WAIKHOM YAIMA SINGHversusSTATE OF MANIPUR

                        [2011] 5 S.C.R. 448


A                    WAIKHOM YAIMA SINGH
                                  v.
                       STATE OF MANIPUR
                (Criminal Appeal No. 802 of 2006)
                          APRIL 18, 2011
B
           [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

       Penal Code, 1860- s.302 - Murder- Dying declaration
  by the victim in the hospital that appellant was guilty of
c assaulting him and the next day the victim expired - Acquittal
  by the trial court - However, conviction u/s. 302 by the High
  Court, on basis of the dying declaration of the deceased - On
  appeal, held: Factum of the dying declaration is suspicious
  - Dying declaration is oral - No evidence about the fitness
0 of the victim to make the dying declaration - Exact words of
  the dying declaration not available - They differ from witness
  to witness - Though the witnesses claimed to have reported
  to the informant about such dying declaration and the name
  of the assailant, there is no reflection of the name in the FIR
E - Trial court took a perfectly probable view 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 - Thus,
  the High Court erred in holding that the dying declaration was
  creditworthy - Order of acquittal by the trial court is restored.

F      Evidence Act, 1872 - s. 32 - Dying declaration -
  Evidentiary value - Held: Dying declaration can be the sole
  basis for conviction, however, it has to be proved to be wholly
  reliable, voluntary, and truthful - Maker of the dying
  declaration must be in a fit medical condition to make it - Oral
G 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.

H                                448
  WAIKHOM YAIMA SINGH v. STATE OF MANIPUR               449

     According to the prosecution, PW-4 found the victim       A
lying' in an unconscious state on the road. He alongwith
his friends and relatives took the victim to the hospital
around 10 pm. The victim was given some treatment and
he came to his senses and gave a dying declaration that
he was assaulted by the appellant. The victim expired the      a;
next day at about 3 am. The dying declaration was made
in the presence of PW-1, PW-2, PW-4, PW-5 and PW-7.
PW-14 relative of the victim, was present with the victim
almost till 3 am but not when the dying declaration was
made. The aforesaid witnesses reported to PW-14 about          c
the dying declaration and the FIR was lodged. The trial
court did not believe the prosecution case and acquitted
the appellant. However, the High Court relying on the
dying declaration, convicted the appellant. Therefore, the
appellant filed the instant appeal.                            0
    Allowing the appeal, the Court
     HELD: 1.1 There is 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 10or11" pm. This
is in sharp contradiction to the evidence of PW-14, the
cousin of the deceased, who claimed that till 3 pm, there      F
was no dying declaration made. This is the first
circumstance which would make the factum of the said
dying declaration suspicious. 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          G
allegedly making the said dying declaration, the time of
which is not fixed by the prosecution. The most important
circumstance about the dying declaration is that, firstly,
it is oral and secondly, there is no medical evidence
   450     SUPREME COURT REPORTS               [2011] 5 S.C.R.


A suggesting that the deceased was in a fit medical
  condition to make such a dying declaration. [Para 13 and
  14) [457-E-H; 458-A]

       1.2 The dying declaration can be the sole basis for
  conviction, however, such a dying declaration has to be
8
  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
C deceased are not available, particularly because of the
  failure of memory of the witnesses who are said to have
  heard it. In the instant 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
D others do not. PW-12, doctor who cross-examined the
  deceased, was also not cross-examined by the Public
  Prosecutor about the medical condition of the deceased
  and further fact as to whether he was in a fit condition to
  make· any statement. Though the witnesses claimed to
E have reported to PW-14 about such dying declaration and
  the name of the assailant, there is no reflection of the
  name in the FIR. [Para 15) [458-B-E]

        1.3 Had the witnesses heard the dying declaration
F and reported the matter to PW-14 who made the FIR, he
  would never have failed to mention the name. Instead, in
  the FIR it is stated that it was some unknown person who
  had beaten up the deceased. The FIR was almost
  immediately after PW-14 came to know about the death
G of his cousin (deceased). If under such circumstances,
  the trial court felt it unsafe to rely on the so-called dying
  declaration, the trial court was justified in taking that
  view. A perfectly probable view has been taken by the
  trial -court which could 11ot have been set aside for the
  mere fact that some other view could be taken on the
H
                             ~-
  WAIKHOM YAIMA SINGH v. STATE OF MANIPUR                451


basis of the dying declaration. It cannot be understood         A
as to how the High Court held in 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. [Paras 16 and 17) [458-H; 459-
~~                                                              B
     1.4 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         C
the FIR, the name of the accused was not mentioned. In
fact, that, was a good reason. The High Court is also not
correct in observing that PW-14 was not present
throughout the night of 30.10.1989 at the Hospital. The
High Court has given reasons that the FIR could not be          D
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 PW-14
was informed about the name of the assailant, he would
never have failed to mention the same in the FIR.               E
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. The
judgment of the High Court is, therefore, set aside and
that of the trial court is restored confirming the acquittal    F
of the appellant/accused. [Paras 18 and 19) [459-B-G]

     Ravi Kumar vs. State of Punjab AIR (2005) SC 1929 -
referred to.

                    Case Law Reference:                         G

    AIR (2005) SC 1929       Referred to          Para 18
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 802 of 2006.
                                                                H
    452      SUPREME COURT REPORTS               [2011) 5 S.C.R.


A      Ranjit Kumar, Pukhrambam Ramesh Kumar and Rajiv
    Kumar for the Appellant.

          Khwairakpam Nobin Singh for the Respondent.

          The Judgment of the Court was delivered by
B
         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
c   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
D   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 and
    relatives and when he came back on the spot with other people
    with a light, they found the said deceased in an unconscious
E   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
F   about 3'0 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
G   (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
    WAIKHOM YAIMA SINGH v. STATE OF MANIPUR                       453
              [V.S. SIRPURKAR, J.]
   declaration was made to the other witnesses. On the basis of           A
   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
   prosecution, 15 witnesses came to be examined. The                     B
   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        c
   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              0
   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            E
· -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 was that the judgment of            F
 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)              G
 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             H
    454     SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A out that this witness was present in the hospital for some time
  and then left; however, at about 6' 0 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.
B 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
c the accused in the FIR. The learned Senior Counsel, therefore,
  argued that either 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.
D        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
E 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
F 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 Oeben Singh (PW-4) and L.
G Subhaschandra Singh (PW-7) had never informed him about
    the dying declaration made by the deceased involving the
    present appellant. The learned Senior Counsel pointed out that
   the,Vihole story of the so-called dying declaration was a myth
  - and that if the dying declaration was made in presence of the
H prosecution witnesses, they would never have failed to mention
  WAIKHOM YAIMA SINGH v. STATE OF MANIPUR                      455
            [V.S. SIRPURKAR, J.]
the name of the assailant and eventually the nanie was bound           A
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              B
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,          C
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          D
 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 gave him whatever
assistance he could, by giving him first aid treatment. He also
asserted that the injured person "gained some consciousness".          E
 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 lbomcha 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
                                                                       F
 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-             G
4) who claimed that on hearing the unusual sound at about 8'
0 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)          H
    456     SUPREME COURT REPORTS                    [2011] 5 S.C.R.


A 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 injured gathered senses and said in presence of L. Jiten
  Singh (PW-1), L. Ranachandra Singh (PW-2), L. Chanbi Singh
B (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
c 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.
0
       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
E 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
F 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
G 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.
H
  WAIKHOM YAIMA SINGH v. STATE OF MANIPUR                   457
            [V.S. SIRPURKAR, J.]
     11. L. Chanbi Singh (PW-5) also claimed that he was with      A
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.         B
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   c
surname of Yaima Singh.

     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             D
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.
                                                                   E
     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      F
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     G
make the factum of the said dying declaration suspicious.

     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.    H
    458      SUPREME COURT REPORTS                     [2011) 5 S.C.R.


A   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
8
   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
C 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
D others do not. Further, Dr. Ningombam Shyamjai Singh (PW-
   12) was also 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
E ·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
F 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
G 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,
H   a perfectly probable view has been taken by the trial Court
  WAIKHOM YAIMA SINGH v. STATE OF MANIPUR                      459
            [V.S. SIRPURKAR, J.]
which could not have been set aside for the mere fact that some        A
other view could be taken on the basis of the dying declaration.
We 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              B
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                 C
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            D
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 ofthe assailant, he would never have failed to          E
mention the same in the FIR. The reliance of the High Court on
the reported decision in Ravi Kumar Vs. State of Punjab [AIR
(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        F
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           G
forthwith unless required in any other matter.

N.J.                                            Appeal allowed.