1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3646 OF 2010 IN CRIMINAL APPEAL NO.340 OF 2010 Vijay s/o Rambhau Shinde and ors. ..Applicants (Original accused 1 to 3) Versus The State of Maharashtra ..Respondent Mr.S.J.Salgare, Advocate holding for Smt.S.S.Jadhav, Advocate for applicants Mr.D.R.Kale, A.P.P. for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 26th October 2010 PER COURT : 1. The applicants, husband, mother-in-law and sister-in-law of deceased Kalpana stand convicted for an offence punishable under Section 302 of the Indian Penal Code, by the Additional Sessions Judge, Ambajogai in Sessions Case No.19 of 2010 and sentenced to imprisonment for life. The present application has been filed by the applicants seeking suspension of the substantive sentence of imprisonment and their enlargement on bail pending the decision of the appeal. Learned Counsel for the applicants has very fairly stated that none of the applicants was on bail during trial. 2. The prosecution has relied upon the dying declaration at Exh.20, which implicates all the three applicants. As per the dying declaration at 2 Exh.20, dated 14.11.2009 the husband of Kalpana assaulted her by questioning her as to why she had not brought money from her parents’ house and thereupon the mother-in-law poured kerosene on her while sister-in-law set her ablaze. The flames were extinguished by the neighbours. The trial Court implicitly accepted the aforesaid dying declaration and came to the conclusion that the act had been done by the applicants in furtherance of their common intention and accordingly convicted and sentenced them. 3. Mr.Salgare, learned Counsel for the applicants has urged before us that though the dying declaration came to be recorded on 14.11.2009, the offence came to be registered on 16.11.2009 on the basis of the complaint of the brother of deceased Kalpana. It is further stated that the case of applicant No.1 i.e. husband can be separated from the case of the rest of the accused as the husband is alleged to have only assaulted deceased Kalpana and there are no allegations that he had actually participated in either pouring kerosene on Kalpana and setting her ablaze. It is, therefore, urged that the husband of deceased Kalpana would be entitled to be released on bail. The learned Assistant Public Prosecutor has urged before us that the applicants have been convicted on the basis that the applicants had shared the common intention to commit murder of deceased Kalpana. The act of assault and the act of pouring of kerosene and setting Kalpana ablaze is a simultaneous act without there being any gap of time and, therefore, the learned Assistant 3 Public Prosecutor urged before us that it would be a case governed by Section 34 of the Indian Penal Code. 4. The dying declaration in no uncertain terms implicates all the three applicants. Though the dying declaration does not state that the applicant – husband had either poured kerosene or had set Kalpana ablaze, yet the act of assault by the husband and the act of setting Kalpana ablaze are virtually one after the other. In any event the submissions advanced before us by the learned Counsel for the applicants pertain to reappreciation of evidence which cannot be done at this stage. Suffice it to state that there is material in the form of the dying declaration at Exh. 20, which implicates the present applicants. In that light of the matter, therefore, we are not inclined to entertain the present application for suspension of substantive sentence and enlargement of the applicants on bail. However, since applicants No.2 and 3 are ladies, we expedite the hearing of the appeal. Application is accordingly dismissed. Hearing of the appeal is expedited. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/3646.10criappln)