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 t