6. appa 271-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 271 OF 2011 IN CRI. APPEAL NO. 656 OF 2010 Arvind Kumar B. Sahu .. Applicant Vs The State of Maharashtra .. Respondent Mr. Manoj Shukla i/b Mr. A.V. Upadhyay for the Applicant Ms. M.H. Mhatre, APP for the State CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 4th MAY, 2011. PER COURT: 1. This is a second application by the applicant seeking suspension of substantive sentence of imprisonment and his enlargement on bail during pendency of this appeal. The accused stands convicted for having committed murder of his wife Laxmi on 6th October 2009 at about 9.45 p.m. by pouring kerosene on her and setting her ablaze. The prosecution principally relies upon the disclosure / dying declaration made by injured Laxmi to PW 4 Dr. Nishant which has been recorded by PW 4 at Exh 19. In the history narrated by Laxmi, she has clearly stated that the appellant poured kerosene on her and set her ablaze. The trial Court at paragraph 35 of the judgment has held that the disclosure made by Laxmi satisfies all the tests of dying declaration under Section 32(1) of the Indian Evidence Act and therefore, has placed implicit reliance. 1 6. appa 271-11.doc 2. Learned counsel for the applicant has invited our attention to the deposition of three medical officers who have been examined as prosecution witnesses. The learned counsel for the applicant has referred to the cross-examination of these witnesses and it is urged before us that the evidence of PW 4 Dr. Nishant is weak in the sense that injured Laxmi could not have made the statement as she had sustained hundred percent burns and would not be in a position to make the aforesaid statement. It is also urged by the learned counsel for the applicant that the landlord had not been examined, so also brother of the deceased and consequently the prosecution had withheld the evidence in respect of any disclosure made by Laxmi immediately after the incident. Learned APP has urged before us for dismissal of this application on the ground that there is strong prima facie case against the applicant. 3. Learned counsel for the applicant has placed reliance on the judgment of the Supreme Court in State through CBI Vs Mahender Singh Dahiya, 2011(1) Crime 319 (SC) wherein the Supreme Court has observed that motive becomes insignificant if prosecution proves its case beyond reasonable doubt by evidence and materials on record. In cases based on the circumstantial evidence, however, motive assumes great importance and its absence may be fatal. It is urged by the learned counsel for the applicant that the prosecution has 2 6. appa 271-11.doc utterly failed to prove the motive for the applicant / accused to have committed the offence. It is also urged before us by the learned counsel for the applicant by relying on the said judgment of the Supreme Court that the theory of last seen does not necessarily establish that the accused had murdered the victim. 4. In the present case, we find that there is strong prima facie evidence in respect of involvement of the present applicant as the dying declaration of injured Laxmi has been recorded by PW 4 Dr. Nishant and which the trial Court had held to be admissible. Upon perusal of the cross-examination and the evidence of other witnesses, we do not find at this stage that a view different from the view taken by the trial Court would be permissible even at this prima facie stage. In that light of the matter, therefore, we are not inclined to allow the present application. Moreover, the submissions advanced before us by the learned counsel for the applicant pertains to re- appreciation of evidence which cannot be done at this stage. In that light of the matter, therefore, this application is dismissed. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 3 6. appa 271-11.doc 4