JUDGMENT : 1) This appeal is directed against the judgment of conviction and order of sentence dated 14th July, 1998 passed by learned 2nd Additional Sessions Judge, Raipur in S.T. No.262/95, whereby and whereunder, the appellant has been held guilty for commission of offence under Section 304 Part-I read with Section 34 of IPC and sentenced to undergo R.I. for 10 years and to pay fine of Rs.1,000/-, in default of payment of fine, to undergo additional R.I. for 6 months. 2) As per case of prosecution, Fagni Bai, the deceased, step-mother of other accused Salik and Basant was suspected as playing witchcraft on Padmini Bai, sister of Basant and Salik. According to prosecution version, Padmini was taken to one baiga (Priest) in village – Rawa for treatment. It is alleged that Fagni was also taken to Rawa in a temple where Priest was there and treating Padmini and there, suspecting that it was Fagni who was playing witchcraft, she was bitterly beaten by baiga and other accused namely – Basant, Salik and appellant - Mohan Lal. After one day Fagni returned to her house. She was not provided any food for three days and she became weak and also sustained injury. On that date, it is alleged Basant co-accused shunted her out of the house and in the midnight, Ram Narayan (PW-9) and Chandrika (PW-10) son and daughter of Fagni saw her hanging in the courtyard of the house. Dead body was said to have been removed and taken to funeral ground and cremated in haste by Basant and Salik. Upon receipt of information in the police station regarding the incident of death of Fagni and cremation of dead body recorded in police diary (rojnamcha sanha) under No.50 on 02.03.1995 at 11:45 hrs., the police proceeded to place where the dead body was cremated, dehati merg intimation was recorded, followed by recording of merg intimation in the police station and injury thereon. A prima facie case of murder being made out, FIR in Ex.P-15 was recorded in Police Station – Rajim on 05.03.1995 at 10.30 hrs. against Basant and Salik Ram for alleged commission of offence under Sections 302, 201, 506 B and 120 B of the IPC. A prima facie case of murder being made out, FIR in Ex.P-15 was recorded in Police Station – Rajim on 05.03.1995 at 10.30 hrs. against Basant and Salik Ram for alleged commission of offence under Sections 302, 201, 506 B and 120 B of the IPC. 3) The appellant was also involved in the alleged commission of offences along with the other accused, as according to the prosecution, the baiga (Priest) who had given a fist blow on the face of Fagni Bai (the deceased) was Mehattar Lal and present appellant – Mohan Lal had also assaulted her by belt. On completion of usual investigation, charge-sheet was filed and charges were framed against the appellant and other accused persons. The appellant was also charged of having committed offence under Sections 302, 120-B of the IPC. Appellant, having abjured guilt, was put to trial. Relying upon the evidence led by the prosecution, learned trial Court held the appellant and other three accused guilty for commission of offence under Section 304 Part-I read with Section 34 of the IPC and sentenced to undergo rigorous imprisonment for 10 years. Being aggrieved by the aforesaid judgment of conviction and order of sentence, the appellant has preferred the instant appeal. 4) Learned counsel appearing for appellant Mohan Lal submits that so far as this appellant is concerned, the prosecution has failed to prove beyond reasonable doubt that it was the appellant who had assaulted deceased - Fagni Bai by belt. He submitted that Ram Narayan (PW-9) and Chandrika Bai (PW-10) both have clearly stated in their evidence that appellant – Mohan Lal had assaulted deceased – Fagni Bai by belt and he has categorically denied the presence, much less any overt-act of the appellant. It is next contended by learned counsel for the appellant that from the surrounding circumstances established from the evidence of Ram Narayan (PW-9) and Chandrika Bai (PW-10) both, the limited role alleged to have been played by the appellant was towards giving assault by belt and only allegation against the appellant is that he gave assault on hand and elbow of Fagni Bai, resulting in bleeding. But, thereafter, Fagni Bai had returned her home, she stayed there and the evidence of Ram Narayan (PW-9) and Chandrika Bai (PW- 10) proves that she was pushed out of the house by accused Basant and in the mid-night, her dead body was found in the courtyard. This second stage of episode does not involve the appellant anywhere. Therefore, in absence of any clinching evidence led by the prosecution with regard to cause of death of the deceased, at the most, appellant could be held guilty of commission of offence under Section 323 of the IPC and no more. Learned counsel further submits that Criminal Appeal No. 1620 of 1998 filed by co-accused Priest - Mehattar Lal, against whom allegation is that he had given a fist blow on the face of Fagni Bai, resulting in bleeding from her nostril, has been partly allowed by the co-ordinate Bench of this Court and the appellant, instead, is convicted under Section 323 of IPC and sentenced to the period already undergone by him. Therefore, he submits that since the case of the present appellant is similar to that case of co-accused Mahattar, the conviction of the appellant may kindly be modified. 5) On the other hand, learned State counsel supports the judgment of conviction and order of sentence. He submits that the evidence of Ram Narayan (PW-9) and Chandrika Bai (PW-10) proves that Fagni Bai was taken to Rawa village where Padmini Bai was receiving treatment by co-accused Priest – Mehattarlal. There Fagni Bai was assaulted by appellant Mohan Lal and other accused due to which she sustained grievous injury. She was not provided food for 3 days. When she returned home, she was critically ill. Thereafter, her dead body was found hanging in the courtyard of the house. Therefore, the appellant is also liable for commission of offence along with other accused and has been rightly convicted. 6) I have considered the rival submissions made by learned counsel for the parties, perused the records of trial Court and judgment passed in Criminal Appeal No. 1620 of 1998. Therefore, the appellant is also liable for commission of offence along with other accused and has been rightly convicted. 6) I have considered the rival submissions made by learned counsel for the parties, perused the records of trial Court and judgment passed in Criminal Appeal No. 1620 of 1998. 7) Taking into consideration all the facts and circumstances of the case, considering the view taken in Criminal Appeal No. 1620 of 1998 in which conviction of the co-accused, who is similarly situated person, under Section 304 Part I of IPC is altered to Section 323 of the IPC, even if the evidence of Ram Narayan (PW-9) and Chandrika Bai (PW-10) is to be believed that the appellant was involved, the only overt-act alleged to have been played by the appellant is assaulting by belt over hand and elbow of Fagni Bai and nothing more, there is no evidence on record led by the prosecution to connect the cause of death with the assault given by the appellant, I am of the considered opinion that conviction of the appellant under Section 304 Part I of the IPC cannot be sustained in law and deserves to be set aside. The records speak that the appellant had remained in jail for about four months. 8) Accordingly, the appeal is partly allowed. Conviction of the appellant under Section 304 Part I of the IPC is set aside and instead the appellant is convicted under Section 323 of IPC and is sentenced to the period already undergone by him. 9) It is stated that the appellant is on bail. His bail bonds shall continue for a period of six months in view of Section 437-A of Cr.P.C.