Judgment R.N.Sahay and P.K.Sarkar JJ. 1. In this case the sole appellant Hopna Tudu of village Talwa, P.S. Pakuria in the district of Sahebganj has been convicted under Section 302, IPC and sentenced to imprisonment for life for intentionally causing the death of Mariam Besra on 12th October, 1989 at village Talwa. The deceased was aged 65 years. 2. According to the prosecution case, Renimoyee the infant daughter of the appellant suddenly became ill. The appellant had requisitioned the services of an ojha from village Charudih. The ojha performed rituals to cure the ailing child of the appellant but she expired on 12th October, 1989. It is the prosecution case that ojha told the appellant that the deceased was responsible for illness and death of his child. This provoked the appellant, who struck the deceased by a bamboo pole and even chauki (pidha ). 3. The sole witness of the entire occurrence was Malti Tuddu P.W. 2, who is daughter of younger sister of the deceased, who lived in the same village with her husband. The conviction of the appellant is based on the sole testimony of the informant as according to the prosecution no other witness was present when the deceased was assaulted by the appellant. This fact, however, is seriously challenged by the learned Counsel for the appellant, who had placed the evidence of the informant and submitted that this witness has stated about the presence of many persons of the village when ojha was performing "jhar phuk" but those witnesses have not been examined and thus there is serious infirmity in the prosecution case. Learned Counsel for the appellant also contended that the Choukidar, who, according to the informant, had arrested the appellant and taken to Police Station, was also not examined. 4. We have considered the evidence of the informant. It is true that the conviction of the appellant is based on the testimony of the informant alone. It is, however, well settled by the decision of the Supreme Court that the conviction can be based on the testimony of the sole witness provided the evidence of such witness is free from any blemish. In the instant case, the parties belong to the Tribal Community. Firstly, there is no reason why the appellant would be falsely implicated. The death body of the deceased was found in the house of the appellant. In the instant case, the parties belong to the Tribal Community. Firstly, there is no reason why the appellant would be falsely implicated. The death body of the deceased was found in the house of the appellant. So far presence of other witnesses is concerned, it is doubtful that there were other witnesses of the occurrence, otherwise they would have been charge-sheet witnesses. It appears that some persons of the village had come to the house of the appellant when ojha had come but most probably they left before the occurrence had taken place. 5. There is one witness Debodhan Hembrum P.W. 5, who has deposed that the informant had gone to his house weeping and revealed that the appellant had killed her mothers sister (Mousi ). On the next day information of the occurrence was lodged in the Police Station. The Officer-in-charge came in the village and seized one pidha, and one lathi in the house of the informant. Babulal Murmu P.W. 7 is the seizure witness. This witness was also informed by the informant about the occurrence. 6. Learned Counsel for the appellant contended that non- examination of the Investigating Officer is another infirmity because the appellant has been seriously prejudiced on account of non-examination of the Investigating Officer. We do not think that non-examination of the Investigating Officer in the instant case has caused any prejudice because no contradiction in the evidence of the informant has been pointed out. 7. Having given our anxious consideration on all relevant aspects of the case, we are of the opinion that the appellant was rightly found guilty for assaulting the deceased resulting in her death. We, however, feel hesitant in the facts and circumstances of the case to hold the appellant guilty under Section 302, IPC. It is clear that the appellant is a Tribal and probably provoked by the ojha he assaulted the deceased fatally but it is not clear that the appellant intended to cause death of the deceased. The appellant was victim of superstition as is usual in the case of Tribals in this State. His daughter had just died and he felt that the deceased was a witch, who was responsible for the death of his daughter. 8. Under the circumstances, we are inclined to hold the appellant guilty under Section 304, Part-I, IPC instead of Section 302, IPC. His daughter had just died and he felt that the deceased was a witch, who was responsible for the death of his daughter. 8. Under the circumstances, we are inclined to hold the appellant guilty under Section 304, Part-I, IPC instead of Section 302, IPC. Accordingly, the conviction of the appellant under Section 302, IPC is set aside and he is convicted under Section 304, Part-I, IPC and sentenced to 10 years rigorous imprisonment. 9. With this modification, this appeal is dismissed.