JUDGMENT : SANDEEP MEHTA, J. The instant Death Reference No. 2/2017 and Cr.Appeal No. 33/2018 filed by the accused on death row arise out of common judgment dated 3.11.2017 passed by learned Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions Case No. 14/2014 whereby, the accused Atma Ram, Omprakash, Leeladhar and Shrawan Kumar were convicted for the offences u/Secs. 302/149 I.P.C. and were sentenced to death. 2. The Reference for confirmation of the death sentence has been instituted at the instance of the trial court whereas, the represented Appeal has been filed by the accused through counsel Shri Moti Singh for assailing the conviction and sentences awarded to them. 3. At the outset, Shri Moti Singh Advocate representing the appellants vehemently and fervently urged that the entire trial is vitiated because the trial court recorded statements of a large number of prosecution witnesses without ensuring presence of the accused in the proceedings. He urged that indisputably, the accused were in custody. Referring to the statements of the material prosecution witnesses i.e. P.W.l Chandu Ram and P.W.2 Charidrakala, recorded by the trial court on 28.10.2014, Shri Moti Singh urged that the trial court deferred the cross-examination of these witnesses by putting the following note upon the objection of defence counsel:— ^^uksV%& vfHk;qDr U;kf;d vfHkj{kk ls mifLFkr ugha gS] blfy, muds vf/koDrk ds fuosnu ij lk{kh ds c;ku fjtoZ j[ks x, A** 4. The corresponding order-sheet of the trial court on this date of hearing i.e. 28.10.2014 reads thus: ^^28-10-14 Addl.P.P. mi- A eqy- vkRekjke] vkSj Ádk’k yhyk/kj o Jo.k U;kf;d vfHkj{kk ls mi- ugha odhy eqy- mi- A lk{; vfHk;kstu esa xokg ih0MCyw0 1 pUnwjke o ih0MCyw0 2 paædyk ds eq[; ijh{kk ys[k c/n dh xbZ A odhy eqy- xokgku ls Áfr ijh{k.k gsrq volj pkgk A vr% xokgku ds c;ku fjtoZ j[ks x;s A xokg ih0MCyw0 1 o ih0MCyw0 2 ls Áfrifj{k.k gsrw fnukad 28-11-14 ds xokg la- 12] 13] 14 fn- 29-11-14 ds fy, tfj;s leu lyXu gks A i=k- okLrs lk- vfHk;kstu fn- 28-11-14 dks is’k gks A rc rd eqy- vkRekjke] vkse Ádk’k] yhyk/kj o Jo.k dh jc vof/k c<kbZ tkrh gS A** Apart from these witnesses, the trial court also recorded statements of following witnesses on the dates set out in the table below without ensuring the presence of the accused in the court: P.W.3 Surendra Singh 13.2.2015 P.W.4 Dharam Pal 13.2.2015 P.W.12 Vikrant Sharma 13.8.2015 P.W.13 Prahlad 3.9.2015 P.W.14 Ram Kumar 9.10.2015 P.W.15 Sushila 9.10.2015, 5.11.2015 P.W.17 Dr. Arun Tungariya 8.3.2016 P.W.18 Ram Pratap 12.5.2016, 20.6.2016, 14.2.2017 P.W.20 Sahab Singh 22.11.2016 P.W.23 Ramesh Kumar 14.2.2017 5. In order to buttress the contention that the trial is vitiated, Shri Moti Singh drew the Court's attention to the order-sheets drawn up by the trial court for the dates on which, the statements of the above mentioned prosecution witnesses were recorded and urged that in all these proceedings, it is categorically mentioned that the accused had not been brought to the court from the prison. He referred to Sections 273 and 299 Cr.P.C. and urged that the trial of the accused appellants is vitiated because statements of the abovementioned witnesses, not having been recorded by securing presence of the accused in the court, cannot be read in evidence and if their testimony is eschewed from consideration, there remains no evidence worth the name on the entire record so as to prove the prosecution case and connect the accused with the crime. He submitted that the procedure adopted by the trial court while recording statements of witnesses without ensuring presence of the accused in the court amounts to a gross and incurable illegality thereby depriving the accused a fair trial and as such, there is no escape from the conclusion that the entire trial should be declared to be vitiated and the accused be acquitted of the charges while setting aside the impugned judgment. In support of his contentions, Shri Moti Singh placed reliance on the following judgments: 1. 2001 Cr.L.R. (SC) 2001 State of M.P. v. Bhooraji 2. 2012 Cr.L.R. (SC) 147 Mohd. Hussain @ Julfikar Ali v. State (Govt, of NCT) Delhi; 2012 (1) RLW 782 (SC) 3. 2017 Cr.L.R. (SC) 130 Ajay Kumar Ghoshal & Etc. v. State of Bihar 4. 2009 Cr.L.R. (SC) 845 Jayendra Vishnu Thakur v. State of Maharashtra 5. AIR 1963 SC 1531 Pandit Ukha Kolhe v. The State of Maharashtra and craved acceptance of the appeal and striking down of the Death Reference. 6. Per contra, learned Public Prosecutor and Shri Suresh Kumbhat learned counsel representing the complainant vehemently opposed the submissions advanced by Shri Moti Singh. They urged that the fact that counsel representing the accused, conducted cross-examination from the witnesses in absence of the accused without a demur and without raising any objection is indicative of acquiescence. They submitted that not only did the defence lawyer conduct extensive cross-examination from the witnesses without raising any objection but in addition thereto, no such plea was raised before the trial court during final arguments that the accused were prejudiced on account of their absence in the proceedings when the statements of these witnesses were recorded. They thus implored the Court to turn down this objection. In the alternative, they submitted that this Court can exercise powers under Section 391 Cr.P.C. and record the evidence of these witnesses afresh in the appeal while ensuring compliance of Section 273 Cr.P.C. or else, the matter can be remitted to the trial court for recording the statements of the concerned witnesses afresh and that the proceedings are not vitiated in entirety. As a last resort, they submitted that while setting aside the impugned judgment, the matter may be remanded to the trial court for holding de-novo trial and deciding the case afresh after re-recording the statements of these material witnesses in presence of the accused. 7. As a last resort, they submitted that while setting aside the impugned judgment, the matter may be remanded to the trial court for holding de-novo trial and deciding the case afresh after re-recording the statements of these material witnesses in presence of the accused. 7. In rejoinder to this submission, Shri Moti Singh learned defence counsel, while referring to the Supreme Court decisions in the cases of State of M.P. v. Bhuraji, Mohd.Hussain Julfikar, Ajay Kumar Ghoshal and Jayendra Vishnu Thakur (supra), urged that since the accused are incarcerated in prison for the last nearly 6 years, it would be nothing short of a travesty of justice if they are made to face a de-novo trial without being at fault for this illegality on part of the court and the prison authority. 8. We have considered the submissions advanced at the Bar and have gone through the material available on record. 9. Shri Kumbhat and learned Public Prosecutor were not in a position to dispute the fact that the accused were in judicial custody and that the prison authorities failed to produce them in the court when statements of the material prosecution witnesses (referred to supra) were recorded despite pertinent direction of the court on numerous dates of hearing. Section 273 Cr.P.C. which is mandatory in nature, enjoins that prosecution evidence shall be recorded in presence of the accused. Exception to this proposition is provided in Section 317 Cr.P.C. which stipulates that reference and trials can be held in absence of the accused in particular situations enumerated therein. Viewed in light of the above legal position, we are of the firm and considered opinion that summoning the accused from prison so as to ensure their participation and providing them an opportunity to witness the trial court's proceedings is the statutory obligation of the trial court and it is immaterial whether the defence raises an objection in this regard or not. Exemption from appearance of the accused, if any has to be expressly granted by the trial court after assigning reasons in accordance with Section 317 Cr.P.C. that the attendance of the accused is not necessary in the interest of justice or that the accused persistently disturbs the proceedings in the court. In the case at hand, neither of these circumstances existed. The accused were in judicial custody. In the case at hand, neither of these circumstances existed. The accused were in judicial custody. No satisfaction was recorded by the court in any of the proceedings that presence of the accused was not necessary in the court. Rather, the trial court, time and again intimated the jail authorities that the accused should be brought to the court but then failed to ensure that the direction is complied. Needless to say that the right of the accused to see the evidence being taken in their presence is recognized as an absolute right by Section 273 Cr.P.C. and the same emanates from the principles of natural justice and fair trial. Thus, without any doubt, statements of the witnesses recorded by the trial court in absence of the accused more particularly when they were in judicial custody can not be treated as having been recorded strictly in accordance with law. 10. Hon'ble Supreme Court in the case of Jayendra Vishnu Thakur referred to supra, held that the right of an accused to watch the prosecution witness deposing before a court of law is a valuable statutory right. Manifestly, the accused were in judicial custody in the present case. On a perusal of the order-sheets of the trial court, it is apparent that the Presiding Officer directed on numerous dates of hearing that the accused be produced in the court during the deposition of the prosecution witnesses but the jail authorities failed to produce the accused in the court on more than one occasions and despite the pertinent objection of the defence counsel (albeit raised at the initial stages), the trial court proceeded to record the statements of the prosecution witnesses without ensuring presence of the accused in the court. No satisfaction to exempt the presence of the accused in the court was recorded in any order-sheet of the court nor could such exemption be granted as the accused were in judicial custody in absence of an allegation that they could disturb the court proceedings. In this background, the proceedings undertaken by the trial court to the extent of recording of the statements of witnesses in absentia of the accused cannot be considered to be lawful as they were held contrary to the mandate of Section 273 Cr.P.C. 11. In this background, the proceedings undertaken by the trial court to the extent of recording of the statements of witnesses in absentia of the accused cannot be considered to be lawful as they were held contrary to the mandate of Section 273 Cr.P.C. 11. Having held so, the significant question which arises for the Court's consideration is as to whether, the entire trial should be declared vitiated; or that the matter should be remanded to the trial court for recording the statements of these witnesses afresh by exercising powers under Section 391 Cr.P.C. or that the impugned judgment should be set aside and the de-novo trial directed by exercising powers under Section 386 (b) Cr.P.C. 12. Shri Moti Singh learned counsel representing the accused vehemently opposed the third option by placing reliance on the Supreme Court Judgments in the cases of Bhooraji, Mohd.Hussain @ Julfikar Ali and Ajay Kumar Ghoshal. 13. We may note here that the case involves quadruple murders. The parties were enmical (sic inimical) to each other. The accused acted out of vengeance and killed four innocent persons in a brutal fashion. Corrosive substance was poured in the eyes of the deceased. Even though an interval of more than five years gone-by since the case was registered, two of the accused persons namely Pawan Kumar and Rakesh Kumar (Juvenile) are still absconding. In this background, we are least convinced by the contention of learned defence counsel Shri Moti Singh that the entire trial should be declared to be vitiated and the accused should be allowed to go scot-free for the fault of the court and the jail authority. 14. In the judgment of State of M.P. v. Bhooraji, Hon'ble Supreme Court set aside the order passed by the High Court directing de-novo trial considering the peculiar fact that the High court erred in directing retrial on the ground of jurisdiction. The Supreme Court considered the controversy and held that the court which conducted the trial was of competent jurisdiction. In this background, the matter was remanded to the High Court for fresh disposal of appeal on merits. Thus, the said judgment is of no help to the accused as being distinguishable on facts. 15. In the case of Mohd.Hussain @ Julfikar Ali, the accused was an illiterate foreign national. In this background, the matter was remanded to the High Court for fresh disposal of appeal on merits. Thus, the said judgment is of no help to the accused as being distinguishable on facts. 15. In the case of Mohd.Hussain @ Julfikar Ali, the accused was an illiterate foreign national. The case was instituted in the year 1997 and was decided in the year 2004 without ever appointing a defence counsel on behalf of the accused. The Supreme Court held that the trial was conducted in a very casual manner and the mandatory provisions of Section 304 I.P.C. were not complied with. We are of the firm opinion that the argument of Shri Moti Singh based on the said Supreme Court judgment is fallacious because, the Bench headed by two Hon'ble Judges of the Supreme Court took divergent views on the aspect of retrial and the matter is still to be decided finally. Thus, the said judgment does not lay down any ratio whatsoever. 16. In the case of Ajay Kumar Ghoshal, the High Court, noticing certain lapses in the procedure of trial, remitted the matter back back to the trial court for deciding the same afresh. In appeal, the Hon'ble Supreme Court held that there was no miscarriage of justice in the proceedings before the trial court necessitating retrial and in this background, the High Court Judgment was set aside and the matter was remitted to the High court by deciding the appeal afresh. Therefore, once again, the said judgment has no application to the facts of the present case. 17. In the case of Pandit Ukha Kohle, the Hon'ble Supreme Court by majority view held that the prosecution should be given opportunity to lead evidence on the matters indicated in the course of the judgment; the accused be examined afresh under Section 342 Cr.P.C. and the appeal be decided afresh. Thus, in this case as well, the Supreme Court directed that fresh evidence should be taken on matters of significance even at the appellate stage. 18. Thus, none of the precedents cited by the defence counsel lays down a straightjacket formula that a de-novo trial cannot be directed in any condition. As a matter of fact, if any such view is taken, then the scope and operation of Section 386 (b) Cr.P.C. would be rendered redundant. 19. 18. Thus, none of the precedents cited by the defence counsel lays down a straightjacket formula that a de-novo trial cannot be directed in any condition. As a matter of fact, if any such view is taken, then the scope and operation of Section 386 (b) Cr.P.C. would be rendered redundant. 19. In view of the discussion made hereinabove and looking to the glaring facts of the case at hand, we feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de-novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court. 20. During the course of arguments, Shri Moti Singh Advocate representing the appellants agreed that in case, the matter is remanded for fresh trial, no direction is required to be given to record the statements of the remaining witnesses afresh because when their testimony was recorded, the accused were kept present in the court proceedings. 21. In wake of the discussion made above, the impugned judgment dated 3.11.2017 passed by learned Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions Case No. 14/2014 is hereby quashed and set aside. In exercise of the powers conferred upon this Court by Section 386 (b) Cr.P.C., the case is remanded to the trial court for holding de-novo trial. It is hereby directed that trial court shall summon and record the statements of the witnesses P.W.1 Chandu Ram, P.W.2 Chandrakala, P.W.3 Surendra Singh, P.W.4 Dharam Pal, P.W.12 Vikrant Sharma, P.W.13 Prahlad, P.W.14 Ram Kumar, P.W.15 Sushila, P.W.17 Dr. Arun Tungariya, P.W.18 Ram Pratap, P.W.20 Sahab Singh and P.W.23 Ramesh Kumar afresh after securing presence of the accused in the court. Upon remand, the trial court shall conduct the proceedings on a day to day basis and shall, after recording the statements of the witnesses afresh in the above terms, re-examine the accused under Section 313 Cr.P.C.; provide them a justifiable/proper opportunity of leading defence and decide the case afresh and as per law within four months from the date of receipt of copy of this judgment. 22. 22. The I.G. (Prisons), Govt., of Rajasthan, Jaipur is directed to personally supervise and ensure that the accused are produced in the court on each and every date of hearing. 23. The I.G.P. Range Bikaner and the S.P. Hanumangarh are directed to ensure that all the witnesses are provided appropriate protection from henceforth till the trial is concluded afresh. They shall also step up the efforts for arrest of the absconding accused namely Pawan Kumar and Rakesh Kumar (Juvenile). In case, the absconding accused Pawan Kumar is arrested during pendency of the trial, his case shall be tried separately. 24. In wake of the discussion made above, while setting aside the impugned judgment dated 3.11.2017, the Cr. Appeal No. 33/2018 filed by the accused against their conviction is allowed and the Death Reference No. 2/2017 is turned down. 25. A copy of this judgment be placed in both the files. 26. Record be returned to the trial court along with a copy of this Judgment forth with.