Bojaraj vs State

David Annoussamy, J.—This is an appeal by the accused. The accused and the deceased are cousin brothers. They were living in

Bojananpatti village in Anna District. There was a dispute regarding land between the deceased Nagasamy and the mother of the accused. A

panchayat was convened and in the panchayat it was decided that the land should go to Nagasamy and that Nagasamy should give Rs. 10,000 to

the mother of the accused and her sister within three months. Such an agreement was arrived at 22.11.1983. While as on 8.12.1983 when

Nagasamy started ploughing the land the accused and his mother prevented Nagasamy and his men from continuing the work and Nagasamy

returned without ploughing. On 9.12.1983 Nagasamy came and reported the matter to P.W.1, who is another cousin brother and one of the

panchayatdars. P W.1 called the mother of the accused and her sister and told them that now this the matter has been settled by the panchayat to

the effect that the land should belong to Nagasamy why they were still creating troubles on the matter. He further instituted them: you get the money

as ordered and do not create any further trouble. Then the accused intervened and said: ""before giving us the money promised Nagasamy should

not plough the land"". P.W.1 stated that time was given for Nagasamy to give money and that the accused should not speak in such an

unreasonable manner and then all of them went away. Then P.W.1 went out. He saw Kothandapani, P.W.2, son of Palani-chamy Gounder, going

to the house with a plough. Then the accused came out from the maize field at 9 a.m. and finding Nagasamy, who was coming from the opposite

direction in a bicycle, he intercepted him and started a wordy altercation repeating the same refrain, viz., ""you do not leave the land, you do not

give money, you are trying to cheat me and my mother"". He further threatened Nagasamy and slapped him. Nagasamy fell down. Then the

accused picked up some stones which were nearby and threw them at the head of Nagasamy. P.W.1 and P.W.2 appealed to the accused to stop

pelting stones at Nagasamy and then Bojaraj (accused) filed away into the maize fields. Nagasamy was then taken care of by P.W.1 and P.W.2

and they found bleeding injuries on the head and on the face of Nagasamy. Then one Thirumoola Gounder, not examined, P. Ws.1 and 2 shouted

saying Bojaraj is running away ; stop him and arrest him. Then a lot of people from the village gathered and saw Nagasamy. Nagasamy was placed

in a cot and then P.W.1. Thirumoola Gounder, P.W.2 and P.W.7 took Nagasamy to Vadamadurai Police Station.

2, Upon the complaint of P.W.1 a case in Crime No. 278 of 1983 for an offence u/s 307 , I.P.C., was registered by P.W.17, Head Constable

attached to Vadamadurai police station. The police there arranged for the transport of Nagasamy to Dindigul Hospital through a taxi belonging to

P.W.10.

P.W.4, Doctor attached to Government Head Quarters Hospital, Dindigul, examined Nagasamy at 11:00 a.m., and he found on him the

following injuries:

(1) Lacerated injury 3 cm x 1 cm. x 1 cm. centre of upper lip.

(2) Lacerated injury 3 x 1 cm. x bone deep above right eye brow.

(3) Diffuse contusion upper eye lid (left) and left cheek.

(4) Lacerated injury 4 cm. x 1cm. x bone deep 1 cm. far from the left ear anteriorly.

(5) Lacerated injury 3 cm. x 1 cm. x bone deep left parietal region 5 cms. above hair line.

(6) Lacerated injury 6 x 1 cm x bone deep 2 cms. above the injury No. 3.

(7) Lacerated injury 3 cms. x 1 cm. x bone deep left temporal area.

(8) Lacerated injury 5 cm. x 1 cm. x bone deep centre of the head 5 cm. above the hair line.

(9) Lacerated injury 3 x 1 x 1 cm. x bone deep over right parietal area.

(10) Lacerated injury 2 x 1 x 1 cm. over lateral aspect of left eye brow.

(11) Contusion 5 x 5 cm. behind injury No. 7.

On the next day, Nagasamy passed away. P.W. 5, doctor attached to Govt. Head Quarters Hospital, Dindigul, gave information regarding

death, Ex. P5, to the police station. The case was then altered into an offence u/s 302, I.P.C., P.W.19, Inspector of Police, who was duly

informed by the express information, arrested the accused on 11-12-1983 at 5:30 a.m. in a nearby place. He conducted the investigation as per

law and filed his report u/s 173, Crl.P.C., on 31-12-1983 to the effect that offences u/s 302 and 341, I.P.C., appeared to have been committed

by the accused, Bojaraj.

The Sessions Court, Madurai North at Dindigul, framed charges as per the report of the investigating officer. The accused pleaded not guilty.

Thereupon the prosecution adduced evidence collected in the course of the investigation consisting of the oral testimony of 19 witnesses, 19

exhibits and 15 material objects. When the accused was examined u/s 313, Crl.P.C , with regard to the incriminating circumstances appearing

against him, he denied any complicity with the offences.

The essential pieces of evidence in this case are the depositions of the eye-witnesses, viz P. Ws.1 and 2. They have given cogent, convincing

and concerning evidence on the sequence of facts and also on the previous history of the case. Their evidence was not shattered by the cross-

examination of the accused. Their evidence is corroborated by the evidence of P.W.4, who has noted the injuries, as described above, and who

has deposed that the injuries could have been caused in the manner stated by the prosecution viz. stone throwing. It is further corroborated by the

deposition of P.W.6, doctor, who conducted the autopsy. P.W.6, was of the opinion that the injuries found on Nagasamy were sufficient to cause

death in the ordinary course of nature and that Nagasamy would appear to have died of shock and haemorrhage due to head injury involving the

blood vessels and the brain matter of the left temporal region. Further corroboration of the evidence is found in the serological examination of the

blood. In fact, M. Os.13 and 14, respectively the blood stained shirt and lungi seized from the accused and M.O.3, dhoti bit which was found on

the body of the accused were found to contain blood belonging to the same ''B'' group human.

The trial court therefore has found that the prosecution has adequately proved the case, convicted the accused as per the charges and sentenced

him to simple imprisonment for one week for the offence u/s 341, I.P.C., and life imprisonment for the offence u/s 302, I.P.C., both to run

concurrently.

Learned Counsel appearing for the Appellant would not challenge the conviction and sentence for the offence u/s 341, I.P.C. As far as the

conviction u/s 302, I.P.C., is concerned, learned Counsel would contend that the trial court has erroneously held that the case would fall u/s 300

Part 3 I.P.C., but, on the contrary, the case would fall only u/s 299, I.P.C., and that the accused would be punishable u/s 304, Part II, I.P.C. This

is the only point to be determined in this case.

Section 300, Part 3, I.P.C., would read as follows:

Culpable homicide is murder, if the act by which the death is caused 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.

In this case, there is sufficient evidence to to show that the accused had the intention to cause bodily injury in throwing stones indiscriminately at

Nagasamy. There is also evidence that the injury caused was sufficient in the ordinary course of nature to cause death. But, there is no evidence to

show that the accused intended to cause that particular bodily injury which was sufficient to cause death. Deceased Nagasamy had sustained as

many as 11 injuries. The opinion of P.W.6, is that the death would have been caused by shock and haemorrhage due to head injury involving the

blood vessels and the brain matter of the left temporal region. That was injury No 6 in the post-mortem certificate, Ex.P-6. It cannot be said that

the accused intended to cause that specific injury. He was at a certain distance from Nagasamy. He, in a state of fury, finding that the land has been

allotted to Nagasamy, was throwing stones indiscriminately on the body of Nagasamy. But, so acting he could have had necessarily the knowledge

as contemplated u/s 299, I.P.C., that his act was likely to cause death.

The offence of murder is the gravest of the offence contemplated in the I.P.C., and the law maker has taken care to define it under the S. 300.

Clause 3 consists of 3 ingredients; firstly intention to cause bodily injury; secondly the bodily injury should be sufficient in the ordinary course of

nature to cause death and thirdly the intention to cause that particular injury which was sufficient to cause death The trial court has overlooked the

third ingredient and has come to the wrong conclusion that the offence was one punishable u/s 302 I.P.C. The case is only punishable under S.

304, Part II I.P.C., since the third ingredient is not proved.

In the result the appeal is allowed in part. The conviction and sentence u/s 341, I.P.C., are confirmed. The conviction and sentence u/s 302,

I.P.C , are set aside, the accused is found guilty of an offence u/s 304 , Part II I P C, convicted thereunder and sentenced to the period of

imprisonment already undergone.