JUDGMENT : A.G. Uraizee, J. Both these appeals are directed against the judgment and order dated 31.03.2009 passed by the Additional Sessions Judge & Presiding Officer, Fast Track Court, Anand in Sessions Case No. 23 of 2008 for the offence punishable under section 302 r/w section 114, 323 r/w 114, 504 r/w 114 of Indian Penal Code and section 135 of B.P. Act. They came to be convicted for these offences under Section 235(2) of the Code of Criminal Procedure and are directed to suffer imprisonment as under:- Sr. No Criminal Appeal No. Particulars of sentence 1. Cri. Appeal No. 867/09 Life Imprisonment and fine of Rs. 5000/-, I.D. R.I. for 6 months for offences punishable under Section 302 read with Section 114 of the I.P. Code. R.I. For 3 months and fine of Rs. 250/- I.D. R.I. for 1 month for offences punishable under Section 323 read with Section 114 of the I.P. Code. R.I. For 1 month and fine of Rs. 250/- I.D. R.I. for 5 days for offences punishable under Section 504 read with Section 114 of the I.P. Code. R.I. For 15 days and fine of Rs. 100/- I.D. R.I. For 5 days for offences punishable under Section 135 of B.P. Act. 2. Cri. Appeal No. 496/11 Life Imprisonment and fine of Rs. 5000/-, I.D. R.I. for 6 months for offences punishable under Section 302 read with Section 114 of the I.P. Code. R.I. For 3 months and fine of Rs. 250/- I.D. R.I. for 1 month for offences punishable under Section 323 read with Section 114 of the I.P. Code. R.I. For 1 month and fine of Rs. 250/- I.D. R.I. for 5 days for offences punishable under Section 504 read with Section 114 of the I.P. Code. R.I. For 15 days and fine of Rs. 100/- I.D. R.I. For 5 days for offences punishable under Section 135 of B.P. Act. 1.1 Being aggrieved by the said conviction and sentence, original accused no. 1, 3 & 4 have preferred Criminal Appeal No. 867 of 2009 and original accused no. 2 has preferred Criminal Appeal No. 496 of 2011. 2. The facts of the prosecution case against the appellants is that on 26.11.2007 at about 08.00 am, accused no. 1 - Shambhubhai Padhiyar was cutting the branches of tree grown by the complainant in his field at Ambav, Bevdipura sim. The complainant asked accused no. 2 has preferred Criminal Appeal No. 496 of 2011. 2. The facts of the prosecution case against the appellants is that on 26.11.2007 at about 08.00 am, accused no. 1 - Shambhubhai Padhiyar was cutting the branches of tree grown by the complainant in his field at Ambav, Bevdipura sim. The complainant asked accused no. 1 not to cut the branches of the said tree and thereupon all the appellants gathered armed with sticks and accused no. 1 gave stick blows on the head of the father of complainant - deceased Lakhabhai, back, wrist of left hand and shoulder. Accused no. 2 also gave stick blow on the head of deceased and wrist of Khumansinh. Lakhabhai suffered head injuries and therefore initially he was taken to Primary Health Center, Anklav from where he was taken to Vadodara for further treatment but unfortunately he succumbed to the injuries. A complaint in respect of this incident was lodged by the complainant by Chimanbhai Padhiyar (PW No. 3), son of deceased with Anklav Rural Police Station. In pursuance of this complaint, FIR vide Anklav Rural Police Station CR No. 3069 of 2007 came to be registered. 4. The investigation was taken up and after usual investigation, charge sheet came to be filed against the appellants. The offences committed by the appellants were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Anand under Section 209 of the Code, where it was registered as Sessions Case No. 23 of 2008. Charge vide Ex. 8 came to be framed against the appellants. They pleaded not guilty and claimed to be tried. 2.2 The trial was initiated against the appellants and during the course of trial the prosecution examined following 20 witnesses as oral evidences: (i) P.W. 1 - Dr. Girish Thakkar Ex. 20 (ii) P.W. 2 - Hitesh Vaishnav Ex. 34 (iii) P.W. 3 - Chimanbhai Padhiyar Ex. 39 (iv) P.W. 4 - Jivabhai Padhiyar Ex. 41 (v) P.W. 5 - Jesingbhai Ex. 46 (vi) P.W. 6 - Kantibhai Padhiyar Ex. 50 (vii) P.W. 7 - Chandubhai Raj Ex. 52 (viii) P.W. 8 - Khumanbhai Padhiyar Ex. 53 (ix) P.W. 9 - Dineshbhai Padhiyar Ex. 55 (x) P.W. 10 - Govindbhai Rathod Ex. 61 (xi) P.W. 11 -Ashwinbhai Dhirubhai Ex. 65 (xii) P.W. 12 - Babarbhai Nathusinh Ex. 46 (vi) P.W. 6 - Kantibhai Padhiyar Ex. 50 (vii) P.W. 7 - Chandubhai Raj Ex. 52 (viii) P.W. 8 - Khumanbhai Padhiyar Ex. 53 (ix) P.W. 9 - Dineshbhai Padhiyar Ex. 55 (x) P.W. 10 - Govindbhai Rathod Ex. 61 (xi) P.W. 11 -Ashwinbhai Dhirubhai Ex. 65 (xii) P.W. 12 - Babarbhai Nathusinh Ex. 68 (xiii) P.W. 13 - Mahendrasinh Deepsinh Ex. 77 2.3 The prosecution also relied upon the following documents as documentary evidences which have been perused by us: (i) Complaint Ex. 40 (ii) Treatment Certificate of injured Ex. 22 (iii) Treatment Certificate of injured Ex. 25 (iv) Treatment Certificate of injured Ex. 26 (v) Treatment Certificate of injured Ex. 27 (vi) Post mortem report Ex. 30 (vii) Panchnama of scene of offence Ex. 42 (viii) Inquest panchnama Ex. 43 (ix) Panchnama of clothes of deceased Ex. 44 (x) Panchnama of body condition of accused Ex. 45 (xi) Panchnama of scene of offence Ex. 47 (xii) Discovery panchnama Ex. 51 (xiii) Report Ex. 74 (xiv) FSL report Ex. 79 (xv) Notification Ex. 80 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellants of the charges levelled against them by judgment and order dated 31.03.2009. 3. Heard Ms. Sadhana Sagar, learned advocate appearing for appellants of Criminal Appeal No. 867 of 2009, Mr. Mrudul Barot for appellant of Criminal Appeal No. 496 of 2011 and Ms. Nisha Thakore, learned APP appearing for respondent - State. 3.1 Learned advocates for the appellants contended that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. Learned advocates for the appellants contended that the alleged incident had taken place because of the dispute regarding cutting of branches of tree and that there was no pre-meditation or preparation on the part of the accused persons. It is submitted that the alleged incident seems to have happened in a fit of rage and therefore the trial court committed an error in convicting the appellants under section 302 of Indian Penal Code. It is submitted that the alleged incident seems to have happened in a fit of rage and therefore the trial court committed an error in convicting the appellants under section 302 of Indian Penal Code. 3.2 It is submitted by learned advocates for the appellants that looking to the totality of circumstances and the manner in which the incident had taken place and the role played by each of the accused persons, if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the injuries and the medical evidence, the court may consider that the incident in question happened in a weaker moment. It is submitted that considering the fact that the altercation led to the attack on the deceased which was in a spur of moment, the Court may consider the case of the appellants under section 304 (Part I) of Indian Penal Code. 4. Ms. Nisha Thakore, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in these appeals. She stated that the trial court has based the conviction not only on the statements of the eye witnesses but also considered entire circumstances of the case and the facts which are proved by cogent evidence. She has drawn the attention of this Court to the statements of eye witnesses, medical evidence and the panchnamas. 5. We have perused the records of the case. The case is based on the testimonies of eye witnesses. P.W. 3- Chimnabhai Padhiyar, P.W. 8 - Khumansinh Padhiyar and P.W. 9 - Dineshbhai Padhiyar are the injured witnesses as well as eye witnesses of the present alleged incident. These witnesses have in unison stated that on 26.11.2007 at around 08.30 am when accused no. 1 was cutting the branches of tree, the complainant refrained him from doing so but accused no. 1 started abusing the complainant. It is stated by these witnesses that the other accused persons came there by then and accused no. 1 gave a stick blow on the head of the complainant. By this time, the deceased reached there and accused no. 1 & 2 gave stick blows to the deceased on head and shoulder. It is stated that accused nos. It is stated by these witnesses that the other accused persons came there by then and accused no. 1 gave a stick blow on the head of the complainant. By this time, the deceased reached there and accused no. 1 & 2 gave stick blows to the deceased on head and shoulder. It is stated that accused nos. 3 & 4 also gave fist blows and stick blows. 5.1 It is an admitted fact that the incident happened because of the dispute as to cutting of the branches of tree grown by the complainant on the border of his field. It further transpires from the evidence laid before the trial court that the complainant party as well as the appellants had participated in the incident and therefore it very difficult to attribute the intention on the part of the appellants and the deceased. 6. From the medical case papers of the injured and the deceased, more particularly the history given before the doctor it is borne out that the injuries were inflicted by way of a stick and that the accused persons were the perpetrators of the alleged assault. The injured and the deceased have given the name of the accused persons before the doctor who treated them. The medical evidence corroborates the say of the eye witnesses. 6.1 It is very clear from the medical evidence that the blow of the hind was given on the left parietal region which caused fracture of skull as a result of which there was a subdural haematoma of brain and intra cranial hemorrhage and the same caused the death of Lakhabhai. In the case of Lashuben Chemabhai Chaudhary v. State of Gujarat reported in 2013(2) GLH 706 , this Court has observed as under: "13. We have already discussed above that the action of the accused in pushing the deceased in the fire of a hearth was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our view, the case cannot be said to be covered under Clause Fourthly of Section 300 IPC, however, the case of the appellant is covered under Section 304, Part-II IPC. Clause (4) to Section 300 reads as under :- "300. 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 - 2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." This clause covers class of cases which are very dangerous in themselves and the act is done with the knowledge that it must in all probability cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, provisions of this clause are required to be attracted only when the offender knows that his act is so imminently dangerous that it would in all probability cause death or at least such bodily injury which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that the clause 4thly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives of many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from illustration (d) of Section 300 of the IPC. Under clause (4) the degree of probability or likelihood of the act resulting in fatal harm is required to be of highest level. Under clause (4) the degree of probability or likelihood of the act resulting in fatal harm is required to be of highest level. This can be gathered from the clear wording of the clause (4), namely, "If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death ......." For applicability of this clause following are the necessary requirements :- (1) the act must be imminently dangerous; (2) the act must be of extraordinary recklessness; (3) the danger to human life must be so imminent; and (5) the imminence should be such that it will in all probability cause death or cause such bodily injury as is likely to cause death. The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon nature of the act and its evident risk to human life. The danger threatened must be to human life. It must be an act in which death of human is certain or almost so, and it would cause surprise if the result was otherwise. Moreover, the danger must not only be of certain or almost certain death, but of a death which is near and may be counted by days or may be hours. Thus, it can be seen that unlike the preceding three clauses of Section 300 clause (4) revolves round the knowledge of the accused and intention of the accused is of no relevance to attract provisions of this clause. 14. We may, therefore, at this juncture refer to the provisions of Section 299 of the IPC and in particular the last part of that section and examine the said provisions vis-a-vis clause (4) of section as both these provisions are totally based on the knowledge of the offender of the consequences of his act. Section 299 of the IPC deals with culpable homicide. Section 299 of the IPC deals with culpable homicide. It reads as under:- "Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." A comparative table of Section 299 and Section 300 has been aptly given in the book of Indian Penal Code by Ratanlal & Dhirajlal 28th edition - 1999 on page 364, which is as follows :- Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done..... Subject to certain exceptions culpable homicide is murder if the act by which the death is done .... INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) 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 KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned above This comparative table is quite helpful in appreciating the points of distinction between the two offences viz. offence made punishable u/S. 302 of the IPC and offence made punishable u/S. 304 II of the IPC. Clause (c) of Section 299 and clause (4) of Section 300 in the table given above, as can be seen, are put under the head of knowledge. It is further explained by the learned authors as under:- "Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death." 15. Clause (c) of Section 299 and clause (4) of Section 300 in the table given above, as can be seen, are put under the head of knowledge. It is further explained by the learned authors as under:- "Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death." 15. From aforesaid discussion, it will be sufficient to say that normally clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of such offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. In a given case this clause can be made applicable to a case wherein the offending act is done against a particular person. As against that the case would fall in the category of "culpable homicide not amounting to murder" if all the ingredients of clause (4) of section 300 of the IPC are absent and where evidence establishes that the act by which the death is caused is done with the knowledge that the act is likely to cause death. Thus it can be seen that the knowledge of the offender is closely connected with the probable result of his act. The probability in the two cases relates to the causing of death, but in one case it is comparatively not so strong as in the other. Similarly the act is in the two cases dangerous, but if it is imminently dangerous, it is prima facie murder and not merely culpable homicide. 7. It appears from the record that the learned Sessions Judge noticed the vital aspects of the case while holding that the prosecution had proved the offence as committed by the appellants-accused. Similarly the act is in the two cases dangerous, but if it is imminently dangerous, it is prima facie murder and not merely culpable homicide. 7. It appears from the record that the learned Sessions Judge noticed the vital aspects of the case while holding that the prosecution had proved the offence as committed by the appellants-accused. The prosecution has been able to prove the case against the appellants-accused and therefore we see no reason to interfere so far as the case of the prosecution that the appellants are the ones who has committed the alleged offence have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court that the appellants are the perpetrator of the alleged offence. 7.2 However, in the peculiar facts and circumstances of the case, we have borne in mind that there was no major dispute between the appellants and the deceased but at the spur of moment when the argument about cutting of branches of trees took place, the appellants in a fit of rage committed the alleged offence. Therefore, in the totality of all these and looking to the injuries sustained by the deceased and the decision of the Apex Court in the case of Lashuben (supra), we are of the opinion that the sentence awarded to the appellants is required to be converted to section 304 (Part I) of Indian Penal Code. 8. Accordingly, the conviction of the appellants - original accused under Section 302 r/w section 114 of the Indian Penal Code vide judgment and order dated 31.03.2009 passed by the Additional Sessions Judge & Presiding Officer, FTC, Anand in Sessions Case No. 23 of 2008 is converted to conviction under Section 304 (Part I) r/w section 114 of Indian Penal Code. The conviction of the appellants under other sentences is upheld. 8.1 The appellants - original accused are ordered to undergo rigorous imprisonment for a period of ten years under section 304 (Part I) r/w section 114 of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. The sentence awarded under other sections is confirmed. The sentence awarded by the court below stands altered accordingly. The sentences shall run concurrently. 8.2 Since the appellants no. The sentence awarded under other sections is confirmed. The sentence awarded by the court below stands altered accordingly. The sentences shall run concurrently. 8.2 Since the appellants no. 2 & 3 of Criminal Appeal No. 867 of 2009 - original accused no. 3 & 4 - Gokalbhai @ Pratapbhai Nathabhai Padhiyar and Natubhai Nathabhai Padhiyar are on bail, they shall surrender before the jail authorities within a period of eight weeks from today. 8.3 The judgment and order dated 31.03.2009 is modified accordingly. Appeal is allowed to the aforesaid extent. R & P, if lying with this Court, to be sent back forthwith. Appeal allowed.