{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3555 OF 2010 IN CRIMINAL APPEAL NO.383 OF 2010 Gajanan Sakharam Jadhav APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr.C.V.Dharurkar h/f Mr.V.S.Gaike, Advocate for applicant Mr.D.R.Kale, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 18th November 2010 PER COURT: 1. This is an application filed by the applicant / appellant seeking suspension of substantive sentence of imprisonment and his enlargement on bail, pending the decision of the appeal. The appellant, it appears, came to be convicted by the trial court for an offence punishable u/s 302 of the Indian Penal Code on the allegations that on 17.11.2008, in the early hours, the applicant had set his wife Jayashree ablaze by pouring kerosene on her. {2} Jayashree had sustained 98% burn injuries. 2. The prosecution principally relied upon the two written dying declarations at Exhibit-24 and Exhibit-34, recorded by Police Constable PW-6 and Special Executive Magistrate PW-7, respectively. Both the dying declarations were found to be consistent and, therefore, the trial court convicted and sentenced the applicant / appellant accordingly. 3. Mr.C.V.Dharurkar, learned counsel for the applicant has urged before us that in the light of the fact that Jayashree had sustained 98% burn injuries, it was physically impossible for her to have narrated the aforesaid statements at Exhibit-24 and Exhibit-34. Reliance is placed by the learned counsel for the applicant on the judgment of the Division Bench of this Court in “State of Maharashtra V/s Manohar Mukindrao Tayade”, reported in 2005 ALL MR (CRI) 469. The Division Bench has observed that in the light of the fact that the victim therein had sustained 95% burn injuries, it was impossible to believe the evidence that she was in a condition to give her statement. It appears that it was an appeal against acquittal and the trial court had acquitted the accused therein on the ground that the evidence indicated that the victim therein was not in a condition to give her statement. In any event, it is a matter of appreciation of evidence as to whether the victim in this case was or was not in a fit condition to give her statement. Mr.Dharurkar further urged that {3} existence of kerosene lamp finds reference in the prosecution evidence and, therefore, the defense of the applicant is probable that Jayashree had sustained burn injuries on account of accidental fall of kerosene lamp. It is also urged before us that in the light of the fact that Jayashree had sustained 98% burns, her thumb impression could not have been obtained, and the thumb impression on the dying declaration is again a suspicious circumstance. 4. The aforesaid submissions pertain to re-appreciation of evidence, which cannot be done at this stage. Suffice it to state that the two dying declarations implicate the present applicant and the trial court, despite the infirmities which are pointed out to us by the learned counsel for the applicant, has found the dying declarations to be truthful versions and inspired confidence of the Court. In that light of the matter, therefore, we are not inclined to allow this application and suspend the substantive sentence. 5. Accordingly, this application is dismissed. We, however, expedite the hearing of the appeal. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapln3555-10