1. Three accused persons including the present appellant, who was accused No. 1 in the Court below, were tried before the Additional Sessions Judge, Kolhapur, for an offence of murder of one Bapu Tukaram Patil, the charge against the three accused persons being that on or about 18-9-1955, in Shaha-pur village they and one Shankar Nalavade, since absconding, in furtherance of a common intention of all intentionally caused the death of Bapu Tukaram Patil of Kodoli and thereby committed an offence punishable under section 302 read with Section 34, Indian Penal Code. At the trial, the learned Judge acquitted Nos. 2 and 3, hut convicted accused No. 1 under section 326 read with section 34 and sentenced him to suffer rigorous imprisonment for a period of two years. Accused No. 1 now appeals from his conviction and the sentence imposed upon him.

2. The order of conviction runs as follows:

"In the result, I acquit accused No. 1 of the charge under Section 302 but convict him under Section 326 read with Section 34 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for two years. Accused Nos. 2 and 3 are acquitted of the charge and they are set at liberty".

Now,