N. K. Mehrotra, J. - (1.) THIS is a criminal appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment and order dated 5.4.1989 passed by the IInd Additional Sessions Judge, Sultanpur in S.T. No. 23 of 1988 convicting the appellants under Section 376, I.P.C. and sentencing them to undergo for seven years' R.I. and a fine of Rs. 1,000 each.
(2.) DURING the pendency of the appeal, the accused-appellant Sita Ram has died, therefore, the appeal filed by appellant Sita Ram stands abated. On the date of hearing, neither the accused-appellants even after service of the notice nor the counsel engaged by them appeared to argue the appeal. Since the appeal is of the year of 1989 and there was sufficient notice to the accused-appellants and their counsel, it was considered proper in the interest of justice to 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 1989 and since then, it is pending and there is sufficient notice to the learned counsel for the appellant, therefore, I heard the Additional Government Advocate, perused the record and made scrutiny of the evidence on record myself. The prosecution story in brief is that complainant Smt. Putkunna and accused Sita Ram both reside in the same Mauja. On 11.10.1986 accused Sita Ram enticed Smt. Putkunna away under the pretext that he would arrange for her a good home and husband ; that on the way, he arranged a Rickshaw for her. Co-accused Bhagwandin was the Rickshaw puller. Both of them committed sexual intercourse one by one. Both of them took her from Beersinghpur Semri to Birmapur and thereafter accused Bhagwandin returned back with his rickshaw and accused Sita Ram took her to the village Bela, P.S. Bhiti, district Faizabad where accused Bhagelu resides. At the residence, of accused Bhagelu, accused Sita Ram stayed for a day and both of them committed sexual intercourse with her one by one without her consent and thereafter accused Sita Ram sold her to accused Bhagelu but she did not like either accused Bhagelu or his house due to which in the night of 17.10.1987 she escaped from the house of the accused Bhagelu and came to her husband in the village Mahmoodpur aforesaid. At the time when she was enticed away by accused Sita Ram, she went away with ornaments and with a cash of Rs. 500. On return, she narrated the story to her husband and father-in-law and thereafter dictated the report to Kundan son of Kalloo of her village and the said report was handed over at the police station Jaisinghpur, on 18.10.1986 where at 3.30 a.m. head constable Akbal Bahadur Tiwari wrote the F.I.R. Ext. Ka-5 and made an entry of the cognizable offence in G.D. No. 3. Thereafter, she was sent to the District Women's Hospital, Sultanpur where on 19.10.1986 Dr. (Smt.) Neena Vatsa examined her at 1.30 p.m. and on her general examination, she found that her hymen was old torn heeled up and her vagina was found to have been admitting two fingers easily and the size of the uterus was found normal. Thereafter, Dr. Vatsa sent the vaginal smear of the prosecutrix for detection of spermatozoa and advised X-ray. On the basis of the X-ray report Dr. Vatsa determined the age of the prosecutrix to be more than 19 years. No spermatozoa were found. No definite opinion about rape could be given.;