1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3892 OF 2009 IN CRIMINAL APPEAL NO.567 OF 2009 Saheblal s/o Jumassha Sayyad and another ... APPLICANTS VERSUS The State of Maharashtra ... RESPONDENT ----- Shri S.J. Salgare, Advocate holding for Mrs. S.S. Jadhav, Advocate for the applicants Shri S.D. Kaldate, A.P.P. for respondent ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 7th January, 2010. ORAL ORDER: 1. The appellants stand convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code on the allegations that the appellant No.1, husband of deceased Umedabi, had demanded money from Umedabi for purchasing liquor and on Umedabi refusing to part with the money on the ground of Eid festival being round the corner, the appellant No.1 had poured kerosene on Umedabi and had set her ablaze. The allegations against appellant No.2 are that he had exerted 2 appellant No.1 to commit murder of deceased Umedabi. The trial Court accepted the dying declaration of Umedabi at Exhibit 56, recorded by P.W.5 Shaikh Rafik, a Police Head Constable and convicted and sentenced the appellants as aforestated. 2. Mr. Salgare, learned counsel for the applicants has urged before us for suspension of the substantive sentence and the enlargemnet of the applicants on bail pending the decision of the appeal on the ground that P.W.5 Head Constable Shaikh Rafik has not proved the contents of the dying declaration at Exhibit 56 as P.W.5 Shaikh Rafik in his evidence only refers to the recording of the dying declaration at Exhibit 56 for proving the contents of the same. Reliance is placed by the learned counsel for the applicants on the judgment of the Division Bench of this Court in 2008 ALL MR (CRI) 1921 (Deorao s/o Sonbaji Bhalerao & Anr. Vs. State of Maharashtra) to urge before us that in the absence of proof of contents of the dying declaration, the same cannot be made the foundation for convicting the accused. 3. The submissions advanced before us by the learned counsel for the applicants pertains to appreciation of evidence which cannot be done at this stage. It appears that the paper book has been prepared and the appeal can be heard out of turn. In the light of the limited nature of challenge posed in this appeal, 3 we direct that the appeal be listed for final hearing in the week commencing from 18th January 2010. 4. Accordingly, for the reasons stated above, Criminal Application No.3892/2009 is dismissed with directions that the appeal be set down for final hearing in the week commencing from 18th January 2010. [ SHRIHARI P. DAVARE, J.] [ P.V. HARDAS, J.] fmp/cri3892.09