1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.4381 OF 2009 IN CRIMINAL APPEAL NO.632 OF 2009 Rajkumar s/o Rangrao Deshmukh ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr R.N. Dhorde, Advocate for the applicant; Mr K.J. Ghute Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 8th January, 2010 ORAL ORDER (PER SHRIHARI P. DAVARE, J.) This is an application preferred by the applicant/accused requesting to suspend the substantive sentence inflicted upon him by learned Sessions Judge, Latur in Sessions Case No.20 of 2008 on 18.11.2009 under section 302 of the Indian Penal Code and also requesting for his enlargement on bail during the pendency of the appeal. 2 2. It is the case of prosecution that there were illicit relations between the applicant/accused and victim Kamalabai Birajdar and it is alleged that on 29.11.2007 at about 11.00 p.m. the applicant/accused poured kerosene on the person of the victim and set her ablaze and thereby she sustained 100% burns and succumbed to the injuries. While admitting the victim in Government hospital at Latur, the medical history Exh.18 was recorded as accidental burns. Thereafter P.W.6 Kamble recorded first dying declaration of the victim (Exh.29) on 30.11.2007 at about 5.00 a.m. Moreover, P.W.7 Special Executive Magistrate Suryawanshi also recorded another dying declaration of victim (Exh.41) at 8.00 a.m. on the same day i.e. 30.11.2007. After death of deceased Kamalabai, her body was sent for post mortem and post mortem was conducted by P.W.1 Dr. Siddiqui and post mortem report was received on 28.12.2007. After completion of investigation a charge-sheet came to be filed against the applicant/accused under section 302 of the Indian Penal Code and that the applicant/accused faced trial in Sessions Case No.20 of 2008 and came to be convicted and sentenced thereunder as aforesaid. Being aggrieved by the said conviction and sentence, the applicant/accused had filed Criminal Appeal No.632 of 2009 which is pending and the applicant/accused has preferred the application for bail therein requesting to enlarge him on bail. 3. The learned Counsel for the applicant submitted that the Trial Court has discarded the subsequent dying declaration recorded by P.W.7 3 Special Executive Magistrate Suryawanshi (Exh.40) concluding that the said dying declaration cannot be construed as reliable and truthful and further observing that deceased was not in a fit mental condition at the time of giving the said dying declaration. 4. The learned Counsel for the applicant further canvassed that at the time of admission of the victim Kamalabai in Government Hospital at Latur the medical history was recorded and the medical case papers dated 30.11.2007 disclosed that the alleged history of accidental burns in respect of the victim was mentioned therein. The learned Counsel for the applicant submitted that the prosecution has not examined the concerned Doctor who recorded the history of the victim. 5. The learned Counsel for the applicant further made submission that the defence has examined defence witness, namely Mr Raju Kawe, who in fact carried the victim from the house to the hospital and the said witness was not examined by the prosecution and, therefore, the defence was required to examine him and in his deposition he stated that he inquired with the victim about the injuries, thereupon she informed him that she sustained burn injuries accidentally due to bursting of stove. 6. As regards first dying declaration (Exh.29) which was recorded by P.W.6 Police Head Constable Kamble, the learned Counsel for the applicant submitted that the testimony of P.W.6 Head Constable Kamble 4 cannot be construed as truthful testimony and, therefore, same cannot be believed. Learned Counsel for the applicant submitted that the applicant/accused was on bail during the trial. 7. The learned A.P.P. opposed the present application and to counter the arguments of the learned Counsel for the applicant, learned A.P.P. submitted that there are two consisting dying declarations given by the victim and both the said dying declarations are truthful and reliable. Learned A.P.P. also pointed out that the testimony of P.W.3 Sundarabai reveals the presence of the applicant/accused after the incident. Learned A.P.P. also pointed out that although D.W.1 Raju Kawe stated in his deposition that he allegedly made inquiry with the victim and thereupon she informed to D.W.1 Raju that she sustained injuries accidentally due to bursting of stove, there is no mention/reference of seizure of stove in the spot panchnama. As regards the medical case papers (Exh.18) and history of accidental burns mentioned therein, learned A.P.P. submitted that there is no mention that the said history was given by the patient i.e. victim. Accordingly, the learned A.P.P. submitted that there is incriminating evidence against the applicant to connect him with the crime. 8. We have perused the record and proceedings which was made available to us for perusal purpose as well as we have considered the submissions advanced by both the learned respective Counsel for the 5 parties and it is apparent that prosecution has examined in as much as eight witnesses whereas accused examined one witness in his defence. However, the submissions advanced by learned Counsel for the applicant are in respect of appreciation of evidence which cannot be done at this stage. Moreover, apparently we are of the view that there is prima facie evidence against the applicant herein and, therefore, we do not feel that this is a fit case to enlarge the applicant on bail during the pendency of the appeal. In the result, Criminal Application bears no substance and same is devoid of any merit and, therefore, the same stands rejected. 9. Liberty to the applicant to file private paper book and to urge for early hearing after filing of the private paper book. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap4381.09