{"id":142165,"date":"2008-12-03T00:00:00","date_gmt":"2008-12-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharat-yadav-vs-state-of-bihar-on-3-december-2008"},"modified":"2016-04-18T18:56:52","modified_gmt":"2016-04-18T13:26:52","slug":"bharat-yadav-vs-state-of-bihar-on-3-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharat-yadav-vs-state-of-bihar-on-3-december-2008","title":{"rendered":"Bharat Yadav vs State Of Bihar on 3 December, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Bharat Yadav vs State Of Bihar on 3 December, 2008<\/div>\n
Author: Smt. Mridula Mishra<\/div>\n
                                         CRIMINAL APPEAL No.19 OF 2003\n                                                               --\n<\/pre>\n
                    Against the judgment and order dated29.11.2002 passed by Additional District
\n                    & Sessions Judge-cum- Presiding Officer,2nd Fast Track Court, Madhubani
\n                    in SessionTrial no.202(A)\/93\/ 199 of 2002.\n<\/p>\n
                                                         —\n<\/p>\n
                                  BHARAT YADAV son of Sarjug Yadav, resident of
\n                               Village Domey, P.S. Keoti, District Darbhanga-(Appellant)
\n                                                              Versus
\n                                      STATE OF BIHAR—————-(Respondents)<\/p>\n
                                                     PRESENT<\/p>\n
                                    THE HON’BLE JUSTICE SMT. MRIDULA MISHRA<\/p>\n
                       THE HON’BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM<\/p>\n
Mridula Mishra,J             The sole appellant Bharat Yadav has been convicted under Section 396 of the<\/p>\n
                   Indian Penal Code by judgment and order dated 29.11.2002 passed in Session Trial<\/p>\n
                   No.202 (A) of 1993\/ 199 of 2002. The appellant was charged under Section 396 and 412<\/p>\n
                   of the Indian Penal Code but acquitted of charge under Section 412 of the Indian Penal<\/p>\n
                   Code as prosecution could not bring evidence to prove the charge.<\/p>\n
                             2.In the night of 24-25.6.1992 at about 1 A.M. at Village Ganguli, Sahipatti<\/p>\n
                   dacoits entered into the house of Sahdeo Purvey (P.W.3) and they committed dacoity in<\/p>\n
                   the house as well as shop of Kari Purve (P.W.4). In course of dacoity two persons namely<\/p>\n
                   Raj Kumar Purvey and Ram Pari Devi were murdered by the dacoits as they threw bomb<\/p>\n
                   and also opened fired. In the morning of 25.6.1992 at about 5 A.M. fard beyan of Sahdev<\/p>\n
                   Purvey (P.W.3) was recorded at the place of occurrence by the Officer-in-charge of<\/p>\n
                   Benipatti P.S.<\/p>\n
                             3. The case of prosecution as disclosed in the fard beyan of P.W.3 Sahdeo<\/p>\n
                   Purvey is that at 9 P.M. in the night he was sleeping at verandah of his house. At about
\n                                   -2-<\/span><\/p>\n
1 A.M. he woke up hearing the sound of breaking of the door. He went on the roof of the<\/p>\n
house and tried to peep out at the road side and saw 15-20 persons standing on the road<\/p>\n
and some persons were standing near the street. Some persons were running in between<\/p>\n
the shop of his brother and the residence of the informant. He saw that door of the shop<\/p>\n
of his brother is being broken. He became convinced that the dacoits have entered into<\/p>\n
the house. Some of the dacoits in the mean time entered into the house after breaking<\/p>\n
open the door and started looting away the articles. Inmates of the house and the villagers<\/p>\n
woke up. Villagers assembled near the house of the informant. The dacoits started<\/p>\n
hurling bomb on the villagers, raising alarms with, a view to scare them. The villagers<\/p>\n
left the place and assembled at other side and the dacoits opened fire on them. Dacoits<\/p>\n
when started firing towarrds the house of Sahdeo Purvey, informant came down from<\/p>\n
his roof and ran towards the door of Pawan Purvey. There he saw saw that Raj Kumar<\/p>\n
Purvey is lying dead receiving gun shot injury. He saw that Rampari Devi has also<\/p>\n
received injury due to the firing made by the dacoits. Ram Pari Devi died after some<\/p>\n
time due to her injuries. The dacoits took away radio, wrist watches, torch from the<\/p>\n
residence of the informant and Rs.5,000\/- cash from the shop of his brother. Dacoits were<\/p>\n
wearing vest and pants. They were speaking local language. One of the dacoits who was<\/p>\n
throwing bomb was of stout built of short height. The informant in the fard beyan<\/p>\n
claimed that he can identify the accused persons and looted articles.<\/p>\n
          4. On the basis of fard beyan F.I.R. of Benipatti P.S.Case no.102 of 1992 was<\/p>\n
recorded against unknown. In course of investigation several persons were arrested on<\/p>\n
suspicion. Appellant Bharat Yadav was also arrested on 5.7.1992 by the Investigating<\/p>\n
Officer P.W.7. The appellant was put on T.I.Parade in which he was identified by two<\/p>\n
persons namely Yashodhar Purvey (P.W.1)and Shatrughan Purvey (P.W.6). T.I.Parade<\/p>\n
was conducted by the Magistrate Shahid Khan (P.W.12). P.W.1 Yashodhar Purvey had
\n                                   -3-<\/span><\/p>\n
stated that when he saw Bharat Yadav at the time of commission of dacoity, he was<\/p>\n
breaking open the lock of the door of his brother Sahdeo Purvey with Khanti. P.W.6<\/p>\n
Shatrughan Purvey had identified Bharat Yadav as dacoit breaking open the lock of the<\/p>\n
shop of his brother. He also stated that at that time this accused was wearing black vest<\/p>\n
and black half pant whom he identified in the light of the torch flashed by dacoits.<\/p>\n
          5. Prosecution has examined all together 12 witnesses. Initially 11 witnesses<\/p>\n
were examined but Shahid Khan was re-examined because appellant Bharat Yadav<\/p>\n
absconded during trial on 5.7.92 when his statement was to be recorded under Section<\/p>\n
313 Cr.P.C. He remained absconding for near about four years. He was remanded again<\/p>\n
for trial on 4.5.1999 as during the period of his absconding he committed another offence<\/p>\n
and was arrested in that case. After appellant’s arrest, Shahid Khan was again examined<\/p>\n
as witness because earlier this witness was not examined in presence of Bharat Yadav.<\/p>\n
          6. So far the evidence of P.W.1 and 6 is concerned its important for proving<\/p>\n
charge under Section 396 against the appellant, Bharat Yadav. These two witnesses have<\/p>\n
identified the appellant in T.I.Parade. Other witness P.W.2 Ram Dayal Panjiyar though<\/p>\n
participated in T.I.Parade did not identify Bharat Yadav. He identified other accused<\/p>\n
namely Rajdeo and others. P.W.3 Sahdeo purvey P.W.4 Kari Purvey, P.W.5 Shivji<\/p>\n
Purvey have not identified any of the accused. They have only deposed on the point that<\/p>\n
dacoity was committed in the night of 25.6.1992 in which Raj Kumar Purvey and Ram<\/p>\n
Pari Devi were killed by the dacoits. P.W.6 Shatrughan Purvey has identified this<\/p>\n
appellant as person breaking the lock. P.W.7 Deonath Singh is the Investigating Officer<\/p>\n
of the case. He has recorded the fard beyan of Sahdeo Purvey (P.W.3). Interrogated the<\/p>\n
witnesses. He arrested this appellant as well as other accused persons as suspect. He<\/p>\n
produced arrested persons before the Magistrate and also made request for holding<\/p>\n
T.I.Parade. So far this appellant is concerned on his behalf there is no cross examination
\n                                   -4-<\/span><\/p>\n
of P.W.9. that T.I.Parade was not held properly as prior to conducting T.I.Parade he was<\/p>\n
shown to       the witnesses. P.W.8 is Pharmasist who was posted at Sadar<\/p>\n
Hospital,Madhubani at the time when the post mortem of the deceased was conducted<\/p>\n
and he has deposed that the post-mortem report was prepared by the Medical Board in<\/p>\n
which Dr. P.N.Khanna Dr. V.V.Prasad and Dr. N.Singh have participated. P.W.9 Dr.<\/p>\n
Mahendra Singh has proved the post-mortem report of Ram pari Devi as Ext.4\/6. He has<\/p>\n
stated that Dr.V.V.Prasad conducted post-mortem examination and had prepared post-<\/p>\n
mortem report. He has also identified the signature of Dr. V.V.Prasad which has been<\/p>\n
marked as Ext.6. He has also proved the signature of Dr. who conducted post-mortem on<\/p>\n
the dead body of Raj Kumar Prasad. P.W.11 Shahid Khan was posted as Judicial<\/p>\n
Magistrate at Civil Court Madhubani on 4.8.1992. He had conducted T.I.Parade on the<\/p>\n
request of the Chief Judicial Magistrate, Madhubani in connection with Benipatti<\/p>\n
P.S.Case no.102 of 1992 at Subdivisional Jail, Madhubani. He has deposed that T.I.P.<\/p>\n
was conducted observing all formalities. There was no cross examination on behalf of<\/p>\n
the appellant Bharat Yadav, When Shahid Khan was examined as p.W.11. Shahid Khan<\/p>\n
was again examined as P.W.12. and has denied suggestion that T.I.chart was not<\/p>\n
prepared observing all formalities or there was any irregularities in conducting the<\/p>\n
T.I.Parade. He has very specifically stated that before conducting the T.I. Parade<\/p>\n
accused were not produced before the witnesses. From the evidence of this witness there<\/p>\n
is nothing to show that T.I.Parade was not held properly in accordance with law.<\/p>\n
          7. Mr. Girish Chandra, Advocate, Amicus curea represented the appellant and<\/p>\n
has very ably presented the case of the appellant. He tried to persuade the court that<\/p>\n
though P.W.1 and P.W.6 have identified the appellant but there is contradiction in the<\/p>\n
evidence of P.W.1 and 6 as such no importance can be attached to the T.I.chart showing<\/p>\n
identification of the appellant. It has also been submitted that identification of appellant
\n                                      -5-<\/span><\/p>\n
in T.I.Parade by P.W.1 and 6 has lost its value on account of inordinate delay in<\/p>\n
conducting the T.I.Parade. It has been submitted that Bharat Yadav was arrested on<\/p>\n
5.7.1992 and put on T.I.Parade on 4.8.1992 after a gap of 29 days. This delay in<\/p>\n
conducting T.I.Parade is fatal for prosecution and for conviction of appellant on the<\/p>\n
basis of his identification in such T.I.Parade. In support of this contention counsel for<\/p>\n
appellant has placed reliance on a decision of Rajasthan High Court in the case of<\/p>\n
Nemichand- Vrs- Ganeshmal and others reported in A.I.R.1971 (Rajastan) 184. In this<\/p>\n
decision T.I.Parade was held after 11 days of arrest of the accused and it was held that no<\/p>\n
value can be attached to such identification. I find that the facts of the case not being<\/p>\n
identical, this decision has no application in present case. In the present case there is no<\/p>\n
suggestion given to the prosecution witness that they had opportunity to see the face of<\/p>\n
accused before T.I.Parade. I find that simply because the T.I.Parade was held after 29<\/p>\n
days it cannot be a ground for rejecting the identification by the prosecution witnesses<\/p>\n
unless it is brought in evidence that due to delay witnesses forgot physical features and<\/p>\n
faces of accused. In the present case, in course of dacoity two of the inmates of the house<\/p>\n
were killed. One can not presume that impression of such incident will fade out from the<\/p>\n
memory of the family witnesses within short period of 29 days. Such memory remains<\/p>\n
fresh for long. Simply because T.I.Prade was held after 29 days, identification by P.W. I<\/p>\n
and P.W.6 can not be brushed aside or over looked. In the present case both the<\/p>\n
identifying witnesses stated that they saw him breaking open lock of the door. P.W.6 has<\/p>\n
given the details of the cloth worn by the accused, at the time of occurrence. Witness<\/p>\n
gave details of the appearance of accused and specific act done by him. In that view there<\/p>\n
is no irregularities or illegality in the identification.\n<\/p>\n
           8. Another point which has been raised by the counsel for the appellant is that<\/p>\n
even if there are two witnesses i.e P.W.1 and 6 have claimed to have identified Bharat
\n                                    -6-<\/span><\/p>\n
Yadav at the time of commission of dacoity, there is contradiction in their statement<\/p>\n
relating to act done by the accused, when they saw him. P.W.1 has said that he saw<\/p>\n
Bharat Yadav breaking the door of P.W.3. P.W.6 has said that he saw Bharat Yadav<\/p>\n
breaking open the lock of the shop. I find that this is not a contradiction rather this shows<\/p>\n
that the prosecution witnesses have seen this appellant doing same act at two different<\/p>\n
points of time. This contradiction cannot be considered affecting the value of the<\/p>\n
identification.\n<\/p>\n
           9. It has also been submitted by the counsel for the appellant that the F.I.R.<\/p>\n
was instituted against unknown. In the evidence of I.O. it has not come that for what<\/p>\n
reason the appellant was considered as suspect and arrested. It has also not come in the<\/p>\n
evidence of I.O. that appellant has criminal history, I do not find that such submission<\/p>\n
has any force, appellant absconded during trial at the stage when his statement was to be<\/p>\n
recorded under Section 313 Cr.P.C. During the period of absconding conduct of appellant<\/p>\n
show that he is a man having criminal history. Appellant must have been arrested as<\/p>\n
suspect considering his criminal record.\n<\/p>\n
           10. Third and the last submission of counsel for the appellant is that the trial<\/p>\n
court committed serious illegality by not providing opportunity of hearing to the accused<\/p>\n
before awarding sentence, though it is mandatory under Section 235(2) Cr.P.C. which<\/p>\n
reads as follows:-\n<\/p>\n
           ” If the accused is convicted, the Judge shall, unless he proceeds in accordance<\/p>\n
with the provisions of Section 360, hear the accused on the question of sentence, and then<\/p>\n
pass sentence on him according to law.”\n<\/p>\n
           In support of his submission counsel for the appellant has placed reliance on<\/p>\n
the decision in the case of Muniappan- Vrs- State of Tamil nadu (A.I.R.1981 S.C.1220)<\/p>\n
In this decision the provision of Section 235(2) Cr.P.C. was considered and it has been
\n                                    -7-<\/span><\/p>\n
discussed which reads as follows:-\n<\/p>\n
          “The obligation to hear the accused on the question of sentence which is<\/p>\n
imposed by Section 235(2) of the Criminal Procedure Code is not discharged by simply<\/p>\n
putting a formal question to the accused as to what he has to say on the question of the<\/p>\n
sentence. The Judge must make a genuine effort to elicit from the accused all information<\/p>\n
which will eventually bear on the question of sentence. All admissible evidence is before<\/p>\n
the judge but that evidence itself often furnishes a clue to the genesis of the crime and the<\/p>\n
motivation of the criminal. It is the bounded duty of the judge to cast aside the formalities<\/p>\n
of the court scene and approach the question of sentence from a broad, sociological point<\/p>\n
of view. The occasion to apply the provisions of Section 235(2) arises only after the<\/p>\n
conviction is recorded.”\n<\/p>\n
          11. The discussion of the Apex Court indicates that the provisions under<\/p>\n
Section 235(2) is mandatory and the purpose of this section is to afford an opportunity<\/p>\n
to the accused after his conviction and before awarding sentence to explain his status so<\/p>\n
that the court can decide as to what sentence should be awarded to the accused. At the<\/p>\n
time of awarding sentence the court has to consider the age, background and the<\/p>\n
antecedent as well as the nature of crime and manner in which it has been committed.<\/p>\n
Opportunity is afforded to the accused to comply the rule of natural justice, What I find<\/p>\n
is that in the present case proper opportunity was provided to the accused by the trial<\/p>\n
court after conviction but in presence of the accused his counsel refused to make any<\/p>\n
submission. This has been recorded in the judgment. From the Judgement I find that<\/p>\n
inspite of refusal by his counsel to make any submission on the point of sentence no<\/p>\n
objection was raised by the appellant. He did not disclose his mind before the court that<\/p>\n
he himself wants to make any submission before the court or any other counsel be<\/p>\n
engaged on his behalf for making submission on the point of sentence. So far status,
\n                                               -8-<\/span><\/p>\n
           background of the accused is concerned it is apparent from the judgment itself. In<\/p>\n
           opening paragraph of the judgment itself it has been stated that during trial the accused<\/p>\n
           absconded and committed another offence. This shows that the appellant is a habitual<\/p>\n
           offender. There is no violation of mandatory provision of Section 235(2) Cr.P.C.<\/p>\n
                      12. Considering entire submission made by the counsel for the appellant and<\/p>\n
           well as the counsel for the State I am of the view that the judgment of the trial court is fit<\/p>\n
           for confirmation. Accordingly the conviction of the appellant under Section 302 is<\/p>\n
           affirmed and sentence awarded by the trial court is also confirmed. The appeal preferred<\/p>\n
           by the appellant is dismissed.\n<\/p>\n<\/p>\n
                                                 (Mridula Mishra, J)<\/p>\n
                       I agree<\/p>\n
                                            (Syed Md. Mahfooz Alam,J)<\/p>\n
Patna High Court
\nThe3rd Decmber,2008
\nN.A.F.R.\/sss.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Bharat Yadav vs State Of Bihar on 3 December, 2008 Author: Smt. Mridula Mishra CRIMINAL APPEAL No.19 OF 2003 — Against the judgment and order dated29.11.2002 passed by Additional District & Sessions Judge-cum- Presiding Officer,2nd Fast Track Court, Madhubani in SessionTrial no.202(A)\/93\/ 199 of 2002. — BHARAT YADAV son of Sarjug Yadav, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-142165","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nBharat Yadav vs State Of Bihar on 3 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharat-yadav-vs-state-of-bihar-on-3-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharat Yadav vs State Of Bihar on 3 December, 2008 - 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