ORDER : M.M. Punchhi, J. 1. The appellant and his co-accused were convicted by the Court of Session individually for offence under Section 302 Indian Penal Code. The High Court, on appeal, converted their conviction to be under Section 302 read with the aid of Section 34 Indian Penal Code. "Leave" was granted to the appellant alone on the nature of the offence as also on the question of sentence; whereas it was declined to the co-accused of the appellant. This is how the matter stands individualised. 2. We have to go by the established case of the prosecution in order to ascertain the nature of offence and the consequential sentence. The case as found in the courts below is that the deceased was a relative of the convicted accused and had been associated in performance of Pooja in the house of the latter. On the fateful night, the convicted accused coupled with his wife, PW 7, had gathered some people as well as the deceased and the appellant in their house to perform a Pooja, whereafter some sort of black magic vibration was supposed to have entered in the body of the convicted accused under the influence of which he was supposed to and gave a beating to the deceased in order to rid her of some evil while in the pooja-room in the presence of the appellant, PW 7 and others. The deceased thereafter was left for a few hours in that condition in the pooja-room while her injuries were bleeding. In the morning, it was felt necessary to bring out the deceased from the pooja-room. The appellant then is alleged to have dragged the deceased by her long hair to the bedroom. It is the admitted case that when that was done, the deceased was alive. She breathed her last after she was dragged and laid in the bedroom. This is the role of the appellant. 3. The prosecution put in the mouth of PW 7 that thrashing had been administered to the deceased both by the appellant and the convicted accused. The courts below have, however, not believed PW 7 in that regard. It has been found that she had made a bid to minimise the role of the convicted accused. The other PWs, however, stated that only the convicted accused had caused the beating though the appellant was present at that time. The courts below have, however, not believed PW 7 in that regard. It has been found that she had made a bid to minimise the role of the convicted accused. The other PWs, however, stated that only the convicted accused had caused the beating though the appellant was present at that time. Now, it has to be seen whether the presence of the appellant at that juncture would make him guilty of offence under Section 302 read with Section 34 Indian Penal Code. Secondly, it would have to be determined whether the act of dragging attributed to him is ratificatory of the injuries already inflicted on the deceased, and lastly if the appellant is held responsible only for dragging, could his act bring him within the grip of Section 302 Indian Penal Code aided by Section 34? We have carefully thought over the matter and are of the opinion that it was the convicted accused alone who seems to have got into some state of mind known to be black magic/witchcraft whereupon he took upon himself the task of beating the deceased. It has come in evidence that he had oft done similar acts to others as well who would flock there on the basis of a reputation of a sort which he had acquired in the past. Thus, at the time when beating was administered to the deceased, it cannot be said with certainty that the appellant shared the common intention with the convicted accused, inasmuch as the appellant could well have entertained the belief that the motive behind the administration of beating was to do her some good, with her consent. If common intention was wanting, to begin with, it cannot be said that the appellant acquired commonality and was guilty thereof on the mere fact that the deceased died ultimately. The second part of the episode that the deceased was dragged by the appellant from the pooja-room to the bedroom can, in no event, be termed as ratificatory, for whatever harm stood caused to her, was already there, the blame of which lay on the convicted accused and not on the appellant. He can only be held guilty for dragging and whatever hurt it caused. He can only be held guilty for dragging and whatever hurt it caused. From the post-mortem report, it is evident that there were 3 abrasions which possibly could have been caused by the act of dragging, for those were found to be ante-mortem in nature and suffered by the deceased while she was alive. For that act of the appellant, he has to be held guilty, though individually, for offence under Section 323 Indian Penal Code. We, therefore, scale down the offence of the appellant, acquitting him of the charge under Section 302 Indian Penal Code and convict him instead for offence under Section 323 Indian Penal Code for which we impose on him the maximum sentence imposable under the law, being 1 year's RI and a fine of Rs. 1000, in default of payment of which he shall undergo further 3 months' RI. 4. There shall be a partial success in this appeal as above-mentioned. The appeal is, thus, ordered.