N. K. Mehrotra, J. - (1.) THIS is an appeal against the judgment and order dated 20.12.1983, passed by the Special Additional Sessions Judge, Gonda convicting the accused appellants Maqbool, Mahmood Ahmad, Noor Ahmad and Chhannan Khan under Section 323/34, 324/34 and 342/34, I.P.C. and sentencing them to six months' rigorous imprisonment under Section 323/34, one year rigorous imprisonment under Section 324/34 and one year rigorous imprisonment under Section 342/34, I.P.C. in Sessions Trial No. 526 of 1982, State v. Maqbool, Mahmood Ahmad and two others.
(2.) THIS appeal was disposed of on merit on 19.3.1999 in the absence of the accused appellants and the impugned judgment and order was modified from the punishment of imprisonment to the punishment of fine. The appellants moved a Misc. Application No. 1454 of 1999 for recall of the order dated 19.3.1999. THIS application was moved on 16.6.1999. THIS application was allowed by this Court vide order dated 27.8.2002. Since then the appeal was pending. It was listed for hearing. After the restoration of the appeal, it was listed on 10.9.2002, 24.9.2002, 22.10.2002, 18.11.2002, 10.2.2003, 14.5.2003 and 1.7.2003. On these dates, it was adrourned two times at the request of the learned counsel for the appellants. Lastly, it was listed on 1.7.2003. Then again appellants became absent. Neither the counsel nor the appellants were present to make any submission in support of the merit of the appeal. Since the appeal is of the year 1984 and there was a sufficient notice to the appellants' counsel, it was considered proper in the interest of justice to dispose of the appeal on merit after following the decision of the Hon'ble Supreme Court in Bani Singh and others v. State of U. P., AIR 1996 SC 2439, wherein it was held by the Hon'ble Supreme Court that "it is the duty of the appellant and his lawyer to remain present on the appointed date, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385 and 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court". In this case, it was not found fit to grant indulgence after seeing the delaying tactics of the appellants especially when once the appeal was decided and this Court took a lenient view to give another opportunity of hearing by recalling the judgment and order dated 19.3.1999. Therefore, I heard the learned Additional Government Advocate and perused the record and made scrutiny of the evidence available on record, myself.
(3.) THE factual matrix of the case is that on 24.1.1981 at about 8.00 a.m., Bahraichi and Khairun Nisa were gong to the north from the village for diverting water to their field. When both of them reached in the west of the house of accused Maqbool alias Jhulan armed with a gun, accused Mahmood Ahmad alias Chhabbu armed with a gun, accused Noor Mohd. alias Achchhan armed with an axe and accused Channan armed with a lathi came there and challenged them. THEy also threatened to kill them by saying that they were litigious. Bahraichi sustained axe injury and Khairun Nisa sustained lathi injury. THE complainant Ismail, the Nephew of injured Bahraichi had seen this occurrence when he was standing at a distance of 10 paces from the place of occurrence. He raised an alarm and on hearing it, Adalat, Ravidas, Mahadeo, Dukhharan, Ishaq and Ahmad Ali reached there and asked the accused not to injure the said two persons. However, the accused Jhulan Khan fired a shot towards the witnesses and asked them to remain at a distance otherwise they would be killed. THEreafter the accused dragged the injured persons and locked them in a kothri of accused Chhabbu Khan. THE complainant went to his house and then to police station Rehra Bazar wherein an F.I.R., regarding this occurrence was lodged on his dictation. THEreafter the complainant returned to his house and after sometime, the policemen reached the place of occurrence. THEy made a search of the accused persons but they were not available. However, the Investigating Officer rescued the injured persons from the said kothri in the presence of the witnesses. THEreafter injured were sent to the hospital for medical treatment. Investigation was conducted by Ram Bachan Prasad, S.I. He started investigation on 24.1.1981 and went to the place of occurrence with other policeman and rescued the injured persons from the room of Ghari in presence of the witnesses and prepared a recovery memo Ext. Ka-2. He interrogated the complainant Ismail, Dukhharan, Bahraichi and Khairun Nisa. On the pointing out by the witnesses, he inspected the place of occurrence and prepared the site plan Exhibit Ka-4. He also made a search of the accused on 25.1.1981 but they could not be arrested. Accused Jhulan Khan and Channan were arrested on 27.1.1981 in Gonda. They were sent to the police station and were also interrogated. On 15.2.1981 he interrogated Ravidas, Adalat, Ishaq and Mahadeo. On 25.2.1981, accused Chhannan Khan surrendered before the Court and bailed out. Since accused Achchhan Khan was absconding, therefore, charge-sheet was submitted against three accused Maqbool, Mahmood and Chhannan. Later on when Achchhan surrendered, the investigation was completed and charge-sheet was submitted against Noor Mohd. alias Achchhan Khan on 7.2.1982. Accused were charged under Section 307/34 and 342/34, I.P.C. They pleaded not guilty and alleged their false implication due to enmity. Their defence is that the accused Mahmood Ahmad in the capacity as Pradhan of the village had given a notice to the injured Bahraichi for removing unauthorised construction from the land of Gram Sabha. This was the enmity and to establish this enmity, three documents were also filed in their defence.;