Judgment P. C. JAIN, J. ( 1 ) THE learned Sessions Judge, Jodhpur by his judgment dated 7-8-1996 has convicted the accused for offences under Ss. 302, I. P. C. and Sec. 4 read with Sec. 25 of the Arms Act. He has passed the sentence of death for the offence u/s. 302 I. P. C. Accordingly, he has submitted the proceedings of the sessions case No. 15/96 for confirmation of the sentence of death to this Court u/s. 366 (1) of the Code of Criminal Procedure. ( 2 ) THE accused has filed the above jail appeal and regular appeal against the above conviction and sentence. All the three matters are, therefore, being disposed of together by this judgment. The prosecution case, as revealed during trial, may be state as follows. Accused Heera Lal, during the relevant time, was residing in double storied house No. 96, East Patel Nagar, Ganeshpur, Ratanada, Jodhpur along with his wife Tara Devi, mother Sukha Devi and minor son Mahaveer, Prem Jangir, PW 6 was running a handicraft unit in the premises adjacent to the house of accused Heera Lal. On the day of occurrence i. e. 25-9-1994 at about 8. 00 a. m. Shri Prem Jangir was coming to his handicraft unit. The accused was also doing the business of handicraft and Hathiram Prajapat was employed by him in the above business. Manohardas, PW. 4, used to supply milk to accused Heera Lal. On 25-9-1994, as usual, Manohardas went to supply milk to Heeralal but despite repeated knocking at the door nobody opened the door of the house. Manohardas told about this fact to Prem. When Prem reached the house of Heera Lal, he saw many neighbourers near the house of Heera Lal. Heera Lal was standing on the roof of his house brandishing his naked sword alleged to be stained with blood. The accused was telling about the triple murder committed by him to the people assembled there. He also threatened to kill any person who dared approach him. The F. I. R. of this occurrence Ex. P-34 was lodged by Prem Jangir at Police Station, Udai Mandir on the same day at 8. 30 a. m. On receipt of this report, the police registered the case u/s. 302 I. P. C. and started investigation. The Investigating Officer reached the place of occurrence immediately. The F. I. R. of this occurrence Ex. P-34 was lodged by Prem Jangir at Police Station, Udai Mandir on the same day at 8. 30 a. m. On receipt of this report, the police registered the case u/s. 302 I. P. C. and started investigation. The Investigating Officer reached the place of occurrence immediately. He found Circle Officer Habib Khan and constables Devi Singh, Dalpat Singh etc. there. The Investigating Officer and the above police personnel saw the accused standing on the roof armed with a naked sword. The accused told to the police officers and the people assembled there that he had killed his wife, mother and son and that he would kill anybody who tried to apprehend him. The Investigating Officer inspected the house and noted that the above house has only one main gate and it was bolted from inside. The Investigating Officer asked the accused to surrender but the latter refused to do so and challenged the former that if he tried to arrest him he would not hesitate to commit another murder. The Investigating Officer had no alternative but to break open the door. After breaking open the door, the Investigating Officer Ranveer Singh, ASI Deshraj and other police constable reached the roof and again asked the accused to surrender. The accused paid no heed. The Investigating Officer with the help of the police force overpowered the accused and wrested his sword. The sword was seized. The Investigating Officer found the sword stained with blood and hair. A memo ex. P-3 in respect of breaking open house was prepared. A site plan of the house was also prepared. The Investigating Officer found the dead bodies of Sukha Devi, Taru Devi and Mahaveer lying on the roof of the house in a pool of blood. The above dead bodies bore multiple incised wounds apparently caused by the sword by the accused. The Investigating Officer also called a photographer and photographs of the dead bodies were taken which are Ex. P-20 to P-32. It is alleged that the accused had a temple in his own house and he used to worship goddess Kali. He also distributed religious pamphlets containing his philosophy of life. Pamphelet Ex. P-33 was also seized. From the place of occurrence blood stained soil as also controlled soil were collected and seized. The accused was arrested. P-20 to P-32. It is alleged that the accused had a temple in his own house and he used to worship goddess Kali. He also distributed religious pamphlets containing his philosophy of life. Pamphelet Ex. P-33 was also seized. From the place of occurrence blood stained soil as also controlled soil were collected and seized. The accused was arrested. While in police custody he made a disclosure statement that at the time of committing the above triple murder he was wearing a chaddi which was stained with blood and that he had concealed the same in an iron drum. The blood stained clothes of deceased Sukha Devi, Tara Devi and Mahaveer were also seized and scaled by the Investigating Officer. The postmortem examination of all the three persons was conducted by Dr. V. K. Malhotra, PW. 24, who was posted as Medical Officer, M. G. Hospital, Jodhpur at the relevant time. He prepared postmortem reports of Mahaveer (Ex. P-87), Tara Devi (Ex. P-88) and Sukha Devi (Ex. P-89) and found antimortem injuries as stated in the reports. According to the Medical Officer, the above persons died as a result of all the above injuries which were sufficient in the ordinary course of nature to cause death. It is alleged that all the sealed articles, 12 in number, were despatched for chemical examination to the Forensic Science Laboratory, Jaipur and Virendra Singh PW 3 delivered the same in the Forensic Science Laboratory. After investigation, a charge-sheet was filed against the accused and the learned Committal Court committed the accused to the Court of Sessions for trial. The learned Sessions Judge framed a charge u/s. 302, I. P. C. against the accused for committing the triple murder of Sukha Devi, Tara Devi and Mahaveer. The accused pleaded not guilty and claimed to be tried. The learned Sessions Judge examined in all 26 witnesses as produced by the prosecution. The statement of the accused was recorded u/s. 313 Cr. P. C. He denied to have committed the above murders and further stated that when there is imbalance of mind, he does not remember what he was doing. He does not remember anything about the facts of the case. The accused led no evidence. ( 3 ) WE have heard learned Public Prosecutor and the learned counsel for the accused. Detailed arguments were advanced on the merits of the case. He does not remember anything about the facts of the case. The accused led no evidence. ( 3 ) WE have heard learned Public Prosecutor and the learned counsel for the accused. Detailed arguments were advanced on the merits of the case. However, in the facts and circumstances of the case, we do not intend to examine the merits of the case at present. After close scrutiny of the proceedings taken by the learned Sessions Judge, we are inclined to exercise the powers conferred by Sec. 367 Cr. P. C. ( 4 ) WE may refer to the proceedings taken by learned Sessions Judge. Shri P. R. Choudhary was appointed counsel for the accused with his consent. The charge u/s. 302. I. P. C. was framed by the learned Sessions Judge on 9/1/1995. The prosecution evidence was ordered to be recorded continuously for three days on 10/2/1995, 13/2/1995 and 14/2/1995. The examination-in-chief of Heera Lal PW 1 was recorded on 10/2/1995 but it remained incomplete as the learned Sessions Judge found that the material articles including the sword have not been produced by the prosecution. The learned Sessions Judge, at the request of the learned P. P. , granted time for producing the same. Thereafter this case was transferred to the Special Judge, Essential Commodities in pursuance of the order of this Court dated 10/2/1995. On receipt of the above record, the learned special Judge recorded the statements of PW 2 Chandrashekher and PW 3 Virendra Singh on 14/2/1995. On 30/3/1995, three witnesses namely, Manohardas, Lunaram and Prem were present but an application was moved by the learned counsel for the accused that he was indisposed and an adjournment was sought. The learned P. P. objected. The learned Sessions Judge, therefore, recorded the statements of these three witnesses. It appears that learned Sessions Judge did not indicate in the order whether he was rejecting the application moved by the learned counsel for the accused. No cross-examination of the above three witnesses could be made. By the above application, the learned counsel for the accused also prayed that since on account of physical ailment he was not in a position to properly defend the accused, another Advocate may be appointed in his place. This application was, however, not pressed by the learned counsel for the accused as is apparent from the order sheet dated 3/5/1995. By the above application, the learned counsel for the accused also prayed that since on account of physical ailment he was not in a position to properly defend the accused, another Advocate may be appointed in his place. This application was, however, not pressed by the learned counsel for the accused as is apparent from the order sheet dated 3/5/1995. The order-sheet dated 7/8/1995 records that the cross-examination of witnesses 1, 2 and 4 was completed. The cross-examination of Prem Jangir was also made on 7/8/1995. There is no reference whether the learned counsel for the accused ever desired to cross-examine Manohardas PW 4 whose statement was recorded in the absence of his Advocate. In this connection we would like to refer Sec. 304, Cr. P. C. which provides that when, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. The provisions of Sec. 304 are designed to ensure a fair and judicial trial to the accused. The accused has thus a legal right that he may not be denied the right to defend himself if he is not possessed of sufficient means to appoint a lawyer. Consequently the Sessions Judge has duty to inform to the accused that if he is unable to engage a lawyer on account of poverty of indigence, he is entitled to obtain legal service at the cost of the State. Hence, when the learned counsel for the accused was absent on account of illness on 3/3/1996 when the learned Sessions Judge wanted to examine three witnesses it was the duty of the learned Sessions Judge either to adjourn the case or appoint another counsel for the accused. He, therefore, contravened the provisions of Sec. 304, Cr. P. C. , when he proceeded to examine three prosecution witnesses who were present in the Court on 30/3/1996. Furthermore, the learned Sessions Judge though allowed cross-examination of two of the witnesses no order at all was passed with regard to Manohardas PW 4. If the learned counsel for the accused did not desire to cross-examine him, a specific reference of this fact ought to have been made in the proceedings. Furthermore, the learned Sessions Judge though allowed cross-examination of two of the witnesses no order at all was passed with regard to Manohardas PW 4. If the learned counsel for the accused did not desire to cross-examine him, a specific reference of this fact ought to have been made in the proceedings. The proceedings are totally silent about this fact. The fact, therefore, is that no opportunity was given to the accused or his counsel to cross-examine Manohardas PW 4. ( 5 ) THE learned Sessions Judge completed the statement of PW 1 which was left incomplete on 10/2/1995 for want of non-production of material articles. However, the learned Sessions Judge has not stated anything in the order-sheet whether the material articles were produced when examination of PW 1 was resumed on 7/8/1995. From his statement, it appears that no material articles were exhibited and only cross-examination of the witness was allowed to the counsel for the accused. It is a fact that the material articles and particularly the sword were not been produced in the case. The learned Sessions Judge who resumed the statement of Heera Lal PW 1 was aware of the fact that the statement of PW 1 remained incomplete for the reason that the material articles of the case had not been produced. The learned Sessions Judge, therefore, on 10/2/1995 kept the statement of PW 1 reserved and apparently allowed time to the prosecution to produce the above articles. It further appears that the learned Sessions Judge did not care to see that the weapon of offence and the report of the Forensic Science Laboratory with regard to the alleged blood stains were not produced or procured from the Forensic Science Laboratory. In this connection, we would like to quote the observations made with this aspect of the matter in D. B. Criminal Leave to Appeal No. 30/1996 (dt. 30/7/1996) :-"in the present murder case, the entire prosecution case rested on circumstantial evidence. It appears that blood stained clothes of the accused and blood stained knife, weapon of offence, were recovered on the disclosure made by accused persons and they were sent to the State Forensic Laboratory, Jaipur (for short fsl) for examination. 30/7/1996) :-"in the present murder case, the entire prosecution case rested on circumstantial evidence. It appears that blood stained clothes of the accused and blood stained knife, weapon of offence, were recovered on the disclosure made by accused persons and they were sent to the State Forensic Laboratory, Jaipur (for short fsl) for examination. The report of FSL about blood stained weapon of offence and blood stained clothes of the accused are very much important and relevant for proper decision of the case, if human blood is found on them, the evidence becomes more strong against accused if blood group on these articles tallies with blood group of the deceased. The case has been decided by the learned trial Judge without taking steps to obtain the FSL report and prima facie it appears to be serious lapse. While deciding a murder case, though it is the duty of the Public Prosecutor to be cautious in leading evidence but still the trial Judge is also expected to be vigilant and if necessary, to take steps to procure the evidence, if for one reason or the other it is being delayed. In case the report of the FSL was not coming he should have asked the Director of the FSL to send the report at an early date and examine the articles out of turn within specified time or in any case the decision of the case should have been deferred till the FSL report was received. " ( 6 ) THE D. B. in the above case deprecated the tendency perpetuated in several cases by the learned Sessions Judge involving capital punishment to decide cases without obtaining or waiting for the report of the FSL. The Sessions Judges were, therefore cautioned to vigilant for the FSL report, where it is necessary for just decision of the case, he called for and steps be taken in that direction. The copy of the order dated 31/7/1996 was circulated to all the Sessions and Addl. Sessions Judges of these judgeship. We hope that the above directions will be followed strictly. The present case falls in the above category. The copy of the order dated 31/7/1996 was circulated to all the Sessions and Addl. Sessions Judges of these judgeship. We hope that the above directions will be followed strictly. The present case falls in the above category. We may observe that when a Sessions Judge tries a sessions case involving capital punishment, a solemn duty is cast on him to bestow his attention to the proceedings being taken in the case in order to ensure a fair trial to the accused and the prosecution. In the instant case, which is solely based on circumstantial evidence, the weapon of the offence namely the sword, the clothes of the deceased persons and the report of the FSL in respect of these articles constituted very material evidence. The learned Sessions Judge did not appreciate the gravity of the situation and proceeded to decide the case ignoring the purpose for which the examination of PW 1 was reserved on 10/2/1995 and taking no steps whatever in completing his statement without making any order as to whether the material exhibits have been produced or not and whether the production of such articles was necessary. We do not intend to add anything from outside after quoting the observations made in D. B. Criminal Leave to Appeal No. 30/96. We can only record our regrets that the learned Sessions Judge even after hearing the arguments did not realise the importance of the above evidence and decided the case involving triple murder. It also amounts a total negation to the concept of fair trial. Similarly, the prosecution was also conducted by the learned P. P. with total indifference without realising the solemn obligations cast on him by the State to conduct the prosecution case fairly. ( 7 ) THE confirmation proceedings u/s. 366, Cr. P. C. are in substance a continuance of the trial and it is the bounden duty of the High Court not only to see whether the order passed by the learned Sessions Judge is correct but to examine the entire evidence for itself and if the same is not sufficient and procedural lacuna is noticed, to order further inquiry in the interest of fair and speedy trial of the case. To sum up : the examination of PW 1 with reference to the material exhibits, the consideration of the chemical report and the exhibition of the material articles have got important bearing on the guilt or innocence of the accused. ( 8 ) IN such a situation we have got no alternative but to invoke the powers conferred by Sec. 367, Cr. P. C. ( 9 ) WE, therefore, send back the record of this case to the learned Sessions Judge with the directions to call for the report of the FSL in respect of the weapon of offence and the clothes seized by the Investigating Officer. He will see that the above report is obtained without any delay. He is further directed that an opportunity be given to the prosecution to exhibit the material articles and produce and prove the report of the FSL and also, if necessary, recalling of the prosecution witnesses after giving an opportunity to the accused person to rebut the same and submit the record after certification as required by Sub-Sec. (3) of Sec. 367, Cr. P. C. to this Court within a period of 3 months. The Registrar shall also write to the Director, Forensic Science Laboratory to send the report and the articles to the learned Sessions Judge in this case without delay. The accused shall appear before the learned Sessions Judge duly represented by his Advocate. Order accordingly.