KANHAIYA KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Sole petitioner Kanhaiya Kumar Jha who has been convicted for an offence punishable under Section 326 of the IPC and sentenced to undergo R.I. for three years as well as also slapped with a fine appertaining to Rs.3,000/- in default thereof to undergo R.I. for one year vide judgment dated 30.08.1997 by Ist Assistant Sessions Judge, Saharsa in Sessions Trial No.44 of 1988 arising out of G.R.No.1155 of 1986 as well as the judgment dated 27.07.2000 passed by Ist Additional Sessions Judge, Saharsa in Cr.Appeal No.23 of 1997 confirming the conviction for the said offence however, reducing the sentence as R.I. for a year as well as fine appertaining to Rs.3,000/- in default thereof to undergo R.I. for one year additionally has challenged the verdict under present revision petition.

(2.) While assailing the judgment of conviction and sentence passed by the learned successive Courts below, it has been submitted on behalf of the petitioner that the learned Lower Court failed to appreciate the evidences adduced on behalf of the prosecution in its right perspective. It has also been submitted that there happens to be non-compliance of Section 360 Cr.P.C, as well as Section 3 or 4 of the Probation of Offenders Act and further the learned Lower Court have not recorded any reason for non-application of the same which happens to be mandatory in the eye of law as per Section 361 of the Cr.P.C. It has further been submitted that there happens to be inordinate delay in dispatching/receiving if FIR at the office of learned Chief Judicial Magistrate and for that no explanation has been adduced on behalf of the prosecution. It has also been submitted that the evidence on the record did not justify application of Section 326 of the IPC because of the fact that there happens to be complete absence of criminal intention or knowledge at the part of petitioner in the background of the fact that co-accused Surya Narayan Jha, the father of petitioner against whom there was an allegation of abetting the offence stood acquitted by the learned Trial Court itself.

(3.) Elaborating arguments on above referred points, it has been submitted that save and except the informant Madan Mohan Jha, none of the witnesses who have been examined on behalf of the prosecution tested their identity as an eye witness to the occurrence. Therefore, the case rest upon the evidence of sole witness/victim Madan Mohan Jha. After going through the evidence of Madan Mohan Jha, it is apparent that the occurrence was committed without having mens rea in the spur of moment in the background of family feud wherein the informant intervened, hence no offence under Section 326 of the IPC could be there. It has further been submitted that it is apparent from the evidence itself that victim happens to be own uncle of petitioner and was residing commonly in a house. It is also apparent from the evidence that petitioner was not armed since before and in the aforesaid background when the evidence of P.Ws. have been disbelieved with regard to co-accused Surya Narayan Jha(since acquitted) then in that event, similar treatment would have been given to the petitioner also.