JUDGMENT : Sanjay K. Agrawal, J. 1. Invoking the appellate jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein calls in question legality, validity and correctness of the impugned judgment of conviction recorded and sentence awarded by the learned Additional Judge by which she has been convicted for offences under Sections 147, 323 read with Section 149 & 302 of the IPC and sentenced to undergo rigorous imprisonment for two years, rigorous imprisonment for one year and imprisonment for life & pay fine of Rs. 500/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month, respectively, with a direction to run all the sentences concurrently. 2. Case of the prosecution is that on 9-4-2014 at 7:00-8:00 a.m., at Village Beliya, Police Station Chalgali, the appellant herein along with four acquitted co-accused persons constituted unlawful assembly with common object and in furtherance of common object, the appellant herein squeezed/caught hold of the testicles of Rambasawan by which he suffered grievous injury and died, and also caused simple injuries to Nandkeshwar and thereby committed the aforesaid offences. FIR was registered vide Ex.P-1 and morgue was also registered vide Ex.P-2. Inquest was conducted vide Ex.P-4 and the dead body was subjected to postmortem which was conducted by Dr. Kamini Rai (PW-11) vide postmortem report Ex.P-23 and cause of death according to the postmortem report is anemia due to injury to the vital organ of the body i.e. haemorrhage as testicles were totally smashed. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused/appellant herein along with four acquitted co-accused persons was charge-sheeted for offences under Sections 294, 506 Part-II, 148, 302 read with Section 149 & 323 read with Section 149 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the learned Additional Judge received the case on transfer for trial and hearing and disposal in accordance with law. 4. The accused persons abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as thirteen witnesses and exhibited 30 documents. The defence has examined none, however, exhibited two documents Exs.D-1 & D-2 – statements of Mathura Prasad & Shyamlal Gupta recorded under Section 161 of the CrPC. 5. 4. The accused persons abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as thirteen witnesses and exhibited 30 documents. The defence has examined none, however, exhibited two documents Exs.D-1 & D-2 – statements of Mathura Prasad & Shyamlal Gupta recorded under Section 161 of the CrPC. 5. The trial Court after appreciating oral and documentary evidence available on record, acquitted four co-accused persons and convicted only the appellant herein holding her guilty for aforesaid offences against which the instant appeal under Section 374(2) of the CrPC has been preferred. 6. Mr. Bhupendra Singh, learned counsel appearing for the appellant, submits that the alleged act of squeezing/pulling the testicles of deceased Rambasawan would not be covered by clause Thirdly to Section 300 of the IPC, therefore, it is not culpable homicide amounting to murder, at the most, it would fall under clause Eighthly of Section 320 of the IPC and therefore it would be punishable under Section 325 of the IPC. He would rely upon the decision of the Supreme Court in the matter of State of Karnataka v. Shivalingaiah, AIR 1988 SC 115 to buttress his submission. 7. Mr. Ashish Tiwari, learned Government Advocate appearing for the State/respondent, supports the impugned judgment and opposes the appeal and submits that considering the fact that testicles of the deceased were smashed by the act of the appellant, the appellant has rightly been convicted for offence under Section 302 read with Section 149 of the IPC. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. In the postmortem report Ex.P-23 proved by Dr. Kamini Rai (PW-11) as also before the Court, she has stated that testicles of the deceased were completely smashed and undergarments of the deceased were completely stained with blood and there was no injury on the body of the deceased and injury is only to the testicles. She has also stated that one can suffer such injury due to fall on stone and cause of death can be accidental also. The doctor who has examined the deceased has only stated that the testicles were crushed and the injury may be accidental in nature. 10. She has also stated that one can suffer such injury due to fall on stone and cause of death can be accidental also. The doctor who has examined the deceased has only stated that the testicles were crushed and the injury may be accidental in nature. 10. However, at this stage, it would be appropriate to notice Section 300 Thirdly of the IPC which states as under: - “300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—” 11. In order to bring the case under Thirdly to Section 300 of the IPC – Murder, the prosecution must prove the following facts before it can bring case under Section 300, Clause 3rdly : - i) it must establish, quite objectively, that a bodily injury is present; ii) the nature of injury must be proved; iii) it must be proved that there was an intention to inflict that particular bodily injury, that is to say, it was not accidental or unintentional, or that some other kind of injury was intended; iv) it must be proved that injury is sufficient to cause death in ordinary course of nature. 12. Dr. Kamini Rai (PW-11) who has conducted postmortem on the body of the deceased has only stated that testicles were crushed, it was stained with blood, but she did not say that injury suffered by the deceased on testicles were sufficient in the ordinary course of nature to cause death. In the postmortem report, the doctor has said that mode of death is anemia due to injury to the vital organ i.e. haemorrhage. 13. If, in a murder case, the medical witness states only, that the death was caused on account of shock and haemorrhage on account of certain injuries, then his statement could not be considered as equivalent to the statement that “the injuries by themselves were in the ordinary course of nature to cause death”. 13. If, in a murder case, the medical witness states only, that the death was caused on account of shock and haemorrhage on account of certain injuries, then his statement could not be considered as equivalent to the statement that “the injuries by themselves were in the ordinary course of nature to cause death”. In a murder trial, the Public Prosecutors should be careful in examining medical witnesses and should bring on record the opinion of the Doctor as to whether the injuries in a given case were sufficient in the ordinary course of nature to cause death or, were in the ordinary course of nature likely to cause death. Similarly, the trial Judges should exercise proper care in recording the statements of the medical witnesses and see that proper dates and materials are brought on record. 14. In the instant case, though the medical witness Dr. Kamini Rai (PW-11) has only stated that death of the deceased is on account of anemia due to haemorrhage and as the testicles were found crushed, but she did not say that the injuries caused by the appellant were themselves sufficient in the ordinary course of nature likely to cause death or sufficient in the ordinary course of nature to cause death. 15. Now, the contention of the appellant that the offence alleged against the appellant would fall under Section 320 of the IPC, which is punishable under Section 325 of the IPC, deserves to be noticed. 16. As per the statement of Nandkeshwar (PW-4), who is injured eyewitness, the appellant has squeezed/pulled the testicles of the deceased, therefore, the deceased suffered injury and died. 17. In this regard, the decision of the Supreme Court in Shivalingaiah’s case (supra) wherein the question as to whether the act of squeezing of testicles of the deceased by the appellant therein would fall under Section 300 Thirdly of the IPC has been dealt with, deserves to be noticed. In the said case, the accused squeezed the testicles of the victim resulting in his death almost instantaneously and the incident took place all of a sudden and on the spur of the moment. In the said case, the accused squeezed the testicles of the victim resulting in his death almost instantaneously and the incident took place all of a sudden and on the spur of the moment. The trial Judge convicted the accused therein for commission of offence under Section 323 of the IPC which the High Court also confirmed and in appeal by the State of Karnataka, their Lordships of the Supreme Court came to the conclusion that where the accused squeezed the testicles of the victim resulting in his death almost instantaneously and the incident took place all of a sudden and on the spur of the moment, it could not be said that the accused 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 death. Their Lordships, however, made it clear that act of the accused would not be covered by clause Thirdly of Section 300 of the IPC and the act of the accused would not amount to culpable homicide amounting to murder or not amounting to murder punishable under Section 302 or Section 304 Part-II of the IPC, such an act would clearly be covered by Section 320 of the IPC and therefore amount to grievous hurt punishable under Section 325 of the IPC. Their Lordships observed 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. 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. 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[2 [or Eighthly……...…Ed]] Thirdly of S. 320 Penal Code and therefore amount to grievous hurt punishable under S. 325, Penal Code. 4. We accordingly allow the appeal to this extent altering the conviction of the respondent from under S. 323 to one under S. 325 Penal Code. The respondent is sentenced to undergo rigorous imprisonment for a period of three years.” 18. Coming to the facts of the present case, it is quite vivid that the appellant was not armed with any dangerous weapon and as per the statement of Nandkeshwar (PW-4) –injured eyewitness, the appellant has squeezed and pulled the testicles of the deceased by which thereafter, the deceased suffered injury and died. As such, there was no intention of the appellant to cause death and it would not fall either under Eighthly of Section 320 of the IPC or Section 304 Part-II of the IPC and in light of the decision rendered by their Lordships of the Supreme Court in Shivalingaiah’s case (supra), that would fall under Section 325 of the IPC. 19. In view of the aforesaid discussion, conviction of the appellant under Section 302 of the IPC as well as the sentence of life imprisonment awarded to her by the learned trial Court is hereby set aside, instead thereof, the appellant is convicted for offence punishable under Section 325 of the IPC. 19. In view of the aforesaid discussion, conviction of the appellant under Section 302 of the IPC as well as the sentence of life imprisonment awarded to her by the learned trial Court is hereby set aside, instead thereof, the appellant is convicted for offence punishable under Section 325 of the IPC. She had already suffered the maximum punishment which is prescribed for offence under Section 325 of the IPC as she is in jail since 10-4-2014. However, her conviction & sentence under Sections 147 & 323 read with Section 149 of the IPC imposed by the trial Court shall remain as it is. The appellant be released forthwith, if not required in any other case. 20. The criminal appeal is allowed to the extent indicated herein-above. 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. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.