1. 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 it 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. : 1975CriLJ870 . The well established principle that an F.I.R. is not a piece of substantive evidence was borne in mind; yet it could be used to corroborate or contradict the facts spoken to by the maker of it. Omission to state important facts, claimed to be known to the maker of it would be of considerable significance; in this sense the omission by P.W. 4 to refer to the dying declaration in the ejahar is not only relevant under Section 11 of the Evidence Act but in the circumstances of this case also fatal to the prosecution case concerning the alleged oral dying declaration. The importance of a dying declaration can hardly be minimised; on the sole basis of a dying declaration a conviction for murder can be rested. If there are any factors militating against the truth of the said dying declaration or throwing doubts on it, it would be the Court's duty to scrutinise the alleged dying declaration with care. It is worth recalling that P.W. 4 had himself learnt about the dying declaration from Benoy Malakar, P.W. 5. If this were true one could hardly expect P.W. 4 to omit making reference to the said dying declaration. This serious doubt, which thus arises, concerning the truth of the dying declaration, is only aggravated by the above manner in which the ejahar itself makes reference to the so-called eye-witness Roshendra Malakar, P.W. 6. One can even understand the ejahar being silent about P.W. 6, (in spite of P.W. 6 attesting it) but it would not contain a pointed reference to P.W. 6 having stated that 'Kshitish was shouting that he was stabbed with a dagger by Manik Malakar'. We are afraid that the learned Sessions Judge failed to advert to these infirmities in the prosecution case.
10. It is claimed by P.W. 6 that he was able to identify the appellant owing to moonlit night; the sky was clear according to P.W. 5. Thus P.W. 6 could not have any difficulty in seeing what happened, if he was present. His evidence before the Court was to the effect that when he and Kshitish were proceeding towards the house of Kamini (not examined but said to be not connected with the deceased and accused in this case) to call another Roshendra (who is referred as No. 2, servant of Kamini) the appellant Manik Malakar came from the 'front side'' with a dagger in hand and stabbed Kshitish; P.W. 6 was then only at a distance of 2 or 3 cubits from Kshitish; he could recognise Manik very well; soon after stabbing him, Manik ran away and Kshitish fell down. Nowhere, in the course of his evidence before the Court did prosecution witness 6 depose to what had been mentioned in the F.I.R., namely, that Kshitish shouted and said that he was stabbed with a dagger by Manik Malakar i.e., to say about his merely having heard Kshitish saying that he was stabbed by the appellant (not himself witnessing the stabbing).
11. The principle that a conviction is possible on the testimony of the sole eye-witness cannot be applied to a case where the evidence of that sole witness is not of that quality which can compel acceptance. It is not even as if other persons did not rush to the scene soon after the occurrence. Kshitish and Roshendra Malakar were going to the house of Banko nearby for the Kirtan; there were about 14 or 15 persons and all of them had admittedly rushed to the scene of occurrence. Among them were also some Manipuris, not related to or connected with any of the principal witnesses in this case or the appellant; no effort had been made to examine any of them; not even Roshendra Malakar No. 2, who is said to be away at Bangladesh, was ever examined during the investigation. The precise time when he left and the reason for the Investigating Officer not examining him have not been explained.
12. The motive alleged is said to be the enmity between the appellant and the accused on account of the appellant having had a secret love affair with Fabir, younger sister of Kshitish This has been referred to in the ejahar; it was further stated that in this connection Manik Malakar had a quarrel with Kshitish and that the village headman had prohibited Manik to go to the house of Fabir. If this could serve as a motive for the occurrence this could also serve as a motive for the appellant being falsely implicated. Enmity is often double-edged.
13. The learned Sessions Judge erroneously thought that the statement (Under Section 164) made by the appellant amounted to a confession (from which he retracted despite his claiming to have acted in self-defence and that even the plea of self defence did not fall for consideration since the accused did not plead self defence at the trial. Dua, J., speaking in the Supreme Court in Gottipulla Venkata Siva Subbrayanam v. The State of Andhra Pradesh : 1970CriLJ1004 observed as follows:
The fact that the plea of self-defence was not raised by accused No. 10 end that he had on the contrary pleaded alibi does not, in our view, preclude the Court from giving to him the benefit of the right of private defence, if, on proper appraisal of the evidence and other relevant material on the record, the Court concludes that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right.
14. It is not for the accused to prove beyond reasonable doubt that he acted in self-defence; he had only to raise a probability in his favour of the same being true. This aspect has been discussed at length by the Supreme Court in Pratap v. The State of Uttar Pradesh 1970 SCC (Cri) 303 : 1976 Cri LJ 697. In his concurring judgment Beg, J., has referred to a Full Bench decision of the Allahabad High Court, Rishi Kesh Singh v. State : AIR1970All51 as laying down the correct legal principle, namely, the same need not be proved beyond reasonable doubt.
15. In the above view even if the statement under Section 164 (referring to the occurrence having taken place on the 'road') is considered to relate to the same occurrence as stated by the prosecution (in the 'field') the plea of self-defence which he made in the said statement would entitle him to an acquittal if the said plea can be found to be true or even likely to be true. The accused had referred, therein to three persons, other than the deceased, Sibu Malakar, Khirendra Malakar and Sotai Malakar having pressed him at his neck; when he shouted Kshitish Malakar whipped out a knife for assaulting him; for fear of his own life he assaulted him with the knife. If this was true or could probably be true then on the basis of the said statement alone (unless disproved) the appellant has to be given the benefit of the right of private defence. This statement of the appellant was available to the prosecution even during the investigation; it could not have been difficult for the prosecution to examine Sibu Malakar, Khirendra Malakar and Sotai Malakar with regard to the facts stated therein or even to unearth facts which may be inconsistent with the truth of what the appellant had stated. Nothing of this kind was even attempted by the prosecution.
16. In the view that the said statement under Section 164 made by the appellant gave a different account of the incident the same could not be relied upon by the prosecution to prove that the accused was responsible for the death of the deceased. The evidence of P.Ws. 5 and 6 cannot be safely relied upon to establish that it was the appellant who stabbed the deceased. At any rate serious doubts arise with reference to this part of the prosecution case. Even in the view that the said statement of the appellant under Section 164, Criminal Procedure Code referred to the same occurrence as stated by the appellant even then the right of private defence would accrue to the accused on the basis of the said statement, no part of which has been proved to be false. We do not even have the guarantee in this case of the place of occurrence having been shown to be the 'field', as stated by the prosecution. It Was stated by the Investigating Officer (P.W. 7) that he could not detect any blood in the field; his explanation for the absence of blood was alleged pouring of water on the head of the deceased. Whatever this may be, in the absence of blood-stains being detected from the field it would not be possible to assert that the occurrence did happen in the field as alleged by the prosecution.
17. We find, therefore, that the prosecution has not been able to prove its case beyond reasonable doubt, to the benefit of which the appellant is entitled.
18. In the result, the appeal is allowed. The conviction and sentence are set aside. The appellant is directed to be set at liberty unless he is liable to be detained for some other cause.
19. We wish to acknowledge the assistance we had from Miss Halika Khatun, who has argued amicus curiae for the appellant.