1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2991 OF 2010 IN CRIMINAL APPEAL NO.299 of 2010 Kalyan S/o.Shrirang Kathale, Age-35 years, Occu-Service, R/o.Dagadwadi, Tq-Shirur (k), Dist. Beed APPLICANT VERSUS The State of Maharashtra RESPONDENT Mr.S.J.Salgare h/f. Mrs.S.S.Jadhav, learned counsel for the applicant. Mr.K.B.Chaudhary, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 30/08/2010 PER COURT : 1. By this application, the applicant, who stands convicted for an offence punishable u/s. 302 of The IPC, by the Additional Sessions Judge-II, Beed, by judgment dated 10/05/2010, in Sessions Case No. 132/2009, seeks suspension of the substantive sentence of imprisonment and his enlargement on bail during the pendancy of the appeal. Incidentally it appears that the applicant/accused was not on bail during trial. 2 2. The prosecution relies upon two written dying declarations at Exh.30 and 24 recorded by P.W.N.6 Shankar Rathod, Police Head Constable and P.W.No.3 Digambar Walewadikar, Special Judicial Magistrate respectively. The prosecution also relies upon the oral dying declaration alleged to have been made to P.W.No.2 Kachru, father of deceased Sadhana. 3. Learned counsel for the applicant has urged before us that though the dying declarations at Exh.30 and 24 are consistent in respect of the overact attributed to the present applicant, yet the mental fitness of injured Sadhana to give the aforesaid statement is extremely doubtful in view of the fact that she had sustained 90% burn injuries. It is also stated before us that as the applicant accused had tried to extinguish the fire, the applicant/accused can not be attributed with the intention of committing murder of Sadhana. Undisputedly, Sadhana is alleged to have died on account of the burns sustained by her. The submissions advanced before us by the learned counsel for the applicant pertains to re-appreciation of evidence, which can not be done at this stage. Suffice it to say that, there is sufficient evidence for us to prima-facie come to the conclusion that applicant is responsible for the burns sustained by Sadhana. 4. In that light of the matter, therefore, there being no merit in the present application, the application is dismissed. We, however, hasten to add that the findings recorded by us, are restricted to the 3 decision of this Appeal and should not be construed as any findings on merit. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2010/cri.appl.2991-10