JUDGMENT : (Shailendra Shukla, J.) : 1. This appeal under Section 374 of Cr.P.C has been preferred against the order and judgment dated 22.11.2011, pronounced in S.T.No.191 of 2011 by the 2nd Additional Sessions Judge, (Fast Track) Kukshi, District Dhar, whereby the appellant has been convicted and sentenced as under : Conviction Sentence Section & Act Imprisonment Fine Amount Imprisonment in lieu of fine 302 of IPC Life Imprisonment Rs.200/- 1 Month RI 394/397 of IPC 10 years RI Rs.5000/- 6 Months RI 2. The prosecution story, succinctly speaking is that on 26.7.2009, the complainant Tulsiram Vishwakarma (PW4) along with Pappu @ Parmanand (since deceased) were going from Nagalwadi to Loni on a motorcycle driven by Pappu @ Parmanand. As they arrived at a crossing near Babulsa, they came across a wire which has been stretched across the road. This wire had been laid in order to commit loot of the passengers whose movement would get impeded as they would collide with the wire. This wire had a fatal impact upon Pappu @ Parmanand who was driving the motorcycle as it pierced his throat. Pappu @ Parmanand died on the spot due to injuries caused to him on throat. The complainant Tulsiram (PW4) was taken to near by jungle by miscreants, he was assaulted and was tied down after removing his clothes. Report was lodged on the same night at police station Kukshi under the provisions of Section 394 and 302 of IPC. During investigation the Penal provision was enhanced to Section 397 of IPC and after residual investigation charge sheet was filed against the appellant. The trial Court after recording the evidence has convicted and sentenced the appellant as mentioned hereinabove. 3. In the appeal which has been preferred, it has been stated that there is mutual contradiction in the statements in respect of the witnesses of seizure of bracelet of the deceased Pappu, that other co-accused persons were not arrested and that the appellant has been proceeded against only on flimsy grounds. 3. In the appeal which has been preferred, it has been stated that there is mutual contradiction in the statements in respect of the witnesses of seizure of bracelet of the deceased Pappu, that other co-accused persons were not arrested and that the appellant has been proceeded against only on flimsy grounds. In his oral submissions, learned counsel for the appellant has submitted that even if the evidence available on record be relied upon, the trial Court would not have convicted the appellant under Section 302 of IPC because there was no intention to cause murder and the intention was barely to commit the offence of loot and at the most conviction could have been under Section 304 Part II of IPC. 4. The question before us is whether conviction of the appellant by the trial Court mainly under Section 302 of IPC suffers from erroneous appreciation of the evidence ?. 5. Throughout his oral submissions, learned counsel for the appellant has limited his submissions to the effect of that at the most offence under Section 304 Part II of IPC is attracted. In view of the restricted submissions, the appeal is being disposed of accordingly. 6. Learned counsel has invited Court's attention to Dehatinalishi (Ex. P/6) exhibited by complainant Tulsiram (PW4) in which it has been mentioned that the wire was stretched across the road for committing loot. Learned counsel submits that even the complainant has stated that the intention of the accused persons was mainly to commit the loot and not to commit the murder. 7. Learned Public Prosecutor for the State on the other hand has submitted that the accused who had stretched out such wire across the road was deemed to have knowledge about consequence of his act and therefore, there is no error in the conclusion arrived at by the trial Court. 8. Learned counsel for the appellant has relied upon the case of Shajahan vs. State, 2018 Vol. I MPWN 112 (S.C.) in which the High Court's judgment pronounced in appeal enhancing the sentence of imprisonment from 10 years to life imprisonment under Section 396 of IPC was reduced to 10 years as held earlier held by the trial Court. 8. Learned counsel for the appellant has relied upon the case of Shajahan vs. State, 2018 Vol. I MPWN 112 (S.C.) in which the High Court's judgment pronounced in appeal enhancing the sentence of imprisonment from 10 years to life imprisonment under Section 396 of IPC was reduced to 10 years as held earlier held by the trial Court. The reason which was assigned for reducing the sentence was that the accused was not found to be armed although the death of the deceased had occurred due to pressing of his nose and mouth and tightening of his neck with a rope. The lapse of time from 2002 to 2018 was also taken into account for reduction of sentence. 9. Now coming to the facts of the present case, the sole eyewitness Tulsiram (PW4) states that the wire erected across the road pierced the throat of Pappu who was riding the motorcycle and he died on the spot. Dehatinalishi (Ex. P/6) has been lodged barely 2 hrs. 45 minutes after the incident. Ex. P/6 has been recorded by Ramesh (PW14). 10. Dr. K.K. Soni (PW2) has conducted the postmortem of Pappu @ Parmanand. As per the report which is Ex. P/4, the following injuries were found on the person of the deceased :- “(i) incised wound on right upper hand of size 2.5'' x 1''. (ii) One incised wound in front of neck of size 6'' x 3'' x 1''. On opening the wound it was found that the windpipe had been totally severed and the capillaries carrying blood and muscles were also torned. (iii) On left side of the chest there was an abrasion of size 3'' x 6''. (iv) An abrasion on left knee 2'' x 1''. (v) An abrasion 4'' x 2'' on upper part of the left arm. (vi) Bruise 2'' x 2'' on the right side of the chest.” The first and second injuries were caused by sharp object and rest were caused by hard and blunt object. The reason of death was due to excessive blood loss from the injury found on neck region. This witness had denied that the aforesaid injury on the neck could have been caused due to an impact from the metal rim of the tyre. He submits that all injuries apart from injuries No.1 and 2 only could have been caused by fall. 11. This witness had denied that the aforesaid injury on the neck could have been caused due to an impact from the metal rim of the tyre. He submits that all injuries apart from injuries No.1 and 2 only could have been caused by fall. 11. Shankarlal Khandari (PW11) has stated that he had recorded Dehatinalishi (Ex. P/3) and had arrived at the spot and prepared the spot map Ex. P/20 and had seized barbed wire and stump of Babul tree as per Ex. P/7 and also had collected blood soaked soil and ordinary soil from the spot. The barbed wire has been produced before the Court which is Article A/3 and the stump is Article A/4. He admits in para 8 that the barbed wire was similar in kind to what is installed by the agriculturists as fencing wire around their fields. Witnesses Arvind Kumar (PW3), Jai (PW5), Santosh (PW6) and Naval (PW7) have stated that they had arrived at the spot after receiving the information and they had seen the body of Pappu and had also found the aforesaid wire on the spot. It is thus clear that the death of Pappu @ Parmanand had occurred due to impact of the aforesaid wire on his neck which resulting severing of his windpipe causing his instant death. 12. Tulsiram (PW4) has stated that as Pappu @ Parmanand fell from the motorcycle and died, the miscreants threw his body on the road side and they caught hold of him and assaulted him. He states that he was undressed and his legs were tied down by his own trouser and his hands were tied with his own shirt. At that point of time a truck passed and he identified the appellant in the headlight of the truck. He states that miscreants removed the bracelet and silver chain from the neck of the deceased and took out the SIM from his mobile and threw the mobile and thereafter they took away his motorcycle and thereafter witness states that he slowly set himself free and arrived at toll tax Naka and informed his relatives from mobile phone. He states that the police was also informed and police arrived within half an hour. 13. He states that the police was also informed and police arrived within half an hour. 13. In his cross examination in para 8 he denies that wire which had been stretched across could be seen in the night and he can't state as to whether the driver of the motorcycle had seen same or not. In para 9 he states that after tying up his hands and legs, he was thrown in a drain. 14. Dr. K.K. Soni (PW2) has stated that on 27.7.2009 (date of incident) at about 1.00 AM Tulsiram (PW4) was examined by him and following injuries were found on his person :- “(i) lacerated wound on right upper arm 3'' x 1''. (ii) Hematoma on the left region of skull. (iii) A friction injury behind the chest. (iv) Friction injury on left hand 2'' x 2''. (v) Friction injury 2'' x 1'' on right elbow.” 15. The aforesaid presence of injuries corroborate the story of Tulsiram (PW4) which is that motorcycle in which he was travelling had toppled after impact of wire on the neck of deceased Pappu @ Parmanand. 16. Arvind Kumar (PW3) has stated that he was posted on the toll tax Kukshi as supervisor and he saw a person running towards the toll tax Naka in a nervous state and was crying aloud and had told him about the incident. As per witness the aforesaid person namely Tulsiram (PW4) had also received injuries and had told the witness that person accompanying him had died due to impact of wire. The evidence of this witness is admissible under Section 7 of the Evidence Act. 17. From the discussion of the aforesaid evidence, it is clear that a wire had been stretched across the road by miscreants in order to impede the movement of passerby so that they can be looted. 18. It has already been found that death of Pappu @ Parmanand had occurred due to excessive blood loss from the impact of the wire on his neck hence, provisions of Section 299 of IPC are attracted and death is a result of culpable homicide. 19. Regarding the involvement of the appellant in the aforesaid crime, as already stated earlier, the complainant Tulsiram (PW4) has stated that he had identified the appellant in the headlights of passing-by truck. 19. Regarding the involvement of the appellant in the aforesaid crime, as already stated earlier, the complainant Tulsiram (PW4) has stated that he had identified the appellant in the headlights of passing-by truck. He has further identified the appellant in the identification parade held in jail and Exhibit P/1 is the identification memo. The proceedings of identification parade ware conducted by Rajesh Patidar (PW1), who was Nayab Tehsildar posted at Barwani. This apart, the motorcycle driven by the deceased has been seized from the possession of the appellant as per Investigating Officer S. S. Bhuria (PW12) and the seizure memo is Exhibit P/12. The same witness has stated that on the basis of memorandum statement (Exhibit P/14), bracelet worn by the deceased was recovered from the possession of the appellant as per seizure memo (Exhibit P/11). These pieces of evidence have not been controverted on behalf of the appellant hence, it is proved that appellant was involved in commission of crime of loot and also culpable homicide. 20. The question is whether such death can be considered to be culpable homicide amounting to murder or not? 21. Clearly, the intention of the miscreants was to commit loot and it cannot be stated that the intention was specifically to commit murder. The intention was to impede movement of the traveller so that he can be looted later on and therefore, neither there was an intention of causing death nor was there any intention of causing bodily injury in such manner as has been mentioned in Secondly and Thirdly of Section 300 of IPC. Firstly of Section 300 of IPC as already seen is also not applicable because there was no intention of causing death. 22. The only question is whether Fourthly of Section 300 of IPC would be applicable or not? The aforesaid provision is reproduced 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- Fourthly—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. 23. 23. The Apex Court in the case of Kalegura Padma Rao & Another vs. The State of A. P., 2007 (12) SCC 48 has observed as under : Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons 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 the 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. 24. Further, in the case of Harendra Nath Borah vs. State of Assam, 2007 AIR SCW 4631, following observations was made : “....... It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons 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 the 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”. 25. In the case in hand, the aspect of “Practical Certainty” or knowledge as to the highest degree of probability is missing hence, the aforesaid provision of Fourthly of Section 300 of IPC would not be attracted. Instead, the appellant would be liable under Section 304 Part-II of IPC as his act was done with the knowledge that it was likely to cause death without there being any intention to cause death or cause such bodily injury. Consequently, the limited prayer of learned counsel for the appellant is allowed and the appeal is allowed to the extent that appellant would stand convicted under Section 304 Part-II of IPC instead of Section 302 of IPC and his sentence would stand reduced from life imprisonment to 10 years RI with no change in the fine amount. The conviction and sentence under Section 394/397 of IPC would remain unchanged. Both the jail sentences shall run concurrently. 26. This appeal thus stands allowed partly in above terms. 27. The conviction and sentence under Section 394/397 of IPC would remain unchanged. Both the jail sentences shall run concurrently. 26. This appeal thus stands allowed partly in above terms. 27. A copy of this judgement along with original record be sent to the Trial Court for compliance.