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 1½ 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  1½  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.

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