Mridula Mishra, J.
1. The sole appellant Bharat Yadav has been convicted under Section 396 of the Indian Penal Code by judgment and order dated 29.11.2002 passed in Session Trial No. 202 (A) of 1993/199 of 2002. The appellant was charged under Section 396 and 412 of the Indian Penal Code but acquitted of charge under Section 412 of the Indian Penal Code as prosecution could not bring evidence to prove the charge.
2. In the night of 24-25.6.1992 at about 1 A.M. at Village Ganguli, Sahipatti dacoits entered into the house of Sahdeo Purvey (P.W.3) and they committed dacoity in the house as well as shop of Kari Purve (P.W.4). In course of dacoity two persons namely Raj Kumar Purvey and Ram Pari Devi were murdered by the dacoits as they threw bomb and also opened fired. In the morning of 25.6.1992 at about 5 A.M. fard beyan of Sahdev Purvey (P.W.3) was recorded at the place of occurrence by the Officer-in-charge of Benipatti P.S.
3. The case of prosecution as disclosed in the fard beyan of P.W.3 Sahdeo Purvey is that at 9 P.M. in the night he was sleeping at verandah of his house. At about 1 A.M. he woke up hearing the sound of breaking of the door. He went on the roof of the house and tried to peep out at the road side and saw 15-20 persons standing on the road and some persons were standing near the street. Some persons were running in between the shop of his brother and the residence of the informant. He saw that door of the shop of his brother is being broken. He became convinced that the dacoits have entered into the house. Some of the dacoits in the mean time entered into the house after breaking open the door and started looting away the articles. Inmates of the house and the villagers woke up. Villagers assembled near the house of the informant.
4. The dacoits started hurling bomb on the villagers, raising alarms with, a view to scare them. The villagers left the place and assembled at other side and the dacoits opened fire on them. Dacoits when started firing towards the house of Sahdeo Purvey, informant came down from his roof and ran towards the door of Pawan Purvey. There he saw that Raj Kumar Purvey is lying dead receiving gun shot injury. He saw that Rampari Devi has also received injury due to the firing made by the dacoits. Ram Pari Devi died after some time due to her injuries. The dacoits took away radio, wrist watches, torch from the residence of the informant and Rs. 5,000/- cash from the shop of his brother. Dacoits were wearing vest and pants. They were speaking local language. One of the dacoits who was throwing bomb was of stout built of short height. The informant in the fard beyan claimed that he can identify the accused persons and looted articles.
5. On the basis of fard beyan F.I.R. of Benipatti P.S. Case No. 102 of 1992 was recorded against unknown. In course of investigation several persons were arrested on suspicion. Appellant Bharat Yadav was also arrested on 5.7.1992 by the Investigating Officer P.W.7. The appellant was put on T.I. Parade in which he was identified by two persons namely Yashodhar Purvey (P.W.1) and Shatrughan Purvey (P.W.6). T.I. Parade was conducted by the Magistrate Shahid Khan (P.W.12). P.W.1 Yashodhar Purvey had stated that when he saw Bharat Yadav at the time of commission of dacoity, he was breaking open the lock of the door of his brother Sahdeo Purvey with Khanti. P.W.6 Shatrughan Purvey had identified Bharat Yadav as dacoit breaking open the lock of the shop of his brother. He also stated that at that time this accused was wearing black vest and black half pant whom he identified in the light of the torch flashed by dacoits.
6. Prosecution has examined all together 12 witnesses. Initially 11 witnesses were examined but Shahid Khan was re-examined because appellant Bharat Yadav absconded during trial on 5.7.92 when his statement was to be recorded under Section 313 Cr.P.C. He remained absconding for near about four years. He was remanded again for trial on 4.5.1999 as during the period of his absconding he committed another offence and was arrested in that case. After appellant's arrest, Shahid Khan was again examined as witness because earlier this witness was not examined in presence of Bharat Yadav.
7. So far the evidence of P.W.1 and 6 is concerned its important for proving charge under Section 396 against the appellant, Bharat Yadav. These two witnesses have identified the appellant in T.I. Parade. Other witness P.W.2 Ram Dayal Panjiyar though participated in T.I. Parade did not identify Bharat Yadav. He identified other accused namely Rajdeo and others. P.W.3 Sahdeo purvey P.W.4 Kari Purvey, P.W.5 Shivji Purvey have not identified any of the accused. They have only deposed on the point that dacoity was committed in the night of 25.6.1992 in which Raj Kumar Purvey and Ram Pari Devi were killed by the dacoits. P.W.6 Shatrughan Purvey has identified this appellant as person breaking the lock. P.W.7 Deonath Singh is the Investigating Officer of the case. He has recorded the fard beyan of Sahdeo Purvey (P.W.3). Interrogated the witnesses. He arrested this appellant as well as other accused persons as suspect.
8. He produced arrested persons before the Magistrate and also made request for holding T.I. Parade. So far this appellant is concerned on his behalf there is no cross examination of P.W.9. that T.I. Parade was not held properly as prior to conducting T.I. Parade he was shown to the witnesses. P.W.8 is Pharmasist who was posted at Sadar Hospital, Madhubani at the time when the post mortem of the deceased was conducted and he has deposed that the post-mortem report was prepared by the Medical Board in which Dr. P.N. Khanna Dr. V.V. Prasad and Dr. N. Singh have participated. P.W.9 Dr. Mahendra Singh has proved the post-mortem report of Ram Pari Devi as Ext.4/6. He has stated that Dr. V.V. Prasad conducted post-mortem examination and had prepared postmortem report. He has also identified the signature of Dr. V.V. Prasad which has been marked as Ext.6. He has also proved the signature of Dr. who conducted post-mortem on the dead body of Raj Kumar Prasad. P.W.11 Shahid Khan was posted as Judicial Magistrate at Civil Court Madhubani on 4.8.1992. He had conducted T.I. Parade on the request of the Chief Judicial Magistrate, Madhubani in connection with Benipatti P.S. Case No. 102 of 1992 at Subdivisional Jail, Madhubani.
9. He has deposed that T.I.P. was conducted observing all formalities. There was no cross examination on behalf of the appellant Bharat Yadav, When Shahid Khan was examined as P.W.11. Shahid Khan was again examined as P.W.12. and has denied suggestion that T.I. chart was not prepared observing all formalities or there was any irregularities in conducting the T.I. Parade. He has very specifically stated that before conducting the T.I. Parade accused were not produced before the witnesses. From the evidence of this witness there is nothing to show that T.I. Parade was not held properly in accordance with law.
10. Mr. Girish Chandra, Advocate, Amicus curea represented the appellant and has very ably presented the case of the appellant. He tried to persuade the court that though P.W.1 and P.W.6 have identified the appellant but there is contradiction in the evidence of P.W.1 and 6 as such no importance can be attached to the T.I. chart showing identification of the appellant. It has also been submitted that identification of appellant in T.I. Parade by P.W.1 and 6 has lost its value on account of inordinate delay in conducting the T.I. Parade. It has been submitted that Bharat Yadav was arrested on 5.7.1992 and put on T.I. Parade on 4.8.1992 after a gap of 29 days. This delay in conducting T.I. Parade is fatal for prosecution and for conviction of appellant on the basis of his identification in such T.I. Parade. In support of this contention counsel for appellant has placed reliance on a decision of Rajasthan High Court in the case of Nemichand v. Ganeshmal and Ors. reported in . In this decision T.I. Parade was held after 11 days of arrest of the accused and it was held that no value can be attached to such identification. I find that the facts of the case not being identical, this decision has no application in present case. In the present case there is no suggestion given to the prosecution witness that they had opportunity to see the face of accused before T.I. Parade.
11. I find that simply because the T.I. Parade was held after 29 days it cannot be a ground for rejecting the identification by the prosecution witnesses unless it is brought in evidence that due to delay witnesses forgot physical features and faces of accused. In the present case, in course of dacoity two of the inmates of the house were killed. One can not presume that impression of such incident will fade out from the memory of the family witnesses within short period of 29 days. Such memory remains fresh for long. Simply because T.I. Prade was held after 29 days, identification by P.W. 1 and P.W.6 can not be brushed aside or over looked. In the present case both the identifying witnesses stated that they saw him breaking open lock of the door. P.W.6 has given the details of the cloth worn by the accused, at the time of occurrence. Witness gave details of the appearance of accused and specific act done by him. In that view there is no irregularities or illegality in the identification.
12. Another point which has been raised by the counsel for the appellant is that even if there are two witnesses i.e P.W.1 and 6 have claimed to have identified Bharat Yadav at the time of commission of dacoity, there is contradiction in their statement relating to act done by the accused, when they saw him. P.W.1 has said that he saw Bharat Yadav breaking the door of P.W.3. P.W.6 has said that he saw Bharat Yadav breaking open the lock of the shop. I find that this is not a contradiction rather this shows that the prosecution witnesses have seen this appellant doing same act at two different points of time. This contradiction cannot be considered affecting the value of the identification.
13. It has also been submitted by the counsel for the appellant that the F.I.R. was instituted against unknown. In the evidence of I.O. it has not come that for what reason the appellant was considered as suspect and arrested. It has also not come in the evidence of I.O. that appellant has criminal history, I do not find that such submission has any force, appellant absconded during trial at the stage when his statement was to be recorded under Section 313 Cr.P.C. During the period of absconding conduct of appellant show that he is a man having criminal history. Appellant must have been arrested as suspect considering his criminal record.
14. Third and the last submission of counsel for the appellant is that the trial court committed serious illegality by not providing opportunity of hearing to the accused before awarding sentence, though it is mandatory under Section 235(2) Cr.P.C. which reads as follows:
If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
15. In support of his submission counsel for the appellant has placed reliance on the decision in the case of Muniappan v. State of Tamil Nadu : 1981CriLJ726 In this decision the provision of Section 235(2) Cr.P.C. was considered and it has been discussed which reads as follows:
The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by simply putting a formal question to the accused as to what he has to say on the question of the sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounded duty of the judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded.
16. The discussion of the Apex Court indicates that the provisions under Section 235(2) is mandatory and the purpose of this section is to afford an opportunity to the accused after his conviction and before awarding sentence to explain his status so that the court can decide as to what sentence should be awarded to the accused. At the time of awarding sentence the court has to consider the age, background and the antecedent as well as the nature of crime and manner in which it has been committed. Opportunity is afforded to the accused to comply the rule of natural justice, What I find is that in the present case proper opportunity was provided to the accused by the trial court after conviction but in presence of the accused his counsel refused to make any submissions.
17. This has been recorded in the judgment. From the Judgment I find that inspite of refusal by his counsel to make any submission on the point of sentence no objection was raised by the appellant. He did not disclose his mind before the court that he himself wants to make any submission before the court or any other counsel be engaged on his behalf for making submission on the point of sentence. So far status, background of the accused is concerned it is apparent from the judgment itself. In opening paragraph of the judgment itself it has been stated that during trial the accused absconded and committed another offence. This shows that the appellant is a habitual offender. There is no violation of mandatory provision of Section 235(2) Cr.P.C.
18. Considering entire submission made by the counsel for the appellant and well as the counsel for the State I am of the view that the judgment of the trial court is fit for confirmation. Accordingly the conviction of the appellant under Section 302 is affirmed and sentence awarded by the trial court is also confirmed. The appeal preferred by the appellant is dismissed.
Syed Md. Mahfooz Alam, J.
I agree.