- (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 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.
(2.) 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. v. State of A.P. . 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 decision referred to by the Trial Court.
(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 v. State of Maharashtra .;