June 30, 2019:
Convict had already undergone the Sentence imposed, before the Appeal came up for hearing in the High Court.
A Bench of Justice Anu Malhotra was hearing an Appeal filed by Convict appellant Kishan Pal s/o Sh. Sant Ram against the impugned judgment dated 29.11.2004 passed by Additional Sessions Judge, Karkardooma Courts, whereby he was convicted qua the commission of the offences punishable under Sections 363/366 of the Indian Penal Code, 1860 but was not convicted for the commission of the offence punishable under Section 376 of the Indian Penal Code, 1860 and was acquitted in relation thereto.
Trial Court had sentenced him with imprisonment for a period of 5 years for each of the offences under Section 363 and 366 of the Indian Penal Code, 1860 with both the sentences having been directed to run concurrently and he was also sentenced to pay a fine of Rs.5,000/- for each of the offences failing which he would undergo simple imprisonment for 6 months.
Thereafter the Appellant was released from the jail on 28.07.2007 after expiry of his sentence on getting remission of 9 months and 27 days after depositing of the fine of Rs.10,000/- in the jail on 28.07.2007.
The appellant did not put in appearance and could not be traced out also by the State. Though efforts have been made since 26.02.2010 for tracing out the appellant, he has not been traced out.
Since the Appeal was sub-judice for around 15 years the Bench decided to hear the Legal Aid Counsel in the Absence of Convict while observing-
''Thus as laid down by the Hon’ble Division Bench of this Court in Mukesh Vs. State and Suresh Vs. State 2008 (3) JCC 1986 and as laid down in Bani Singh Vs. State of U.P. (1996) 4 SCC 720, if the appeal is not dismissed summarily, then the Appellant Court shall,after perusing the records, hear the appellant or his pleader but that the law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent and it can dispose of the appeal after perusing the record and judgment of the Trial Court and that if the appellant is in custody thus as it is the duty of the Appellant Court i.e. this Court to examine the appeal and the judgment under challenge and to consider the merits of the same which aspect is not dependent on the appellant or his counsel appearing before this Court to trace the appellant, it has been considered appropriate to take up the appeal for consideration.''
Upon discussing the merits at length the bench finally dismissed the Appeal despite observing that the Prosecutrix, who was Minor, had turned hostile in her Cross Examination.
Read Judgement here-
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