Sikkim High Court
Shaktiman Rai vs State Of Sikkim on 8 May, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 8th May, 2024
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No.18 of 2022
Appellant : Shaktiman Rai
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Ms. Gita Bista, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The victim, a man aged about forty-six years, a
Government employee, was found lying on a cornfield, in Zeel,
West Sikkim, at around 08.00 a.m., on 12-04-2021, in a critical
condition with signs of brutal assault on his person. He held the
Appellant responsible for the assault, which allegedly occurred on
the night of 11-04-2021. On the morning of 13-04-2021, he
succumbed to his injuries in the hospital. The First Information
Report (FIR) Exhibit 2 was lodged on 12-04-2021, by PW-2 before
the Kaluk PS, informing that his brother was assaulted near the
Church, at Zeel, West Sikkim, at around 06.30 p.m. on 11-04-
2021 by the Appellant. FIR No.05 of 2021, dated 12-04-2021 was
registered against the Appellant, under Section 307 of the Indian
Penal Code, 1860 (hereinafter, the "IPC"), which was converted to
Section 302 IPC, on the death of the victim. The Court of the
Shaktiman Rai vs. State of Sikkim
Learned Sessions Judge, West Sikkim, at Gyalshing, on examining
the Prosecution witnesses and relying largely on the alleged dying
declaration of the deceased, by the impugned Judgment, dated
29-06-2022, convicted the Appellant of the offence under Section
302 of the IPC and sentenced him to undergo imprisonment for
life, with fine of ₹ 20,000/-(Rupees twenty thousand) only, and a
default clause of imprisonment, in Sessions Trial Case No.05 of
2021 (State of Sikkim vs. Shaktiman Rai), on 29-06-2022.
2. On investigation, it transpired that PW-6 the landlord
of the house where the deceased was residing, informed his
neighbor PW-5 Sumitra Rai, on the morning of 12-04-2021, that
the victim had not returned home the previous night, therefore he
intended to search for him. He requested her to tend to his cattle
in the meanwhile. For that purpose, when PW-5 came walking
towards the house of PW-6, she saw the deceased lying naked on
the cornfield of PW-6. She called out to PW-6, who reached the
place and saw the deceased. PW-6 carried the deceased who was
smelling of alcohol, to his room and on his enquiry from the
deceased about his absence from home the night before and the
reason for his condition, the deceased told him that he had been
physically assaulted by the Appellant. PW-6 then informed PW-7
Chandra Lall Limboo, the cousin of the deceased about the
incident, who in turn informed his sons PW-3 Suresh Limboo and
PW-4 Rikesh Limboo. PWs 3 and 6 also informed PW-2, the
Complainant, the younger brother of the deceased. The deceased
as per PW-2 was taken to the District Hospital, Namchi, South
District, the same morning by him, accompanied by his sisters,
PW-3 and one Indra Bahadur Subba, where, on the morning of 13-
04-2021, he succumbed to his injuries. The deceased told PW-4
Shaktiman Rai vs. State of Sikkim
that the Appellant with whom he used to drink, had assaulted him.
(i) On his plea of "not guilty" to the charge framed
against the Appellant under Section 302 of the IPC, by the
Learned Trial Court, he claimed trial, thus ten witnesses were
examined by the Prosecution, on completion of which the
Appellant was examined under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter, the "Cr.P.C."). Consideration of all
evidence on record by the Learned Trial Court culminated in the
impugned Judgment and Order on Sentence. The Learned Trial
Court while convicting the Appellant based its finding on the
alleged statement of the deceased made to PWs 2, 3, 4 and 6,
implicating the Appellant for the assault. Such a statement the
Learned Trial Court opined, was a "dying declaration" and fell
within the ambit of Section 32 of the Indian Evidence Act, 1872
(hereinafter, the "Evidence Act"). The Learned Trial Court was
also of the view that a mere lack of motive or enmity between the
deceased and the Appellant or the failure of the investigating
agency to recover and seize a (murder weapon) if any, would not
suffice to reject the entire case of the Prosecution and discard the
final words/statement of the deceased, who succumbed to his
injuries in less than a day after he named the Appellant as the
perpetrator.
3. Before this Court, the arguments put forth by Learned
Counsel for the Appellant was that the Prosecution was relying on
the evidence of PWs 2, 3, 4 and 7 who are the family members of
the deceased as well of PW-6 his landlord but the evidence of the
Prosecution witnesses do not corroborate each other. As per PW-2,
the deceased told him at the hospital that, he was assaulted by
the Appellant, near the Church, when he was returning home and
Shaktiman Rai vs. State of Sikkim
that PWs 3, 4, 6 and another villager were present when such
statement was made to PW-2. But as per PW-3 he spoke
telephonically with the deceased on the morning of 12-04-2021
who merely told him that there was a fight. PW-3 requested PW-4
his brother to look up the deceased but PW-3 nowhere stated that
PWs 2, 4, 6 and a villager were present when PW-3 was at the
hospital. PW-4 also did not support the evidence of PW-2. As per
PW-4, he met the injured deceased in his house, where the
deceased told him that the Appellant had assaulted him. PW-4 did
not mention his presence at the hospital. Contrary to the
evidence of PW-2, PW-6 also made no mention of being present at
the hospital with PWs 2, 3 and 4. PW-3 in fact in his Section 161
Cr.P.C. statement appears to be unaware of the Appellant being
the assailant, and such statement was made by him for the first
time in the Court. As per PW-4 the deceased pointed towards the
direction of the house of the Appellant but no investigation
regarding such direction was made, neither did the Investigating
Officer (IO), PW-10 investigate the statement of PW-6 that the
Appellant lived forty minutes away from his house. PW-5 was the
first person to have seen the deceased on the cornfield but her
deposition nowhere reveals that the deceased named the
Appellant as the assailant. That, had the Appellant been the
assailant there would undoubtedly have been injuries on his
person, but the medical examination reveals no injuries on him
neither has the Prosecution established the motive of the
Appellant to commit the crime. That, the Learned Trial Court
concluded that the statement of the deceased made to the PWs 2,
3, 4 and 6 was a dying declaration and convicted the Appellant
without any evidence to link the offence to the Appellant, who
Shaktiman Rai vs. State of Sikkim
thereby deserves an acquittal. Hence, the impugned Judgment
and Order on Sentence be set aside.
4. Per contra, Learned Additional Public Prosecutor urged
that there was no error in the Learned Trial Court considering the
statement of the victim as one under Section 32 of the Evidence
Act. That, in Rattan Singh vs. State of H.P.1, the Supreme Court has
held that Section 32(1) of the Evidence Act renders a statement
relevant when made by a person who dies, in cases in which the
cause of his death comes into question. That, the deceased has
categorically stated that the Appellant was the assailant and his
statement was proximate to the offence committed. That, in
Narain Singh and Another vs. State of Haryana , the Supreme Court
held that, the dying declaration made by a person on the verge of
his death has a special sanctity as at that solemn moment a
person is most unlikely to make any untrue statement. Similarly,
there was no reason for the deceased to have spoken an untruth,
while pointing to the Appellant as the assailant, when he was on
the verge of death himself. That, PWs 2, 3, 4, 6 and 7 have
unequivocally fortified the Prosecution stand that the Appellant
was the assailant and their statements were not decimated in
cross-examination. Hence, the conviction and Order on Sentence
suffers from no infirmity which thereby brooks no interference.
5. We have considered the rival contentions canvassed in
extenso and given due consideration to all the materials on record
as well as the evidence and perused the impugned Judgment.
6. The points that arise for determination herein are;
(i) The case being one of circumstantial evidence, was the
(1997) 4 SCC 166
(2004) 13 SCC 264
Shaktiman Rai vs. State of Sikkim
Prosecution able to establish that the facts were consistent only
with the hypothesis of the guilt of the Appellant.
(ii) Was the Learned Trial Court correct in basing its conviction
solely on the alleged dying declaration of the deceased?
7. Having examined the evidence on record it is
indubitably established that there was no eye witness to the
incident, the Prosecution case thus rests entirely on circumstantial
evidence. It is no more res integra that in such a situation the
evidence collated by the Prosecution must be consistent with the
hypothesis of the guilt of the accused and the circumstances
should be of a conclusive nature, establishing that the accused
was the perpetrator of the offence and none else. While
deliberating on this aspect, in Sharad Birdhichand Sarda vs. State of
Maharashtra the Supreme Court considered the parameters that
are required to be proved in a case of circumstantial evidence to
establish the Prosecution case and inter alia observed as follows;
"153. .............................................................................
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully
established.
..................................in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
where the observations were made: [SCC para 19, p. 807: SCC (Cri)
p. 1047]
Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental distance
between „may be‟ and „must be‟ is long and divides
vague conjectures from sure conclusions.
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
(1984) 4 SCC 116
Shaktiman Rai vs. State of Sikkim
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case
based on circumstantial evidence."
(i) It is trite that the Prosecution must stand on its own
legs and cannot garner strength from the weaknesses of the
defence. Besides, the cardinal principle of criminal jurisprudence
is that a case can only be said to be proved beyond a reasonable
doubt when there is explicit evidence against the accused and the
conviction surely cannot be a moral one.
8. In the backdrop of the above enunciated principles of
law in the first instance, it is apposite to look at the evidence
furnished by the Prosecution. Exhibit 7, proved by PW-9, Dr. O. T.
Lepcha, is the autopsy report of the deceased. According to PW-9,
he conducted autopsy on the body of the deceased on 14-04-2021
at 10.40 a.m which concluded at 11.55 p.m. The following are the
observations of PW-9;
"........................The body was identified by the police. The
face was swollen with bilateral black eye with conjuctival
haemorrhage over the left side. There was bleeding from
the nose, and left ear. Rigor mortis was present, post
mortis staining was also present and fixed. There were no
other injuries found over the body of the deceased.
Internal Examination:-
Head & Neck ─ The brain showed swelling with mild
disfiguration of the brain matter. The brain showed
presence of left temporal extradural haemorrhage
(4x3.5x1 cm) with diffuse Sub Arachnoid haemorrhage of
the brain.
Chest ─ There was presence of fracture of the left-
3, 4, 5, 6th ribs with laceration of the lower lobe of lungs
with around 700-800 ml of blood in the chest cavity.
Heart ─ No abnormality detected.
Abdomen ─ Presence of blood in the abdominal
cavity around (800-1000ml).
The spleen was lacerated (1x1.5cms), liver showed
features of Cirrhosis with around 800 ml of fluid (red
colored ─ Ascitic fluid mixed with blood) present in the
abdomen.
Genitals : No abnormality noted.
Time since death :- 24 hours ─ 36 hours.
Cause of Death: the cause of death to the best of my
Shaktiman Rai vs. State of Sikkim
knowledge and belief is due to Intracranial hemorrhage
(Left Subdural Hematoma) and hemmorrhagic shock due
to laceration of spleen as a result of blunt trauma to the
abdomen and skull. ............"
(i) Thus, the evidence of PW-9 is revelatory of the fact
that the deceased was subjected to severe assault, which affected
him externally and damaged his internal organs as well. The cause
of death as per PW-9 was a result of „blunt trauma to the
abdomen and skull‟. It is not the Prosecution case that the
perpetrator attacked the deceased from behind, in fact as per
Exhibit 7, it is evidently a frontal attack as blunt trauma is seen in
the abdomen and four of his ribs have been fractured. It stands
to reason on the basis of Exhibit 7 that the person who inflicted
the injuries would have used a weapon or his bare hands. The
Prosecution has thrown no light on these aspects and admittedly
there was no recovery of any weapon of offence. As a corollary
to Exhibit 7, it thus becomes imperative to examine the medical
report of the Appellant, Exhibit 5, proved by PW-8 the Doctor who
examined him on 13-04-2021. PW-8 stated as follows;
".......................... On 13.04.2021 I examined one
Shaktiman Rai, 53 years, son of Lt. Jit Bahadur Rai,
resident of Lower Zeel, West Sikkim. He gave history of
physical assault on 11.04.2021.
On examination: His BP was 140/90 mmhg. PR 92
b/minute, SPO2-92-93% in the room air, temperature-
afebrile. CVS-S1S2 heard, RS-bilateral air entry equal,
GCS-E4V5 M6. PA-soft. Bowel sound heard.
Impression- no apparent injury. No smell of
alcohol in breath. He was fit for custody. ..............."
[emphasis supplied]
(ii) On 14-04-2021, the Appellant was also examined by
PW-1 Dr. Prabriti Rai, at 11.47 a.m. Her report inter alia is that
on examination she found "..................clothes neat, well behaved,
smell of alcohol negative.........." She also found him to be
conscious and cooperative. She made no mention of any injuries
on the body of the Appellant.
Shaktiman Rai vs. State of Sikkim
(iii) Juxtaposing Exhibit 7 with Exhibit 5 and Exhibit 1, it
appears that the Appellant who is aged about fifty-three years
gave a "history of physical" assault to PW-8 but the Prosecution
shed no further light on this statement and it is unclear whether
he was assaulted or was the assailant and whether it involved the
deceased. Any prudent person would reason that when a person
assaults another, the assailant too is likely to sustain some
injuries considering the extent and severity of the injuries on the
victim. Assuming that the Appellant is the assailant, there are
surprisingly no injuries on his person as vouched for by Exhibit 1
and Exhibit 5. The deceased may not necessarily have retaliated
during the assault that was perpetrated on him but the force and
strength employed by the assailant for injuring the other person
would obviously have had physical repercussions on the assailant
himself, which in the instant case as seen from Exhibits 1 and 5
are wholly lacking. Even if he used his bare hands for the assault,
no injuries were detected by PW-1 and PW-8 on his hands to
establish such signs. It is in fact the categorical statement of
PW-8 that she did not find "any injury" on the body of the
Appellant when she examined him. This circumstance in the first
instance raises doubts about the veracity and the Prosecution case
that the Appellant was the assailant.
(iv) The matter being one of circumstantial evidence it
would next be necessary to consider the evidence of the PW-10,
the IO, to analyze whether his investigation linked the crime to
the Appellant. PW-10 in his evidence inter alia stated as follows;
"............................................................................................
During the course of investigation, the following
line of action were carried out:
On 13.04.2021 the accused person was rounded
up........................ After his medical examination he was
Shaktiman Rai vs. State of Sikkim
formally arrested in the instant case duly explaining his
ground of arrest. Intimation regarding his arrest was
given to his son Radeep Rai. ...............
............................................................................................
During through investigation it was learnt that the
deceased was a habitual drunkard. He always used to
wake up early and head straight towards nearby village in
order to drink alcohol. The deceased being a teacher was
later attached to BAC, Rinchenpong, West Sikkim under
HRDD, Government of Sikkim due to his alcoholic
behavior. As per the statement of Thendup Lepcha, it was
learnt that the deceased used to even get stock of liquour
in jars and bottled for consumption for himself.
............................................................................................
Evaluating the facts and evidence collected, a
prima facie offence defined under Section 302 IPC is made
out against the accused for committing murder of the
deceased Bhim Bahadur Subba.
Hence I submitted the charge-sheet u/s 302 of IPC,
1860, against the aforesaid accused person for his trial."
(v) A bare reading of the evidence of the IO divulges no
reason or clues whatsoever that prompted him to conclude that
the Appellant was the assailant or what measures were employed
by him during investigation to connect the offence to the
Appellant.
9. The undeniable basic tenet of criminal jurisprudence
that holds steadfast is that, the onus lies on the Prosecution to
prove its case beyond a reasonable doubt. While recapitulating
the principles laid down in the case of Sharad Birdhichand Sarda
(supra) and sifting through the evidence of the Prosecution to
remove the chaff from the grain, we notice that the lone evidence
that the Prosecution and the Learned Trial Court relied on was the
alleged statement made by the deceased to the PWs 2, 3, 4 and 6
disclosing the name of the Appellant as the assailant. Such
statement however is of no value to the Prosecution case until
investigation reveals the context of the acquaintance of the
Appellant and the deceased and thereby the reason that the
Appellant would attack the deceased. More importantly the
whereabouts of the Appellant on the night and time of the offence
Shaktiman Rai vs. State of Sikkim
have not been factored in at all by the IO, PW-10. None of the
witnesses including the IO have lifted the veil on this aspect.
Accordingly, in this circumstance the question of Section 106 of
the Evidence Act kicking in also does not arise as the Prosecution
is required to prove its case beyond a reasonable doubt and only
thereafter the accused would have to establish his alibi if any.
Apart for this fact, we also notice that the deceased allegedly
disclosed the name of the Appellant as the assailant, to PWs 2, 3
and 4, who are his relatives but PW-5 made no statement
regarding such disclosure although admittedly she saw him first.
The other persons namely Binod Gurung, Mahakal Bahadur
Gurung and Passang Lepcha who carried him along with PW-6 to
his room as deposed by PW-6 find no mention in the Prosecution
list of witnesses with no explanation furnished for such exclusion.
The relationship between the assailant and PWs 2, 3, 4 and 6 or
any reason or interest that could have propelled them to wrongly
implicate the Appellant, has not been investigated into by PW-10.
PW-6 stated that the next morning at 07.00 a.m. one Phu
Tshering Lepcha, staff of the deceased, came to his house and
showed him a picture of the deceased naked from his waist down
on his mobile. No investigation has been made regarding this
crucial aspect of who had taken the photograph, the place of such
photograph and who circulated it to arrive at the crux of the case
as the deceased was found in a state of undress on the cornfield.
It is not the Prosecution case that the picture came to be shared
by the Appellant. Thus, it is unfathomable as to how the
Prosecution has concluded that the Appellant was the perpetrator
sans tangible proof. The evidence points to the fact that the
deceased was a known alcoholic raising the probability of him
Shaktiman Rai vs. State of Sikkim
having entered into a drunken brawl with a third person and not
necessarily the Appellant. This angle too has been excluded from
the parameters of the investigation. The deceased, it is claimed,
was found by PW-5 at 08.00 a.m., in the cornfield and on her
information, PW-6 carried the victim to his room. If that be so,
then it is indeed surprising that PW-2, in the FIR, Exhibit 2 has
specifically mentioned that the deceased was assaulted at "06.30
p.m. on 11-04-2021". How PW-2 came to be privy to such
specific information ought to have concerned the IO, who
unfortunately has turned a Nelson‟s eye to it and failed to delve
into the source of such crucial information. PW-6 in his deposition
also states that he had gone to look for the deceased the same
evening i.e., 11-04-2021 but was not able to trace him, thus when
he was not traceable that night it is incomprehensible as to how
PW-2 learnt of the above circumstances of the time and place of
the victim‟s assault. While sifting through the evidence further,
we find that the place of occurrence is said to be near the Church,
why and how the Appellant reached the cornfield of PW-6, the
distance between the cornfield and said Church and the facts
surrounding such circumstances have not been examined at all by
PW-10. How PW-2 came to learn that the deceased was assaulted
near Zeel Church, when the victim was lying on the cornfield is
another mystery. The sisters of PW-2 and Indra Bahadur Subba
were not cited as Prosecution witnesses although PW-2 mentions
their presence at the hospital. In our considered view, the
Prosecution while relying totally on the evidence of PWs 2, 3, 4
and 6, failed to establish the identity of the Appellant as the
assailant or his involvement in the offence as apparent from the
foregoing discussions.
Shaktiman Rai vs. State of Sikkim
(i) While addressing the issue of motive, it is now settled
law that the Prosecution need not establish motive in every case
as motive is an unknown element or that the cherished principles
or golden thread of proof beyond reasonable doubt which runs
through the web of our law should not be stretched morbidly to
embrace every hunch, hesitancy and degree of doubt (See Shivaji
Sahabrao Bobade and Another vs. State of Maharashtra, (1973) 2 SCC 793).
It is also held by the Supreme Court in Suresh Chandra Bahri vs.
State of Bihar that if motive is proved that would supply a link in
the chain of circumstantial evidence but the absence thereof
cannot be a ground to reject the Prosecution case. However, in
Babu vs. State of Kerala , the Supreme Court went on to observe
that absence of motive, in a case depending on circumstantial
evidence is a factor that weighs in favour of the accused. In our
considered view, the Prosecution must put in context the
involvement of the accused in the crime and his presence at the
crime scene must be established by an unbroken chain of
unimpeachable circumstantial evidence. The instant matter is
bereft of such evidence.
(ii) Now while addressing the issue of the Learned Trial
Court having convicted the Appellant solely on the basis of the
dying declaration of the deceased, it needs no reiteration that
though the dying declaration must be approached with
circumspection, for the reason that the maker of the statement
cannot be subjected to cross-examination, there is neither a rule
of law nor a rule of prudence which has hardened into a rule of
law, that a dying declaration cannot be acted upon unless it is
(1995) Supp (1) SCC 80
(2010) 9 SCC 189
Shaktiman Rai vs. State of Sikkim
corroborated (See Munnu Raja and Another vs. The State of Madhya
Pradesh (1976) 3 SCC 104).
(iii) In State of Madhya Pradesh vs. Dal Singh and Others6, the
Supreme Court expounded that the law on the issue of dying
declaration can be summarized to the effect that law does not
provide who can record a dying declaration, nor is there any
prescribed form, format, or procedure for the same. The person
who records a dying declaration must be satisfied that the maker
is in a fit state of mind and is capable of making such a statement.
The Supreme Court has time and again categorically reiterated
that there is no requirement of law that a dying declaration must
necessarily be made before a Magistrate and that the statement of
the injured in the event of his death, may also be treated as FIR.
Moreover, the requirement of a certificate provided by a doctor in
respect of such a state of the deceased, is not essential in every
case. In Paras Yadav and Others vs. State of Bihar7, the Supreme
Court was of the view that lapse on the part of the investigating
officer in not bringing the Magistrate to record the statement of
the deceased should not be taken in favour of the accused. That,
a statement of the deceased recorded by a police officer in a
routine manner as a complaint and not as a dying declaration can
also be treated as dying declaration after the death of the injured
and relied upon if the evidence of the Prosecution witnesses
clearly establish that the deceased was conscious and was in a fit
state of health to make the statement.
(iv) In Muthu Kutty and Another vs. State by Inspector of
(2013) 14 SCC 159
(1999) 2 SCC 126
Shaktiman Rai vs. State of Sikkim
Police, T. N. , the Supreme Court inter alia observed that should
the dying declaration be excluded it will result in miscarriage of
justice as the victim generally being the only eye witness in a
serious crime, the exclusion of the statement would leave the
Court with a scrape of evidence. However, the Court further
clarified that the dying declaration should be of such a nature as
to inspire full confidence of the Court in its correctness and the
Court has to be on guard that the statement of the deceased was
not the result of tutoring, prompting and a product of imagination.
(v) The Supreme Court in Laxman vs. State of Maharashtra9,
authoritatively pronounced that there is no requirement of law
that dying declaration must necessarily contain a certification by
the doctor that the patient was in a fit state of mind especially
when the dying declaration was recorded by a Magistrate. It is
the testimony of the Magistrate that the declarant was fit to make
the statement, gains importance and reliance can be placed upon
declaration even in the absence of the doctor, provided the Court
ultimately holds the same to be voluntary and truthful. The
Judgment does not lay down a proposition that medical evidence,
even if available on record, as also the other attending
circumstances should altogether be ignored and kept out of
consideration to assess the evidentiary value of a dying
declaration whenever it is recorded by a Magistrate (See Nallapati
Sivaiah vs. Sub-Divisional Officer, Guntur, Andhra Pradesh (2007) 15 SCC
465 ).
(vi) Now, being armed with the above principles of law,
while examining the basis of the conviction i.e., the dying
(2005) 9 SCC 113
(2002) 6 SCC 710
Shaktiman Rai vs. State of Sikkim
declaration, in the first instance, in this case it has to be noticed
that the dying declaration has not been recorded either by a police
officer, a Magistrate, a doctor or for that matter any other
independent entity. It is an unrecorded oral statement allegedly
made by the deceased to PW-2. In such a situation the statement
requires deeper scrutiny more so when PWs 3, 4 and 6 who PW-2
claims were with him, when the statement was made fail to
corroborate the evidence of PW-2 as PWs 3, 4 and 6 claim to have
spoken with the deceased in his house and their statements do
not reveal their presence at his bedside in the hospital along with
PW-2. Considering the evidence as discussed hereinabove, it
becomes doubtful as to whether the victim had indeed made any
statement to PW-2 indicting the Appellant and detracts materially
from the reliability of the alleged dying declaration. Had PWs 3, 4
and 6 vouched for the statement made by PW-2 regarding their
presence in the hospital and hearing the statement made by the
victim, this Court could have accepted it without reservation but in
light of the vacillating evidence, the Court is required to be more
circumspect in such acceptance of the Prosecution evidence.
(vii) The deceased was evacuated to the Namchi District
Hospital, on the morning of 12-04-2021. The doctor who first
attended to the deceased and whose medical examination is of
paramount importance to gauge the mental condition of the
deceased, finds no place in the Prosecution evidence, neither do
we find the name of any doctor who treated the victim. There is
consequently no medical evidence to enable the Court to reach a
finding that the victim was in a fit state of mind to make any
statement, much less a dying declaration. In such a situation,
while weighing in the evidence of PWs 2, 3, 4 and 6 that the
Shaktiman Rai vs. State of Sikkim
assault on the deceased was severe, it is open to speculation as to
whether the deceased was in a fit mental condition to make a
statement regarding his assault or whether it was a product of his
imagination or hallucination, which has not been ruled out by a
competent doctor, thereby requiring the Court to be circumspect
while considering such evidence. This gains further importance for
the reason that the deceased was an alcoholic as per PWs 6 and
10, giving rise to the above probabilities.
(viii) In C. Muniappan and Others vs. State of Tamil Nadu10 the
Supreme Court propounded that there is a legal obligation on the
part of the Court to examine the Prosecution case dehors lapses in
investigation and to find out whether the evidence is reliable or
not and whether the lapses affected the object of finding out the
truth. The conclusion of the trial cannot be allowed to depend
solely on the probity of the investigation.
(ix) Indeed, the fault of the investigating agency cannot
allow the accused to run scot free but it also needs no reiteration
that the statement made by the deceased should strike a prudent
person as being genuine, truthful, untainted, wholly reliable and
voluntary, in addition to the maker being in a fit medical condition.
In view of the lacuna in the Prosecution case as found
hereinabove, we are of the considered view that although Section
32 of the Evidence Act is an exception to the rule that hear-say
evidence is not admissible, nevertheless, it would, in the facts and
circumstances of the instant case as discussed above, be a
travesty of justice to base a conviction on it. It was the bounden
duty of PW-10 to have resolved the mystery as to how the
incident panned out and how the Appellant was involved in it.
(2010) 9 SCC 567
Shaktiman Rai vs. State of Sikkim
10. There has been no adherence to the principles
propounded in Sharad Birdhichand Sarda (supra) and the Appellant
cannot be convicted on vague conjectures, conviction can only be
based on absolute conclusions. We cannot convince ourselves to
conclude that the circumstances presented by the Prosecution are
of a conclusive nature nor has it been shown that in all human
probability the act was committed by the accused and none else.
PW-10, the IO was required to scratch the surface and uncover
possible connections that would have given the clear picture by
connecting the dots. In the absence of such evidence, relegating
the Appellant to a life of incarceration would singularly be a
travesty of justice.
11. For the foregoing reasons we are in disagreement with
the findings of the Learned Trial Court.
12. We accordingly set aside the impugned Judgment and
the Order on Sentence.
13. The Appellant be set at liberty forthwith.
14. The Jail Authorities shall however examine their
records to verify whether he is involved in any other matter before
such release.
15. Fine, if any, deposited by the Appellant in terms of the
impugned Order on Sentence, be reimbursed to him.
16. Appeal allowed and disposed of.
17. Copy of this Judgment be transmitted forthwith to the
Learned Trial Court for information along with its records.
18. Copy of this Judgment also be made over to the PW-
10, Investigating Officer of the case P.I. Yogesh Chettri.
19. Copy of this Judgment be forwarded to the Jail
Authority at the Central Prison, Rongyek, by e-mail for information
Shaktiman Rai vs. State of Sikkim
and necessary steps. A soft copy of the Judgment be also made
over to the Prisoner by the Jail Superintendent.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
08-05-2024 08-05-2024
Approved for reporting : Yes
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