Judgment P.K.SINHA and C.M.PRASAD JJ. 1. The two appeals aforesaid have arisen out of the judgment recorded by the 2nd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 308 of 1996, hence are being disposed of by this common judgment. 2. Appellant Munna Sao @ Munna Kumar @ Kalia (hereinafter referred to as "Kalia") has been convicted under Sections 302, 307 and 201 of the Indian Penal Code ("the -Code", in short) and for each of the first two offences he has been sentenced to undergo rigorous imprisonment for life, whereas no separate sentence has been awarded for the last offence. Appellant Pintu Kumar stands convicted under Section 302 read with 34 as well under Section 201 of the Code and has been sentenced to life imprisonment for the former, whereas no separate sentence has been recorded for the latter. 3. The fact matrix-allegation of the informant Shailendra Kumar (PW 8) in his fardbeyan (Exhibit 7) recorded on 25.12.1995 at 8.30 p.m. at the Sardar Hospital, Biharsharif, was that on the same day at about 6 p.m. he along with his brother Rana Randhir Kumar Singh @ Chunnu, Naushad (PW 3) and Sujit Kumar (PW 7) was standing at Ranchi Road in front of Khaini Gumti where they noticed two persons coming on bicycle singing obscene song on loudspeaker, for which they were stopped by Chunnu and verbal duel ensued at which Chunnu slapped both the boys who fled away threatening him to teach a lesson. At about 7.30 p.m. three persons on a scooter and one on bicycle came there out of whom Pintu Kumar, Kalia and Sudhir Kumar were identified as riders of the scooter. They put their scooter on stand and reached near the informant where on asking of Kalia to identify the person, the cycle rider pointed Chunnu at which Kalia took out his hand from beneath the shawl he was wearing, holding a knife, and stabbed Chunnu in the abdomen. Thereafter, Pintu Kumar pointed Naushad asking Kalia to hit him also at which Kalia rushed towards Naushad and injured him on back with knife. The miscreants, thereafter, fled away. The injured were brought to hospital where in course of treatment Chunnu died. However, Naushad survived the injury. 4. Thereafter, Pintu Kumar pointed Naushad asking Kalia to hit him also at which Kalia rushed towards Naushad and injured him on back with knife. The miscreants, thereafter, fled away. The injured were brought to hospital where in course of treatment Chunnu died. However, Naushad survived the injury. 4. Before proceeding further pertinent it is to note that in course of arguments learned counsel for the appellants, Shri P.N. Pandey, pointed out examination of Pintu Kumar under Section 313 of the Code of Criminal Procedure ("Cr PC", in short), submitting that the Court had assessed the age of this appellant to be 20 years on 18.6.1999, so he should be deemed to be a juvenile on the date of occurrence (25.12.1995). When arguments were concluding Shri Pandey also submitted that they were going to file petition for inducting into evidence Annexure 1 to the memo of appeal which was photocopy of the matriculation certificate granted to appellant Pintu Kumar in which the date of birth as shown was 1.3.1980. However, till arguments were concluded this petition, I.A. (Cri) No. 552 of 2003, had not come on the record. Subsequently from the Filing Section this petition was sent and attached to the record. Therefore, before proceeding with the judgment we find it necessary to dispose of this petition also in the judgment itself, we are afraid, at this stage this photocopy of the matriculation certificate cannot be inducted into the evidence. This obviously is secondary evidence, the original document having been withheld. The circumstances under which secondary evidence relating to the documents may be given, have been catalogued under Section 65 of the Indian Evidence Act. 1872. We are afraid that none of these conditions are fulfilled. It is not possible to mark the document as evidence when even the State will be denied opportunity to test in cross-examination the witness coming to prove any of the circumstance mentioned under Section 65 of the Indian Evidence Act, if this Court thought it necessary to induct this paper into evidence. However, as the judgment of this case will reveal, the consideration of this prayer would only be academic. But under existing circumstances, the prayer is rejected. 5. Coming to the prosecution evidence, in all 9 prosecution witnesses have been examined with Dr. However, as the judgment of this case will reveal, the consideration of this prayer would only be academic. But under existing circumstances, the prayer is rejected. 5. Coming to the prosecution evidence, in all 9 prosecution witnesses have been examined with Dr. Mahadeo Dubey PW 2 being the one who had conducted the post-mortem on the dead body and PW 9, Bajarangi Singh, being the Investigating Officer. PW 6, Dinesh Kumar, was a witness to inquest report and PW 4, Dhananjay Kumar Patel, a witness to the seizures made. PW 1, Sarju Prasad, is just a formal witness who has proved the formal FIR, to be Ext. 1. Injured, Naushad Alam (PW 3), Ravikant Verma (PW 5), Sujit Kumar (PW 7) and the informant himself are eye-witnesses to the occurrence. 6. First of all we take up the case of Kalia. All these eye- witnesses have fully supported the prosecution case in so far as the genesis of the occurrence and then coming of Kalia with two others on scooter and another person on bicycle are concerned. These witnesses have supported that on pointing by the cycle- rider this appellant had come to Chunnu and took out a knife which he had kept in his hand, concealed under the shawl that had covered him, and stabbed in the abdomen, fatally injuring him. These witnesses also have fully supported that thereafter Kalia on being exhorted had also hit Naushad on his back, injuring him. So far these points are concerned, these witnesses have fully withstood the test of cross-examination, as also meticulously discussed in the judgment of the learned lower Court. There are some minor discrepancies as would be natural when the witnesses are examined 2 to 4 years after the occurrence. For example, in the FIR it was made out that cycle riders singing the song were slapped by Chunnu at about 6 p.m. after which they fled away threatening him, and one of them came back on bicycle accompanied by three on a scooter at 6.30 p.m. PW 1 has said that miscreants had come back after 20 minutes whereas PW 5 has given this time to be 5 to 7 minutes, but PW 7 has stated that they came back after half an hour. No one was exactly calculating the time but this is minor discrepancy, with reference to the evidence of PW 5 on this point, when compared to otherwise trustworthy evidence given by the eye-witnesses on the point of actual occurrence. 7. It has come in the evidence of witnesses that the place of occurrence was a very busy place having large number of shops there. It was argued that apart from the witnesses said to be accompanying the deceased, no witness of the spot came forward to support the case. The Investigating Officer, when came to the place of occurrence had found the shops closed. PW 7 in para 6, and PW 5 in para 9 of deposition have said that after the occurrence all the shop-keepers pulled down their shutters and had fled away. 8. Such a situation is not unnatural as it is well known that when such a crime has been committed, hardly anybody, who may be an independent witness, wants to be any part of it, even as a witness, and the trend generally is to avoid the law enforcing authorities instead of aiding them in apprehending and prosecuting the culprits. But since the evidence of eye-witnesses have been found to be reliable, non-examination of nearby shopkeepers will not cause any dent into the credibility of the prosecution case. 9. PW 3 is the injured himself. In this examination-in-chief he has named both the appellants, besides Sudhir Kumar, saying that they had come on a scooter. However, it will appear that this witness during cross-examination admitted that he did not know these persons from before but he had told the police their names as revealed to him by Chunnu while proceeding to the hospital. It has come in the evidence that both had proceeded to the hospital on the same rickshaw. But this part of evidence will not minimise the overall evaluation of his evidence more so when while deposing in the Court, he had identified both the appellants by their names. 10. In view of such overwhelming evidence against Kalia, Shri Pandey concentrated the arguments mainly on the point of that the offence committed by Kalia as revealed by the witnesses, would come under part two of Section 304 of the Code. Learned counsel argued that obviously Kalia had no animosity with Chunnu nor had any reason to assassinate him. 10. In view of such overwhelming evidence against Kalia, Shri Pandey concentrated the arguments mainly on the point of that the offence committed by Kalia as revealed by the witnesses, would come under part two of Section 304 of the Code. Learned counsel argued that obviously Kalia had no animosity with Chunnu nor had any reason to assassinate him. It was argued that though Kalia, if he had intended to commit murder of Chunnu, was in a position to inflict more than one blow by the knife which he was wielding, but the evidence was clear that he had made only one strike. Learned counsel, to reinforce argument, has relied upon a decision of the Apex Court in the case of K. Ramakrishnan Unnithan V/s. State of Kerala, (1999) SCC (Cri) 410 : 1999 (1) East Cr C 976 (SC). In that case the accused was beating a boy and hearing the cry, his sister rushed there along with the father of the boy and protested. Thereafter the accused gave only one blow to the father in the abdomen with knife causing his death within 12 hours. Their lordships noted that the deceased was involved only because of the altercation with his son and not because of animosity with him on the part of the accused. In that circumstance it could not be inferred that the accused gave the blow with intention to cause murder hence the offence fell within the mischief of Section 304, Part 2 of the Code. The facts of the aforesaid case, we are afraid, do not apply in the circumstances as obtaining in this case. In that case the father had suddenly came and on such intervention the accused had given him one dagger blow. In this case the genesis was that Chunnu had a quarrel with two cycle-riders and also had slapped them at which they had gone away threatening to teach him a lesson and, after sometime, he came back with three persons on a scooter. Coming out from the scooter Kalia specifically asked, as per evidence, the cycle-rider to point out his culprit and so the deceased was pointed out. This appellant obviously had come prepared to inflict fatal injury to the deceased and for that reason he had a knife concealed beneath the shawl and coming near Chunnu he took out the knife and stabbed the deceased. This appellant obviously had come prepared to inflict fatal injury to the deceased and for that reason he had a knife concealed beneath the shawl and coming near Chunnu he took out the knife and stabbed the deceased. It has come in the evidence of PW 7 that the blade of knife was 6"-7" long and entire of that had been pushed into the abdomen. Therefore, this appellant had no sudden provocation and there was no sudden interference by any one, but he appears to have, for some inexplicable reason, taken upon himself to avenge the slighting of the cycle-rider and had come fully prepared to inflict fatal injury, carrying with him a knife with long blade. 11. PW 2, Dr. Mahabir Dubey did find one incised wound 1-1/4" x 1/2." x cavity deep situated on the front of right lower chest. On dissection the doctor found blood clots present in the abdomen and the liver was cut. All the layers beneath the injury were also dissected. The clear opinion of the doctor was that the injury so caused by a knife or dagger "was sufficient to cause death in normal and natural course." 12. Coming to Section 300 of the Penal Code, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or...... (thirdly). If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 13. This appellant definitely had intention to cause bodily injury to the person who had slapped the cycle riders and in doing so he did inflict such bodily injury which was sufficient in ordinary course of nature to cause death. 14. We do not find that the act of this appellant was covered by any of the exceptions mentioned under Section 300 of the Act. It was definitely not an offence committed when deprived of the power of self-control by grave and sudden provocation as in exception 1. Exceptions 2 and 3 to Section 300 of the Code obviously are not applicable. Exception 4 states that that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. Exceptions 2 and 3 to Section 300 of the Code obviously are not applicable. Exception 4 states that that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. This also is not applicable simply because the appellant himself had not entered into any sudden quarrel with the deceased, and the act was committed with premeditation. Exception 5 is also not applicable. Therefore, we find that the act of appellant Kalia was a deliberate one, and he himself must have been aware of the fatal result of such an act when he stabbed the deceased to the hilt with the knife, which was, according to evidence on record, 6" to 7" long. We, therefore, find that the learned lower Court has rightly convicted the appellant Kalia under Section 302 of the Code. 15. In so far as his conviction under Section 307 of the Code is concerned, it has come in the evidence and as also is the prosecution allegation that he primarily had assaulted Chunnu but on being exhorted by Pintu, he ran and also assaulted Naushad on the back. Evidence of Naushad is that because of that injury he never lost consciousness. PW 2 had also examined Naushad at 6.55 p.m. on 25.12.1995 and had found an incised wound 1" x 1/2" x muscle deep on the back of the left side of the chest in upper part. The opinion was reserved about nature of injury. However, that ultimate opinion has not been brought on the record. 16. Keeping in view the circumstances and the nature of injury it does not appear that the case would be covered under Section 307 of the Penal Code. It also does not appear, nor anything has been brought on record to show, that the injury was even grievous one. Therefore, in our opinion, though it is true that Kalia had stabbed on the back of Naushad causing him one injury, tills particular offence would be punishable under Section 324 of the Code. In that view of the matter, conviction, and sentence, of this appellant under Section 307 of the Code are set aside, but he is convicted under Section 324 of the Code and sentenced to R.I. for three years. Both the sentences would run concurrently. 17. In that view of the matter, conviction, and sentence, of this appellant under Section 307 of the Code are set aside, but he is convicted under Section 324 of the Code and sentenced to R.I. for three years. Both the sentences would run concurrently. 17. Now coming to the case of Pintu Kumar it may be noticed that out of four eye-witnesses three had supported the prosecution case as brought out in the FIR that after Chunnu was assaulted, it was this appellant who pointed Naushad instigating Kalia to hit him also, but PW 7 gave a different version and said that it was the cycle rider who had accompanied the three persons coming on a scooter, who had pointed out Naushad at which Kalia had assaulted him also. 18. In so far as conviction of Pintu is concerned, learned counsel argued that on the basis of evidences that are on the records it could not be inferred that this appellant had common intention to kill the deceased. For this learned counsel has placed reliance upon a decision of the Supreme Court in the case of Mithu Singh V/s. State of Punjab, (2001) 4 SCC 193 : 2001 (2) East Cr C 115 (SC). In that case the appellant who also was armed with a pistol had gone with the co-accused also armed with firearm, to the house of the deceased. Reaching the house, the co-accused fired and killed the deceased. Their lordships observed that at the worst of the accused appellant knew that his co-accused was armed with a pistol, and that the knowledge of previous enmity existing between the co-accused and the deceased could also be attributed to the appellant, but there was nothing available on record to draw an inference that the co-accused had gone to the house of the deceased with the intention of causing her death and such intention was known to the appellant, much less shared by him. 19. Shri Pandey argued that the case of this appellant is on much better footing so much so that he had accompanied Kalia empty handed, and no act whatsoever, physically done or even uttered, has been attributed to him connecting him with the murder of Chunnu or giving rise to the inference of common intention on his part. 20. There is force in this line of argument. 20. There is force in this line of argument. In so far as the murder is concerned, it has been proved by evidence that what this appellant had shared with Kalia was the scooter on which he had come to the place of occurrence but, as per evidence, thereafter Kalia had acted independently asking the cycle rider to identify the wrongdoer and having been so pointed out he reached and stabbed Chunnu. Kalia was concealing the knife beneath in his shawl and there is nothing on the record to indicate that appellant Pintu has knowledge that Kalia had gone to the place of occurrence with knife or Kalia had any intention to inflict such bodily injury to the deceased which was likely to cause his death or, for that matter, he was aware that Kalia was going to inflict any injury whatsoever. Therefore, from the materials on record, we do not find that the prosecution has proved the case beyond doubts that appellant Pintu had common intention with Kalia to commit murder of Chunnu. This being so his conviction under Section 302 read with Section 149 of the Code cannot be sustained. Therefore, conviction of Pintu Kumar, as aforesaid, and the sentence awarded to him, are hereby set-aside. 21. Pintu Kumar has not been charged in connection with the injury inflicted upon Naushad though he could have been so charged on the materials on record including in the FIR that on his asking Kalia had inflicted the knife injury to Naushad. By the State a question was raised as to whether even in absence of the charge on this count against this appellant, he could be convicted for offence which Kalia committed against Naushad, with help of cither Section 34 or 114 of the Code, keeping in view provision under Section 465 of the Cr PC. 22. However, I dont find that appellant Pintu Kumar can be convicted, with help of Section 114 or 34, of the Code for the offence that Kalia committed against Naushad. the reason being that not only Pintu was not charged in that regard but also that in his examination under Section 313 of the Cr PC he was not asked any question relating to assault upon Naushad though such circumstance had come in the evidence of witnesses. 23. the reason being that not only Pintu was not charged in that regard but also that in his examination under Section 313 of the Cr PC he was not asked any question relating to assault upon Naushad though such circumstance had come in the evidence of witnesses. 23. Learned Additional Public Prosecutor submitted that not asking of all the circumstances in examination under Section 313 of the Cr PC could not vitiate the trial and for that he relied upon a decision of the Apex Court in the case of Bimbadhar Pradhan V/s. State of Orissa, AIR 1956 SC 469 . But facts in that case appear to be different. In that case it was pointed out that the other accused who were acquitted were questioned with reference to conspiracy with the approver Pitabhash Sahu, but no such question was put to the appellant. Their lordships noticed that the Court had questioned him about the conspiracy with other accused persons. It was also argued before their lordships that evidence of PW 27 which was chiefly relied upon as corroborating the approver had not been specifically put to the appellant though the evidence of approver. Pitabhas Sahu was put to him. It was under these circumstances that their lordships opined that it was not ordinarily necessary to put the evidence of each individual witness to the accused in his examination under Section 342 of the (old) Cr PC as the appellant was put the question "have you got anything to say on the evidence of the witnesses." 24. It is not at all necessary to ask an accused under Section 313 of the Cr PC everything that has come in the evidence of each individual witness but a circumstance which cumulatively has come against the accused in the evidence of the witnesses must be asked to him under Section 313 of the Cr PC. To hold otherwise would make Section 313, Cr PC only a ritual. Indeed it was main allegation against Pintu Kumar to have exhorted Kalia at which he assaulted Naushad causing injury to him. In the case of Sharad Birdhichand Sarda V/s. State of Maharashtra, AIR 1984 SC 1622 : 1984 East Cr C 559 (SC). it was held by the Apex Court that the circumstances not put to the accused in such examination cannot be used against him. In the case of Sharad Birdhichand Sarda V/s. State of Maharashtra, AIR 1984 SC 1622 : 1984 East Cr C 559 (SC). it was held by the Apex Court that the circumstances not put to the accused in such examination cannot be used against him. This Court in the case of Fatah Mian V/s. State of Bihar, 1998 (2) East Cr C 583 (Pat) : 1998 (2) PLJR 421 , held that any specific circumstances obtaining in evidence if not asked under Section 313 of the Cr PC, that part of evidence must be excluded from consideration. 25. This being so not asking of any question to this appellant in his examination under Section 313 of the Cr PC in this regard, by the trial Court, would vitiate his conviction for the offence, with the help of Section 114 or 34 of the Code, that has been committed by Kalia against Naushad. 26. On behalf of the prosecution it was also pointed out that PW 9, the Investigating Officer had said that after arrest, from the police station he had proceeded with Pintu Kumar and witnesses for recovery of the knife and at the place described by the witness, on the pointing of Pintu Kumar he recovered a knife from a bush which was seized and on which signature of Pintu Kumar was also obtained (Ext. 4/3). It was submitted that this proved Pintu Kumars complicity in the offence. 27. However, even if it was proved that it was the same knife that was used in the incident and was also proved to be belonging to Kalia. that would mainly be an evidence against Kalia. Nothing has been brought on the record even to connect the recovered knife in connection with the crime. All that evidence of PW 9 proves is that Pintu Kumar knew about whereabouts of a knife and on his so pointing the knife was recovered. Anything beyond it would be conjecture. Therefore, this evidence will not effect Pintu Kumar. 28. Both the appellants have also been convicted under Section 201 of the Code though no separate sentence has been passed. This charge relates to the concealing of the scooter on which they were said to have come to the place of occurrence. Anything beyond it would be conjecture. Therefore, this evidence will not effect Pintu Kumar. 28. Both the appellants have also been convicted under Section 201 of the Code though no separate sentence has been passed. This charge relates to the concealing of the scooter on which they were said to have come to the place of occurrence. However, it has come in the evidence that three persons had come on the scooter but it has not come in the evidence of Investigating Officer that he made investigation and found out as to whom that scooter belonged, nor he has said anything that he had tried to locate the scooter or had tried to obtain information about that from the appellants but the appellants had purposely concealed any such information. This witness has said (Para 22) that the informant in his statement had not given the number of the scooter. The third person who was on the scooter did not even face trial. 29. Therefore, I do not think that this charge has been proved against either of the appellants. They, therefore, stand acquitted of this charge also. 30. In the circumstances we find that the appellant Pintu Kumar deserves acquittal against the offence he has been charged with. 31. In the result, in so far as Cr. Appeal No. 476 of 1999 is concerned, the conviction of the appellant, Kalia, and the sentence are upheld under Section 302 of the Code. However, his conviction under Section 307 of the Code is modified and instead, he stands convicted under Section 324 of the Code and sentenced to rigorous imprisonment for three years. Both the sentences will run concurrently. With the aforesaid modification this appeal is dismissed. 32. Cr. appeal No. 375 of 1999 is allowed and conviction and sentence of appellant Pintu Kumar are hereby set-aside and he is acquitted of the charges. He is already on bail from liability of which he stands discharged. Cr. App. 476/1999 dismissed. Cr. App. 375/1999 is allowed.