DURGA MANI Vs. STATE OF U P
LAWS(ALL)-2003-7-251
HIGH COURT OF ALLAHABAD
Decided on July 10,2003

DURGA MANI Appellant
VERSUS
STATE OF UTTAR PRADESH Respondents


Referred Judgements :-

BANI SINGH VS. STATE OF UTTAR PRADESH [REFERRED TO]


JUDGEMENT

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 28.10.1993, passed by the Sessions Judge, Gonda in Sessions Trial No. 97 of 1991 convicting the appellant under Section 376, I.P.C. read with Section 511, I.P.C. and sentencing him to undergo two year's rigorous imprisonment.
(2.)ON the listed date of hearing, nobody appeared from the side of the accused-appellant to argue the appeal. Initially, the appeal was filed by a learned advocate who has been elevated to the Bench. Although, not required but even then in the interest of justice, a notice was sent by the Registry to the appellant to engage another counsel ; despite service of the notice, the accused-appellant has not bothered to appear and engage the counsel for arguing the appeal.
Since this appeal was filed in May, 1993 and the incident relates to the month of June, 1990 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 1989 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.

(3.)THE prosecution story as set out in the F.I.R. is that on 13.6.1990 at about 5.00 p.m. when the complainant's nine years old daughter Km. Punam had gone to the pond on the eastern side of the village in order to graze her she-buffalow, the accused Durga Mani, who was sitting at a nearby place under his mango tree to keep watch over the mango crop, called the minor girl on the pretext of offering her mango and after seducing her by giving her mango, he attempted to commit rape upon her by pulling her underwear down. THE shrieks of the girl attracted witnesses Mathura Prasad along with Bhagwati Prasad and Rakesh Kumar, maternal uncle and son of the complainant to the place of the occurrence. THEy rushed at the spot, witnessed the incident and tried to apprehend the accused who, however, fled away from the spot.
The complainant thereafter, lodged a written report on the same day at about 7.00 p.m. on the basis of which a case under Section 376/511, I.P.C. was registered at the police station Dhaneypur, district Gonda.



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