The main legal point established in the judgment is the strict requirements for proving a dying declaration, including the need for the statement to be proved by the person who heard or recorded it and the necessity for the deceased to be in a fit state of mind.

Gopal Prasad, J.

1. Heard learned counsel for the appellants and learned counsel for the State.

2. The appellants have been convicted for offence under Section 306 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six years and further convicted for offence under Section 498 A I.P.C. and sentenced to undergo rigorous imprisonment for two years.

3. The case proceeded on the Fardbeyan of the victim recorded by S.I. M. P. Singh (not examined) of town P.S. of Sadar Police Station on 02.02.1985 at 8.05 A.M. to this effect " my name is Veena Kumari alias Munni Devi, wife of Gopal Sah, Mohalla........P.S. Nagar, District Muzaffarpur. I on 02.02.1985 at 8.05 A.M. is making statement before Darogaji of Town P.S. that my father-in-law Umesh Sah and mother-in-law always used to vex me on some pretext or other and sometimes even they assaulted me. Being aggrieved today on 02. 02. 1985 at 7.15 A.M. I sprinkle kerosene oil on my body and set on fire by matches. I have no complain against my husband. I am satisfied with my husband, but have done the occurrence only to my father- in-law and mother-in-law. This is my statement. I understood the statement read over to me and understood well and found it correct. But I am feeling suffocation so I am giving my thumb impression instead of my signature".

4. On the said Fardbeyan of the informant, there is endorsement of Dr Ganesh Mahto. (P.W.2) as follows;

"....... The statement recorded before me." On the Fardbeyan, F.I.R. lodged and after investigation charge sheet submitted. Cognizance taken and case is committed to the Court of Sessions. Charge framed and witnesses examined.

5. The trial court convicted the appellants on consideration that all the material witnesses deposed that they saw the victim burning. The doctor who conducted post mortem found death by burn injury. The main evidence to base conviction is the Fardbeyan (Ext.3) of the victim recorded by the S. I. M. P. Singh at Sadar hospital after the occurrence which was treated as dying declaration on the basis of which the F.I.R. (Ext. 2) was lodged. The said Fardbeyan was formally proved by P.W.8 as in the writing and signature of S.I., M. P. Singh which has been marked as Ext. 3. However, the said Fardbeyan neither recorded nor signed before P.W. 8. The S.I., M.P. Singh not examined. P.W. 2, doctor proved his endorsement on the Fardbeyan that the same recorded before him marked as Ext. 1. The learned Additional Sessions Judge admitted this record as dying declaration under Section 32(1) of the Evidence Act and held that relationship between the deceased and accused persons established by said dying declaration. The non- examination of witness directly on the point is not a ground to disbelieve or ignore it as it is the subject matter of the satisfaction of the court and non-examination of author of the record is not a hurdle in treating it a dying declaration.

6. However the Additional Sessions Judge held that it is satisfaction of court and it is settle principle of law that admissibility of dying declaration rest on principle that dying person shall not tell a lie and held Ext. 3 is dying declaration.

7. Learned counsel for the appellants challenged the order of conviction on two counts. First, that Fardbeyan formally proved is not admissible in evidence for treating as dying declaration. There is no evidence that the victim was conscious and in fit state of mind and relied upon decision reported in A.I.R. 1999 S.C. page 3455.

8. However the mode of proof of a statement, verbal or written about relevant fact about cause of death of the person, when and how admissible in evidence under Section 32(1) of the Evidence Act is one thing. The principle on which a hearsay evidence has been made admissible in evidence under Section 32 (1) of the Evidence Act as exception to general rule is another thing. The two concepts are totally different sails on two different fields. The Section 32(1) is an exception to g