1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 60 OF 2010 IN CRIMINAL APPEAL NO.65 OF 2010 Vithal s/o Tukaram Gaikwad ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.M. Ganachari, Advocate (appointed) for the applicant; Mr S.D. Kaldate, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 24th February, 2010 PER COURT : The applicant/original accused who stands convicted for an offence punishable under section 302 and 498-A of the Indian Penal Code and sentenced to imprisonment for life and R.I. for one year with a direction to pay fine of Rs.500/-, in default to suffer further R.I. for two months, by the Sessions Judge, Osmanabad, by judgment dated 7.8.2008, by this application seeks the suspension of substantive sentence of imprisonment and his enlargement on bail pending the appeal. 2 2. The prosecution relied upon the dying declaration at Exh.57 recorded by P.W.7 Special Executive Magistrate. The recording of the dying declaration commenced at 7.00 a.m. and concluded at 7.25 a.m. The other circumstances on which the prosecution relied were the circumstance of motive and the oral dying declaration made to P.W.4 Sukhdeo and P.W.5 Limbabai, mother of deceased Chandrakala. The Trial Court also found that the incident had occurred at 3.00 a.m. in the residential house of the accused where the accused, his wife deceased Chandrakala and his two minor children were residing. 3. Shri Ganachari, learned Counsel appointed on behalf of the applicant has urged before us that the evidence on record indicates that deceased Chandrakala had been administered an injection of Pethidine immediately by the Primary Health Centre, Anadoor and the Medical Officer who had administered the said Pethidine injection has not stated as to whether it was administered intra veins or intra muscular. Learned Counsel for the applicant has also urged before us that the Medical Officer has admitted that in case the Pethidine injection was administered intra veins, the effect would last for 1-1/2 hours, while injection administered intra muscularly the effect would last for 3 to 4 hours. In that light it is urged before us that it is extremely doubtful if Chandrakala was in a fit mental condition to give her statement to the Special Executive Magistrate - P.W.7. It is also urged before us that the 3 evidence in relation to motive and the oral dying declaration is extremely scanty and cannot be relied upon. 4. The learned A.P.P. for the respondent - State has urged before us that the dying declaration at Exh.57 is supported by the endorsement of the Medical Officer that injured Chandrakala was in a fit condition to give her statement. The subjective satisfaction that Chandrakala is in a fit condition to give her statement is also recorded by P.W.7. In that light, it is urged by the learned A.P.P. that there is no merit in the contention that Chandrakala was not in a fit mental condition to give her statement. It is urged before us that the contention of the applicant that the dying declaration at Exh.57 comprises of 10 to 15 sentences and it is impossible that time of 25 minutes would be required for scribing also merits no consideration. 5. With the assistance of the learned Counsel for the parties we have perused the dying declaration at Exh.57 as well as the evidence of the prosecution witnesses. Prima facie we find that there is material to justify the conviction of the applicant. The submissions advanced before us by the learned Counsel for the applicant pertain to re-appreciation of evidence, which cannot be done at this stage. In that light of the matter, 4 this application which is sans merit is, therefore, dismissed. We, however, expedite the hearing of the appeal. We quantify the fees payable to the learned Counsel appointed on behalf of the applicant at Rs.1,000/-. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap60.10