1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. C.A. No.586/2008 in Criminal Appeal No.78/2008 Shashikala w/o Pandurang Golekar Vs. State of Maharashtra Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. LAVANDE AND A.B.CHAUDHARI, JJ. Order Reserved on : 07.04.2008 Order Pronounced on : 11.04.2008 Heard Mr. F. Mirza, learned counsel for the applicant and learned A. P. P. for the respondent- State of Maharashtra. By this application, the applicant, who has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- by Adhoc Additional Sessions Judge, Yavatmal in Sessions Trial No. 56/2006 by judgment and order dated 21st January 2008 seeks suspension of substantive sentence and bail. The applicant has been convicted by the trial Court for having committed murder of Dwarkabai Ramji Gaikwad by pouring kerosene on her person and setting her on fire on 28.3.2006 at about 8.00 A.M. at Rui. 2 In the course of trial, the prosecution has examined eight witnesses. The trial Court relying upon the dying declaration recorded by PW 1 Purushottam Pinjarkar, the Executive Magistrate and the evidence of PW 4 Ramji Gaikwad, the husband of the deceased and of PW 7 Dr. Chhaya Fule, who certified the fitness of Dwarkabai for giving statement, held that the prosecution had proved offence beyond reasonable doubt against the applicant and convicted and sentenced the accused-applicant as above. Mr. Mirza, learned counsel for the applicant submitted that dying declaration recorded by the Executive Magistrate does not inspire confidence inasmuch as Dr. Fule, who claims to have certified the fitness of Dwarkabai, admitted that she did not find out as to what medicines were given to deceased Dwarkabai. He further submitted that the evidence of PW 4 Ramji also does not inspire confidence inasmuch as although he is the husband of Dwarkabai, his presence on the spot is doubtful inasmuch as he did not take any steps to put off the fire and there is no evidence as to in what way he was handicapped. He further submitted that the applicant is 45 years old and has no previous criminal record. Moreover, the applicant was on bail during the trial and she did not misuse the liberty granted to her. Therefore, learned counsel submitted that the substantive sentence imposed on 3 the applicant be suspended pending hearing and final disposal of the appeal. Per contra, Mr. Jaiswal learned A.P.P. submitted that there is cogent evidence against the applicant to prove her complicity in the murder of Dwarkabai by pouring kerosene on her and setting her ablaze. He submitted that the dying declaration recorded by PW 1 Purushottam Pinjarkar, the Executive Magistrate inspires confidence since the same is truthful and has not been shaken in the cross-examination of Purushottam Pinjarkar. He further submitted that the dying declaration stands corroborated by the evidence of PW 4 Ramji, who had seen the accused-applicant running away from the spot which clearly proves that kerosene was poured on deceased in her house and she was set ablaze. He further submitted that mere fact the applicant was on bail during the trial, by itself, is not sufficient to suspend the substantive sentence having regard to the nature of the offence and also having regard to the fact that consideration for grant of bail pending trial and post-conviction are materially different. Therefore, he urged that this is not a fit case in which substantive sentence imposed on the applicant deserves to be suspended pending hearing and final disposal of the appeal. Having heard learned counsel for the applicant and learned A.P.P. for the respondent and having perused the 4 record, we find no merit in the present application. The dying declaration recorded by PW 1 Purushottam Pinjarkar inspires confidence and the applicant has not been able to bring any material on record to establish that the dying declaration is suspicious and, therefore, it should be rejected. The evidence of PW 7 Dr. Fule establishes that she examined deceased before recording her statement and she found that the deceased Dwarkabai was in a fit condition to give her statement. Merely because she did not inquire about medicines given to the patient, by itself, is not sufficient to discard the cogent testimony of the said witness. Moreover, dying declaration also stands corroborated by PW 4 Ramji, the husband of deceased, who has clearly deposed that since he was handicapped he could not help in putting off the fire. His evidence has not been shaken in the cross-examination. Therefore, there is clinching evidence led by the prosecution against the applicant to prove the offence of murder. Merely because the applicant was on bail during the trial and the fact that she did not misuse the liberty, by themselves, are not sufficient to suspend substantive sentence imposed on the applicant since the offence is of serious nature. It is well settled that considerations for grant of bail pending the trial and post-conviction are materially different. We, therefore, find no merit in the present application. Hence, the 5 application is dismissed. Needless to mention that the observations have made herein are prima facie in nature and have been made for the purpose of disposal of this application. JUDGE JUDGE MLA