STATE OF MAHARASHTRA versus GUNTABAI @ BHAGIRATHAIBAI & ORS.

Citation: [2009] 8 S.C.R. 44 · Decided: 21-04-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
c 
(2009] 8 S.C.R. 44 
STATE OF MAHARASHTRA 
v. 
GUNTABAI @ BHAGIRATHAIBAI & ORS. 
(Criminal Appeal No. 1418 of 2003) 
APRIL 21, 2009 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGULY, JJ.] 
Penal Code, 1860: 
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. 
E 
F 
Paparambaka Rosamma & Ors. vs. State of A.P. (1999) 
7 SCC 695 and Laxman vs. State of Maharashtra (2002) 6 
sec 710, referred to. 
Case Law Reference : 
(1999) 1 sec 695 
(2002) 6 sec 110 
referred to 
referred to 
Para 2 
Para 3 
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 c 
Sections 498A read with Section 34 IPC so far as all the three 
accused persons are concerned. 
2. The prosecution version as unfloded during trial is as 
follows:-
D 
y 
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 
E 
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 
G 
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 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 
B 
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. 
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 
afres
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