Jharkhand High Court
Khagen Rajwar vs The State Jharkhand …. …. Opp. Party on 6 August, 2026
Bench: Sujit Narayan Prasad, Sanjay Prasad
1
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
PRESENT
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 यढे ल 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 फिड बय न
प टदलपुत्र मेदिकल कॉलेज के दिदकत्सक ि क्टर लक्ष्मी न र यण
के समक्ष लेखबद्ध दकय गय । यही वह सूदिक सरीत िे िी क
फिड बय 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
फिड बय न के आध र पर सर यढे ल 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 फिड बय 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 यढे ल 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)
– 33 – 2026:JHHC:23533-DB
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.”
– 36 – 2026:JHHC:23533-DB
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
– 37 – 2026:JHHC:23533-DB
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
– 38 – 2026:JHHC:23533-DB
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.
– 39 – 2026:JHHC:23533-DB
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
– 40 – 2026:JHHC:23533-DB
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)
- 41 - 2026:JHHC:23533-DB
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.
– 42 – 2026:JHHC:23533-DB
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
– 43 – 2026:JHHC:23533-DB
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.
– 44 – 2026:JHHC:23533-DB
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: 6th August, 2026.
Rohit/-A.F.R.
Uploaded on 07.08.2026
