1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4399 OF 2009 Shivaji s/o Nagorao Shinde .. Applicant/ Appellant Versus The State of Maharashtra through Police Station, Kalamnuri .. Respondent Mrs.Bharati Gunjal Advocate (Appointed) for the applicant Mr. S.D.Kaldate, A.P.P. for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 21st January 2010 PER COURT : 1. This is an application filed by the applicant by which the applicant prays for suspension of the substantive sentence of imprisonment and his enlargement on bail during the pendency of the appeal. The applicant came to be convicted by the trial Court for an offence punishable under Section 302 of the Indian Penal Code on the allegations that the applicant had poured kerosene on his wife Bhagyashri and set her ablaze on 4.6.2008. Incidentally it may be stated that Bhagyashri had sustained 100% burns. 2 2. The prosecution went to trial relying upon the testimony of P.W.8 Ramesh, a neighbour of accused. P.W.8 Ramesh states that on hearing the cries for help he rushed to the house of the accused and he noticed Bhagyashri in flames and accused pouring the kerosene on her person. He further states that the applicant attempted to flee from the place but 2-3 persons caught hold the accused and accused was tied. The applicant, it appears told those persons that Bhagyashri had illicit relations with others and, therefore, he killed Bhagyashri. During cross- examination P.W.8 Ramesh stated that he had not stated in his previous statement that he had gone to the house of the accused and saw Bhagyashri while burning and accused pouring the kerosene on her person. The other part in examination-in-chief has not been proved by way of omission. Prosecution has also examined P.W.9 Radhabai, another neighbour and a relative of deceased Bhagyashri, who states that Bhagyashri was ill-treated by the applicant/accused on the ground that the applicant was suspecting her chastity and on the day of incident the applicant had come to her house and informed her that Bhagyashri was burnt. 3. The trial Court accepted the evidence of P.W.8 Ramesh and P.W.9 Radhabai and repelled the defence of the applicant/accused that Bhagyashri had sustained burns on account of the accidental fall of a small kerosene lantern. The trial Court came to the conclusion that the lantern contained about 250 ml. of the kerosene and the aforesaid 3 quantity of kerosene was insufficient for inflicting 100% burn injuries. Coupled with this the trial Court came to the conclusion that the conduct of the applicant in attempting to flee from his residence and his extra- judicial confession proved the guilt beyond reasonable doubt. 4. We have heard Mrs.Bharati Gunjal, learned Counsel appointed on behalf of the applicant who has urged before us that apart from the evidence of P.W.8 Ramesh and P.W.9 Radhabai there is no evidence worth the name for sustaining the conviction of the applicant. It is stated that the applicant apparently has been falsely involved in the said crime on account of enmity. It is further stated that this being the third marriage of Bhagyashri as she had divorced her previous two husbands, foul play cannot be ruled out. The learned Assistant Public Prosecutor has urged for dismissal of the application on the ground that there is strong and overwhelming evidence against the applicant for justyfing his conviction for offence punishable under Section 302 of the Indian Penal Code. Prima facie we find that the evidence of P.W.8 Ramesh and P.W.9 Radhabai establishes the offence against the applicant. It cannot be urged before us that this is a case of no evidence at all. Additionally, we find that the applicant was not on bail during trial. The submissions advanced before us by the learned Counsel for the applicant pertain to reappreciation of evidence which cannot be done at this prima facie stage of examining the scope of releasing the applicant on bail. 4 5. Thus, we find that no case for suspension of substantive sentence of imprisonment and enlargement of the applicant is made out and consequently, this application which is devoid of any merit is, therefore, dismissed. We, however, quantify the fees payable to the learned Counsel appointed on behalf of the applicant at Rs.1,500/- (Rs.One thousand five hundred). ( SHRIHARI P. DAVARE, J.) ( P.V. HARDAS, J.) (vvr/4399.09criappln)