drp {1} Cri. Application No.451/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.451 OF 2011 IN CRIMINAL APPEAL NO.47 OF 2011 1. Mirza Sajjad Baig s/o Burhan Baig APPLICANTS Age-72 years, Occ-Pensioner R/o Mominpura, Parbhani 2. Mirza Alim Baig s/o Mirja Zajjad Baig Age-40 years, Occ-Service R/o Dargah Road, Parbhani VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for the applicants Mr. N.H.Borade, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 22nd February 2011 PER COURT: 1. The applicants, who stand convicted for an offence punishable u/s 302 and 498A r/w 34 of the Indian Penal Code, by Additional Sessions Judge, Parbhani, by Judgment dated 03.01.2011, in Sessions Trial No.31/2008, by this application seek drp {2} Cri. Application No.451/2011 suspension of the substantive sentence of imprisonment and their enlargement on bail, pending the decision of the appeal. 2. The applicants are alleged to have committed murder of Taslima, wife of applicant No.2 and daughter in law of applicant No.1. The conviction of the applicants rests, principally, upon two dying declarations recorded at Exhibit-94 and Exhibit-65 by PW-7 ASI and PW-2 Special Executive Magistrate, respectively. The trial court has also placed reliance on the evidence of PW-6, who is a child witness, in respect of oral dying declaration alleged to have been made by the deceased to him. 3. Mrs.Jadhav, learned counsel for the applicants, has urged before us that soon after her admission, history of the incident came to be recorded by the Medical Officer, as narrated by Taslima. In the said history, Taslima had claimed to have sustained the burns accidentally. Similarly, it is also stated before us that pethidine injection was administered to Taslima, which would obviously affect her mental faculty and render the dying declarations to be unreliable. It is also urged before us that the dying declaration at Exhibit-65, does not bear signature of the Special Executive Magistrate. It is also pointed out that the statement of the child witness came to be recorded practically after about a month of the incident and, therefore, tutoring of the child witness could not be ruled out. drp {3} Cri. Application No.451/2011 4. Submissions advanced before us by learned counsel for the applicants, pertain to re-appreciation of the evidence, which cannot be done at this stage. Though the applicants are said to have been granted anticipatory bail by this Court, we are not inclined to allow this application solely on that ground. There is material against the applicants for justifying their conviction for an offence punishable u/s 302 and 498A of the Indian Penal Code. However, since applicant No.1 is aged about 72 years, we are inclined to allow this application in respect of applicant No.1 Mirza Sajjad Baig s/o Burhan Baig. 5. Accordingly, this application is partly allowed. The application stands dismissed in respect of applicant No.2 Mirza Alim Baig s/o Mirja Zajjad Baig. The application, so far as it relates to applicant No.1 Mirza Sajjad Baig s/o Burhan Baig is allowed. The substantive sentence of imprisonment of applicant No.1 stands suspended on the applicant No.1 executing PR bond in the sum of Rs.25,000/- with one surety in the like amount, to the satisfaction of the trial court. Applicant No.1 shall attend Nanal Peth police station, Parbhani once in three months on first Saturday between 8 a.m. and 10 a.m. during the pendency of the appeal. Application is partly allowed, as indicated above. 6. Hearing of the appeal is, however expedited. Mrs.Jadhav, learned counsel for the appellants, states that the appellants would file a private paper book within 8 weeks from drp {4} Cri. Application No.451/2011 today. Leave granted to file a private paper book. On the paper book being tendered in the registry, the appeal be listed for hearing. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapln451-11