( 1 ) THE appellant-accused No. 1 has filed this appeal against the judgment dated 29-5-1995 passed by the learned Additional District and Sessions Judge, Bangalore Rural District, Bangalore in S. C. No. 174/1993 convicting the appellant-accused No. 1 for the offence under Section 302, IPC and sentenced to undergo imprisonment for life. ( 2 ) THIS is a tragic case of a father sacrificing his own son aged about three years under the evil influence of his so-called Guru A-2 (acquitted by the trial Court) to gain tantric skills. ( 3 ) THE prosecution case, briefly, is on 14-12-1990 at about 8 p. m. P. W. 2 came to the house of P. W. 1 and told him that A-1 has wrongfully confined his child Nagendra in his house and locked him in a room. P. W. 1 came to the house of A-1 and broke open the lock. After breaking open the lock, he saw that the child had been strangled to death. When P. W. 1 questioned A-1 about the death of the child A-1 told P. W. 1 that he was learning tantric skills from A-2 - (not before the Court) and that A-2 had told A-1 that if he were to sacrifice his child he would learn tantric magic fully. On hearing this shocking news from the accused No. 1 P. W. 1 lodged a complaint before the S. H. O. Nandagudi Police Station on 15-12-1990 at 8 a. m. The complaint given by P. W. 1 is the FIR in this case. After completing the investigation, the Circle Inspector of Police, Hoskote filed the charge-sheet against both the accused. A-1 was as stated earlier convicted and sentenced to imprisonment for life. A-2 was acquitted. The State has not preferred any appeal against acquittal of A-2. ( 4 ) P. W. 3 is the doctor who conducted the post-mortem examination on the deceased-child. He noticed the following external injuries :- (a) On the back side of the body there were red patches; (b) there was swelling on both sides of the neck. (c) There was cyanosis, body was cold, rigour mortis on both the extremities on knee and elbow joints present, both the pupils were dilated. " ( 5 ) HE gave an opinion that the death was due to shock on account of asphyxia. The post-mortem certificate is marked at Ex. P-2. (c) There was cyanosis, body was cold, rigour mortis on both the extremities on knee and elbow joints present, both the pupils were dilated. " ( 5 ) HE gave an opinion that the death was due to shock on account of asphyxia. The post-mortem certificate is marked at Ex. P-2. He also gave his opinion that due to pressing of the neck there will be swelling on both sides and death would occur due to asphyxia. There is no doubt that the child died due to throttling from the evidence of P. W. 3. ( 6 ) P. W. 1 is the person who informed the police about the death of the deceased. He stated in his (sic) 161 statement that he went to the police station on 15-12-1990 and informed the police that A-1 had locked the room in which the deceased was sleeping. He asked A-1 to open the door. A-1 refused to open the door of the room. He took the key and opened the room and when he went inside, he noticed that the child was dead. P. W. 1 also stated before the police that A-1 had confessed that he had sacrificed his child to acquire mantric skill. A-1 also stated that A-2 was his Guru and he was advised to do this dastardly act to acquire mantric skill. If what P. W. 1 had stated before police had been reiterated in evidence, there would be no difficulty for the Court to sustain the conviction of A-1. P. W. 1 is the witness who immediately went to the scene of occurrence and saw the accused outside the room. P. W. 1 opened the room and noticed that the child was dead. A-1 also gave an extra- judicial confession to P. W. 1. Unfortunately P. W. 1 did not support the prosecution. He stated before the Court that the police came and informed him that the child was dead. He immediately went to the scene of occurrence - the house of A-1 and noticed that the dead body was inside the house. He stated that he did not know how the child died. He also stated that he did not file any complaint to the police. He also stated that he did not go through the contents of the complaint Ex. P-1 and he never gave such a complaint. He stated that he did not know how the child died. He also stated that he did not file any complaint to the police. He also stated that he did not go through the contents of the complaint Ex. P-1 and he never gave such a complaint. ( 7 ) WHEN he was strenuously cross-examined by the prosecution, with the leave of the Court, he denied that A-1 had given any extra-judicial confession. ( 8 ) IN the light of the evidence of P. W. 1 it would be difficult to hold that certain portion of the cross-examination could be relied upon to support the prosecution case. ( 9 ) P. W. 2 is the grand-father of the deceased and father of A-1. He stated that he went to the house of A-1 and there he noticed that his grand- child was dead, and he did not know how the grand-child died. He also stated that A-1 did not make any confession to him. P. W. 2 was also treated as hostile to the prosecution. In the normal circumstances it cannot be accepted that the father would support the prosecution against A-1. However, there was nothing in the cross-examination which could be said to be in favour of the prosecution. ( 10 ) P. W. 4 is the person who was the panchayatdar for the inquest proceedings. Even he did not support the prosecution. ( 11 ) P. W. 5 is the elder brother of A-1. He stated that he was not aware that the deceased died due to throttling by accused-1. He also did not support the prosecution. ( 12 ) P. W. 6 is the police constable who delivered the FIR to the jurisdictional Magistrate and took the accused for remanding him to judicial custody. ( 13 ) P. W. 7 is the Head Constable who arrested the accused. ( 14 ) P. W. 8 is an inquest witness. He also did not support the prosecution. ( 15 ) P. W. 9 is also an inquest witness who did not support the prosecution. ( 16 ) P. W. 10 is the mother of the deceased and wife of the A-1. She also did not support the prosecution. She denied the suggestion that her husband A-1 killed his child and sacrificed the child at the instance of his Guru A-2. ( 16 ) P. W. 10 is the mother of the deceased and wife of the A-1. She also did not support the prosecution. She denied the suggestion that her husband A-1 killed his child and sacrificed the child at the instance of his Guru A-2. ( 17 ) P. W. 11 is the younger sister of P. W. 10. She also did not support the prosecution. She, however, stated in her cross-examination by the State P. P. that accused-1 was not mentally alright. ( 18 ) P. W. 13 was the Circle Inspector. He verified the investigation done by the Sub-Inspector of Police and after completing the investigation he filed the charge-sheet. ( 19 ) P. W. 14 was the Sub-Inspector of Police who conducted the investigation. ( 20 ) THE accused was examined under Section 313 of the Cr. P. C. Three questions were posed to him among others which have some relevance in this case. Question No. 13 reads as follows :"p. W. 2 Kenchappa has further deposed that you confessed that at the instigation of your Guru in order to acquire Manthric Skill you sacrificed your son Nagendra. What have you to say? Ans. (vernacular matter omitted) (Yes)". Question No. 16 reads as follows :"p. W. 2 has also stated that you murdered your son Nagendra. What have you got to say? Ans. (vernacular matter omitted) (Yes)". Question No. 20 reads as follows : "p. W. 2 has also deposed that you confessed before him that at the instigation of A-2 Nagappa you murdered your son Nagendrappa to achieve Manthric skill. What have you to say? Ans. (vernacular matter omitted) (Yes ). "we shall deal with the answers to the questions a little later. 20a. D. W. 1 is the Additional Professor of Psychiatry at Nimhans hospital. He has stated that A-1 was admitted as an inpatient in the hospital on 14-10-1992. A-1 had gone to the hospital on 1-5-90. He stated that the accused-1 was suffering from an advanced stage of schizophrenia. The accused-1 was suffering from severe delusion. It would be relevant to extract the evidence of the doctor at paragraphs 1, 2 and 3, which reads as follows :" (1) I have been working as Addl. Professor of Psychiatry since 1983 in Nimhans. 1 have seen accused No. 1. He appeared for the treatment for the first time on 1-5-1990. The accused-1 was suffering from severe delusion. It would be relevant to extract the evidence of the doctor at paragraphs 1, 2 and 3, which reads as follows :" (1) I have been working as Addl. Professor of Psychiatry since 1983 in Nimhans. 1 have seen accused No. 1. He appeared for the treatment for the first time on 1-5-1990. He was not admitted in the hospital on that day. On 16-5-1990 he came to the hospital. On 6-6-1990, 11-7-1990, 8-8-1990 and 24-7-1991 he came to the hospital for treatment. On 7-8-1991, 14-10-1992 he had come for treatment. On 14-10-1992 A-1 was admitted to the hospital. When he had come to the hospital on 1-5-1990 he was in advanced stage of Schizophrenia. On that day one Dr. Majumdar has seen him. That doctor is not in the country now. That doctor had recorded in the case sheet that A-1 had delusion of reference, delusion of persecution, delusion of auditory hallucinations. That case sheet relating to the treatment of A-1 is at Ex. D-1. Ex. D-1 (a) the portions in the case sheet which are recorded by Dr. Majumdar. Ex. D-1 (a) contains two sheets. (2) That disease has symptoms of hearing voices and delusions. Under the influence of hallucinations and delusion the patient may commit suicide or homicide. Under the effect of sudden impulse and emotions the person suffering from that disease is prone to conduct crimes. A-1 was suspecting the character of his wife. A-1 has given history that somebody had done black magic with his personal properties. (3) I have seen him on 24-7-1991. The first accused has delusion of infidelity and delusion of persecution and delusion of reference and delusion of grandiosity. A-1 was on regular treatment till August 1990. For one year he did not come to the hospital. Thereafterwards from August 1991 till October, 1992, A-1 did not come to the hospital for treatment. If the treatment is not continued regularly the possibility of suffering illness again will be there. Impulses are common in any stage of the disease. That disease is a common type of insanity in homicidal crimes with the strangers without motive. " ( 21 ) THIS is the evidence that have been adduced in this case about mental stability of the A-1. While on the one hand we have no evidence which supports the prosecution. Impulses are common in any stage of the disease. That disease is a common type of insanity in homicidal crimes with the strangers without motive. " ( 21 ) THIS is the evidence that have been adduced in this case about mental stability of the A-1. While on the one hand we have no evidence which supports the prosecution. On the other hand, we have an admission by A-1 admitting his guilt as indicated in the answers of the accused-1 to the questions 13, 16 and 20 in his statement under Section 313, Cr. P. C. ( 22 ) WE also have the evidence of the doctor to show that accused-1 was admitted in the Nimhans hospital, DW-1 is a specialist in dealing with psychiatric ailments. According to the doctor DW-1, the accused-1 was suffering from schizophrenia and other forms of delusions. ( 23 ) THE trial Court held that there was no clinching proof to hold that the accused-1 was suffering from insanity. ( 24 ) THE trial Court held that the admission in 313, Cr. P. C. statement would be sufficient to sustain the conviction of the accused-1. ( 25 ) WE are now left with the unenviable task of determining whether in the absence of any evidence to sustain the conviction it would be legally permissible to rely on 313, Cr. P. C. statement and convict the accused. The answers to the question put by the Court under Section 313, Cr. P. C. cannot be read in isolation. ( 26 ) WE will also have to take into account the opinion of the doctor D. W. 1. We also conscious of the fact that in dealing with matters like this, our moral conviction should take a back-stage. There is a clear line of distinction between moral conviction and conviction based on legal evidence. ( 27 ) THE Courts in our country especially in criminal trials are bound strictly by legal evidence. In the absence of any legal evidence, the Courts have no alternative except to give the benefit of doubt to the accused. ( 28 ) IN this case the alleged occurrence took place on 14-12-1990. The accused-1 was seen by D. W. 1 (Professor of Phychiatrics ). On 1-5-1990 the accused-1 was in an advanced stage of schizophrenia. On 6-6-1990, 11-7-1990, 8-8-1990 and 24-7-1991 the accused-1 came for treatment at Nimhans hospital. ( 28 ) IN this case the alleged occurrence took place on 14-12-1990. The accused-1 was seen by D. W. 1 (Professor of Phychiatrics ). On 1-5-1990 the accused-1 was in an advanced stage of schizophrenia. On 6-6-1990, 11-7-1990, 8-8-1990 and 24-7-1991 the accused-1 came for treatment at Nimhans hospital. On 7-8-1991 and 14-10-1992 he had also come for treatment. On 14-10-1992 he was admitted to the hospital as an inpatient. The doctor has clearly stated in his evidence that the accused was suffering from a disease which is a common type of insanity which sometimes result "in homicidal crimes with the strangers without motive. " ( 29 ) THE doctor also stated in cross-examination that the disease which the accused was suffering from is a continuous illness which will increase and sometimes decrease. The doctor was not able to give an opinion as to whether on 14-12-1990 (date of occurrence) A-1 was under the influence of the disease. An uncharitable question was asked by the State that the identification of A-1 by the doctor was false which was denied by the doctor. From the materials gathered from the evidence of D. W. 1 it is very clear that A-1 was suffering from severe form of schizophrenia both prior to the occurrence and after the occurrence. The doctor who is a medical expert in the Nimhans hospital has clearly stated that the accused-1 was suffering from insanity both before and after the occurrence. ( 30 ) IN these circumstances, whether the admission of the guilt of the accused-1 during examination under Section 313, Cr. P. C. can be taken into account also appears to be in some doubt. It is in the light of this material about the mental illness of A-1 we propose to deal with the law under Section 313, Cr. P. C. Section 313, Cr. P. C. reads as follows :-"313. P. C. can be taken into account also appears to be in some doubt. It is in the light of this material about the mental illness of A-1 we propose to deal with the law under Section 313, Cr. P. C. Section 313, Cr. P. C. reads as follows :-"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 question 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 his examination under Clause (b ). (2) No oath shall be administered to the accused when he is examined under sub-section (1 ). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) 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. " ( 31 ) FROM a reading of the section it appears to us that Section can only be brought into play if a prima facie case is made out against the accused. If no case is made out against the accused Section 313, Cr. P. C. cannot form the sole basis for a conviction. In other words, Section 313, Cr. P. C. is an enabling Section to enable the accused to explain the materials and circumstances in evidence against the accused. The fact is sub-section (3) of Section 313, Cr. P. C. gives the accused immunity from prosecution if the accused refuses to answer the question or gives false answers. ( 32 ) A Division Bench of this Court took the same view. The fact is sub-section (3) of Section 313, Cr. P. C. gives the accused immunity from prosecution if the accused refuses to answer the question or gives false answers. ( 32 ) A Division Bench of this Court took the same view. In 1991 (1) Kant LJ 584 : (1991 Cri LJ 3208), The State v. Sheikh Kadher Sheik Buden, the Court pronounced while dealing with Section 313 of the Code (as it then was) as follows :-"a mere took at this section indicates that only if there are any circumstance appearing in the evidence against the accused, the Court could proceed to examine the accused under this section for the purpose of enabling him to personally explain the same. When there is absolutely no circumstance appearing against the accused, it appears to us that there would be no scope for the Magistrate to examine the accused under this section. The decision in Re: Grandhe Sarabhayya, AIR 1943 Mad 408 : (1943 (44) Cri LJ 541) is directly on this point and it has been observed therein with reference to Section 342 of Code of Criminal Procedure, 1898, as hereinunder : 'if there were no circumstances appearing against accused 3 in the evidence, then unquestionably the learned Sessions Judge should not have put him any questions at all because Section 342 says that the Court shall put questions to he accused for the purpose of enabling the accused to explain any circumstance appearing in evidence against him. Any statement made by an accused person as a result of questions improperly put to him could not, therefore, be taken into account against him. ' In the decision of the former High Court of Mysore in M. Khivaraj v. State of Mysore, AIR 1955 Mys 129 : (1955 Cri LJ 1508) it has been pointed out that when the evidence does not disclose a prima facie case against an accused, his examination under Section 342 of the Cr. ' In the decision of the former High Court of Mysore in M. Khivaraj v. State of Mysore, AIR 1955 Mys 129 : (1955 Cri LJ 1508) it has been pointed out that when the evidence does not disclose a prima facie case against an accused, his examination under Section 342 of the Cr. P. C. is not only unnecessary but also illegal as the object of that section is to enable the Court to ascertain from the accused of the explanation he may have or desire to give regarding any fact stated by a witness or a circumstance appearing against him and if there is no incriminating circumstance which the accused has to explain, then, examination under that Section becomes unnecessary and it would be improper to question the accused under those circumstances. We entirely agree with these observations of the Madras High Court and the decision of the former High Court of Mysore. Therefore, the examination of the accused in the present case was not only unnecessary but was illegal and there is no scope for the Court to act upon the admission made by the accused in reply to such questioning. " ( 33 ) IT is no doubt true that an admission under Section 313, Cr. P. C. by the accused can be taken into account if there are other materials and evidence to convict the accused (1992) 3 SCC 700 : (1992 Cri LJ 3454), State of Maharashtra v. Sukhdev Singh. In another case reported in 1998 Supreme Court Cases (Crl) 929 : (1998 Cri LJ 1411), State of U. P. v. Lakshmi, the Supreme Court has held that a statement of the accused recorded under Section 313 of the Code cannot be made the sole basis for arriving at a finding of guilt of the accused. The Supreme Court in the above judgment at paragraphs 8 and 9 held as follows :"8. As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the Code does not deserve any value or utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases the accused would offer some explanations to incriminative circumstances. In very rare instances the accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy. 9. Sub-section (4) of Section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words 'may be taken into consideration in such enquiry or trial' in sub-section (4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding. " (Emphasis supplied by the Court ). ( 34 ) THE legal position is clear. It cannot be said that statement of an accused recorded under Section 313 of the Code does not deserve any value or utility if it contains inculpatory admission. If an accused admits to any incriminating circumstances appearing against him, there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy. However, the Supreme Court has held that the statement under S. 313 by the accused cannot be made the sole basis for finding an accused guilty. However, the Supreme Court has held that the statement under S. 313 by the accused cannot be made the sole basis for finding an accused guilty. ( 35 ) IN this tragic case, we have held that from the materials gathered from the evidence of D. W. 1 the appellant was suffering from a severe form of schizophrenia both immediately prior to the occurrence and after the occurrence. It is not at all clear whether the accused really understood the questions that were posed to him by the Court under Section 313 of the Code. On the persual of the answers to the 313 statement the accused has spoken in monosyllables to the effect that "it may be true", "yes" and "true". There was a duty cast upon the trial Court in the light of the materials placed before the Court to determine whether the appellant was in a position to understand the questions that were posed to him. This is particularly so since the appellant was suffering from a severe form of schizophrenia both prior to the occurrence and after the occurrence. We feel it would not be safe to sustain the conviction of the accused solely on the basis of the admissions made before the Court under S. 313 of the Code. ( 36 ) IT is submitted that the accused has been in custody for nearly eight years. We do not feel that the accused should be kept in custody any longer. ( 37 ) ACCORDINGLY we set aside the conviction of the appellant under S. 302, I. P. C. and allow the appeal. ( 38 ) THE accused shall be set at liberty forthwith. Appeal allowed. --- *** --- .