JUDGMENT
Dr. A.S. Anand, CJI, R.C. Lahoti and Shivaraj V. Patil, JJ. - The appellant Chukuram was tried for an offence under Section 376, IPC on the allegations that in broad daylight on 30th March, 1984 between 9 a.m. and 12 noon in village abadi he committed rape on the prosecutrix who had gone to collect cow-dung towards the village funeral grounds. The trial Court after recording evidence and hearing arguments found that the prosecutrix had failed to establish the case against the accused (appellant herein) and consequently acquitted him vide order dated 10th November, 1986. The State, aggrieved by the judgment, sought leave to appeal under Section 378(1), Cr PC. Leave was granted on 23rd July, 1987. By the impugned order dated 16th March, 1998. the High Court set aside the order of acquittal. High Court convicted the appellant for an offence under Section 376, IPC and sentenced him to under go RI for 7 years and to pay a fine of Rs. 1,000/- and in default to undergo further RI for six months. 2. From a perusal of the record we find that the impugned order of the High Court suffers from serious infirmities. The appeal was decided and an order of acquittal was set aside without hearing the accused or his counsel. It appears that the accused who was on bail had sought exemption from personal appearance from the High Court and vide order dated 12th December, 1987 exemption was granted. The appeal was thereafter heard on 16th March, 1998. At that time, neither the accused nor his counsel was present. A perusal of the record reveals that no notice was is sued either to the accused or his counsel and the appeal was heard in their absence. Appellant has been condemned unheard by the appellate Court. While setting aside an order of acquittal, it was obligatory on the High Court to have heard the appellant before upsetting the order of acquittal. That has not been done. Under the circumstances, a grave prejudice has been caused to the accused. The impugned order of the High Court dated 16th March, 1998, under the circumstances, cannot be sustained. 3. Faced with this situation, learned counsel for the State submits that the appeal may be remanded to the High Court for fresh hearing. Keeping in view the facts and circumstances of the case including the fact that the occurrence took place more than 17 years ago and after facing a full-fledged trial, the appellant-accused had been acquitted by the trial Court, we do not think it to be a fit case in which the appeal should now be remitted to the High Court for fresh hearing. 4. The appeal is allowed. The appellant is in custody. He shall be released forthwith, if not required in any other case. Appeal allowed.