Judgment : Per T. SUDANTHIRAM, J. 1. All the appellants are the accused in S.C.No.104 of 2003 on the file of the learned Additional District and Sessions Judge cum Fast Track Court No.III, Madurai. The appellants who are A-1 to A5, are found guilty by the Trial Court and are convicted and sentenced as under: The learned Trial Judge ordered the sentences to run concurrently. 2. The case of the prosecution in brief is that on 2.5.2002 at about 5.30 a.m., due to previous enmity with the deceased, A-5 instigating the other accused, armed with weapons, attacked and cut the deceased indiscriminately and caused the instantaneous death of the deceased. 3. The evidence let in by the prosecution in brief is as follows: (a)P.W.1-Karuppiah, is the resident of N.M.R.Puram. He is the father of the deceased. He had deposed that the deceased was running a tea shop. He also stated that he knows the accused and one Palanikumar. One Ambalam Pandi, Ramesh and Alagar used to have tea in the deceased shop regularly. The deceased advised Ramesh not to have friendship with the said Palanikumar as his conduct was not good. So, the said Ramesh, Alagarpandi and M.L.A.Pandi attacked A-5. So, there arose the enmity between the deceased and the said Palanikumar. On 2.5.2002, at about 5.30 a.m., when the deceased was in his shop and P.W.1 along with his sister-in-laws son was drinking tea, A5 along with the accused Palanikumar and the other accused persons, armed with weapons came to the shop. He instigated the other accused to do away the deceased by saying that it was the deceased who arranged to attack him on an earlier occasion. On seeing the accused with the weapons, the deceased started running away from the shop towards North. The accused chased him. The said Palanikumar cut the deceased with the knife on the left shoulder and right forehand. He also inflicted cut injury on the vertex of the deceased and on the chest three times. A-1 attacked the deceased with an knife on the right side of the neck and on right forehand. He also attacked the deceased on his chest. A-2 attacked the deceased on the lower part of the left side of the neck and also on the left arm and the elbow. A-1 attacked the deceased with an knife on the right side of the neck and on right forehand. He also attacked the deceased on his chest. A-2 attacked the deceased on the lower part of the left side of the neck and also on the left arm and the elbow. A-3 attacked the deceased at the middle of the back and again inflicted four cut injuries on the left shoulder of the deceased. A-4 attacked the deceased at his right arm four times. He also cut at the upper portion of the right elbow with the knife. He also cut at the back of the deceased with the knife. A-5 inflicted cut injuries at the right thigh. When P.W.1 and others raised alarm, people started gathering there. The accused threatened the public that if they try to catch them, they would also face the same consequence. Then the accused fled away from the scene of occurrence. P.W.1 and his sister-in-laws son went to the Police Station and gave a complaint. The Sub Inspector of Police recorded their statement and obtained their signatures. Ex.P.1 is the complaint given by P.W.1. (b)P.W.2 is the resident of Viraganoor and was running a tea shop. He had deposed that the deceased is his uncles son. He also stated that he knows the accused and the said Palanikumar. He had deposed about the occurrence in the same manner as spoken by P.W.1. P.W.2 was treated hostile by the prosecution since he had not given some particulars on specific overt acts. (c)P.W.3 is the resident of N.M.R.Puram. He had deposed that on 2.5.2002 at 5.45 a.m., the accused 1 to 5 came to the tea shop and attacked the deceased. He was also treated hostile by prosecution since he had not stated about the specific overt act of each accused. (d)P.W.4 is also the resident of N.M.R. Puram. He is the elder brother of the deceased. He had deposed that he knows the accused as well the Palanikumar. On the date of occurrence, i. e., 2.5.2002, at about 5.15 a.m., P.W.4 went to take water. At that time, the deceased as well as P.Ws.1 and 2 and others were present at the scene of occurrence. At that time, the said Palanikumar along with the accused persons came there. A-5 told that it was the deceased because of whom he was attacked on an earlier occasion. At that time, the deceased as well as P.Ws.1 and 2 and others were present at the scene of occurrence. At that time, the said Palanikumar along with the accused persons came there. A-5 told that it was the deceased because of whom he was attacked on an earlier occasion. He also instigated other accused to attack the deceased. On seeing them, the deceased ran towards North and the accused chased him. All the accused attacked the deceased with knives indiscriminately. When crowd gathered, the accused threatened them that they will also meet the same consequence if they witness the occurrence. All of them went inside and locked their houses. The accused ran away from the scene of occurrence in an auto. When P.W.4 went to the scene of crime, he saw the deceased lying dead in a pool of blood. P.Ws.1 and 2 went to the Police Station and gave a complaint. He was also treated hostile by the prosecution as he had not stated the specific overt acts of each accused. (e)P.W.5 who is also the resident of N.M.R.Puram had deposed that on 2.5.2002 at 5.00 a.m., six persons came in an auto near the tea shop. They were accused 1 to 5 and Palanikumar. As the accused drew the knife, the deceased started running. The accused chased and surrounded the deceased at the next lane and cut the deceased. The deceased died on the spot. P.W.5 was also treated hostile by the prosecution. (f)P.W.14, who was the Sub Inspector of Police of Thepakulam Police Station during the relevant period had deposed that on 2.5.2002, at 6.15 a.m., while he was in duty, P.W.1 along with P.W.2 came to the Police Station and gave a statement, on the basis of which a case came to be registered in Crime No.315 of 2002 under sections 147, 148, 341, 302, 506(2) I.P.C. He sent the printed First Information Report, Ex.P.14 to the Court concerned and also forwarded the copies of the First Information Report to the higher officials. (g)P.W.31, was the Inspector of Police (Law and Order) during the relevant period. On receiving the copy of the First Information Report in Crime No.315 of 2002, he went to the scene of occurrence at 7.15 a.m., and prepared Ex.P.2-the Observation Mahazar and Ex.P.21-the rough sketch in the presence of witnesses. (g)P.W.31, was the Inspector of Police (Law and Order) during the relevant period. On receiving the copy of the First Information Report in Crime No.315 of 2002, he went to the scene of occurrence at 7.15 a.m., and prepared Ex.P.2-the Observation Mahazar and Ex.P.21-the rough sketch in the presence of witnesses. He also recovered M.O.6-blood stained cement floor and M.O.7-ordinary cement floor under the cover of the Athakshi in the presence of the same witnesses. He also held inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.22-the Inquest Report. P.W.20, who was working as the Photographer in the Police Department, was summoned to take photographs at the scene of occurrence. P.W.21 took the photographs of the deceased and M.O.9 series is the photos and negatives series. He also examined other witnesses and recorded their statements. He sent the dead body for postmortem examination through P.W.28, Head Constable, along with a requisition. (h)P.W.16, was the Assistant Medical Officer of Madurai Rajaji Government Hospital during the relevant period. He received the dead body of the deceased along with the requisition from P.W.28 and sent the body to mortuary. P.W.18, who was working as the Professor in Madurai Rajaji Government Hospital, was on duty on 2.5.2002. He received the requisition at about 12.20 p.m. and conducted autopsy on the dead body of the deceased at 2.05 p.m. Ex.P.11 is the Postmortem Certificate wherein he found the following injuries: “ANTEMORTEMINJURIES: 1. An oblique gapping cut injury 12cm×4cm noted on front of lower part of neck 8cm below the chin. On dissection the wound found cutting the underlying muscles, vessels, nerves, wind pipe and food pipe. 2. An oblique stab injury 5cm × 2cm × entering into right thoracic cavity noted on the right side of front of chest, 2cm below the right nipple. On dissection: the wound passes obliquely downwards and backwards, piercing the underlying muscles, vessels, nerves in the 7th intercostal space, piercing the underlying pleura 4cm × linear × through and through, lower lobe of right lung 3cm × 2cm × 2cm and ends as a point. Right pleural cavity contains 150 ml of blood with clots. 3. Anoblique stab injury 4cm×2cm×entering into abdominal cavity noted on the epigastric region. Right pleural cavity contains 150 ml of blood with clots. 3. Anoblique stab injury 4cm×2cm×entering into abdominal cavity noted on the epigastric region. On dissection: the wound passes obliquely downwards, backwards, and laterally, piercing the underlying muscles, vessels, nerves and the underlying right lobe of liver 3cm × 2cm × 2cm and ends as a point. Peritoneal cavity contains 500 ml of blood with clots. 4. Anoblique stab injury 4cm×2mcxentering into thoracic cavity noted on front of left side of chest 3cm above the left nipple. On dissection: the wound passes obliquely downwards and backwards, piercing the underlying muscles, vessels, nerves in the 3rd intercostal space piercing the underlying pleura 3cm × linear × through and through, upper lobe of left lung 3cm × 2cm × 2cm × ends as a point. Left pleural cavity contains 100 ml of blood with clots. 5. Anoblique stab injury5cm×2cm×entering thoracic cavity noted on front of left side of chest, 2cm below the left nipple. On dissection: the wound passes obliquely downwards and backwards, piercing the underlying muscles, vessels, nerves in the 6th intercostal space, piercing the underlying pleurs 3cm×linearxthrough and through underlying lower lobe of left lung 2.5cm × 1cm × 1cm and ends as a point. 6. Anoblique cut injury 12 cm × 2cm × bone deep noted on the top of the vault of the skull. 7. An oblique cut injury 8cm × 1cm × bone deep noted on the right occipital region. 8. An oblique cut injury 6cm × 2mc × bone deep noted on the right parieto-temporal region. 9. Anoblique cut injury 10cm×2cm×bone deep noted on back of right shoulder. 10. Anoblique cut injury 6cm×2cm×bone deep noted on left forehead. 11. Anoblique cut injury 10cm × 2cm × bone deep noted on front of left shoulder. 12. Anoblique gapping cut injury 14 cm × 3cm × bone deep noted on back of upper 3rd of left upper arm. 13. An oblique cut injury 6cm × 2cm × muscle deep noted on outer aspect of middle of left upper arm. 14. An oblique cut injury 5cm × 3cm × bone deep noted on the back of upper 3rd of left forearm [direction below upwards]. 15. An oblique cut injury 6cm × 2cm × bone deep noted on back of left palm [direction below upwards]. 16. Cut injury 4cm × 1cm × bone deep noted on back of left wrist. 17. 14. An oblique cut injury 5cm × 3cm × bone deep noted on the back of upper 3rd of left forearm [direction below upwards]. 15. An oblique cut injury 6cm × 2cm × bone deep noted on back of left palm [direction below upwards]. 16. Cut injury 4cm × 1cm × bone deep noted on back of left wrist. 17. Cut injury 6cm × 2cm × bone deep noted on back of right elbow. 18. Cut injury 12cm×3cm×bone deep noted on back of right palm and cutting the underlying lateral three fingers [little, ring, middle] at the level of base of the fingers and three fingers are found attacked with tag of skin. Proximal part of middle finger is cut and separated and found missing. 19. Anoblique cut injury 10cm×3cm×muscle deep noted on lateral aspect of middle of right thigh. 20. Cut injury 8cm × 3cm × muscle deep noted on back of middle of right thigh. 21. An oblique stab injury 3cm × 1cm × 2cm along the muscle plane noted on left side of back of middle of chest. 22. Stabinjury 3cm × 1cm × 2cm along the muscle plane noted on back of middle of left chest. 23. Stab injury 4cm × 2cm × muscle deep along the muscle place noted on lower part of back of neck.” The doctor also opined that the deceased would appear to have died of shock and haemorrhage due to external injuries No.1 to 5 and its corresponding internal injuries and cumulative effect of all the other injuries. (i)P.W.31, the Inspector of Police continued the investigation. A special Squad under the leadership of P.W.31 was set up in which P.Ws.22, 23, 24 and one Ayyadurai, who were all working as the Sub Inspectors of Police during the relevant period, were the members of the said Squad. On 3.2.2002, at 5.30 p.m., the Investigating Officer received information that the accused Palanikumar and A-1 were hiding in the upstairs of the newly constructed building at Anupanadi Teachers Colony. So, the Squad went and surrounded the building. Apprehending arrest, the accused tried to escape from the police and jumped from the upstairs of the building due to which they sustained injuries. Both the accused Palanikumar and A-1 were arrested. So, the Squad went and surrounded the building. Apprehending arrest, the accused tried to escape from the police and jumped from the upstairs of the building due to which they sustained injuries. Both the accused Palanikumar and A-1 were arrested. The accused Palani-kumar came forward to give a confessional statement, the admissible portion of which is marked Ex.P.23, pursuant to which a blood stained shirt and an knife was recovered. Based on the statement given by A-1, the Investigating Officer recovered another blood stained shirt and knife. The material objects recovered based on the statements given by the accused Palanikumar an A-1 were seized under the cover of Athakshi, Ex.P.24. The Investigating Officer sent both the accused for treatment along with the police memos. (j)P.W.17, was the doctor attached to Madurai Rajaji Government Hospital, during the relevant period. He medically treated A-1 on 3.5.2002 at 9.45 p.m. The accused had stated to him that he sustained injuries when the police chased him, he jumped from the upstairs at about 5.30 p.m. on the same day. P.W.17 gave Ex.P.10-the Accident Register wherein he had found the following injuries” “1. Swelling and pain on the right elbow. 2. Swelling and pain on the right and left knee. 3. Incised wound found at the right side of the back of the head 2cm × 1/2cm × 1/2cm.” The doctor also opined that the injuries are simple in nature. (k)On 4.5.2002, at 6.30 a.m., the Investigating Officer arrested A-5 behind the Railway Gate near Gatelock Road, Madurai. The accused came forward to give a confessional statement in the presence of witnesses, the admissible portion of which is marked as Ex.P.25, pursuant to which the Investigating Officer recovered M.O.10-the blood stained shirt and an knife under the cover of the Athakshi, Ex.P.26. On 5.5.2002, he arrested A-4 in the presence of witnesses. A-4 came forward to give a confessional statement, the admissible portion of which is marked as Ex.P.4, pursuant to which the Investigating Officer recovered a blood stained shirt and an knife in the presence of the same witnesses under the cover of the Athakshi. Then A-4 was sent for judicial remand. A-4 came forward to give a confessional statement, the admissible portion of which is marked as Ex.P.4, pursuant to which the Investigating Officer recovered a blood stained shirt and an knife in the presence of the same witnesses under the cover of the Athakshi. Then A-4 was sent for judicial remand. On 7.5.2002, on receiving the information that the accused Palanikumar died despite treatment in the hospital, the Investigating Officer registered a case in Crime No.284 of 2002 under Section 174 I.P.C. On 13.5.2002, the Investigating Officer sent a Police Arrest Report for remand to the learned Judicial Magistrate concerned with regard to A-2 and A-3 who were arrested by the K.Pudur police with regard to the case registered in Crime No.275 of 2002 under sections 332, 307 I.P.C. On 17.5.2002, the Investigating Officer sent the material objects for chemical analysis along with a requisition, which resulted in two reports, viz., Ex.P.19-Chemical Analyst Report and Ex.P.20-Serologist Report. On 22.5.2002, P.W.31, the Investigating Officer passed Order 21 under “The Goondas Act“ and sent A-1 to the Central Prison. On the same day, he also served order 22 under “Goondas Act” to A-4. On 28.5.2002, he also served Order 24 and 25 under “Goondas Act” to A-3 and A-2. After completing the investigation, the Investigating Officer laid the final report against the accused under sections 148, 342, 302, 506(2) read with 149 and 114, I.P.C. 4. In order to prove its case, the prosecution examined 31 witnesses, marked 26 exhibits and produced 11 material objects. 5. The accused were questioned under Section 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses against them. They denied their complicity in the crime. No oral or documentary evidence had been adduced on the side on the side of the defence. 6. The learned Senior counsel S.Shan-mugavelayutham, representing A-5 in Crl. A. No.1858 of 2003. submitted that the whole trial is vitiated since on one single day, P.Ws.1 to 13 were examined and the chief examination have been recorded without the presence of counsel representing any one of the accused. Though the learned Sessions Judge had deferred the cross-examination of the witnesses P.Ws.1 to 13 for the reason that the counsel on record did not appear and therefore to nominate counsel from the Legal Aid Service. Though the learned Sessions Judge had deferred the cross-examination of the witnesses P.Ws.1 to 13 for the reason that the counsel on record did not appear and therefore to nominate counsel from the Legal Aid Service. The learned Senior Counsel relied on the decisions in Sudarsanam and Others v. State, Deputy Superintendent of Police, Ponneri Division , 1988 L.W. (Crl.) 256Gurumurthy and Another v. State , 1972 L.W.(Crl.) 149 and Thyagu @ Thyagarajan v. State , 1990 L.W. (Crl.) 326. 7. The learned Senior Counsel submitted that even on the evidence recorded, P.Ws.1 to 5 are the eyewitnesses to the occurrence. But, P.Ws.2 to 5 have been treated hostile by the prosecution. Though the evidence of the hostile witnesses can be relied upon to the extent possible, in this case as no question was put to the accused under Section 313 Cr.P.C. based on the evidence of P.Ws.2 to 5 on the incriminating circumstances and therefore, the evidence of P.Ws.2 to 5 have to be eschewed and only the evidence of the solitary witness P.W.1 who is the father of the deceased alone remains. The learned Senior Counsel also relied on the decision in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 : (1984) 4 SCC 116 and State of Maharashtra v. Sukhdev Sigh and Another , AIR 1992 SC 2100 for the purpose that in the absence of the examination of the accused under Section 313 Cr.P.C. and in the absence of opportunity being given to the accused to explain the incriminating material which are based on record, that part of the evidence should not be relied upon for conviction. It was further contended that even the evidence of P.W.1 could not be accepted since in the First Information Report he had not given the specific overt act for each of the accused. But, in the evidence he gives a detailed version with regard to the specific overt act for each of the accused and thereby, he gives evidence in such a way distributing the overt acts to all the accused. Further, P.W.1 who was standing in front of the tea shop could not have witnessed the occurrence which had taken place inside the lane on the Northern side of the shop. 8. Further, P.W.1 who was standing in front of the tea shop could not have witnessed the occurrence which had taken place inside the lane on the Northern side of the shop. 8. The learned Senior Counsel further pointed out that though P.W.1 has given evidence against A-5 also in the chief examination, in the cross-examination, P.W.1 had admitted that he did not know A-5 and there was no enmity between the deceased and A-5 and further admitted that he had deposed against A-5 only as per the instructions given by the police. On the basis of the admission by P.W.1 in the cross-examination, the learned Senior Counsel strenuously contended that benefit of doubt should be given to A-5. 9. The learned counsel appearing for A-1 submitted that the overt act attributed to A-1 in Ex.P.1 is that A-1 attacked the deceased on the head whereas in the evidence of P.W.1, it is stated that A-1 attacked the deceased on his neck and it is the vital contradiction which affects the version of P.W.1. It was further pointed out that the Investigating Officer had admitted that the name of the deceased was in the Rowdy list and as such, there were several enemies to the deceased. 10. The learned counsel for A-2 submitted that the overt act attributed by P.W.1 in respect of A-2 was not given during his examination by the police. It was also pointed out that in the chief examination though P.W.1 had stated that he was in the tea shop, in the cross-examination, he had stated that he was in the house. 11. The learned counsel for A-3 submitted that the evidence of P.W.1 with regard to the attack by A-3 on the deceased is not corroborated by the evidence of P.Ws.2 to 5. 12. The learned counsel appearing for A-4 submitted that the distance between the place of occurrence and the tea shop was 30 feet and as such, P.W.1 could not have seen the occurrence at all and further submitted that no specific overt act was attributed to A-4 in Ex.P.1. 13. The learned Additional Public Prosecutor was heard. 12. The learned counsel appearing for A-4 submitted that the distance between the place of occurrence and the tea shop was 30 feet and as such, P.W.1 could not have seen the occurrence at all and further submitted that no specific overt act was attributed to A-4 in Ex.P.1. 13. The learned Additional Public Prosecutor was heard. The learned Additional Public Prosecutor submitted that the evidence of P.W.1 is unassailable and further pointed out that the occurrence is said to have been taken place at 5.45 a.m. and the First Information Report was given to the police at 6.15 a.m. itself and it had reached the Court concerned at 11.00 a.m. Though P.Ws.2 to 5 have been treated hostile, the major portion of the evidence given in the chief examination implicates the accused. The evidence of P.Ws.2 to 5 speaks about the presence of all the accused and attack on the deceased. Even though the Trial Court had failed to question the accused with regard to the evidence given by P.Ws.2 to 5, their evidence can be taken as corroboration to the evidence of P.W.1. Even otherwise, the evidence of P.W.9 is to the effect that immediately after the occurrence, the accused were seen with the blood stained knives near the scene of occurrence and therefore, the evidence of P.W.1 corroborates with the evidence of P.W.1. 14. The learned Additional Public Prosecutor also submitted that on the date of framing charges against the accused, all the accused were represented by private counsel and thereafter, the date of trial was fixed. Deliberately, to avoid the trial, neither the counsel for the accused appeared nor application for adjournment stating the reason for the absence of the counsel was filed. Only on that circumstances, as the witnesses were present before the Trial Court, they were examined, but sufficient time was given to the accused to cross examine the witnesses. Though the learned Judge sent applications to arrange for the Legal Aid Service counsel, subsequently, the accused had been represented only by the very same private counsel and the witnesses have been examined at length. 15. We have gone through all the evidence and materials available in this case and carefully considered the rival submissions made by both parties. 16. On perusal of the evidence,it is found that P.Ws.1 to 13 have been examined on 23.4.2003. 15. We have gone through all the evidence and materials available in this case and carefully considered the rival submissions made by both parties. 16. On perusal of the evidence,it is found that P.Ws.1 to 13 have been examined on 23.4.2003. but, none of those witnesses have been cross examined. The learned Sessions Judge himself had deferred the cross-examination after recording the chief examination. Subsequently, on 8.5.2003, P.Ws.1, 2, 9 to 12 have been cross examined and on 21.5.2003, P.Ws.3 to 8 and 13 were cross examined. Section 304, Cr.P.C., reads as follows: “ 304: LEGAL AID TO ACCUSED AT STATE EXPENSE IN CERTAIN CASES: Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.” In this case, the private counsel were already engaged by the defence; but they did not appear before the Court and subsequently, the private counsel appeared and cross examined the witnesses. Under the circumstances, it is to be seen whether any prejudice is caused to the accused and whether the whole trial is vitiated. 17. In Gurumurthy and Another v. State , (supra) it is observed that: “…. It is no doubt, seen from the provisions of Rule 166 that a counsel has to be appointed for the purpose of defending an accused who has not engaged a pleader and is not possessed of sufficient means to be defended: but then the significance of the further condition that “the charge against him must be such that a capital sentence is possible” should not be lost sight of. It appears to us clear that the object underlying the rule is two fold, namely, (1) to make provision for the defence of the accused and (2) also to provide legal assistance to Courts in grave cases of crime like murder and treason where facts and law are likely to be intricate and complicated. It must be remembered that the State counsel appointed under Rule 166 is generally known as “ amicus curiae”. The term “ amicus curiae” literally means a friend of the Court. (Vide Pueblods Taos v. Archuleta (1) The Corpus Juris Secundum Vol.3-page 104). It must be remembered that the State counsel appointed under Rule 166 is generally known as “ amicus curiae”. The term “ amicus curiae” literally means a friend of the Court. (Vide Pueblods Taos v. Archuleta (1) The Corpus Juris Secundum Vol.3-page 104). In that book, “ amicus curiae” is defined as one who is not a party to the proceedings, but who advises or informs the Court or one who is allowed to appear to protect an interest he represents. The terms is defined in Ramamurthi Iyer, Law Lexicon Vol.1(at page 62) as a member of the bar or other standards who helps the Court in removing the doubtful or mistaken view of any fact or decided case. A State counsel is admittedly appointed by the State for the purpose of defending the accused; and it is therefore open to the accused to say that he does not desire to be defended by that State counsel. In which case the counsel cannot obviously continue to represent the accused any more and cannot cross-examine the witnesses on his behalf and cannot make any submissions on his behalf; but his appointment is not thereby terminated and he does not cease to function any more. He has still the duty, as “ amicus curiae”, to assist the Court on difficult points of fact or law in the case and must play that role to the best of his ability. It may be that appellants 1 to 3 would have refused to be defended by any State counsel appointed by the Sessions Judge, but that contingency would have arisen only after the appointment had been made. In any event, it must be remembered that the State counsel has to play his role as amicus curiae and help the Court by his submissions on intricate questions of fact and law. For the foregoing reasons we are satisfied that the learned Sessions Judge in this case had the imperative duty to appoint a State counsel to defend appellants 1 to 3 in pursuance of the provisions of Rule 166 of the Criminal Rules of Practice, though the said appellants did not want to defend themselves and did not seek the assistance of a State counsel for that purpose.” In the above cited decision, the accused were totally un-represented throughout the trial. Only under the said circumstances, the conviction was set aside and re-trial was ordered. Only under the said circumstances, the conviction was set aside and re-trial was ordered. In the case on hand, it cannot be said that the accused were totally unrepresented throughout the trial. Full opportunity to cross-examine witnesses had been given. 18. In Thyagu @ Thyagarajan v. State, (supra) it is observed in paragraph 12 that: “….. The intention of Rule 166 of the Criminal Rules of Practice, is perfectly clear, in that no accused person should remain totally unrepresented by a lawyer, if he is being tried on a charge for which a capital sentence can be awarded. We have already quoted Rule 167 of the Criminal Rules of Practice in full. That rule requires the counsel appointed, to be furnished with necessary papers and be allowed sufficient time to prepare for the defence. The facts mentioned by us earlier clearly indicate that counsel were appointed for the appellants only on 13.8.1987, the date on which the trial commenced. It is, therefore, obvious that sufficient time was not allowed to the respective counsel to prepare for the defence of the appellants.” From the above said observation, Rule 166 of Criminal Rules of Practice can be said to be violated only the accused person remain totally unrepresented by the lawyer if he is being tried on a charge for which a capital sentence can be awarded and no sufficient time is given for preparation. 19. In Sudarsanam and Others v. State, Deputy Superintendent of Police, Ponneri Division, (supra) it is observed in paragraphs 12 to 15 as follows: “….. 12. It follows, therefore, tha the trial Court under such situations, has first to decide, whether factually, the prayer of the accused that the counsel has suddenly taken ill, is true or whether it is only an attempt to get an adjournment to protract the proceedings. IF the Court feels that factually, the statement that the counsel has suddenly taken ill, is true and if the Court finds, that ever thereafter, the accused has taken every steps within his powers, to engage another counsel and despite the same he had not succeeded and was forced to pray for an adjournment, the Court has to give an adjournment. The second proviso to Section 309(2), Crl.P.C., which lays down that no adjournment or postponement shall be granted without examining the witnesses who are in attendance also permits the Sessions Judge for special reasons to be recorded in writing to grant an adjournment even when witnesses are in attendance. The section also provides, that in appropriate cases, adjournment could be granted, on payment of costs, either by the Prosecution or by the accused. Under those circumstances, the mere fact that witnesses are in attendance, would not be a ground for refusing an adjournment and examining the witnesses when the accused are not defended by any counsel. As indicated earlier, the question of adjournment would come in, only if the Court is satisfied, that the request for adjournment is necessitated, by the sudden illness of the counsel. 13. In the instant case, facts are not seriously controverted. The petitioners had engaged a counsel (Thiru Sam V.Chelliah) of their choice and even on 23.12.1986 a memo of appearance had been filed by the counsel on behalf of all the petitioners. The Trial Court also, had fixed the date of trial, well in advance. However, the counsel had suddenly taken ill on the last working day before the commencement of the trial. The counsel is from Madras and the trial was to be in Chengalpattu, which is about 56 K.M. from Madras. In a case calling for capital sentence, and that too, arising out of dowry harassment, wherein an Assistant Public Prosecutor, had been specially appointed by the Government to assist the Public Prosecutor in the Sessions Court, it was but natural for the petitioners, to desire to have a counsel of equal calibre, to effectively conduct their defence. It is also common knowledge that Advocates feel reluctant to accept briefs, without sufficient time to study the papers, receive instructions from clients and do justice to them in Court, especially in a case calling for capital punishment. The petitioners have also sworn to an affidavit that, after the counsel took ill, the counsel suggested the names of a few Advocates whom they could contact and that they did contact those Advocates immediately and that those Advocates, could not accept the brief due to prior engagements. It was under those circumstances, that the petitioners were forced to pray for adjournment of the case, even though the witnesses summoned for the day, were present. It was under those circumstances, that the petitioners were forced to pray for adjournment of the case, even though the witnesses summoned for the day, were present. The Trial Court ought to have granted an adjournment, at least by requiring the petitioners to pay the costs incurred, in summoning the witnesses actually in attendance. 14. Learned Public Prosecutor contended that the proceedings of the learned Sessions Judge, in recording the chief examination of P.Ws.1 to 12 need not be quashed and that instead, the chief examination may be retained and an opportunity may be given to the petitioners to recall the above witnesses to cross examine them. I am unable to accept the above suggestion of the learned Public Prosecutor. The petitioners in their affidavit, have alleged that the learned Public Prosecutor in the Sessions Court, elicited the chief examination by putting leading questions on vital matters, when the witnesses were unwilling to answer. Whatever that be, we cannot lost sight of the fact that, the stage which is most important to an accused in the entire criminal proceedings, is the time, when the prosecution witnesses are actually in the box giving evidence. The evidence then recorded, is the substantive evidence, which would be relied upon by Courts for final adjudication. The charge in the instant case is no trivial one, but which, if proved, would be brought within the category of ‘rarest of rate cases‘ as being a murder committed for dowry calling for capital sentence, such a charge would be proved, invariably by oral evidence. Whatever arguments that could be addressed, whether before the trial Court or before any other higher Court, which might have occasion to deal with the case, whether at the instance of the prosecution or at the instance of the defence, or even at the instance of a private party, would have to be based upon the evidence that is recorded at the time when the witnesses are in the box. The presence of the counsel for the accused, at the stage of the chief examination, in a case of this nature, could not be brushed aside as redundant. The counsel has to cross-examine witnesses, not by going through the script of the Chief-examinations recorded in his absence, but by seeing witnesses actually deposing the chief. The presence of the counsel for the accused, at the stage of the chief examination, in a case of this nature, could not be brushed aside as redundant. The counsel has to cross-examine witnesses, not by going through the script of the Chief-examinations recorded in his absence, but by seeing witnesses actually deposing the chief. If under Section 280, Crl.P.C., the demeanour of a witness could be relevant to a trial judge, who is empowered to make a record of it, so that even the appellate Courts can have the benefit of the impression that the witness had produced on the trial judge, certainly the demeanour of a witness, would give the cross-examining counsel, his clue regarding the truth or falsity of each portion of the evidence given by the witness in the chief-examination. The look or manner of a witness, his hesitation, his doubts, his apparent reluctance or evasive attitude, would all be meaningful to a counsel, who proposes to cross-examine a witness. It is no justice to record the chief-examination of twelve witnesses, in a case of capital sentence. When the accused are undefended and then tender the witnesses for cross-examination, I have no hesitation to quash the entire proceedings.” 20. It is observed in the above said decision that the Trial Court has first to decide whether the prayer of the accused that the counsel had suddenly taken ill is true or whether it is only an attempt to get an adjournment to protract the proceedings. In the case on hand, nothing is shown by the learned senior counsel to say that there was no attempt by the defence to protract the trial. Further in the above said decision, an application was filed for an adjournment and on rejection of the application, aggrieved by that, the accused have approached the High Court at the earliest stage and only under that circumstances, the accused, instead of being permitted to recall and cross examine the witnesses, the recorded evidence in chief examination were quashed and fresh proceedings were ordered. In the case on hand, the accused have chosen to cross examine all the witnesses through the private counsel and allowed the trial to be proceeded against them. Only after the trial has ended in conviction, this question is raised here. In the case on hand, the accused have chosen to cross examine all the witnesses through the private counsel and allowed the trial to be proceeded against them. Only after the trial has ended in conviction, this question is raised here. Having utilised the opportunity and having cross examined the witnesses at length through the private counsel, it is to be only held that no prejudice is caused to the accused. It is to be further stated that though the demeanor of the witness could be relevant to a trial Judge and also to the defence counsel for cross-examining, it cannot be said that totally trial is vitiated, if the witness cross-examined subsequently by the defence counsel. The Fast Track Courts are duty bound not to cause any prejudice to the accused by proceeding with the trial in the absence of the counsel. But, at the same time, it is to be seen whether the accused tries to protract the trial by any hook and crook method and if so, the Courts are to prevent such protraction of the trial. The Judges of the Sessions Court are directed to ensure even before framing charges against the accused whether they are represented by a counsel and to frame charges after hearing them. If it is felt that either the accused are not represented by any counsel or the counsel on record are not appearing representing the accused, then the Court may take steps to nominate counsel for the accused from the Legal Aid Service. 21. With regard to the contention of the learned Senior Counsel that among the witnesses P.Ws.1 to 5, who are the eyewitnesses to the occurrence, P.Ws.2 to 5 have been treated hostile and the accused have not been questioned with regard to the incriminating evidence given by P.Ws.2 to 5 and as such, no reliance should be placed on the evidence of P.Ws.2 to 5 is to be analysed on the basis of the following decision. In Sharad Birdhichand Sarda v. State of Maharashtra , (supra) it is observed in paragraphs 142 to 144 that: “…. 142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos.4,5,6,8,9,11,12,13,16 and 17. In Sharad Birdhichand Sarda v. State of Maharashtra , (supra) it is observed in paragraphs 142 to 144 that: “…. 142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos.4,5,6,8,9,11,12,13,16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Code of Criminal Procedure they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is s catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, (1976) 1 SCC 438 : AIR 1976 SC 557 this Court held thus: -“The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.” 143.To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat , AIR 1979 SC 1566 where the following observations were made: “In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the Serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.” 144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.” 144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration.” 22. In State of Maharashtra v. Sukhdev Singh and Another (supra) it is observed in paragraph 50 that: “….. 50. Section 313 of the code is a Statutory provision and embodies the fundamental principle of fairness based of the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words shall question him‘ clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under Section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record.” 23. In view of the above cited decisions laid down by the Apex Court, as the accused were not called for to give any explanation with regard to the evidence of P.Ws.2 to 5, no reliance can be placed on their evidence. If it is necessary even the appellate Court may call and question the accused and thereafter may act upon those evidence. 24. The next question is that whether the evidence of P.W.1 is acceptable and whether the conviction on the accused can be sustained without the support of the evidence of P.Ws.2 to 5. If it is necessary even the appellate Court may call and question the accused and thereafter may act upon those evidence. 24. The next question is that whether the evidence of P.W.1 is acceptable and whether the conviction on the accused can be sustained without the support of the evidence of P.Ws.2 to 5. The learned Senior Counsel contended that in Ex.P.1, the specific overt act was given only for A-1 in respect of the attacking the deceased, but, in the evidence, it has been exaggerated and the specific overt act was attributed to all the accused. The contentions of all the other counsel with regard to the contradictions in the overt act attributed is also to be considered. If Ex.P.1 is seen, it is mentioned that apart from A-1 cutting the deceased with the knife on the head and the accused Palanikumar cutting the deceased on the neck, it is also mentioned that the other accused had also cut the deceased indiscriminately. Therefore, it is not so that no overt act at all was given to all other accused. The evidence given by P.W.1 with the specific overt act of each accused would not affect the prosecution merely for the reason that it was not mentioned in Ex.P.1. 25. Further, the evidence of P.W.1 at the time of occurrence is that he was standing in front of the tea shop and was drinking tea. Then he had seen the accused coming to that place and as they took out the weapons, the deceased started running and the accused chased him. As per the evidence, the distance between the tea shop and the place where the deceased was attacked, is only 30 feet. The lane was only in the opposite direction to the tea shop. As such, P.W.1 also could have moved a little distance and it is possible to view the occurrence. Therefore, it cannot be said that P.W.1 could not have witnessed the actual occurrence. Unless the presence of P.W.1 near the scene of occurrence is disproved, his evidence cannot be rejected. In fact, the house of P.W.1 was very nearer to the scene of occurrence. It is to be seen that the deceased had sustained 23 injuries and therefore, there was every possibility for P.W.1 to see that each of the accused attacking the deceased. In fact, the house of P.W.1 was very nearer to the scene of occurrence. It is to be seen that the deceased had sustained 23 injuries and therefore, there was every possibility for P.W.1 to see that each of the accused attacking the deceased. As there are number of injuries on the deceased, the minor contradictions with regard to the attack on which part of the body of the deceased which accused attacked would not affect the version of P.W.1. 26. P.W.9 who is also the resident of the same place and whose house is also shown in the rough sketch, had stated that on 2.5.2002 at 6.00 a.m., he had seen the accused immediately after the occurrence going along with blood stained knives. This version of P.W.9 establishes the presence of all the accused. This evidence of P.W.9 can be taken as corroboration for the evidence of P.W.1 to establish the presence of the accused at the scene of occurrence. 27. The question that whether the conviction can be based on the evidence of P.W.1 alone is to be decided now. The presence of P.W.1 near the scene of occurrence is quite natural since his house and tea shop were near to the scene of occurrence. Further, within thirty minutes P.W.1 had gone to the Police Station and given the complaint against the accused which is attested by P.W.2 also. This evidence of P.W.1 is corroborated by the medical evidence which shows that the deceased had sustained 23 injuries. As already stated, the evidence of P.W.1 is strengthened by the evidence of P.W.9 withregard to the presence of the accused with the weapons near the scene of occurrence. 28. The only infirmity that was pointed out by the learned Senior Counsel is that P.W.1 had admitted in the cross-examination that he did not know A-5 and he had spoken in the evidence about A-5 with regard to the occurrence only as instructed by the police. Though P.W.1 had admitted so in the cross-examination about A-5, during the chief examination on 23.4.2003, he had specifically stated that A-5 cut the deceased with a knife on his right thigh and while he was cross examined by A-2, he had also stated that all the five accused cut the deceased at one and the same time. Though P.W.1 had admitted so in the cross-examination about A-5, during the chief examination on 23.4.2003, he had specifically stated that A-5 cut the deceased with a knife on his right thigh and while he was cross examined by A-2, he had also stated that all the five accused cut the deceased at one and the same time. He also stated during the cross examination that he had witnessed the occurrence from a distance of ten feet and he knows who are all the accused cut the deceased and who are all the accused stabbed the deceased. P.W.1 had also further stated that all the accused cut and stabbed the deceased. In the light of the above, when P.W.1 was questioned by A-5, he admitted that he did not know A-5. This shows some deliberate deviation being made by the witness P.W.1 as far as A-5 only is concerned. The Trial Court while convicting A-5 also had observed in its judgment dated 24.7.2003 that: “……. The elaborate evidence given by P.W.1 the unfortunate father of the victim will strengthen the evidence of P.W.2 to P.W.5 and the evidence of the Investigating Officer in this case. We must make a point clear at this stage that the cross examination over the above witnesses was done on subsequent date since a few witnesses were yet to engage a lawyer to be appointed by the legal service authority. Having given clear evidence in the chief examination which was taken in the open Court on 23.4.2003, P.W.1 has made an attempt in vain to help A-5 for reasons best known to him. It is for some reason P.W.1 has given a contra evidence in support of A-5 which this Court simply rejects.” It is also mentioned in the Trial Court judgment that except A-5 all the other accused are under trial prisoners and it is only A-5 who is on bail. 29. The above observation made by the Trial Court is proper and sustainable. Further, P.W.1 even though says that he did not know A-5, he had denied the suggestion put forward by A-5 that he was deposing falsely and there was no connection for A-5 in the occurrence. 30. The law of evidence does not require any number of witnesses to be examined as a proof of a given fact. Further, P.W.1 even though says that he did not know A-5, he had denied the suggestion put forward by A-5 that he was deposing falsely and there was no connection for A-5 in the occurrence. 30. The law of evidence does not require any number of witnesses to be examined as a proof of a given fact. However, based with the testimony of a single witness, the Court may classify the oral testimony into three categories, viz., (1)wholly reliable; (2)wholly unreliable; and (3) neither wholly reliable nor wholly unreliable. As far as the evidence of P.W.1 is concerned, we cannot totally discard the testimony of P.W.1 as it cannot be called wholly unreliable. He is the witness who could have been naturally present at the scene and his evidence is supported by Ex.P.1 and also by the medical evidence. Further, his evidence is also supported by the evidence of P.W.9. As such, relying on the evidence of P.W.1, the conviction on all the accused/appellants can be sustained. The infirmities pointed out by the learned Senior Counsel in the evidence of P.W.1 does not affect the total prosecution case. 31. We therefore hold that the prosecution had established its case beyond reasonable doubt. The reasons given by the Trial Court for convicting the accused/appellants are acceptable. Hence, we find no reason to interfere with the findings of the Trial Court. The conviction and sentence imposed on the appellants/accused by the Trial Court is confirmed. 32. In the result, the criminal appeals are dismissed. It is reported that A-5 is on bail. The Sessions Judge concerned, is directed to secure the presence of A-5 and commit him in prison to undergo the remaining period of sentence.