JUDGMENT : Sanjay K. Agrawal, J. This criminal appeal filed by the appellants-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 26.06.2012, passed by the Court of learned 1st Addl. Sessions Judge, Baloda Bazar, District Baloda Bazar-Bhatapara (C.G.) in S.T. No.67/2011 (State of CG vs. Bhushan Tandan and others), whereby they have been convicted for offence under Section 302/34 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment for 03 months. 2. The case of the prosecution, in brief, is that on 22.08.2009, at about 12:00 PM, at Village Rawan, the accused-appellants, in furtherance of their common object, assaulted deceased-Mansharam by means of ‘lathi/danda’, due to which he suffered injuries and died on 27.08.2009 and, thereby, committed the offence under Section 302/34 of IPC. 3. The further case of the prosecution, in nutshell, is that: Santlal (PW-01) was truck driver of truck bearing No.CG-04-6608 of Durga Courier Company and, in said truck, Mansharam (deceased), father-in-law of Santlal (PW-01), was working as Assistant; on the fateful day, i.e. on 22.08.2009, Santlal (PW- 01) and Mansharam (deceased) after loading cement in the truck, started their journey towards Ambuja Cement Factory, Rawan; in the way, Santlal (PW-01) stopped/parked the truck in front of liquor shop and after instructing Mansharam (deceased) to take care of the truck went to his Village Bijadehi; while Mansharam (deceased) was in the truck, in the night at about 12:00 PM, accused-appellants came over their and they ensued a dispute with Mansharam (deceased) on account of some previous enmity and, in furtherance thereof, assaulted Mansharam (deceased) by means of ‘lathi/danda’, due to which Mansharam (deceased) sustained injuries on his back, head and neck; thereafter, on 23.08.2009, Mansharam (deceased) went to his Village Dotopar and informed about the said incident to his brother- Chhattar Singh (PW-07), his wife- Dayamati and other villagers and, thereafter, went to Police Station Baloda-Bazar to lodged report; the said incident was witnessed by nearby peoples of liquor shop; on the report so lodged by Mansharam, the police registered FIR (Ex.P/13) and sent Mansharam (deceased) for medical examination, and in the MLC report (Ex.P/10), Dr. K.S. Bajpeyi (PW-05) opined that four contusions were found on the body of Mansharam (deceased), which injuries are simple in nature; thereafter, on 27.08.2009, Mansharam died and pursuant to which marg intimation was recorded; the dead-body of deceased-Mansharam was sent for postmortem examination and in the postmortem examination report (Ex.P/ 10), conducted by Dr. Pramod Kumar Tiwari (PW-09), it was opined that the cause of death of deceased-Mansharam is due to asphyxia caused by pulmonary embolism, may be due to previous muscle injury; thereafter, appellants-accused were arrested vide Ex.P/07 to 09 and their memorandum statements were recorded vide Ex.P/01 to 03, pursuant to which ‘lathis/dandas’ have been seized vide Ex.P/04 to 06, but the aforesaid seized ‘lathis’ were not subjected to FSL examination for the reason best known to the prosecution; further, the aforesaid seized ‘lathis’, were sent for query to an expert, whereby vide query report (Ex.P/11) it has been opined that the injuries sustained to Mansharam (deceased) can be caused by said ‘lathis’. Thereafter, statement of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Baloda Bazar (CG) and, thereafter, the case was committed to the Court of Sessions. The appellants/accused abjured their guilt and entered into defence by submitting that they are innocent and have been falsely implicated. 4. The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 17 documents, whereas the appellants-accused in support of their defence have examined 03 witness and exhibited 02 documents. 5. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants for offence under Section 302/34 of IPC and sentenced them as mentioned hereinabove, against which this appeal has been preferred by the appellantaccused questioning the impugned judgment of conviction and order of sentence. 6. Before proceeding further, it is important to note there that during the pendency of present appeal, accused-appellant No.3- Pratap Tandan has died and, therefore, his name has been deleted from this appeal vide order of this Court dated 10.10.2022. 7. Mr. Sameer Singh and Mr. A.S. Rajput, learned counsel appearing for the appellants No.01 & 02 respectively jointly submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. 7. Mr. Sameer Singh and Mr. A.S. Rajput, learned counsel appearing for the appellants No.01 & 02 respectively jointly submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. They further submit that the injuries sustained by the deceased were simple in nature and only four contusions were found on the body of deceased-Mansharam, which injuries are simple in nature and are not sufficient to cause his death, therefore, accused-appellants are not liable to be convicted for offence under Section 302 of IPC. By relying on the decision rendered by their Lordships of Supreme Court in the matter of G.S. Walia vs. State of Punjab and others, (1998) 5 SCC 150 , they submits that at best accused-appellants can be held guilty for offence under Section 325 of IPC. Hence, the impugned judgment of conviction and order of sentence dated 26.06.2012 passed by the learned trial Court against the accused-appellant is liable to be set aside. 8. Per-contra, Mr. Sudeep Verma, learned State counsel and Mr. S.P. Sannat, learned counsel appearing for the complainant supported the impugned judgment of conviction and order of sentence and submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for offence under Sections 302/34 of IPC, as the accused-appellants have assaulted Mansharam (deceased) by means of ‘lathi’, due to which he died. Thus, the present appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. In the instant case, deceased-Mansharam was firstly examined by Dr. K.S. Bajpeyi (PW-05) on 23.08.2009, who gave its MLC report (Ex.P/10) and opined that only four contusions were found on the body of Mansharam (deceased), which injuries are simple in nature and no internal injuries were found and, thereafter, on 27.08.2009 Mansharam (deceased) died. Thereafter, the postmortem of dead-body of deceased-Mansharam was conducted on 27.08.2009 by Dr. Pramod Kumar Tiwari (PW-09), who gave its PM report (Ex.P/10) and opined that cause of death of deceased-Mansharam is asphyxia caused by pulmonary embolism, may be due to previous muscle injury. Dr. Thereafter, the postmortem of dead-body of deceased-Mansharam was conducted on 27.08.2009 by Dr. Pramod Kumar Tiwari (PW-09), who gave its PM report (Ex.P/10) and opined that cause of death of deceased-Mansharam is asphyxia caused by pulmonary embolism, may be due to previous muscle injury. Dr. Pramod Kumar Tiwari (PW-09) in Para-03 of his statement before learned trial Court has also stated that deceased-Mansharam died on account of asphyxia caused by pulmonary embolism and has further explained in Para-05 of his cross-examination, which reads thus: ^^5- ;g lgha gS fd eSus vius iz0izh0 10 ds fjiksVZ esa iYeksujh backsfyTe 'kCn dk iz;ksx fd;k gSA og O;fDr ds QsQMs+ ds ul dh Hkhrj jDr ds FkDdk teus ls gksrk gSA ;g O;fDr dks [kwu ls lacaf/kr ,oa QsQMs+ ls lacaf/kr fcekjh ls Hkh gks ldrh gSA ;g lgh gS fd e`rd ea'kkjke ds ihB esa rFkk tka?k ij tks fuyxw fu'kku Fks os lk/kkj.k izd`fr ds Fks vkSj mlls vkneh dh e`R;q ugha gks ldrhA e`rd ea'kkjke ds 'kjhj esa fdlh Hkh LFkku ij dVs gq, rFkk jDr Jko dk fu'kku ugha Ikk;k tk ldrk gSA ;g ckr lgh gS fd ihB esa tks fuyxw fu'kku Fks og isV ds cy ij fxjus ls dMs+ ,oa HkksFkjs oLrq ls vk ldrh gSA** 11. Dr. Pramod Kumar Tiwari (PW-09) has clearly stated that Mansharam (deceased) died on account of asphyxia developed on account of pulmonary embolism and has also expressed the possibility in Para-05 of his statement before the Court that pulmonary embolism may occurred on account of disease relating to lungs and further opined that the injuries caused to the deceased are simple in nature, which opinion was also given by Dr. K.S. Bajpeyi (PW-05), who conducted MLC of deceased-Mansharam, while he was alive. Thus, the medical evidence available on record shows that the injuries sustained by the deceased-Mansharam were not sufficient to cause his death in ordinary course of nature and they were not even stated to be likely to cause his death. Even otherwise, the appellants-accused have only assaulted deceased-Mansharam on account of previous enmity and dispute and further it is essential and relevant to consider the fact that deceased-Mansharam, after the said incident, came back to his house at Village Dotopar and stayed for five days and did not go for treatment. 12. Even otherwise, the appellants-accused have only assaulted deceased-Mansharam on account of previous enmity and dispute and further it is essential and relevant to consider the fact that deceased-Mansharam, after the said incident, came back to his house at Village Dotopar and stayed for five days and did not go for treatment. 12. The Supreme Court in the matter of G.S. Walia (supra), in which deceased died on account of pulmonary embolism, similar to that of present case, the reason for such complication was due to prolonged bed rest and their Lordships found proved by way of medical evidence that injuries themselves did not cause death and they necessitated bed rest, which lead to pulmonary embolism and held as under: “11. We are of the view that the trial court was right in relying upon the evidence of Kesar Singh and the dying declaration and holding the accused guilty for causing injuries to Balwant Singh. But the trial court was not right in convicting the accused under Section 302 read with Section 149 IPC. The medical evidence does not show that the injuries caused to Balwant Singh were sufficient to cause his death in the ordinary course of nature. They were not even stated to be likely to cause his death. The accused had no reason to kill Balwant Singh. In view of the facts and circumstances of the case the only inference that can reasonably be drawn in that their object was only to beat him. No attempt was made by them to cause serious injury on any vital part of his body. Therefore, the accused should have been convicted only for the offence punishable under Section 325 read with Section 149 IPC. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and hold the accused guilty under Sections 148 and 325 read with Section 149 IPC. For the offence punishable under Section 325 read with Section 149 IPC we sentence them to suffer imprisonment for the period already undergone and to pay a fine of Rs. 10,000/-. In default of payment of fine, they are ordered to suffer further rigorous imprisonment for a period of six months. If the fine if paid then the said amount shall be paid to the widow of the deceased by way of compensation. The respondents are given two months' time to pay the fine.” 13. 10,000/-. In default of payment of fine, they are ordered to suffer further rigorous imprisonment for a period of six months. If the fine if paid then the said amount shall be paid to the widow of the deceased by way of compensation. The respondents are given two months' time to pay the fine.” 13. In that view of the matter and as held by their Lordships of Supreme Court in the matter of G.S. Walia (supra) and particularly considering the fact that the injuries caused to the deceased-Mansharam were simple in nature and not sufficient to cause his death and are not even stated to be likely to cause his death and further pulmonary embolism has been clearly demonstrated/explained by Dr. Pramod Kumar Tiwari (PW-09) in his statement before the learned trial Court that same may occur on account of disease relating to lungs and further only four contusions were found on the body of the deceased-Mansharam vide MLC report (Ex.P/10), we are of the considered opinion that the learned trial Court is absolutely unjustified in convicting the accused-appellants for offence under Sections 302/34 of IPC. 14. Accordingly, the impugned judgment of conviction and order of sentence dated 26.06.2012, passed by the learned trial Court convicting the accused-appellants for offence under Section 302 read with 34 of IPC is hereby set aside. Instead thereof, the accused-appellants, namely, Bhushan Tandan and Karandas are convicted for offence under Section 325 read with 34 of IPC for causing voluntary hurt to deceased-Mansharam and sentenced for the period they have already undergone with fine of Rs.5000/- each, which shall be payable to the wife/LRs of the complainant/deceased-Mansharam and, in default of payment of fine, additional rigorous imprisonment for 06 months. Since, appellants are on bail, they need not to surrender before the learned trial Court. However, their bail bonds shall remain in force for a period of six months in view of provision contained in Section 437-A of CrPC. 15. This criminal appeal is party allowed to the extent indicated hereinabove.