1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3067 OF 2010 IN CRIMINAL APPEAL NO.286 OF 2010 Nana s/o Bapu Fotare ,,Applicant Versus The State of Maharashtra ..Respondent Mr.N.S.Ghanekar, Advocate for applicant Mr.K.B.Choudhari, A.P.P. for respondent – State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 31st AUGUST 2010 PER COURT : 1. This is an application seeking the suspension of substantive sentence of imprisonment of the present applicant and his enlargement on bail pending the decision of this appeal. The present applicant has been convicted for an offence punishable under Sections 302, 323, and 504 of the Indian Penal Code. The applicant has been sentenced to imprisonment for life. 2. Mr.Ghanekar, learned Counsel for the applicant has urged before us that the principal ground for convicting the present applicant is on the basis of the dying declaration at Exh.32 recorded by P.W.7 Police Constable. The other circumstance on the basis of which the applicant has been convicted is the seizure of the blood stained shirt, which was found stained with blood of AB group which matched the blood group of 2 deceased. The other circumstance on which the trial Court relied upon is the contradiction elicited from the 164 statement which the trial Court has considered as substantive evidence. 3. In respect of the third circumstance, we may say so that prima facie the contradictions elicited from the 164 statement are not substantive piece of evidence. Reliance may usefully be placed on the judgment of the Supreme Court in State of Delhi vs.Shri Ram Lohia, AIR 1960 Supreme Court 490. 4. Mr.Ghanekar, learned Counsel for the applicants has urged before us that no Medical Officer has been examined to establish that deceased Kakasaheb was in a fit mental condition when his statement under Section 32 came to be recorded. It is also urged before us by the learned Counsel for the applicants that brother of deceased Kakasaheb was present during the recording of statement at Exh.32. In respect of circumstance seizure of shirt it is urged before us that it is not established that the shirt on its seizure was sealed at the place of seizure and the seals were intact when the shirt was sent to the Chemical Analyzer. 5. According to us, the aforesaid submissions pertain to appreciation of evidence which cannot be drawn at this stage. We are, therefore, not inclined to entertain the plea for suspension of substantive sentence and 3 enlargement of the applicant on bail though the applicant was on bail during trial. 6. For the aforesaid reasons, the application is dismissed. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/3067.10criappln)