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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 802 OF 2006
Waikhom Yaima Singh ... Appellant
Versus
State of Manipur ... Respondent
J U D G M E N T
V.S. SIRPURKAR, J.
1. The appellant herein is challenging the judgment of
the High Court, whereby his acquittal as ordered by the
trial Court, was set aside and he was convicted for the
offence of murder punishable under Section 302 of the
Indian Penal Code (IPC).
2. Shortly stated, the prosecution story is that one
Lourembam Biren Singh (since deceased) was lying in an
unconscious state on the road when he was found by one
Oinam Deben Singh (PW-4) at about 8 pm on 30.10.1989. He
was attracted by a strange sound when he was passing near
the gate of one Ahongshangbam Herachandra Singh. Oinam
Deben Singh (PW-4) informed this to some of his friends
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and relatives and when he came back on the spot with
other people with a light, they found the said deceased
in an unconscious condition. The deceased was then
immediately taken to Regional Medical College (RMC)
Hospital at about 10 pm, where the unconscious Lourembam
Biren Singh was given some treatment because of which he
came to his senses and gave a dying declaration.
However, the deceased expired at about 3’O clock in the
next morning. According to the prosecution, in that
dying declaration, the appellant was accused of having
assaulting the deceased and the same was made in presence
of L. Jiten Singh (PW-1), L. Ranachandra Singh (PW-2),
Oinam Deben Singh (PW-4), L. Chanbi Singh (PW-5) and L.
Subhaschandra Singh (PW-7). L. Ningthouren Singh (PW-
14), who is the relative of the deceased, lodged the
First Information Report (FIR). In fact, L. Ningthouren
Singh (PW-14) was there alongwith the injured (deceased)
almost till 3 am. However, he was not present at the
time when the dying declaration was made to the other
witnesses. On the basis of the said FIR, further
investigation ensued, wherein the necessary panchanamas
were drawn up and the statements of the witnesses were
also recorded. After filing of the chargesheet, the
accused/appellant abjured the guilt. In support of the
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prosecution, 15 witnesses came to be examined. The
prosecution heavily relied on the dying declaration made
by the deceased in presence of L. Jiten Singh (PW-1), L.
Ranachandra Singh (PW-2), Oinam Deben Singh (PW-4), L.
Chanbi Singh (PW-5) and L. Subhaschandra Singh (PW-7).
The trial Court did not believe the prosecution case.
According to the trial Court, if after the death of the
deceased, the witnesses who had heard the dying
declaration of the deceased had gone back to the house of
the deceased and informed L. Ningthouren Singh (PW-14),
his cousin, of the death, then certainly L. Ningthouren
Singh (PW-14) would have come to know of the name of the
person who assaulted the deceased and in that case he
could not have failed to mention that name in the FIR.
On this basis, the trial Court acquitted the
accused/appellant. However, the High Court upset this
acquittal and believed the dying declaration and
ultimately convicted the accused/appellant necessitating
this appeal.
3. We have been taken through the evidence as also the
judgments of the Courts below. Shri Ranjit Kumar,
learned Senior Counsel appearing on behalf of the
appellant, took us through the evidence. His contention
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was that the judgment of the trial Court did not suffer
from any illegality and the trial Court had taken a
probable view. He pointed out that the High court has
hardly given any reason to show that the view taken by
the trial Court was perverse and not possible at all. He
also pointed out that the FIR was given by L. Ningthouren
Singh (PW-14) who was the elder cousin of the deceased
and on being informed by Oinam Deben Singh (PW-4) and L.
Chanbi Singh (PW-5) about the deceased lying in the
darkness, he himself had gone and on finding the deceased
in an injured condition, took him to the hospital. The
learned Senior Counsel pointed out that this witness was
present in the hospital for some time and then left;
however, at about 6′ O clock in the next morning, Oinam
Deben Singh (PW-4) and L. Subhaschandra Singh (PW-7) went
to him to inform about the death of the deceased in the
hospital. The learned Senior Counsel pointed out that L.
Ningthouren Singh (PW-14) was specifically informed by
Oinam Deben Singh (PW-4) and L. Subhaschandra Singh (PW-
7) that the deceased had made a dying declaration
involving the appellant herein; however, when he
thereafter went to Thoubal Police Station, very
surprisingly, he did not name the accused in the FIR.
The learned Senior Counsel, therefore, argued that either
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the said witness was never informed of the names by Oinam
Deben Singh (PW-4) and L. Subhaschandra Singh (PW-7) or
in fact there was no dying declaration made at all by the
deceased.
4. We have seen the whole evidence. The only
explanation that this witness has given is that he did
not mention the name of the accused in the FIR as he
could not properly hear the name of the culprit when the
matter was informed to him by his younger brother. This
witness has specifically admitted that he was in the
hospital from 10 pm to 3 am and he looked after the
injured person. He also asserted that he never went
outside the hospital during that period. He also
admitted that when he found the deceased, the deceased
was unconscious and could not speak. The witness also
admitted that till 3 am, inspite of the medical treatment
by the doctor at RMC Hospital, the injured (deceased)
could not speak. He also admitted that there was another
person in the village who was related to them bearing the
same name as that of the appellant. A specific
suggestion was given to him that Oinam Deben Singh (PW-4)
and L. Subhaschandra Singh (PW-7) had never informed him
about the dying declaration made by the deceased
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involving the present appellant. The learned Senior
Counsel pointed out that the whole story of the so-called
dying declaration was a myth and that if the dying
declaration was made in presence of the prosecution
witnesses, they would never have failed to mention the
name of the assailant and eventually the name was bound
to appear in the FIR.
5. The learned Public Prosecutor, however, strongly
supported the evidence of Oinam Deben Singh (PW-4) and
contended that merely because the name of the accused was
not there in the FIR, that by itself could not wipe out
the evidence of the witnesses who had heard the dying
declaration.
6. In this backdrop, we would first examine the
evidence of the other witnesses who claimed to have heard
the alleged dying declaration as also the evidence of the
doctor, namely, Dr. Ningombam Shyamjai Singh (PW-12), who
attended the deceased.
7. Dr. Ningombam Shyamjai Singh (PW-12), in his
evidence, specifically alleged that he was posted at
Casualty Department of the RMC Hospital at Lamphelpat and
that the deceased L. Biren Singh was brought to him in an
injured condition. The witness also asserted that he
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gave him whatever assistance he could, by giving him
first aid treatment. He also asserted that the injured
person “gained some consciousness”. He, however, further
stated that he could not remember as to whether the
injured person stated or uttered anything during his
brief conscious period. He also named one House Surgeon,
namely, Thokchom Ibomcha to be present alongwith some
relatives of the deceased. He was declared hostile. He
denied his statement to the effect that the injured
person regained sense and took the name of the accused.
Since he was declared hostile, the trial Court ignored
his evidence. The house surgeon is not examined by the
prosecution.
8. That leaves the evidence of Oinam Deben Singh (PW-
4) who claimed that on hearing the unusual sound at about
8′ O clock in the evening, he rushed to the house of L.
Hementa Singh (PW-3), but not finding him there, he
narrated the incident to L. Chanbi Singh (PW-5) and after
gathering some other persons, he reached the spot, where
L. Biren Singh (deceased) was lying in an injured
condition. He then claimed that he alongwith some other
persons, took the injured (deceased) to the hospital. He
claimed that after about “one and half hours”, the
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injured gathered senses and said in presence of L. Jiten
Singh (PW-1), L. Ranachandra Singh (PW-2), L. Chanbi
Singh (PW-5), L. Subhaschandra Singh (PW-7) and one
medical officer that the injured was assaulted by Waikhom
Yaima Singh (appellant herein), a resident of Thokpam
Khunou Arong Thongkhong Manak. In his cross-examination,
he denied that the injured never regained his
consciousness. He contradicted his earlier statement
that the deceased had merely stated that he was assaulted
by Waikhom Yaima Singh of Thokpam Khunou Arong Thongkhong
Manak. His explanation was that the police might have
shortened his statement. He also admitted that there was
one other person called Yaima Singh in their locality.
9. L. Jiten Singh (PW-1) also referred to the incident
of finding the deceased in an injured condition. He also
referred to the dying declaration. He is none other, but
the son of the deceased. He claimed that his father came
to senses at about 1= am and that after giving the dying
declaration, his father died within 10-20 minutes. This
is in sharp contradiction with the evidence of PW-14
according to whom Biren Singh was alive till 3 p.m. In
his cross-examination, he denied that his father was
speaking in delirium. He also denied that his father had
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never made dying declaration or that his father died
without speaking any word as he had got serious bleeding
injuries which incapacitated him to speak.
10. L. Ranachandra Singh (PW-2) also reiterated about
the dying declaration. The evidence of L. Hementa Singh
(PW-3) is of no consequence as he has not referred to the
dying declaration. He, however, admitted that in the
next morning, Oinam Deben Singh (PW-4) and L.
Subhaschandra Singh (PW-7) had come to the house and
reported about the death of the victim.
11. L. Chanbi Singh (PW-5) also claimed that he was with
the injured (deceased) in the hospital and that the
injured took the name of the accused and that this was in
presence of L. Jiten Singh (PW-1), L. Ranachandra Singh
(PW-2), Oinam Deben Singh (PW-4) and L. Subhaschandra
Singh (PW-7). This witness asserted that Oinam Deben
Singh (PW-4) and L. Subhaschandra Singh (PW-7) were sent
to the house for giving the information of the death.
Though the other witnesses have admitted, this witness
denied that there was any other person called Yaima Singh
or Waikhom in the village. This witness admitted that in
his earlier statement, he had not mentioned the surname
of Yaima Singh.
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12. L. Subhaschandra Singh (PW-7) is still another
witness who had accompanied the deceased to the hospital.
He claimed that the deceased had made a dying declaration
in his presence. He also asserted that after making the
dying declaration, the injured (deceased) died. In his
cross-examination, he was also given the similar
suggestion that he had not stated the name of L. Jiten
Singh (PW-1) being present, which he denied. The other
witnesses are not relevant.
13. We, therefore, have the evidence of some prosecution
witnesses who claimed that the deceased made a dying
declaration after he regained consciousness which was
within 1 to 1= hours after the deceased reached the
hospital. The witnesses have generally stated that the
deceased reached the hospital by about 10 or 11 pm. This
is in sharp contradiction to the evidence of L.
Ningthouren Singh (PW-14), the cousin of the deceased,
who claimed that till 3 pm, there was no dying
declaration made. We have referred to the evidence of
this witness in details. This is the first circumstance
which would make the factum of the said dying declaration
suspicious.
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14. It is also to be seen that the deceased was very
seriously injured, so much so that according to the
witnesses, he died immediately after allegedly making the
said dying declaration, the time of which is not fixed by
the prosecution. The most important circumstance about
this dying declaration is that, firstly, it is oral and
secondly, there is no medical evidence suggesting that
the deceased was in a fit medical condition to make such
a dying declaration.
15. There can be no dispute that dying declaration can
be the sole basis for conviction, however, such a dying
declaration has to be proved to be wholly reliable,
voluntary, and truthful and further that the maker
thereof must be in a fit medical condition to make it.
The oral dying declaration is a weak kind of evidence,
where the exact words uttered by the deceased are not
available, particularly because of the failure of memory
of the witnesses who are said to have heard it. In the
present case also, the exact words are not available.
They differ from witness to witness. Some witnesses say
about the name of the village of the appellant having
been uttered by the deceased and some others do not.
Further, Dr. Ningombam Shyamjai Singh (PW-12) was also
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not cross-examined by the Public Prosecutor in this case
about the medical condition of the deceased and further
fact as to whether he was in a fit condition to make any
statement. Last, but not the least, though the witnesses
claimed to have reported to L. Ningthouren Singh (PW-14)
about such dying declaration and the name of the
assailant, there is no reflection of the name in the FIR.
16. In our opinion, had the witnesses heard the dying
declaration and reported the matter to L. Ningthouren
Singh (PW-14) who made the FIR, he would never have
failed to mention the name. Instead, we have it in the
FIR that it was some unknown person who had beaten up the
deceased. It must be remembered that the FIR was almost
immediately after L. Ningthouren Singh (PW-14) came to
know about the death of his cousin Biren Singh
(deceased).
17. If under such circumstances, the trial Court felt it
unsafe to rely on the so-called dying declaration, we do
not think that the trial Court was not justified in
taking that view. In our view, a perfectly probable view
has been taken by the trial Court which could not have
been set aside for the mere fact that some other view
could be taken on the basis of the dying declaration. We
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are at a loss to understand as to how the High Court held
in paragraph 26 of its judgment that the victim was in a
fit state of mind to make the declaration. In fact,
there is absolutely no evidence about the fitness of the
victim to make the said declaration.
18. The only reason why the High Court found fault with
the judgment of the trial Court was that the trial Court
had misconstrued and misunderstood the evidential value
of the FIR. According to the High Court, the dying
declaration was neglected/ignored on the ground that in
the FIR, the name of the accused was not mentioned. In
fact, that, in our opinion, was a good reason. The High
Court is also not correct in observing that L.
Ningthouren Singh (PW-14) was not present throughout the
night of 30.10.1989 at the RMC Hospital. The High Court
has given reasons that the FIR could not be used to
discredit the testimony of the other reliable witnesses.
The High Court has ignored the fact that if in reality
the dying declaration had been made and L. Ningthouren
Singh (PW-14) was informed about the name of the
assailant, he would never have failed to mention the same
in the FIR. The reliance of the High Court on the
reported decision in Ravi Kumar Vs. State of Punjab [AIR
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(2005) SC 1929] is wholly uncalled for. In our opinion,
therefore, the High Court was wholly wrong in observing
that the dying declaration was creditworthy and that the
trial Court had erred in acquitting the accused.
19. The judgment of the High Court is, therefore, set
aside and that of the trial Court is restored confirming
the acquittal of the appellant/accused. The appellant
shall be set to liberty forthwith unless required in any
other matter.
………………………………..J.
[V.S. SIRPURKAR]
…………………………………J.
[T.S. THAKUR]
New Delhi;
April 18, 2011.