1. In this Criminal Appeal, the conviction of the accused appellant is based upon the dying declaration of the deceased which was recorded by the judicial magistrate (P.W.4). The learned sessions Judge as well as the High Court held the dying declaration made by the deceased to be truthful, voluntary and trustworthy. The magistrate in his evidence had stated that he had contacted the patient through the medical officer on duty and after putting some questions to the patient to find out whether she was able to make the statement; whether she was set on fire; whether she was conscious and bale to make the statement and on being satisfied he recorded the statement of the deceased. There was a certificate of the doctor which indicates that the patient was conscious. The high Court on consideration of the evidence of the magistrate as well as on the certificate of the doctor on the dying declaration recorded by the magistrate together with other circumstances on record came to the conclusion that the deceased Chandrakala was physically and mentally fit and as such the dying declaration can be relied upon. When the appeal against the judgment of the Aurangabad bench of the Bombay High Court was placed before a three Judges bench of this court, the counsel for the appellant relied upon the decision of this court in the case of Paparambaka Rosamma and Ors. v. State of Andhra Pradesh MANU/SC/0558/1999 : 1999CriLJ4321 and contended that since the certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement, the dying declaration could not have been accepted by the court to form the sole basis of conviction. On behalf of the counsel appearing for the State another three Judges bench decision of this court in the case of Koli Chunilal Savji and Anr. v. State of Gujarat MANU/SC/0624/1999 : 1999CriLJ4582 was relied upon wherein this court has held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored merely because the doctor had not make the endorsement that the deceased was in a fit state of mind to make the statement in question. Since the two aforesaid decisions expressed by two benches of three learned Judges was somewhat contradictory the bench by order dated 27.7.2002 referred the question to the Constitution Bench.

2. At the outset we make it clear that we are only resolving the so-called conflict between the aforesaid three Judges bench decision of this court, where-after the criminal appeal will be placed before the bench presided over by Ju........