1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 155 OF 2010 IN CRIMINAL APPEAL NO.16 OF 2010 Keshav s/o Dada Sangale & anr. ..APPLICANTS VERSUS The State of Maharashtra ..RESPONDENT Mr R.N. Dhorde, Advocate holding for Mr V.R. Dhorde for the applicants; Mr S.D. Kaldate, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 2nd February, 2010 PER COURT : This application at the behest of the applicants seeks for suspension of the substantive sentence of imprisonment for life and the enlargement of the applicants on bail pending the decision of this appeal. The applicants/original accused no.1 & 6 stand convicted for an offence punishable 302 read with sec. 34 of the Indian Penal Code by the Additional Sessions Judge-II, Beed, dated 1.1.2010, on the allegations that the applicants had poured kerosene on Dropadibai, wife of original accused no.6 and had set her ablaze. 2 2. The conviction rests on the dying declaration at Exh.71. In the aforesaid dying declaration, which the Trial Court has found to be a confidence inspiring piece of evidence, deceased Dropadibai names both the applicants as the one's who had poured kerosene and had set her ablaze. The dying declaration also recites the badckground relating to the incident in question. The Trial Court upon appreciation of the evidence found that implicit reliance could be placed on the said dying declaration at Exh.71. For reasons which are to be found in the judgment of the Trial Court, the Trial Court did not find the dying declaration at Exh. 88 to be a reliable piece of evidence. The dying declaration and the other circumstantial evidence, were considered by the Trial Court as sufficient for proving the offence against the applicants beyond reasonable doubt. 3. We have heard Shri R.N. Dhorde, learned Counsel for the applicants, with whose assistance we have perused the findings recorded by the Trial Court. It is the endeavour of the learned Counsel for the applicant that no reliance at all could have been placed on the dying declaration at Exh.71 and the recitals of the dying declaration at Exh.88, being in sharp contradistinction with the recitals of the dying declaration at Exh.71, both the dying declarations ought to have been disbelieved. It was also urged before us by the learned Counsel for the applicants that if the two dying declarations are left out of consideration, there is no 3 evidence worth the name for basing the conviction of the applicants for an offence punishable under section 302 of the Indian Penal Code. Learned A.P.P. has urged for dismissal of the application on the ground that the Trial Court has evaluated the evidence and has found credible evidence for sustaining the conviction. 4. Findings of the Trial Court, indeed, reveal that the Trial Court has marshaled the evidence and has found that the dying declaration at Exh. 71 can be relied upon. For reasons which are given by the Trial Court, the Trial Court has rejected the subsequent dying declaration at Exh.88. Therefore, it cannot be said that the present is a case which is based on no evidence. Whether the dying declaration at Exh.71 can be relied upon or whether it ought to have been discarded, is a exercise to be performed by the Court at the time of reappreciating the evidence. Therefore, according to us there is material on record to indicate that the present applicants are prima facie responsible for the offence with which they were convicted. However, looking to the fact that original accused no.1 Keshav is said to be aged 75 years and the fact that he was on bail during trial, we are inclined to partially allow this application and suspend the substantive sentence of imprisonment insofar as it relates to original accused no.1 Keshav. The application filed by original accused no.6 Rajendra is without any merit and deserves to be dismissed. 4 5. We accordingly partially allow this application and suspend the substantive sentence of imprisonment as imposed on original accused no.1 Keshav s/o Dada Sangale on executing a P.R. bond in the sum of Rs.15,000/- with one surety in the like amount to the satisfaction of the Trial Court. The applicant shall attend the Trial Court once in three months and the Trial Court is directed to ensure that proper arrangements are made for marking the attendance of original accused no.1 Keshav till the decision of the present appeal. 6. Accordingly this application is allowed and applicant Keshav s/o Dada Sangale is directed to be released on bail while the application filed by original accused no.6 Rajendra s/o Keshav Sangale stands rejected. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap155.10