Waikhom Yaima Singh Vs
State of Manipur
J U D G M E N T
V.S. SIRPURKAR, J.
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).
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 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 along with 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 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.
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 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 5the 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.
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 6involving 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.
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.
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
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 7gave 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.
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 8injured
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.
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 9never made dying declaration or that his father died without speaking
any word as he had got serious bleeding injuries which incapacitated him to
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.
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.
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.
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.
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.
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 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.
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).
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 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
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 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.
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.