V. B. RAJU, J. ( 1 ) THE Appellant Bai Khatija widow of Karimad Jiva of Hussenpura who was accused No. 1 at the Sessions trial was convicted by the Sessions Judge Banaskantha District under sec. 302 read with secs. 34 and 109 Indian Penal Code for having murdered her husband Karimad. Accused No. 2 was acquitted by the learned Sessions Judge. ( 2 ) THE learned Sessions Judge held that the death of Karimad Jiva the husband of the appellant was homicidal that the prosecution had succeeded in proving the motive suggested by them that the statement made by the appellant before the committing Magistrate which amounted to a confession of having committed the offence of having abetted Rahim Taju and Nura Amda in the commission of the murder of her husband was admissible in evidence and that although the blood-stained Lungi had not been produced by the appellant it was recovered from the room of the deceased. This fact according to the learned Judge corroborated the statement made by the appellant in her examination that her husband had been murdered by strangulation. The learned Judge also found that the evidence of Nurmad Jiva and Rahim Jiva to whom extra-judicial confession had been made by the appellant was reliable and amounted to sufficient corroboration of the confession made by the appellant in the statement made before the committing Magistrate. Although the learned Sessions Judge acquitted accused No. 2 of the charge of the commission or murder he convicted the appellant for having abetted accused No. 2 in the commission of the murder of the deceased. He however also convicted the appellant under sec. 302 with sec. 34 Indian Penal Code for having committed the murder of the deceased in furtherance of the common intention of the appellant and accused No. 2 who was acquitted. ( 3 ) IN appeal the learned counsel for the appellant has not; argued the question whether the death was homicidal or not. The finding of the learned Sessions Judge that Karimad Jiva was murdered as a result of strangulation has not been challenged before us. ( 3 ) IN appeal the learned counsel for the appellant has not; argued the question whether the death was homicidal or not. The finding of the learned Sessions Judge that Karimad Jiva was murdered as a result of strangulation has not been challenged before us. The points raised by the learned counsel for the appellant are; (1) that the motive has not been proved; (2) that Daud Vazir in whose presence the appellant is alleged to have made an extra-judicial confession has not been examined; (3) that Karimad Vazir who is said to have accompanied Rahim Jiva to the police Patel does not corroborate Rahim Jiva; (4) that the name of the appellant had not been disclosed to the police Patel: (5) that in the evidence of the police Patel there is no reference to the extra-judicial confession said to have been made by the appellant to Rahim Jiva in the presence of others; and (6) that the learned Sessions Judge was wrong in admitting the statement made by the appellant in her examination at the committal trial when no evidence was taken. ( 4 ) AS regards the circumstances that the deceased was in his room with the appellant on the night of the occurrence according to the appellant however her husband had not returned home after the Name at 9-30 p. m. that night. Even if the prosecution evidence on this point is believed it would only prove that the deceased was in his room with the Appellant at night. That circumstance even if taken along with the conduct of the appellant is not sufficient to warrant the inference that the deceased had been murdered by the appellant. The dead body in fact was found outside the room and not in the room of the deceased. The exact place where the murder was committed is not therefore satisfactorily proved and the mere fact that committed blood-stained Lunghi was found in the room of the deceased does not necessarily prove that the murder must have been committed in the room. If the murder had been committed in the room of the deceased the brothers of the deceased who were in the four adjacent rooms must have come to know that very night of the occurrence. If the murder had been committed in the room of the deceased the brothers of the deceased who were in the four adjacent rooms must have come to know that very night of the occurrence. It is true that the appellant did not inform anybody the next morning that her husband was missing nor did she search for her husband. On the contrary according to the prosecution when the brothers of the deceased questioned her she replied that she did not know the whereabouts of her husband. It is doubtful if this statement is admissible in evidence as it is a statement which does not accompany and explain an act other than the statement. Explanation 1 of sec. 8 of Evidence Act provides that the word conduct in that section does not include statements unless those statements accompany and explain acts other that statements. Now these pieces of the conduct of the appellant are not the conduct expected of an affectionate wife. It may be that the appellant was not really sorry for the death of her husband. But these pieces of conduct-would not warrant the inference that she had committed the murder of her husband. ( 5 ) THEN remains the most important piece of evidence relied on be the prosecution namely the statement made by the appellant at the committal inquiry. At the committal inquiry the prosecution did not examine any witnesses nor was any documentary evidence adduced by the prosecution. The committing Magistrate questioned the appellant on 18/12/1959 as to whether she had received the copies of the police statements etc. and she replied in the affirmative. The Roznama shows that on that day the case was adjourned to 24/12/1959. On 2 4/12/1959 the learned Magistrate put the following question to the appellant; Do you want to say anything regarding the present case? The learned Magistrate recorded the answer given by the appellant. In the course of that answer the appellant stated that she had known that Rahim Taju and Nura Amda would come to her room for murdering her husband and she was to open the door when there was a knock at the door. She stated that 4 or 5 days after she went to her father-in-laws house at midnight she opened the back door on hearing a knock and then Rahim Taju and Nura Amda came inside the room and murdered her husband. She stated that 4 or 5 days after she went to her father-in-laws house at midnight she opened the back door on hearing a knock and then Rahim Taju and Nura Amda came inside the room and murdered her husband. It is contended before us by the learned counsel for the appellant that as no evidence whether oral or documentary was adduced by the prosecution it was not open to the learned Magistrate to examine the accused and that therefore the answers recorded by the learned Magistrate do not form part of a proper examination of the accused 2nd are therefore not evidence in the case. The learned Government Pleader contends that even if no evidence had been adduced by the prosecution at the committal inquiry it was open to the learned Magistrate to examine the accused under sec. 342 of Criminal Procedure Code and it was also open to the learned Magistrate to record the answers given by the accused when he gave her an opportunity to be heard. ( 6 ) THE procedure of commitment which is found in section 207a Criminal Procedure Code contemplates the following stages: (1) at the commencement of the inquiry when the accused appears or is brought before the Magistrate the Magistrate should satisfy himself that the documents referred to in section 173 have been furnished to the accused and if be finds that the accused has not been furnished with such documents or any of them he should cause the same to be so furnished; (2) The Magistrate should then proceed to take the evidence of such persons if any as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of the opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witness for the prosecution he may take such evidence also; (3) The Magistrate may examine the accused if necessary for the purpose of enabling him to explain any circumstances appearing in the evidence against him; (4) The Magistrate should give an opportunity to the prosecution and the accused of being heard; and (5) I he Magistrate should either commit the accused for trial or discharge him or try the accused himself or send him for trial to another Magistrate. ( 7 ) SUB-SEC. (6) of sec. ( 7 ) SUB-SEC. (6) of sec. 2g7-A provides that the Magistrate may if necessary examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Sub-sec. (7) of sec. 207-A provides as follows:when upon such evidence being taken such documents being considered such examination if any being made and the prosecution and the accused being given an opportunity of being heard the Magistrate is of opinion that the accused should be committed for trial he shall frame a charge under his hand declaring with what offence the accused is charged. ( 8 ) THE wording in sub-section (6) is similar to that found in sub-section (1) of section 342 Criminal Procedure Code which reads thus:for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court may at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considers necessary and shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. ( 9 ) IT is clear both from examined-sec. (1) of sec. 342 and sub-section (6) of sec. 207a Criminal Procedure Code that in a committal inquiry the accused has to be exam examined only for the purpose of enabling him to explain the circumstances appearing in the evidence against him. The fact that the documents referred to in section 173 Criminal Procedure Code have been furnished to the accused does not make them evidence. Only copies are furnished to the accused vide sub-sec. (4) of sec. 173. Such copies can never he evidence. In fact sec. 207a makes a clear distinction between the evidence and the documents referred to in sec. 173 and given to the accused. No doubt for the purpose of deciding whether the accused should be committed for trial or discharged the Magistrate may consider those documents in addition on the evidence if any adduced by the prosecution. The Criminal Procedure Code has made a special provision in allowing the Magistrate to refer to certain documents which are not evidence but only for the purpose of deciding the question whether to commit the accused for trial or to discharge him. The Criminal Procedure Code has made a special provision in allowing the Magistrate to refer to certain documents which are not evidence but only for the purpose of deciding the question whether to commit the accused for trial or to discharge him. Such a special procedure has been made to expedite criminal inquires and to reduce the delay caused by recording evidence at the state of the criminal inquiry which precedes regular trial. Sub-section (6) and (7) of sec. 207a emphasise the distinction between the evidence and the documents referred to in sec. 173 It is therefore clear that merely because the prosecution has given copies of certain documents to the accused it cannot be said to have adduced evidence so as to enable the Magistrate to examine the accused under sec. 342 Criminal Procedure Code or under sec. 207a (6 ). Sec. 342 makes it clear that the Court may put questions to the accused for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. It is important to note the words used by the Legislature namely for the purpose of enabling him to explain any circumstances appearing in the evidence against him. In view of the clear distinction made in sec. 207a between evidence and copies of documents referred to in sec. 173 which may be given to the accused even before the inquiry commences it is difficult to accept the view that for the purpose of examining the accused under sec. 342 the copies of the documents which may have been given to the accused before the commencement of the committal inquiry are to be treated as evidence. Under sec. 342 Criminal Procedure Code it is obligatory to examine the accused after the witness for the prosecution have been examined. This part of sec. 342 would not apply where the prosecution has not examined any witness. T he first part of sec. 342 which permits the examination of an accused at any stage comes into play only where there are circumstances appearing in the evidence against an accused and cannot come into play where there is no evidence against the accused. ( 10 ) SUB-SEC. (3) of sec. T he first part of sec. 342 which permits the examination of an accused at any stage comes into play only where there are circumstances appearing in the evidence against an accused and cannot come into play where there is no evidence against the accused. ( 10 ) SUB-SEC. (3) of sec. 342 provides that when an accused person is examined the answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial for any other offence which such answers may tend to show he has committed. It is also provided in sec. 287 Criminal Procedure Code that the examination of the accused if any recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence at the trial. ( 11 ) IN the instant case no evidence has been led by the prosecution. After full and careful consideration of the question my learned Brother and myself are of the view that the examination of the accused under sec. 342 is not permitted at the committal inquiry in cases where no evidence has been led by the prosecution. ( 12 ) THE learned Government Pleader has however drawn our attention to the case of Ramdas Kikabhai v. State 61 Bombay Law Reporter 1173 That was also a case where while answering a question put by the committing Magistrate the accused stated he had killed the deceased. The learned Chief Justice of the Bombay High Court observed that the provisions in sec. 207a draw a distinction between evidence and the documents referred to in sec. 173 which also the Magistrate has to consider before deciding whether the accused should be committed for trial and that the expression evidence referred to is the evidence if any taken under sub-section (4) and cannot include the documents referred to in section 173. With great respect we concur in this view. The learned Chief Justice of the Bombay High Court expressed the view that the section contemplates an examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him that is in the evidence. if any taken under sub-section (4) of section 207 With great respect we are of the same view. The learned Chief Justice of the Bombay High Court expressed the view that the section contemplates an examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him that is in the evidence. if any taken under sub-section (4) of section 207 With great respect we are of the same view. But the learned Chief Justice of the Bombay High Court went further and observed that the statement made by an accused person when he is given an opportunity of being heard and which may have been recorded by the Magistrate would also be evidence. It was observed that the Magistrate who is bound to give an opportunity to the accused of being heard may for this purpose question the accused and may record his answers and that therefore it is implicit in sec. 207a that the Magistrate may examine the accused also for the purpose of enabling him to explain any circumstances appearing against him in the documents referred to in sec. 173. The learned Chief Justice of the Bombay High Court therefore concluded that while the Magistrate is not bound to question the accused and to ask him to explain any circumstances appearing in the documents referred to in sec. 173 he may do so if he deems in proper or necessary in the interests of justice and that if be examines the accused for this purpose and records his statement that statement would be admissible in evidence under sec. 287 Criminal Procedure Code. After giving our very careful consideration and with profound respect and in all humility my learned brother and I are unable to concur in this view. ( 13 ) SUB-SEC. (6) of sec. 207a provides that both the prosecution and the accused should have an opportunity of being heard. Both the prosecution and the accused are in the same position in this matter. Both of them should have an opportunity of being heard and there is no reason to hold that the answers given which may be mainly by way of arguments would have to be treated as evidence in the case of accused and not in the case of prosecution. Both of them should have an opportunity of being heard and there is no reason to hold that the answers given which may be mainly by way of arguments would have to be treated as evidence in the case of accused and not in the case of prosecution. Surely the statement made by the prosecution when it is given an opportunity of being heard cannot become evidence in the case; nor can the statement made by the accused when he is given an opportunity of being heard be treated as evidence. When an opportunity is given to the prosecution and the accused of being heard they generally argue the case. Sometimes the accused may be represented by a pleader and an opportunity of being heard may be given to the pleader of the accused. It is also open to the accused when he is given an opportunity to be heard to address lengthy arguments on questions of law. It is therefore difficult to hold that the answers given by the accused when he is given an opportunity of being heard under sub-sec. (6) of sec. 207a would be part of the examination of the accused. Sec. 287 Criminal Procedure Code which refers to the examination on accused persons obviously has reference to the examination under sec. 342. The reference in sec. 207a to the examination of the accused has also reference to the examination under sec. 342 Criminal Procedure Code. To give the accused an opportunity to be heard is not the same thing as to examine the accused. Sec. 207a provides that both the examine and the accused must be given an opportunity to be heard. When such opportunity is given lengthy arguments may be addressed on facts and on law. Presumably the opportunity is first given to the prosecution and then to the accused. The opportunity given to the prosecution is clearly an opportunity to argue and to show that there is a Prima facie case against the accused. After hearing the arguments of the prosecution an opportunity is given to the accused. There cannot be an examination of the accused after hearing the arguments of the prosecution Sub-sec. (7) of sec. 207a in terms provides that the opportunity to be learned is after the stage of the examination of the accused is over. After hearing the arguments of the prosecution an opportunity is given to the accused. There cannot be an examination of the accused after hearing the arguments of the prosecution Sub-sec. (7) of sec. 207a in terms provides that the opportunity to be learned is after the stage of the examination of the accused is over. It does not contemplate the examination of the accused at the committal inquiry in two stages. In fact it shows clearly that the opportunity given to an accused person to be heard is different from and comes after the examination of the accused. With very great and profound respect and after giving most careful consideration my learned Brother and myself cannot accept the view that the statement made by an accused person when the Magistrate gives him an opportunity to be heard would form part of the evidence. It is not necessary to refer this question to a Full Bench as we are satisfied that the guilt of the appellant has not been proved beyond reasonable doubt. conviction set aside. .