4. appa 487-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 487 OF 2011 IN CRI. APPEAL NO. 129 OF 2010 Prakash Chandrakant Mahadik .. Applicant Vs The State of Maharashtra .. Respondent Mr. Vikas Shivarkar for the Applicant Mr. Y.S. Shinde, APP for the State CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 21st APRIL, 2011 PER COURT: 1. By this application, the applicant / appellant seeks suspension of substantive sentence of imprisonment and his enlargement on bail. It appears that the applicant had earlier filed Cri. Application No. 1370 of 2010 praying for similar reliefs which came to be dismissed by the Division Bench of this Court granting liberty to the applicant to apply afresh after a period of four months. After expiry of the period of four months, the present application has been filed. 2. The applicant stands convicted for an offence punishable under Section 302 of IPC on the allegations that the applicant had set his own mother ablaze after quarreling with her. The prosecution relied upon the three dying declarations, one 1 4. appa 487-11.doc recorded by the Medical Officer and the other two recorded by the Police Officers. In all the three dying declarations, the deceased had implicated the present applicant as the one who had set her ablaze. The trial Court gave benefit of doubt to wife of the present applicant who was accused no. 2 on account of discrepancy in respect of the overt act attributed to her in the three dying declarations. 3. Learned counsel for the applicant has urged before us that the deceased had sustained 28% burn injuries and the Medical Officer has opined that the deceased had died on account of shock due to burn injuries. The deceased had also sustained internal injury i.e haemotoma beneath skull which according to the Medical Officer was not sufficient in ordinary course of nature to cause death. It is also urged before us by the learned counsel for the applicant that the deceased in her dying declaration recorded by the police had attributed injuries by a knife to the applicant on her hands. The medical evidence clearly falsifies the aforesaid averment in the dying declarations about causing any injuries by knife on the hands of the deceased. The learned counsel, therefore, has urged before us that in the light of the aforesaid evidence, the applicant is entitled to be released on bail by suspending his substantive sentence. The learned APP has urged before us for dismissal of this application on the ground that there is a strong prima facie case against the applicant. 2 4. appa 487-11.doc 4. The trial Court has no doubt given benefit to the wife of the applicant who was accused no. 2, on account of discrepancy in three dying declarations in respect of the overt act attributed to her. That by itself would not affect the credibility of the dying declarations. In any event, in all the three dying declarations, the overt act of setting the deceased ablaze is attributed to the present applicant. The submissions urged before us by the learned counsel for the applicant that the three dying declarations are liable to be disbelieved by the Court is a submission pertaining to re-appreciation of evidence which cannot be done at this stage. Suffice it to state that prima facie, we find strong evidence against the applicant in respect of his involvement in the crime. Additionally, we find that the applicant was not on bail during the trial. The fact that the father of the applicant has suffered a paralytic stroke, cannot be the ground for suspending substantive sentence and directing release of the applicant on bail. This Criminal Appeal is of the year 2010 and we are presently hearing Criminal Appeals of the year 2004. We grant liberty to the applicant to apply for early hearing of his appeal after the paper book is received. Application is accordingly rejected. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 3 4. appa 487-11.doc 4