N. K. Mehrotra, J. - (1.) THIS is a criminal appeal against the judgment and order dated 26.11.1990, passed by the Ist Additional Sessions Judge, Bahraich in Sessions Trial No. 103 of 1989 convicting the appellant to undergo rigorous imprisonment for ten years under Section 304/34, I.P.C., 8 year R.I. under Section 436, I.P.C. three years R.I. under Section 429, I.P.C. and one year's R.I. under Section 427, I.P.C. All the sentences were directed to run concurrently.
(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 November, 1990 and the crime pertains to the date 3.12.1988 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 385-386 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 a fit case to grant indulgence when the appeal was filed in the year 1990 and since then, it is pending and there is sufficient notice to the learned counsel for the appellant. Therefore, I heard Shri C.P.M. Tripathi, learned Additional Government Advocate, perused the record and made scrutiny of the evidence on record myself.
(3.) THE prosecution story is that informant Gur Bachan was sleeping inside his house along with his family members. In the night between 2/3.12.1988 at about 3 a.m., accused-appellant Lallan along with Raunak Ali, (now deceased) came to his house and set fire in it. THE entire household goods were burnt along with two bullocks and 12 goats. Apart from that the wife of Jagdish, his daughter and a son aged about 2 months sustained severe burn injuries. All the injured persons were admitted to District Hospital, Bahraich. According to the prosecution, Gur Bachan and his family members had previous enmity with Lallan Khan. On alarm, the witnesses Ram Kewal, Bachchu, his mother and so many persons reached there and saw these two accused-persons setting fire in his house and running also. Informant Gur Bachan got prepared a written report Ext. Ka-1 and handed over to the Superintendent of Police, Bahraich, who directed this written report to the Station Officer, P.S. Hardi, district Bahraich for lodging the F.I.R. of this incident. On the basis of the written report Sri Jwala Prasad Chaturvedi posted at P.S. Hardi, district Bahraich, prepared a chik F.I.R. Ext. Ka-3 on 3.12.1988 at 4.35 p.m. and made an entry in the G.D. which is Ext. Ka-4. The distance between the place of occurrence and the police station Hardi district Bahraich is 10 miles.;