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2026:JHHC:23533-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (DB) No.488 of 2018

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[Against the judgment of conviction and sentence dated

08.03.2018 passed by the learned Additional Sessions Judge-

VII, Dhanbad, in Sessions Trial Case No.352 of 2016]

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Khagen Rajwar, Aged about 30 Years, S/o -Gokul Rajwar,

Resident of – Huchuk Tar, Pradhan Khanta, P.O + P.S-Baliapur,

District-Dhanbad …. …. Appellant

Versus

The State Jharkhand …. …. Opp. Party

P R E S E N T

HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE SANJAY PRASAD

…..

For the Appellant : Mr. Pratiush Lala, Advocate

For the State : Mrs. Priya Shrestha, Spl. P.P.

…..

C.A.V. on 13/07/2026 Pronounced on 06/08/2026

Per Sujit Narayan Prasad, J.:

1. The instant appeal, filed under Sections 374 (2) of

the Code of Criminal Procedure, is directed against the

judgment of conviction and sentence dated 08.03.2018 passed

by the learned Additional Sessions Judge-VII, Dhanbad, in

Sessions Trial Case No.352 of 2016, whereby and

whereunder, the appellant has been convicted for the offence

punishable under Section 302 of the Indian Penal Code and

sentenced to undergo imprisonment for life along with fine of

Rs.5,000/- and in default of payment of fine, he has further

been directed to undergo R.I. for a period of six months with a

direction that the period of detention already undergone by the

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convict, during investigation, inquiry or trial may be set off

against the sentence awarded to the appellant in the case.

Prosecution case

2. The case of prosecution, in brief, as per fardbeyan of

informant/deceased Sarita Devi recorded by ASI Ashok Kumar

Tiwari(PW-7)of Saraidhela P.S. on 22.03.2016 at 3:00 hours

(3:00 a.m.), in the Emergency Ward of PMCH, Dhanbad, is

that on 22.03.2016 at about 3:00 hours in the Emergency

Ward of PMCH, Dhanbad, the informant/deceased Sarita Devi

gave her fardbeyan during her consciousness without any fear

that her husband Khagen Rajwar(appellant herein) used to

assault and quarrel to her regularly after drinking wine. In the

night of 21.03.2016 her husband Khagen Rajwar came after

drinking wine and when informant/deceased Sarita Devi

advised him for not drinking wine then Khagen Rajwar

assaulted her and poured kerosene oil on her body and ablaze

her on fire as a result she sustained burn injury. She further

stated that her husband fled away from the house after

ablazing her to fire and on hearing halla the people of the

vicinity came and they brought her to PMCH, Dhanbad, for

treatment. She has also alleged in her fardbeyan that later on

her husband Khagen Rajwar also came to extinguish fire with

people of the vicinity.

3. It is the further case of the prosecution that the aforesaid

fardbeyan of informant Sarita Devi (deceased) was recorded

by ASI Ashok Kumar Tiwary (PW-7) of Saraidhela P.S. on

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22.03.2016 at 3:00 hours in the Emergency Ward of PMCH,

Dhanbad in presence of Dr. Laxmi Narayan, Senior Resident,

Department of Surgery, PMCH, Dhanbad. After recording the

fardbeyan of informant Sarita Devi(deceased), ASI Ashok

Kumar Tiwari (PW-7), forwarded the same to the officer-in-

charge of Baliapur P.S. after making station diary entry no.

07/2016 dated 22.03.2016. Thereafter, the officer-in-charge of

Baliapur P.S. registered Baliapur P.S. Case No. 25/2016 on

22.03.2016, U/s 341/323/307/498 (A) IPC against Khagen

Rajwar and deputed S.I. Jugu Purti (PW-8) for investigation of

the case.

4. During the course of investigation informant Sarita Devi

died in PMCH, Dhanbad, during her treatment.

5. Charge-sheet against accused Khagen Rajwar was

submitted for the offence punishable U/s 341/323/498 (A)/304

(B)/307/302 IPC and the cognizance of the said offence was

taken and the case was committed to the Court of Sessions.

6. The charge against accused/appellant Khagen Rajwar

was framed for the offence punishable under Section 302, for

which, he pleaded not guilty and claimed to be tried.

7. In course of trial, the prosecution had examined

altogether 8 witnesses. P.W-1 Gajadhar Rajwar @ Gaju

Rajwar, is bhaisur of deceased and brother of appellant; P.W-2

Binod Rajwar, is another bhaisur of deceased and P.W.3

Gokul Rajwar is the father-in-law of deceased and both P.W-2

and P.W.3 were declared hostile by prosecution; P.W.-4

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Jogeshwar Rajwar; is neighbor of the deceased, P.W.-5 Dr.

Shailendra Kumar, who conducted the post-mortem

examination over the dead body of deceased; P.W.- 6 Dr.

Laxmi Narayan, in whose presence ASI Ashok Kumar Tiwari

recorded the fardbeyan of informant/deceased Sarita Devi;

P.W.-7 is ASI Ashok Kumar Tiwary, who had recorded the

fardbeyan of deceased Sarita Devi and P.W.-8 Jagu Purti, is

the Investigating Officer of the case.

8. Apart from the aforesaid oral evidence of prosecution

witnesses following documentary evidence has been adduced

by prosecution as exhibit-

Ext.-1-Signature of Binod Rajwar on the inquest report,

Ext.- 1/1 Carbon copy of inquest report,

Ext.-2 Postmortem examination report of deceased Sarita

Devi,

Ext.-3 Fardbeyan of informant/deceased Sarita Devi,

Ext.-4 Endorsement on the fardbeyan,

Ext.-5 Station Diary Entry No. 7 dated 22.03.2016,

Ext.-6 Application for deputation of Magistrate for recording the

dying declaration of informant/deceased Sarita Devi.

9. On the other hand, the defence has adduced a xerox of

endorsement of Dr. M.N Sinha, R.M.O, PMCH, Dhanbad

which has been marked as “X” for identification.

10. Accordingly, the trial court after considering the

material available on record and the testimonies of the

witnesses found the accused/appellant guilty for the offence

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under section 302 of I.P.C and as such, convicted and

sentenced vide impugned judgment of conviction and

sentence dated 08.03.2018, which is the subject matter of

instant appeal.

Submission of the learned counsel for the appellant

11. Mr. Pratiush Lala, learned counsel for the appellant has

submitted that the impugned judgment of conviction and order

of sentence suffers from infirmity on the following grounds:

i. It has been contended by the learned counsel for

the appellant that the prosecution has miserably

failed to establish the charge said to have been

proved beyond all reasonable doubts as also no

independent witness has supported the case of the

prosecution.

ii. It has been submitted that the learned court ought

to have considered that the prosecution witnesses

found to be given contradictory statement against

each other and as such, the judgment impugned

suffers from patent illegality.

iii. The learned trial Court has failed to appreciate the

Xerox Copy of endorsement of Dr. M.N.Sinha,

R.M.O., PMCH, Dhanbad which was adduced by

the defense and marked as ‘X’ for identification

wherein the Doctor mentioned that victim Sarita

was not in condition to give her statement.

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iv. PW-5, Dr. Shailendra Kumar who had conducted

postmortem examination, had stated that cause of

death was as a result of 100% burn injury and

therefore submission has been made that under

such circumstances deceased could not have

made her statement to the police.

v. The learned trial Court has also not appreciated the

fact that the victim was not in condition to give her

statement and the same fact has also been

corroborated by P.W.5 Dr. Shailendra Kumar who

had stated that deceased was died as a result of

100% burn injury, which creates the case of the

prosecution doubtful.

vi. The learned trial Court has not taken into

consideration the deposition of P.W.1 and P.W.4

that the appellant started making an attempt of

extinguishing the fire and in this occurrence, the

appellant Khagen Rajwar also sustained burn injury

which clearly suggests that the appellant was

making every possible attempt to save the life of

the deceased.

vii. It has also been submitted that learned court has

also not taken into consideration that the

prosecution has not examined the two sons and

daughter of the deceased.

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viii. Learned counsel for the appellant has relied on

judgment delivered by the Hon’ble Apex Court in

case of Jayamma & Anr. versus State of

Karnataka (Criminal Appeal No. 758 of 2010)

and Irfan @ Naka versus the State of Uttar

Pradesh (Criminal Appeal Nos. 825-826 of

2022).

14. Learned counsel for the appellant, on the aforesaid

premise, has submitted that the impugned judgment needs to be

interfered with.

Submission of the learned Spl. P.P. for the State

15. Per Contra, Mrs. Priya Shrestha, learned Spl. Public

Prosecutor appearing for the respondent-State has taken the

following grounds in defending the impugned judgment of

conviction/sentence: -

(i) It has been contended that it is incorrect to say

that the prosecution has miserably failed to

establish the charge said to have been proved

beyond all reasonable doubts.

(ii) It has been submitted that on the night of

21.03.2016, the victim’s husband Khagen Rajwar

came at the house in drunken condition then she

made protest for drinking wine and in the

meantime, Khagen Rajwar, the present appellant

poured Kerosene oil in course of assaulting her

and set her on fire. She has also stated in her

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fardbeyan that after ablazing her to fire by her

husband Khagen Rajwar, her husband fled away.

(iii) It has been contended that the fardbeyan can

be treated as dying declaration of deceased

because it relates to cause of her death.

(iv) The reliability of the fardbeyan of the

informant/deceased as dying declaration is found

satisfactory without any embellishment.

(v) It has been contended that the P.W.5, the

doctor who had conducted the post-mortem over

the dead body of deceased opined that the cause

of death of deceased was caused due to shock as

a result of 100 per cent kerosene oil burn injury and

the death of deceased under the fact and

circumstances is homicidal.

(vi) The fardbeyan of the informant/deceased

possess all the requirements of dying declaration

which has been found voluntarily and truthful as

also creates no doubt and embellishment in the

case of the prosecution.

(vii) In order to buttress this limb of argument

learned counsel for the state has relied on

judgment delivered by the Hon’ble Apex Court in

case of KankSingh RaiSingh Raw versus State

of Gujarat, (2003)1 SCC 73; Ongole Ravikanth

versus State of Andhra Pradesh, (2009)13 SCC

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647; C.V. Govindappa And Others versus State

of Karnataka, (1998)2 SCC 763; Kulwant Singh

and Others versus State of Punjab, (2004)9 SCC

257 and Najjam Faraghi @ Nijjam Faruqui,

(1998)2 SCC 45.

16. Learned counsel for the state based upon the aforesaid

submission, has submitted that the learned trial Court after

taking into consideration the testimony of the prosecution

witnesses has passed the impugned judgment of conviction,

therefore, the same requires no interference.

17. We have heard learned counsel for the parties, perused

the material available on record more particularly the testimony

of the witnesses and the finding recorded by learned trial

Court.

18. This Court, before going into the legality and propriety of

the impugned judgment of conviction and sentence, deems it

fit and proper to refer the testimony of prosecution witnesses.

19. PW 1 Gajadhar Rajwar @ Gaju Rajwar is bhaisur of

deceased and elder brother of accused Khagen Rajwar. He

had stated in his evidence that in the night of relevant day of

occurrence, he woke up hearing halla and went there and saw

Sarita Devi was burning and her whole body was burnt but he

has no knowledge how Sarita Devi sustained burn injury.

Sarita Devi died in hospital after five days.

20. P.W.-1 in his cross-examination stated that when he saw

Sarita Devi burning, in her house, at that time accused Khagen

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Rajwar, came running from Kulhi. The Accused Khagen

Rajwar had come at the place of occurrence on halla and he

made an attempt to extinguish the fire and, in the occurrence,

Khagen Rajwar also sustained burn injury. This witness further

deposed that he also made an attempt to extinguish fire and

during which he also sustained some burn injury. Sarita Devi

become unconscious due to burn injury. They along with

Khagen Rajwar brought Sarita Devi to PMCH, Dhanbad for

treatment. He has further deposed that the statement of Sarita

was not recorded in his presence and the food was being

provided to Sarita through her nose. There was only one room

in which Sarita and Khagen Rajwar were residing and in that

room the food was also cooked.

21. PW 2 Binod Rajwar who has been declared hostile by the

prosecution, is the another bhaisur of informant/deceased

Sarita Devi and elder brother of accused Khagen Rajwar. He

had stated in his evidence that Sarita Devi died in the month of

March 2016 due to burn by fire and he saw the dead body of

Sarita which was entirely burn injury. When he had seen Sarita

devi P.M.C.H., her whole body was burnt and at that time she

was alive. Sarita Devi was treated in hospital for one month

and Sarita Devi died in the hospital during treatment. He had

identified his signature on the inquest report which was

marked as Ext.-1.

22. P.W.- 3 Gokul Rajwar, is the father-in-law of deceased

and father of accused Khagen Rajwar has also been declared

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hostile. He had stated in his evidence that Sarita Devi died on

March 2016 due to burn and at the time of occurrence he was

sleeping. On hearing halla he came there and saw Sarita Devi

was burning and Khagen Rajwar was making an attempt to

save her. Khagen Rajwar also sustained burn injury while

extinguishing the fire.

23. P.W-4 Jogeshwar Rajwar, neighbour of accused. He

had stated in his evidence that Sarita Devi was married with

Khagen Rajwar about 10 years ago. After marriage Sarita Devi

was living at her matrimonial home and she was blessed with

two sons and one daughter. He further deposed, on hearing

halla, he went to the house of Khagen Rajwar and saw the

whole body of Sarita Devi was badly burnt and Khagen Rajwar

was also on the place occurrence in burn condition. The

incident occurred in the mid night. He did not know how Sarita

Devi, was burnt. When he had reached at the place of

occurrence, accused Khagen Rajwar, was present at the place

of occurrence and he had also burn injury. Sarita Devi was

sent to hospital for treatment where she died after three days.

In his cross-examination, he stated that when he

reached at the place of occurrence at that time Sarita Devi was

badly in burnt condition and she was not in condition to talk.

24. P.W-5 Dr. Shailendra Kumar, had conducted the

postmortem examination on the dead body of deceased Sarita

Devi, female aged about 30 years, W/o Khagen Rajwar, R/o

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Pradhan Khanta, Huchuk Tanr P.S. Baliapur, Distt- Dhanbad.

He found following on the person of deceased Sarita Devi:

Dermo-epidermal ante-mortem burn injury found all over

of the body of the deceased except both of the soles. Most of

the scalp’s hairs were also burnt. The remnant hairs were

emitting light smell of kerosene oil. Carbon soot was found all

over of the body of the deceased. Sample of the scalp’s hairs

were sealed and labeled and handed over to the Chowkidar for

exhibit. Foul smelling pus were found here and there in the

body of deceased. Burn injuries were about 5 to 7 days old.

On dissection: - heart, Stomach and bladder were found

empty. All internal organ were found congested.

Time elapsed since death: - 18 to 24 hours.

Cause of death: - death was due to shock as a result of 100

% kerosene oil burn injury.

P.W.-5 had proved the postmortem report, which

was written by him in Hindi and it bears his signature. The

post mortem report was marked as Ext.-2.

25. In his cross-examination P.W.-5 stated that no injury other

than burn injury was found on the person of deceased. In case

of burn injury sense prevail since death. If person is

unconscious he/she cannot be able to give statement. He

cannot say whether the sample of scalps hairs were sent for

further examination or not. These injuries are not accidental. If

any person tried to save burning victim, he may also sustain

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burn injuries. Whole body of deceased found bandaged below

the neck. He did not find any cloth on the person of deceased.

26. PW 6 Dr. Laxmi Narayan, had stated in his evidence

that on 22.03.2016, he was posted as Senior Resident in the

Department of Surgery, PMCH, Dhanbad. On that day at 03:00

hours (03:00 AM) in PMCH emergency ward ASI Ashok Kumar

Tiwari, of Saraidhela P.S., had recorded the fardbeyan of

deceased Sarita Devi in his presence. Sarita Devi was in burn

condition and admitted in emergency ward PMCH Dhanbad

and she was in position to give her statement. On the saying

Sarita Devi, he gave information to Police of Saraidhela P.S.

Sarita Devi gave her statement in his presence and ASI Ashok

Kumar Tiwari of Saraidhela P.S. recorded the statement and

Sartia Devi had put her RTI over her statement. He had also

put his signature over the aforesaid fardbeyan of Sarita Devi.

P.W.-6 had identified his signature over the fardbeyan, the

entire fardbeyan was marked as Ext.-3.

27. P.W.-6 in his cross-examination, had stated that a Xerox

copy of a letter which bears the endorsement of Dr. M.N.

Sinha, regarding the condition of victim Sarita Devi for giving

her dying declaration on 22.03.2016 at 5:56 PM in which it is

mentioned that victim Sarita Devi was not in condition to give

her statement and the said endorsement of Dr. M.N. Singh,

RMO, of PMCH has been marked 'X' for identification. He had

not mentioned the time when fardbeyan was recorded.

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28. P.W.-7 Ashok Kumar Tiwary, is the then ASI of

Saraidhela P.S., had stated in his evidence that on

22.03.2016. he was posted as ASI in Saraidhela P.S. and on

that day at 3:00 hours, he had recorded the fardbyan of

informant Sarita Devi in Emergency Ward of PMCH, Dhanbad

in presence of Dr. Laxmi Narayan. He identified the fardbeyan

of informant/deceased which is in his writing and signature and

bears the RTI of Sarita Devi which has already been marked

as Ext.-3. He further deposed that after recording the

fardbeyan of informant Sarita Devi, he returned to Saraidhela

P.S. and made Station Diary entry no. 07/2016 dated

22.03.2016, in the Station diary of Saraidhela P.S. and

thereafter, forwarded the fardbeyan of informant Sarita Devi to

Baliapur P.S. for registering a case. This witness proved the

Station Diary Entry no. 07/2016 dated 22.03.2016 of

Saraidhela P.S. which is in the writing of Bharat Mandal, writer

constable of Saraidhela P.S. which has been marked as Ext.-

5.

29. P.W.-7 in his cross-examination, had stated that he had

recorded the fardbeyan of Sarita Devi in PMCH, Dhanbad on

22.03.2016 at 3:00 AM in the morning in the presence of

doctor and Videography was done and at that time she was

crying due to burn injury. He has further stated that at the time

of recording the fardbeyan of Sarita Devi, no any family

members of Sarita Devi were present. He has further deposed

that Sarita Devi was speaking at time.

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30. P.W-8 Jugu Purti, Investigating Officer of this case

had stated in his evidence that on 22.03.2016, he got the

charge of investigation of this case from the then officer-in-

charge of Baliapur P.S. and after taking the charge of

investigation he perused the fardbyan of informant Sarita Devi.

Thereafter, he went to PMCH, Dhanbad where he recorded

the re-statement of Sarita Devi at PMCH, Dhanbad on

22.03.2016 at 11 am, in which informant Sarita Devi supported

the contents of her fardbeyan.

31. Investigating Officer further stated that the place of

occurrence is the mud tiled house of accused Khagen Rajwar

situated at village Pradhan Khanta, Tola Huchuk Tanr,

containing one room which opens towards south direction and

in that room the informant/deceased was ablazed to fire after

pouring kerosene oil. He further deposed that he gave an

application on 22.03.2016 before the court of Md. Umar, the

then Judicial Magistrate for the deputation of Magistrate for

recording the dying declaration of Sarita Devi and thereafter

the said application was forwarded to CJM, Dhanbad for

deputing Magistrate. By the order of the then CJM, Dhanbad

Sri Pratap Chandra, the then judicial magistrate, Dhanbad was

deputed for recording the dying declaration of Sarita Devi. This

petition has been identified and marked as Ext. 6.

32. Investigating Officer further stated that during

investigation he came to know that deceased Sarita Devi died

on 27.03.2016 at PMCH, Dhanbad during the course of

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treatment then he came to PMCH, Dhanbad and prepared

inquest report of dead body of deceased in presence of two

witnesses Binod Rajwar and Jogeshwar Rajwar which has

been marked as Ext. 1/1 and the dead body of deceased was

sent for post-mortem examination. He recorded the statement

of witnesses Gokul Rajwar, Charia Devi, Ganju Rajwar, Binod

Rajwar, Jogeshwar Rajwar and Mahadeo Rajwar who have

supported about the occurrence during their statement. He

submitted charge against accused Khagen Rajwar for the

offence punishable U/s 341/323/498 (A)/304 (B)/307/302 IPC.

33. Investigating Officer in his cross-examination, had stated

that he along with Sri Pratap Chandra, Judicial Magistrate,

Dhanbad came to PMCH, Dhanbad for recording dying

declaration of informant Sarita Devi and he made contact with

Sr. Resident Medical Officer of PMCH who told that informant

Sarita Devi is not in position to give her statement so the dying

of declaration of Sarita Devi could not be recorded by Sri

Pratap Chandra, Judicial Magistrate, Dhanbad. Investigating

Officer further deposed that informant had stated during her

fardbeyan that later on her husband also came with other

people for extinguishing fire.

34. In the backdrop of the aforesaid discussions, this Court in

the instant case is to consider following issues:

I. Whether the deceased was conscious and in fit state to give

her statement?

II. Whether deceased in 100% burn injuries could have made

statement to the police (P.W.-7)?

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III. Whether the medical opinion of the Doctor, marked as Exhibit

‘X’, who has not been examined, and wherein it is categorically

recorded that the deceased was not in a condition to make her

statement, casts a shadow of doubt upon the prosecution case.

IV. Whether dying declaration of the deceased Sarita Devi is

truthful, voluntary and trustworthy and sufficient enough to convict

the appellant?

V. Whether conviction of the appellant is based on cogent

evidence?

Re: issue no.(i), (ii) and (iii)

35. Since all the aforesaid issues are inextricably interlinked,

they are accordingly taken up together for discussion and

adjudication hereinbelow.

36. The core issues for determination are whether the

deceased, having sustained 100% burn injuries, was conscious

and in a fit state to make a statement and whether in such

condition she could have given a statement to the police (P.W.-

7); and whether the medical opinion of the Doctor, marked as

Exhibit ‘X’ but not tested by examination, wherein it is

categorically recorded that the deceased was not in a condition

to make her statement, casts a shadow of doubt upon the

prosecution case.

37. But before delving into these instant issues, it would be apt

to refer herein the judgment of Hon’ble Apex Court in the cases

of dying declaration involving burn injuries.

38. The Hon’ble Apex Court, in Vijay Pal v. State (Govt. of

NCT of Delhi), (2015) 4 SCC 749, after referring to its earlier

pronouncements, held that a person suffering 99% burn injuries

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could still be deemed capable of making a dying declaration. It

was further observed that even in cases of 100% burn injuries,

reliance may be placed upon the dying declaration of such a

person, provided the declaration is found to be

credible.Paragraph-23 and 24 of the aforesaid judgment are

quoted herein below-

“23. It is contended by the learned counsel for the appellant

that when the deceased sustained 100% burn injuries, she

could not have made any statement to her brother. In this

regard, we may profitably refer to the decision in Mafabhai

Nagarbhai Raval v. State of Gujarat wherein it has been held

that a person suffering 99% burn injuries could be deemed

capable enough for the purpose of making a dying declaration.

The Court in the said case opined that unless there existed

some inherent and apparent defect, the trial court should not

have substituted its opinion for that of the doctor. In the light of

the facts of the case, the dying declaration was found to be

worthy of reliance.

24. In State of M.P. v. Dal Singh, a two-Judge Bench placed

reliance on the dying declaration of the deceased who had

suffered 100% burn injuries on the ground that the dying

declaration was found to be credible.”

39. Further, the Hon’ble Apex Court in Purshottam Chopra

and Another v. State (Government of NCT of Delhi) reported

in (2020) 11 SCC 489, has summarized the principles relating

to recording of dying declaration and its admissibility and

reliability at paragraph-21.7 of the judgment had laid down that

as regards burns case, the percentage and degree of burns

would not, by itself, be decisive of the credibility of dying

declaration; and the decisive factor would be the quality of

evidence about the fit and conscious state of the declarant to

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make the statement. For ready reference Paragraph-21 of the

said judgement is quoted herein below -

“21. For what has been noticed hereinabove, some of

the principles relating to recording of dying declaration

and its admissibility and reliability could be usefully

summed up as under:

21.1. A dying declaration could be the sole basis of

conviction even without corroboration, if it inspires

confidence of the court.

21.2. The court should be satisfied that the declarant

was in a fit state of mind at the time of making the

statement; and that it was a voluntary statement,

which was not the result of tutoring, prompting or

imagination.

21.3. Where a dying declaration is suspicious or is

suffering from any infirmity such as want of fit state of

mind of the declarant or of like nature, it should not be

acted upon without corroborative evidence.

21.4. When the eyewitnesses affirm that the deceased

was not in a fit and conscious state to make the

statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record

dying declaration nor there is any prescribed format or

procedure for the same but the person recording dying

declaration must be satisfied that the maker is in a fit

state of mind and is capable of making the statement.

21.6. Although presence of a Magistrate is not

absolutely necessary for recording of a dying

declaration but to ensure authenticity and credibility, it

is expected that a Magistrate be requested to record

such dying declaration and/or attestation be obtained

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from other persons present at the time of recording the

dying declaration.

21.7. As regards a burns case, the percentage and

degree of burns would not, by itself, be decisive of

the credibility of dying declaration; and the

decisive factor would be the quality of evidence

about the fit and conscious state of the declarant

to make the statement.

21.8. If after careful scrutiny, the court finds the

statement placed as dying declaration to be voluntary

and also finds it coherent and consistent, there is no

legal impediment in recording conviction on its basis

even without corroboration.”

40. Hence, in cases of dying declaration involving burn injuries

Hon’ble Apex Court has laid down that percentage and degree

of burns would not, by itself, be decisive of the credibility of

dying declaration and the decisive factor would be the quality of

evidence about the fit and conscious state of the declarant to

make the statement and victim suffering 99% or 100% burns

injuries are also capable of giving dying declaration, if dying

declaration is credible.

41. Learned counsel for the appellant has submitted that the

learned trial Court has failed to appreciate endorsement of Dr.

M.N.Sinha, R.M.O., PMCH, Dhanbad, in the letter marked ‘x’,

which was adduced by the defense wherein the Doctor had

given medical opinion that victim Sarita was not in condition to

give her statement.

- 21 - 2026:JHHC:23533-DB

42. Hence, learned counsel for the appellant has raised the

ground that as per the medical opinion of the Doctor, deceased

Sarita, was not in a fit mental condition to make the dying

declaration and hence, the alleged fardbeyan/ dying declaration

Ext.-3 of the deceased is not acceptable.

43. To examine the contention advanced by the learned

counsel for the appellant, this Court has perused the fardbeyan

(Ext-3) of the informant Sarita Devi (deceased). From the said

fardbeyan, it emerges that Sarita Devi (deceased) categorically

stated that in the intervening night of 21/22.03.2016, her

husband Khagen Rajwar (the appellant herein) assaulted her,

poured kerosene oil over her body, and set her ablaze, as a

consequence of which she sustained burn injuries.

44. It is pertinent to note herein that P.W.-1, Gajadhar Rajwar

@ Gaju Rajwar, the bhaisur (elder brother-in-law) of the

deceased, stated in his evidence that during the night he saw

Sarita Devi burning and thereafter she was admitted to PMCH,

Dhanbad for treatment. Likewise, P.W.-4, Jogeshwar Rajwar,

the neighbour of the accused, deposed that the incident

occurred at midnight, and he too witnessed Sarita Devi in a

badly burnt condition, following which she was taken to the

hospital for medical care.

45. Hence, PW-1 Gajadhar Rajwar and PW-4 Jogeshwar

Rajwar, both have deposed that, in the night of 21/22.03.2016,

they had seen Sarita Devi(deceased), in burnt condition and

she was taken to Hospital i.e. PMCH, Dhanbad for treatment.

- 22 - 2026:JHHC:23533-DB

46. At this juncture, it would be pertinent to travel into to the

testimony of PW-6 Dr. Laxmi Narayan, in whose presence

fardbeyan of the Sarita Devi (deceased) was recorded and the

testimony of PW-7 ASI Ashok Kumar Tiwary, who had recorded

the fardbeyan Ext.-3 of the Sarita Devi (deceased).

47. PW-6 Dr. Laxmi Narayan, was posted as Senior Resident

in the Department of Surgery, PMCH, Dhanbad, on 22.03.2016.

He had deposed that Sarita Devi(deceased), in burn condition,

was admitted in emergency ward of PMCH, Dhanbad, and she

was in position to give her statement. On the saying Sarita

Devi, he gave information to Police of Saraidhela Police Station.

On that day (i.e. on 22.03.2016) at 03:00 hours (03:00 AM), in

PMCH emergency ward, ASI Ashok Kumar Tiwari (PW-7), of

Saraidhela P.S., had recorded the fardbeyan of deceased

Sarita Devi in his presence. For ready reference the relevant

paragraphs of the testimony of the P.W.6 is being quoted as

under:

“2. Sarita Devi was in burn condition and admitted in emergency

ward PMCH Dhanbad and she was in position to give her

statement. On the saying Sarita Devi I gave information to

Police of Saraidhela P.S.

3. Sarita Devi gave her statement in my presence and ASI

Ashok Kumar Tiwari of Saraidhela PS recorded the same and

Sartia Devi put her RTI over the same and I also put my

signature over the aforesaid fardbeyan of Sarita Devi. This

witness has identified the Fard Bayan of Sarita Devi which is

written by ASI Ashok Tiwari in his presence and Sarita Devi put

her RTI over the same and he also put his signature over the

same and identified as Ext.- 3 (entire fardbeyan of Sarita Devi)”

- 23 - 2026:JHHC:23533-DB

48. Further, P.W.-7 ASI Ashok Kumar Tiwary, in his evidence

had stated that on 22.03.2016, he was posted as ASI in

Saraidhela Police Station and on that day at 3:00 hours, he had

recorded the fardbyan of informant Sarita Devi in Emergency

Ward of PMCH, Dhanbad in presence of Dr. Laxmi Narayan.

He further deposed that after recording the fardbeyan of

informant Sarita Devi, he returned to Saraidhela P.S. and made

Station Diary entry no. 07/2016 dated 22.03.2016, in the Station

diary of Saraidhela P.S. and thereafter, forwarded the

fardbeyan of informant Sarita Devi to Baliapur P.S. for

registering a case. For ready reference the relevant paragraphs

are being quoted as under:

1. दिन ांक 22.03.16 में मैं सर यढेल थ न में ए.एस. आई. के

रूप में पिस्थ दपत थ , उक्त दतदथ को 03.00 बजे सुबह मेरे द्व र

प टदलपुत्र मेदिकल कॉलेज के आकस्मिक व िड में सूदिक सरीत

िेवी उम्र करीब 30 वर्ड, पदत खगेन रजव र क फिडबय न

प टदलपुत्र मेदिकल कॉलेज के दिदकत्सक ि क्टर लक्ष्मी न र यण

के समक्ष लेखबद्ध दकय गय । यही वह सूदिक सरीत िेिी क

फिडबय न है जो मेरे द्व र दलख गय सरीत के ि दहने ह थ के

अगुहे क दनश न है, इस पर मेर हस्त क्षर भी है, इस प्रिशड 03

गय है इस पर सूदिक अांदकत दकय गय ।

2. प टदलपुत्र मेदिकल कॉलेज से व पस आकर सरीत िेवी के

फिडबय न के आध र पर सर यढेल थ न में सनह नांम्बर

07/2016 दिन ांक 22.03.2016 अांदकत दकय और सूदिक

सरीत िेवी के बय न को बदलय पुर थ न में। मेरे द्व र अग्रस ररत

कर दिय गय . यही वह ア सूदिक सरीत िेवी के फिडबय न पर

मेरे द्व र इस आशय क अग्रस रण स रण दकि दकय गय है जो

मेरे दलख वट एवां हस्त क्षर में है, दजसे मैं पहि नत हूँ, इसे 04/

- 24 - 2026:JHHC:23533-DB

अांदकत दकय गय । यही वह सर यढेल थ न क सनह नां.

07/2016 दिन ांक 22.03.2016 है जो तत्क लीन थ न लेखक

भरत मण्डल के दलख वट में है दजसे में पहि नत हूँ, इसे प्रिशड

05 अांदकत दकय गय ।।

49. In his cross-examination at paragraph 4 this witness had

reiterated that he had recorded the fardbeyan of Sarita

Devi(deceased) in PMCH, Dhanbad on 22.03.2016 at 3:00 AM

in the morning in the presence of doctor and Sarita Devi

(deceased) was speaking at that time.

50. Hence, both PW-6 Dr. Laxmi Narayan and P.W.-7 ASI

Ashok Kumar Tiwari, who had recorded the fardbeyan of Sarita

Devi (deceased), have stated in their evidence that in the night

of 22.03.2016, when Sarita Devi (deceased), was admitted in

the Hospital for her treatment, Sarita Devi (deceased), was

speaking at that time.

51. Now this Court is proceeding to examine the Xerox Copy

of endorsement of Dr. M.N.Sinha, R.M.O., PMCH, Dhanbad,

produced by the defence marked as ‘x’, wherein R.M.O.,had

mentioned that victim Sarita was not in condition to give her

statement.

52. On going through contents of Xerox Copy marked as ‘x’,

this court finds that this letter was written by the Investigating

Officer P.W-8 Jugu Purti, which was addressed to the Head of

Department, Surgery, PMCH, Dhanbad. This letter bears the

endorsement of the R.M.O. wherein R.M.O. had noted that

‘patient is not in condition to give statement’ and the R.M.O.,

- 25 - 2026:JHHC:23533-DB

had signed on it which bears the date 22.03.2016 and time 5.56

PM.

53. Hence, in the said letter marked ‘x’, the endorsement of

R.M.O., is dated 22.03.2016 and time is mentioned as 5.56 PM,

meaning thereby that at 5.56 PM on 22.03.2016, R.M.O., found

that victim Sarita Devi, was not in condition to give statement.

54. At this juncture on going to the evidence of PW-1

Gajadhar Rajwar and PW-4 Jogeshwar Rajbari, this Court finds

that in the evidence of PW-1 Gajadhar Rajwar and PW-4

Jogeshwar Rajbari, it has come that occurrence of burning of

Sarita Devi (deceased) is of night of 21/22.03.2016, and

immediately, thereafter, she was taken to PMCH, Dhanbad, and

admitted in the Hospital and in the Hospital, fardbeyan of Sarita

Devi (deceased) was recorded by P.W.-7 ASI Ashok Kumar

Tiwari at 3:00 a.m., in presence of PW-6 Dr. Laxmi Narayan,

Senior Resident, Department of Surgery, PMCH, Dhanbad and

both P.W.-7 ASI Ashok Kumar Tiwari and PW-6 Dr. Laxmi

Narayan, had deposed that at that time Sarita Devi was able to

speak.

55. Hence, fact emerges that fardbeyan of Sarita Devi

(deceased), was recorded at 3:00 a.m., on 22.03.2016, when

Sarita Devi (deceased), was immediately brought to the

Hospital after burn injuries and as per the evidence of the PW-6

Dr. Laxmi Narayan and P.W.-7 ASI Ashok Kumar Tiwari, at that

time she was able to speak and therefore, fardbeyan of Sarita

- 26 - 2026:JHHC:23533-DB

Devi (deceased), was recorded by P.W.-7 ASI Ashok Kumar

Tiwari.

56. From perusal of the evidence PW-6 Dr. Laxmi Narayan

and P.W.-7 ASI Ashok Kumar Tiwari, this Court comes to the

conclusion that in the night of 21/22.03.2016, when, Sarita Devi

(deceased), was immediately admitted in hospital and when her

fardbeyan was recorded by P.W.-7 ASI Ashok Kumar Tiwari at

3:00 a.m., on 22.03.2016, in presence of Dr. Laxmi Narayan

(PW-6), she was able to speak and she was conscious at that

time.

57. Hence, this Court is of the view that after passage of time,

condition of Sarita Devi (deceased), may have been

deteriorated. Hence, after recording of fardbeayn at 3:00 a.m.

on 22.03.2016, after passage of 14 hours, when R.M.O., had

put his endorsement on the letter marked ‘X’ on 22.03.2016 at

5.56 PM, R.M.O. found that patient was not in condition to give

statement.

58. In the present case, from the foregoing discussion, the

question that arises is whether the medical opinion of the

R.M.O., contained in the letter marked as Exhibit ‘X’ dated

22.03.2016 at 5:56 P.M., wherein it was opined that the patient

was not in a condition to give her statement, should prevail, or

whether greater weight is to be accorded to the evidence of

P.W.-6 Dr. Laxmi Narayan, in whose presence the fardbeyan

(Ext.-3) of Sarita Devi (deceased) was recorded by P.W.-7

- 27 - 2026:JHHC:23533-DB

A.S.I. Ashok Kumar Tiwari, both of whom have deposed that at

the time of recording the fardbeyan, Sarita Devi was able to

speak and render her statement.

59. At this juncture, it would be apt to refer herein the judgment

of the Constitutional Bench of the Hon’ble Apex Court rendered

in case of Laxman v. State of Maharashtra reported in (2002)

6 SCC 710. In this case Apex court at paragraph-3 has laid

down that normally, the court in order to satisfy whether the

deceased was in a fit mental condition to make the dying

declaration looks up to the medical opinion. But where the

eyewitnesses state that the deceased was in a fit and

conscious state to make the declaration, the medical opinion

will not prevail. Paragraph-3 of Laxman(supra) case is quoted

herein below for ready reference-

“3. The juristic theory regarding acceptability of a dying

declaration is that such declaration is made in extremity, when

the party is at the point of death and when every hope of this

world is gone, when every motive to falsehood is silenced, and

the man is induced by the most powerful consideration to speak

only the truth. Notwithstanding the same, great caution must be

exercised in considering the weight to be given to this species

of evidence on account of the existence of many circumstances

which may affect their truth. The situation in which a man is on

the deathbed is so solemn and serene, is the reason in law to

accept the veracity of his statement. It is for this reason the

requirements of oath and cross-examination are dispensed

with. Since the accused has no power of cross-examination, the

courts insist that the dying declaration should be of such a

nature as to inspire full confidence of the court in its truthfulness

and correctness. The court, however, has always to be on

guard to see that the statement of the deceased was not as a

result of either tutoring or prompting or a product of imagination.

- 28 - 2026:JHHC:23533-DB

The court also must further decide that the deceased was in a

fit state of mind and had the opportunity to observe and identify

the assailant. Normally, therefore, the court in order to

satisfy whether the deceased was in a fit mental condition

to make the dying declaration looks up to the medical

opinion. But where the eyewitnesses state that the

deceased was in a fit and conscious state to make the

declaration, the medical opinion will not prevail, nor can it

be said that since there is no certification of the doctor as to the

fitness of the mind of the declarant, the dying declaration is not

acceptable. A dying declaration can be oral or in writing and

any adequate method of communication whether by words or

by signs or otherwise will suffice provided the indication is

positive and definite. In most cases, however, such statements

are made orally before death ensues and is reduced to writing

by someone like a Magistrate or a doctor or a police officer.

When it is recorded, no oath is necessary nor is the presence of

a Magistrate absolutely necessary, although to assure

authenticity it is usual to call a Magistrate, if available for

recording the statement of a man about to die. There is no

requirement of law that a dying declaration must necessarily be

made to a Magistrate and when such statement is recorded by

a Magistrate there is no specified statutory form for such

recording. Consequently, what evidential value or weight has to

be attached to such statement necessarily depends on the facts

and circumstances of each particular case. What is essentially

required is that the person who records a dying declaration

must be satisfied that the deceased was in a fit state of mind.

Where it is proved by the testimony of the Magistrate that the

declarant was fit to make the statement even without

examination by the doctor the declaration can be acted upon

provided the court ultimately holds the same to be voluntary and

truthful. A certification by the doctor is essentially a rule of

caution and therefore the voluntary and truthful nature of the

declaration can be established otherwise.”

(emphasis supplied)

60. In the present case, statement Ext.-3 of Sarita Devi

(deceased), was recorded by the Police (PW-7), in presence of

PW-6 Dr. Laxmi Narayan and PW-6 Dr. Laxmi Narayan had

- 29 - 2026:JHHC:23533-DB

stated in his evidence that on 22.03.2016, Sarita

Devi(deceased) was in burn condition and admitted in

emergency ward of PMCH Dhanbad and she was in position to

give her statement. On the saying of Sarita Devi, he gave

information to Police of Saraidhela Police Station and her

statement was recorded by ASI Ashok Kumar Tiwari (PW-7), at

3. AM on 22.03.2016, in his presence.

61. Hence, from the testimony of PW-6 Dr. Laxmi Narayan and

ASI Ashok Kumar Tiwari (PW-7), it leaves no room for doubt

that Sarita Devi(deceased) was in position to speak and relying

on ratio rendered by the Hon’ble Apex Court in the case of

Laxman v. State of Maharashtra(supra), in the present case,

medical opinion given by the R.M.O, in the letter marked ‘X’

date 22.03.2016 at 5.56 PM, will not prevail.

62. Therefore, the contention of the learned counsel for the

appellant that dying declaration is not possible due to the

medical situation of the Sarita Devi(deceased), is not tenable.

Rather, this court is of the view that the deceased Sarita

Devi(deceased) was in a position to speak and was in fit state

to give her dying declaration.

63. Accordingly, issue nos.(i), (ii) and (iiii), have been

answered.

Re: issue no.(iv)

64. The issue no. (iv) is whether dying declaration of the

deceased Sarita Devi is truthful, voluntary and trustworthy?

- 30 - 2026:JHHC:23533-DB

65. Before proceeding further, it would be fruitful to refer

judgments delivered by the Hon’ble Apex Court in regard to the

admissibility and evidentiary value of a dying declaration.

66. The Hon’ble Apex Court in case of Paniben v. State of

Gujarat, (1992) 2 SCC 474, had examined the several

judgments governing the law on the principles governing dying

declaration. Paragraph -18 of this judgment is quoted herein

below-

“18. Though a dying declaration is entitled to great weight, it is

worthwhile to note that the accused has no power of cross-

examination. Such a power is essential for eliciting the truth as

an obligation of oath could be. This is the reason the Court also

insists that the dying declaration should be of such a nature as

to inspire full confidence of the Court in its correctness. The

Court has to be on guard that the statement of deceased was

not as a result of either tutoring, prompting or a product of

imagination. The Court must be further satisfied that the

deceased was in a fit state of mind after a clear opportunity to

observe and identify the assailants. Once the Court is satisfied

that the declaration was true and voluntary, undoubtedly, it can

base its conviction without any further corroboration. It cannot

be laid down as an absolute rule of law that the dying

declaration cannot form the sole basis of conviction unless it is

corroborated. The rule requiring corroboration is merely a rule

of prudence. This Court has laid down in several judgments the

principles governing dying declaration, which could be summed

up as under:

(i) There is neither rule of law nor of prudence that dying

declaration cannot be acted upon without corroboration.

(Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC

(Cri) 376 : (1976) 2 SCR 764] )

(ii) If the Court is satisfied that the dying declaration is true and

voluntary it can base conviction on it, without corroboration.

(State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985

SCC (Cri) 127 : AIR 1985 SC 416] ; Ramawati Devi v. State of

- 31 - 2026:JHHC:23533-DB

Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC

164] ).

(iii) This Court has to scrutinise the dying declaration carefully

and must ensure that the declaration is not the result of tutoring,

prompting or imagination. The deceased had opportunity to

observe and identify the assailants and was in a fit state to

make the declaration. (K. Ramachandra Reddy v. Public

Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976

SC 1994] ).

(iv) Where dying declaration is suspicious it should not be acted

upon without corroborative evidence. (Rasheed Beg v. State of

M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )

(v) Where the deceased was unconscious and could never

make any dying declaration the evidence with regard to it is to

be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 :

1981 SCC (Cri) 645 : AIR 1982 SC 1021] )

(vi) A dying declaration which suffers from infirmity cannot form

the basis of conviction. (Ram Manorath v. State of U.P. [(1981)

2 SCC 654 : 1981 SCC (Cri) 581] )

(vii) Merely because a dying declaration does not contain the

details as to the occurrence, it is not to be rejected. (State of

Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC

455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617] )

(viii) Equally, merely because it is a brief statement, it is not to

be discarded. On the contrary, the shortness of the statement

itself guarantees truth. (Surajdeo Oza v. State of Bihar [1980

Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] )

(ix) Normally the court in order to satisfy itself whether the

deceased was in a fit mental condition to make the dying

declaration look up to the medical opinion. But where the

eyewitness has said that the deceased was in a fit and

conscious state to make this dying declaration, the medical

opinion cannot prevail. (Nanhau Ram v. State of M.P. [1988

Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )

(x) Where the prosecution version differs from the version as

given in the dying declaration, the said declaration cannot be

- 32 - 2026:JHHC:23533-DB

acted upon. (State of U.P. v. Madan Mohan [(1989) 3 SCC 390

: 1989 SCC (Cri) 585 : AIR 1989 SC 1519] ).”

67. Further, Hon'ble Apex Court in the case of Dharampal and

others vs. State of U.P reported in (2008) 17 SCC 337 has

held that the FIR lodged by deceased would attain the

character and legal status of dying declaration, if the victim dies

before his examination in the Court.Paragraph-16 of the

aforesaid judgment is quoted herein below-

“16. The learned counsel for the appellants further argued

before us that the alleged dying declaration which was given

the shape of an FIR could not be made the basis of conviction

when the original document signed by the deceased was not

brought on record. The learned counsel for the appellants tried

to prove before us that the deceased was not in a position to

speak and which becomes apparent from the testimony of his

father. However, it would not be correct to say so. The evidence

of PW 7, Dr. R.P. Goel shows that the condition of the

deceased was good and that he was in a position to speak. It

would not be appropriate for us to read between the lines by

giving unnecessary meanings to the testimony of Raghu. It

cannot be left out of sight that Raghu also said that the

deceased dictated the FIR to the police. In any view of the

matter, the report of occurrence was dictated by the

deceased himself and the same was read over to him after

which he had put his thumb impression on the same. This

report is admissible under Section 32 of the Evidence Act

as a dying declaration. It is true that the original document

signed by the deceased was not brought on record, but in

our view, the FIR has rightly been admitted as a dying

declaration. There appears no reason for the police to falsely

implicate any one of the accused inasmuch as, initially, the

report dictated by the deceased was taken down as a non-

cognizable report under Section 323 IPC. If the police were to

implicate the accused, they would not have taken down the

report as a non-cognizable report in the very first place itself.”

(emphasis supplied)

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68. In case of Bhajju v. State of M.P., (2012) 4 SCC 327,

Hon’ble Apex Court laid down that 32 of the Evidence Act, 1872

is an exception to the general rule against the admissibility of

hearsay evidence. Clause (1) of Section 32 makes the

statement of the deceased admissible, which is generally

described as a “dying declaration”. A dying declaration, if found

reliable, can form the basis of a conviction. Relevant paragraph

of this judgment is quoted herein below-

“22. The law is very clear that if the dying declaration has been

recorded in accordance with law, is reliable and gives a cogent

and possible explanation of the occurrence of the events, then

the dying declaration can certainly be relied upon by the court

and could form the sole piece of evidence resulting in the

conviction of the accused. This Court has clearly stated the

principle that Section 32 of the Evidence Act, 1872 (for short

“the Act”) is an exception to the general rule against the

admissibility of hearsay evidence. Clause (1) of Section 32

makes the statement of the deceased admissible, which is

generally described as a “dying declaration”.

23. The “dying declaration” essentially means the statement

made by a person as to the cause of his death or as to the

circumstances of the transaction resulting into his death. The

admissibility of the dying declaration is based on the principle

that the sense of impending death produces in a man's mind,

the same feeling as that of a conscientious and virtuous man

under oath. The dying declaration is admissible upon the

consideration that the declaration was made in extremity, when

the maker is at the point of death and when every hope of this

world is gone, when every motive to file a false suit is silenced

in the mind and the person deposing is induced by the most

powerful considerations to speak the truth.

23. The “dying declaration” essentially means the statement

made by a person as to the cause of his death or as to the

circumstances of the transaction resulting into his death. The

admissibility of the dying declaration is based on the principle

- 34 - 2026:JHHC:23533-DB

that the sense of impending death produces in a man's mind,

the same feeling as that of a conscientious and virtuous man

under oath. The dying declaration is admissible upon the

consideration that the declaration was made in extremity, when

the maker is at the point of death and when every hope of this

world is gone, when every motive to file a false suit is silenced

in the mind and the person deposing is induced by the most

powerful considerations to speak the truth.

24. Once the court is satisfied that the declaration was true and

voluntary, it undoubtedly can base its conviction on the dying

declaration, without requiring any further corroboration. It

cannot be laid down as an absolute rule of law that the dying

declaration cannot form the sole basis of conviction unless it is

corroborated by other evidence.

25. There is a clear distinction between the principles governing

the evaluation of a dying declaration under the English law and

the Indian law. Under the English law, credence and relevancy

of a dying declaration is only when the person making such a

statement is in hopeless condition and expecting an imminent

death. So under the English law, for its admissibility, the

declaration should have been made when in the actual danger

of death and that the declarant should have had a full

apprehension that his death would ensue. However, under the

Indian law, the dying declaration is relevant, whether the person

who makes it was or was not under expectation of death at the

time of such declaration. The dying declaration is admissible not

only in the case of homicide but also in civil suits. The

admissibility of a dying declaration rests upon the principle

of nemo moriturus praesumitur mentire (a man will not meet his

Maker with a lie in his mouth).

26. The law is well settled that a dying declaration is admissible

in evidence and the admissibility is founded on the principle of

necessity. A dying declaration, if found reliable, can form the

basis of a conviction. A court of facts is not excluded from

acting upon an uncorroborated dying declaration for finding

conviction. The dying declaration, as a piece of evidence,

stands on the same footing as any other piece of evidence. It

has to be judged and appreciated in light of the surrounding

circumstances and its weight determined by reference to the

- 35 - 2026:JHHC:23533-DB

principle governing the weighing of evidence. If in a given case

a particular dying declaration suffers from any infirmity, either of

its own or as disclosed by the other evidence adduced in the

case or the circumstances coming to its notice, the court may,

as a rule of prudence, look for corroboration and if the infirmities

are such as would render a dying declaration so infirm that it

pricks the conscience of the court, the same may be refused to

be accepted as forming basis of the conviction.”

27. Another consideration that may weigh with the court, of

course with reference to the facts of a given case, is whether

the dying declaration has been able to bring a confidence

thereupon or not, is it trustworthy or is merely an attempt to

cover up the laches of investigation. It must allure the

satisfaction of the court that reliance ought to be placed thereon

rather than distrust.

69. Again, in the case of Shudhakar v. State of M.P., (2012) 7

SCC 569, the Hon’ble Apex Court held that “dying declaration”

is the last statement made by a person at a stage when he is in

serious apprehension of his death and expects no chances of

his survival. At such time, it is expected that a person will speak

the truth and only the truth. Paragraoh-20 of this judgment is

quoted here in below-

“20. The “dying declaration” is the last statement made by a

person at a stage when he is in serious apprehension of his

death and expects no chances of his survival. At such time, it is

expected that a person will speak the truth and only the truth.

Normally in such situations the courts attach the intrinsic value

of truthfulness to such statement. Once such statement has

been made voluntarily, it is reliable and is not an attempt by the

deceased to cover up the truth or falsely implicate a person,

then the courts can safely rely on such dying declaration and it

can form the basis of conviction. More so, where the version

given by the deceased as dying declaration is supported and

corroborated by other prosecution evidence, there is no reason

for the courts to doubt the truthfulness of such dying

declaration.”

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70. Further, the Hon’ble Apex Court in case of State of

Gujarat v. Jayrajbhai Punjabhai Varu, (2016) 14 SCC 151,

had laid down that the courts below have to be extremely

careful when they deal with a dying declaration as the maker

thereof is not available for the cross-examination which poses a

great difficulty to the accused person. A mechanical approach

in relying upon a dying declaration just because it is there is

extremely dangerous. Paragraph-15 of this judgment is quoted

herein below-

“15. The courts below have to be extremely careful

when they deal with a dying declaration as the maker

thereof is not available for the cross-examination which

poses a great difficulty to the accused person. A

mechanical approach in relying upon a dying

declaration just because it is there is extremely

dangerous. The court has to examine a dying

declaration scrupulously with a microscopic eye to find

out whether the dying declaration is voluntary, truthful,

made in a conscious state of mind and without being

influenced by the relatives present or by the

investigating agency who may be interested in the

success of investigation or which may be negligent

while recording the dying declaration.”

71. Hence, in the aforesaid judgments Hon’ble Apex Court

has laid down that “dying declaration” is the last statement

made by a person at a stage when he is in serious

apprehension of his death and expects no chances of his

survival. At such time, it is expected that a person will speak the

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truth and only the truth. Courts below have to be extremely

careful when they deal with a dying declaration as the maker

thereof is not available for the cross-examination which poses a

great difficulty to the accused person.

72. Reverting to the facts of the present case, this Court finds

that A.S.I. Ashok Kumar Tiwari (P.W.-7) of Saraidhela Police

Station and Dr. Laxmi Narayan (P.W.-6) are material witnesses

insofar as their participation in the recording of the dying

declaration of the deceased Sarita Devi is concerned.

73. Prosecution has relied upon the dying declarations of the

deceased Sarita Devi, which was recorded by ASI Ashok

Kumar Tiwary (PW-7) of Saraidhela P.S. on 22.03.2016 at 3:00

AM, in the Emergency Ward of PMCH,Dhanbad, in presence of

Dr. Laxmi Narayan (PW-6), who was posted as Senior Resident

in the Department of Surgery, PMCH, Dhanbad.

74. Dr. Laxmi Narayan (PW 6), had stated in his evidence that

on 22.03.2016, Sarita Devi (deceased), in burn condition, was

admitted in the emergency ward PMCH, Dhanbad and she was

in position to give her statement and on the saying of Sarita

Devi, he gave information to Police of Saraidhela Police Station.

Thereafter, ASI Ashok Kumar Tiwari (PW-7) of Saraidhela

Police Station had recorded the statement of Sartia Devi and

Sartia Devi had put her RTI over her fardbeyan, in his

presence.

75. At the cost of repetition it requires to refer herein that ASI

Ashok Kumar Tiwari (P.W.-7), had deposed that on 22.03.2016

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at 3:00 hours, he had recorded the fardbeyan Ext.-3 of

informant Sarita Devi(deceased) in Emergency Ward of PMCH,

Dhanbad in presence of Dr. Laxmi Narayan(PW-6) and after

recording the fardbeyan of informant Sarita Devi, he returned to

Saraidhela P.S. and made Station Diary entry no. 07/2016

dated 22.03.2016 Ext.-5., in the Station diary of Saraidhela P.S.

and thereafter, forwarded the fardbeyan of informant Sarita

Devi to Baliapur P.S. for registering a case.

76. Further, ASI Ashok Kumar Tiwari (P.W.-7), in his cross-

examination, had reiterated that he had recorded the fardbeyan

of Sarita Devi in PMCH, Dhanbad on 22.03.2016 at 3:00 AM in

the morning in the presence of doctor(i.e.PW-6) and at that time

she was groaning due to burn injury.

77. Again, from the evidence of PW-1 and PW-4, who are the

bhaisur of the deceased and neighbour respectively and both

have deposed that they saw Sarita Devi(deceased), in burnt

condition in the night of 21/22.03.2016, and immediately,

thereafter, she was taken to PMCH, Dhanbad, and admitted in

the Hospital.

78. Hence, from the evidence of PW-1, PW-4, PW-6 and PW-

7, it is proved that Sarita Devi(deceased), in burn condition was

admitted in the night of 21/22.03.2016, at PMCH, Dhanbad, and

in the presence of Dr. Laxmi Narayan (PW-6), the ASI Ashok

Kumar Tiwari (P.W.-7), had recorded the fardbeyan Ext.-3 of

Sarita Devi at 3 AM on 22.03.2016.

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79. This Court has gone into the fardbeyan Ext.-3 of the Sarita

Devi(deceased) and on perusal of the fardbeyan, this Court

finds that fardbeyan Ext.-3 bears the thumb impression of Sarita

Devi(deceased) and also bears the signature of Dr. Laxmi

Narayan (PW-6), in whose presence fardbeyan was recorded

by the ASI Ashok Kumar Tiwari (P.W.-7).

80. At this juncture it would be pertinent to note the judgment

delivered by the Hon'ble Apex Court in the case of Dharampal

and others vs. State of UP (supra) wherein Apex Court has

laid down that the FIR lodged by deceased would attain the

character and legal status of dying declaration, if the victim dies

before his examination in the Court.

81. In the instant case, upon consideration of the foregoing

discussion, this Court is satisfied that the prosecution has duly

established that the fardbeyan (Ext.-3) of the deceased Sarita

Devi constitutes a dying declaration, and accordingly, the said

fardbeyan is admissible under Section 32 of the Evidence Act.

82. Therefore, from the discussion made in the preceding

paragraph, this Court is of the view that dying declaration,

which is the fardbeyan Ext.-3, of the deceased Sarita Devi is

truthful, voluntary and trustworthy.

83. It needs to refer herein that the learned counsel for the

appellant has relied on the judgment of Hon’ble Apex Court

delivered in case of Jayamma & Anr. versus State of

Karnataka (Criminal Appeal No. 758 of 2010), wherein the

allegation on the appellants was that appellants allegedly

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doused the deceased Jayamma, in kerosene and set her on

fire. The statement of Jayamma was recorded by the police;

however, she succumbed to her injuries during her treatment in

hospital. The statement of the deceased which was treated as

dying declaration. But Hon’ble Apex Court had doubted the

dying declaration of the deceased and noted that injured victim

was an illiterate old person, but, her dying declaration was so

accurate, that even a witness in the normal state of mind,

cannot be expected to depose with such precision.

84. In the case at hand, the factual matrix is distinguishable.

The deceased Sarita Devi was immediately rushed to the

hospital, where her statement was recorded within a very short

interval of the incident by P.W.-7 in the presence of Dr. Laxmi

Narayan (P.W.-6). The fardbeyan (Ext.-3), which has been

treated as her dying declaration, is brief, wherein she stated

that on the night in question her husband, Khagen Rajwar (the

appellant herein), came home in an intoxicated condition,

assaulted her, poured kerosene oil upon her body, and set her

ablaze, as a result of which she sustained burn injuries, and

that thereafter her husband fled from the house.

85. Hence, the decision in Jayamma & Anr. v. State of

Karnataka (supra), relied upon by the learned counsel for the

appellant, is not applicable to the facts and circumstances of

the present case.

86. Accordingly, issue no.(iv) has been answered.

Re: issue no.(v)

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87. The issue no. (v) is whether conviction of the appellant is

based on cogent evidence?

88. In this regard, this Court finds from the fardbeyan (Ext.-3)

of the deceased Sarita Devi that, in the night of 21.03.2016, her

husband Khagen Rajwar (the appellant herein) came home in

an intoxicated condition, and when she advised him against

drinking, he assaulted her, poured kerosene oil upon her body,

and set her ablaze, as a result of which she sustained burn

injuries.

89. She further stated that her husband fled from the house

after setting her on fire, and upon hearing her cries, the people

of the vicinity arrived and took her to PMCH, Dhanbad, for

treatment. She also alleged that subsequently her husband

returned along with the neighbours to extinguish the fire.

90. Thus, it is the specific statement of the deceased that her

husband, Khagen Rajwar, assaulted her, poured kerosene oil,

and set her ablaze, thereafter fleeing from the house.

91. To corroborate this aspect of her statement, particularly

that the appellant fled after ablazing her, this Court has

examined the evidence of P.W.-1 Gajadhar Rajwar, the

bhaisur of the deceased and elder brother of the accused.PW-

1 Gajadhar Rajwar had stated in his cross-examination that

when he saw Sarita Devi burning, in her house, at that time

accused Khagen Rajwar, came running from Kulhi and

accused Khagen Rajwar had come at the place of occurrence

on halla and he made an attempt to extinguish the fire.

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92. The statement given by the deceased Sarita Devi in her

fardbeyan Ext.-3 that her husband (i.e. appellant) fled away

from the house after ablazing her finds support from the

testimony of PW-1 Gajadhar Rajwar, who is bhaisur of

deceased and elder brother of appellant.

93. Hence, on the basis of fardbeyan Ext.-3, which is the

dying declaration, of the deceased Sarita Devi and testimony

of PW-1 Gajadhar Rajwar, who is bhaisur of deceased and

elder brother of appellant, this Court comes to the conclusion

that appellant had fled away from the house after ablazing his

wife Sarita Devi (deceased).

94. Further, to test the veracity of the statement of deceased

Sarita Devi given in her fardbeyan Ext.-3 and the testimony of

PW-1 Gajadhar Rajwar, that appellant had fled away from the

house after ablazing her to fire, this Court has gone through

the statement of the appellant recorded under Section 313 of

Cr.P.C., wherein also question was put to the appellant that in

the night of 21.03.2016, he came drinking wine and when his

wife Sarita Devi(deceased) advised him for not drinking wine

then appellant assaulted her and poured kerosene oil on her

body and ablaze her on fire as a result she sustained burn

injury and after ablazing her to fire and fled away from his

house.

95. To this question, the appellant merely denied and stated

that he had sustained burn injuries in the process of

attempting to save his wife. It is, therefore, evident that in his

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statement under Section 313 of the Cr.P.C., the appellant did

not categorically deny the allegation that he fled from his

house after setting his wife ablaze.

96. Thus, on the basis of discussion made hereinabove it is

evident that the conviction of the appellant is based on the

trustworthy dying declaration of the Sarita Devi(deceased),

which is substantiated by Dr. Laxmi Narayan (P.W.-6) and ASI

Ashok Kumar Tiwari (P.W.-7) in whose presence the

fardbeyan of the Sarita devi (deceased) was recorded.

97. Accordingly, issue no.(v) has been answered.

98. This Court, after having discussed the factual aspect

and legal position as discussed hereinabove is of the view that

the prosecution has proved the charges under Section 302

IPC against the appellant Khagen Rajwar, beyond all

reasonable doubt, as such, the impugned judgment of

conviction and order of sentence requires no interference by

this Court.

99. Accordingly, the impugned judgment of conviction and

sentence dated 08.03.2018 passed by the learned Additional

Sessions Judge-VII, Dhanbad, in Sessions Trial Case No.352

of 2016, is hereby sustained and upheld.

100. In consequence thereof, the instant appeal stands

dismissed.

101. Let the Lower Court Records be sent back to the

Court concerned forthwith, along with a copy of this Judgment.

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102. Pending Interlocutory Applications, if any, stand

disposed of.

I Agree. (Sujit Narayan Prasad, J.)

(Sanjay Prasad, J.) (Sanjay Prasad, J.)

High Court of Jharkhand, Ranchi

Dated: 6

th

August, 2026.

Rohit/-A.F.R.

Uploaded on 07.08.2026