Bhimasankaram, J.- The reference and the criminal appeal arise out of Sessions Case No. 21 of 1959 on the file of the Court of Session, Medak Division. The accused was tried for an offence under section 302, Indian Penal Code and was convicted and sentenced to death by the learned Sessions Judge. Before we go into the merits of the case, it is necessary to consider a point of law raised by the learned counsel for the accused and that point is this: The trial of the case began before the predecessor-in-office of the Sessions Judge whose judgment is now in question and the former had not only framed the charges but had recorded the evidence of one of the witnesses in the case, i.e., the Medical Officer. The Present Sessions Judge continued the trial of the case from that stage and concluded it, and took on file the documents tendered. Learned counsel for the appellant argues, placing reliance upon the recent Full Bench decision of the Madras High Court in Fernandez, In re1, that the conviction having been based on evidence partly recorded by one Sessions Judge and partly by another is void and should be set aside. Although the Full Bench decision is not binding upon us, it is pointed out, that it is based upon a number of earlier rulings of Divisional Benchs of the same High Court which, in accordance with the rule laid down by this Court in Subbarayudu v. State2, are binding upon us. It must be conceded that the Full Bench decision favours the contention. There the learned Judges made the following observations which are in point: "The ordinary rule in criminal matters is that the judgment may be delivered only by the person who has heard the whole of the evidence in the case. This principle is well-established and has been firmly and consistently enforced. Vide Guruswami Thevar v. State3. The only exception is that created by section 350, Criminal Procedure Code, which empowers a Magistrate to dispose of a case on evidence heard in part by himself and in part by his predecessor or predecessors. Even so, as the section stood before it was amended in 1955 it gave the accused person an unqualified right to demand a de novo enquiry or trial. Even so, as the section stood before it was amended in 1955 it gave the accused person an unqualified right to demand a de novo enquiry or trial. That provision is evidence of the reluctance of the Legislature to depart from the old familiar and cardinal principle of law to which we have just referred. Later in the same Judgment occur the following remarks: "The basic reason for section 350, Criminal Procedure Code, appears in the decision in Tarada Baladu v. The Queen4. What happened there was this: The trial of this case was commenced before Mr. Happell, Officiating Agent, and with one exception all the witnesses were examined. The case was adjourned and endeavours were made to obtain the presence of persons named by the accused as witnesses. During the adjournment Mr. Garstin resumed his appointment, and having examined one fresh witness concluded the trial. A Bench of this Court observed: "We are compelled to pronounce the proceedings void. It is only in view of the necessarily frequent changes in the office of Magistrate the Criminal Procedure Code provides specially that a Magistrate may pronounce judgment on evidence partly recorded by his predecessor and partly by himself, but there is no such provision in the case of Sessions Judges. The conviction must be set aside and new trial directed.‘ The desire to achieve a just balance between the interests of the accused, an expeditious trial and the frequency of changes in the personnel of the Court of Magistrates, which itself was linked up with the needs of executive administration led to the enactment of section 350, Criminal Procedure Code and its continuance thereafter. What we emphasise is that without such an express provision in the Code, the normal rule would have applied even in the Courts of Magistrates that the entire oral evidence should have been heard by the judicial officer before he could pronounce judgment in a criminal case. What has been expressly made by section 350 applicable only to a limited class of criminal Courts out of those enumerated in section 6, Criminal Procedure Code, cannot be extended without the sanction of the Legislature, express or necessarily implied." The learned Judges were dealing with the case of a Judge officiating under the Criminal Law Amendment Act (XLVI of 1952). They held that such a Special Judge occupies an anomalous position and he is neither a Magistrate nor a Sessions Judge, and as there is no express provision in the Act similar to the one contained in section 350 of the Criminal Procedure Code, the accused had a right to demand a de novo trial when one presiding officer of that Court is succeeded by another during the trial of a case. It is of interest to note that as pointed out in an earlier decision of a Divisional Bench of the same High Court in Patan Ali Khan, In re5, a similar rule seems to have been prevalent at one time even with regard to civil cases. That at any rate was the view taken by an early Bombay case to be found reported in Naranbhai Vrijbukandas v. Naroshankar Chandroshankar6. There, Tucker, J., observed-and the observations were concurred in by the other Judges-as follows: "It appears to me that one of the main underlying principles of the Code of Civil Procedure is that, at an original trial, the Judge who decides the cause shall have personally heard the evidence of the witnesses on whose testimony his judgment is to be based except in certain specified instances; and I can not find that it is anywhere contemplated that a Judge of a Court of first instance should pronounce judgment on evidence taken before a predecessor in the same Court, or before a Judge of any co-ordnate tribunal, from which a part-heard suit may have been removed. I consider, therefore, that when a Judge of a Court of original jurisdiction, whose proceedings are regulated by the Code of Civil Procedure, dies or is removed to another appointment, before the conclusion of a trial, or where a partially tried suit is removed from one Court to another, the evidence of the witnesses, who have been examined by the Court which commenced the inquiry must be taken de novo, unless the parties consent that the depositions already recorded shall be read at the hearing before the Judge or Court on whom it will devolve to pass judgment." After quoting this passage, the learned Judges in Patau Ali Khan, In re1 proceeded to remark thus: "If that is the law with regard to civil suits, then the procedure for the conducting of criminal trials cannot be less strict; for, it is even more necessary in criminal cases that the Judge who writes and pronounces the judgment should have seen the witnesses and heard the evidence for himself." They pointed out that Order 18, rule 15 and Order 20, rule 2, Civil Procedure Code, modified the rule in civil cases and section 350 of the Criminal Procedure Code altered it in regard to criminal cases. It would thus appear that the rule in its origin was not confined to criminal matters as one might be led to suppose from the remarks above extracted of the Full Bench of the Madras High Court. There is a considerable body of authority of some other High Courts also taking the view that a Sessions Judge who succeeds another in office cannot continue a pending trial in which part of the evidence has been recorded from the point where it was left by his predecessor but must start the case all over again. Vide Nga San Tin v. Emperor2, Ramachandra Naik v. Emperor3, Indore State v. Balwant Singh4, and Gopal Prasad v. The State5. Although the decision of the Full Bench of the Madras High Court is only of persuasive value to us, as already stated, the decision in Tarada Baladu v. The Queen6, and In re Patau Ali Khan1, are binding upon us. Although the decision of the Full Bench of the Madras High Court is only of persuasive value to us, as already stated, the decision in Tarada Baladu v. The Queen6, and In re Patau Ali Khan1, are binding upon us. But we think, however, that on the particular facts of this case, those decisions are not applicable Before we mention the point of distinction, we may observe, with great respect to the learned Judges who took the contrary view, that it is difficult to accede to the proposition that there is such a principle as that enunciated in the early Bombay case above referred to that only the Judge who heard the evidence in a case should dispose of it. It can hardly be claimed that it is a rule of natural justice; for, if it were, it is violated by the provisions which enable an appellate Court to exercise all the powers conferred on the trial Court. When in a civil case an appellate Judge who has not heard the witnesses modifies or sets aside a decree or in a criminal case, he quashes a conviction or sets aside an order of acquittal in each case rejecting oral evidence which has been accepted or acting upon that which has been rejected by the trial Judge who has recorded the depositions, it must be supposed that he does so because of express statutory exceptions. One would expect even a rule of procedure (if it is based upon natural justice) to cover all Courts alike and not merely the trial Court. We venture to think that the so-called cardinal rule of procedure was imported into India by Judges accustomed to English rules and without due regard to the circumstances of its origin: it was evolved in England in connection with Jury trials, where the verdict of a Jury-which for all practical purposes was binding upon an appellate Court-should be based upon evidence heard by the members of the Jury. There was in the Courts of that country no practice of oral evidence at a trial being recorded by the presidig Judge who only took notes to help him in his summing up of the case to the Jury. This practice obtained not only in criminal but also in civil cases triable by a Jury. There was in the Courts of that country no practice of oral evidence at a trial being recorded by the presidig Judge who only took notes to help him in his summing up of the case to the Jury. This practice obtained not only in criminal but also in civil cases triable by a Jury. It may be noted incidentally that in criminal cases section 15 of the Criminal Justice Act, 1925, now enables a criminal trial in England to proceed with the consent in writing by or on behalf of both the prosecutor and the accused even in spite of the death or discharge of a juror, so long as the number of the members of the Jury is not reduced below ten. Conditions in India being altogether different, it would seem neither necessary nor desirable to posit the existence of any such rule as underlying either the Civil or the Criminal Procedure Code. Chapter XL of the Criminal Procedure Code enables a Court including a Magistrate to dispense with the attendance of any witness, to issue a commission for his examination and to receive the deposition of such a witness in evidence. These provisions clearly cut into the integrity of any such assumed rule. It is not without significance that section 350, Criminal Procedure Code, as amended in 1955 does not recognise the right of an accused to ask for a de novo trial even before a Magistrate, the Magistrate himself being given the discretion further to examine any of the witnesses whose evidence has already been recorded if he thinks it necessary to do so in the interests of justice. This statutory provision does not seem to assume the existence of any such rule. The decision of the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh1, seems to us to have some bearing upon this matter. Speaking generally of the effect of errors of procedure, their Lordships say: “Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice the matter resolves itself to a question of prejudice. Speaking generally of the effect of errors of procedure, their Lordships say: “Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith.......Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice.....The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to ‘substantial’ denial of a trial as contemplated by the Code and understood by the comprehensive expression ‘natural justice’.” It is true that their Lordships were not dealing with the point we are discussing but the approach indicated therein seems to us to be relevant and instructive. It would seem that according to their Lordships short of inherent lack of jurisdiction In a Court as contemplated and provided by the Criminal Procedure Code, there could hardly be any defect or error relating to the conduct or course of an enquiry or trial that could be said per se incurably to vitiate the result of proceedings in a criminal case. We should like also to observe that the rigid enforcement of such a rule without regard to proof of prejudice will result in great inconvenience and hardship. It is not to be forgotten that quite a good number of sessions cases occupy a considerable length of time and if the death, continued illness or the transfer of the officer who is trying a case should necessitate the recommencement of the trial from its inception, it will occasion considerable waste of time and money, apart from inconvenience to parties and witnesses, not to mention the possibility of the witnesses being tampered with in the meanwhile. The matter may also be looked at from another point of view. The matter may also be looked at from another point of view. Consider a case where some prosecution evidence has been recorded which is formal or which is not very material; why, in such a case, one might venture to ask, in the name of common-sense, should the case start all over again? Or suppose in a particular case the Prosecutor says-of course he would be a bold one who does so-that he is willing that no reference should be made to the evidence until then recorded; should there be a recommencement of the trial even then? Even assuming, therefore, that such a rule does exist, it would be proper to hold that in the absence of proved or presumed prejudice to either the prosecution or the accused, the verdict of the succeeding Judge upon the whole evidence should not be set aside. We think that there is much to be said for the view of the majority of the Full Bench of the former High Court of Hyderabad in State of Hyderabad v. Sidlingappa2 in which the learned Judges ruled that when a Sessions Judge acts upon evidence recorded by his predecessor, no question of jurisdiction is involved, and that the infirmity thus arising is ‘at the most an irregularity which would be cured by section 537, Criminal Procedure Code.’ We venture to doubt whether it is necessary to hold that in all such cases the proceedings are void and should be set aside by the High Court without regard to any question of prejudice. Having made these general observations, we want to make it clear that we rest our decision in the present case on the fact that the predecessor-in-office of the present Sessions Judge recorded the deposition only of the Medical Officer. Now section 509, Criminal Procedure Code, which seems to us to have a bearing upon this matter, reads thus: “509. (1)- The deposition of a Civil Surgeon or other medical witness taken and attested by a. Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as witness. (1)- The deposition of a Civil Surgeon or other medical witness taken and attested by a. Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as witness. (2) The Court may, if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition.” This provision expressly enables the Court to receive in evidence the deposition of a Civil Surgeon or other medical witness under the circumstances specified therein. It would be the height of absurdity, in our opinion, to hold that when a deposition taken by a Magistrate or on commission is admissible, and can therefore be regarded as part of the evidence in the case, a deposition taken by a Sessions Judge could not be so treated by his successor-in-office. If the rule enunciated by the Full Bench of the Madras High Court is to be regarded as rigid and inflexible, even a medical witness will have to be re-examined by a succeeding Sessions Judge. The cases in Tarada Baladu v. The Queen1, and In re Patan Ali Khan2, do not deal with such a situation. We are definitely of the opinion that this case is not, for the above reason, governed by the ratio of those decisions. We, therefore, reject the contention urged by the learned counsel for the accused that we should order a re-trial merely on the ground that the evidence of the Medical Officer in the present case was taken by the predecessor-in-office of the present Sessions Judge who continued the trial and disposed of the case. [Their Lordships then dealt with the case on the merits and concluded.] We confirm the conviction of the appellant. We, however, think that the sentence of death is not called for in the circumstances of the case and we direct that the sentence of imprisonment for life be substituted therefor. With this modification, the appeal is dismissed. The reference is answered accordingly. A.S.R. ----- Conviction confirmed: Sentence modified.