1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Appln.(APPA) .268/2009 in Cr. Appeal No.220/2006 Gulab s/o Somaji Neware and 2 others Vs. State of Mah. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM : A.P. LAVANDE & PRASANNA B.VARALE, JJ. Order reserved on : 17/12/2009 Order pronounced on 19/12/2009 Heard Mr. Daga, learned counsel for the applicant and Mr. Deshpande, learned APP for the respondent. By this application, the applicant, who was accused no. 1 in Sessions Trial No.56/2005 before Additional Sessions Judge, Yavatmal seeks suspension of sentence and bail. The applicant with the other two accused have been convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code for causing death of deceased Varsha daughter- in- law of the applicant. This is third application filed by the applicant for suspension of sentence and bail. The first application filed by all the three accused was dismissed by this Court by order dated 31st July, 2006. The second application was permitted to be withdrawn by the order dated 25th June 2008 with liberty to file fresh application after one year. The applicant along with his wife and daughter has been convicted for setting Varsha on fire by pouring kerosene on her. The trial Court has held that the prosecution has been successful in proving that the applicant and his daughter caught deceased Varsha and accused no.2 Kamal set deceased ablaze. The conviction has been recorded on the basis of two 2 dying declarations i. e. Ex. 36 recorded by the Police Officer and Ex. 45 recorded by the Executive Magistrate. The incident in question had occurred on 15.6.2005 at 9.00 p. m. and the police officer recorded dying declaration on 18.6.2005 and the second dying declaration was recorded by the Executive Magistrate on 20.6.2005. Mr. Daga, learned counsel for the applicant submitted that both the dying declarations do not inspire confidence inasmuch as the evidence on record clearly suggests that deceased was unconscious after she suffered burn injuries. The Executive Magistrate has clearly admitted that the deceased was not in a fit condition to record her statement from 16.6.2005 to 20.6.2005. He submitted that the evidence on record does not suggest that deceased was physically and mentally fit to give her statement either on 18.6.2005 or 20.6.2005. Mr. Daga further submitted that the applicant is 68 years old man and as such he deserves to be released on bail. Per contra, Mr. A.M. Deshpande, learned APP submitted that no case has been made out for suspension of sentence and bail. We have considered the rival submissions and perused the record. By order dated 31st July 2006 the application for suspension of sentence and bail filed by all the applicants was dismissed on merits by this Court holding that both the dying declarations of deceased had implicated all the three accused in the commission of murder. Insofar as the second dying declaration (Ex. 45) recorded by the Magistrate on 20.6.2005 is concerned, the Executive Magistrate (PW 6) and Dr. Anil Sanap (PW 9) who had examined deceased and declared her mentally and physically fit have proved dying declaration 3 (Exh. 45). The evidence of both these witnesses clearly establishes that the deceased was physically and mentally fit to give her statement on 20.6.2006 and before that she was not in a position to give her statement. We have absolutely no reason to disbelieve the version of these two independent witnesses. Even if, the first dying declaration recorded by the police is rejected, the second dying declaration recorded by the Executive Magistrate after ascertaining the fitness of the deceased is sufficient to connect the applicant with the crime. Having regard to the nature of the crime committed, we find no ground to take a different view than the one taken by this Court in order dated 31.7.2006. Merely because the period of three years has passed, by itself, is not sufficient to consider the application of the applicant for suspension of sentence and bail favourably. There is cogent evidence on record to connect the applicant with the serious crime which is of murder. Merely because the applicant is 68 years old, by itself, is not sufficient to suspend the substantive sentence and grant of bail to the applicant in the present case. For the reasons aforesaid, we find no ground to suspend the substantive sentence and grant bail to the applicant. JUDGE JUDGE Ambulkar.