KANWALJIT SINGH AHLUWALIA,J. - (1.) From the lions of Mohammad Munna Khan and womb of Smt. Khatoon (PW.2), three sons namely appellant Wahid, deceased Saleem and Jameel (PW.1) were born. Case of the prosecution in nutshell is that on 29.6.1987 in the night at about 8.00 PM occurrence commenced in House No. 2358, Patwon Ki Gali, Telipada, Jaipur and appellant Wahid caused stab injuries with knife to his younger brother Saleem, aged 20 years, in the street after chasing him. The occurrence besides Jameel (PW.1) and Smt. Khatoon (PW.2), was witnessed by Sanjay Kishore Goswami (PW.4), Smt. Salma (PW.14) wife of the deceased, and Ajeet Kumar (PW.16). Criminal proceedings were set into motion on the basis of statement (Ex.P.2) made by Smt. Khatoon (PW.2). Later during the course of investigation, mother having lost one son Saleem, in order to save another son appellant Wahid, resiled from the statement (Ex.P.2) made to the police on the basis of which formal FIR (Ex.P.13) was registered. Jameel (PW.1) also turned hostile to save his brother and similarly, Abdul Latif (PW.7), maternal uncle (Mama) and Abdul Gaffar (PW.8), paternal uncle (Chacha) also resiled and have not supported the prosecution case. The trial Judge, on the basis of evidence led, vide impugned judgment dated 4.5.1988 convicted the appellant Wahid for offence under Section 302 IPC and vide a separate order of even date sentenced him to undergo rigorous life imprisonment and pay a fine of Rs. 100/-.
(2.) Aggrieved against the above judgment of conviction and order of sentence, on 12.5.1988 appellant filed the present appeal. On 17.5.1988 appeal was adjourned and then came summer vacations. During summer vacations on 17.6.1988 a learned Single Judge of this court exercising powers of the Division Bench, suspended the sentence awarded upon the appellant and ordered him to be released on bail. Then started tactics on behalf of the appellant to avoid hearing of the appeal. As to how efforts were made to postpone the hearing of the appeal, we have given details in our order dated 13.9.2017. Our said order dated 13.9.2017 reads as under:- "The appellant, herein was tried by the Court of Additional District and Sessions Judge, No. 5, Jaipur City, Jaipur. The said Court on 04.05.1988 held the appellant guilty of murder of his brother, namely Mohammad Saleem and convicted him for commission of offence punishable under Section 302 of the Indian Penal Code. Having convicted the appellant for the above said offence, the trial Judge, vide a separate order of even date, sentenced the appellant to undergo life imprisonment and to pay a fine of Rs. 100/-. During summer vacations i.e. on 17.06.1988 an application for suspension of sentence was filed and the Vacation Judge on said date suspended the sentence and ordered that the appellant be released on bail. On 10.03.2010 when the case was ripe for arguments, Counsel representing the present appellant made a statement that he has no instructions to appear on behalf of the appellant and, thus, on 10.03.2010 a Division Bench of this Court passed the following order:- "The learned Public Prosecutor submits that as per report dated 09.03.2010 of the SHO, Police Station Manak Chowk, Jaipur City North received by him, the appellant is alive. Mr. N.K. Maloo as well as Mr. Babu Lal Sharma, the learned counsel for the appellant contended that the appellant has taken back the file of the case from them after taking 'no objection', therefore, they are unable to argue the appeal. The appellant was granted bail by this court. Since the appellant is not present in person and learned counsel for the appellant contended that they have no instruction in the matter. In these circumstances, we have left with no option except to summon the appellant through bailable warrant. The appellant be summoned through bailable warrant in a sum of Rs. 10,000/-." In pursuance of the above said order dated 10.03.2010, bailable warrants issued could not be executed, as the appellant was avoiding the same and thus, on 28.04.2010 a Division Bench of this Court passed the following order:- "Learned Public Prosecutor submits that as per report made on bailable warrant it appears that the appellant is avoiding execution of bailable warrant, therefore, he may now be summoned through non-bailable warrant. Accused-appellant Wahid S/o. Mohd. Munna Khan may now be summoned through non-bailable warrant. A copy of non-bailable warrant may also be sent to concerned Superintendent of Police for execution." On 16.07.2010 fresh non-bailable warrants were issued. Meanwhile, the appellant filed an application for withdrawal of non-bailable warrants. On 30.07.2010 a Division Bench of this Court passed an order that the application for suspension of sentence shall be only considered, after the appellant surrenders in the Court, in pursuance of the arrest warrants. Subsequently, upon surrender of the appellant on 09.08.2010, he was released on bail on 10.08.2010. Now again start story to avoid the Court. On 27.06.2017 we directed Station House Officer, Police Station Manak Chowk, Jaipur City (North) to execute arrest warrants and to file an affidavit regarding the whereabouts of the appellant. On that day, none was present on behalf of the appellant. In pursuance of the above said order, on 04.08.2017 Station House Officer, Manak Chowk, Jaipur City (North) filed an affidavit. On the said date, appellant Wahid was present in person along with his Counsel Mr. Ashwini Kumar Sharma in the Court. Mr. Ashwini Kumar Sharma, advocate on that day stated before us that he is representing the appellant and has already filed 'vakalatnama' in the registry. The order passed on 04.08.2017 reads as under:- "Affidavit filed by SHO, Police Station Manak Chowk, District Jaipur, is taken on record. Appellant is present along with his counsel Mr.Ashwini Kumar Sharma. Mr. Ashwini Kumar Sharma submits that he has already filed Vakalatnama on behalf of the appellant in the registry counsel has prayed for an adjournment to argue the matter. We accept the prayer made by Mr.Ashwini Kumar Sharma, list the appeal for arguments on 8.9.2017, as prayed. Meanwhile Registry is directed to prepare the paper book, paper book shall be gathered by counsel for the appellant. Name of Mr. Ashwini Kumar Sharma be reflected in the cause list, as counsel for the appellant." We find from the record that no such 'vakatlatnama' has been filed. On 08.09.2017 the case was called twice, neither there was any representation on behalf of the appellant nor the appellant appeared in person. Thus, on 08.09.2017 we passed the following order:- "Case was called twice. None has caused appearance for the appellant. In the interest of justice, adjourned to 13.09.2017. A note be circulated in the cause-list that Mr. Ashwini Kumar Sharma, counsel for the appellant shall remain present in the Court to argue the case. List on 13.09.2017, for arguments." A note has been circulated in the cause-list that Mr. Ashwni Kumar Sharma, advocate should remain present before this Court. Mr. Ashwini Kumar Sharma, advocate today on second call has appeared and has submitted that neither any 'vakatlatnama' has been given to him by the appellant nor he has any instructions to pursue the present appeal and he is not aware, whether the appellant will engage him Counsel or not. We find that in old appeals where appellants are on bail every effort is made to frustrate hearing of the appeal. In view of the law laid down by the Supreme Court in the case of K.S. Panduranga v. State of Karnataka, reported as (2013) 3 Supreme Court Cases, 721 , we would have proceeded to decide the appeal on merits after going through the record, but we are informed by Mr. Ashwini Kumar Sharma, advocate that the curfew has been imposed in the walled City of the Jaipur and, hence, it is not humanly possible for the appellant to appear in the Court. Mr. B.N. Sandu, ld. A.A.G. cum P.P. has informed us that today curfew has been relaxed from 06:00 A.M to 07:00 P.M. Considering the law and orders situation in the walled City, Jaipur, we post the present appeal for arguments on 18.09.2017. We may notice here that the present appeal pertains to the year, 1988 and, hence, no long adjournment can be granted. List present appeal on 18.09.2017."
(3.) On 18.9.2017 none appeared on behalf of the appellant before us even though the case was called twice and thus, we were constrained to proceed with the case in view of the law laid by the Supreme Court in K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721 .;