JUDGMENT Allsop, J. - This is an appeal by Khhmnan, Gujar, who was sentenced to transportation for life u/s 302 of the Indian Penal Code for murdering Hansa, Gujar. It is admitted that there was a quarrel because Hansa had built a wall and was under the impression that Khimman's bullocks had been tied near it and had done damage to it. The parties are at issue whether the damage was done by the bullocks or not but that is a matter of no importance. The prosecution case was that Khimman and his brother, Mathnu, attacked Hansa, the latter seizing Hansa by the waist and the former hitting him on the head with a branch cut from a nim tree which was lying nearby. Both Khimman and Mathnu were sent up for trial. Their defence was that Khimman alone had been present when the quarrel first began and Hansa and others had attacked him and made his nose bleed According to the accused Mathnu came up a little while later and remonstrated about this conduct and that he in his turn was attacked by Hansa and others and when he was seized that Khimman hit Hansa on the head in order to release his brother. It is clear, therefore, that it is admitted by the accused that he had hit Hansa on the head and there can be no doubt that Hansa's skull was fractured and that he died because of a blow, so that if Khimman was to be found not guilty, it was necessary for him to prove that he acted in the exercise of the right of private defence. He produced no witnesses at all to prove what had happened at the time when the injury was caused. It does not appear that Mathnu had some abrasions on his arm but this does not prove that he was attacked. The prosecution evidence itself is that Mathnu seized Hansa by the waist and he might have got these injuries in the course of the struggle. There is no evidence that Khimman acted in the exercise of the right of private defence. The only result could have been that he must have been found guilty of having caused the injujry. There is still a question whether the offence was one of murder or of culpable homicide not amounting to murder. There is no evidence that Khimman acted in the exercise of the right of private defence. The only result could have been that he must have been found guilty of having caused the injujry. There is still a question whether the offence was one of murder or of culpable homicide not amounting to murder. The learned Sessions Judge has come to the conclusion that the offence is one within the definition in the 4th part of Section 300 of the Indian Penal Code because the act of Khimman in striking the deceased on the head with a branch of a nim tree was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. We are unable to agree. We. have seen the branch of the tree and although it is rather thick and heavy, we are not prepared to go so far as to say that a blow struck on the side of the head with such a weapon would in all probability cause the death of the person struck. On the other hand, we are of opinion that Khimman's act in striking the deceased was likely to cause death. We are in agreement with the views expressed in Govinda's case (1877) 1 Bom. 342, in which a distinction is drawn between culpable homicide not amounting to murder and culpable homicide amounting to murder. The fact that there are two sections, namely Section 299 and Section 300 shows that there is a distinction quite apart from the exceptions which occur in Section 300 itself. We agree with the view expressed in that judgment that the offence is culpable homicide if death is likely to result and that it is murder if death is the most probable result. In the present case we think that Khimman's act was likely to result in the death of the deceased but that the death of the deceased was not the most probable result of his action. We, therefore, set aside the conviction of the Appellant for murder and substitute a conviction for culpable homicide not amounting to murder. We reduce the sentence from one of transportation for life to one of rigorous imprisonment for a period of five years.