JUDGMENT : Sanjay K. Agrawal, J. 1. The appellants herein have preferred this appeal under Section 374(2) of the CrPC questioning the impugned judgment of conviction and order of sentence dated 14-12-2018 passed by the Sessions Judge, Mungeli in Sessions Trial No.61/2017, by which they have been convicted under Section 302 read with Section 34 of the IPC and sentenced to undergo imprisonment for life and pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo additional simple imprisonment for one year. 2. The two appellants herein, father, aged about 70 years on the date of offence, and son, have stood trial before the Sessions Judge, Mungeli for committing the murder of Chandrika Bai – neighbour, on 28-6- 2017 at about 3.30 p.m. at Village Dandgaon, Police Station Pathariya, District Mungeli and they were stand convicted for offence under Section 302 read with Section 34 of the IPC on the allegation that they had assaulted deceased Chandrika Bai by hands & fists by which she suffered injuries on 28-6-2017 and died after ten days on 7-7-2017. The incident is said to be reported by Priya Das Gendle (PW-2) and the incident was witnessed by Ranu Gendle (PW-3) – grand-daughter of the deceased. After completing all formalities, Chandrika Bai was subjected to MLC by Dr. Jayant Toppo (PW-10) vide Ex.P-14 in which her right shoulder was found swelling and the doctor has described that it may cause on account bite by honey bee. Further, Chandrika Bai was subjected to postmortem by Dr. Rohit Kumar (PW-9) and in the postmortem report Ex.P-13, he has reported that the deceased was suffering from cardiomegaly with left side intraventricular clot. According to him, cause of death was syncope due to cardiomegaly and intraventricular clot leads to shock and death. 3. Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellants were charge-sheeted for offences under Sections 294, 506 & 302 read with Section 34 of the IPC and the case was committed to the Court of Session, Mungeli where the trial was conducted. 4. The prosecution, in order to prove the offence against the appellants, examined as many as 12 witnesses and brought on record 25 documents Exs.P-1 to P-25. 4. The prosecution, in order to prove the offence against the appellants, examined as many as 12 witnesses and brought on record 25 documents Exs.P-1 to P-25. The defence has not examined any witness, however, brought on record one document Ex.D-1 i.e. the statement of Chandra Prakash Tandan recorded under Section 161 of the CrPC, to support its case. The trial Court has also recorded the statements of Gourishankar Dhruw (CW-1) and C.L. Ahirwar (CW-2). 5. The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellants for offence under Section 302 read with Section 34 of the IPC, against which they have preferred this appeal. 6. Mrs. Laxmin Tondey, learned counsel appearing on behalf of the appellants herein, would submit that according to the statement of eyewitness Ranu Gendle (PW-3) – grand-daughter of the deceased, the appellants are only said to have caused injury by hands & fists, the date of incident was 28-6-2017 and the deceased died on 7-7- 2017 after a period of ten days and more particularly, as per the evidence of Dr. Rohit Kumar (PW-9), no external injury was found on the person of the deceased and as per his postmortem report Ex.P-13, there was blood clot present in left side intraventricular (heart chamber) and cause of death was syncope due to cardiomegaly and intraventricular clot which led to shock and death. As such, the deceased was suffering from major heart disease and it was a sign of heart disease. Therefore, at the best, the offence would fall under Section 323/325 of the IPC and no offence under Section 302 of the IPC would be made out against the appellants. 7. On the other hand, Dr. Surendra Kumar Dewangan, learned Panel Lawyer appearing on behalf of the State/respondent, would support the impugned judgment and oppose the appeal and submit that the manner in which the deceased, aged about 62 years, was assaulted on the dispute relating to boundary, the offence would definitely travel under Section 302 of the IPC. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. On perusal of the statement of Ranu Gendle (PW-3), it is quite vivid that the deceased was aged about 62 years on the date of death and she was member of the appellants’ community and on account of dispute relating to boundary, the appellants all of a sudden said to have assaulted the deceased by hands & fists. However, the postmortem report Ex.P-13 states as under: - “7. g`n; Cardiomegaly with left side intraventricular clott present.” 10. The postmortem report (Ex.P-13) of Dr. Rohit Kumar Gahwai (PW- 9) states the cause of death as under: - “In my opinion the cause of death is syncope due to cardiomegaly and intraventricular clot leads to shock and death.” 11. Not only this, the said document – postmortem report Ex.P-13 has been proved by Dr. Rohit Kumar (PW-9) by his evidence in which he has clearly stated that the deceased aged about 62 years was having enlarged heart, left side intraventricular was present in the heart; the word “thrombus” has been left to be stated which is there in the postmortem report and cause of death is held as “syncope due to cardiomegaly and intraventricular clot leads to shock and death”. 12. As such, from the postmortem report duly proved by Dr. Rohit Kumar (PW-9), it is quite vivid that the deceased was having enlarged heart and an enlarged heart is not a condition in itself, it is a symptom caused by different cardiovascular issues. 13. According to Dr. Fernando Fleischman, MD, a cardiothoracic surgeon with the USC Cardiac and Vascular Institute, when the heart begins to fail, it is not able to push blood out and as a result, blood stagnates, and the heart gets bigger – similar to a balloon with too much fluid in it. There are a number of health conditions that can cause an enlarged heart and the first condition among the most common is High blood pressure . If a person has high blood pressure or hypertension, his heart has to work harder. This extra work his heart is doing can cause the heart to enlarge. High blood pressure can lead to left ventricular hypertrophy, where the heart’s left pumping chamber becomes thickened, weak and stiff, interfering with normal blood flow. If a person has high blood pressure or hypertension, his heart has to work harder. This extra work his heart is doing can cause the heart to enlarge. High blood pressure can lead to left ventricular hypertrophy, where the heart’s left pumping chamber becomes thickened, weak and stiff, interfering with normal blood flow. The second condition is Heart valve problems . If the flaps that open and close the chambers of the heart are not functioning correctly, it can lead to an enlargement of the heart, according to Dr. Fleischman. The third condition is Heart disease that can cause failure of the heart muscle by taking away its oxygen supply. The fourth condition is Cardiomyopathy Cardiomyopathy is a broad term used to describe diseases that can lead to a rigid, thick or enlarged heart muscle. There are different types of cardiomyopathies, but one in particular, known as ischemic cardiomyopathy, is caused by coronary artery disease. 14. An intraventricular blood clot (often referred to as a left ventricular thrombus or right ventricular thrombus) in a large heart is a serious medical condition where a blood clot forms inside the heart chambers, usually due to blood stasis, heart damage, or a hyper- coagulable state. This condition is often associated with severely reduced heart function, such as in dilated cardiomyopathy or following a large myocardial infarction. 15. In this background, if the case of the appellants herein is considered, it is quite apparent that the deceased, aged about 62 years, was already having enlarged heart and according to the doctor who conducted postmortem, cause of death is on account of clot in the left intraventricular region on account of which there was stoppage of flow of blood in the brain. The doctor who has conducted postmortem has also clearly admitted that heart is enlarged on account of heart disease and flow of blood is stopped and on account of that there can be death. Furthermore, according to Ranu Gendle (PW-3), injury was caused by the appellants on chest also, but there was no external injury found on chest and except the injury found on shoulder, which was proved by Dr. Jayant Toppo (PW-10) and which can also be caused by bite of honey bee, no other injury was found on the person of the deceased. 16. Jayant Toppo (PW-10) and which can also be caused by bite of honey bee, no other injury was found on the person of the deceased. 16. As such, the question for consideration would be, whether, in this background, the trial Court is justified in convicting the appellants for offence under Section 302 of the IPC? 17. In the matter of State of Karnataka v. Shivalingaiah , AIR 1988 SC 115 where the deceased died on account of squeezing the testicles, their Lordships of the Supreme Court held that since the incident took place suddenly and on spur of moment, intention to cause death could not be attributed, Sections 300 Clause Thirdly & 304 Part-II of the IPC would not be attracted and the accused was convicted for causing grievous hurt and not simple hurt. Their Lordships observed in paragraph 3 of the report as under: - “3. We have heard learned counsel for the parties as to the nature of offence and sentence. Agreeing with the High Court, we are inclined to the view that in the facts and circumstances it cannot be said that the respondent had any intention of causing the death of the deceased when he committed the act in question nor could he be attributed with knowledge that such act was likely to cause his cardiac arrest resulting in his death. We wish to make it clear that it cannot be that in all circumstances such an act would not be covered by clause Thirdly and therefore amount to culpable homicide amounting to murder punishable under S. 302 or culpable homicide not amounting to murder punishable under S. 304 Part II. It all depends on the facts and circumstances of each case whether the accused had the requisite intention or knowledge. The High Court has brought out the circumstances which show that the respondent acted on a sudden impulse. The High Court was therefore right in its conclusion that the act complained of would not amount to culpable homicide amounting to murder or not amounting to murder punishable under S. 302 or S. 304 Part II. Question however still remains as to the nature of the offence committed by the respondent. The High Court was therefore right in its conclusion that the act complained of would not amount to culpable homicide amounting to murder or not amounting to murder punishable under S. 302 or S. 304 Part II. Question however still remains as to the nature of the offence committed by the respondent. In our opinion, the High Court was not right in its view that the act of squeezing the testicles of a person would be an offence of voluntarily causing simple hurt punishable under S. 323, Penal Code. The testimony of Dr. T.C. Seetharam clearly shows that such act was dangerous to human life. It actually led to the cardiac arrest of the deceased as a result of which he died almost instantaneously. Such an act in the instant case would clearly be covered by clause Thirdly (sic Eighthly) of S. 320 Penal Code and therefore amount to grievous hurt punishable under S. 325, Penal Code.” 18. In the instant case, it appears that the deceased was already suffering from enlarged heart and on account of injury caused by the appellants, particularly on shoulder, she suffered left ventricular thrombus i.e. blood clot in the heart which in our considered opinion falls within the meaning of Clause Eighthly of Section 320 read with Section 325 of the IPC, which defines punishment for voluntarily causing grievous hurt and which states as under: - “ 325. Punishment for voluntarily causing grievous hurt. —Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 19. Coming to the facts of the case in light of the medical and legal position, it is quite vivid that boundary dispute developed between the appellants and the deceased who are nieghbours and the appellants are said to have assaulted the deceased on her shoulder by hands & fists which is proved by Dr. Jayant Toppo (PW-10). The said injury was grievous injury on account of which the deceased, who was suffering from enlarged heart, suffered with left side intraventricular blood clot in the heart and she died, after ten days of the incident, on 7-7-2017. The incident is of 28-6-2017. Jayant Toppo (PW-10). The said injury was grievous injury on account of which the deceased, who was suffering from enlarged heart, suffered with left side intraventricular blood clot in the heart and she died, after ten days of the incident, on 7-7-2017. The incident is of 28-6-2017. The appellants have neither intention nor knowledge that causing injury by hands & fists is likely to cause death of the deceased who was said to be suffering from intraventricular blood clot. As such, the case would be covered under Clause Eighthly of Section 320 of the IPC, as the said hurt has endangered the life of the deceased and she suffered death. The appellants cannot be convicted for offence under Section 302 of the IPC considering the manner in which the appellants assaulted the deceased and they can safely be held guilty of voluntarily causing grievous hurt to the deceased, which unfortunately resulted in her death after ten days of the incident. Accordingly, they are liable to be convicted under Section 325 read with Section 34 of the IPC. 20. In the result, the appeal is allowed in part. While acquitting the appellants of the charge under Section 302 read with Section 34 of the IPC, they are convicted under Section 325 read with Section 34 of the IPC and sentenced to the period already undergone them. Appellant No.1 Tulsi Satnami was in jail from 11-7-2017 to at least till 15-4-2019 when he was granted bail by this Court, thereby he remained in jail for 1 year 9 months 4 days. Similarly, appellant No.2 Mahendra Kumar Satnami was in jail from 26-10-2017 to at least till 15-4-2019 when he was granted bail by this Court, thereby he remained in jail for 1 year 5 months 20 days. The appellants are already on bail, they need not surrender to their bail bonds and their bail bonds shall remain in operation for a period of six months in view of the provisions contained in Section 437A of the CrPC. 21. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.