LexWAIKHOM YAIMA SINGH versus STATE OF MANIPUR
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[2011] 5 S.C.R. 448 A WAIKHOM YAIMA SINGH B v. STATE OF MANIPUR (Criminal Appeal No. 802 of 2006) APRIL 18, 2011 [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 8 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 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
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