1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 894 OF 2010 IN CRIMINAL APPEAL NO. 115 OF 2010 Gajendra S/o Nanasaheb Shirsath, Age : 28 Years, Occu. : Agril., R/o Savtawadi, Kolhar (Kh), Tq. Rahuri, Dist. Ahmednagar. .. .. Applicant Versus The State of Maharashtra, Through Rahuri Police Station, Rahuri, District Ahmednagar. .. .. Opponent Shri Sandeep S. Deshmukh, Advocate for the Applicant. Smt. A. V. Gondhalekar, A.P.P. for the Respondent/State. CORAM : P. V. HARDAS AND N. D. DESHPANDE, JJ. DATE : 13TH JULY, 2010. ORAL ORDER [Per P. V. HARDAS, J. ] : . This is an application by which the applicant seeks suspension of substantive sentence of imprisonment and his 2 enlargement on bail pending decision of Criminal Appeal. 2. Applicant stands convicted for an offence punishable U/Sec. 302 of the Indian Penal Code on the allegations that on 09.10.2008 applicant committed murder of one Savita whom the applicant is alleged to have had illicit sexual relations. 3. The prosecution mainly relied upon the testimony of P.W. 1 Gangubai who is examined by the prosecution as an eye witness. P.W. 1 Gangubai is said to be mother-in-law of deceased Savita. The Trial Court while appreciating the evidence of P.W. 1 Gangubai recorded a finding that this witness could be relied upon only to the extent of accused fleeing from the scene of offence. Apart from the testimony of P.W. 1 Gangubai, the prosecution also relied upon three oral dying declarations alleged to have been made to P.W. 1, P.W. 3 and P.W. 7. The Trial Court disbelieved the evidence in respect of the recovery of the knife and blood stained clothes of the applicant. Upon appreciation of the evidence the Trial Court written the verdict of conviction and sentence to applicant as aforesaid. 4. Mr. Deshmukh, learned counsel for the applicant has urged 3 before us that the prosecution has utterly failed to bring the offence home against present applicant. It is urged before us that no reliance can be given on the testimony of P.W. 1 Gangubai, who is alleged to have been sitting out side the house and not to have been seen the accused entering in the room, where the deceased alleged to have been watching programme on the televesion set. It is also urged before us that there were children of the neighbourhood who were also watching programme on televesion set, but they have not been examined. It is urged before us that the three oral dying declarations cannot be relied upon as P.W. 1 and P.W. 7 did not say the presence of P.W. 3 and vice versa. It is therefore, urged before us that the applicant has made out a strong case for suspension of his sentence and his enlargement on bail. 5. The appeal filed by the present applicant has been admitted by this Court. The Trial Court has accepted the testimony of P.W. 1 Gangubai to the extent of Gangubai having seen the accused fleeing from the scene of the offence. Deceased Savita had sustained sixteen external stab injuries and about seven internal injuries. It is not disputed that deceased Savita died on account of injuries sustained by her. Apart from the case 4 of circumstantial evidence and the accused being seen near the scene of offence and fleeing from the scene of offence, we have considered three oral dying declarations alleged to have been made to P.W. 1, P.W. 3 and P.W. 7. In such circumstances, therefore, according to us prima facie, there appears to be strong evidence against the applicant/accused. The aforesaid observations have been made by us for the purpose of deciding present application and should not be considered as findings on merits. 6. Upon considering the material against the accused, we are of the opinion that no case for suspension of sentence and enlargement of the accused on bail is made out. The application is rejected. [ N. D. DESHPANDE, J.] [ P. V. HARDAS, J.] bsb/July 10