Honble TIBREWAL, J. – Appellant-Magya @ Narpat Singh son of Hukam Singh Gurjar resident of village Malah has preferred this appeal through Jail being aggrieved against the Judgment/Order dated August 23, 1995 of Additional Sessions Judge No. 2, Bharatpur, in Sessions Case No. 15/95, whereby he was convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo six months rigorous imprisonment. (2). The charge against the appellant was that he committed murder of Nihal Singh son of Prabhu Gurjar resident of Adapur on April 16, 1995 at about 6.15 a.m. The dead body of Nihal Singh Gurjar was found lying by road side with injuries on his head. He was noticed by Surjeet Singh Jat Sikh of Chak Sarawali, village Adapur who made a written report at Police Station, Sewar, Bharatpur at 9 a.m. In the report, it was stated that some unknown persons committed murder of Nihal Singh by causing injuries on his head. On this report, Crime No. 84/95 was registered under Section 302 I.P.C. After completion of usual investigation, a charge-sheet ca- me to be filed against the appellant in the court of Additional Chief Judicial Magistrate No. 1 Bharatpur for the offence under Section 302 I.P.C. The offence being exclusively triable by a court of Sessions, the case was committed to the court of Sessions Judge, Bharatpur, from where it was made over to the Court of Additional Sessions Judge No. 2, Bharatpur vide order dated, July 8, 1995. The trial court fixed August 22, 1995 for framing charge. On this date, charge under Section 302 I.P.C. was framed which was read over and explained to the appellant asking him whether he pleads guilty of the offence charged or claims to be tried? The appellant pleaded guilty. However, the learned Judge did not think it proper to convict him thereon, and fixed 23rd August for recording his statement under Sec- tion 313(1) Cr.P.C. On this date, his statement was recorded under Sec. 313 Cr.P.C. in which he confessed his guilty. On the basis of this statement, the appellant was convicted and sentenced as aforesaid. (3). However, the learned Judge did not think it proper to convict him thereon, and fixed 23rd August for recording his statement under Sec- tion 313(1) Cr.P.C. On this date, his statement was recorded under Sec. 313 Cr.P.C. in which he confessed his guilty. On the basis of this statement, the appellant was convicted and sentenced as aforesaid. (3). Shri Jinesh Jain, learned counsel appearing as Amicus Curiae for the appellant, contended that the procedure adopted by the learned trial Judge, basing conviction of the appellant, after recording his statement U/s. 313 Cr.P.C. is erroneous in law being contrary to the provisions of Cr.P.C. Learned counsel contended that the charge against the appellant was of capital offence and the trial Judge did not think it proper to convict him on the plea of guilt made by him. Thereafter, the learned Judge proceeded to record his statement under Sec. 313 Cr.P.C. and at this point he committed error of law. According to the learned counsel, there was no occasion to record the statement of the accused under Sec. 313 Cr.P.C. before recording prosecution evidence as Sec. 313 Cr.P.C. is intended to secure to the accused an opportunity to explain incriminating circumstances appearing against him in the prosecution evidence which can be used for determining his guilt. Learned counsel also contended that it is open to the Court to accept the plea of guilt of an accused, but in a capital offence, it is always safer not to convict the accused even if he pleads guilty at the stage of framing charge. According to the learned counsel, the statement of the accused recorded under Sec. 313 Cr.P.C. could not be treated as evidence against him much less a substantive evidence. (4). After going through the entire material on record and the judgment under challenge in this appeal. We find that the contentions made by the learned counsel have much force. According to the learned counsel, the statement of the accused recorded under Sec. 313 Cr.P.C. could not be treated as evidence against him much less a substantive evidence. (4). After going through the entire material on record and the judgment under challenge in this appeal. We find that the contentions made by the learned counsel have much force. Section 313(1) Cr.P.C. read as under :– ``313, Power to examine the accused – (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court – (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case. Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with the examination under clause (b). (5). A perusal of the aforesaid section makes it clear that this provision is intended to provide the accused an opportunity to explain the prosecution evidence against him. The principle on which it is based is that before the damaging points in the prosecution evidence are used against the accused for determining his guilt, it is essential that his pointed attention should be drawn to them one by one on all the vital and salient points in the evidence that go against him. This provision is to benefit the accused and not to operate to his detriment. It is further clear that the statement of accused under Sec. 313(1) Cr.P.C. is made after the exa- mination and cross-examination of all prosecution witnesses and before the accused is called on for his defence. The provision containing ``appearing in the evidence against him means appearing in the prosecution evidence in the Sessions Court when the trial is in that Court. It is true that the examination of the accused under Sub-section (1) of Clause (a) may be made by the Court at any stage, but as the provision is only for the purpose of explaining any evidence appearing against him, it follows that the Court cannot question before any evidence is recorded against him which requires explanation. It is true that the examination of the accused under Sub-section (1) of Clause (a) may be made by the Court at any stage, but as the provision is only for the purpose of explaining any evidence appearing against him, it follows that the Court cannot question before any evidence is recorded against him which requires explanation. Under Clause (b) it is obligatory on the Court to question the accused on the circumstances appearing against him in evidence so as to enable him to explain the same. One should not forget that statement under Sec. 313 Cr.P.C. is quite different from a confessional statement which is recorded under Sec. 164 Cr.P.C. by a Magistrate in which the Court has to be satisfied about voluntariness by questioning. The two provisions cannot be equated and no steps can be taken to justify examination of the accused under Sec. 313 (1) Cr.P.C. without recording any prosecution evidence on the ground that it is a confessional statement of the accused admitting his guilt. This important legal aspect was completely ignored by the trial Court as well as the prosecution agency which renders conviction of the appellant as illegal. (6). In Chapter-XVIII of the Code of Criminal Procedure under the head ``trial before a Court of Sessions Charge is framed under Sec. 228 if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence and if it is exclusively triable by the Court of Sessions, when charge is framed, the same has to be read over and explained to the accused and he shall be asked whether he pleads guilty to the charge framed or claims to be tried. Section 229 which provides conviction on the plea of guilt reads as under :– ``229. Conviction on plea of guilty – If the accused pleads guilty, the Judge shall record the plea and may, in his discretion convict him thereon. A perusal of this section makes it clear that it is not mandatory for the Judge to record conviction on the basis of plea of guilty of the accused. It is open to the Court to accept or not, the plea of guilty. However, the courts are unanimous that in a capital offence it is safer not to convict the accused even if the accused pleads guilty at the stage of framing charge. It is open to the Court to accept or not, the plea of guilty. However, the courts are unanimous that in a capital offence it is safer not to convict the accused even if the accused pleads guilty at the stage of framing charge. In the instant case, the learned Judge also did not convict the accused on the plea of guilt but proceeded to record his statement under Sec. 313 Cr.P.C. and on the basis of his confessional statement recorded under that provision, convicted and sentenced the appellant. As stated earlier, recording of the statement of accused under Sec. 313 Cr.P.C. without recording the prosecution evidence was not permissible and that stage had not come. Otherwise also, the object of this provision is to give an opportunity to the accused to explain the incriminating circumstances, appearing against him in the prosecution evidence and this provision is not meant for recording confessional statement of the accused. (7). In view of this, conviction of the appellant under Sec.302 IPC. and the sen- tence awarded to him for the said offence is not sustainable in the eye of law. His conviction and sentence is, therefore, set aside. In the facts and circumstances, the case is sent back to the trial court to proceed with trial in accordance with law. The trial Court shall conclude the trial expeditiously. _