GUMAN MAL LODHA, J.—This appeal is directed against the judgement of the trial court whereby the appellants, namely, Moharsingh and Narain Singh, were convicted and sentenced as under:— Narain Singh & Moharsingh, U/s 304 Part 2 I. P. C—5 years R. I, U/s 323 I.P.C.-3 months R.I.

2. A short point has been argued by Shri B.K. Pathak the learned counsel for the appellants, but with great emphasis that the offence cannot travel beyond S. 325 I.P.C. only assumption that the finding of the trial court regarding appellants joining at the house of Kishansingh and coming out together with lathi and beating (he deceased, are correct.

3. Developing his submissions, Shri Pathak pointed out that fatal injury has been caused by Kishan Singh who is not appellant in this appeal and has already been convicted by separate trial earlier. These appellants of this appeal are said to be authors of the other injuries which are simple in nature.

4. An important features of this case is that the present appellants Narainsingh and Moharsingh are not related to Kishansingh nor live in the same house or nearby, and the prosecution has not shown as to how they came in the house of Kishansingh and what was the motive of joining Kishansingh accused.

5. Shri Pathak then argued that as a matter of fact only simple injuries were caused by the present appellants and, therefore, they are liable for the offence under S. 325 I. P. C.

6. Shri S. B. Mathur, the learned Public Prosecutor has opposed the appeal and according to him, all are responsible for the act of Kishansingh accused and as they came together and with common object, they, by virtue of Sec. 341 I.P.C. are liable for the injuries on the person of the deceased inflicted by Kishansingh accused, which resulted in the death of Sukha (deceased).

7. I have carefully considered the rival contentions of the learned counsel for the parties. It would be pertinent to refer to the judgment in Ghariby vs. State (1) wherein the observations of full Bench decision in State vs. Saidu Khan (2) were extracted and those observations were of the then Justice Wanchoo who ultimately adorned the office of the Cheif Justice of India. Para 9 reads as under:

"If we now turn to S. 304 Penal Code, we find out that before a person can be convicted under the latter part of the section, the court must record a finding that the act which caused death was done with the knowledge that it was likely to cause death, but without any intention to cause death, , or to cause such bodily injuries as is likely to cause death. Accordingly if four persons attach another with the lathis, with the common intention of beating him we have an illustration of a criminal act done by several persons in furtherance of the common intention of ail. If death is caused to as a result of one of the injuries inflicted by some of these persons, they would all be surely guilty under S. 325 Penal Code, in view of the provisions of S. 34, the question may arise, if held guilty of grover offence under Sec. 307 Penal Code. It will be seen that a particular knowledge is an essential ingredient of the offence under S. 304, latter part. Unless a Court can record a finding that an accused person had the knowledge that the act done by him and bis companion was likely to cause death the accused cannot be rightly held guilty under S. 304, second part. This was the view taken by a Full Bench of our court in-State Vs. Saidu Khan, AIR 1951 All 21 (A). At page 43 of the report Wanchoo J, observed as follows:

"I am, therefore, of opinion that it is possible to convict an accused person of an offence under S. 304, Part II, read with S. 34, Penal Code, provided the court is of the opinion that each person taking part in committing the crime in furtherance of the common intention of all had knowledge that their act was likely to cause death. This is my answer to the first question."

8. The first question referred to the Full Bench was, "whether it is possible to convict an accused person

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