STATE OF MAHARASHTRAversusGUNTABAI @ BHAGIRATHAIBAI & ORS.

                        (2009] 8 S.C.R. 44


A                  STATE OF MAHARASHTRA
                                v.
             GUNTABAI @ BHAGIRATHAIBAI & ORS.
               (Criminal Appeal No. 1418 of 2003)

                          APRIL 21, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

        Penal Code, 1860:
c
       Sections 302, 498A rlw 34 - Acquittal order by the trial
  court - Appeal of State dismissed by High Court - On appeal,
  Held: Acceptability of dying declaration - Law already settled
  - Other factors considered by the trial court not considered
D by the High Court - Matter remitted to High Court to consider
  the matter afresh.

        Paparambaka Rosamma & Ors. vs. State of A.P. (1999)
    7 SCC 695 and Laxman vs. State of Maharashtra (2002) 6
    sec 710, referred to.
E
                        Case Law Reference :
        (1999) 1 sec 695                              Para 2
                                 referred to
                                                                   .
        (2002) 6 sec 110         referred to          Para 3
F
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1418 of 2003.

      From the Judgment/Order dated 25.07.2003 passed by
  the High Court of Judicature at Bombay in Appeal No. 81 of
G 1998.

        R.K. Assure Advocate for the Appellant.

        K. sharda Devi Advocate for the Respondent.

H                               44
                 STATE OF MAHARASHTRA v. GUNTABAI @                     45
                        BHAGIRATHAIBAI & ORS.

·"              The Judgment of the Court was delivered by                    A

                DR. ARIJIT PASAYAT, J. 1. 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   B
            by the learned Addi. 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
                                                                              c
            accused persons are concerned.

                 2. The prosecution version as unfloded during trial is as
            follows:-
     y
                                                                             D
                 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, E
            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
                                                                             F
            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 G
     ..,.
            A.P. (1999) 7 SCC, 695. Questioning the acquittal of the
            accused persons, the State filed an appeal before the High
            Court which affirmed the view of the Trial Court relying on the
            dE!cision referred to by the Trial Court.
                                                                             H
    46         SUPREME COURT REPORTS                (2009] 8 S.C.R.


A        3. 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.
B
        4. 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
C 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
D Court in the case of Paparambaka Rosamma and Ors. (supra).

       5. 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
E say that the High Court shall consider the evidence on record
  and the applicable legal principle while deciding the matter
  afresh.

       6. It is to be noted that by order dated 24.11.2003 leave
  was granted qua respondent No. 1-Guntabai@ Bhagirathibai
F 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

G          The appeal is allowed.
                                                                        I(


    G.N.                                           Appeal allowed.