1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.877 OF 2009 IN CRIMINAL APPEAL NO.155 OF 2009 Dnyaneshwar s/o Chintaman Patil .. Applicant Versus The State of Maharashtra .. Respondent Mrs.S.S.Jadhav, Advocate for applicant Shri B.J.Sonawane, APP for respondent-State CORAM : P.V.HARDAS AND R.K.DESHPANDE, JJ DATE : 15th JUNE, 2009 PER COURT : 1. The applicant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code on the allegations that the applicant had poured kerosene on the person of his wife and set her ablaze, by this application seeks the suspension of the substantive sentence of imprisonment and his enlargement on bail during the pendency of this appeal. 2 2. The conviction of the applicant rests principally upon two dying declarations recorded at Exh.14 by Executive Magistrate and Exh.22 recorded by A.S.I. The prosecution had also adduced evidence in respect of dying declaration at Exh.40, which was alleged to have been recorded first in point of time, in which the deceased claimed to have accidentally sustained the burns while cooking. The trial Court for reasons which are to be found at paragraph 26 of the Judgment shows not to place e reliance on the dying declaration at Exh.40 but accepted the dying declarations at Exh.14 and Exh.22. With the assistance of the learned Counsel for the parties, we have perused the three dying declarations. A thread of consistency is apparent in the two dying declarations at Exh.14 and Exh.22. Dying declaration at Exh.40 which was recorded first in point of time completely exonerates the applicant/accused as the said dying declaration is in respect of the deceased sustaining burns accidentally. 3. Mrs.Jadhav, learned Counsel for the applicant has urged before us that the reasons ascribed by the trial Court for rejec ting the dying declaration at Exh.40 are only unsustainable. According to the learned Counsel for the applicant, perusal of the three dying declarations would show that the dying declaration recorded at Exh. 40 completely exonerates the accused and in the face of such contradictory and inconsistent state of dying declarations no conviction can be based. The learned Assistant Public Prosecutor, however, supported the findings of the trial Court. 3 4. It is true that perusal of the dying declaration at Exh.40 discloses that deceased had ascribed the burns on account of accident i.e accidental burns. However, in the dying declaration at Exh.14 and Exh.22 deceased in no uncertain terms had stated that applicant had poured kerosene on her person and set her ablaze. Undisputedly, deceased had died on account of burn injuries sustained by her. It would be inappropriate at this stage to reappreciate the evidence, if the dying declaration at Exh.40 is the reliable piece of evidence on basis of which the applicant would be entitled to release. Suffice it to say that the trial Court has accepted the evidence against the applicant and it would be wholly impermissible to reappreciate the evidence at this stage. In the face of two dying declarations at Exh.14 and Exh.22, we are unable to accede the request of learned Counsel for the applicant for enlarging the applicant on bail during pendency of the appeal. However, in the peculiar facts, we expedite the hearing of the appeal. The appeal be set down for hearing as soon as the paper book is received. ( R.K. DESHPANDE, J.) ( P.V.HARDAS, J.) (vvr/appln877.09) 4