This appeal has been preferred by the convict B. V. Danny Mao. He stood trial of the charge under section 302 I. P. C. in the Court of the learned Additional District Magistrate, Kohima, Nagaland. At the close of the trial and on scanning the evidence on record the learned trial Court found the appellant guilty under section 304 IPC for causing the death of Nzanbemo Lot ha and convicted him under the aforesaid provisions of law and sentenced him to undergo rigorous imprisonment for 5 years. The learned trial Court found sufficient evidence to prove that Nzanbemo died from the knife subbing injuries caused in a scuffle between Danny Mao and Nzanbemo. Against the aforesaid conviction and sentence this appeal has been preferred by the appel ant Danny Mao. 2. I have heard Mr. Charugopal Singh, learned counsel for the appellant and Mr. D. K.. Mishra, learned Public Prosecutor for the State of Nagaland at length. Before taking up for consideration the rival contention of the learned counsel of the parties it would be appropriate to take up the prosecution case. 3. The prosecution case in brief is that Nzanbemo (deceased) purchased one umbrella on 19. 7.79 from appellant Danny Mao at Rs 75/-, but as it was found defective he met the appellant in the office on 21. 7. 79 and requested him change the umbrella or to return Rs. 50/-. The appellant told him to go to his residence, On the same day i. e. on 21. 7. 79 at about 1.30 P. M. Nzanbemo went to the house of the appellant when he, Wosemo Lotha (P. W. 13), Rikhyo Lotha (P. W. 7) and another had been playing carrom in his house. There was a heated argument between the two over the sale of umbrella. Soon thereafter a scuffle started between the deceased and the appellant in presence of three other friends who were playing carrom in the house of the appellant at that time. In course of sniffle the Appellant assaulted the deceased with a sharp weapon (knife) and he sustained scrims injuries. Thereafter Nzanbemo was taken to Naga Hospital, Kobima for treatment. He lodged an FIR. In course of sniffle the Appellant assaulted the deceased with a sharp weapon (knife) and he sustained scrims injuries. Thereafter Nzanbemo was taken to Naga Hospital, Kobima for treatment. He lodged an FIR. while in the hospital to the O/C Kohima North Police Station to the effect that when he asked the appellant to return his money back or change the defective “umbrella which he purchased from the appellant on 19th July, 1979, the. appellant refused and challenged him with a knife, stabbed him from-back side and fled away. This FIR was lodged on the same day i, e. on 21. 7. 79 at about 6.35 P. M. However, when injured Nzanbemo was under treatment in the hospital he succumbed to his injuries on 30. 7. 79 at about 7.30 A.M. 4. On receipt of the FIR, the Police Officer of Kohima North Police Station started investigation But ho Post Mortem examination was held on the ground that due to customary restrictions prevailing amonst the Nagas Post Mortem examination could not be held. In course of investigation as the Investigating Officer found some material against the appellant Danny Mao, he registered a case under section 302 IPC and submitted charge sheet to the Magistrate Kohima through the Sub-divisional Police Officer, Kohima on or about 28.8.79. The saddest part of this case is that it took almost 4 years to complete the trial and this appeal has been pending in this Court (Kohima Bench) for about a period of 5 years. 5. However, in course of trial the prosecution examined as many as 16 witnesses including the doctor and the Investigating Officer. The appellant Danny Mao denied the charge and pleaded innocence, The plea taken by the accused-appellant is that Nzandemo came to his house, entered his bedroom where he was hiding and started beating him left and right. There was a mutual scuffle arid when Nzanbemo was trying to catch hold of him in the act of fighting, his friends Rikhyo (PW 7) and Wosemo (PW 13) stopped Nzanbemo and the appellant could manage to run away. He then went to the Police Station to lodge a complaint about the incident. The appellant further denied to have caused any assault on the person of the deceased. However, in this case the deceased himself was the informant who lodged the FIR while in hospital for treatment. He then went to the Police Station to lodge a complaint about the incident. The appellant further denied to have caused any assault on the person of the deceased. However, in this case the deceased himself was the informant who lodged the FIR while in hospital for treatment. The police did not record his statement though he survived till 7 A.M. of 30.7.79. Therefore, the prosecution had to prove the guilt of the accused by cogent and reliable evidence. The learned trial Court recorded the statement of the accused on his exami­nation under section 313 Cr. P.C. after completion of the evidence of prosecution witnesses. The learned trial Court upon consideration of the evidence on record found the accused guilty under section 304 IPC and convicted and sentenced him as aforesaid. 6. Mr. Charugopal Singh, learned counsel for the appellant raised several points on facts and law. On facts it is submitted by the learned counsel for the appellant that the prosecution relied on the evidence of P.Ws 7,9 and 13 who are stated to be the eye-witnesses to the occurre­nce. But none of them could say assertively that the appellant assaul­ted the deceased with knife. The knife was also not- produced in Court though stated to be seized by the police in course of investiga­tion. The next point on facts as raised by Mr. Charugopal, learned counsel for the appellant is that the injuries sustained by the deceased as per medical evidence could not have been caused by knife. It is submitted by the learned counsel for appellant that from the medical report it appears that the deceased received two injuries. They are--.(1) piercing wound in right scapular region 1 cm X 1/9 cm X ½ cm and (2) piercing wound in left scapular region 1 1/2 cm X 1/9 cm X 1/2 cm. In these circumstances, as submitted by the learned counsel, the evidence does not disclose that the injuries were caused by knife and if these would have been caused by knife stabbing, the injuries could have been greater in their magnitude. In these circumstances, as submitted by the learned counsel, the evidence does not disclose that the injuries were caused by knife and if these would have been caused by knife stabbing, the injuries could have been greater in their magnitude. The next submission of the learned counsel for the appellant is that if actually there were knife blows on the deceased his banyan and shirt could give some evidence of the piercing wounds on his back, but no such clue could be obtained from examining the wearing-shirt and banyan of the deceased to connect the knife with the wounds received by the deceased. On legal points the learned counsel for the appellant has submitted that the learned trial Court failed to examine the accused appellant properly while recording his statement under section 313 Cr P. C, and the accused could not answer in his defence the evidence adduced against him by the witnesses as these were not put to him. It is submitted by the learned counsel that if a particular evidence against him is not put to the accused in his examination under section 313 Cr. P.C. that portion of the evidence should be totally excluded from consideration. It is further submitted by the learned counsel for the appellant that any vital evidence which is important for the purpose-of defence of the accused is not put to him in his examination under section 313 Cr. P.C. that alone would be sufficient to acquit the accused of the charge. To appreciate the Contentions of the learned counsel for appellant it would be necessary to go through the evidence on record to ascertain how far the prosecution could prove the guilt of the accused beyond reasonable doubt. Now to the evidence. 7. Though the prosecution based its case on the evidence of three eye-witnesses, namely, P.Ws 7, 9 and 13 to connect the accused with the guilt, the evidence of P.Ws I, 2 and 3 is also relevant as supporting evidence to the eye witnesses. P.W.I Shri Phyokhamo is a retired Superintendent of Transport Commissioner's office, Kohima and he is the grandfather of the deceased. In his evidence he has stated that he met his grandson in hospital where he was rendered treatment of his injuries. He has stated-”the deceased told me he has been stabbed by a person. P.W.I Shri Phyokhamo is a retired Superintendent of Transport Commissioner's office, Kohima and he is the grandfather of the deceased. In his evidence he has stated that he met his grandson in hospital where he was rendered treatment of his injuries. He has stated-”the deceased told me he has been stabbed by a person. He said one Danny stabbed him.” As regards holding of post mortem examination he has stated that holding of post mortem examination is not necessary according to customary law and therefore the dead body was not sent for that purpose. He also said that he could follow what his grandson told him when he was in hospital. The defence could not bring any vital contradiction in his evidence. P.W.2 Thungbemo is the father of deceased Nzanbemo. Though he is not an eye-witness to the occurrence yet he was told by his son, friends and neighbours that Danny Mao had stabbed his son. He saw the injury of the deceased in two places in tie back below his shoulder. The defence though cross-examined this witness, no question was put to him to ascertain as to whether the deceased had told him about assault on him by Danny. On the other a suggestion was made to him by the defence that his son told him that he was stabbed as a result of a quarrel. Menguzelie Sekhose who was examined as P.W. 3 is a busi­nessman residing at K & Z Colony at Kohima. He has stated in his evidence that after the accused Danny Mao stabbed Nzanbemo he came and told him that he Stabbed Nzanbemo. He has further stated that Danny Mao told him that two Lothas were holding Nzanbemo and Danny stabbed him. The defence did not cross examine him to justify the statement of this witness. On perusal of the evidence of these three witnesses it appears that they had added corroboration to the state­ments made by the deceased in his FIR and also about the assault caused by Danny Mao. P.W. 4 is a seizure list witness in whose presence the shirt and vest of the deceased were seized by police. P W. 5 is Dr. Rajguri Mahapatra. During the relevant time he was Assistant Surgeon Grade-1 in Naga Hospital at Kohima. He examined the injuries of the deceased and submitted a report. P.W. 4 is a seizure list witness in whose presence the shirt and vest of the deceased were seized by police. P W. 5 is Dr. Rajguri Mahapatra. During the relevant time he was Assistant Surgeon Grade-1 in Naga Hospital at Kohima. He examined the injuries of the deceased and submitted a report. He found at the time of examina­tion that the deceased received two piercing wound in his body one in the right and the other in the left scapular region. He opined that since the wounds were close to the vital organs of the body the wounds seemed to be grievous. He further opined that the wounds might cause the death of a person and that the wounds could have been caused by sharp weapon. In cross examination he has further stated that he did not know whether the injuries touched any vital part of the injured person. P.W. 6 is another seizure list witness in whose presence the police officer seized a knife produced by Danny said to have been used for stabbing Nzanbemo. This P.W. 6 was working as L.D. Assistant in Mechanical Office during the relevant period where the accused Danny has been working. In his cross examination he has, however, said that Danny had a cool temperament and that he never heard of any violent incident indulged in by accused Danny. P W. 7 Rikhyo is an eye-witness to occurrence who on the day of occurrence along with P.W. Wosemo and accused Danny was playing carrom in the house of Danny. Meanwhile Nzanbemo .came and called Danny. . They all went out to the verandah. Nzanbemo said that he would fight with accused Danny. This P W. asked them not to quarrel But Nzanbemo gave a blow on the door of Danny which hit P.W. Wosemo in the corner of eye. Meanwhile a scuffle started between the deceased and the accused. This Witness along with P.W. Wosemo caught hold of Danny and tried to separate them. He has further added that Danny slipped away from Wosemo's grip and then he saw, Danny hitting Nzambemo with a material which looked like a paper (sic). He has further said that when he saw the cut injury at the back of Nzanbemo he “thought to be some iron”. Thereafter Danny ran away. This witness along with others got a vehicle to carry Nzanbemo to hospital. He has further said that when he saw the cut injury at the back of Nzanbemo he “thought to be some iron”. Thereafter Danny ran away. This witness along with others got a vehicle to carry Nzanbemo to hospital. Defence did not cross examine this witness on the vital point. Therefore, there appears to be no contradiction in the evidence of this P.W. 7 with these statement which was recorded by police during investigation. P.W. 8 is another seizure list witness. P.W. 9 Daniel is another eye­witness. He has stated that he was present on the day of occurrence in Danny's house along with P.W. 7 and P.W. 13. He has further stated that the deceased Nzanbemo came to Danny's house and challenged him to a fight. This witness along with others tried to pacify both the accused and the deceased. The deceased hit the door with his hand and entered inside. Danny was in common room and after that he went into the smaller room and there they engaged them-selves in mutual fight. After sometime Danny ran away and this Witness P.W. 9 could see the blood at the back of the deceased. This witness though has not seen the actual stabbing, but he had catego­rically stated about the mutual fight between the accused and the deceased as a result of which the deceased sustained injuries. P.W 10 Dr. Neiphi Kire had been serving in Naga Hospital during the relevant period. On the day of occurrence he was on emergency duty. He treated the injuries of the deceased and found that the deceased had stab injuries on the left and right scapular region. The deceased developed homeathorax following stab injuries. He was given regular treatment. But inspite of the efforts injured Nzanbemo expired on 30-7-79 at 7.30 A.M. E.W. 11 who was a Sub Inspector of Police in the North Kohima P.S. investigated the case partly. He examined three witnesses during investigation. The earlier part pf investigation was conducted by one Shri Chetia to whom the investigation was entrusted. This P. W. 11 submitted charge sheet against the accused after completion of investigation, A suggestion was put to this witness by defence that the accused stabbed the deceased in exercise of his right of private defence which, however, this P.W.. U denied. P-.W. 12 is the seizure list witness of the umbrella. This P. W. 11 submitted charge sheet against the accused after completion of investigation, A suggestion was put to this witness by defence that the accused stabbed the deceased in exercise of his right of private defence which, however, this P.W.. U denied. P-.W. 12 is the seizure list witness of the umbrella. The next .important witness is Wosemo Lotha, P.W.-13 who was also one of the person present in Danny's house at the time of occurrence playing carrom. He has corroborated the evidence of P.W. 7 and has further added that in course of mutual fight, P.W-7 Rikhyo caught hold of Nzanbemo .and he caught hold of Danny to separate them from mutual fight. But Danny hit his wrist and let loose himself. He has further said --- .”.Then Danny went straight and hit Nzanbemo in the backside.I saw a piece of paper in his hand after that. He ran away after that, we took Nzanbemo to the verandah and saw Nzanbemo bleeding in the left side of the back. We took out the shirt and saw a cut mark and also bleeding... He was not thoroughly cross-examined by defence. In cross-examination no vital contradiction could be brought out by the defence. I P. W. 14 was Officer in-Charge of North Kohima Police Station during the relevant period. He has stated in his evidence that accused Danny Mao surrendered before him for protection in Police North and he showed him as “murder arrest”. The defence declined to cross-examine this witness, therefore, the evidence to the effect that Danny went to Police Station immediately after the occurrence and surrendered before the Police Officer remain unchallenged. P.W, 15 is seizure list witness of umbrella, P.W. 16 is another Police Officer who seized one shirt with blood stain and one vest. This witness recorded statement of three witnesses and seized the folding umbrella from the office of the Mechanical Engineer. He also seized one knife from Danny Mad by seizure list Ext. P/4. 8. On scrutiny of the evidence as stated above at is clear that P.Ws 7 and 13 are the main witnesses to the occurrence who saw the infliction of injury on the deceased by the accused Danny Mao. He also seized one knife from Danny Mad by seizure list Ext. P/4. 8. On scrutiny of the evidence as stated above at is clear that P.Ws 7 and 13 are the main witnesses to the occurrence who saw the infliction of injury on the deceased by the accused Danny Mao. They corroborated each other and if the evidence of both the witnesses are read along with the evidence of P.W. 1 and P.W. 2 the link between the accused and the offence gets established and it becomes clear that the accused and none else was the author of the offence whe inflicted injury on the person of Nzanbemo as a result of which he died in the hospital. 9. Mr. Charugopal Singh, learned counsel for the appellant has submitted that the knife alleged to have been used by the accused for commission of the offence was not produced before the Court and the evidence of P.Ws 7 and 13 clearly disclose that they saw a piece of paper in the hand of the accused and not any dagger or knife. P.W. 13 has categorically stated that the accused hit the deceased at his back and ran away as a result of which the deceased sustained injury. Now, the admitted position is-there was a scuffle between the accused and the deceased and if the evidence of P.W.I and P.W. 2 are read together it is found that before his death the deceased clearly had stated to both the witnesses that it was accused Danny who assaulted him with a knife. The evidence of P.Ws 13 and 7 are categorically in this respect that in course of Souffle accused Danny hit the deceased at his back who Sustained injury which subsequently appeared to be fatal and caused his death. In course of recording the statement of the accused under section 313 Cr. P.C. by the learned trial Court the accused stated that on 21.7.79 at about 3 P.M. while he was playing carrom with few of his friends the deceased Nzanbemo appeared and called him outside. The door was locked from inside. The deceased broke open the door and entered. While breaking open the door a leaf of the door hit his friend Wosemo at his eyes and he was inured. The door was locked from inside. The deceased broke open the door and entered. While breaking open the door a leaf of the door hit his friend Wosemo at his eyes and he was inured. He further stated that the deceased straightway entered his room shouting and as soon as be entered the room he started beating the accused. He further stated that when Nzanbemo (deceased) was beating him right and left he could escape and run to the Police Station to make a complaint about the incident. The learned counsel for the appellant has vehemently argued that the examination under section 313 Cr.B.C. was not complete and the accused was not put the vital questions in relation to the evidence of the witnesses as a result of which the accused could not explain the evidence against him for the purpose of his defence. The evidence against the accused being not put to him, a valuable right of the accused has been denied to him. for which, as submitted by the learned counsel, the evidence of the witnesses to that extent must be eliminated, from conside­ration. However, the only ''question remains as to whether the injuries on the persen of the deceased were caused by knife and whether these were caused by Danny. The opinion of doctor is Very clear in this respect that both the injuries were caused by sharp weapon like knife or dagger. The weapon was not produced in the Court but that would not negative the opinion of the doctor coupled with the evidence of the aforesaid eye-witnesses. However, as regards the submission of the learned counsel for the appellant relating to 'the examination of the accused under section 313 Cr.P.C, it is to be considered as to whether the accused is prejudiced for not putting to him the circumstances appearing against him and whether he is entitled to get acquittal. 10. In support of his contentions Mr. Charugopal Singh, learned counsel for the appellant relied on Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622 and also the decision of this Court reported in Crimes 1983 Vol. I Page 218 Faizul All vs. Sttte of Assam. Referring to Sharad (Supra) the .learned counsel has drawn my attention to paragraphs 142 and 144. Charugopal Singh, learned counsel for the appellant relied on Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622 and also the decision of this Court reported in Crimes 1983 Vol. I Page 218 Faizul All vs. Sttte of Assam. Referring to Sharad (Supra) the .learned counsel has drawn my attention to paragraphs 142 and 144. Their Lordships held .that any circumstance in respect of which an accused was not examined under section 3.42 old (new being 313) Cr.P.C. cannot be used against him. Their Lordships also referred a catena of authorities of Supreme Court uniformly taking the view that if circumstances appearing against an accused is not put to him in his examination, the same cannot be used against him. In paragraph 144 it was further held- “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.” 11:. It is true that prosecution must stand or tall on its own foot and cannot derive any strength from the weakness of the defence, though few suggestions were made by the. defence counsel those were not required to be put to the accused as because he knew these circumstances in respect of which the witnesses were cross-examined. la Faizul AH (supra) this Court held that the examination .of the accused under section 313 Cr. P. C. is mandatory. It is the duty of the learned Sessions Judge or the trial Court as the case may be, to ask the accused in full Details for a proper reply as to the offence alleged in respect of which he has to face trial. It was further held that if the Court fails to take care in this respect to take a proper statement of the accused under section 313 Cr. P. C. to enable him to give proper reply as to the offence alleged that alone would be sufficient to entitle the accused to got acquittal. It was further held that if the Court fails to take care in this respect to take a proper statement of the accused under section 313 Cr. P. C. to enable him to give proper reply as to the offence alleged that alone would be sufficient to entitle the accused to got acquittal. In Sharad (supra) their Lordships .considered mainly the existence of circumstantial evidence and also the statement of the deceased relating to the circumstances of transactions resulting in his death- Their Lordships observed and held that if circumstantial evidence with its .proper link are not put it would cause the accused^ prejudice because of his failure to explain those circumstances for the purpose of his defence. In the present case the only burden that lies with the prosecution is to prove the assault committed by accused on the deceased other things being admitted. Death has not been, denied by the accused. The fact that the accused stabbed the deceased at the back in the hit of argument and scuffle which caused the death of the deceased was put to the accused and he could sufficiently understand. It is not the case where the accused was not put the question as to the stabbing. The fact of each case must be considered before a proposition of law is accepted to be applicable in particular case. 12. Mr. D.K.. Mishra, learned Public Prosecutor has submitted that it is to be considered whether the accused was prejudiced to state his defence for his non-examination on certain facts and circumstances. The next submission of Mr. Mishra is that non-examination of the accused on this portion by specific word of the witnesses would not vitiate the trial though at best it may be termed as irregularity. To support his contention the learned coun­sel has drawn my attention to the case of K. C Mathew and Others vs. State of Travancore Cochin : AIR 1956 SC 241 . In paragraph 11 of the judgment their Lordships held- “(11) The purpose of S. 342 is set out in its opening words-For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. If the accused is not afforded that opportunity, he is entitled to ask the appellate Court to place him in the same position as he would have been in had he been asked. If the accused is not afforded that opportunity, he is entitled to ask the appellate Court to place him in the same position as he would have been in had he been asked. la other words, he is entitled to ask the appellate Court, which is the ultimate Court of fact, to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along.” In Moseb Kaka Chaudhary And Another vs. State of West Bengal : AIR 1955 SC 536, their Lordships of the Supreme Court dealt with provisions of section 342 (old) Cr.P.C. and held- “ It is settled that clear prejudice must be shown. This Court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal. It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in Miscarriage of justice.........” Their Lordships in this regard have also quoted the following observation from Mathew's case : “ ....if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough.” In Labhachand Dhanpat Singh ts. State of Maharashtra S AIR 1975 SC 182 their Lordships in paragraph 11 of the judgment held- “... It is true that the general form of questions put does not strictly comply with the provisions of section 342, Criminal Procedure Code. But we are unable to hold that the appellant suffered any injustice for this reason. Indeed he nod not even raised such a question in the trial Court or before the High Court. If he had done so, the alleged defect could have been easily cured. The objection seems to us to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the appellant.” 13. Indeed he nod not even raised such a question in the trial Court or before the High Court. If he had done so, the alleged defect could have been easily cured. The objection seems to us to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the appellant.” 13. The aforesaid decisions of their Lordships of the Supreme Court clearly indicate that the accused must be afforded full opportunity to expiate the circumstances and evidence of the witnesses appearing against him in a particular case and the learned trial Court must examine the accused by putting all circumstances and evidence against him while recording the statement of the accused under section 313 Cr.P.C. No prejudice should be caused to the accused by omitting to put vital circumstances and evidence that go against him. In the present case the defence admitted that there was a scuffle between the accused and the deceased and he was aware of the circumstances appearing against him which were put to him. Therefore, it cannot be said that the accused was prejudiced to put his defence or he failed to explain the circumstances of the incident. That being the position appearing in the facts and circum­stances of the case at hand it cannot be said that no opportunity was afforded to the accused or that the circumstances appearing against him were not put to him for which those should be eliminated from consideration. I have scanned the evidence of the witnesses very carefully and in my opinion the impugned judgment of conviction based on material facts against the accused does not suffer from any infirmity. However, considering the facts and circumstances of the case, cause of assault and the injury sustained, the sentence of the accused-appellant appears to be severe It appears that the appellant was in jail for about 33 months. In my opinion it would meet the ends of justice if the appellant's sentence is reduced to the period undergone. While the conviction of the appellant under section 304 Pt. I is upheld the sentence is modified to the extent of the period the appellant has already undergone. With this modification of the sentence the appeal is dismissed.