1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1662 OF 2009 Ashok S/o Dharamsing Thakare .... APPLICANT V E R S U S The State of Maharashtra .... RESPONDENT Mr. C.R.Deshpande, Counsel for applicant. Mr. B.J.Sonawane, A.P.P. for Respondent – State. [ CORAM : P.V.HARDAS & R.K.DESHPANDE, JJ. ] DATE : 14 th JULY, 2009 PER COURT : 1. This is an application by which the applicant/accused seeks suspension of the substantive sentence of imprisonment and his enlargement on bail pending decision of the Appeal. 2 2. The applicant stands convicted for the offence punishable under Section 302 of Indian Penal Code on the allegations that the applicant had poured kerosene on his wife deceased Mogabai on 6/7/2006 and thereafter set her at ablazed. According to prosecution, deceased Mogabai succumbed to her injuries on 11/7/2006. 3. The prosecution relied mainly on the two dying declarations at Exh. 22 and Exh. 30. Exh. 22 has been recorded by P.W. 1 Himmat while Exh. 30 has been recorded by the Special Executive Magistrate, P.W. 7. 4. Mr. Deshpande, learned counsel for the applicant has urged before us that recording of Exh. 22 is shrouded in mystery as deceased is alleged to have stated in a different dialect than the dialect in which the dying declaration Exh. 22 has been recorded. Admittedly, according to the applicant, deceased Mogabai was not knowing Marathi whereas dying declaration Exh. 22 has been recorded in Marathi. P.W. 1 Himmat in his Examination-in-Chief does not state about deceased Mogabai stating the contents of the dying declaration either in Ahirani language or Bhilav dialect. In respect of Exh. 30, it is stated before us that it was recorded on 8/7/2006 while the date which is put beneath Exh. 30 by the Special Executive Magistrate is 7/8/2006. It is also urged before us that the 3 Medical Officer has not been examined. 5. The contents of the two dying declarations are self- contradictory and are at variance. In the dying declaration at Exh. 22, deceased Mogabai is alleged to have stated that she had poured kerosene on her person and it was the accused who had set her ablazed, while in the dying declaration at Exh. 30 deceased Mogabai has stated that it was the accused who had poured kerosene and had sat her ablazed. In the face of such conflicting dying declarations which are at variance on material aspects of the prosecution case, according to us, a strong case for suspension of the substantive sentence of imprisonment is made out. We are also informed that the accused was on bail during trial. 6. Thus, taking into account the various circumstances which we have referred to above, we allow this application and suspend the substantive imprisonment and direct the release of accused on bail on the accused/applicant furnishing a P.R. Bond in the sum of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety in the like amount to the satisfaction of the trial Court on the condition that the accused/applicant reports his attendance at Mhasavad Police Station once a week on first Saturday of each month between 8.00 a.m. to 9.00 a.m. 4 7. Application allowed accordingly. [ R.K.DESHPANDE ] [ P.V. HARDAS ] JUDGE JUDGE knp/CRIAPLN1662.09 5 6 7 8 9 10 11 12 13