drp {1} Cri. Application No.1354/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1354 OF 2011 IN CRIMINAL APPEAL NO.167 OF 2011 1. Ganesh s/o Nanabhau Mehetre APPLICANTS Age-30 years, Occ-Agriculture 2. Kusum w/o Nanabhau Mehetre Age-50 years, Occ-Household Both R/o Akolner, Tq-Nagar Dist-Ahmednagar VERSUS The State of Maharashtra RESPONDENT ....... Mrs.Sadhana Jadhav, Advocate for the applicants Mr. V.D.Godbharle, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 14 th June 2011 PER COURT: 1. This is an application filed by the applicants, who stand convicted for an offence punishable u/s 302 of the Indian Penal Code, by the trial court on the allegations that the applicants had set deceased Sangita ablaze on 11.06.2006. By this drp {2} Cri. Application No.1354/2011 application, the applicants seek suspension of substantive sentence of imprisonment and their enlargement on bail, pending the decision of the appeal, which has been admitted by this Court. 2. The prosecution relied upon two dying declarations at Exhibit-23 and Exhibit-16, recorded by Naib Tahsildar and Police Constable Dange, respectively. Trial court accepted the evidence relating to the recording of the dying declarations as well as recitals of the dying declarations and convicted and sentenced the applicants accordingly. 3. Mrs.Jadhav, learned counsel for the applicants has urged before us that there is variance in respect of actual incident, including prelude to the incident and the dying declarations at Exhibit-16 and Exhibit-23. It is, therefore, the submission of learned counsel for the applicants that the trial court ought to have acquitted the applicants by rejecting the dying declarations. Learned APP has urged before us for the dismissal of the application on the ground that prima facie there exists strong evidence against the applicants. 4. With the assistance of learned counsel for the parties we have perused the two dying declarations at Exhibit-23 and Exhibit-16. The submission advanced before us by learned counsel for the applicants, pertains to re-appreciation of the evidence, which cannot be done at this stage. Suffice it to state that in both drp {3} Cri. Application No.1354/2011 the dying declarations, the overt act of pouring of kerosene and setting deceased Sangita ablaze is attributed to her husband- applicant No.1 as well as to applicant No.2, who is her mother in law. Though in Exhibit-16 it is stated that deceased Sangita was caught by applicant No.2 while kerosene was poured by applicant No.1, which does not reflect in Exhibit-23, yet the aforesaid discrepancy would be subject matter of re-appreciation of the evidence, which cannot be done at this stage. We are, therefore, not inclined to release the applicants on bail, by suspending their sentence, in the light of strong prima facie evidence against the applicants. However, looking to the fact that applicant No.2 is a lady, aged about more than 50 years and was on bail during the trial, we are inclined to favourably consider her request for suspension of sentence and her enlargement on bail. 5. Accordingly, criminal application is partly allowed. Application stands dismissed in respect of prayer of applicant No.1 Ganesh for his release on bail by suspending his substantive sentence. Application is partly allowed in respect of the plea of applicant No.2 Kusum for her enlargement on bail. We accordingly, suspend the substantive sentence of imprisonment as awarded to applicant No.2 and direct her release on bail on the condition that applicant No.2 shall execute a 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.2 shall make herself available at the time of hearing of the appeal. Since we are already hearing criminal drp {4} Cri. Application No.1354/2011 appeals of the year 2010-11, we accede to the request of the learned counsel for the applicants for grant of permission to file a private paper book. This be done within 6 weeks from today. On such paper book being filed, the appeal be set down for hearing. 6. Application is partly allowed, as aforestated. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapln1354-11