N. K. Mehrotra, J. - (1.) THIS is an appeal against the judgment and order dated 22.12.1989, passed by the Ist Additional Sessions Judge, Hardoi in S.T. No. 146 of 1989. The accused appellants have been convicted to six years rigorous imprisonment under Section 307/34, I.P.C.
(2.) ON the date of listing, nobody appeared from the side of the accused appellants. Earlier accused had engaged Shri B. Saloman, advocate. ON the death of Shri B. Saloman, it was thought proper to serve a notice on the appellants afresh so that they may engage any counsel. Notices were served as per the report of the C.J.M., Hardoi. Nobody appeared from the side of the appellants in spite of the service of notice. I heard learned Government Advocate. Since the appeal is pending since 1990, 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 the circumstances of the case, it was not found fit to grant indulgence in such old appeal. The prosecution case in brief is that Ganga Charan lodged F.I.R. on 5.11.1988 at 10.15 a.m. with the allegation that on the same day at about 9.00 a.m., the accused Raj Kumar, Umesh and Jaswant residents of village Govardhanpur were digging and demolishing the walls of the complainant's latrine. Ganga Charan's wife Smt. Chandrawati asked them to desist from demolishing the wall and at this, the accused started abusing her. They pushed her down and hit her with kicks and fists. Smt. Chandrawati raised an alarm and at this, the complainant Ganga Charan, his son Devendra, Jang Bahadur and Faqirey rushed towards that place but in the meantime, the accused attacked Smt. Chandrawati with knife and after that they ran away.
(3.) A case under Sections 324, 323, 504 and 506, I.P.C. was registered. The investigation was entrusted to S.I. R. P. Pal. He recorded the statement of complainant on 5.11.1988 and then inspected the spot and prepared its site plan. He recovered blood stained and plain earth from the place of occurrence and prepared its memo. He recorded the statement of other witnesses and the case was converted under Section 326, I.P.C. on the receipt of the injury report and the X-ray report. Subsequently, it was altered under Section 307, I.P.C. on the orders of the higher authorities and the investigation was handed over to the S.I. Tula Ram Pandey who after completing investigation, submitted charge-sheet against the accused persons. All the three accused were charge-sheeted under Section 307/34, I.P.C. to which they pleaded not guilty. The contention of the accused is that they have been falsely implicated.;