N.K. Mehrotra, J. - (1.) THIS is an appeal under Section 374(2) of the Code of Criminal Procedure against the judgment and order dated 6.2.1988 passed by the I Ind Additional Sessions Judge, Kheri in Sessions Trial No. 207 of 1986, convicting the Appellant under Section 376 of the Indian Penal Code and sentencing him for seven years' rigorous imprisonment.
(2.) IN this appeal at the time of hearing, neither the accused -Appellant nor his counsel appeared to argue the appeal. Since this appeal was filed in July, 1988 and the crime pertains to the date 6.1.1985 and there was sufficient notice to the Appellant's counsel, it was considered proper in the interest of justice to hear and dispose of the appeal on merit after following the decision of the Supreme Court in Bani Singh v. State of U.P. : AIR 1996 SC 2439. It was held by the Supreme Court that: It is the duty of the Appellant and his lawyer to remain present on the appointed day, 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.
(3.) IN this case, it was not found a fit case to grant indulgence when the appeal was filed in the year 1988 and since then, it is pending and there is sufficient notice to the learned Counsel for the Appellant, therefore, I heard the learned Additional Government Advocate, perused the record and made scrutiny of the evidence on record myself.;