Judgment : M.E.N. PATRUDU, J. Both the appeals involve common question of law and fact as they arise out of the same judgment and hence, they have been heard together and are being disposed of through this common judgment. 1.1 Jesuprasad @ Prasad, the first accused in S.C.No. 48 of 2001 on the file of the Court of IInd Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur, is the appellant in Crl.A.No.848 of 2001, while so, Moonraja, the second accused in the case has preferred Crl.A.No.848 of 2001. Hereinafter, they are referred to as A1 and A2 respectively. 1.2 C.D. Gopinath, learned Senior Counsel has appeared for A1, Chandra Mohan, learned counsel has appeared for A2 and K. Radhakrishnan, learned Additional Public Prosecutor has appeared for the respondent/State. 1.3 Palanisamy is the deceased. 1.4 Both the accused are found guilty for an offence under Section 302 I.P.C. and accordingly, they are convicted and sentenced to undergo imprisonment for life. However, they were found not guilty for an offence under Section 341 I.P.C. and accordingly acquitted for the said offence, whereas the first accused was found guilty under Sections 324 and 506 (ii)I.P.C., and was convicted and sentenced for 2 years and 3 years respectively. The second accused was acquitted under the above charges. The Trial Court ordered that all the sentences should run concurrently. 1.5 Feeling aggrieved by the judgment of the Trial Court, the appellants are challenging the legality and the correctness of the conviction and sentence. 1.6 We have heard elaborate arguments of both sides. 1.7 Learned counsel appearing for the appellants have highlighted the various portions in the evidence of prosecution, in the impugned judgment and pointed out all important points available in favour of the appellants from the evidence of prosecution witnesses. Incidentally, the learned counsel also pointed out several other factual details. The main grievance ventilated by the learned counsel for the appellants is that the judgment of the learned Sessions Judge is bad in law and the conviction cannot sustain on merits. The learned counsel appearing for the appellants further submitted that there is no evidence at all in favour of prosecution calling for conviction. The main grievance ventilated by the learned counsel for the appellants is that the judgment of the learned Sessions Judge is bad in law and the conviction cannot sustain on merits. The learned counsel appearing for the appellants further submitted that there is no evidence at all in favour of prosecution calling for conviction. 1.8 Learned Additional Public Prosecutor appearing for the respondent resisted the arguments through a fitting reply and submitted that the trial Judge was right in convicting the appellants and the appellants cannot canvas for any benefit of doubt as the prosecution has proved its case beyond all reasonable doubt. The Learned Additional Public Prosecutor relying heavily on the decision of the Trial Court took us through the various parts of the evidence of prosecution witnesses and canvassed for upholding the conviction. The factual background of the case needs to be noted before deciding the point. 2.0 Facts:- 2.1 It is stated that A1 and A2 are friends being involved in selling illicit arrack and in fact it is their profession. According to the prosecution, the deceased and the first accused are not in cordial relations due to money matter. 2.2 The further case of the prosecution is that on 3.7.1999 at about 5.00 p.m., the deceased went to the arrack shop of the first accused and consumed arrack on credit despite protest by the first accused, and the accused got annoyed and they have decided to murder the deceased and accordingly, both of them followed the deceased upto Kollidam river near Sathanur Vetti Poongavanam in Maharajapuram and they have restrained the deceased and immediately, the first accused beat the deceased on his head with Pathi Katti and the second accused took aruval from the possession of the deceased and beat him on his left hand and left leg and the deceased sustained blood injuries and met with instantaneous death. 2.3 It is also the case of the prosecution that both the accused threatened the eye-witnesses by name Salaman (P.W.5), Jeyabal (P.W. 6) and Sundarraj (P.W. 7) with dire consequences if they reveal the offence. 2.4 The further case of the prosecution is that the deceased did not return home for three days, hence, P.W.1, the son of the deceased and other relatives started searching till 7.7.1999. 2.4 The further case of the prosecution is that the deceased did not return home for three days, hence, P.W.1, the son of the deceased and other relatives started searching till 7.7.1999. They learned on 7.7.1999 that a dead body was lying under a Pungai tree on the southern bank of Kollidam and reached there and found the dead body of the deceased to be lying with injuries, hence, a report was lodged with Maruvur Police and the Police registered it under Crime No. 97 of 1999 under Section 174 Cr.P.C., commenced investigation and conducted inquest, post-mortem and observed the scene of offence, prepared rough sketch and examined the necessary witnesses. 2.5 The specific case of the prosecution is that after along lapse of time, P.W.7 came to the house of P.W.1 andinformed that A1 murdered the deceased and he witnessed the incident. 2.6 Prosecution examined 18 witnesses and marked 10 documents and 7 M.Os. The Court exhibits were marked as Exhibits-C-1, C-2 and C-3. 2.7 No defence witness is examined and no documents is marked on behalf of the defence. 3.0 Heard arguments of both sides. 4.0 The points for our determination are: (1) Whether the death is homicidee (2) Whether the accused is guilty of the offence of murdere (3) Whether the first accused has caused any hurt and indulged in criminal intimidation attracting the conviction under Sections 324 and 506 (ii) I.P.C. 5.0 Point No. 1: 5.1 P.W. 14, Dr. Vijayalakshmi, Additional Professor of Forensic Medicine, Thanjavur Medical College conducted autopsy on the dead body of the deceased. Exhibit P-13 is the Post-mortem Certificate and it was marked through P.W.14. The evidence of P,W.14 discloses that the dead body was decomposed and the dead body is found bloated. About the injuries, she testified that she found 4 injuries and they are lacerated wounds on the middle of forehead, forsum of left hand below the left little finger, bone deep seen over the front of middle of left leg with evidence of contusion noticed underneath. Lacerated wound with evidence of contusion noticed along with post-mortem animal bite over the left heel exposing the partially animal bitten caleaneum and talus. So also, found a number of animal bites marked on the dead body of the deceased. Lacerated wound with evidence of contusion noticed along with post-mortem animal bite over the left heel exposing the partially animal bitten caleaneum and talus. So also, found a number of animal bites marked on the dead body of the deceased. 5.2 The evidence of P.W.14 further disclose that the deceased appears to have died due to head injury and the death would have occurred 3 to 5 days‘ prior to post-mortem examination. Her evidence is fully corroborated with the contents of Exhibit P-13. 5.3 Further Exhibit P-17 the inquest report contains that the cause of the death is homicide. 5.4 Thus, on appreciation of the evidence of P.W. 14, the contents of Exhibits P-3 and 17, we hold that the death of the deceased is homicide. 6.0 Point No. 2 6.1 The case of the prosecution is that the accused is selling illicit arrack and the deceased used to consume arrack from the arrack shop of the accused without paying money and thereby both the appellants decided to kill him and in furtherance of their common object, the appellants followed the deceased on the date of offence upto Kollidam river and the first accused beat him on his head with a stout stick and the second accused took out “Aruval” and beat the deceased on the left hand and on the left leg and the deceased sustained blood injuries and died on the spot due to the head injury and this was witnessed by PWs. 5, 6 and 7 and the appellants threatened the witnesses and instructed them to maintain silence. 6.2 P.Ws. 5, 6 and 7 did not support the case of prosecution. They are hostile witnesses to the prosecution. 6.3 P.W. 5 deposed that on the date of the incident, he went to the Kollidam river where the first accused was selling illicit arrack and the deceased also came there to consume the arrack and demanded the first accused to give arrack for Rs. 5/- on credit and the first accused refused, again the deceased demanded A1 to give arrack on credit and the first accused refused to give. 6.4 P.W.5 did not depose anything with regard to any quarrel between the accused and the deceased or the accused following the deceased upto the scene of occurrence and killing him. P.W.5 categorically stated that as it became 6.00 p.m. and the darkness was setting in, he returned home. 6.4 P.W.5 did not depose anything with regard to any quarrel between the accused and the deceased or the accused following the deceased upto the scene of occurrence and killing him. P.W.5 categorically stated that as it became 6.00 p.m. and the darkness was setting in, he returned home. Since he did not narrate the actual incident of beating the deceased or restraining the deceased, he was treated hostile but nothing useful was elicited by the prosecution to prove their case. 6.5 P.W.6 is a total hostile witness. He did not testify anything with regard to any fact of the incident. 6.6 While so, P.W.7 supported the case. He deposed that on 3.7.1999 at 6.00 p.m, he went to consume illicit arrack from the first accused where he found P.Ws. 5, 6 and the deceased. He further deposed that he consumed arrack and the deceased also consumed arrack by paying Rs. 5/- and thereafter he asked the first accused to give some more arrack on credit and the first accused refused and there was a wordy quarrel between the deceased and the first accused. 6.7 P.W.7 further deposed that at that time, A1 gave a blow on the head of the deceased with stick and the deceased fell down. He further deposed that the first accused threatened him and other witnesses not to disclose the incident and hence he ran away along with other, if this part of the evidence of P.W.7 is accepted, the incident occurred at the place where A1 was selling arrack and the accused followed the deceased upto a tree and beat him. Thus, there is total inconsistency in the evidence. The clean case of the prosecution is that A1 and A2 followed the deceased and beat him under a tree on the southern bank of Kollidam river. According to P.W.5, A1 was selling arrack at middle portion of Kollidam river whereas P.W.7 deposed that A1 was selling on the Kollidam where the entire incident occurred. P.W.7 did not testify that the accused followed the deceased upto the tree from the place of their arrack shop and beat the deceased near the tree. Thus, there is complete discrepancy. 6.8 Further, the evidence of P.W.7 is silent with regard to the presence or participation of A2. In fact, he deposed that A2 was not present at the time of the incident. Thus, there is complete discrepancy. 6.8 Further, the evidence of P.W.7 is silent with regard to the presence or participation of A2. In fact, he deposed that A2 was not present at the time of the incident. yet, the investigation agency has chosen to file a case against A2 and the Trial Court has blindly accepted the same without any legal evidence. 6.9 As can be seen from the facts of the case, we hold that the evidence of P.W. 7 about witnessing the incident on 3.7.1999 is most doubtful for the following reasons: (a) He did not reveal the fact of witnessing the incident to anyone either on 3.7.1999 or till 31.7.1999. He maintained total silence for 28 days. Further, he deposed that upto 7.7.1999 he was also searching along with other villagers for the deceased and finally found the dead body under a Pungai tree on the southern bank of Kollidam. If it is true that he found A1 beating the deceased with a stick on the head of the deceased and the deceased died on receiving the said injury; it is absurd that he was searching for the deceased along with other villagers. In a normal course, he is expected to reveal that the dead body would be on the southern bank of Kollidam where A1 was selling illicit arrack even by maintaining silence about the actual incident due to fear. While so, the evidence of P.Ws.1 and 2 disclose that they, along with P.Ws. 3 and 4 were searching for the deceased from 3.7.1999. They did not depose that P.W.7 was along with them searching for the deceased. Further, the case of prosecution is that on 7.7.1999, P.W.3 found the dead body under a Pungai tree and on suspicion, he told about it to P.Ws. 1 and 2 and they went there and found the dead body of the deceased. So, the presence of P.W.7 was not deposed by the witness. (b) In fact, the identity of the dead body is also in question but that fact is not seriously disputed before us. (c) In this case, the First Information Report was registered under Section 174 Cr.P.C., on the basis of complaint lodged by P.W.1 on 7.7.1999 and it was altered under Section 302 I.P.C. on 19.7.1999 on receiving the Post-mortem Certificate. (c) In this case, the First Information Report was registered under Section 174 Cr.P.C., on the basis of complaint lodged by P.W.1 on 7.7.1999 and it was altered under Section 302 I.P.C. on 19.7.1999 on receiving the Post-mortem Certificate. Till then P.W.7 was not examined by the Police and P.W.7 did not reveal about the incident. The three direct witnesses P.Ws. 5, 6 and 7 were not examined at the time of inquest. Their names were not mentioned in the first report as eye-witnesses. They are introduced as eye-witnesses only after 31.7.1999 i. e. 28 days after incident. During trial P.Ws.5 and 6 did not support the case of the prosecution whereas P.W. 7 alone supported the case of the prosecution. (d) The learned Sessions Judge discussed these facts at para 10 of the judgment. The learned Sessions Judge observed that the evidence of solitary witness could be relied upon. There is no dispute about it. The evidence of such solitary witness must be truthful. Witness: (i) Material witness is essentially to unfolding story on which the prosecution is based. The prosecution is not bound to produce all the witnesses but the material witness considered necessary for proving the prosecution story alone need be produced. (ii) In the instant case, the material witnesses are P.Ws. 5 to 7. The eye-witnesses P.Ws.5 and 6 did not support the case of the prosecution. Therefore the entire case of prosecution depends on the testimony of P.W.7 alone as a sole witness. (iii) Witnesses are three types. They are- (i) reliable; (ii) unreliable; and (iii) partly reliable and partly unreliable. In the first case, there need not be any corroboration. In the second case, there is no necessity to search for any corroboration. Such witness is unreliable. Only in the third case, scrutiny and the corroboration is required. 6.10 In the instant case, we hold that P.W.7 is totally unreliable witness. He did not reveal the fact of incident either soon after the incident or during search or till 7.7.1999 on which date the case had been registered. There was no reason for him to search for the deceased. In fact, P.Ws. 1 to 4 eliminated the presence of P.W.7 during search. He did not reveal the fact of incident either soon after the incident or during search or till 7.7.1999 on which date the case had been registered. There was no reason for him to search for the deceased. In fact, P.Ws. 1 to 4 eliminated the presence of P.W.7 during search. 6.11 Further, if is a fact that he along with P.Ws.1 to 4 and other villagers searched for the deceased and found the dead body of the deceased, he is expected to reveal the fact of his witnessing the incident even by not disclosing the name or the names of assailants. He did not do so. While so, he revealed it after 28 days. God alone knows the reason for P.W.7 going to the house of P.W.1 after 28 days on his own and revealing that he witnessed the incident. How he was able to gather courage after 28 days is not explained. His name was not mentioned in the First Information Report as one of the direct witnesses. He was not examined at the time of inquest. He was not examined till 31.7.1999. So, for the first time, P.W.7, designated himself as a direct witness after 28 days. According to P.W.7, the accused and the deceased are not strangers to him. They are known to each other. He is neither friend of the accused nor the deceased and he has no enmity with anyone. In Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773 : (1973) 2 SCC 808 : It was observed that if a witness professes to know about grave incriminating fact against a person accused of the offence of the murder, the witness keeping silent for over a month is unnatural. Regarding the said fact, his evidence in the absence of any cogent reason is bound to lose its value. In the said case, the witness did not disclose about the fact to the Investigating Officer for a month and hence, the Hon‘ble Supreme Court disbelieved the evidence of such witness. In State of Orissa v. Brahmananda (1) AIR 1976 SC 2488 : (1976) 4 SCC 288 . In the said case, the witness did not disclose about the fact to the Investigating Officer for a month and hence, the Hon‘ble Supreme Court disbelieved the evidence of such witness. In State of Orissa v. Brahmananda (1) AIR 1976 SC 2488 : (1976) 4 SCC 288 . It has been categorically held by the Hon‘ble Apex Court that the accused are known to the witness and the witness saw the muderous assault on the deceased but the witness did not reveal the name of the assailant for a day and half and the explanation sought to be given on behalf of the prosecution is she did not disclose the names on account of fear, is doubtful evidence. The Hon‘ble Supreme Court held that there could be no question of any fear and it is difficult to believe that such witness should not have disclosed the names of the accused to Police after awaiting for such time. Therefore, there is a serious infirmity which destroys the credibility of the evidence of such direct witness. In Mahadeo and Others v. State of Maharashtra AIR 1980 SC 102 : (1980) 1 SCC 490 : The Hon‘ble Apex Court held that the witness kept quiet for long time, did not disclose the incident to anybody and the excuse put forward is he was threatened by the accused person not to disclose what he had seen. The Supreme Court held that it is unsafe to base his conviction on such evidence. The evidence of such witness was rejected. In Hazari Lal v. State (Delhi Admn.) AIR 1980 SC 873 : (1980) 2 SCC 390 : The Hon‘ble Apex Court held that the witness does not disclose the important fact to the Police or to the prosecution party in spite of presenting himself during investigation. He kept mum for long time. The evidence of such witness is not worthy of credence. In Kethar Singh and Others v. State (Delhi Admn.) AIR 1988 SC 1883 : (1988) 3 SCC 609 : It was observed that when a witness did not give any statement for 20 days after the incident and there was no cogent explanation except saying fear, it clearly shows that he was a convenient witness for the prosecution. In Kethar Singh and Others v. State (Delhi Admn.) AIR 1988 SC 1883 : (1988) 3 SCC 609 : It was observed that when a witness did not give any statement for 20 days after the incident and there was no cogent explanation except saying fear, it clearly shows that he was a convenient witness for the prosecution. It is well settled that such delay is very dangerous and if a person who is an important witness, does not open his mouth for long time, his evidence is always looked with suspicion and no reliance can be placed. 6.12 It is needless to say that on the merits as well as by following the decision of Apex Court the evidence of P.W.7 is doubtful and is highly artificial and does not fit in with human probabilities and does not reveal the truth. It is with twisted and exaggerated version leading to reasonable doubt and it is liable to be rejected. 6.13 Solitary evidence: (a) The learned Sessions Judge observed that the evidence of single witness is acceptable and so saying accepted the evidence of P.W.7 for the purpose of conviction. (b) It is true that there is no impediment in law in a conviction being based on the testimony of a sole witness, provided the Court comes to the conclusion that his evidence is honest and trustworthy. (c) Undoubtedly, conviction will sustain on sterling testimony of a competent witness, though as a rule of prudence, the Court of law calls for corroboration. (d) We are fully conscious that the evidence of witness is to be weighed and not counted since quality matters more than quantity in so many affairs. In Badri v. State of Rajasthan AIR 1976 SC 560 : (1976) 1 SCC 442 : It has been held by the Apex Court that if a witness, who is the only witness against the accused to prove a serious charge of murder and modulate the evidence of such sole witness to suit a particular prosecution theory for deliberate purpose of securing the conviction, such a witness cannot be considered as reliable person and no conviction can be based on his sole testimony. The evidence of the single witness was discarded in the above case. The evidence of the single witness was discarded in the above case. (e) When the entire case is depending on the sole testimony of P.W.7 it should be reliable and acceptable to a reasonable mind and corroboration is not a rule of law but one of caution as an assurance to tell that the evidence of P.W.7 is not doubtful. In this case, there is no corroboration to the evidence of P.W.7 either from the evidence of P.Ws. 5 or 6, who are said to be direct witnesses or from any other witness except the confession and recovery under Section 27, which itself is quite artificial. (f) Solong as the single witness is only reliable witness, the Courts have no difficulty in basing conviction on his testimony but when the evidence of P.W.7 is wholly unreliable, it is unsafe to confirm the conviction. In Sadhu Ram and Another v. State of Rajasthan AIR 2003 SC 3530 : 2003 Crl. L.J. 2331: The Hon‘ble Supreme Court of India observed that it is no doubt true that the conviction may be based solely on the testimony of a solitary witness. However, in such a case, the Court must be satisfied that implict reliance can be placed on the testimony of such a witness that his testimony is so free of blemish that it can be acted upon without insisting upon corroboration. The testimony of the witness must be one which inspire confidence and leaves no doubt in the mind of the Court about the truthfulness of the witness. (g) In the instant case, we have every reason to believe that P.W.7 has not witnessed the incident and he was set up 28 days after the incident to strengthen the case of the prosecution. His evidence is not inspiring any confidence. Hence, we reject his evidence in toto as there is no corroboration to the evidence of P.W.7. 6.14 Confession: Under Section 24 of the Indian Evidence Act, any confession made by an accused person is irrelevant in criminal proceedings if the making of the confession appears to the Court to have been caused by inducement, threat or promise. Further, Section 25 of the Indian Evidence Act clarifies that a confession made to a Police Officer shall not be proved as against a person accused of any offence. Further, Section 25 of the Indian Evidence Act clarifies that a confession made to a Police Officer shall not be proved as against a person accused of any offence. In the instant case, the prosecution relied on Section 27 of the Indian Evidence Act to prove discovery of a fact on the basis of confession made by the accused before the mediators in presence of the Police Officer. The Trial Court relied on the evidence of P.W.9 and observed that the Police are enquiring the accused and the accused gave a voluntary confession. It is specifically stated that the second accused made a statement. It is marked as Exhibit P-4 In pursuance of admissible portion, M.O.6 Aruval has been recovered from Maharajapuram Parisal Thurai and the same was concealed in a bush nearby and handed over the same to the Inspector. Admittedly, the place of recovery of M.O.6 is an open place and accessible to all and the said place is not in the exclusive custody or control of A2 alone. Though it is stated that it was recovered from the bush, the fact of people moving in the area was not eliminated. According to P.W.9, the Police questioned A2, by the time, he went from there. Therefore, the so called confession is not even in his presence. The other mediators did not support the case of the prosecution with uncorroborated evidence supported by one mediator, supported by the Investigating Officer is not sufficient to connect the accused with the second accused. More so, P.W.7, the eye-witness is eliminating the presence of A2 at the time of offence. So also the prosecution relied on the confession of A1 before Police Officer and recovery of MO.7 the stout stick. PW.11 is the witness in this. In this case, the offence occurred on 3.7.1999 whereas the alleged confessions and the recoveries of A2 is on 5.8.1999 and that is after setting up PWs. 5 to 7 as direct witnesses and the recoveries at the instance of A1 is on 11.2.2000, and the long delay is not explained. For the foregoing reasons we are not prepared to accept the evidence of recovery. In the instant case, the prosecution also relied on the recovery of the weapon. The Trial Court convicted the second accused on the basis of the confession before Police. We have no hesitation to record our displeasure about it. For the foregoing reasons we are not prepared to accept the evidence of recovery. In the instant case, the prosecution also relied on the recovery of the weapon. The Trial Court convicted the second accused on the basis of the confession before Police. We have no hesitation to record our displeasure about it. 6.15 Statement of accused under Section 313 Cr. P. C.: (i) Further, the Trial Court relied on the statement of the second accused recorded under Section 313 Cr.P.C. It is observed in paras 12, 13 and 14 of the judgment that the second accused has admitted the evidence of PW.7 about the quarrel between the first accused and the deceased. (ii) Accepting the admission of the second accused in his statement under Section 313 Cr.P.C., the Court below observed that the second accused could not have admitted this fact during his questioning under Section 313 Cr.P.C., if he was not present at the scene of occurrence personally. Having stated so, the Trial Court convicted the second accused, who is also the appellant before us. (iii) We are totally unhappy on the approach of the Trial Court. Section 313 Cr.P.C. is reproduced: “ 313 Power to examine the accused:- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him. (4) The answers given by the accused may be taken into consideration in such inquiry of 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.” (iv) A plain reading of the sub-section (1) of Section 313 Cr.P.C., clarifies that for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him, he will be asked to explain. (emphasis supplied) (v) The very object of the Section is to enable the accused to explain any circumstance appearing in the evidence against him and it is with an intention to give an opportunity to explain him the circumstances appearing against him. Where there is no incriminating circumstances appearing against him in the evidence, he is not expected to explain as such there should not be any question under Section 313 Cr.P.C., calling him to explain such circumstances which is not against him. Where there is no incriminating circumstances appearing against him in the evidence, he is not expected to explain as such there should not be any question under Section 313 Cr.P.C., calling him to explain such circumstances which is not against him. (vi) In this case, the evidence of P.W.7 categorically and clearly discloses that A2 was not present at the time of the incident. When P.W.7 has stated that A2 was not present during the murderous assault and there is no other evidence that A2 participated in the crime, the learned Sessions Judge is not expected to put a question about the evidence of P.W.7 to the second accused inviting any sort of answer. (vii) The perusal of the record discloses the statement of the second accused under Section 313 Cr.P.C. was mechanically prepared and it is the true copy of the statement prepared for the first accused. Therefore, the Trial Court, without applying its mind prepared statement with original and copy used them for A1 and A2 mechanically ignoring the very object of Section 313 Cr.P.C. In the instant case, the learned Sessions Judge prepared as many as 80 questions in the statement of the accused. The same questions are repeated for A1 and A2 in verbatim. It is nothing but questioning in a stereotyped manner. In our considered opinion this procedure should be stopped forthwith. Apart from that the perusal of the statement discloses that the examination of the accused is done under Section 281 of the Cr.P.C., Section 281 of the Cr.P.C. is a provision speaking the procedure for the record of the examination of the accused and this Section is incorporated in Chapter 23 of the Cr.P.C., dealing with the procedure in enquires, evidence and trials and mode of taking and recording evidence. Sections 272 to 280 Cr.P.C., deals with recording the evidence of witnesses and Section 281 deals with the mode of recording of examination of the accused. While so, Section 313 Cr.P.C., deals with the right of the Court to examine the accused with an opportunity to him to personally explain any circumstance appearing in the evidence against him. Section 315 Cr.P.C., clarifies that the accused person is a competent witness and he can give evidence on oath. While so, Section 313 Cr.P.C., deals with the right of the Court to examine the accused with an opportunity to him to personally explain any circumstance appearing in the evidence against him. Section 315 Cr.P.C., clarifies that the accused person is a competent witness and he can give evidence on oath. Therefore, in our considered opinion, the relevant Section to be applied in the criminal trial for examination of the accused is Section 313 Cr.P.C., Section 281 Cr.P.C. only deals with the procedure for recording the examination of the accused and it clarifies that the memorandum of substance of the examination of the accused in the language of the Court shall be made by the Court and all the provisions in Section 281 only deals with the procedure to be adopted by the Court while recording the examination of the accused whereas Section 313 Cr.P.C., says that the accused shall be examined after the examination of the prosecution witnesses. It is brought to our notice by both sides that the Trial Courts in the State of Tamil Nadu are mentioning only Section 281 Cr.P.C., instead of Section 313 Cr.P.C. It may not be a serious illegality or irregularity but it is advisable that the Court should follow the provisions in their strict sense. The statement of accused is popularly known as statement under Section 313 Cr.P.C. Hence, we are directing the Registry of this Court to place all this information more so about mechanical examination of accused before My Lord, the Hon‘ble the Chief Justice of this Court for consideration and if necessary to issue suitable circular instructions to the Trial Courts to strictly adhere to the provisions of law and stop discharging their duties like machines without applying judicial mind and not to entrust such functions to the judicial staff of the Court. With a heavy heart, we are making the above observation with an intention to rectify the minor mistakes during the criminal trials, which may lead to (sic) consequences in serious crimes and for better administration of criminal justice. With a heavy heart, we are making the above observation with an intention to rectify the minor mistakes during the criminal trials, which may lead to (sic) consequences in serious crimes and for better administration of criminal justice. Section 313 Cr.P.C., provides not only the accused an opportunity to explain the circumstances appearing against him but also the Court will have an opportunity to hear the accused free from fear and the Court is expected to elicit such explanation without making him an embarrassment admission, allowing him to make any statement meant to fill up the lacunae in the prosecution case. (viii) Questioning by the Court must inspire the confidence in the accused that the question is meant for his benefit and not for the benefit of the prosecution. The very purpose of the examination of the accused is only to elicit his explanation in regard to circumstances appearing against him and nothing more than and the duty is cast upon the Court to see to it that this purpose is achieved and that examination of accused is not reduced to a mere formality. The settled position of law is that the examination of accused in a criminal trial is not mere formality but it is mandatory and it should be confined only to those circumstances appearing in substantial evidence which may sought to be explained. (ix) Sub-section 4 to Section 313 Cr.P.C., says the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against him, such answers may not show that he has committed the offence. The plain reading of the entire Section 313 Cr.P.C., clarifies that the Court is under obligation to elicit an answer from the accused on any circumstances appearing against him in the evidence. Thus, there is an embargo on the Court to elicit particular answer from the accused and when there is no circumstance appearing in the evidence against such accused. Therefore, the sub-section (4) to Section 313 Cr.P.C., will not come to the rescue of the Trial Court or to the prosecution agency in this case. Apart from that, such answer given by such accused can be used when the answer is to prove that he has committed the offence. In this case, A2 did not give any such answer. Therefore, the sub-section (4) to Section 313 Cr.P.C., will not come to the rescue of the Trial Court or to the prosecution agency in this case. Apart from that, such answer given by such accused can be used when the answer is to prove that he has committed the offence. In this case, A2 did not give any such answer. Even if it is accepted that he admitted the presence of P.W.7 at the scene of offence, there is no admission or confession from A2 that he has committed the offence, Thus, even sub-section (4) cannot be pressed into service. In Banamali Samal v. State of Orissa AIR 1979 SC 1414 : (1979) 3 SCC 408. It has been clearly stated that the accused cannot be convicted on the basis of his answers given under Section 313 Cr.P.C., unless the accused is making a direct admission of guilt. In Ganeshmal Jashraj v. Government of Gujarat AIR 1980 SC 264 : (1980) 1 SCC 363 . It is further held that in the process of plea of bargaining, if the accused admits any fact in his statement under Section 313 Cr.P.C., the same cannot be taken into consideration for convicting the accused as it is not an evidence of prosecution. Thus, the statement under Section 313 Cr.P.C., made by the accused cannot be a basis for conviction nor it can substitute the failure of the prosecution to prove the case of prosecution. (x) By mere questioning the accused under Section 313 Cr.P.C., on some evidence not connecting him and the answer elicited thereon cannot be used as evidence against any of the accused. (xi) It is for the prosecution to prove the guilt by reliable and dependable evidence that the accused is responsible for the death of the deceased. No conviction can sustain on the statement of the accused under Section 313 Cr.P.C. The fact which has not appeared from the evidence of any witness cannot be put as a question to the accused under Section 313 Cr.P.C. In the absence of any evidence, the accused cannot be questioned on such fact. (xii) In the instant case, the evidence of P.W.7 which is eliminating the presence of A2, but the Trial Court has chosen to question A2 with regard to the evidence of P.W.7 and elicited an answer from the accused and relied on the same and convicted A2. (xii) In the instant case, the evidence of P.W.7 which is eliminating the presence of A2, but the Trial Court has chosen to question A2 with regard to the evidence of P.W.7 and elicited an answer from the accused and relied on the same and convicted A2. 6.16 There is no evidence establishing the case of prosecution. The witnesses examined to prove the fact of murder did not support the case of the prosecution. The two eye-witnesses P.W.5 and P.W.6 arehostile to prosecution. The evidence of PW.7 is untrustworthy and unreliable. The confession before Police is not admissible and the doubtful recovery of weapon is itself not sufficient to hold the accused guilty. Convicting the accused on the basis of their answers under Section 313 Cr.P.C. examination is bad in law. Decision: For the foregoing reasons, we hold that there is no evidence to prove that the accused is guilty of the offence of murder. 7.0 Point No. 3: 7.1 There is no evidence that the first accused has caused any hurt on the deceased. So also, there is no evidence that he indulged in criminal intimidation. 7.2 Thus, the conviction of the appellants under Section 302 I.P.C., so also the conviction of A1 under Sections 324 and 506 is not supported by any legal evidence and they are entitled for acquittal. In the result: (a) Both the appeals are allowed and the conviction and sentence imposed on the appellants by the learned II-Additional Sessions Judge (PCR Court), Thanjavur in S.C. No. 48 of 2001 dated 2.8.2001 are set aside. (b) It is represented that the appellant in Crl.A.No. 122 of 2002 in on bail. The bail bonds executed by him shall stand terminated forthwith. (c) The appellant in Crl.A.No.848 of 2001 is in jail. He is directed to be released forthwith, unless his presence is required in connection with any other case. Appeals allowed.