YUNUS ALIAS BHAIYA Vs. STATE

JUDGEMENT

(1.) The original accused in Sessions Case No.31 of 1989 have preferred the present appeal against the order of conviction and sentence passed against them by the learned Additional Sessions Judge. The appellants are convicted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and each of them is sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000.00 each and in default to suffer R.I. for six months.

(2.) This appeal was originally preferred by both the appellants through Mr. D.R. Sethi, Advocate. The said learned advocate has expired after this appeal was admitted. Therefore, when appeal became-ready for hearing production warrants were issued for producing both the appellants. Report was received that appellant No.1 Yunus @ Bhaiya son of Gulab Massi, who was granted interim bail, has since absconded. It was revealed that the proceedings against the surety were also taken and surety bond had been forfeited and amount of surety bond has also been recovered as fine from the surety. Record of the case is now before us. Appellant No.1 Yunus@ Bhaiya having not appeared as he is absconding and appeal having become ready for hearing, in these circumstances, an interesting question of law has arisen in the matter as to whether the appeal of the absconding appellant is to be heard on merits or the same is to be dismissed in default by separating his appeal from the appeal of the co-appellant Puran son of Sukhram.

(3.) - We have come across three cases of the Supreme court on this point. In the case of Shyam Deo Pandey Vs. State of Bihar {AIR 1971 S.C. 1606} the following principles are laid down by the Hon'ble Supreme Court:- "The requirement regarding the perusal of record that has been sent for and received in the Court before disposing of an appeal cannot be treated as an empty formality. A perusal of record of particular case and giving indication of such perusal in the order or judgement is a must befor dismissing an appeal which has been admitted and notice whereof has been issued on the ground of non-appearance of the appellant or his pleader. Even where parties have been heard no order of dismissal can be passed without perusal of record."