JUDGMENT K.S. Jhaveri, J. 1. The appellants - original accused Nos. 1 to 6 were convicted by the Additional Sessions Judge, Court No. 9, Ahmedabad City for the offence punishable under sections 143, 147, 148,149 read with 302, 324, 323 of Indian Penal Code and section 135 of B.P. Act vide judgment and order dated 24.02.2011 passed in Sessions Case No. 58 of 2009. The accused were ordered to suffer imprisonment as under: Ori. Accused No. Section Particulars of sentence 1 to 6 143, 147, 148,149 r/w 302 of Indian Penal Code R.I. For life and fine of Rs. 500/-, I.D. S.I. For 2 months. 143, 147, 148,149 r/w 324 of Indian Penal Code R.I for three months and fine of Rs. 500/- in default S.I for 7 days. 143, 147, 148,149 r/w 323 of Indian Penal Code R.I for three months and fine of Rs. 500/- in default S.I for 7 days. 135(1) of B.P. Act R.I for seven days and fine of Rs. 100/- in default S.I for 3 days. 143, 147, 148,149 No separate sentence. 1.1 Criminal Appeal No. 595 of 2011 has been preferred by original accused No. 5, Criminal Appeal No. 599 of 2011 has been preferred by original accused Nos. 1 to 3 & 6 whereas Criminal Appeal No. 643 of 2011 has been preferred by original accused No. 4. Original accused No. 5 - appellant of Criminal Appeal No. 595 of 2011 has expired. Criminal Appeal No. 595 of 2011 therefore stands abated accordingly. We have therefore heard Criminal Appeals No. 599 & 643 of 2011 qua original accused Nos. 1 to 4 and 6. 2. As per the complaint, one Shivrajsinh @ Siju @ Raju Manchhasinh Gill and other 6 persons had entered into a dispute with Niku and Tanu around five days prior to the date of incident. Keeping the said animosity in mind, on the date of incident, which was the festival of Janmashtami, the accused went to the place of offence and inquired with the deceased Naranbhai regarding the whereabouts of Tanu and Guni. The deceased did not reply properly and therefore there ensued a scuffle between them. Accused No. 1 went away from there but later on returned with other accused persons armed with swords and sticks and attacked the deceased and other persons. The deceased did not reply properly and therefore there ensued a scuffle between them. Accused No. 1 went away from there but later on returned with other accused persons armed with swords and sticks and attacked the deceased and other persons. Accused No. 2 gave sword blow to the deceased on his neck and the deceased fell down. Thereafter when the complainant and other witnesses rushed to save the deceased, accused No. 6 gave sword blow to the complainant and other witnesses. The other accused also gave stick blows to the complainant and other witnesses. 2.1 The accused were arrested and investigation was initiated. Statements of various witnesses were recorded, panchnamas were drawn and other relevant materials were collected and thereafter charge sheet was filed before the Metropolitan Court No. 9, Ahmedabad. However, as the case was Sessions triable, the learned magistrate committed the case to the Court of Sessions, Ahmedabad which was registered as Sessions Case No. 58/09. The charge was framed against the accused which was read over to them and the accused having pleaded not guilty, the case was opened by the prosecution for trial. 2.2 During the course of trial the prosecution examined the following witnesses: P.W. No. Name of Witness Exhibit No. 1 Manojbhai Lashkari 18 2 Rameshji Thakore 24 3 Sanjaybhai Bariya 26 4 Rajeshbhai Kanojiya 29 5 Ramanbhai Patel 44 6 Vrajlal Vaghela 47 7 Ramesh Verma 54 8 Mahmadbhai Miyana 59 9 Vikramsinh Arjunsinh Vaghela 60 10 Dilipbhai Thakore 62 11 Dhanjibhai Marwadi 70 12 Sanjay Lalo Ode 75 13 Prem @ Babu Ode 80 14 Dr. Tapan Mehta 83 15 Dr. Jaydevkumar Modh 85 16 Chandaben Ode 91 17 Zahirmiya Thakore 101 18 Jashwantsinh Jadeja 114 2.3 The prosecution also relied upon the following documents as documentary evidences which have been perused by us: Sr. No. Name of Document Exhibit No. 1 Panchnama of scene of offence 21 2 Panchnama of clothes of deceased 25 3 Panchnama of clothes of accused 30 4 Panchnama of recovery of weapons by accused no. 6 45 5 Panchnama of recovery of weapons by accused 48 6 Panchnama of recovery of weapons by accused mo. No. Name of Document Exhibit No. 1 Panchnama of scene of offence 21 2 Panchnama of clothes of deceased 25 3 Panchnama of clothes of accused 30 4 Panchnama of recovery of weapons by accused no. 6 45 5 Panchnama of recovery of weapons by accused 48 6 Panchnama of recovery of weapons by accused mo. 6 55 7 Complaint 71 8 P.M. Note 84 9 Injury certificate of complaint 86 10 Injury certificate of injured Dilipbhai 87 11 Injury certificate of injured Babubhai 88 12 Charge officer’s report 102 13 Inquest panchnama 103 14 FSL dispatch note 115 15 FSL receipt 116 16 FSL forwarding letter 117 17 FSL report 118 18 Serological analysis report 119 19 Yadi and Report by FSL officer from place of offence 120 20 Notification regarding prohibition of weapons 121 2.4 At the end of trial, after recording the statement of the accused under section 313 of the Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants of the charges leveled against them by the impugned judgment and order. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellants have preferred the present appeals. 3. Learned advocates appearing for the accused have concentrated only on the aspect of quantum of sentence. Learned advocates have drawn the attention of this Court to the injuries mentioned at Column No. 17 & 19 of the post mortem report and submitted that 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 coupled with the fact that only one injury proved fatal to the deceased, the Court may consider the case of the appellants under section 304 (Part I) or 304 (Part II) of Indian Penal Code. It is submitted that the injury sustained by the complainant was only a CLW wound whereas the injuries sustained by other witnesses were mere abrasions. It is therefore submitted that this court may consider the case of the appellants from the said angle. 4. Ms. It is submitted that the injury sustained by the complainant was only a CLW wound whereas the injuries sustained by other witnesses were mere abrasions. It is therefore submitted that this court may consider the case of the appellants from the said angle. 4. Ms. C.M. Shah, 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 the appeals. She stated that the trial court has based the conviction not only on the statement of the 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 witnesses, medical evidence and the panchnamas. 5. The appellants have restricted their arguments to the fact that a single blow was inflicted by the appellants upon the deceased. We are therefore not discussing the evidence in detail. P.W. 14, Dr. Tapan Mehta is the medical officer who performed the autopsy of the dead body of deceased. His evidence reveals that the deceased had suffered only one injury on the right side of the neck and that resulted into his death. He has stated that the following observations were made by him in para 17 of the post mortem report: "17. (1) A Cut lacerated wound present on the right side of the neck, starts from just above the level of thyroid cartilage in front of mid of neck then it goes obliquely upwards backwards & laterally to right, it is 1.5 c.m. below the right angle of mandible & 6 c.m. below the right mastoid process with red contused margins it is of 12.5 c.m. x 3.5 c.m. size x muscle deep." 5.1 The cause of death of deceased is stated in the post mortem report to be shock as a result of injury sustained. Thus, it is very clear that the incident had taken place at the spur of moment and only one main injury was caused on the deceased by accused No. 2. 5.2 Similarly, the other accused had inflicted stick blows and sword blows. Thus, it is very clear that the incident had taken place at the spur of moment and only one main injury was caused on the deceased by accused No. 2. 5.2 Similarly, the other accused had inflicted stick blows and sword blows. The complainant had received CLW wound of size 2 x 0.5 x 0.5 c.m. on index finger whereas the other injured witnesses had received abrasions and going by the oral evidence of witnesses, it is clear that the incident happened at the spur of moment. It however cannot be denied that the accused persons formed an unlawful assembly and assaulted the deceased, complainant and other injured witnesses. 6. In the case of Lashuben Chemabhai Chaudhary vs. 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. 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 atleast 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. 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 300clause (4) revolves round the knowledge of the accused and intention of the accused is of no relevance to attract provisions of this clause. 14. Thus, it can be seen that unlike the preceding three clauses of Section 300clause (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-à-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. 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 (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause 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 Section300 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 section300 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. 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. 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. 7.1 As per the latest decision of the Apex Court, we 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 perpetrators of the alleged offence. 8. However, considering the fact that there was a single blow inflicted by the accused, this case would fall under section 304 (Part I) of Indian Penal Code, on the touch stones of principles laid down by the Apex Court more particularly while interpreting the provisions of section 302, we are of the considered opinion that this case would not fall under the definition of section 300. Considering the bodily injury which was likely to cause death and the bodily injury sufficient to cause death in this case while reading section 304 (Part I) we hold that there was no premeditation. The offence was committed in a spur of moment as both the sides had a heated exchange of words and in a fit of rage, the accused persons, in the heat of passion had committed this offence. Hence the degree of probability being the determining factor in such cases, conviction is required to be altered from section 302 of Indian Penal Code to under section 304 (Part I) of Indian Penal Code. 9. Accordingly, Criminal Appeal No. 595 of 2011 stands disposed of as having been abated as sole accused - accused No. 5 has expired. Criminal Appeals No. 599 & 643 of 2011 are partly allowed. Accordingly, the conviction of the appellants - original accused Nos. 1 to 4 & 6 under Section 302 of the Indian Penal Code vide judgment and order dated 24.02.2011 arising from Sessions Case No. 58 of 2009 passed by the Additional Sessions Judge, Court No. 9, Ahmedabad City is altered to conviction under Section 304(Part I) of Indian Penal Code. The appellants - original accused Nos. 1 to 4 & 6 under Section 302 of the Indian Penal Code vide judgment and order dated 24.02.2011 arising from Sessions Case No. 58 of 2009 passed by the Additional Sessions Judge, Court No. 9, Ahmedabad City is altered to conviction under Section 304(Part I) of Indian Penal Code. The appellants - original accused Nos. 1 to 4 & 6 are ordered to undergo rigorous imprisonment for a period of ten years under section 304(Part I) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. The judgment and order dated 24.02.2011 is modified accordingly. The period of sentence already undergone shall be considered for set off qua appellants - original accused Nos. 1 to 4 & 6. The accused if on bail shall surrender within a period of twelve weeks from today to serve out the remaining period of sentence. R & P to be sent back to the trial court forthwith.