1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 56 OF 2010 IN CRIMINAL APPEAL NO. 6 OF 2010 Ashok s/o Dagadu Hawale ...Applicant VERSUS The State of Maharashtra ...Respondent ..... Shri S.S.Panale, advocate for the applicant Shri S.D.Kaldate, A.P.P. for the respondent/State ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 01.02.2010 ORAL ORDER : (Per Shrihari P. Davare, J.) 1 Perused. Heard learned counsel for the parties. 2 By the present application, the applicant (original accused no.1) seeks the suspension of substantive sentence and his enlargement of bail during the pendency of the appeal. The applicant/accused no.1 faced the trial in Sessions Case No. 45 of 2008 along with his father i.e. original accused 2 no.2 and applicant/accused no.1 came to be convicted and was sentenced to suffer imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and to pay a fine of Rs. one thousand with default condition for non- payment of fine to suffer R.I. for one year, by the judgment and order rendered by the learned Adhoc Additional Sessions Judge, Ambajogai on 19.12.2009. 3 Briefly stated, the facts of the present case are that deceased Archana married with Babasaheb i.e. brother of applicant/original accused no.1 on 26.4.2006. It is also alleged that the fidelity of deceased Archana was suspected, and therefore, applicant/original accused no.1 and accused no.2 used to illtreat her. It is further alleged that during the intervening night between 28.5.2008 and 29.5.2008, the fateful event occurred and the applicant herein and accused no.2 poured kerosene on the person of deceased Archana and set her ablaze, when she was asleep. 4 It is also alleged that victim Archana made oral dying declarations before her brother i.e. PW2 Navnath, who lodged complaint. Accordingly investigation was carried out. Applicant/accused no.1 and accused no.2 came to be arrested 3 and after completion of investigation, charge sheet was filed against the applicant/accused no.1 and accused no.2 and they faced the trial as afore said and the applicant herein came to be convicted and sentenced as mentioned herein above. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence, the applicant/accused no.1 has filed the appeal and preferred the present application for his enlargement on bail during the pendency of the appeal. 5 Learned counsel for the applicant submitted that principally the case of the prosecution is based upon three written dying declarations and one oral dying declaration. According to the learned counsel for the applicant, two dying declarations, Exhs. 44 and 47 were recorded, which attribute the authorship of death of deceased Archana towards the applicant herein; whereas the written dying declaration, Exh. 68, recorded by DW1 A.S.I. Pagar discloses that victim Archana met with the accidental death due to fall of the chimani. Learned counsel for the applicant canvassed that while recording two dying declarations Exhs. 44 and 47, relatives of deceased Archana were present, and therefore, the version of victim Archana recorded in both the said dying declarations are not voluntary and truthful, and therefore, 4 same cannot be relied upon. It is further submitted by learned counsel for the applicant that endorsement made by the doctor on both the said dying declarations is in respect of consciousness of the said patient and he has not made any endorsement in respect of mental fitness of the patient before giving her both the said dying declarations. 6 Learned counsel for the applicant further pointed out that dying declaration Exh.68 was suppressed by the prosecution and same was not produced on record, and therefore, applicant/accused no.1 was required to be examine DW1 A.S.I. Pagar and accordingly the said dying declaration Exh. 68 was brought on record, which reflected accidental death of deceased Archana. Accordingly, it is submitted by the learned counsel for the applicant that the afore said dying declarations are not consistent, and therefore, same are not truthful and reliable, and therefore, conviction and sentence cannot be based upon the such dying declarations, wherein there is variance of the versions of victim Archana, and hence, learned counsel for the applicant urged that the applicant is entitled to be enlarged on bail. It is further submitted that the applicant was on bail during the pendency of trial and said aspect also strengthens the case of 5 the applicant for bail. 7 Learned A.P.P. Shri S.D.Kaldate appearing for the respondent opposed the present application and vehemently and submitted that the two dying declarations, Exhs. 44 and 47 attribute the authorship of death of deceased Archana towards the applicant herein. Learned A.P.P. further submitted that the first dying declaration Exh.44 recorded by Executive Magistrate PW3 Ganpat Yedke and another dying declaration Exh. 47 was recorded by police personnel bear the endorsement of PW8 Dr.Tambde and both the said dying declarations involve the applicant herein. As regards the dying declaration Exh.68, which was produced by defence witness, learned A.P.P. submitted that the said dying declaration does not bear the endorsement of Dr. Yedke before recording the said dying declaration and the thumb impression of injured on the said dying declaration has not been attested by DW1 A.S.I. Pagar. Accordingly the learned A.P.P. submitted that dying declarations Exhs. 44 and 47 are consistent, voluntary and truthful, which attribute the authorship of death of Archana towards the applicant herein and further the said dying declarations have been supported by oral dying declaration made by victim before PW2 6 complainant Navnath, and therefore, learned A.P.P. submitted that the Trial Court has rightly convicted and sentenced the applicant herein and accordingly learned A.P.P. supported the judgment and order rendered by the learned Trial Court, and urged that the present application bears no substance and same is devoid of any merits, and therefore, same be rejected. 8 We have perused the record and proceedings, as well as considered the submissions advanced by learned counsel for the applicant and the learned A.P.P. for the respondent/State. Considering the oral and documentary evidence as well as medical evidence on record, prima facie, there are two dying declarations and one oral dying declaration, which are against the applicant herein and the submissions advanced by the learned counsel for the applicant require re-appreciation of evidence, which cannot be done at this stage. Hence, apparently, we feel that there is prima facie case against the applicant herein, and therefore, present application is sans of any merits, and hence, we are not inclined to enlarge the applicant on bail during the pendency of appeal. 7 9 In the result, present application deserves to be rejected and same stands rejected accordingly. (SHRIHARI P. DAVARE, J.) (P.V.HARDAS, J.) dbm/crap56.10