Banerji and Aikman, JJ.
1. This is an appeal by Bhola Singh and his son Jauhari against their conviction under Section 304 of the Indian Penal Code and the sentence of transportation for life passed on each of them. It appears that a Civil Court Amin went to attach the cattle of the accused in execution of a decree of a Court of Small Causes. He was accompanied, among others, by one Ganeshi Lal, a servant of the decree-holder. When the Amin's party was seen approaching, the accused untied their cattle and drove them off to the jungle. One buffalo was seized, and Ganeshi Lal and another man, Ram Charan, went in pursuit of the other cattle. The appellants and Khem Sahai, another son of Bhola Singh, who has absconded, went after them and attacked them with lathis. Ganeshi Lal received a blow on the head which fractured his skull, and also injuries on the right side of the chest. As a result of the blow on the head he died shortly afterwards. These facts are fully proved by the witnesses for the prosecution. None of them, however, is able to say whose blow caused the fracture of the skull which resulted in Ganeshi Lal's death. The question therefore is whether on the evidence the two appellants can be convicted of causing the death of Ganeshi Lal. As it has not been proved that the appellants or either of them struck the fatal blow, and as there is nothing to show that there was a common intention on the part of all the three assailants to inflict such injury as was likely to cause death, we are of opinion that the appellants cannot be convicted of the offence punishable under Section 304 of the Indian Penal Code. In the absence of evidence to show that there was a common intention to cause death or such injury as was likely to cause death we think that Section 34 of the Indian Penal Code would not apply. Our view is supported by the ruling in Queen-Empress v. Duma Baidya (1896) I.L.R., 19 Mad., 488. In that case three persons assailed the deceased and gave him a beating in the course of which one of the prisoners struck the deceased a blow on the head which resulted in his death. All three were convicted of causing the death of the deceased, and were sentenced to transportation for life. In appeal the learned Judges, whilst sustaining the conviction of the accused who had struck the fatal blow, held that in the absence of proof that all the prisoners had a common intention to inflict injury likely to cause death, the other accused could not be convicted of murder. We have now to consider of what offence the appellants should be convicted. We think that, having regard to the fact that lathis were used by all the three assailants, and that the probable result of the use of lathis was at least grievous hurt, the common intention of the assailants may be deemed to have been to cause grievous hurt. We are therefore of opinion that all of them must be held to be guilty of causing grievous hurt. We so far allow the appeal as to set aside the conviction under Section 304 and the sentence of transportation for life, and, convicting the appellants under Section 325 of the Indian Penal Code, sentence each of them to rigorous imprisonment for five years with effect from the 4th of October 1906.