JUDGMENT: PER - P.R.BORKAR, J. . This is an appeal preferred by original accused No.1, who is convicted of an offence punishable under section 302 of Indian Penal Code, for committing murder of Shravan Kashinath Sathe and, therefore, sentenced to suffer life imprisonment, by the learned 2nd Additional Sessions Judge, Ahmednagar, in Sessions Case No.90 of 1987, decided on 14/08/1987. 2. It is the case of the prosecution that deceased Shravan Kashinath Sathe was residing at village Ukkadgaon, Taluka Nagar, District Ahmednagar, with his wife and son. P.W.No.1 Kisan Kashinath Sathe and P.W.No.6 Ramdas Kashinath Sathe are his brothers. The appellant, deceased Shravan and original accused No.2 Namdeo Saindu Belhekar were friends. All the three were addicted to liquor and used to take liquor together. In February, 1987 P.W.No.1 Kashinath and deceased Shravan had taken a contract for digging well at Ukkadgaon. On 28/02/1987, at about 8.00 a.m., both P.W.No.1 Kisan and deceased Shravan left their house for attending the work of digging of the well. However, some iron bars were required for user as levers for lifting big stones and, therefore, deceased Shravan along with Vitthal Shripati Shinde went to bring iron bars and P.W.No.1 Kashinath and others went to the site of the well and started doing work. Shravan did not turn up till about 2.30 p.m. and thereafter one Raosaheb Shinde came and told P.W.No.1 Kisan that his brother Shravan was lying injured near Rokadoba temple outside the village Ukkadgaon and, therefore, P.W.No.1 Kisan went there. P.W.No.6 Ramdas, who was other brother of deceased Shravan, also came to know at about 3.00 p.m. that his brother was lying injured near Rokadoba temple and he went there. 3. It is further prosecution case that thereafter inquiries were made. In the meantime Kotwal P.W.No.10 Nana Rakhama Lokhande saw the dead body and went to inform Police Patil. The Police Patil P.W.No.2 Madhav Sakharam Mhase, in turn, informed the incident of death of Shravan to Police. Accordingly, Accidental Death was registered. Police came to site, they drew inquest panchanama and also spot panchanama. The dead body was sent for post-mortem. In the meantime Kotwal P.W.No.10 Nana Rakhama Lokhande saw the dead body and went to inform Police Patil. The Police Patil P.W.No.2 Madhav Sakharam Mhase, in turn, informed the incident of death of Shravan to Police. Accordingly, Accidental Death was registered. Police came to site, they drew inquest panchanama and also spot panchanama. The dead body was sent for post-mortem. Thereafter, P.W.No.6 Ramdas lodged complaint stating that on their inquiries, they came to know that the appellant, original accused No.2 Namdeo and deceased Shravan had gone to take liquor and at about 12.30 noon, while returning to Ukkadgaon in drunken condition, the appellant Devidas and original accused No.2 Namdeo had quarreled with deceased Shravan; there was exchange of abuses and then appellant Devidas and original accused No.2 Namdeo injured Shravan with stones and killed him. This complaint was registered at Ahmednagar Taluka Police Station, at 8.05 p.m., on the same day i.e. 28/2/1987. Thereafter, further investigation was carried out. 4. The prosecution relies upon evidence of P.W.No.4 Hasan Magbul Attar, who is an owner of bicycle shop at Ukkadgaon. According to P.W.No.4 Hasan, in the morning, at about 8.30 a.m., deceased Shravan had hired bicycle. At about 12.30 noon, the appellant Devidas and original accused No.2 Namdeo came to return the bicycle and on inquiry as to why they were returning the bicycle when the same was hired by deceased Shravan, they stated that they had killed Shravan and threatened Hasan (P.W.4) not to disclose about it. It is the prosecution case that Kisan (P.W.1) went to inquire with Hasan at about 4.00 p.m. and learnt about the said incident of returning bicycle and confession of guilt. 5. It has also come in evidence that on a way back to Ukkadgaon, one Anil Shinde (P.W.8) had given lift to deceased Shravan upto Rokadoba temple and there the appellant was seen standing. P.W.No.8 Anil Shinde also saw exchange of abuses and bickering between deceased and appellant Devidas. Thereafter, Anil (PW 8) told about this incident to his aunt P.W.No.5 Chandrabhagabai Vitthal Shinde. 6. Thus, prosecution mainly wants to rely on two circumstances namely that there was extra-judicial confession made to P.W.No.4 Hasan and secondly that P.W.No.8 Anil had seen bickering and quarrel between deceased Shravan and appellant, at about 12.30 noon. Thereafter, Anil (PW 8) told about this incident to his aunt P.W.No.5 Chandrabhagabai Vitthal Shinde. 6. Thus, prosecution mainly wants to rely on two circumstances namely that there was extra-judicial confession made to P.W.No.4 Hasan and secondly that P.W.No.8 Anil had seen bickering and quarrel between deceased Shravan and appellant, at about 12.30 noon. It is also prosecution case that while returning back, Anil (PW 8) had seen Shravan in injured condition near Rokadoba temple. The prosecution also wants to rely on the other circumstances to which we will advert at latter stage. 7. In order to prove that the death of Shravan was homicidal, prosecution examined Dr.V.S.Ranade (P.W.15) at Exh.46. Dr.Ranade stated that he performed post-mortem on the dead body of Shravan, on 01/03/1987, at about 9.00 a.m., and found following external injuries : (1) CLW 5 cm. x 3 cm. over right parietal region, skull bone visible. (2) CLW 1 cm. x 1 cm. vertical in nature over forehead 2 cm above left eyebrow. (3) Abrasion extending from left elbow to wrist right 10" x 2" anterior - lat. aspect of left forearm. (4) Abrasion 2 cm. x 1 cm. over right palm posterior aspect. (5) Abrasion 3 cm. x 2 cm. over right thigh anterior aspect just above right knee joint. (6) CLW 3 cm x 2 cm. x 1/2 cm over left temporal region vertical in direction skin deep. . According to Doctor, the injuries were ante-mortem caused within 24 to 48 hours with hard substance like stones. The Doctor found following three internal injuries on the person of deceased: (1) Haematoma 5 cm. x 4 cm. over right parietal region under the scalp. (2) Fracture skull extending from the suture line between left frontal bone and left parietal bone, 3 cm. x 2 cm. x 1 cm. (3) Brain was congested and subdurally haematoma, 3 cm. x 4 cm., on left fronto parietal region. . Dr.Ranade (PW 15) further stated that external injury No.1 corresponds to internal injury No.1. External injury No.2 corresponds to internal injury No.3. External injuries no.1,2 and 6 and internal injuries No.1 to 3 are fatal and likely to cause death in the ordinary course of nature. He prepared post-mortem notes at Exh.47. Doctor denied in cross-examination that injuries No.1,2 and 6 are possible by multiple falls. External injury No.2 corresponds to internal injury No.3. External injuries no.1,2 and 6 and internal injuries No.1 to 3 are fatal and likely to cause death in the ordinary course of nature. He prepared post-mortem notes at Exh.47. Doctor denied in cross-examination that injuries No.1,2 and 6 are possible by multiple falls. The Doctor stated in cross-examination that these injuries were only possible if head comes into contact with stone with force. Doctor denied that internal injuries on head can be caused because of fall on stony ground. 8. The appellant had admitted certain documents under section 294 of Code of Criminal Procedure, 1973. The inquest panchanama(Exh.18), spot panchanama(Exh.19) and panchanama of attachment of clothes of deceased (Exh.20) are admitted. The spot panchanama (Exh.19) shows that on the road between Mandve - Ahmednagar, in between Narayandoh and Ukkadgaon villages, there was Rokadoba temple. At a distance of about 60 feet from the compound of the temple, the dead body was lying. There were injuries on the head, blood was oozing from the mouth, nostrils and ears. The blood was found flowing upto the legs of deceased. The dead body was at a distance of 15 feet from the road. There were bloodstained stones lying nearby the deceased. His footwear (chappal) was also lying. The clothes of the deceased, which included cap, Uparne (thin towel) were also bloodstained. At a distance of about 10 feet, one pointed stone was found. Police attached the cap, the Uparne and the footwear. Sample of bloodstained earth and sample of plain earth were also taken. The above stated circumstances clearly indicate that the death of Shravan was homicidal. 9. In order to fix the time of death of Shravan, evidence of P.W.No.8 Anil is useful. P.W.No.8 Anil has stated at Exh.33 that he was studying at Ahmednagar in 12th Standard. He was residing at Visapur and was attending college daily. He used to travel by train. On the day of incident his father had asked him to hand over one chit to the uncle of P.W.No.8 Anil at Ukkadgaon and, therefore, P.W.No.8 Anil was proceeding on bicycle to Ukkadgaon. He was accompanied by his two friends viz. Bhaskar Kharat and Dnyaneshwar Takle. When they came near Narayandoh, accused No.2 was seen proceeding towards Ukkadgaon on a bicycle. P.W.No.8 Anil and his two friends overtook accused No.2 Namdeo. At some distance deceased Shravan met them. He was accompanied by his two friends viz. Bhaskar Kharat and Dnyaneshwar Takle. When they came near Narayandoh, accused No.2 was seen proceeding towards Ukkadgaon on a bicycle. P.W.No.8 Anil and his two friends overtook accused No.2 Namdeo. At some distance deceased Shravan met them. He (Shravan) was about 1 kilometre away from Narayandoh. So, P.W.No.8 Anil gave lift to Shravan and left him near Rokadoba temple. There, he saw appellant standing having a stone in his hand. Thereafter, P.W.No.8 Anil and his friends went ahead; but while proceeding ahead, they heard abuses and altercations between the appellant and Shravan. Thereafter, P.W.No.8 Anil went to his uncle’s wife P.W.No.5 Chandrabhagabai and told her about the quarrels between appellant and Shravan. While he was returning Ahmednagar at about 1.00 p.m., he noticed that Shravan was lying in injured state near Rokadoba temple and a heavy and big stone was lying near his head. His statement was recorded by police on 1/03/1987 which was the next day of the incident. The witness stated that he was frightened on seeing horrible incident. 10. P.W.No.5 Chandrabhagabai Vitthal Shinde supported the evidence of P.W.No.8 Anil to some extent. She stated that Anil did come to her house. He was accompanied by two friends. They had come on bicycles. They had come with a chit of Anil’s father. Anil told her that he had seen both the accused and Shravan near Rokadoba temple and stated that accused were going to beat Shravan. Chandrabhagabai (PW 5) further stated that at about 3.00 p.m. she went to Rokadoba temple to see Shravan. This witness was declared hostile because she did not state that Anil had also told her that both the accused were assaulting Shravan near Rokadoba temple and they were under influence of liquor. The witness was confronted with portion marked "A" in her statement to the police, but she did not accept it. This witness was not cross-examined by the accused persons. So there is no reason to disbelieve her statement that P.W.No.8 Anil had come and told her that there was some verbal quarrel between accused and the deceased. 11. The learned Additional Public Prosecutor, Mrs.R.D.Reddy, argued that both P.W.No.5 Chandrabhagabai and P.W.No.8 Anil are independent witnesses. Nothing was suggested to show that there was any enmity between these witnesses and the appellant or the other accused. 12. 11. The learned Additional Public Prosecutor, Mrs.R.D.Reddy, argued that both P.W.No.5 Chandrabhagabai and P.W.No.8 Anil are independent witnesses. Nothing was suggested to show that there was any enmity between these witnesses and the appellant or the other accused. 12. It is argued before us by the learned Advocate of the appellant that since P.W.No.8 Anil was frightened, perhaps he might not have disclosed what he had seen to the villagers, but he should have disclosed it to P.W.No.5 Chandrabhagaai. If we consider the entire evidence of P.W.No.8 Anil, it is clear that Anil was returning back to Ahmednagar. Whatever he had seen, he had already told to P.W.No.5 Chandrabhagabai and there was no reason for him to go back and tell Chandrabhagabai that Shravan had died. It is not that Shravan was their close relative or that they had any such interest in Shravan. 13. In the cross-examination of P.W.No.8 Anil the only omissions brought on record is that he had not stated before the police that a stone was lying near the head of deceased Shravan when he saw Shravan while returning back. He also did not state before the police that his father met him at Ahmednagar and handed over chit for uncle. 14. It is also argued before us that it is unnatural that appellant would wait with a stone for deceased. If we see the statement of P.W.No.8 Anil, all that he said is that when Shravan got down near Rokadoba temple, appellant was standing there with stone in his hand. That does not necessarily mean that appellant was waiting with a stone since earlier time. It is quite possible that on seeing deceased coming with P.W.No.8 Anil, the stone might have been picked up. 15. It is true that in this case no motive is attributed. In fact, it is the case of the prosecution that both accused were friends of deceased who used to share liquor. P.W.No.8 Anil has stated in his statement that deceased Shravan was under influence of liquor when he had given lift to Shravan. Prosecution has also examined Dr.Sonar (P.W.No.12) at Exh.38, who stated that on 1/03/1987, at about 1.40 a.m., he examined appellant and original accused No.2 and found them under the influence of liquor. The certificates issued by Dr.Sonar are at Exhs.39 and 40. Prosecution has also examined Dr.Sonar (P.W.No.12) at Exh.38, who stated that on 1/03/1987, at about 1.40 a.m., he examined appellant and original accused No.2 and found them under the influence of liquor. The certificates issued by Dr.Sonar are at Exhs.39 and 40. Prosecution examined P.W.No.11 Balu Daulat Sathe, who stated that on the day of incident, at about 9.30 a.m., both the accused and the deceased had come to him and he had supplied liquor to them. So, the appellant might have committed that act under the influence of liquor. The learned Advocate of the appellant argued that certificate (Exh.40) issued by Doctor shows that the appellant had consumed alcohol but was not under influence of alcohol. But, we will have to consider that it was 1.45 a.m. when he was examined by Doctor and by that time there may be some effect during intervening period. Perhaps this drunkenness may be the explanation of some sudden cause for the incident. In any case, fact remains that no motive is proved. 16. There is evidence of P.W.No.4 Hasan Attar, who is bicycle shop-keeper. He stated at Exh.24 that he runs a business of bicycle shop at Ukkadgaon. His shop is near S.T.Stand. On 28/2/1987, at about 8.30 a.m.,Shravan had hired bicycle from his shop. He proved entry in the register of taking away bicycle by Shravan, at Exh.25. He stated that at 12.20 p.m. both the accused came to return the bicycle at his shop. At that time both the accused were under influence of liquor. P.W.No.4 Hasan asked them why they were returning the bicycle when Shravan had hired it. At that time, the appellant replied that he murdered Shravan. The appellant asked Hasan to close his shop and accordingly he closed his shop. But, he made entry in the register that the bicycle was returned at 1.00 p.m. by both the accused. The entry is duly proved and it is same Exh.25. P.W.No.4 Hasan further stated that at about 4.00 p.m. P.W.No.1 Kisan came to his shop and on query, P.W.No.4 Hasan told him that accused Nos.1 and 2 had returned bicycle hired by Shravan. He further disclosed that the appellant told him that they had murdered Shravan. On 28/2/1987, police recorded statement of P.W.No.4 Hasan. So, on the day of incident, police recorded statement of P.W.No.4 Hasan. His evidence is supported by P.W.No.1 Kisan. He further disclosed that the appellant told him that they had murdered Shravan. On 28/2/1987, police recorded statement of P.W.No.4 Hasan. So, on the day of incident, police recorded statement of P.W.No.4 Hasan. His evidence is supported by P.W.No.1 Kisan. P.W.No.1 Kisan, who is examined at Exh.17, stated that after he saw Shravan dead, he made inquiries. He went to the bicycle shop of P.W.No.4 Hasan, it was closed. Then he went to his house and Hasan narrated the things as stated above. It is difficult to say that P.W.No.4 Hasan, who is also an independent witness, is deposing falsely at the instance of some one. 17. It is true that in the complaint lodged by P.W.No.6 Ramdas and which is proved at Exh.28, it is not stated that P.W.No.1 Kisan had made inquiries with P.W.No.4 Hasan and Hasan told P.W.No.1 Kisan about extra-judicial confession made to him; but, it is specifically mentioned in the complaint that on inquiries, it was found that both the accused and deceased had consumed liquor and at about 12.30 noon, while returning to Ukkadgaon, under the influence of liquor, there was quarrel between deceased Shravan and both the accused; there was exchange of abuses and both the accused had killed Shravan with stones. It is mentioned in the complaint itself that on inquiry, they learnt about these events. The complaint is not lodged by P.W.No.1 Kisan, but by P.W.No.6 Ramdas. 18. If we consider the above stated evidence, in our opinion, the evidence is very strong. Though circumstantial in nature, it proves the entire chain. 22. In order to show the time at which the dead body was seen by witnesses for the first time, P.W.No.9 Raosaheb Kisan Shinde is examined at Exh.34. He stated that he was grazing the cattle and at about 01.00 p.m. he saw Shravan lying in injured state at a distance of 10 feet from the road and, therefore, he went to P.W.No.1 Kisan and told him about it. His statement was recorded by police on 1/03/1987. He was not cross-examined. So, it is proved by the prosecution that the death of Shravan was caused in between 12.30 noon to 1.00 p.m. 20. P.W.No.10 Nana Rakhama Lokhande examined at Exh.35 is Kotwal, who stated that when he was at the village, Kashinath Mhaske told him at about 1.00 p.m. that Shravan was lying near Rokadoba temple. He was not cross-examined. So, it is proved by the prosecution that the death of Shravan was caused in between 12.30 noon to 1.00 p.m. 20. P.W.No.10 Nana Rakhama Lokhande examined at Exh.35 is Kotwal, who stated that when he was at the village, Kashinath Mhaske told him at about 1.00 p.m. that Shravan was lying near Rokadoba temple. He went to the temple on a bicycle and saw dead body of Shravan and thereafter informed Police Patil, who met him near Market Yard, at Ahmednagar. P.W.No.12 Madhav Mhaske, the Police Patil, has supported this and stated that on the basis of information given by Kotwal, he had lodged report Exh.22. 21. The learned Additional Sessions Judge has relied upon one more circumstance in the judgment. On the clothes of the appellant and original accused No.2 bloodstains were found and they were of same blood group which was found on the clothes of the deceased. However, Shri.Damle, Advocate for the appellant, pointed out that so far this circumstance is concerned, no question was put to appellant in his statement under section 313 of Cr.P.C. He also took us to the Roznama and also the Chemical Analyser’s certificate, which was earlier produced. Investigating Officer P.S.I.Khan (P.W.16) has stated at Exh.48 that he had sent muddemal articles to Chemical Analyser on 4/03/1987. He proved office copy of forwarding letter Exh.49. He produced C.A.reports at Exhs.50 to 53. C.A. reports show that the blood samples of the accused and the deceased were not in a condition of analysis and, therefore, blood groups of both the accused or the deceased could not be ascertained from blood samples. At Exh.50 there is C.A.report, which shows that clothes of both the accused and clothes of the deceased were having human blood. There is endorsement at Exh.50 that opinion regarding grouping will follow if required. P.W.No.16 P.S.I. Khan further stated in his evidence that he had called opinion regarding grouping of blood and he would produce the report on Monday. The statement of PSI Khan was recorded on 7/08/1987. Roznama shows that the statements under section 313 of Cr.P.C. of the appellant and the other accused were recorded on 7/08/1987. Thereafter the C.A. report Exh.62 was produced in Court on 10/08/1987. The statement of PSI Khan was recorded on 7/08/1987. Roznama shows that the statements under section 313 of Cr.P.C. of the appellant and the other accused were recorded on 7/08/1987. Thereafter the C.A. report Exh.62 was produced in Court on 10/08/1987. No question was asked about this C.A.report Ex.62, which shows that the clothes of the deceased and clothes of both accused were having bloodstains of "B" group. 22. Shri.Damle, Advocate of appellant, pointed out that no question was put to appellant regarding said report (Exh.62). He relied upon the case of Vikramjit Singh @ Vicky Vs. State of Punjab [2007 ALL SCR 2094], it is observed that circumstances appearing against accused must be put to him in his examination under section 313 of Cr.P.C. 23. Shri.Damle, Advocate, for appellant relied upon the case of Bhausaheb Maruti Kalane v. State of Maharashtra [2006(1) Bom.C.R.(Cri.) 317]. It is observed by Division Bench of this High Court that, blood on dhoti cannot be said to be incriminating circumstances against accused as blood group of the accused was not ascertained. Relying on the case of Vikramjit Singh (supra), it is argued that such piece of evidence should have been put to the accused. In our case, the accused was asked question No.45 regarding earlier report of Chemical Analyser, but it is a compound question both regarding C.A.report and regarding attachment of register from P.W.No.4 Hasan. In our opinion, we cannot use the evidence of Chemical Analyser. 24. In our opinion, even if evidence about C.A.report is excluded from consideration, still the other evidence, which we have discussed earlier, completes the chain of circumstances and the only conclusion, in absence of any explanation from the appellant, is that it is he who has caused the death of deceased Shravan. 25. The learned Advocate Shri.Damle has relied upon the case of Anil Shyamrao Kolcharlewar Vs. State of Maharashtra [2008 ALL MR (Cri) 214, for the proposition that mere non-explanation of the accused does not amount to proof of his guilt. In our opinion, it depends upon facts and circumstances of individual case. In the present case, the evidence on record, particularly the extra-judicial confession made to P.W.No.4 Hasan and evidence of P.W.No.8 Anil taken with other evidence, is sufficient to prove the guilt of the appellant, even if we do not take into consideration non-explanation by the appellant as a circumstance against him. In the present case, the evidence on record, particularly the extra-judicial confession made to P.W.No.4 Hasan and evidence of P.W.No.8 Anil taken with other evidence, is sufficient to prove the guilt of the appellant, even if we do not take into consideration non-explanation by the appellant as a circumstance against him. But we feel that the non-explanation is an additional circumstance in the present case as the appellant would have given explanation, had he been innocent. 26. It is also argued before us that P.W.No.8 Anil is a chance witness. The learned A.P.P. pointed out that though Anil is native of the village, temporarily, he was residing at Visapur. There is no challenge to the statement of P.W.No.8 Anil that he was knowing both the accused and the deceased since prior to the incident and that he hails from that village. 27. On "chance witness", we may refer to the case of Rana Pratap and others Vs. State of Haryana [ AIR 1983 SC 680 ]. In para No.3, following observations are made: "The learned Sessions Judge and the learned counsel described both the independent witnesses as "chance witnesses" implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man’s home is considered his castle and every one must have an explanation for his presence elsewhere or in another man’s castle. It is a most unsuitable expression in a country whose people are less formal and more casual." . In para 6 of the same judgment, Their Lordships observed as follows: "Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. In para 6 of the same judgment, Their Lordships observed as follows: "Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of couter-attacking the assailants. Every one reacts in his own special way." 28. If P.W.No.8 Anil had acted in a particular way, such as not waiting while he was seeing that appellant was holding stone in his hand, that he heard bickering between the appellant and the deceased, his going away from the place of incident, same cannot be said to be unnatural. 29. The learned Additional Public Prosecutor, Mrs.R.D.Reddy, has relied upon the following authorities: . Rajwant Singh V. State of Kerala [ AIR 1966 SC 1874 ]. . Shankarrao Bhimrao Sarnai v. State of Maharashtra [2003 Cri.L.J. 2425]. . Joseph s/o Kooveli Poulovs. State of Kerala [92005) 5 SCC 197]. . State of Haryana v. Sher Singh [AIR 1981 SC 1021]. 17 . We have perused the cases. 30. In our case, the appellant has been absconding since long time after he was released on bail in this appeal. Many efforts were made such as issuance of non-bailable warrants, proclamations, attempt to sell the property etc., but in spite of all efforts, his presence could not be secured. In this context, we may usefully refer to the observations of Apex Court in the case of Bani Singh vs. State of U.P. [ AIR 1996 SC 2439 ] and Rishi Nandan Pandit v. State of Bihar [ AIR 1999 SC 3850 ]. The Apex Court in the case of Bani Sing (supra) observed in para Nos.14 and 15 as follows: "14. ..................................... The law clearly expects the Appellate Court to dispose of the appeal on merits, but merely by perusing the reasoning of the trial Court in the judgment, by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. ..................................... The law clearly expects the Appellate Court to dispose of the appeal on merits, but merely by perusing the reasoning of the trial Court in the judgment, by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav’s case ( AIR 1987 SC 1500 ) that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution. 15. ..................................... 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. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer to State expense to assist it, there is nothing in the law to preclude it from doing so. .........................................." 31. In "Rishi Nandan Pandit" (supra), it is held that where appeal is against conviction and the counsel engaged by the accused does not appear, it is not expected that the appeal should be dismissed for default. The appeal should be decided by appointing another counsel as amicus curiae. Their Lordships disapproved the action of the High Court of proceeding with appeal without availing legal assistance. The High Court on mere scrutiny of evidence and relying upon statements made by prosecution witnesses before Investigating Officer, had confirmed conviction and sentence. 32. So relying on the observations in the case of Bani Singh (supra) and Rishi Nandan (supra), we have appointed Shri.V.N.Damle as amicus curiae and heard this appeal. The High Court on mere scrutiny of evidence and relying upon statements made by prosecution witnesses before Investigating Officer, had confirmed conviction and sentence. 32. So relying on the observations in the case of Bani Singh (supra) and Rishi Nandan (supra), we have appointed Shri.V.N.Damle as amicus curiae and heard this appeal. In this case, the appeal was originally filed at Bombay and thereafter it was transferred to this Bench. Thereafter, transfer notice was served on the appellant on 30/11/1989. In these circumstances, we dispose of this appeal and pass the following order: 33. The appeal is dismissed. The order of conviction and sentence is confirmed. 34. Issue standing non-bailable warrant against the appellant. The concerned Police Station shall submit report regarding execution of said warrant after every three months addressed to the Registry of this High Court, which report shall be placed before us. Attempts for tracing out the appellant and securing his presence for undergoing remaining sentence shall continue until his presence is secured or until further orders. 35. We quantify the professional fees of Shri.V.N.Damle, Advocate, at Rs.3,500/- (Rs.Three Thousand Five Hundred), which may be paid to him at the earliest.