REPORTABLE  

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 1418  OF 2003                     

   State of Maharashtra ...   Appellant(s)                         Versus    Guntabai @ Bhagirathaibai & Ors. ...  Respondent(s)

J U D G M E N T

 Dr.ARIJIT PASAYAT,J.

Challenge in this appeal is to the judgment of the Division Bench of the Bombay  

High Court dismissing the appeal filed by the State of Maharashtra questioning the  

correctness of the judgment of acquittal passed by the learned Addl. Sessions Judge,  

Nasik in Sessions Case No. 87/87.  Three persons including the present respondent  

No. 1 faced trial for alleged commission of offence punishable under Section 302 of  

the Indian Penal Code, 1860 (for short 'IPC')  so far as present respondent No. 1 is  

concerned,  and  Sections  498A read  with  Section  34  IPC so  far  as  all  the  three  

accused persons are concerned.  

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The prosecution version as unfloded during trial is as follows :-

On 21.9.1986 around 10.30 a.m. accused No. 1 put on fire her daughter-in-

law Minabai  (hereinafter referred to as the deceased).  The motive for doing was  

alleged non-fulfillment of dowry demands.  Hearing the cries of the deceased, the  

father-in-law came there and took her to the hospital.  In the hospital, her statement  

was  recorded  in  which  she  put  the  blame on  the  present  respondent  No.  1  and  

alleged that her husband accused No. 3 Uttam helped respondent No. 1 in doing so.  

After completion of the investigation, chargesheet was filed.  As the accused persons  

pleaded innocence, trial was held.  The Trial Court discarded the dying declaration  

primarily on the ground that the dying declaration must have a certificate of the  

doctor stating in clear terms that the victim was not only conscious but was in a  

position to get the statement recorded.  Reliance for this purpose was placed on a  

decision of this Court in the case of  Paparambaka Rosamma and Ors. Vs.  State of  

A.P. (1999) 7 SCC, 695.  Questioning the acquittal of the accused persons, the State  

filed an

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appeal before the High Court which affirmed the view of the Trial Court relying on  

the decision referred to by the Trial Court.  

In the present appeal, learned counsel for the State  submitted that the  

view taken by the Trial Court as affirmed by the High Court is clearly contrary to  

the view expressed by a Constitution Bench of this Court in the case of Laxman Vs.  

State of Maharashtra (2002) 6 SCC, 710.   

Learned counsel for respondent No. 1 on the other hand submitted that  

the Trial Court as well as the High Court not only relied on the deficiency in the  

dying declaration, but also several other factors.  It is true, as contended by learned  

counsel  for  the  State,  that  the  position  regarding  the  acceptability  of  the  dying  

declaration has been laid down by the Constitution Bench of this Court in the case of  

Laxman (supra).  But, the other factors which were considered by the Trial Court  

were not considered by the High Court as it primarily concurred with the view of the  

Trial Court rendered with the reference to the judgment of this Court in the case of  

Paparambaka Rosamma and Ors. (supra).  

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It would be therefore appropriate to set aside the impugned judgment and  

remit  the  matter  to  the  High  Court  to  consider  the  matter  afresh.  We  order  

accordingly.  Needless  to  say  that  the  High  Court  shall  consider  the  evidence  on  

record and the applicable legal principle while deciding the matter afresh.   

It is  to be noted that by order dated 24.11.2003 leave was granted qua  

respondent  No.  1-Guntabai  @  Bhagirathibai  only  and  not  in  respect  of  other

respondents, namely respondent Nos. 2 and 3, as the special leave petition against  

them stood dismissed. This order shall operate only in respect of respondent No. 1  

The appeal is allowed.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

             ....................J.                          ((ASOK KUMAR GANGULY)

            New Delhi, April 21, 2009.