MOHAMAD BHAT Vs. STATE

JUDGEMENT

(1.) THE learned Sessions Judge, Srinagar has convicted Mohammad Bhat accused under Section 304 R. P. C. for causing the death of Mst. Khatji, the wife of the complainant, as also under Section 323, R. P. C. for assaulting Qadir Bhat, the complainant. Under the first count, the accused has been sentenced to life imprisonment subject to confirmation by the High Court and under the second count he has been sentenced to undergo three months rigorous imprisonment. The record has been submitted to us for confirmation of the sentence under Section 374, Criminal P. C. and the accused has also preferred an appeal against the conviction and sentences passed on him.

(2.) AFTER hearing the learned Counsel for the parties we are of the opinion, that the reference must be rejected and retrial of the accused ordered because the judgment of the learned Sessions Judge suffers from a legal defect of a very crucial nature.

(3.) THE trial of the Sessions case which resulted in the conviction of the accused appears to have been commenced by Shri M. K. Tikku on 6. 9. 1966. After hearing and recording most of the evidence, Shri M. K. Tikku was transferred and was succeeded by Shri Jalal-ud-Din. Instead of recalling the prosecution witnesses already examined by his predecessor and re-examining them, Shri Jalal-ud-din appears to have resumed the trial from the point it was left by Shri M. K. Tikku and after recording the statement of Ghulam Hassan P. W. and examining the accused as also his witnesses, he proceeded to deliver the judgment on 24. 9. 1967. Shri Jalal-ud-din thus appears to have pronounced the judgment on the evidence partly recorded by his predecessor and partly recorded by himself. The general rule of law that no judge of a criminal court can act on the evidence partly heard and recorded by himself and partly heard and recorded by another judge is too well known. The judgment recorded in such circumstances is incompetent and invalid.