NOKHA Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the accused appellant Nokha against the judgment dated 20th August, 1970 of the learned Sessions Judge, Udaipur, whereby he was convicted under sec. 302, IPC, and sentenced to undergo imprisonment for life. Ha was also convicted under section 201, IPC, and sentenced to undergo seven years' rigorous imprisonment, and to pay a fine of Rs. 200/-, and in default to undergo six months' further rigorous imprisonment. He was also convicted under section 404, IPC and sentenced to undergo 3 years rigorous imprisonment, and to pay a fine of Rs. 100/- and in default of payment of fine to undergo 6 months rigorous imprisonment. All the sentences of imprisonment were to run concurrently.

(2.) THE prosecution story is that the deceased Ganesh was the real younger brother of the accused-appellant Nokha. Ganesh used to live at Udaipur with his brother-in law (Bahnoi) Magni Ram PW/5. THE accused-appellant Nokha had his agricultural fields in village Putia Ghati, Police Station, Delwara, where he has his house, in which he was living Mst. Nathi, wife of Dalu PW/6 is the sister of the deceased Ganesh. She was living in Kailashpuri THE deceased Ganesh was in the habit of visiting his sister in Kailashpuri of and on. On 14-12-1969, in the afternoon the deceased left on a cycle from Udaipur. In the night, he stayed in Kailashpuri, and visited his brother Nokha on 15-12-1969. Ganesh inquired from Nokha where he had sold this 'karab'. Nokha replied in the affirmative. THE deceased inquired about the price it fetched. THE accused stated that he had sold it for Rs. 30/ -. THE deceased told the accused that his 'karab' has been sold at a less price of Rs 30/- only when it could have fetched Rs. 50/ -. THE accused paid Rs. 30/- in three currency notes of Rs. 10/- each to the deceased Ganesh. THE deceased was, however, not satisfied, and he said that he would make good the loss by taking an equal amount of fodder from the grass stack, which the accused had collected. So saying, the deceased went towards the grass-stack. THE accused-appellant picked up his Kulhari Ex. 1, and followed him. Smt. Walki PW/1 inquired from the accused as to where he was going, to which he replied that he was going to cut thorny bushes for fencing the grass stack. PW/3 Dalla, the Sadu of the accused was also present there. After some time, groans of the deceased were heard coming from the side of the grass stack, which was at a distance of 40 to 50 steps from the house of the accused. After sometime, the accused came with the blood soiled kulhari THE accused washed the kulhari with the water, and hid it inside the grass-stack. THEreafter, the accused went away on the cycle of the deceased. He returned after sometime without the cycle. THE accused in the evening went out of his house taking the Kulhari Ex. 5 and Pavara Ex 6 with him and returned at night. THE deceased Ganesh was staying with Magni Ram PW/5 at Udaipur. Next morning Magni Ram came to enquire about the whereabouts of Ganesh. When the whereabouts of Ganesh could not be located, Magni Ram lodged, the First Information Report on 19-12-1969 at about 10 A M. THE police arrested the accused Nokha at about 3 PM on 19-12-1969. THE police after investigation chall-aned the accused under sections 302/404, IPC on 28-1 1970 On 13 2-1970, the learned Magistrate committed the accused to the Court of Sessions. A charge under section 201, IPC was added in the Court of Sessions.

(3.) PW/2 Dalla has stated that the accused picked up the kulhari lying outside the house and followed Ganesh. After some time, the groans of Ganesh were heard. Mst. Walki said, "hatiyare Maro Chora ne Ghar Ghar ka Kiyo kida papi. " He further stated that he did not actually see Ganesh snatching the kulhari of the accused and trying to give him (accused) kulhari blows.