Judgement

BHARGAVA, J. :- The appellant Bashira was convicted by the Court of Session for having committed the murder of his own wife Saira alias Mahobawali with an axe inside his house at about 11 a. m. on 22nd August, 1966. The First Information Report of this incident was lodged on the same day at 5-15 p.m. by Naziran, the mother of the appellant, who went to the Police Station accompanied by the Chaukidar. The investigation of the case began on 23rd August, 1966. The appellant surrendered himself in Court on 24th August, 1966. On 15th September, 1966, the challan was presented in the Court of the Magistrate who recorded some evidence, proceeded in accordance with Section 207-A of the Code of Criminal Procedure, and then, on 28th November, 1966, committed the appellant for trial to the Court of Session for the offence of committing the murder of his wife punishable under Section 302 of the Indian Penal Code. The Temporary Civil and Sessions Judge of Hamirpur fixed 28th February, 1967 as the date for starting the actual trial of the case. On that day, before beginning the trial, he appointed one Sri Sirish Chandra, Advocate, as amicus curiae counsel to represent the appellant. He amended the charge which was read out to the appellant who pleaded not guilty. Thereafter, on that very day, evidence of two principal prosecution witnesses was recorded. The first witness was Smt. Naziran, the mother of the appellant, who had lodged the F.I.R., and the second witness was Khan Bahadur, son of the appellant, who was the sole eye-witnesses of the incident of murder. The remaining evidence was recorded on 1st March, 1967, on which date the appellant was also examined under Section 342, Cr. P.C. The appellant stated that he would not produce any defence. A joint application of counsel for parties was presented on that day requesting the court to make a local inspection end 12th March, 1967 was fixed for local inspection. The Temporary Sessions Judge in that order directed that a suitable conveyance should be arranged for him as he had no conveyance of his own. On 8th March, 1967, the Public Prosecutor gave it in writing that no conveyance could be arranged and, therefore, prayed that the local inspection may be cancelled. The Judge cancelled the direction for local inspection and then fixed 10th March, 1967, for arguments. On that day, Sri Shukla, counsel representing the appellant presented an application praying for the recall of P.W. 2 Khan Bahadur for further cross-examination on the ground that there had been an omission in drawing his attention to a contradiction with his statement recorded in the Court of the Committing Magistrate. He added that there were many other things to be seen and made this request in the interest of justice. The Judge held that the ground for recall that the witness could not be cross-examined effectively would hardly justify the recall of the witness for further cross-examination. He further expressed his opinion that, even if the statement attributed to the witness as having been made by him in the Court of the Committing Magistrate is brought on the record. it would not help the appellant to any appreciable degree in his defence. On these grounds, the application was rejected. Arguments were then heard on the same day and judgment was delivered on 13th March, 1967, convicting the appellant for the offence of murder under S. 302, I.P.C. and sentencing him to death. The appellant appealed in the High Court of Allahabad and the Tempy. Sessions Judge also made a reference for confirmation of the sentence of death. The High Court dismissed the appeal, accepted the reference and confirmed the sentence of death. The appellant has now come up to this Court against that judgment of the High Court in appeal by special leave.

2. In this case, the principal ground urged on behalf of the appellant raises an important question of law. Learned counsel appearing for the appellant emphasised the circumstance that the am