The court held that a conviction cannot be based solely on the testimony of a single eye-witness whose evidence is not of a quality that can compel acceptance.

Rangarajan, J. :- This is an appeal against the conviction under Section 302, Indian Penal Code and sentence of imprisonment for life imposed by the learned Sessions Judge, Nowgong, on the appellant Manik Malakar.

2. The facts are simple. According to the prosecution, at about 9 or 9-30 P.M. on 6-6-1971, the appellant stabbed Kshitish Chandra Malakar (the deceased) on his chest with the dagger in the cultivable land situate on the west of the homestead of Benoy Malakar, P.W. 5. Shortly thereafter, Kshitish Malakar died. But, it is stated by the prosecution that he was conscious and could speak though feebly for a few minutes when he mentioned to Benoy Malakar, P.W. 5, that he had been stabbed by the appellant Manik Malakar by a dagger and that he had fled away.

3. In the ejahar given by Aswini Malakar (P.W. 4, uncle of the deceased) it was stated that he had heard about the dying declaration made by the deceased, from Benoy Malakar (P.W. 5).

4. The occurrence is stated to have been witnessed by Roshendra Malakar, who has been examined as P.W. 6. He was not only present when P.W. 4 gave the ejahar but also attested it as a witness. In spite of this, the ejahar does not refer to Roshendra Malakar having actually seen the stabbing; on the other hand, reference has been made in the ejahar to Roshendra Malakar, P.W. 6 having stated that he had heard Kshitish (deceased) shouting that he was stabbed with a dagger by Manik Malakar (appellant) which is different from the version P.W. 6 gave in Court, namely that he had himself seen Manik Malakar stabbing the deceased.

5. A statement under Section 164 of the Criminal Procedure Code was recorded from the appellant on 28-6-71 the accused having been arrested by the Police, according to the statement of the I.O., P.W. 7, on 25-6-1971. The material portion of the said statement of the appellant is worth setting out :-

"Sibu Malakar called and took me. On the road with him another three persons namely Khirendra Malakar, Sotai Malakar and Kshitish Malakar (now being four) pressed me at my neck. I then shouted. Kshitish Malakar whipped out a knife for assaulting me. In fear of my own life I snatched his knife and assaulted him with it."

6. The learned Sessions Judge understood this as a confession of guilt by the accused without noticing that on the face of it is did not amount to an admission of guilt; per contra he had claimed the right of private defence, totally absolving him from guilt. The admission of any incriminating fact is not an admission of guilt.

7. Yet another feature which has been misused by the learned Sessions Judge is that whereas according to the ejahar as well as the evidence of P.W. 6 the occurrence took place in the paddy field belonging to Khagan Paul and Chitta Paul (Marked 'A') in the sketch map, Ext. 5') according to the above statement of the appellant made under Section 164 the occurrence, which he talked about, happened on the road (the road having been marked as 'B' in the said sketch map). In other words the appellant had given a version different from the prosecution.

8. For both these reasons it would not be possible for the prosecution to rely upon the said statement as a confession of guilt by the accused or seek to draw any inference against the appellant on foot of that statement.

9. The prosecution case, therefore, has to stand or fall on the positive evidence adduced in this case. This consists of the solitary eye-witness, P.W. 6 Roshendra Malakar and the so called dying declaration of the deceased before P.W. 5. So far as the latter is concerned, it is worth recalling that there was no reference to the same in the ejahar (F.I.R.) As a measure of safety courts look for a reference to any dying declaration in the F.I.R. itself in cases where it is claimed that the person giving it had knowledge of such dying declaration. This was stressed by Beg, J. Speaking for the Supreme Court, in Ram Kumar v. State of M. P., AIR 1975 SC 1026 : (1975 Cri LJ 870). The