judgment Nesargi, J.- The appellant has challenged the legality and correctness of the conviction and sentence passed on him by the First Additional Sessions Judge, Banaglore, in Sessions Case No. 11 of 1978, convicting him for having committed the offence punishable under section 302 of the Indian Penal Code and sentencing him to imprisonment for life. 2. .The prosecution case is that the deceased Muthu and the accused were, sometime earlier to the incident which took place at about 9.30 p.m. on 7th December, 1977, friends. P.W. 15 Fathima is the wife of Muthu. As Muthu could not carry on in his profession as bar-bender, he took up vending illicit liquor. He enlisted the assistance of the accused on payment basis. The accused started cheating him in the business. Muthu warned the accused on many occasions. It is also the case of the prosecution that sometime earlier to the incident, Muthu had caused injuries on the hands of the accused and the accused nurtured grievance against Muthu. When the accused did not correct himself, but continued to cheat Muthu in the business, Muthu asked the accused to give up assisting him. The accused was taking food in the house of Muthu and residing there. Muthu drove him out. The accused went and commenced working for Kanthamma (not examined). Muthu went and told Kanthamma not to entertain the accused as the accused was unrealiable and so on. Kanthamma gave up employing the accused. The ill will nurtured by the accused against Muthu came to head in view of this fact also. 3. 3. By about 9.30 P.M. on 7th December, 1977, Muthu, P.W. 4 Kainikaraj, P.W. 5 Chittibabu, P.W. 6 Satish, P.W. 7 Vadivelu and others were playing cards in Aakra Khan compound, also known as Agha Khan compound, by the side of Miller Road in Bangalore. The accused went there and commenced to play. He lost money. He therefore gave up playing and went away. He returned after sometime. He had covered himself with bed-sheet M.O. 7 upto his neck. He stood behind Muthu who was dealing cards. He suddenly took out M.O. 1 the chopper and cut on Muthu. All the persons ran away. P.Ws. 4, 6 and 7 went and stood near the hotel called Bombay Restaurant in that locality. He returned after sometime. He had covered himself with bed-sheet M.O. 7 upto his neck. He stood behind Muthu who was dealing cards. He suddenly took out M.O. 1 the chopper and cut on Muthu. All the persons ran away. P.Ws. 4, 6 and 7 went and stood near the hotel called Bombay Restaurant in that locality. Sometime later the accused went there and told them that he had cut and finished Muthu and expressed that perhaps they also would be happy on learning that, and went away. At about 10.15 p. m. on the very day, he appeared in Cubbon Park police station where P.W. 17 M.D. Basannavar was the Sub-Inspector of Police. The accused was wearing banian M.O. 6, white pant M.O. 8, and had covered himself with the bed-sheet M.O. 7. He was having M.O.1 the chopper in his hands. All these articles were stained with blood. He gave information to P.W. 17 regarding the occurrence and P.W. 17 reduced the same to writing. P.W. 17 registered case in Crime No. 817 of 1977, issued F. I. R. and sent express reports. He secured panchas including P.W. 16 Narasaiah and in their presence sealed and seized M.Os. 1, 6, 7 and 8 under panchanama Ex. P. 13, and subjected them to the property form Ex. P. 14. In the meanwhile, he had sent a head constable and a constable to the scene of offence after instructing them that they should keep proper guard and watch over the spot. He went there in the course of the investigation. Before going, he attempted to contact P.W. 18 N. Krishanappa, Circle Inspector of Police, but he was informed that the Circle Inspector of Police had gone for investigation in some other case. At the spot, he found the head constable and the constable attending to their duties. He went to Dabuspet locality situated by the site of the Miller Road and recorded the statements of P.Ws. 5 to 7 and 8 Mangalakumar. P.W. 18 took up investigation on receiving the express reports, at about 7.00 a.m. on 8th December, 1977. He held inquest proceedings over the dead body and arranged to send the dead body for autopsy to P.W. 2 Dr. B.C. Chandregowda, who conducted post mortem. examination between 11.00 a.m. and 1.00 p.m. and prepared his notes as per Ex. P.W. 18 took up investigation on receiving the express reports, at about 7.00 a.m. on 8th December, 1977. He held inquest proceedings over the dead body and arranged to send the dead body for autopsy to P.W. 2 Dr. B.C. Chandregowda, who conducted post mortem. examination between 11.00 a.m. and 1.00 p.m. and prepared his notes as per Ex. P. 1 During the course of his investigation P.W. 18 questioned the accused and the accused gave some information. Then the accused led P.W. 18 to the City Market viz., Krishnarajendra Market in Bangalore City. P.W. 18 collected panchas including P.W. 13 S.S. Udupa. The accused led them to a gujari shop said to have been owned by Mahaboob Shariff. The owner of the shop sent for the boy, aged about nine years, P.W. 10 Aman. Panchanama as per Ex, p. 6 was recorded on the accused pointing out P.W. 9 Syed Sab, on the spot. P.W. 18 recorded the statements of P.Ws. 9 and 10 and others, and thereafter he also recorded the statements of P.W. 5 and others including P.W. 15 Fathima, and got the accused remanded to judicial custody. By 12th December, 1977, P.W. 18 found that the accused wanted to make a confession and as such gave a requisition to P.W. 1 C.H. Nanjappa, Metropolitan Magistrate (VI Court), Bangalore. P.W. 18 proceeded with the investigation by sending the seized articles etc. Even before that, the accused had taken P.W. 18 and panchas to a hut near about Miller Road and produced voters enumeration list as per Ex. P. 11 which P.W. 18 seized under panchanama Ex.P. 10. On 16th December, 1977 P.W. 1 secured the presence of the accused and put preliminary questions to find out whether the accused was going to make a statement voluntarily. He recorded his proceedings as per Ex. P. 3. He then sent the accused to judicial custody, with directions that he should be produced on 17th December, 1977. By about 12.00 noon on 17th December, 1977, the accused was produced before P.W. 1 and P.W. 1 once again put the questions to the accused to find out whether the accused was still willing to make a statement and that too voluntarily. On finding that, P.W. 1 gave time to the accused till about 4.00 p.m. in the evening. By about 12.00 noon on 17th December, 1977, the accused was produced before P.W. 1 and P.W. 1 once again put the questions to the accused to find out whether the accused was still willing to make a statement and that too voluntarily. On finding that, P.W. 1 gave time to the accused till about 4.00 p.m. in the evening. Thereafter he sent for the accused in his chambers and took the precaution of sending away all police officials and officers and again put questions to the accused to find out whether he was voluntarily willing to make a confessional statement. On satisfying himself that the accused was voluntarily willing to make a statement, he proceeded to record his statement as per Ex. P. 4. It also contains the proceedings recorded by P.W. 1 on 17th December, 1977. P.W. 18 completed the investigation and placed charge-sheet against the accused. 4. .The defence of the accused is that P.Ws. 4 to 8 had given evidence falsely against him as they were not on good terms with him and that he was all along friendly with Muthu. On 7th December, 1977, he had gone to see a first-show in a cinema theatre and after the first-show was over he went to a hotel where some persons came running and he asked them what had happened but he did not secure satisfactory answers from them. He knew that the deceased and others used to play cards in Agha Khan compound and, therefore, went there to find out what had happened. He had taken an autorikshaw lamp with him as it was dark. In the light shed by the autorikshaw lamp, he found Muthu lying in a poor of blood in that compound. M.O. 1 the chopper, safety razor and some other articles were lying by the side of the body of Muthu. He took M.O. 1 and went to the Cubbon Park police station. He informed P.W. 17 as to how he had found M.O. 1 lying by the side of the body of his friend Muthu and how some people had run away. He also informed P.W. 17 that the persons who were present at that time near about the spot were P.Ws. He informed P.W. 17 as to how he had found M.O. 1 lying by the side of the body of his friend Muthu and how some people had run away. He also informed P.W. 17 that the persons who were present at that time near about the spot were P.Ws. 4 to 7 and further that Muthu had kept Rani, sister of P.W. 5, as his mistress and, therefore, P.W. 5 was angry with Muthu and he might have committed the murder of Muthu, but the police caught him and foisted this case on him. He has explained that M.Os. 6 to 8 were on his person and had become blood-stained as the blood from the chopper had dripped on the same. In regard to the confessional statement recorded by P. W. 1, he has stated that he did not know anything about the contents but he had stated as tutored by the police and that in fact he had been ill-treated by the police so as to make him to state before P.W. 1 as tutored by them, and when he was produced before P.W.I on 8th December, 1977, he had been made by the police to state that he had not been ill-treated by the police, and, therefore he had stated accordingly and the Magistrate had recorded accordingly. 5. The prosecution has, in proof of the charge against the accused, relied on the eye-witness account furnished by the P.Ws. 4 to 8. It has also relied on their evidence and the evidence of P.W. 15 to establish the motive against the accused. It has nextly relied on the circumstances viz., the accused appearing in the police station before P.W. 17 at about 10.15 p.m., on 7th December, 1977 with blood-stained chopper M.O., 1 and wearing blood-stained clothes M.Os. 6 and 8 and having covered himself with the blood-stained bed-sheet M.O. 7 and also the circumstance relating to his pointing out P.W. 9 and the shop of Mahaboob Shariff. It has lastly relied on two more circumstances viz., recovery of Ex. P. 11 at the instance of the accused and the fact that the accused had by 9-15 p. m. on 10th May, 1977, consumed dalf in an attempt to commit suicide and had been taken to Bowring Hospital before P.W. 11 Dr. It has lastly relied on two more circumstances viz., recovery of Ex. P. 11 at the instance of the accused and the fact that the accused had by 9-15 p. m. on 10th May, 1977, consumed dalf in an attempt to commit suicide and had been taken to Bowring Hospital before P.W. 11 Dr. Venkatachalapathy, who was the duty doctor in the casualty ward by about 6.00 a.m. on 11th May, 1977, by one Balan. 6. We are surprised that the prosecution has examined P.W. 11 to prove that the accused had either on 10th May, 1977 or on 11th May, 1977 attempted to commit suicide by taking dalf, as it is plain that this fact is totally irrelevant to the case on hand. The First Additional Sessions Judge ought not to have premitted the prosecution to adduce this evidence, but on the other hand has, without even noting an objection in this behalf, allowed the evidence to go on record. This evidence deserves to be ignored. 7. It is recorded in the evidence on P.W. 18 the Circle Inspector of Police, that he took up investigation by 7.00 A. m. on 9th December, 1977, from P.W. 17. We looked into the original deposition of P.W. 18 and found that there also it has been recorded accordingly. This is an apparent mistake, and the First Additional Sessions Judge has allowed it to remain on record. He ought to have–if in fact he had read over the deposition of P.W. 18 after it was typed to P.W. 18–corrected the date as 8th December, 1977. This shows that recording of evidence appears to have been done by the First Additional Sessions Judge in an indifferent manner without applying his mind to what he was recording. In our opinion, this is not the proper way of conducting a sessions trial. We are constrained to make this observation in view of a few more facts and circumstances, showing that this observation is justified, will be pointed out by us in the course of this judgment. 8. We will first take up for consideration the question pertaining the judicial confession said to have been made by the accused to P.W.1 as per Ex. P. 4. 8. We will first take up for consideration the question pertaining the judicial confession said to have been made by the accused to P.W.1 as per Ex. P. 4. The first Additional Sessions Judge has chosen not to act on this confession as according to him P.W. 1 had failed to put on record two questions that he had put to the accused on 17th December 1977, and had administered oath to the accused while recording Ex. P. 4 and lastly had recorded Ex. P. 4 though he knew that he himself was the committing Magistrate and, therefore, ordinarily ought not to have proceeded to record the confessional statement of the accused. Nowhere has the First Additional Sessions Judge taken the trouble of adverting to section 463 of the Code of Criminal Procedure, which reads as follows: “463. Non-compliance with provisions ofsection 164 or section 281.- (1) If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872, take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of appeal, reference and revision.” The First Additional Sessions Judge has not weighed the evidence of P.W. 1 to find out whether he had stated the truth about putting those two questions to the accused but had not recorded those questions in the proceedings he held on 17th December, 1977. It was his duty to apply his mind to the evidence of P.W. 1 in regard to this aspect and come to a conclusion one way or the other. It was his duty to apply his mind to the evidence of P.W. 1 in regard to this aspect and come to a conclusion one way or the other. If his conclusion was that P.W. 1 had stated the truth, then in view of section 463 of the Code of Criminal Procedure, it would have been incumbent on him to hold that the recording of confession by P.W. 1 had been done by him-except in regard to administering of oath to the accused - in a manner as required by the provisions in section 164 of the Code of Criminal Procedure. He has observed that P.W. 1 being the committing Magistrate as he was the jurisdictional Magistrate in the case against the accused, ordinarily ought not to have proceeded to record the confessional statement of the accused. He has not supported himself, in regard to this observation, by any provision. But, on the other hand, he has gone on to observe that though the law did not bar P.W. 1 to record the confessional statement on the ground that he was the jurisdictional Magistrate, it was not desirable for P.W. 1 to record the confessional statement. He has not at all considered the effect of exercise of this power by P.W. 1 on Ex. P. 4 the confessional statement. What the First Additional Sessions Judge has failed to notice in this behalf is the provision in rule 4 of Chapter V of the Criminal Rules of Practice framed by this Court. It reads as follows: “When a requisition for recording a statement under section 164 of the Code is received by a Magistrate having jurisdiction to try the offence or commit the accused for trial, he shall direct the accused to be taken before another Magistrate for that purpose, unless the Magistrate, for reasons to be recorded in writing, deems fit to record the statement himself; and when he does so, he shall report the case to the Sessions Judge, who may take the case on his own file or refer it to another Magistrate.” It is expected of a Sessions Judge of some experience, to know this Rule, but we are pained to see that the First Additional Sessions Judge has exhibited his ignorance of this provision. Reading of this Rule shows that it is a Rule meant for guidance of Magistrates and does not say anything about the power not being there with such Magistrates to record confessional statements. 9. We do not consider it necessary to go into the evidence of P.W.1 to find out whether P. W. 1 had recorded Ex.P. 4 in accordance with the provisions in section 164 of the Code of Criminal Procedure, in the light of section 463 of the Code, as in our opinion the fact that P.W. 1 had administered oath on the accused while recording the confessional statement, deprives the the statement Ex. P. 4 of any evidentiary value. In this connection the First Additional Sessions Judge has, in paragraph VII (gg) of his judgment, adverted to the provision in section 5 of the Indian Oaths Act, 1873. Here again, the First Additional Sessions Judge has exhibited his ignorance of the law holding the field because Indian Oaths Act, 1873, has been repealed by the Indian Oaths Act, 1969. Section 5 of the Indian Oaths Act, 1969, is not in pari materia with section 5 of the Indian Oaths Act, 1873. Section 5 of the Indian Oaths Act, 1969, has no application in regard to this question. 10. Section 164 (4) of the Code of Criminal Procedure, lays down that such confession shall be recorded in the manner provided in section 281 of the Code for recording the examination of an accused person and shall be signed by the person making the confession and so on. In view of this provision, it was incumbent on P.W. 1 to record the confessional statement of the accused by following the manner and method laid down in section 281 of the Code of Criminal Procedure. Section 281 reads as follows: “281. Record of examination of accused.- (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. Section 281 reads as follows: “281. Record of examination of accused.- (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in that behalf. (3) The record shall if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court. (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial.” 11. It is clear from the above that there is no provision for administering oath to an accused who is making a confessional statement before a Magistrate. When this specific provision is made, the other provisions of the Indian Evidence Act etc., regarding recording of statements, will not operate. Therefore, no question of administering oath arises, and in fact if oath is administered, it will be contrary to the provisions of section 281 of the Code of Criminal Procedure. When this specific provision is made, the other provisions of the Indian Evidence Act etc., regarding recording of statements, will not operate. Therefore, no question of administering oath arises, and in fact if oath is administered, it will be contrary to the provisions of section 281 of the Code of Criminal Procedure. It is well settled by a series of Judgments of the Privy Council as well as the Supreme Court that when the mandate of the law is that a particular act has to be done in a particular manner, it has got to be done in that manner or it should not be done at all. Therefore, recording of Ex.P. 4 by P.W. 1 after administering oath to the accused, is not as provided by section 281 of the Code of Criminal Procedure and as such Ex. P. 4 loses its evidentiary value. Moreover, the objection behind this provision viz.,Section 164 (4) of the Code of Criminal Procedure, is clear on the face of it. The concerned accused should not be made to feel that he is bound down to a particular statement, and if he later stated something contrary to that he would be incurring the wrath of law. In fact similar is the object in regard to the manner and method of recording the statements of witnesses during the investigation by the police, under section 161 of the Code of Criminal Procedure. There, it is provided that the signatures of the persons are not expected to be taken below their statements so recorded. If this aspect viz., recording of examination of the accused is gone deeper into by looking into the provisions of the Code of Criminal Procedure, it will be clear that there are three stages at which examination of the accused is provided. First stage is section 232 of the Code of Criminal Procedure. That would be during a Sessions trial when the prosecution closes its case. The next is section 239 of the Code. That is the stage at which in a trial of warrant case on police report a Magistrate has to decide whether he should frame charge or pass an order of discharge. That would be during a Sessions trial when the prosecution closes its case. The next is section 239 of the Code. That is the stage at which in a trial of warrant case on police report a Magistrate has to decide whether he should frame charge or pass an order of discharge. The third is section 313 of the Code which is as general provision because it states that an accused may be examined at any stage in any enquiry or trial, to enable him to explain personally any circumstances appearing in evidence against him. Section 313 (2) of the Code of Criminal Procedure specifically lays down that no oath shall be administered to the accused when he is examined under sub- section (1) of that section to recording of of confession of an accused under the section. It is easy to see that it has no application to the recording of a confession of an accused under Section 164 (4) of the Code of Criminal Procedure and in that behalf only the provisions in section 281 of the Code, are specifically made applicable. 12. In view of the foregoing, we hold that administering oath to the accused by P.W. 1 before recording Ex. P. 4 the confessional statement, is, in an illegality and, hence, Ex. P. 4 loses its evidentiary value. It is of course true that the learned First Additional Sessions Judge had reached the same conclusion, but what we have observed is in regard to the reasoning put forth by him and the manner in which he has exhibited his ignorance of the provisions of law and the rules, which he is expected to know. 13. Before going into the evidence adduced by the prosecution in proof of the charge against the accused, we have to express our displeasure in regard to the approach of the First Additional Sessions Judge in conducting the trial, in view of one more fact available in the evidence of P.W. 17. It may be remembered that the prosecution case is that the accused appeared before P.W. 17 in Cubbon Park police station at 10.15 p.m., on 7th December, 1977 and gave information to P.W. 17. That is also the say of the accused in his statement recorded under section 313 of the Code of Criminal Procedure. P.W. 17 has given evidence to that effect. That is also the say of the accused in his statement recorded under section 313 of the Code of Criminal Procedure. P.W. 17 has given evidence to that effect. It was the duty of the First Additional Sessions Judge to look into what was the information given by the accused to P.W. 17 and reduced to writing by P.W. 17 at that stage itself. May be the information given by the accused tallies with the stand he has taken in his defence. If that were to be so, the same ought to have been brought on record as first information and that would have been useful to the accused. Under such circumstances, failure on the part of the First Additional Sessions Judge to look into it and consider it, would have been prejudicial to the accused. The trial would not be fair. In case the information given by the accused was confessional in character, then also it was the duty of the First Additional Sessions Judge to look into it to decide whether any part of it would be admissible as first information setting the criminal law in motion, in view of the decisions of the Supreme Court in Aghnoo Nagesia v. The State of Bihar,1Nishi Kant Jha v. The State of Bihar,2Khatri Hemraj Amulakh34 The First Additional Sessions Judge has recorded the evidence of P.W. 17 so as to make it appear that he was not at all asked to look into the information of the accused as recorded by P.W. 17. Whether the prosecucution had insisted on it or not, it is our firm opinion that it was the duty of the First Additional Sessions Judge to look into that information recorded by P.W. 17 and decide the question of admissibility on the basis of the law laid down in the aforementioned decisions of the Supreme Court, and then proceed to admit part of it or whole of it or discard whole of it. Here again he has shown his ignorance of the settled law on the question. It only means that he has not applied himself whole-heartedly to the trial of the case against the accused. But, fortunately enough this non-application of the mind of the First Additional Sessions Judge, has not caused any prejudice either to the accused or to the prosecution in this case. 14. It only means that he has not applied himself whole-heartedly to the trial of the case against the accused. But, fortunately enough this non-application of the mind of the First Additional Sessions Judge, has not caused any prejudice either to the accused or to the prosecution in this case. 14. It is by now well-established that when there is direct evidence in regard to the offence committed, the evidence regarding motive will pale into insignificance. Therefore, we proceed to consider the evidence of P.Ws. 4 to 8 and the other circumstances relied upon by the prosecution, of course ignoring the evidence of P.W. 11 regarding what the accused is supported to have done on 10th or 11th of May, 1977. 15. Sri Ashok S. Karamadi, learned Advocate appearing on behalf of the appellant as amicus curiae, vehemently argued that P.Ws. 4 to 8 are all admittedly gamblers, persons having no stake in life, persons having no standing in society and persons who it appears are prepared to take any risk in life and as such are not credit-worthy. But, this attack against P.Ws. 4 to 8 cannot be a ground for discarding the testimony in this case because the accused and the deceased admittedly belonged to the same strata of society and all of them were associates. It is the say of the accused himself-in his statement recorded under section 313 of the Code of Criminal Procedure-that P.Ws. 4 to 7 were near about the spot when he went there and saw the dead body of Muthu lying in a pool of blood. It is also his say that Muthu and these people used to play cards in the said compound and he had gone there expecting the deceased to be present there engaged in that act. P.Ws. 4 to 8 have sworn that Muthu, the accused and P.Ws. 4 to 7 had engaged themselves in playing the game ‘andhar-bahar’. Playing cards are M.Os. 12 and 13. M.O. 12 is a full packet of playing cards and M.O. 13 are pieces of playing cards. The Chemical Examiner's report Ex. P. 16 shows that M.O. 13 were stained with blood and that blood was not sufficient for the Serologist to trace the origin of the blood. Playing cards are M.Os. 12 and 13. M.O. 12 is a full packet of playing cards and M.O. 13 are pieces of playing cards. The Chemical Examiner's report Ex. P. 16 shows that M.O. 13 were stained with blood and that blood was not sufficient for the Serologist to trace the origin of the blood. They were found on the spot and that fact is satisfactorily established by the evidence of P.W. 18 and P.W. 12 Raju-panch to the inquest and the scene of offence panchanamas. Finding of M.Os. 12 and 13 near the dead body of Muthu at that spot goes in support of the evidence of P.Ws. 4 to 8 that P.Ws. 4 to 7 and the deceased were engaged in playing such a game with playing cards. This inference gets additional support in view of what the accused has stated in his statement recorded under section 313 of the Code of Criminal Procedure. It was argued on behalf of the accused that even according to the witnesses it was quite dark at that time and, therefore, they could not have played the game ‘andar-bahar’ by means of playing cards at the place, and could not have been able to identify the assailant of Muthu, even if it is held that they were present at the time of the occurrence. P.W. 4 has sworn that one Ravi (not examined) was holding a lighted candle to enable them to play the game and after some time he gave that candle in the hands of the P.W. 8 and went away and thereafter the accused lost money, went away, returned and stood behind the deceased and then dealt blows by means of the chopper M O. 1. The only fact that can be argued against the testimony of P.W. 4 is that his statement was not recorded by the police during the same night, as it was recorded in the morning of 8th December, 1977. This delay, in our opinion, is not of any consequence because P.W. 17 had reached there round about mid night or so in the very nature of things and had even then proceeded to Docuspet and recorded the statements of the persons available there including P.Ws. 5 to 8. Sri Karamadi argued that there was a watchman in that compound and one David was residing nearby and they have not been examined by the prosecution. 5 to 8. Sri Karamadi argued that there was a watchman in that compound and one David was residing nearby and they have not been examined by the prosecution. Non-examination of these persons would not have any impact on the evidence of P.Ws. 4 to 8 because it is not the duty of the prosecution to multiply witnesses on one and the same point. No adverse inference on this score can be drawn against the prosecution and particularly in regard to the evidence of P.Ws. 4 to 8. That is what we have found to be the settled position in law and have laid down accordingly in Criminal Appeal No. 337 of 1978, disposed of of on 2nd July, 1979. P.W. 5 has sworn that they were playing cards about 20 to 25 feet away from the hut of David in candle light. He has further on stated that Ravi had held the candle and before going away Ravi had given the candle in the hands of P.W. 8 and P.W. 8 continued to hold that candle till the incident happened, and they ran away. Sri Kara- madi argued that P.W. 5 had stated in his statement recorded by P.W. 17 as per Ex. D. 2 to the effect that it was dark and that shows that these people could not have engaged them-. selves in playing the game ‘andarbahar’ and could not have been able to identify the assailant of Muthu, particularly when no candle has been attached from the scene of offence either by P.W.17 or by P.W.18 when they visited the spot on 7th December, 1977 and 8th December 1977. Ex. D 2 not only shows that it was dark but also shows that the P.W. 5 had stated initially that Ravi was holding the candle. Sri Karamadi has conveniently ignored this part of Ex. D. 2 while putting forth the argument above-noted. It has been suggested to P.W.5 that his sister Rani was in the keeping of Muthu and, therefore, P.W. 5 was not on good terms with Muthu. While accepting the evidence of P.W.5, the First Additional Sessions Judge has set out a peculiar reasoning in regard to this suggestion. D. 2 while putting forth the argument above-noted. It has been suggested to P.W.5 that his sister Rani was in the keeping of Muthu and, therefore, P.W. 5 was not on good terms with Muthu. While accepting the evidence of P.W.5, the First Additional Sessions Judge has set out a peculiar reasoning in regard to this suggestion. His reasoning is that though it has been suggested to P.W.5 that his sister Rani was in the keeping of Muthu the deceased, it has not been suggested to P.W.5 that P.W.5 had therefore assaulted Muthu, and hence the stand taken by the accused in his statement recorded under section 313 of the Code of Criminal Procedure, in this behalf does not amount to a reasonable explanation to the evidence of P.W. 5. All that we can say is that this is strange reasoning put forth by the Sessions Judge. There is nothing on record to probabilise the suggestion made to P.W. 5 that his sister Rani was in the keeping of Muthu. That suggestion has remained at the stage of suggestion only. Therefore, we hold that that cannot affect the evidence of P.W. 5, whose statement was recorded by P.W. 17 in no time after the occurrence. The fact that Muthu was assaulted to death by about 9-30 p.m., is very well supported by the evidence of P.W.2 Dr. B.C. Chandregowda, who conducted post mortem examination over the dead body between 11-00 a.m. and 1.00 p.m., on 8th December 1977 because he has sworn that all the injuries, 11 in number, were ante mortem and sufficient to cause death in the ordinary course of nature, and they had been caused on Muthu about 12 to 18 hours prior to the commencement of the post mortem examination. This further shows that in no time after the assault on Muthu, the accused has appeared in the police station, having with him the articles already narrated. The evidence of P. W.6 is in line with the evidence of P.Ws. 4 and 5, but Ex. D-3 has been elicited in his cross-examination. Ex.D-3 contains the very thing that is contained in Ex. D-2. Therefore, nothing need be said about it as it would amount to repetition. The evidence of P.W.7 is also in line with that of P.Ws. 4 to 6, but in the cross-examination Ex.D-4 the contradiction is elicited. Ex. D-3 has been elicited in his cross-examination. Ex.D-3 contains the very thing that is contained in Ex. D-2. Therefore, nothing need be said about it as it would amount to repetition. The evidence of P.W.7 is also in line with that of P.Ws. 4 to 6, but in the cross-examination Ex.D-4 the contradiction is elicited. Ex. D-4 is the same as Exs. D-2 and D-3. Whatever we have stated in regard to Exs. D-2 and D-3 applies on all fours to Exs. D-4. P.W. 8 has sworn that all these persons had engaged themselves in playing the game ‘andar bahar’ and Ravi was holding the candle and when Ravi wanted to go, he handed over the candle to him and he held the candle so as to shed light at that place to enable others to continue the play. Sri Karamadi argued that according to P.W. 8 he had also gone there to play and, therefore, he must have engaged himself in playing and as such no one could have held the candle as claimed by these witnesses. P.W. 8 has in his cross-examination stated that he had gone there with an intention to play, but he had only eight annas in his pocket. He has nowhere stated that he was also playing that game along with these people. Hence, this comment of Sri Karamadi on the evidence of P.W.8 does not at all hold water. The evidence of P.Ws. 4 to 8 is cogent and consistent, and as already pointed out, their presence at the spot is also established. The say of the accused in his statement recorded under section 313 of the Code of Criminal Procedure that these persons were near the spot, supports the conclusion. 16. Ex. P. 16 the report of the Chemical Examiner discloses that M.O. 1 the chopper was extensively stained with blood, and M.O. 6 the banian was stained with only one speck of blood while the bed-sheet M.O. 7. and the pant M.O. 9 were stained with few speck of blood. The report of the Serologist shows that the blood on these articles was of human origin and further that the blood on M.Os. 1,7 and 8 belonged to ‘B’ group, which is the group to which the blood of the deceased also belonged. and the pant M.O. 9 were stained with few speck of blood. The report of the Serologist shows that the blood on these articles was of human origin and further that the blood on M.Os. 1,7 and 8 belonged to ‘B’ group, which is the group to which the blood of the deceased also belonged. The explanation given by the accused in his statement is that M.O. 1 was lying by the side of the dead body of Muthu along with other articles like razor etc., and when he carried M.O. 1 to the police station, the blood on it had dripped on his banian, pant and bed-sheet and, therefore, they stained with blood. If that were a fact, M.O.8 would not have been stained with one speck of blood and M.Os. 6 and 7 would not have been stained with few specks of blood when M.O. 1 was extensively stained with blood. Therefore, the explanation given by the accused is not probabilised. It was argued by Sri Karamadi that if in fact the accused had cut the deceased Muthu 11 times by means of M.O. 1, his clothes, and particularly the bed-sheet M.O. 7 with which he had covered himself, would have been profusely stained with blood, and absence of such extensive stains of blood on these articles goes in favour of the defence. This argument proceeds on the assumption that blood must have spouted out from the injuries so as to cause extensive stains on these articles when the accused cut on the deceased-There is no warrant for presuming that blood had spouted out from the various injuries sustained by Muthu. Inferences cannot be drawn on the basis of facts presumed without there being any material. Hence, we reject this reasoning. 17. In view of the accused having admitted the fact that he had gone to the police station by 10-15 p.m. having with him M.O. 1 and M.O. 7 and wearing M.Os. 6 and 8, we do not consider it necessary to go into the evidence of P.W. 17 and P.W. 16 Narasaiah, the panch, in regard to this aspect of the matter. But this circumstance, instead of probabilising the stand taken by the accused in his defence, goes in support of the prosecution and provides another circumstance to show that the evidence of P. Ws. 4 to 8 is, reliable and acceptable. 18. But this circumstance, instead of probabilising the stand taken by the accused in his defence, goes in support of the prosecution and provides another circumstance to show that the evidence of P. Ws. 4 to 8 is, reliable and acceptable. 18. The First Additional Sessions Judge has on the basis of the evidence of P.W. 13 S. Udupa marked the panchanama recorded by P.W. 18 at that time, as per Ex. P. 6. He has noted in the deposition of P.W. 9 Sayed Sab that only the bracketed portion in Ex. P-6 is admissible in evidence. The bracketed portion reads as follows1: We are unable to see how this Ex. P. 6 can be of any use to the prosecution. In that view of the matter, we wonder how the Public Prosecutor thought it fit to examine. P.W. 13 and get this portion marked and how the First Additional Sessions Judge allowed this to take place. What the prosecution has sought to establish through the evidence of P.W. 9 is that about 5 to 6 days prior to the incident, the accused had gone to the shop of Mahaboob Shariff (who has not been examined) and purchased the chopper M.O.1 from his shop and thereafter got it sharpened by P.W. 9. M.O. 1 is a common place article. P.W.9 must have sharpened many such choppers as that is his profession P.W. 9 has not furnished even one ground to make us hold that he had any reason to remember M.O. 1 or the accused in regard to this fact. The only telling circumstance in this behalf is that the accused led P.W. 18 to the shop of Mahaboob Shariff and pointed out P.W. 9. Pointing out P.W. 9 by the accused cannot be said to lead to a discovery of any fact. On the other hand, it can be said that it amounts to a statement made by the accused to the investigating officer. Whether that statement amounts to confession or not, cannot be determined in view of these innocuous circumstances. When the evidence of P.W. 9 that he had sharpened M.O. 1 about 5 or 6 days prior to the incident is seen not safe to be relied upon, the fact that the accused pointed out P.W.9 would be neither here nor there so far as the prosecution case against the accused is concerned. When the evidence of P.W. 9 that he had sharpened M.O. 1 about 5 or 6 days prior to the incident is seen not safe to be relied upon, the fact that the accused pointed out P.W.9 would be neither here nor there so far as the prosecution case against the accused is concerned. The First Additional Sessions Judge has merely garbled over the evidence of P.W. 9. He has not recorded any definite finding whether he has accepted the evidence of P.W. 9 and if he had accepted, as to what inference he has drawn on the basis of the evidence of P.W.9. We are clearly of the view of that the evidence of P.W. 9 does not advance the case of the prosecution any further. 19. On discussing the entire evidence adduced by the prosecution, we conclude that the prosecution has satisfactorily established the charge against the accused and, therefore, this appeal is liable to fail, and as such we dismiss the same. S.V.S. ----- Appeal dismissed.