entitled to the benefit of doubt. As the State has not filed any appeal against the acquittal of the other accused persons, hence we need not go into the question as to whether the view taken by the High court so far as the acquitted accused are concerned is correct or not The position as it stands on the face of the prosecution case as disclosed in the court is that only five named and known persons including Piara Singh participated in the murderous assault on the deceased of which four have been acquitted which would lead to the natural presumption that the other four accused persons were not there. In these circumstances, therefore, the conclusion is inescapable that Piara Singh alone cannot be convicted under S. 302 with the aid of S. 34. The appellant. Piara Singh would only be liable for the individual act which he may have committed in respect of the assault on the deceased. According to the evidence Piara Singh was armed with a Toki and said to have assaulted the deceased with the wrong side of the Toki. Piara Siagh, therefore, at the most would be liable under S. 323 of the Indian Penal Code. The view taken by us on the question of law is fully supported by the decision of this Court in Maina Singh v. State of Raiasthan , where a bench of this court observed at page 659 as follows:

AS has been stated, the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with the other named four co-accused, and with no other person. The trial in fact went on that basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. So when the other four co-accused have been given the benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant Maina Singh in causing the injuries to the deceased. It was as such not permissible to invoke S. 149 or S. 34, IPC. Maina Singh would accord- ingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.

(2) THE decision referred to above appears to be on all fours with the facts of the present case. In the circumstances, therefore, the appeal is allowed to this extent that the conviction of the appellant under S. 302/34 is set aside and the appellant is convicted under S. 323 and sentenced to one years Rl. As the appellant has already served out more than the sentence imposed by us, he wi