TIRTHA BAHADUR BHOJAL Vs. STATE

JUDGEMENT

(1.) THIS appeal is from Jail on behalf of Tirtha Bahadur linojal alias Kurtha Bahadur Bhojal who was convicted by the Additional Sessions Judge, L. A. D. Under Section 302, Penal Code and sentenced to transportation for life. The accused was tried along with another person by the name of Jay Bahadur alias Lama Nepali of an offence Under Section 302 read with Section 34, Penal Code and the Jury having returned a verdict of not guilty against the other accused and one of guilty against the present appellant Under Section 302, I, P. C. he was convicted and sentenced as aforesaid.

(2.) THE prosecution case is that one Kalaram Kalita of Majirgaon or the Palasbari Police Station started for Malaibari, a place about four miles off from the Railway Station at Khetri, on 16 -4 -1952, a Wednesday, with some money in his possession but he had not as a matter of fact arrived at his destination and was found to be missing since then. Three persons Govinda Ram Kalita, Lohit Kalita and Kalaram Kalita were all co -villagers and they carried on a joint milk business at Malaibari where several Nepalees kept a 'Khuti' (a place where several herds of cattle are kept for dairy purposes) and accused Kurtha Bahadur was one of the Nepalee Khuti owners who lived at Malaibari and had milk business with Govinda and his partners.

(3.) THERE were some other misdirections though not as grave. The evidence led in Court has not supported fully as to what was stated in the F. I. R. and the learned Additional Sessions Judge failed to show that the story given in Court ware at great variance with what was stated in the report. There was no mention of any panchayat, in the P. I. R. nor about the statement alleged to be made by Kurtha Bahadur implicating Lama in the murder. If the object of the murder was dacoity, there is no reason why some money should have been found in the handkerchief left with the dead body as alleged. It ought to have been further pointed out to the Jury that nothing incriminating was found with the accused Kurtha Bahadur nor was any evidence adduced to show that in the meantime, he spent or squandered any big amount or was absent for any material time from his residence.