1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal APPA No.46/2010 in Criminal Appeal No.537/2009 Sunil Maroti Gawai Vs. State of Maharashtra. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM: A.P. LAVANDE & R.C.CHAVAN, JJ. 9TH APRIL, 2010. Heard Mr. Shrivastava, learned counsel for the appellant/applicant and Mr. Mirza, learned APP for the respondent. By this application, the applicant, who has been convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code and sentenced to undergo imprisonment for life by Additional Sessions Judge, Amravati in Sessions Case No.48/2009 seeks suspension of substantive sentence imposed on him. The applicant has been convicted for committing murder of his wife Kalpana by setting her ablaze after pouring kerosene on 24/8/2008. In the course of the trial, the prosecution has relied upon two dying declarations which were recorded by the Executive Magistrate. In the first dying declaration deceased Kalpana stated that burning kerosene lamp fell on her on account of which she sustained burn injuries. In the second dying declaration recorded on 26.8.2008 she implicated 2 the accused as perpetrator of the crime. Learned trial Court placing reliance upon second dying declaration convicted and sentenced the accused as above. Mr. Shrivastava, learned counsel for the applicant submitted that second dying declaration does not inspire confidence inasmuch as it was given after the parents of Kalpana visited hospital and as such Kalpana was tutored to implicate the applicant. He further submitted that first dying declaration clearly exonerated the applicant from the crime and therefore, this is a fit case in which the applicant deserves to be released on bail pending the appeal. Mr. Mirza, learned APP for the respondent submitted that second dying declaration stands corroborated by the spot panchanama (Ex. 21) which clearly belies first dying declaration. Reliance is placed upon the judgment of the Apex Court in the case Sayarabano @ Sultana Begum V. State of Maharashtra : 2007 Cri. L.J..1458. Mr. Mirza submitted that the learned trial Court has rightly relied upon second dying declaration and has not relied upon the first dying declaration. Having heard learned counsel for the applicant and learned APP for the respondent and having perused the record, we are of the considered opinion that the prosecution has been able to 3 establish that it was the applicant who set his wife Kalpana ablaze after pouring kerosene on her. No doubt, in the first dying declaration Kalpana exonerated the applicant. However, the fact remains that second dying declaration stands corroborated by the spot panchanama (Ex. 21) which does not establish that deceased Kalpana sustained burn injuries accidentally on account of falling of upon kerosene lamp on her. Hence, we find it difficult to accept the submission of Mr. Shrivastava that second dying declaration does not inspire confidence since it was the outcome of tutoring by the parents of Kalpana. The offence committed by the applicant is serious in nature and the applicant was also not on bail pending the trial. In our considered opinion, this is not a fit case for suspension of substantive sentence imposed on the applicant. Hence, the application is dismissed. At this stage, Mr. Shrivastava states that hearing of Criminal Appeal be expedited. We are not inclined to grant any order of expedition at this stage. However, liberty is given to the applicant to file appropriate application if the appeal is not taken up for hearing within a reasonable time. JUDGE JUDGE Ambulkar.